) ) HER MAJESTY THE QUEEN Respondent – v. –, 2013 ONSC 7816

CITATION : R. v. Bobal, 2013 ONSC 7816 COURT FILE NO.: 08-12807 DATE: 20131218 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – PRAHLAD BOBAL Appellant ) ) ) ) ) ) ) ) ) Moiz K. Karimjee, for the Crown Ronald G. Guertin, for the Appellant ) )) HEARD: September 5, 2013 DECISION ON

SUMMARY CONVICTION APPEAL Justice Patrick Smith [ 1 ] The Appellant, Prahlad Bobal, was charged that on or about the 18th day of July, 2008: (

a) while his ability to operate a motor vehicle was impaired by alcohol he operated a motor vehicle contrary to s. 253(1) (

a) of the Criminal Code of Canada ; (

b) having been involved in an accident with a vehicle, and with intent to escape civil or criminal liability, failed to stop the vehicle and give his name and address contrary to s. 252(1.1) of the Criminal Code ; and (

c) without reasonable excuse, refused to comply with a demand made to him by a peace officer to provide such samples of breath as were necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood and thereby committed an offence under s. 254(5) of the Criminal Code . [ 2 ] At trial, the Appellant was found guilty of impaired driving and refusal to provide a breath sample, but was acquitted of the charge of leaving the scene of an accident. Mr. Bobal appeals both convictions.

BACKGROUND [ 3 ] On July 18, 2008, the Appellant was involved in a minor motor vehicle accident when he unsuccessfully tried to navigate a left turn, and turned into the lane of oncoming traffic. [ 4 ] The Appellant had spent the majority of his day, on July 18, 2008, at a casino, after which he visited with a friend, Mr. Barrie. It was en route from Mr.

Barrie’s house, to the Appellant’s home, that the Appellant became involved in the accident. [ 5 ] The Appellant admits to having consumed between one and four ounces of alcohol, over the course of many hours, having had one drink at the casino and two at his friend’s house.

[ 6 ] At the time of the accident, the Appellant remained stopped in his car, while the driver of the other car involved in the accident, Mr. Zelmer, exited his vehicle in order to talk to him. Mr. Zelmer noticed that the Appellant was acting strangely. At Mr. Zelmer’s request, the Appellant turned off the engine of his vehicle. Concerned that the Appellant was tired, sick or drunk, Mr. Zelmer waved down another driver, Mr. Yanar, who then phoned the police. Mr. Zelmer then tried to reach into the Appellant’s car to remove his keys.

The Appellant turned on his car and began to drive forward, slowly, leaving the scene of the accident. [ 7 ] Mr. Yanar followed the Appellant to his home, which was a short distance away. He testified that the Appellant was driving very slowly, swerving, stopping, and that he attempted several left turns which he aborted, before finally arriving at his house. Mr.

Yanar watched from his car, as Constable Casimir arrived and approached the Appellant who was attempting to gain access into his house via the front door. [ 8 ] Constable Casimir arrested the Appellant for impaired driving and for failing to remain at the scene of an accident. [ 9 ] Constable Dobler arrived to aid in the arrest. Both constables testified that they could detect a strong odour of alcohol coming from the Appellant. They stated they had reasonable grounds to believe that the Appellant was intoxicated. [ 10 ] During the arrest, the Appellant was belligerent and uncooperative.

At one point, he complained that he was in pain. His wife came to the door during her husband’s arrest and informed Constables Dobler and Casimir that the Appellant suffered from heart problems. Constable Dobler called an ambulance, however, the Appellant refused to be assessed by the paramedics, who arrived a short time after being called. The assessing paramedic, Mr. Rathier, also noted that the Appellant smelled of alcohol. [ 11 ] The Appellant was then placed in a police cruiser, and again complained of chest pains shortly after the cruiser left his house.

Constable Casimir, who was driving the cruiser, stopped and again called for the paramedics. The Appellant again refused medical assistance once the paramedics arrived. [ 12 ] Once at the police station, the Appellant insisted on contacting his counsel, John Hale. Constable Casimir was unable to reach Mr. Hale and left a message for him. He also offered the Appellant the opportunity to call a different lawyer. The Appellant refused and consequently did not end up speaking to any lawyer at this time. [ 13 ] While at the police station, the Appellant again complained of chest pains.

