This week’s top three summaries: R v Zamora, 2020 BCSC 1261 #wiretap voice ID, R v McKenzie, 2020 SKQB 206 #impaired evidence, and R v Chechowki, 2020 BCCA 237 revocation of #bail pending appeal
R v Zamora, 2020 BCSC 1261
[August 20, 2020] Evidence: Voice Identification in a Wiretap [Madam Justice Duncan]
AUTHOR’S NOTE: Most people would be hard-pressed to be able to describe how they identify someone else's voice. This is part of the reason why in-court testimony to the same effect often appears to be no more than a leap of faith. In this decision, Justice Duncan gives a good overview of factors relevant to the assessment of voice identification. Case law has evolved to the point that it voice identification is now treated in a very similar manner to eye-witness identification evidence in terms of its known unreliability. Much like being cued with a single photograph, here police officers reviewed a single recording of the accused interview and compared it to the recording at question. This placed them in an untenable position to identify the voice. Also, many of the officers knew that others had already made this identification. This also predisposed them to complete the same identification. In the end, Mr. Zamora received an acquittal entirely not the basis of a lack of voice ID.
Overview
[3] The charges arose in the context of a larger investigation by the Drugs and Organized Crime Section of the Coquitlam RCMP into suspected fentanyl trafficking (“Project E-Nightlife”). The investigation began in March 2016. Two of its primary targets were Andrew Leach and his girlfriend, Arghavan Ebrahimi.
[4] In May 2017, investigators obtained a Part VI wiretap authorization to intercept the private communications of Mr. Leach and others, through cell phones and audio probes in residences and vehicles. One of the vehicles identified in the authorization, associated with Mr. Leach, was a black Mercedes SL55 (the “Mercedes”). Investigators installed an audio probe in this vehicle. Ms. Ebrahimi was associated with a white Acura TL (the “Acura”).
[5] On June 7, 2017 at 1:07 p.m. a civilian line monitor in the wire room intercepted a conversation from the audio probe in the Mercedes (“Session 225”). Mr. Leach was present and he was recorded in conversation with an unknown male (“UM”). The two men talked about a variety of subjects before their conversation turned to Mr. Leach’s interest in obtaining firearms. They discussed a Steyr AUG and a fully automatic shotgun. UM said he should take Mr. Leach to the storage facility later that day.
[6] Investigators began surveillance of Mr. Leach to follow up on discussion in Session 225 about obtaining firearms. At 6:39 p.m. they observed him travel with Ms. Ebrahimi in her Acura from his home in Port Coquitlam to the 1000 block of Barclay Street in Vancouver. A male (“UM1”) got into the Acura and it travelled to Public Storage on Terminal Avenue.
[7] The Crown maintains that Mr. Leach and UM1 went into Public Storage, using the code associated with locker 2035, and spent about ten minutes inside the building. They returned to the Acura and drove to an area behind 1028 Barclay Street. An Asian male (“UM2”) approached the Acura and got in for a few minutes. After UM2 got out of the Acura, Mr. Leach and UM1 had a conversation outside the Acura for a few minutes. UM1 then used a key fob to enter the rear of the residential tower at 1028 Barclay Street.
[8] Police obtained and executed a general warrant on locker 2035 on June 9, 2017. They located and seized six firearms and a variety of magazines and ammunition. The firearms were estimated to be worth approximately $40,000 on the black market. Police also located a piece of paper which, in the opinion of a forensic expert, bore an impression of Mr. Zamora’s left index finger.
[9] Austin Zamora was completely unknown to the surveillance team. A member of the Vancouver Police Department initially identified UM1 as an individual by the name of Dustin Viscount. The detection of Mr. Zamora’s fingerprint on an item in the storage locker shifted the focus of the investigation.
Crown Position
[10] The Crown submits that the evidence supports the conclusion that Mr. Zamora was UM on Session 225 and UM1, the individual who got into the Acura near an apartment building at 1028 Barclay Street and accompanied Mr. Leach into the building at Public Storage. As a result, the Crown submits that it has proven beyond a reasonable doubt that Mr. Zamora had possession of the firearms, ammunition and devices seized in the search of the storage locker and intended to sell them to Mr. Leach.
Defence Position
[11] The defence position is that the evidence identifying Mr. Zamora as UM on Session 225 is woefully inadequate. Counsel maintains that the evidence led to establish UM1’s identity as Mr. Zamora also carries doubt, as does the evidence supporting the surveillance team’s account of continuously observing UM1 in the company of Mr. Leach on the evening of June 7. The defence submits that even if Mr. Zamora was at the storage locker with Mr. Leach, it is not proof that he had the requisite knowledge and control over the items in the storage locker to make the Crown’s case for possession with intent to transfer or possession of any of the items seized.
