R v McKenzie, 2021 SKCA 150

Court of Appeal for Saskatchewan Docket: CACR3390 Citation: R v McKenzie , 2021 SKCA 150 Date: 2021-11-24 Between: Her Majesty the Queen Appellant (Respondent/Respondent) And Edward Evan McKenzie Respondent (Appellant/Applicant) Before: Ottenbreit, Ryan-Froslie and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Mr.

Justice Kalmakoff On appeal from: 2020 SKQB 206 , Prince Albert Appeal heard: April 6, 2021 Counsel: Dean Sinclair, Q.C. for the Appellant Ronald Piché for the Respondent Ottenbreit J.A. I. INTRODUCTION [ 1 ] The Crown appeals the decision of a Court of Queen’s Bench judge sitting as a

summary conviction appeal judge ( R v McKenzie , 2020 SKQB 206 [ Appeal Decision ] ) allowing an appeal against the April 26, 2018, conviction of Edward Evan McKenzie in the Provincial Court of Saskatchewan for impaired care and control of a motor vehicle. [ 2 ] For the reasons hereinafter set forth, I would allow the appeal. II. FACTS AND BACKGROUND [ 3 ] The germane events took place in Prince Albert, Saskatchewan on February 17, 2017. At around 3:00 a.m., Michael Hamilton, a passerby, observed a truck parked on an angle in a snowbank on 28th Street. Its lights were on and the driver’s door was open.

He observed items strewn in the street near the vehicle. When he approached the truck, he heard that the engine was running and the radio was on. He observed Mr. McKenzie slouched behind the steering wheel and was concerned that he was unconscious or dead. Except for a grunt, Mr. McKenzie was unresponsive when Mr. Hamilton attempted to rouse him. Mr. Hamilton then called the police. Mr. McKenzie did not move before the police arrived. [ 4 ] When the police arrived, Mr. McKenzie began to exit his vehicle, but re-entered and shut the driver’s door when the officer began to approach.

After tapping on the window of the truck and receiving no response from Mr. McKenzie, the officer opened the door himself. The officer thereafter immediately noticed a strong odour of alcohol. [ 5 ] The officer asked Mr. McKenzie to step out of the vehicle and to produce his driver’s licence and vehicle registration. Mr. McKenzie began to search his pockets for documents and, when he could not find them, he got back into the truck. The officer observed Mr. McKenzie looking in the console area for the documents. It was at this time that Mr. McKenzie also shut off the engine of the vehicle.

He dropped his keys on the floor behind the passenger’s seat when he was again looking for the documents in the console. Mr. McKenzie then found his licence and got out of the truck and handed the licence to the officer. [ 6 ] After Mr. McKenzie exited the vehicle, the officer smelled a strong odour of alcohol on his breath and noted that his eyes appeared to be “droopy, watery and glassy”. The officer described Mr. McKenzie as swaying while he walked, demonstrating unsure footing and as showing a wide stance in his gait. [ 7 ] The officer testified that Mr.

McKenzie’s speech was not slurred and that he appeared to understand his Charter rights when they were read to him. [ 8 ] Based on the signs of impairment that the officer observed, he arrested Mr. McKenzie and charged him with impaired care and control of a motor vehicle contrary to ss. 253(1) (

a) and 255(1) of the Criminal Code . III. THE TRIAL DECISION [ 9 ] At his trial, Mr. McKenzie did not call evidence in his defence.

[10] The trial judge rendered an oral decision on this matter. He reviewed the governing legal principles, noting that he was requiredto look at the totality of evidence before him. He also acknowledged that in evaluating the evidence, he had to be satisfied that thecircumstantial evidence was “inconsistent with any other rational explanation for the indices” of impairment that he accepted as fact. [11] The trial judge then proceeded to evaluate the evidence before him, considering both the indicators of impairment that wereestablished and those that were absent.