This time, the paramedics were able to perform a preliminary assessment, and recommended that the Appellant be taken to the hospital. At the hospital, medical personnel declared the Appellant fit to give a breath sample. When Constable Seguin made the demand for a breath sample, the Appellant refused and demanded to speak to his lawyer. After attempting, for four minutes, to obtain a sample, Constable Seguin charged the Appellant with refusal, contrary to s. 254(5) of the Criminal Code . ISSUES [ 14 ] In his factum, the Appellant raises the following issues on appeal:

(1) Did the trial judge err in his application of the test in R. v. W.(D.) in assessing the evidence before him?

(2) Did the trial judge err in his determination that the evidence was capable of establishing that the Appellant was operating a vehicle while impaired by alcohol?

(3) Did the trial judge err in his finding that the evidence was capable of establishing that the conduct of the Appellant amounted to a refusal to provide a breath sample? [ 15 ] Although not expressly identified in the Appellant’s factum, the Appellant raised the following issues as well:

(4) Did the trial judge provide insufficient reasons?

(5) Did the trial judge’s actions during the trial and/or reasons for his decision lead to a reasonable apprehension of bias and jeopardize the accused’s right to a fair trial?

(6) Did the trial judge err by misapprehending the evidence in a way that resulted in a miscarriage of justice? [ 16 ] The Crown does not object to the Court addressing these additional grounds of appeal. [ 17 ] The Appellant had also appealed on the basis of ineffective assistance of counsel, but has since withdrawn this allegation as a ground for appeal. Legal Framework for

Summary Conviction Appeals [ 18 ] Section 686(1) (

a) of the Criminal Code provides that, on the hearing of an appeal against conviction, the Court of Appeal may allow the appeal where it is of the opinion that: (

a) the decision should be set aside on the ground that it is unreasonable or cannot be supported by the evidence; (

b) the decision should be set aside on a question of law; or (

c) in any circumstances where there was a miscarriage of justice. [ 19 ] If the verdict is unreasonable or there is an error of law alone, the appeal will be successful unless the Crown is able to

demonstrate that, pursuant to s. 686(1)(b)(iii), “no substantial wrong or miscarriage of justice has occurred.” [20] Where an appellant asserts that a verdict is unreasonable, the role of the appellate court is to determine whether, on the factsthat were before the trial judge, a jury properly instructed and acting reasonably could convict: R. v S.(P.L.) [1991] 1 S.C.R. 909, (SCC). [21] Section 686(1)(

a) of the Criminal Code allows an appellate court to review the evidence but only for the purpose ofdetermining if it is reasonably capable of supporting the trial judge's conclusion and assessing whether the trier of fact could reasonablyhave reached the conclusion that it did on the evidence before it. The Supreme Court in R. v.

Burns, [1994] 1 S.C.R. 656, (SCC), stated in para. 14 that once the above threshold has been met, “the Court of Appeal is not to substitute its view for that of thetrial judge, nor permit doubts it may have to persuade it to order a new trial.” [22] Generally, considerable deference is afforded to the findings of the trier of fact, as stated by Arbour J. in R. v.

Biniaris, 2000SCC 15, [2000] 1 S.C.R. 381, at para. 24: Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to bedrawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown’s case ismade out, overall, beyond a reasonable doubt.

Any judicial system must tolerate reasonable differences of opinion on factual issues.Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction.Although reasonable people may disagree about their appreciation of the facts, a conviction, which conveys legality, authority andfinality, is not something about which reasonable people may disagree. A conviction cannot be unreasonable, except as a matter of law,in which case it must be overturned. [23] With respect to findings of credibility, the words of Rothman J. in R. v.

Chevrier (1992), (SCC), 81 C.C.C.(3d) 417 (Qc. C.A.), at para. 42 provide a helpful guide to courts of appeal: …credibility is, of course, a question of fact and it cannot be determined by fixed rules. Ultimately, it is a matter that must be left to thecommon sense of the trier of fact…Unless the record reveals an error of law or in principle or a clear and manifest error in theappreciation of the evidence, a court of appeal should not intervene in that determination.

