



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jackson, 2018 ONCA 460

DATE: 20180517

DOCKET: C64913

Doherty, Epstein and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Dean Jackson

Respondent

Rebecca De Filippis, for the appellant

Ian Carter, for the respondent

Heard: May 10, 2018

On appeal from the order of Justice Norman Karam, dated June
    23, 2017 with reasons reported at 2017 ONSC 3882, allowing the appeal from the conviction
    entered on January 30, 2017 by Justice Gregory P. Rodgers of the Ontario Court
    of Justice.

Epstein J.A.:

INTRODUCTION

[1]

This is a Crown appeal from a successful defence summary conviction appeal.
    The respondent was charged with operating a motor vehicle while impaired by a
    drug contrary to s. 253(1)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46.
    The trial judge was satisfied that the Crown had proved the respondent, who was
    found asleep behind the wheel of his car, was impaired by drugs, and entered a
    conviction.
He imposed the minimum penalty of a
    $1000 fine, and a one year driving prohibition, as well as a $300 victim
    surcharge.

[2]

The respondent appealed to the summary conviction appeal court. The
    summary conviction appeal court judge (SCAJ) set aside the conviction and entered
    an acquittal. In overturning the respondents conviction, the SCAJ held that
    the trial judge had erred in concluding the evidence was sufficient to support
    the finding that the respondent was operating the vehicle while impaired by
    drugs.

[3]

This court granted the appellant leave to appeal on January 31,
    2018. For the following reasons, I would allow the appeal.

BACKGROUND

[4]

In the early hours of November 19, 2015, the North Bay Police Service
    received a report about a man sleeping in a car at the intersection of Fisher
    Street and Highway 17 in North Bay. Upon arriving at the scene around 2:52 am,
    police found the respondent apparently asleep at the wheel of his vehicle. The
    vehicle was running and locked, set in drive, with its headlights and brake
    lights on. The respondent had his foot on the brake. Initially, the police were
    unable to rouse the respondent, notwithstanding their banging on the windows
    and using the strobe light settings on their flashlights. When the police finally
    awakened the respondent they instructed him to put the vehicle in park; he was
    unable to do so, however, and the car rolled slowly forward and collided with a
    police car parked eight feet in front of it. Once taken from the vehicle,
    officers observed that the respondents movements were slow, his speech was
    slurred, and he was unsteady on his feet. He did not smell of alcohol and did
    not appear to be injured.

[5]

The respondent was arrested for impaired operation of a motor vehicle.

[6]

An officer reached into the vehicle to remove the keys and observed a
    bag on the passenger seat containing several prescription pill bottles, with a
    pill in each, and with the respondents name on the bottles. The labels on the
    bottles identified them as a variety of central nervous system depressants. One
    of the officers then told the respondent that he was being arrested for
    drug-impaired driving. The officers made a demand for a drug recognition
    evaluation (DRE).

[7]

The officers contacted the O.P.P. believing that given the location of
    the incident, they had jurisdiction over the matter. During the wait for the
    arrival of the O.P.P. the respondent told one of the officers that he had
    ingested Diazepam and Benzodiazepine, but had not consumed alcohol. He also
    told officers that he was an addict who had recently detoxed for opiate
    addiction.

[8]

The O.P.P. officers arrived and took the respondent to the O.P.P.
    detachment. An O.P.P. officer conducted the DRE and concluded that the
    respondent was impaired by central nervous system depressant drugs. The
    respondents urine was tested and a number of drugs were found present,
    including Clonazepam, Clonidine, Fentalyn, Loazepam, Oxycodone, Diazepam and
    barbiturates.

[9]

The dispute over jurisdiction between the local arresting officers and
    the O.P.P. resulted in a significant delay: the respondent was arrested at
    2:56am, the DRE demand was made at 3:04am, the respondent was provided an
    opportunity to speak to counsel at 4:07am, and the DRE was conducted at 4:26am.
    The pills in the bottles were not tested.

decisions below

(1)

Ontario Court of Justice

[10]

The
    respondent sought to exclude the evidence of the DRE and urine tests, arguing
    they were not done as soon as practicable. He also sought to exclude his
    inculpatory statements on the basis that they were made before he was given an
    opportunity to speak to a lawyer.

[11]

The
    trial judge allowed the respondents
Charter
application with respect to
    the DRE evidence, the urine sample, and his inculpatory statements. This aspect
    of his

decision is not relevant to this appeal.

[12]

With
    that evidence excluded, the only issue at trial was whether the remaining
    evidence established the respondents impairment had been caused by the
    consumption of a drug. On this point the respondent testified that his
    behaviour was attributable to extreme fatigue.

[13]

The
    trial judge concluded that the available evidence proved the case against the
    respondent beyond a reasonable doubt. In coming to that conclusion the trial
    judge referenced the following evidence:

·

The officers observations of the respondent unconscious at the
    wheel of the motor vehicle. The respondent did not appear to be injured or ill
    in any way.