The trial judge characterized the evidence that Mr. McKenzie was found in a truck parked on asnowbank on a steep angle with the door open and “garbage” strewn on the ground next to it, as well as the evidence that Mr. Hamiltoncould not wake Mr. McKenzie, as being “difficult to explain”. [12] After considering all the signs of impairment, the trial judge was satisfied beyond a reasonable doubt that Mr.

McKenzie wasimpaired and that his ability to operate a motor vehicle was impaired at a time when he had care and control of a motor vehicle. [13] The trial judge said: … The officer candidly admitted that you didn’t slur your speech, that you didn’t fumble when you looked for documents. The indicationsof some of your motor skills, wasn’t indications of staggering, of that -- of that kind of thing. Even though there was a reference toslipping, I note that it was -- even I can see from the photograph it was icy.

But what I did see is a number of common indices of -- ofimpairment on evidence that I accept: glassy and watery eyes, a poor walk to the cruiser in the sense of a wide or unusual gait, and onepossible slip, although it was slippery. Those are -- those are all signs or involuntary signs -- a presence of involuntary -- effect of -- ofalcohol on involuntary actions. … … I’m satisfied that there was presence of alcohol in the body, and that is inferred from both the glassy and watery eyes and the evidenceof [the officer] that he initially smelled alcohol coming from you, strong indications of alcohol.

He even made an effort to separate youfrom the vehicle, a concern that he didn’t know whether the -- the smell of alcohol was coming from you or the vehicle. He put you inyour [sic] cruiser, and immediately having done so, again confirmed the strong presence of alcohol coming from your -- from your body.… … … The officer indicated you dropped your keys behind the console or behind the back seat. Again, there’s lots of explanations from that,but it’s just very unusual. And all of it is consistent with impairment -- impairment by alcohol.

In fact, it’s entirely compellingly consistent.And it is not consistent with a sober person just having woken up from a sleep and being temporarily disoriented while they’ve woken upfrom a sleep. I’m satisfied beyond a reasonable doubt that you were impaired by alcohol on that date, and that the idea that you were potentially -- that --that sleeping or being sleepy was the cause of this impairment for me is -- is not credible. It isn’t sufficient to overcome the overwhelmingevidence that I -- I accept. And this -- and all the evidence occurred in a relatively short period of time.

And it may have been imperfectobservations, and they may -- individually, pieces of evidence may be explainable, but when I look at the totality of the evidence thathappened in that nine-minute period, I’m satisfied beyond a reasonable doubt, sir, that you were impaired and your ability to operate amotor vehicle was impaired and at a time when you had care and control of a motor vehicle. … [14] The trial judge also specifically acknowledged that had he examined the various indicators of impairment in a piecemealfashion rather than in their totality, there may have been possible innocent explanations for each of them individually. [15] Based on his analysis, the trial judge convicted Mr.

McKenzie. IV. THE APPEAL DECISION [16] Mr. McKenzie appealed to the Court of Queen’s Bench. The

summary conviction appeal judge stated that the “central issue”on the appeal was whether the evidence of impairment was sufficient to support the verdict (at para 39). [17] The appeal judge first reviewed the evidence at trial and the decision of the trial judge, noting that the trial judge hadacknowledged that the case turned on circumstantial evidence. The appeal judge considered the governing standard of review with respectto allegedly unreasonable verdicts.

He noted that the courts are required to recognize the distinction between impairment generally andimpairment of one’s ability to operate a motor vehicle, citing R v Andrews, 1996 ABCA 23 at para 19, 104 CCC (3d) 392 [Andrews]. Heobserved that Andrews had been followed or favourably considered in many Saskatchewan cases at the trial level over the years, includingin R v Landes (1997), (SK KB), 161 Sask R 305 (QB) [Landes].

