Docket: CACR1967 George Thurston Daniel Thomas Appellant - v. –, 2012 SKCA 30

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 30 Date: 20120312 Between: Docket: CACR1967 George Thurston Daniel Thomas Appellant - and – Her Majesty the Queen Respondent Coram: Vancise, Richards & Caldwell JJ.A. Counsel: Ronald Piché, for the Appellant Anthony Gerein, for the Crown

Appeal: From: Provincial Court of Saskatchewan Heard: November 21, 2011 Disposition: Allowed Written Reasons: March 12, 2012 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Richards Caldwell J.A. [ 1 ] I would allow George Thurston Daniel Thomas’s appeal from his conviction on the charge of operating a motor vehicle while his ability to do so was impaired by alcohol, contrary to s. 253(1) (

a) of the Criminal Code . [ 2 ] The evidence before the trial judge consisted of the testimony of two RCMP constables and three lay witnesses, as well as a video and audio surveillance record of Mr. Thomas while he was detained at the RCMP detachment. On the whole of it, the direct evidence of impaired driving was sparse. [ 3 ] Mr. Thomas arrived at the bar in Simpson, Saskatchewan, at approximately 9:15 p.m. He went there to drink with two friends: Daniel Veld and Nicole Mooney. While there, Mr. Thomas consumed alcohol and so did Mr. Veld, but Ms Mooney, who was pregnant, did not. Mr.

Veld and Ms Mooney each testified that Mr. Thomas consumed a large amount of alcohol. Mr. Veld said Mr. Thomas consumed 10 to 12 beers and 10 to 15 shots of alcohol. Ms Mooney did not keep track of Mr. Thomas’s beers, but said he had consumed 10 to 11 shots of alcohol. Each also said Mr. Thomas had a couple of beers before going to the Simpson bar. [ 4 ] About two hours after arriving at the Simpson bar, the three friends decided to go to the Manitou Beach Bar, which is near Watrous, Saskatchewan. Mr. Thomas insisted on driving his own vehicle. Mr. Veld and Ms Mooney both testified that Mr.

Thomas showed few signs of intoxication even though, on their evidence, he had consumed 20 to 27 drinks in the span of a few hours. They were both of the opinion he was drunk. As to the indicia of this, Mr. Veld said he and Mr. Thomas “each had quite a bit to drink”, but that Mr. Thomas is “pretty good at concealing it”. Ms Mooney said she knew Mr. Thomas was “drunk” as she had been “around him all night” and he had been “loud” and he had consumed the same amount as Mr. Veld, who was intoxicated. Neither witness described any other specific indicia of intoxication. [ 5 ] Mr.

Veld and Ms Mooney both said they urged Mr. Thomas to ride with them, but he declined. They argued with him and even threatened to call the police if he persisted with his intention to drive. This culminated with Mr. Veld engaging in a physical struggle with Mr. Thomas after Mr. Thomas, while attempting to back up his vehicle, had “bumped” Mr. Veld with a side-view mirror. The scuffle failed to dissuade Mr. Thomas from driving. And, when Mr. Thomas eventually drove off, Mr. Veld and Ms Mooney called the RCMP. [ 6 ] Mark MacIntosh, who was also at the Simpson bar but had not been drinking, had seen Mr.

Thomas in the bar and had witnessed parts of the scuffle between Mr. Veld and Mr. Thomas. He knew Mr. Thomas and concluded Mr. Thomas was “fairly under the influence, intoxicated, or had been drinking quite a bit” because he had acted “a little ignorant” or “a little aggressive” with Mr. MacIntosh’s friends, but Mr. MacIntosh could not describe any other basis for his conclusion. [ 7 ] The RCMP received Mr. Veld’s call at 11:33 p.m. and approximately 20 minutes later RCMP Constables Hill and Lamontagne stopped Mr. Thomas about five kilometres from Watrous. The constables testified Mr.