·

It took two minutes of the officers yelling, pounding on the
    vehicle, and applying strobe lights to rouse him. He was unable to put the
    vehicle in park, and as a result his vehicle drove into the police cruiser.

·

The respondents speech was slurred. He was unsteady on his feet
    and confused.

·

There were bottles of pills found in the front passenger seat of
    the vehicle that, by their labels, indicated they were various forms of central
    nervous system depressants. The prescriptions were in the name of the
    respondent.

·

The effect of those drugs is consistent with the officers
    observations of the respondent.

[14]

The
    trial judge concluded that the respondent was guilty of driving while impaired
    by a drug.

[15]

The
    respondent appealed his conviction to the summary conviction appeal court.

(2)

Summary Conviction Appeal Court

[16]

The
    respondent argued on appeal that the trial judge had failed to adequately consider
    his testimony to the effect that the signs of impairment were the result of
    sleep deprivation and the evidence was insufficient to establish his guilt
    beyond a reasonable doubt.

[17]

The
    SCAJ allowed the appeal. He noted that, before the exclusion of evidence based
    on the
Charter
violation, there was overwhelming evidence that the
    respondent operated a motor vehicle while impaired and that this impairment had
    not been caused by alcohol or accident. The SCAJ found the respondents
    evidence  that he was simply sleepy the night of the arrest  did not raise
    a reasonable doubt.

[18]

However,
    the SCAJ went on to conclude that after the evidence was excluded the appellant
    had failed to establish beyond a reasonable doubt that the respondents
    impairment was caused by a drug. The SCAJs review of the trial judges finding
    in this regard is contained in one paragraph at the end of his brief reasons:

Although it was established by the forensic report that the [respondents]
    behaviour was extremely similar to the effects of the various drugs [found in
    the pill bottles], there was no evidence other than the names on the various
    labels on the pill bottles that the bottles actually contained those drugs, nor
    was there any evidence that those drugs were in his system.

[19]

Accordingly, the SCAJ allowed the appeal, quashed the conviction
    and entered an acquittal.

ISSUE

[20]

The
    Crown argues before this court that the SCAJ erred in law by applying an
    incorrect standard of review and substituting his opinion for that of the trial
    judge on the issue of whether the respondent was impaired by a drug while he
    operated his vehicle.

THE PARTIES POSITIONS

[21]

The appellant submits that the
evidence at
    trial supported the trial judges conclusion that the respondent had consumed
    central nervous system depressants and that those drugs were the source of his
    impairment. The appellant points out that the respondent did not dispute most
    of the underlying facts set out by the trial judge. Instead, he only argued
    that this evidence did not prove he had consumed a drug. The trial judge
    disagreed, as he was entitled to do, and entered a conviction.

[22]

The
    appellants position is that the trial judges decision was reasonable. The
    officers observations of the respondent during his arrest, the presence of
    pill bottles labelled as central nervous system depressants found beside the
    respondent, and the toxicologist report describing the effects of those pills,
    amply supported the trial judges finding that the respondent was impaired
    because he had consumed central nervous system depressants. The trial judge
    reasonably rejected the respondents explanation that he was simply tired.

[23]

The
    appellant argues the SCAJ exceeded the jurisdiction of a reviewing court by
    failing to confine his analysis to the only question before him: whether the
    inference drawn by the trial judge  that the respondent had consumed drugs and
    this had contributed to his impairment  was reasonably available to him.

[24]

The
    appellant further contends that rather than identify any palpable and
    overriding error in the trial judges reasons, the SCAJ effectively found that
    the lack of direct evidence of impairment was determinative. The SCAJ erred in
    saying there was no evidence other than the names of the various labels on the
    pill bottles that the bottles actually contained those drugs. There is no
    reason the trial judge was precluded from concluding that the labels of the
    bottles accurately described their contents. Further, the labels on the bottles
    were not the only evidence of the contents of the bottles  the effects of the
    drugs named on the labels matched the respondents behaviour when he was
    arrested.

[25]

The
    appellant also argues that the SCAJ erred in finding there was no evidence of
    drugs in the respondents system. This finding is rooted in a mistaken belief
    that the law requires toxicology evidence to prove drug consumption. The
    failure to conduct tests or seize samples does not preclude a conviction for
    drug-impaired driving; the test result is just one piece of evidence for the
    trial judge to consider:
R. v. Henry,
[2014] O.J. No. 3989 (C.A., in
    Chambers).

[26]

The
    respondent submits that although his reasons could have been more expansive, the
    SCAJ clearly identified the features of the evidence that gave him difficulty
    and stated his conclusion based on his cumulative assessment of those flaws
    that he had identified in the appellants case. He reached a conclusion that
    was open to him.

ANALYSIS

Did the SCAJ err in applying an
    incorrect standard of review and substituting his opinion for that of the trial
    judge?