The appeal judge then reviewed a number of casesthat dealt with such a distinction in the context of circumstantial evidence, including Landes. [18] The appeal judge turned to the trial judge’s findings of fact, noting they were not questioned by either counsel. However, hefound at least three of the trial judge’s findings of fact or partial findings were, in his view, overstated or questionable. These were whetherMr. McKenzie’s truck was parked in front of his own house, whether it was parked in a snowbank and whether Mr. Hamilton had opinedthat Mr. McKenzie was drunk.

He did not determine that the trial judge had erred in a palpable and overriding way with respect to thesefindings. [19] The appeal judge also noted there was no evidence of specific testing done of Mr. McKenzie’s mental and motor faculties, andthat the trial judge’s findings of signs of impairment and his ultimate conclusion were informed only by the observations of Mr. Hamiltonand the police officer who attended to Mr. McKenzie. [20] The appeal judge then concluded:

[53] In identifying these findings, the trial judge did not bridge the crucial distinction, discussed in Andrews, between general signs ofimpairment and impairment of the appellant’s ability to drive. Put another way, the trial judge did not explain how the appellant’s signs ofimpairment informed the conclusion, to the exclusion of any other reasonable conclusion, that his ability to drive was impaired.

In myview, the failure to draw this connection in the evidence requires this Court to allow the appeal, at least to the extent that it justifies a newtrial. [54] In saying this, I acknowledge that the trial judge appeared to allocate the signs of impairment into one of two possible categories:1) the effect of alcohol on the appellant’s voluntary and involuntary actions; and 2) the effect of alcohol on the appellant’sdecision-making ability.

Although it is difficult to tell, the trial judge may have been attempting to consider these categories assynonymous with “physical motor skills” and “mental faculties” as referenced by Klebuc J. in Landes. Even so, I do not accept that theserough allocations were sufficient to draw the necessary connection between general impairment and impaired ability to drive. In my view,further analysis was required. [21] Having concluded that the trial judge did not adequately explain why he found Mr. McKenzie’s ability to operate a motorvehicle was impaired, the appeal judge went on to consider the appropriate remedy.

He determined there were other “plausibleexplanations” for the various signs of impairment (at para 56). Noting that he was not lapsing into speculation, he listed some innocentexplanations for, and limitations of, evidence of possible impairment.

That evidence included the presence of a strong odour of alcohol,unusual gait, glassy and watery eyes, the dropping of the car keys, the inept parking of the truck, dropping garbage on the ground andattempting to ignore a police officer. [22] He concluded: [59] In short, I do not find that it was reasonable for the trial judge to conclude that the evidence, considered as a whole, excluded allreasonable alternatives to the finding that the appellant’s ability to operate a motor vehicle was impaired. [23] The appeal judge set aside the conviction and entered a verdict of acquittal. V.

ISSUES [24] The issues in this appeal are as follows: (

a) Did the appeal judge misapprehend the trial judge’s reasons for judgment? (

b) Did the appeal judge err by finding that the trial judge’s reasons for judgment were inadequate? (

c) Did the appeal judge apply the wrong standard of review to the trial judge’s factual findings? (

d) Did the appeal judge apply the wrong standard of review to the question of whether the verdict was reasonable? [25] Because the third and fourth grounds are related, I will address them together. VI. ANALYSIS A. Did the appeal judge misapprehend the trial judge’s reasons for judgment? [26] The Crown submits that the appeal judge’s conclusion that the trial judge failed to bridge the crucial distinction, as discussed inAndrews, between general signs of impairment and impairment of Mr. McKenzie’s ability to drive, was a misapprehension of his reasons. [27] I turn first to the governing law.

A misinterpretation of the reasons of the trial judge is a failure to properly exercise appellatejurisdiction: R v Lange, 2016 SKCA 70 at para 13, [2016] 12 WWR 297, citing R v McCullagh, (ON CA), 53 CCC(3d) 130 at 135 (Ont CA). [28] The appeal judge was correct to state that the law requires the difference between general signs of impairment and impairmentof the ability to drive to be considered when assessing whether the offence of impaired care and control of a motor vehicle has beencommitted.

