HER MAJESTY THE QUEEN ) ))) Respondent – v. –, 2017 ONSC 5728

CITATION: R. v. Mills, 2017 ONSC 5728 COURT FILE NO.: 15-0316 DATE: September 26, 2017 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN ) ))) Respondent – and – DAVID MILLS Appellant ) ) ) ) ) ) ) ) )) ) Andrew Macdonald, for the Respondent James Foord, for the Appellant REASONS FOR DECISION Appeal of the conviction of The Honourable Mr. Justice Peter Wright of the Ontario Court of Justice, dated June 28, 2016 ABRAMS, J Introduction [1] The Appellant, David Mills (the “Appellant”), was convicted of driving a motor vehicle with a blood alcohol content over.08 contrary to s. 253(1)(

b) of the Criminal Code. [2] The Appellant appeals the conviction on the following grounds:

(1) The trial judge materially misapprehended the evidence of the accused and of the arresting officer, relying on suchmisapprehensions to form his credibility assessments;

(2) While the trial judge assessed the credibility of the arresting officer, he failed to critically assess the reliability of theofficer’s evidence; and

(3) In all of the circumstances, the trial judge shifted the burden of proof to the Appellant. Standard of Review [3] The standard of review requires that an appellant court should not interfere merely because it would have reached a differentresult and should only interfere if the trial judge made a finding that is unsupported by the evidence or that is unreasonable and wouldhave affected the result: Housen v.

Kikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235. [4] The application of a legal standard to the facts of a case is a question of law and subject to review for correctness: R. v.Shepherd [2009] S.C.C. 35, para 20. [5] The weighing and examination of the evidence is only for the purpose of determining if it is reasonably capable ofsupporting the trial judge’s conclusions: R. v. Burns, (SCC), [1994] S.C.J. No. 30 (SCC).

[ 6 ] The standard of review on a

summary conviction appeal requires that deference be given for findings of credibility and findings of fact: R. v. Gagnon [2006] S.C.C. 17, paras 10 and 19 (SCC). Reasons for Judgment [ 7 ] The trial judge identified two issues:

(1) Whether the first sample was taken within two hours of the time of the driving to allow the Crown the benefit from the presumption of identity; and

(2) Whether the ASD demand was made forthwith. [ 8 ] The trial judge admitted that if he accepted the version of events as described by the Appellant and independent witness, the Appellant would have been not guilty. Moreover, the trial judge conceded that the evidence of the Appellant and the independent witness would have put the first sample outside of the two hour window, in describing the evidence thus: Dealing with “forthwith”, there are two accounts, that of the arresting officer, which would have the demand coming forthwith, and that of the accused which would not.

Again, I found the officer to be straightforward and unshaken in his version. Mr. Mills, on the other hand, by his own account was suffering from the flu. He had been stressed. He had been drinking. He was non-responsive in cross examination. (emphasis added) [ 9 ] Accordingly, having found, inter alia , that the Appellant was “non-responsive in cross examination”, the trial judge accepted the officer’s evidence on the issue of “forthwith” and rejected that of the accused as not being able to raise a reasonable doubt. The trial judge therefore found that the Crown had proven its case.

Evidence [ 10 ] The following excerpts highlight, in my view, the relevant exchanges between the Crown and Appellant on the issue of his perceived non-responsivness: Q. I’m going to suggest to you, sir, that what you’ve done here is you’ve created your version of events and you’ve memorized it to present in court here today; agree or disagree? A. Is that a question? Q. Yes, it is. A. Disagree. Q. And that’s because you memorised it off your notes here? A. That’s your opinion, sir. Q. Because in examination in-chief, sir, you said you weren’t sure about that? A. Pardon me? Q.

When you were answering questions to your lawyer and you said, (indecipherable) don’t think he advised me of rights, not sure if he said arrest? A. Apparently you didn’t hear it correctly. Q. Tell me, then? A. What I advised was I wasn’t sure what I was under arrest for, but I definitely was under arrest. Q. So you recall the officer saying, you, specifically you were under arrest? A. Correct. Q. ’Cause in examination in-chief, sir, you weren’t sure about the words that were used? A. Following the “you’re under arrest”, absolutely. Q. Right, so two mishaps fairly close together?

A. Your opinion; I would not call the second a mishap. Q. Now, Ms. Fowler – so if I understand it correctly, your evidence is there’s the accident, you pull into the parking lot, the officer comes over. You agree with Ms. Fowler that the officer kind of spoke to all of you in one area at first? A. I approached the officer. Q. So I guess you disagree with that, like.... A. No, I agree with that. Q. Just your evidence is that he tells you to go over to his cruiser first, the officer does? A. Can I repeat myself? Q. Yeah, please? A. Okay, so there was a brief interaction. I approached the officer.