THE POSITIONS OF THE PARTIES The Appellant [24] It is the Appellant’s position that the verdicts of guilty were unreasonable, and that the trial judge both misstated andmisapprehended the evidence before him and inappropriately considered erroneous factors in arriving at his determination of theAppellant’s guilt. [25] The Appellant argued that the trial judge’s reasons were insufficient, and that the trial judge failed to properly review therecord before him. [26] The Appellant submits that it was incumbent on the trial judge to assess the reliability of each witness and to address eachcontradiction in evidence.

According to the Appellant, the trial judge failed to properly reconcile the inconsistencies of the Crownwitnesses in a manner that would allow an appellate panel to appreciate his reasons and that this failure makes his decision unreasonable. [27] In his factum, the Appellant reviewed the evidence upon which the trial judge based his finding of guilt with respect to thecharge of impaired operation of a motor vehicle and stated that each piece of evidence relied on is consistent with an explanation otherthan of impairment. [28] The Appellant argued that the constellation of facts upon which the trial judge based his verdict did not include aconsideration of facts which raised a reasonable doubt.

Such facts include a proper recollection of the evidence: the injuries sustained bythe Appellant during his arrest and his various health issues, which would have combined to incapacitate him; his exasperation over histreatment by the police; his lack of understanding during the events and during his testimony; and events which occurred at the hospital. [29] The Appellant also submits that the evidence is incapable of supporting a finding that the Appellant refused to give a breathsample at the time of his arrest.

Rather than refusing to give a sample, the Appellant alleges that he had merely expressed his wish, aswas his right, to speak with counsel before giving a breath sample. [30] The Appellant argued that there was inconsistency, “on practically every point,” between the testimony of Constable Seguinand Constable Casimir, the two police officers who were present at the time of the breath sample demand and that the trial judge nevergave proper weight to this evidence. [31] Furthermore, the Appellant argued that the trial judge’s finding that there had been “constructive refusal” by the Appellant toprovide a breath sample was contrary to established jurisprudence that a refusal must be clear and unequivocal. [32] Additionally, the Appellant maintained that the trial judge relied, in part, on his finding that the Appellant had refused toprovide a breath sample, to infer the Appellant’s intoxicated state while driving.

The Appellant submits that this inference is wrong inlaw. [33] The trial judge also found both that the Appellant had drunk himself into a “stupor” and that the Appellant had sufficientawareness to deliberately postpone giving a breath sample until his level of intoxication had reduced. The Appellant argued that thesefindings are so contradictory as to render the convictions inconsistent and unreasonable.

The Respondent Crown [34] The Respondent Crown submits that there was ample evidence before the trial judge upon which he could reasonablyconclude that the Appellant had been driving while impaired by alcohol. Although the Appellant does not allege that his impairment wascaused by a combination of alcohol and medication, there was some discussion, in testimony and in the trial judge’s reasons, of thepossibility that the Appellant’s intoxication may have been due to a combination of alcohol and prescription and/or non-prescriptionmedication.

The Respondent argues that, despite these allusions to medication, there was no evidence that the Appellant’s impairmentwas actually caused by a combination of alcohol and medication. However, even if this were the case, the Crown relied on R. v. Bartello,[1997] O.J. No. 2226 (C.A.) at para. 2, which stated that as long as alcohol was a contributing cause of impairment, the offence is madeout. [35] The Respondent also argues that the trial judge heard evidence which was reasonably capable of supporting his conclusionthat the Appellant had refused to provide a breath sample.

It was open to the trial judge to find that the Appellant’s insistence onspeaking to his counsel first was part of a plan to postpone giving a breath sample until the Appellant was more sober. [36] With respect to the Appellant’s argument that the trial judge misapprehended the evidence before him, the Respondentsubmits that the appellate court should first consider the reasonableness of the verdict.

If the verdict is found to be unreasonable, anacquittal should be entered. [37] If the verdict is not unreasonable, the court should next determine whether the misapprehension of evidence occasioned amiscarriage of justice. [38] A miscarriage of justice occurs where the trial judge’s misapprehension relates to material parts of the evidence, and thoseerrors play an essential

part in the reasoning process resulting in a conviction. Ordinarily, the onus is on the Appellant to show that amisapprehension of the evidence amounted to a miscarriage of justice. However, if the misapprehension of the evidence amounted to anerror in law, the onus will shift to the Crown to demonstrate that it did not result in a miscarriage of justice. [39] The Respondent argues, first, that the trial judge’s verdict was not unreasonable.