This requirement was noted in R v A.L.E., 2009 SKCA 65 at para 39, 256 CCC (3d) 476 [A.L.E.], quoting the followingpassage from Andrews: [18] … If the ability to operate a motor vehicle is impaired (even slightly) by alcohol or drugs, it is not necessary that the degree of thatimpairment be marked. [19] The courts must not fail to recognize the fine but crucial distinction between “slight impairment” generally, and “slight impairmentof one’s ability to operate a motor vehicle”. Every time a person has a drink, his or her ability to drive is not necessarily impaired.

It maywell be that one drink would impair one’s ability to do brain surgery, or one’s ability to thread a needle. The question is not whether theindividual’s functional ability is impaired to any degree. The question is whether the person’s ability to drive is impaired to any degree byalcohol or a drug.

In considering this question, judges must be careful not to assume that, where a person’s functional ability is affected insome respects by consumption of alcohol, his or her ability to drive is also automatically impaired. (Emphasis in original) [29] The foregoing excerpt makes clear that mere proof of functional impairment does not compel a finding that there was animpairment of the ability to drive.

[ 30 ] The Court in A.L.E. went on to say: [42] The following comments in Andrews [at para 30] addressed the onus on the Crown: ... The question is simply whether the totality of the accused’s conduct and condition can lead to a conclusion other than that his or her ability to drive is impaired to some degree. Obviously, if the totality of the evidence is ambiguous in that regard, the onus will not be met. … (Footnotes omitted) [ 31 ] Based on the foregoing law, the appeal judge, after reviewing the trial judge’s reasons, concluded that the trial judge had failed to specifically connect the evidence of Mr.

McKenzie’s functional impairment and the impairment of his ability to drive. I disagree. [ 32 ] After a review of the trial judge’s reasons, I am satisfied that he was fully aware of the distinction between functional impairment and impairment of the ability to operate a motor vehicle set out in A.L.E. The trial judge specifically instructed himself that because the case was founded on circumstantial evidence and there was no evidence of Mr. McKenzie’s driving, he “must look at other evidence to infer both the presence of alcohol and the affect [ sic ] of alcohol on Mr.

McKenzie’s ability to operate a motor vehicle ” (emphasis added) . [ 33 ] Bridging the distinction between functional impairment and impairment of the ability to drive does not require a line-by-line analysis referring to each indicium of impairment and to the impairment of the ability to drive. The parting comments in Andrews are helpful in this regard.

At paragraph 35, the Court stated that failure to address whether the ability to drive was impaired is an error of law, but noted that the trial judge did not need to verbalize the test specifically every time. [ 34 ] The test in Andrews is based on the totality of the evidence. The trial judge must be convinced, beyond a reasonable doubt, not only of the accused’s functional impairment but also that the accused’s ability to drive was impaired by alcohol. [ 35 ] After canvassing the evidence before him, the trial judge specifically concluded that Mr.

McKenzie was impaired and that his ability to operate a motor vehicle was impaired at a time when he had care and control of a motor vehicle. [ 36 ] The trial judge bookended his analysis of the evidence with references to the legal test that required him to consider whether Mr. McKenzie’s ability to drive was impaired by alcohol. His analysis of the evidence was clearly conducted and framed within the context of the appropriate legal test. [ 37 ] A proper reading of the trial judge’s reasons show that he did not proceed to his verdict on the basis of “any impairment”, as did the trial judge in Andrews .

The appeal judge’s conclusion that the trial judge failed to draw the distinction between general impairment and impairment of the ability to drive therefore misapprehends the trial judge’s reasons for judgment and is in error. I would allow the appeal on that basis alone. B.