We then briefly interacted where he briefly interrogated me, asked me if I’d had a few drinks, and then he went over to Mrs. Fowler and spoke with her for approximately five minutes while I stood beside the cruiser, and I believe that aligns to exactly what Mrs. Fowler said. Q. But that’s another detail your perfect memory doesn’t remember; correct? A. So you just defined it as a perfect memory. I will remind you that I did not. Q. And you’d also agree with me that, earlier on when you testified, you agreed that the officer did make a demand, you just can’t remember the exact wording of it? A. Correct. Q.

So your notes are not entirely accurate, are they? A. That’s correct. Q. There are mistakes in them? A. I did not say that. Q. So certainly the time of the accident is a guess on your part? A. Not at all. Q. Not at all? A. Not at all. Q. Okay, I appreciate that, sir. That’s how you timed you bought the drink. A. Right, so it’s an estimation of the time, but it’s not a guess. It’s accurate information based on a fact of having a receipt right before I left. Q. Are you prepared to agree, sir, that your time estimate of 9:10 to 9:15 is probably – could well be inaccurate? A. I can say it’s not precise. Q.

That after you advised him that you’d had a few drinks, as well as where you had come from and all of that, he made a demand from you right there and then to provide a sample of your breath? A. Completely disagree.

Q. And that that’s what you misinterpreted, sir, as being under arrest? A. Completely disagree. Q. And I’m going to suggest to you, sir, that that’s what the officer did the first time you thought you were under arrest? A. Completely disagree. Q. Right, and then you went over to the cruiser, like the officer said, he provided you with the Intoxilyzer – sorry, the roadside device, and you provided a sample and failed? A. Completely disagree. Q. And then after that is when the officer actually arrested you? A.

Completely disagree. [1] Positions of the Parties [ 11 ] The Appellant contends that the trial judge significantly misapprehended and thus rejected his evidence by finding that “he was non-responsive in cross-examination.” [ 12 ] The Respondent concedes that the trial judge could have said more to explain what he meant by the Appellant being “non- responsive”. Thus, the Respondent contends that this court must simply accept what the trial judge concluded regarding the Appellant’s non-responsiveness, in the absence of any explanation as to why the trial judge made that finding.

Analysis and Conclusions [ 13 ] The test to be applied to determine whether a trial judge has materially misapprehended the evidence is well known: Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential

part in the reasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a true verdict. Convictions resting on a misapprehension of the evidence adduced at trial sit on no firmer foundation that those based on information derived from sources extraneous to the trial. If the appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice.

This is so even if the evidence actually adduced at trial, was capable of supporting a conviction : R. v. Morrissey (1995), 97 C.C.C. (3d) at p. 221 (O.C.A.) at para. 83. (emphasis added) [ 14 ] Respectfully, the Appellant was feisty, animated, argumentative, and perhaps even verging on strident in his exchanges with Crown counsel, but he was not “non-responsive in cross examination”, as the record bears out. Rather, the Appellant disagreed and “completely” disagreed with several suggestions put to him by Crown counsel.

Moreover, he modified, clarified and corrected information put to him throughout the cross-examination. Importantly, the characterization of the Appellant being “non-responsive” and thus not credible, as the basis for the trial judge rejecting his evidence, dealt with the timing and order of events, which was clearly an essential

part in the reasoning process: Morrissey, at para. 83. [ 15 ] In my view, the trial judge erred by misapprehending and rejecting the Appellant’s evidence because he was “non-responsive in cross-examination” without providing a single example of what he meant by “non-responsive”. Further, this misapprehension played an essential

part in the reasoning process resulting in the conviction because it pertained to the timing and ordering of events, issues which the trial judge conceded were dispositive to the conviction. [ 16 ] The Appellant having demonstrated that the conviction depends on a misapprehension of the evidence, it follows that the appellant did not receive a fair trial resulting in a miscarriage of justice: Morrissey , at para. 83. [ 17 ] In light of my finding on this discrete issue, I see no reason to consider the remaining grounds raised by the Appellant. [ 18 ] The appeal is allowed. A new trial is ordered before a different judge of the Ontario Court of Justice.

_______________________________________ The Honourable Mr. Justice B. W. Abrams Released: September 26, 2017 CITATION : R. v. Mills , 2017 ONSC 5728 COURT FILE NO.: 970/16 DATE: September 26, 2017 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – DAVID MILLS Appellant REASONS FOR DECISION Abrams, J.

Released: September 26, 2017