[27]

After
    the trial judges exclusions of the direct evidence of the respondents
    impairment, the court was left with circumstantial evidence to determine whether
    the respondents unchallenged impairment was the result of his ingestion of
    drugs. An appellate courts review of circumstantial evidence turns on whether
    the trier of fact, acting judicially, could reasonably be satisfied that the
    accuseds guilt was the only reasonable conclusion available on the totality of
    the evidence:
R. v. Villaroman,
2016 SCC 33, [2016] 1 S.C.R. 1000, at
    para. 55.

[28]

The
    question before the trial judge was whether the respondents impairment at the
    time he had care and control of his vehicle was caused by drugs. I am of the
    view that it was open to the trial judge to find that it was, as the necessary
    inferences were available to him on the evidence. For the reasons that follow,
    in my view the SCAJ erred in overturning this finding of the trial judge.

[29]

Under
    s. 686(1)(a)(i) and s. 822(1) of the
Criminal Code
, the jurisdiction of
    the SCAJ to review a trial judges finding as to sufficiency of the evidence is
    limited. A SCAJ is not entitled to retry the case or to substitute his or her
    own view of the evidence for that of the trial judge:
R. v. Smits,
2012
    ONCA 524, 294 O.A.C. 355, at para. 67. A SCAJ cannot interfere with a trial
    judges factual findings unless they are unreasonable or unsupported by the
    evidence: see
R. v. Grosse
(1996), 29 O.R. (3d) 785 (C.A.), at pp.
    791-92.

[30]

As
    outlined above, the SCAJs reasons for overturning the trial judges factual
    findings were sparse. He did not engage with the trial judges specific
    findings or determine whether they were unreasonable. He simply concluded that,
    based on his assessment of the evidence: (i) there was no evidence that the
    pill bottles actually contained the drugs that appeared on their labels; and
    (ii) there was no evidence that those same drugs were in the respondents system.

[31]

In
    my view the SCAJ erred in law by applying an incorrect standard of review and
    substituting his opinion for that of the trial judge on the issue of whether
    the respondents impairment was caused by drugs. The SCAJ identified no
    palpable and overriding error in the trial judges factual findings; as a
    result, it was not open to the SCAJ to substitute his own assessment of the
    evidence for those of the trial judge:
R. v. Johnston,
2016 ONCA 834, at
    para. 9.

[32]

I
    am of the view that there was ample circumstantial evidence, reviewed above, to
    support the trial judges conclusion that the respondent was impaired by drugs
    while he was operating his vehicle at the time in question. This conclusion was
    reasonably available to the trial judge. Given the factual underpinnings of the
    conviction there was no basis for the SCAJ to interfere by re-weighing the
    circumstantial evidence and reaching its own conclusion.

[33]

In
    my view, the SCAJ exceeded the ambit of factual review permitted under s.
    686(1)(a)(i) of the
Criminal Code
. He effectively conducted a
de novo
review of the evidence and thereby erred in law in overturning the trial
    judges findings of fact.

DISPOSITION

[34]

The
    respondent submits that if this Court decides to allow the appeal, the
    appropriate disposition is nonetheless to order a new trial, for two reasons.

[35]

First,
    the respondent argues he was arrested without cause and all post-arrest
    evidence (i.e the pill bottles) should be excluded. Here, there was neither a
    subjective nor an objective basis to arrest the respondent. When placing the
    respondent under arrest the arresting officer told the respondent he was being
    arrested for impaired operation of a motor vehicle, but did not specify
    whether it was intoxication by alcohol or a drug. The trial judge did not deal
    with this argument in his
Charter
ruling. The respondent says he is
    entitled to an adjudication of this issue at a new trial.

[36]

Second,
    the respondent submits that the trial judge and SCAJ failed to assess the
    respondents own exculpatory evidence to the effect, as noted above, that his
    behaviour was caused by extreme fatigue. This evidence provided a potential
    explanation for the respondents behaviour. The trial judge made no mention of
    this evidence in his reasons for judgment. The respondent submits that he is entitled
    to an assessment of this evidence by a trier of fact.

[37]

I
    would not give effect to either of these arguments.

[38]

As
    to the first argument, I am of the view that it would not be appropriate for
    this court to consider an issue that the respondent did not raise before the
    SCAJ.  Moreover, to the extent that this issue
was
raised before the
    SCAJ, it was advanced as an unlawful detention in his Notice of Appeal to the
    Superior Court. Given before this court the respondent concedes he was properly
    detained after being removed from the vehicle, I see no merit in his
Charter
argument.

[39]

With
    respect to the second argument, the SCAJ considered the respondents evidence
    and found it disclosed no reasonable explanation as to his state of impairment
    and did not raise a reasonable doubt. I see no reason to interfere. The SCAJs
    assessment that this evidence was worthless was an available one given the
    respondents conduct as described by the police officers.

CONCLUSION

[40]


For
    these reasons, I would allow the appeal, set aside the acquittal and restore
    the conviction.

Released: DD MAY 17 2018

Gloria Epstein J.A.

I agree. Doherty J.A.

I agree. S.E. Pepall J.A.