Did the appeal judge err by finding that the trial judge’s reasons for judgment were inadequate? [ 38 ] This issue is grounded on the appeal judge’s statement that “the trial judge did not explain how the appellant’s signs of impairment informed the conclusion, to the exclusion of any other reasonable conclusion, that his ability to drive was impaired” (at para 53). [ 39 ] It is well established that, on its own, the failure to give adequate reasons does not amount to a freestanding ground of appeal: see, for example, R v Sheppard , 2002 SCC 26 at para 26 , [2002] 1 SCR 869, and Gebert v Wilson , 2015 SKCA 139 at para 21 , [2016] 5 WWR 656.

Rather, the court must apply a functional test in determining whether the lack of or inadequacy of reasons precludes appellate review: Scobie v Thiessen , 2021 SKCA 47 at para 33 , 54 RFL (8th) 256. [ 40 ] This functional approach involves examining the context in which the decision was rendered, the record itself and the purpose behind giving reasons: Scobie at para 33 .

As the Supreme Court of Canada noted in Sheppard , an appellate court “is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself” (at para 26). [ 41 ] The appeal judge found the trial judge did a poor job of expressing himself with respect to the distinction between functional impairment and impairment of the ability to drive. I disagree. [ 42 ] As a first point, the adequacy of the reasons of the trial judge on the distinction mentioned above was not in issue in the appeal.

Second, the reasons the trial judge provided in conjunction with the record did not, in fact, appear to preclude appellate review. The appeal judge made no reference to the ability, or inability, to perform his appellate function.

In fact, he was able to perform a meaningful review of the trial judge’s decision and was readily able to discern the rationale behind that decision. [ 43 ] The trial judge explained the evidence that he considered, his conclusions on the respective pieces of evidence, and applied the appropriate legal tests and criminal standard of proof to the evidence that he accepted. [ 44 ] While the appeal judge concluded that the trial judge ignored plausible explanations for the indicia of impairment on the record, such review was done in the context of whether the verdict itself was unreasonable, rather than in the context of examining the sufficiency of the trial judge’s reasons. [ 45 ] Insofar as the appeal judge’s comments about the trial judge’s failure to explain himself related to the distinction between the types of impairment mentioned above, I have already noted that Andrews does not require a “line and verse” correlation between the two types of impairment.

[46] To the extent the appeal judge allowed the appeal on the basis of inadequate reasons, he erred in doing so. C.

Did the appeal judge apply the wrong standard of review to the trialjudge’s factual findings and the question of whether the verdict was reasonable? [47] The Crown first submits that the appeal judge inappropriately – and in error – disturbed the trial judge’s factual findings, yetdid not find palpable and overriding error in doing so. [48] The Crown also argues that the appeal judge failed to properly apply the standard of review governing whether the verdict wasreasonable by focusing on individual indicia of impairment rather than the totality of the evidence and by impermissibly retrying the case. [49] I preface my analysis with the observation that, although the facts and evidence related to these issues are intertwined, thestandard of review with respect to findings of facts and unreasonable verdict are distinct. [50] I start with the appeal judge’s review of the facts.

As noted above, neither party challenged the factual findings of the trialjudge underlying his conclusion of impairment. However, the appeal judge did so. He began his analysis by noting that at least three ofthe trial judge’s findings or partial findings were either overstated or questionable. He took issue with the findings that Mr. McKenzie’svehicle was parked near his residence, that the vehicle was parked “in a snowbank” (at para 47, emphasis in original), and the inferencethat the witness, Mr. Hamilton, had opined that Mr. McKenzie was “drunk” (at para 48).

Curiously, after having found the above factualfindings were overstated or questionable, the appeal judge did not determine that they were the product of palpable and overriding error. [51] Notably, and contrary to the reservations of the appeal judge with respect to the foregoing findings of fact, there was evidencethat Mr. McKenzie lived in the apartments at 655 28th Street in Prince Albert, and that he was found in his truck parked at that location.As well, there was evidence from one of the attending police officers that Mr.

McKenzie’s truck was parked partially on a snowbank.With respect to the opinion of Mr. Hamilton, the appeal judge acknowledged that it was open to the trial judge to infer that Mr. Hamiltonthought Mr.