Thomas exhibited no signs of impaired driving, but they each noticed an odour of alcohol on his breath and that his eyes were glossy. When questioned at the roadside about his consumption of alcohol, Mr. Thomas first denied drinking but then said he had consumed two beers and, later, four beers. On cross- examination, each constable confirmed the absence of any signs of impairment. However, since he had received Mr. Veld’s complaint and suspected Mr. Thomas had consumed alcohol, Constable Lamontagne tested Mr. Thomas’s breath on a roadside approved screening device (ASD). When Mr.

Thomas failed the ASD test, Constable Lamontagne made a breath-demand under s. 254(3) of the Criminal

Code and took Mr. Thomas to the Watrous RCMP detachment to provide a breath sample. [8] Under cross-examination, Constable Lamontagne agreed that without the fail result on the ASD he would not have had sufficientgrounds to make the breath-demand. In other words, based on his personal observations, Constable Lamontagne did not think he hadreasonable and probable grounds to believe Mr. Thomas was impaired or over the proscribed limit. [9] At the detachment, Mr. Thomas refused to blow and was later released on an appearance notice. Mr.

Thomas spent an hour and ahalf at the detachment in an interview room where he was under almost continuous video and audio surveillance. The surveillance recordshows a man sitting patiently in a chair in a small room, responding to texts and attempting to call someone on his cell phone. He appearscalm and he sounds lucid when he responds, appropriately, to questions put to him by the police. When requested to blow on thebreathalyzer device, he refuses to do so because, he says, he has not consulted with his counsel of choice.

He acknowledges to the policethat his refusal to blow will result in a criminal charge but says he understands the consequences and accepts them. He appears steadywhen on his feet and otherwise in control of his motor functions. He does not volunteer any information to the police and adeptly divertsa few probing questions from Constable Hill. He assists the police in the completion of the paperwork necessary for his release, withoutapparent difficulty or confusion. [10] The foregoing was the sum of the evidence before the trial judge. However, a month before issuing his oral reasons for findingMr.

Thomas guilty of impaired driving, the trial judge had ruled the breath demand invalid and concluded that a refusal charge must fail.He further excluded the evidence of Mr. Thomas’s refusal to blow (which had been adduced through the constables’ testimony and thesurveillance record) as the circumstances had given rise to a Charter violation, which violation is not material to the appeal at hand. Boththe Crown and Mr. Thomas argued this appeal on the basis that the surveillance record was admissible in relation to the charge ofimpaired driving. [11] When he later delivered his oral reasons for finding Mr.

Thomas guilty of impaired driving the trial judge began by accepting thetestimony of the two constables to the effect that they had not noticed “any particular symptoms of impairment” and “there was nothingin the manner of driving by the accused…that would indicate impaired driving”. He next turned to and accepted the three lay witnesses’opinions that Mr. Thomas was drunk when he left the bar in Simpson.

The trial judge then said: The only other evidence that’s of some importance here is from -- is the accused’s good buddy, Daniel Velle [sic, Veld], and he testifiedabout the disagreement that -- and scuffle that he had with Mr. Thomas outside of the bar. He said that Mr. Thomas is good at concealinghis drunkenness, but there was no doubt in his mind that Mr. Thomas was intoxicated that night. And he said, furthermore, that theaccused, when he got in the car -- or in the trunk [sic, truck], and started it up and then backed it up, bumped the vehicle into him, and itwas the mirror that struck Mr. Velle [sic, Veld].

And apparently the mirror was broken and the two had a fight thereafter. On this evidence, I’m satisfied beyond a reasonable doubt that the accused is guilty as charged of impaired driving. The independentevidence, particularly, of Ms. Mooney and Mark McIntosh satisfy me, in particular, that the accused was impaired in his ability to drive amotor vehicle. And I also accept the evidence of Mr. Velle, particularly on points as to the amount that was consumed that night and thecondition of himself and his friend, Mr. Thomas.

In the circumstances, the accused is found guilty as charged on the impaired driving. … [12] Mr. Thomas particularized his appeal from this decision by alleging three errors on the part of the trial judge: (

i) that he hadimproperly relied on lay opinion as to drunkenness; (ii) that he failed to consider the whole of the evidence; and (iii) that he failed tocomply with the requirements of R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. [13] As to the first alleged error, I find no basis upon which to conclude the trial judge erred by relying on lay witness opinionevidence as to impairment of Mr. Thomas’s ability to drive.