The trial judge heard evidence which wasreasonably capable of supporting his conclusion that the Appellant’s ability to operate a motor vehicle was impaired by alcohol and thatthe Appellant refused to provide a breath sample. [40] The Respondent also submits that the trial judge’s reasons, when read as a whole, show that the Appellant’s conviction didnot rest on any alleged misapprehension of the evidence.

The trial judge took a “big picture” view of the evidence rather than wanting tobe convinced of each fact beyond a reasonable doubt, as he was entitled to do. [41] The Respondent further argues that the trial judge properly considered and applied the test in R. v. W.(D.).

The trial judgeheard evidence which was reasonably capable of supporting his conclusion that the Crown’s case was proven beyond a reasonable doubtand that the Appellant had not raised a reasonable doubt. [42] With respect to the trial judge’s findings on credibility the Respondent argues that these findings are entitled to deference. [43] Finally, the Crown argues that the onus is on the Appellant to demonstrate that the trial judge’s actions and/or reasons forjudgment raised a reasonable apprehension of bias. The Appellant must show a real likelihood or probability of bias, which is a highthreshold.

The Crown submits that this burden was not met. The trial judge spoke his mind to both the Crown and Defence and did notshow favour for one or the other. Furthermore, the trial judge fairly acquitted the Appellant of leaving the scene of an accident withintent to escape civil or criminal liability. Issue #1: Did the trial judge err in his application of the test in R. v. W.(D.) in assessing the evidence beforehim? [44] In R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742 at para. 28, the Supreme Court of Canada outlined theappropriate test for assessing the issue of credibility of an accused who testifies: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [45] Both reasonable doubt and proof beyond a reasonable doubt do not apply to each and every piece of the evidence, but on thetotality of the evidence on each of the elements of the offence: R. v. Morin, (SCC), [1988] 2 S.C.R. 345 at paras. 63 and70.

A trial judge is not required to consider each and every piece of evidence on the standard of proof beyond a reasonable doubt inconcluding that he was satisfied on the ultimate issues. [46] The Appellant argues that the trial judge failed in his W.(D.) analysis by misstating the evidence, misapplying the law andeither dismissing or ignoring evidence which raise a reasonable doubt. [47] The trial judge found that the case was overwhelming. In his reasons, the trial judge states: So if I were to apply a WD test procedure to this man’s credibility boy that would be the fastest WD analysis I have done.

The answers tothe three questions in WD would be no, no and no. No I do not believe him and if I do not believe him is the evidence that I am left withcapable of raising a reasonable doubt even though I do not believe his evidence? The answer to that is no, and finally having excluded

and discarded his evidence, which I do in this case, without any hesitation whatsoever is there any evidence left that leaves me with adoubt as to his credibility and the answer is no. [48] The trial judge was entitled to find that the Appellant was not a credible witness and to disbelieve the whole of his evidence.The trial judge furthermore gave reasons for so finding.

He stated: I have made at least four or five notations where the Crown attorney or [the Appellant’s] counsel asked a very simple question, capableof being answered in a very short and simple fashion, and [the Appellant] just misses the questions all together [sic]. Whether he does iton purpose or not? I do not know but, he just misses the question and goes on to a tangent, provides a very convoluted answer that hasnothing to do with the question that is asked of him and whether that is in an attempt to confuse the Court or mislead the Court? I do notreally know. All I know is that I was not misled by it.

I consider him to be an elusive witness, one that who has no reliability whatsoever,one to whom I should attribute very little if any credibility. I find him to be totally and intellectually dishonest and I cannot accept a wordthat that man tells me if it conflicts with the evidence of any other witness. (page 17, line 17 – page 18, line 3) [49] The trial judge also stated: This man [the Appellant] is totally incredible.

He tells us all that, “Well at the time I lost my memory and as I reviewed the disclosure.”Well maybe so but that does not speak very highly to your ability to recall the events and to give me meaningful evidence. (page 18, lines17-22) [50] The trial judge’s findings with respect to credibility are entitled to deference. He was entitled to reject the Appellant’sevidence where it conflicted with the evidence of other witnesses.