McKenzie was drunk but took issue with the trial judge’s failure to explain this finding. [52] That the appeal judge would, of his own motion, focus on the three factual findings set out above in the detail he did andreinterpret the evidence of the indicia of impairment without finding error on the part of the trial judge is indicative, although by itself notconclusive, of an impermissible reweighing of the evidence, as I will explain shortly. [53] The trial judge had considered, but ultimately rejected, Mr.

McKenzie’s arguments that any indicia of impairment wereattributable to the fact that he had awoken from a deep sleep or to causes other than alcohol consumption. The appeal judge appears tohave accepted these arguments. He thereby effectively overturned the trial judge’s finding that the signs of impairment were due toalcohol consumption and not due to Mr. McKenzie awaking from a deep sleep.

However, there was no finding that the trial judge’s factualconclusion in this regard was the result of palpable and overriding error. [54] I turn now to the Crown’s argument that the appeal judge failed to properly apply the standard of review governing whether theverdict was unreasonable in the context of a case based on circumstantial evidence. [55] The governing principles in this respect have recently been reiterated in R v Hoskins, 2021 SKCA 23, as follows: [107] … To assess whether a verdict is unreasonable within the meaning of that provision, an appellate court must determine if “theverdict is one that a properly instructed jury or judge could reasonably have rendered” (R v R.P., 2012 SCC 22 at para 9, [2012] 1 SCR746 [R.P.]).

While an appellate court is entitled to review and analyze the evidence, the purpose of doing so is to determine if “theevidence is ‘reasonably capable of supporting the trial judge’s conclusion …’” (R v Farnham, 2016 SKCA 111 at para 40, [2016] 12WWR 635, quoting R v Burns, (SCC), [1994] 1 SCR 656 at 663). [56] Although an appellate court assessing the reasonableness of a verdict may reweigh and consider the effect of the evidence, itmay not disturb reasonable findings of fact or credibility simply because it would have made different findings: R v R.P., 2012 SCC 22, atparas 11–12, [2012] 1 SCR 746. [57] In situations as in this case where the verdict is dependent on circumstantial evidence, the following principles apply, as set outin R v Wolfe, 2021 SKCA 39: [108] When the Crown’s case depends substantially or wholly on circumstantial evidence the criminal standard of proof requires the trierof fact to be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence asa whole (R. v.

Villaroman, 2016 SCC 33 at para 20, [2016] 1 SCR 1000 [Villaroman]).

When a verdict based on circumstantial evidence ischallenged as being unreasonable, the question for an appellate court is whether the trier of fact, acting judicially, could reasonably besatisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole (Villaroman at para55; R v Groshok, 2019 SKCA 39 at para 40). [109] A guilty verdict returned by a jury in a circumstantial evidence case is not rendered unreasonable merely because the evidence iscapable of giving rise to competing inferences (R v Learning, 2019 SKCA 5 at para 26 [Learning]).

A trier of fact must consider otherplausible theories and reasonable possibilities that arise from the evidence or lack of evidence but, while the Crown is required to negateother reasonable possibilities in a circumstantial evidence case, it need not negate “fevered imaginings or speculation” or “every possibleconjecture, no matter how irrational or fanciful, which might be consistent with an accused’s innocence” (R v Lights, 2020 ONCA 128 atpara 38, 149 OR (3d) 273, Villaroman, at paras 37–38).

Circumstantial evidence does not have to completely exclude all other conceivableinferences in order to support a conviction. A verdict is not unreasonable simply because there are alternatives that do not raise a doubt inthe jury’s mind. It is fundamentally for the trier of fact to decide if any proposed alternative way of looking at the case is reasonableenough to raise a doubt (Villaroman at para 56). [110] It is also important to note that the requirement for proof beyond a reasonable doubt does not apply to each individual piece of

circumstantial evidence. In order for a trier of fact to convict on the basis of circumstantial evidence, it is not necessary that each item ofevidence, taken individually, support only an inference of guilt.