A conviction for impaired driving will rest where there is sufficient evidenceto conclude beyond a reasonable doubt that an accused has driven while his or her ability to operate a motor vehicle was impaired byalcohol or a drug.

To meet its burden of proof, the Crown may lead evidence of alcohol consumption and aberrant driving; but, given thenature of an impaired ability to drive, the standard may be met in the absence of evidence of aberrant driving through sufficient evidenceof, among other things, a deterioration of the accused’s judgment or attention, a loss of motor co-ordination or control, increased reactiontimes, or diminished sensory perceptions, brought on by the voluntary consumption of alcohol or a drug. See R. v. Polturak (1988), 1988ABCA 306 , 90 A.R. 158, 61 Alta. L.R. (2d) 306 (C.A.), at para. 3, and Beals v.

R. (1956), (NS SC), 25 C.R.85, 117 C.C.C. 22 (N.S.C.A.): see also R. v. E. (A.L.), 2009 SKCA 65; 359 Sask. R. 59. [14] In this case the trial judge had little direct evidence concerning the impairment of Mr. Thomas’s ability to operate a motorvehicle. While the trial judge referred to the “bump” with the side-view mirror, I agree that he more particularly relied on the accounts ofMr. Thomas’s behaviour at the Simpson bar given by the lay witnesses and their assessment of Mr. Thomas’s condition and ability tooperate a motor vehicle at the time Mr.

Thomas drove off; however, there is no question he was entitled to do so (see: R. v. Graat, (SCC), [1982] 2 S.C.R. 819, at pp. 834-39).

[15] There is also no question the lay opinion evidence as to Mr. Thomas’s intoxication rationally supports a finding that Mr.Thomas’s ability to operate a motor vehicle was impaired. The question for the trial judge was what weight to attach to the lay opinionsof impairment, and he clearly gave significant weight to the lay opinion evidence, particularly that of Ms Mooney and Mr. MacIntosh.From the trial judge’s reasons it is clear he found the lay opinion evidence sufficiently compelling to justify his verdict of guilt. And, inthis respect, his decision is reasonable and supported by the evidence.

However, as noted, the lay witness evidence was not the sum ofthe evidence before the trial judge on the issue of impairment; and, there lies the error of law upon which I would allow this appeal. [16] As is readily apparent from the record, the trial judge failed to take the surveillance evidence into account in his reasoningprocess leading to Mr. Thomas’s conviction on the charge of impaired driving. While the surveillance record merely proved Mr. Thomashad exhibited no signs of impairment, it necessarily opened the door to the inference he was not, in fact, impaired.

Given this quality, thesurveillance evidence went to the central question before the trial judge and should have played an essential

part in his reasoning process.In my opinion, if the trial judge had taken the surveillance evidence into account, it could have affected his verdict. By overlooking thesurveillance evidence, the trial judge therefore committed an error of law which invites appellate intervention (See: R. v. Lohrer, 2004SCC 80, [2004] 3 S.C.R. 732; R. v. Harper, (SCC), [1982] 1 S.C.R. 2; and R. v. Ahenakew, 2008 SKCA 4, [2008] 2W.W.R. 68). [17] Accordingly, I find the trial judge’s reasons disclose a substantive error of law in the form of a failure to consider relevantevidence.

Given this finding, I need not address the remaining issue with respect to the trial judge’s alleged failure to comply with therequirements of R. v. Sheppard. [18] In these circumstances, I would allow the appeal, quash the conviction and order a new trial. DATED at the City of Regina, in the Province of Saskatchewan, this 12th day of March, A.D. 2012. ___“Caldwell J.A.”____________________ Caldwell J.A. I concur. ___“Caldwell J.A.”__________________ for Vancise J.A. I concur. ____“Richards J.A.”____________________ Richards J.A.