Furthermore, as is discussed in more detail below, there was ampleevidence before the trial judge which was reasonably capable of supporting his conclusion that the Crown’s case was proved beyond areasonable doubt. Conclusion [51] The trial judge did not err in his application of the test in W.(D.). Issue #2: Did the trial judge err in his determination that the evidence presented was capable of establishingthat the Appellant was operating a vehicle while impaired by alcohol? [52] According to section 253(1)(

a) of the Criminal Code, “[e]very one commits an offence who operates a motor vehicle…whether it is in motion or not, while the person’s ability to operate the vehicle… is impaired by alcohol or a drug.” Section 253(2) furtherclarifies that “the reference to impairment by alcohol or a drug in paragraph (1)(

a) includes impairment by a combination of alcohol and adrug.” [53] Where the question before an appellate court is whether the trial judge’s verdict was unreasonable, or one that cannot besupported on the evidence, the standard of review is that set out by the Supreme Court of Canada in R. v.

Burns, (SCC),[1994] 1 S.C.R. 656 at para. 14: In proceeding under s. 686(1)(a)(i), the court of appeal is entitled to review the evidence, re-examining it and reweighing it, but only forthe purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier offact could reasonably have reached the conclusion it did on the evidence before it: R. v. Yebes, (SCC), [1987] 2 S.C.R.168; R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122.

Provided this threshold test is met, the court of appeal is not to substituteits view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial. [54] The Appellant submits that the evidence before the trial judge was not reasonably capable of supporting a finding that theAppellant had operated a motor vehicle while impaired. I disagree. [55] The Appellant argued that the trial judge erred in finding that the Appellant entered the wrong lane at the time of his accidentwith Mr. Zelmer. Both Mr. Zelmer and Mr.

Yanar testified to this event, and it was open to the trial judge to rely on their evidence inmaking his findings of fact. [56] The Appellant conducted a thorough analysis of the evidence offering

interpretations of the evidence which are alternative tothe trial judge’s finding that the Appellant was intoxicated. For instance, the Appellant suggested that his actions and demeanour at thetime of his accident with Mr. Zelmer were equally consistent with someone who was both scared and sick. The Appellant also arguedthat his manner of driving after leaving the scene of the accident was more consistent with someone worried about the heavy rain. [57] The role of an appellate court, however, is not to reassess all of the evidence in order to arrive at its own conclusion.

In thiscase, the trial judge heard sufficient evidence which was reasonably capable of supporting his conclusion that the Appellant wasintoxicated while operating a motor vehicle. Specifically, the trial judge heard evidence of the accident; evidence the Appellant turnedinto the wrong lane; that the Appellant was not aware he had been in an accident; that the Appellant misinterpreted the words and actionsof Mr.

Zelmer; that the Appellant drove slowly, stopping and swerving, as he left the scene of the accident; that the Appellant suffered aloss of memory; evidence that the Appellant suffered from problems with his speech, balance, and walking; that the Appellant had glassyand watery eyes; that the Appellant acted belligerently and aggressively; that the Appellant smelled of alcohol; that the Appellanturinated in his cell; and that the Appellant refused to give a breath sample. [58] My conclusion with respect to this issue is that the evidence was capable of supporting the conviction of the Appellantcontrary to s. 235(1)(

a) of the Criminal Code. Issue #3: Did the trial judge err in his finding that the evidence presented was capable of establishing that

the conduct of the Appellant had amounted to a refusal to provide a breath sample? [59] The Appellant argued that the trial judge could not have reasonably found that the Appellant had refused to provide a breathsample. [60] In R. v. Williams (1992), (ON CA), 11 O.R. (3d) 300, the Ontario Court of Appeal considered whether anaccused’s constitutional right to legal counsel could be considered a “reasonable excuse” for refusing to give a breath sample, therebyacquitting the accused who did not have the opportunity to talk to counsel upon arrest.

The Court held that a denial of the right to counselcould not constitute a reasonable excuse, but only gave rise to a potential Charter remedy. [61] If the trial judge had found that the Appellant had been denied his right to counsel, it was still open to the judge to find thatthe Appellant refused to provide a breath sample, contrary to section 254(5) of the Criminal Code.

There was evidence, which the trialjudge accepted, that the Appellant vocalized his refusal by saying “No, no, no” to the breath sample demand. [62] It was also open to the trial judge to find that the Appellant had received the opportunity to contact counsel prior to giving abreath sample.