It is an error of law to subject individual pieces of evidence to the standardof proof beyond a reasonable doubt (R v J.M.H., 2011 SCC 45 at para 31, [2011] 3 SCR 197; R v Ballantyne, 2015 SKCA 107 at para 42,329 CCC (3d) 127; R v Alves, 2014 SKCA 82 at para 43, [2014] 12 WWR 63). [111] In the end, it is not the function of an appellate court to determine whether it would have reached the same conclusion as the juryabout the circumstantial evidence, but rather whether it was unreasonable for the jury to have concluded that the evidence, as a whole,excluded all reasonable alternatives to guilt (Learning at para 23). [58] With respect to the assessment of whether there are other reasonable alternative explanations arising from the evidence, thisCourt in R v Stewart, 2020 SKCA 116, observed as follows: [18] … The question of whether such a finding would have been reasonable would turn on her findings of fact and the evidence as awhole.

As Caldwell J.A. put the matter in R v Learning, 2019 SKCA 5: [25] … [T]he question for an appeal court in a case of circumstantial evidence is not whether there were other possible explanations forwhat happened. The question is whether the trial judge unreasonably concluded that the evidence, when taken as a whole and whenapplying common sense, human experience and logic to determine the probability of outcomes, leads to only one reasonable conclusion,namely, that the accused committed the crime.

To paraphrase the Court in R v Villaroman (at para 69), while not every trier of fact mayinevitably have reached the same conclusion as the trial judge did in this case, her conclusion need only be a reasonable one. See, to the same effect, R v Lola, 2020 SKCA 103 at paras 21–22, and R v Wolff, 2019 SKCA 103, 380 CCC (3d) 223. [59] While the appeal judge identified the appropriate standard of review for determining whether a verdict is unreasonable, he didnot properly apply it. His errors are two-fold.

First, his review and analysis of the evidence was directed to retrying the matter rather thandetermining if the evidence and the facts found by the trial judge were reasonably capable of supporting his conclusion.

Second, in thecourse of doing that, the appeal judge performed a piecemeal analysis of the evidence under the guise of examining the totality of theevidence. [60] These errors arose in part because of the appeal judge’s reliance on Landes as guiding his approach to reviewing the evidence.The appeal judge in Landes engaged in a vigorous point-by-point analysis of the evidence, comparing it to a template of possible indicia ofimpairment as part of his determination of whether the verdict was unreasonable.

As well, the appeal judge in Landes ultimatelyconcluded that a properly instructed trier of fact would not have found the appellant guilty as charged rather than whether a trier of fact,acting judicially, could reasonably have been satisfied that the guilt of the accused was the only reasonable conclusion available on theevidence taken as a whole. [61] The governing approach, standard of review and the role of the reviewing court with respect to allegedly unreasonable verdictsin cases of circumstantial evidence is now definitively set out in R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000 [Villaroman], and notLandes. [62] I am satisfied the appeal judge lost the focus of his inquiry, which was to review and analyze the evidence, “but only for thepurpose of determining if it is reasonably capable of supporting the trial judge’s conclusion” (R v Burns, (SCC), [1994] 1SCR 656 at 663). [63] After setting out the trial judge’s seven findings of signs of impairment, the appeal judge proceeded to negate those findings intwo ways.

He first found that the trial judge failed to properly connect the findings to Mr. McKenzie’s ability to drive. I have dealt withthat issue previously. [64] Second, he analyzed those findings in terms of whether there were alternative explanations for them that were not consistentwith impairment. He found the trial judge ignored the existence of possible innocent explanations for the indices of impairmentdemonstrated by Mr.

McKenzie and glossed over evidence that weighed against impairment: [57] Without lapsing into speculation, I am satisfied there were plausible explanations available to the trial judge, even for some of themore unusual items of evidence. For example, and as noted in Landes, the presence of a strong odour of alcohol is evidence only of recentalcohol consumption. Furthermore, the other indicia, relied on by the trial judge, do not present as obvious signs of impairment to drive,whether taken alone or together.

Given the time of year, the unusual gait might reasonably have been the result of an icy roadway,something the trial judge noted from the photographs. Similarly, glassy and watery eyes, after what would appear to have been a deepsleep, are reasonably explicable by circumstances other than impaired ability to drive.

They may reasonably be attributable to fatigue, aswould the act of dropping one’s car keys when rummaging in the console for vehicle registration. [58] In making these observations, it must be understood that evidence of unusual behavior, even unwise behavior, (such as ineptparking of a truck, dropping garbage on the ground or attempting to ignore a police officer) may well equate to some form of functionalimpairment. Such impairment, however, may not impact one’s ability to operate a motor vehicle. Moreover, such impairment may noteven be attributable to alcohol.

Lack of sleep, or irregular sleep, cannot reasonably be discounted in this analysis. [65] The appeal judge reinterpreted the indicia of impairment found by the trial judge without, as I indicated above, concluding thatthe trial judge’s inferences with respect thereto were the result of palpable and overriding error.

He simply substituted his view that theindicia of impairment may have had innocent explanations and, therefore, were insufficient to sustain the view of the trial judge to thecontrary, i.e., they should have resulted in a not guilty verdict. [66] The appeal judge related these “plausible explanations” (at para 56) to the evidence that was before the trial judge, but hisattempts to explain away the indicia of impairment amount to speculation and an unjustified attempt to circumvent the deferential standardof review to be applied in assessing the reasonableness of a verdict. [67] The approach taken by the appeal judge is at odds with the dictum in Villaroman that “focusing on hypothetical alternative

theories and, at times, engaging in speculation rather than on the question of whether the inferences drawn by the trial judge, having regard to the standard of proof, were reasonably open to him” is an error of law (at para 67). This appears to be precisely what the appeal judge did in the present case. He focused on speculative innocent explanations to justify the indicia of impairment demonstrated by Mr. McKenzie.

In doing so, he usurped the trial judge’s role in drawing the line between reasonable doubt and speculation (see Villaroman at para 71 ). [ 68 ] The above excerpts of the appeal judge’s review of “plausible explanations” are also indicative of the piecemeal approach taken by him in reviewing the evidence. The appeal judge attacked the trial judge’s

interpretation of the indicia of impairment. He focused on individual indicia of impairment in isolation, asking whether each one may be explained by something other than alcohol consumption and then, at the end of the process , rendered an opinion on the reasonableness of the verdict. [ 69 ] This is especially evident at paragraph 58 of the Appeal Decision , reproduced earlier in this decision, where the appeal judge concluded that the signs of impairment in the present case “may not” have impacted Mr.

McKenzie’s ability to operate a motor vehicle, “may not” have been attributable to alcohol, and that lack of sleep could not be reasonably discounted. Notably, he did not conclude that the indicia of impairment could not have been attributed to alcohol or could not have been reasonably found to have impacted Mr. McKenzie’s ability to drive. [ 70 ] Instead of framing his analysis by reference to whether the trial judge could reasonably have convicted Mr. McKenzie, the appeal judge appears to have been focused solely on whether an acquittal would have been possible.

While it is easy to find an alternate explanation for each indicator of impairment, the approach that should have been employed by the appeal judge was whether it was unreasonable for the trial judge, taking the indicia of impairment as a whole, to have concluded that they exclude all reasonable alternatives to guilt as explained in the jurisprudence set forth above. [ 71 ] In light of all the foregoing, I would conclude that the appeal judge erred by misapplying the appropriate standard of review both as to the facts found by the trial judge and with respect to the issue of allegedly unreasonable verdicts. VII.

CONCLUSION [ 72 ] In the result, I would allow the appeal and restore the trial judge’s verdict of guilty. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.