There was evidence upon which the trial judge could conclude that the police officers had attempted to contact theAppellant’s counsel of choice, that messages were left with said counsel after he could not be reached, that the Appellant was offered oneor more opportunities to speak with alternative counsel, and that the Appellant was aware of all of this. [63] Furthermore, it was open to the trial judge to find that the Appellant’s refusal to provide a breath sample before speaking toMr.

Hale, while, at the same time, refusing to speak to another lawyer who could be reached, was part of a ploy by the Appellant topostpone giving a breath sample. The Appellant’s argument that these findings are inconsistent is not supported by either evidence orcommon sense. [64] Finally, with respect to the Appellant’s argument that Constable Seguin’s efforts were insufficient to conclude that theAppellant had refused to provide a breath sample, I find this case to be similar to that of R. v.

Hart (1982), 43 Nfld. & P.E.I.R. 149 (Nfld.C.A.), in which the accused refused to provide a second breath sample without the presence of a witness. The accused was told by thetechnician that if he did not blow, he would be charged with refusal. After six minutes, the technician shut down the breathalyzermachine, as it had become apparent to her that the accused was refusing to provide a sample. It was at this time only that the accusedstated that he would provide a sample. The sample was never taken and the accused was charged with refusal.

The accused wassuccessful at trial, but, on appeal from the Crown, the Court of Appeal allowed the appeal and entered in a guilty verdict. The courtstated: 5. The technician certainly could have waited longer before shutting down the machine because he was still well within the statutorytwo-hour period, but he was not required to do so and it appears to me from the evidence that he reasonably concluded that therespondent was refusing. The respondent did not comply with the request, and that amounts in law to the same thing.

Neither in my viewdoes the fact that the respondent apparently changed his mind once the machine was shut down alter this situation. 6. With respect, it seems to me that both the trial Judge and the learned District Court Judge have placed too narrow an

interpretation onthe meaning of “refusal”, and thus improperly defined it. There was without doubt at the least a constructive refusal. It follows that theappeal must succeed, no evidence having been adduced to establish a reasonable excuse for the respondent’s failure. Conclusion [65] The same analysis applies in the present case. While Constable Seguin might have waited longer before shutting down hermachine, there was no requirement for her to do so once the Appellant made it clear that he was not going to provide a sample.

It wasalso open to the trial judge to find that the Appellant gave an express refusal by uttering the words “no, no, no” in response to ConstableSeguin’s demand. Issue #4: Did the trial judge provide insufficient reasons? [66] The Supreme Court of Canada has considered the law on insufficiency of judicial reasons on a number of occasions. In R. v.Burns, (SCC), [1994] 1 S.C.R. 656 at para. 17, the Supreme Court stated: 17. Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis forallowing an appeal under s. 686(1)(a).

This accords with the general rule that a trial judge does not err merely because he or she does notgive reasons for deciding one way or the other on problematic points… The judge is not required to demonstrate that he or she knows thelaw and has considered all aspects of the evidence. Nor is the judge required to explain why he or she does not entertain a reasonabledoubt as to the accused’s guilt. Failure to do any of these things does not, in itself, permit a court of appeal to set aside the verdict. [67] In R. v.

Harper, the Supreme Court of Canada held that an appellate court may properly intercede where the record before it,“including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregardof such evidence.” ( (SCC), [1982] 1 S.C.R. 2 at para 5) [68] The Appellant submits that the trial judge’s reasons were deficient for a number of respects.

First, the Appellant argues thatthe trial judge did not consider the evidence of the Appellant that he was having difficulties entering his house on the night in question,not because he was intoxicated, but because it was dark and he rarely entered through the front door of his house at night. Furthermore,the Appellant submits that the trial judge never dealt with the evidence of the Appellant that his friend had spilt a drink on him, whichwould account for the smell of alcohol which other witnesses detected.

The Appellant submits that it was incumbent upon the judge to atleast review that evidence and explain why he wasn’t accepting it. [69] In support of his argument, the Appellant referred me to R. v. Noakes, 2011 ONSC 5270, [2011] O.J. No. 4180, in which the

Appellant successfully appealed his conviction of sexual assault on the basis of insufficient reasons by the trial judge. After reiteratingthe law in this area, as laid out in R. v. Harper, and reproduced above, Maranger J. stated: 6 The testimony of [the Appellant] was never addressed in any detail form in the reasons provided by the learned trial judge. Theevidence was contrary to what the complainant says took place. It was key evidence. 7 It seems to me that the court would have had to reject his testimony out right, or at least provide reasons why it did not raise areasonable doubt.

This analysis of [the Appellant’s] testimony was a prerequisite for a finding that the factual basis to support aconviction for a sexual assault ever took place. Failing to do so constitutes an error in law, and justifies remitting the matter for new trial. [70] This case is distinguishable from that of R. v. Noakes. Here, the trial judge expressly rejected the Appellant’s testimony whereit conflicted with that of other witnesses and did provide reasons. He found the Appellant to be an unreliable witness.

Having done so,the trial judge was not required to examine every piece of evidence of the accused in order to address why he was rejecting it. [71] The Appellant also argues that the trial judge failed to properly reconcile the inconsistencies of the Crown witnesses in amanner that allows for meaningful appellate review and notes minor inconsistencies. [72] For example, while Constable Casimir stated that he called the ambulance to the Appellant’s house both because of a fear ofheart-related health issues and because it was routine to do so after the take-down of a suspect, Constable Dobler disagreed. [73] The trial judge dealt with inconsistencies in the evidence, which he found to be peripheral and not material to his findings onthe issue of guilt.

At the beginning of his reasons, he stated: As counsel pointed out in some areas there are some discrepancies and that is not an unusual thing to happen in court proceedings.Witnesses describing a particular incident will provide different versions and we all know that human frailty is to blame for that… What matters is the big picture is what it is that we can conclude has happened when we can take into consideration the totality of thatevidence and that’s what I have to do here. (Page 1, line 11 to page 2, line 2.) Conclusion [74] Simply put, the trial judge stated that he preferred the evidence of other witnesses where such evidence conflicted with that ofthe Appellant, as he was entitled to do.

Issue #5: Did the trial judge’s actions during the trial and/or reasons for his decision lead to a reasonableapprehension of bias and jeopardize the accused’s right to a fair trial? [75] The Appellant argues that the trial judge’s conduct during the trial, as well as his reasons for his decision, provide a basisupon which a reasonable person would conclude that the Appellant did not receive a fair trial.

With respect to the trial itself, the trialjudge disagreed that the evidence of the Appellant should continue by way of an interpreter, despite the difficulties that the Appellanthad in expressing himself at times. [76] With respect to the trial judge’s reasons, the Appellant submits that the trial judge spoke disrespectfully of the Appellant,calling him such things as an “idiot” and “morally dishonest”, and spoke both dismissively and sarcastically about his evidence.

TheAppellant submits that the trial judge ought to have interpreted the Appellant’s evidence in light of the fact that the Appellant was havingdifficulties expressing himself in English. Furthermore, the trial judge improperly referred to cultural background in assessing theAppellant’s evidence. [77] The test for a reasonable apprehension of bias was laid out by the Supreme Court of Canada in Committee for Justice andLiberty v.

Canada (National Energy Board), (SCC), [1978] 1 S.C.R. 369 at pp. 394-95: …the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the questionand obtaining thereon the required information… [T]hat test is “what would an informed person, viewing the matter realistically andpractically – and having thought the matter through – conclude.

Would he think that it is more likely than not that [the decision-maker],whether consciously or unconsciously, would not decide fairly.” [78] More recently, this test was reiterated by the Supreme Court of Canada in Wewaykum Indian Band v. Canada, 2003 SCC 45at para. 60, [2003] 2 S.C.R. 259. [79] On the matter of judicial impartiality, the Supreme Court of Canada has made the following observations. First, there is astrong presumption of impartiality.

Second, it is to be expected, and is legally acceptable, that a judge will use the insights gainedthrough personal experience assessing the evidence presented before them. According to the Supreme Court, “[t]he reasonable persondoes not expect that judges will function as neutral ciphers; however, the reasonable person does demand that judges achieve impartialityin their judging:” R. v. R.D.S., (SCC), [1997] 3 S.C.R. 484 at para. 38. [80] The onus of demonstrating bias is on the person alleging such bias. The party alleging bias must prove a real likelihood orprobability of bias, and not mere suspicion: R. v.

R.D.S. at para. 112. [81] The trial judge did not prevent the Appellant from giving evidence through an interpreter. He did suggest that the Appellantnot give all evidence through an interpreter, but it remained open to the Appellant to make use of the interpreter whenever needed, as theAppellant did numerous times throughout his testimony. Furthermore, directly following the trial judge’s remark that he disagreed thatthe Appellant needed to proceed through an interpreter, the Appellant’s counsel reiterated that said interpreter was available if needed.

The trial judge did not make any further interjections on this point. [82] Contrary to the Appellant’s submissions that the trial judge called the Appellant “an idiot” and “morally dishonest,” neitherlabel was actually used. Rather, the trial judge found that the Appellant was intellectually dishonest, and that he was unreliable as awitness. I find that this is not a demonstration of bias, but, rather, a finding which was based on appropriate reasons.

Furthermore, thetrial judge’s use of the word “idiot,” although regrettable, conveys the trial judge’s disbelief that the Appellant was ignorant of theeffects of mixing alcohol and prescription medication. [83] Finally, my review of the transcript indicated that the trial judge did not state that he would take into account the Appellant’s,or any other witness’ cultural background in assessing the evidence given.

He merely gave “cultural background,” along with a numberof other possible factors, as an example of what may cause inconsistencies between witnesses’ testimonies, even where all witnesseswere testifying truthfully. Conclusion [84] The Appellant has not met the burden of proof of demonstrating bias. Issue #6: Did the trial judge err by misapprehending the evidence in a way that resulted in a miscarriage ofjustice? [85] The Ontario Court of Appeal stated in R. v. Morrissey (ON CA), (1995), 22 O.R. (3d) 514 (Ont.

C.A.), atpara. 83, that a miscarriage of the evidence may refer to the failure to consider evidence relevant to a material issue, a mistake as to thesubstance of the evidence, or a failure to give proper effect to the evidence. [86] At the heart of this issue is the assessment of whether any misapprehension of the evidence renders a trial unfair. If so, aconviction must be quashed: R. v.

Morrissey at paras. 92 and 93. [87] A misapprehension of the evidence may refer to a failure to consider evidence relevant to material issues, a mistake as to thesubstance of the evidence, or a failure to give proper effect to evidence: R. v. Morrissey at para. 83. [88] It is important to distinguish between a misapprehension of the evidence and a reasonable

interpretation of the evidence whichdiffers from the

interpretation which another person may have taken. Only the former may lead to a successful appeal. [89] A misapprehension of the evidence is not to be confused with what are simply different

interpretations of the evidence thanthose adopted by a trial judge: R. v. Lee, 2010 SCC 52, [2010] 3 S.C.R. 99. [90] The Appellant argued that the trial judge misapprehended the evidence before him in such a fashion as to result in amiscarriage of justice. The Appellant points to numerous parts in the trial judge’s reasons where he alleges the trial judge misstated theevidence. [91] I agree with the Appellant that the trial judge misapprehended some of the evidence: Mr. Yanar never testified to havingsmelled alcohol and Constable Casimir did not tap the Appellant on the shoulder, but rather grabbed his arm.

However, these errors arenot significant. [92] Therefore, I find that any misapprehension of evidence did not result in a miscarriage of justice.

CONCLUSION [93] The appellant has not satisfied the onus placed upon him to demonstrate that there has been an error of law, that the verdict ofthe trial judge is unreasonable, cannot be supported by the evidence or in principle, or that there has been a manifest error in theappreciation of the evidence resulting in a miscarriage of justice. [94] My review of all of the evidence indicates that there was ample evidence at trial that is reasonably capable of supporting thetrial judge's conclusions and that the verdict is one that a properly instructed jury, acting judicially, could have rendered: R. v.

Yebes, (SCC), [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Beaudry, 2007 SCC 5, [2007] 1S.C.R. 190. [95] The appeal is dismissed. Smith J. Released: December 18, 2013

CITATION : R. v. Bobal, 2013 ONSC 7816 COURT FILE NO.: 08-12807 DATE: 20131218 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Respondent – and – PRAHLAD BOBAL Appellant DECISION ON

SUMMARY CONVICTION APPEAL Smith J. Released: December 18, 2013