Misidentification of UM1
[69] After surveillance on June 7, the team requested assistance from another law enforcement agency to determine the identity of UM1. Cst. Postolovic testified that Sgt. Rettie sent him a known photograph of Dustin Viscount and he concluded that UM1 was in fact Viscount.
[70] On cross-examination, Cst. Postolovic agreed that he put “is” in capital letters and underlined it for emphasis in his notes. He also noted that he was “certain” that UM1 was Dustin Viscount and stated it in the Report to Crown Counsel. He held that firm belief until June 22, when a fingerprint identified to Mr. Zamora was obtained from a piece of paper seized during the execution of the search warrant.
[72] Sgt. Rettie was also convinced that the known photograph of Dustin Viscount matched UM1. His opinion also changed when Mr. Zamora’s fingerprint was identified by Cpl. Howorth on June 22.
The Search Warrant
[74] Cst. Postolovic was the exhibit officer. Cpl. Auger, Cst. Cormier and Sgt. Rettie were also present. When the locker was opened, they saw a red and black Hockey Canada bag on wheels, a green backpack and two blue Rubbermaid tubs, stacked one on top of the other.
[75] The top Rubbermaid tub contained:
- 45 12-gauge shotgun shells;
- Two Steyr AUG magazines with 30 round capacity;
- 180 rounds (9 full boxes) of .223/5.56 ammunition;
- A sawed-off Winchester Cooey shotgun Model 840;
- A Wilkinson Arms Model Linda 9 mm Luger Carbine;
- 9 mm ammunition;
- Norinco 7.62x39R calibre ammunition (178 rounds)
[76] The bottom Rubbermaid tub contained 25 shotgun shells and two 9 mm magazines in addition to some cloth shopping bags.
[77] The Hockey Canada bag contained a Franchi SPAS 12 shotgun, a Steyr Aug assault rifle and a Norinco SKS carbine.
[78] The green and black backpack contained a Sterling submachine gun.
[79] Sgt. Rettie decided that the covert search would become an overt seizure, due to public safety concerns about the firearms.
[80] Cpl. Auger made the firearms safe for transport and gave them to Cst. Postolovic to log on the exhibit flow chart.
Analysis:
[132] UM’s remarks in Session 225 conveyed knowledge and control of the items in question. UM was clearly offering to sell guns to Mr. Leach. UM knew where they were and he described the characteristics of two of them, in particular the Steyr AUG.
Is Mr. Zamora UM on Session 225?
Sgt. Rettie
[146] Sgt. Rettie listened to Session 225 and the two short phone calls made from Mr. Leach’s phone on June 7. In his opinion, it is the same voice on all three and based on hearing Mr. Zamora’s voice on October 4 at the arrest for the DNA warrant, he thinks it is Mr. Zamora.
[147] On cross-examination, Sgt. Rettie agreed that he had not made any notes concerning the words uttered by Mr. Zamora on October 4. He agreed that the quality of the intercept that resulted in Session 225 was substantially poorer than the two cell phone calls. The intercept fades in and out, a radio was playing in the background and there was ambient noise. Sgt. Rettie did not prepare a TAR concerning his opinion that Mr. Zamora’s voice was on Session 225 and he talked to other officers who reached a similar opinion, including Cst. Postolovic.
Cst. Postolovic
[148] Cst. Postolovic spent approximately 30 minutes with Mr. Zamora on the day of the arrest, trying to obtain a warned statement from him. Mr. Zamora repeatedly asked to be returned to his cell. Cst. Postolovic listened to Session 225 before testifying in court as well as the two short phone conversations from Leach’s phone. Cst. Postolovic believed that it was Mr. Zamora’s voice on Session 225.
[149] On cross-examination, Cst. Postolovic agreed that he did not know Mr. Zamora before June 7 and that the only times he was in Mr. Zamora’s presence were October 4 and January 12. He was very familiar with Mr. Leach but had never heard Mr. Zamora’s voice on an intercept before or after June 7. Cst. Postolovic agreed the quality of the audio for Session 225 was not good and that it faded in and out. He could not provide a specific date on which he was satisfied that Mr. Zamora’s voice was on Session 225. Due to his misidentification of Mr. Zamora earlier in the investigation, the task of comparing audio was primarily left to other officers. He had no notes about the identification process. He knew other officers had made the match to Mr. Zamora because he prepared the Report to Crown Counsel.
Cst. Epp
[150] Cst. Epp monitored Cst. Postolovic’s attempt at taking a warned statement from Mr. Zamora on January 12, 2018 and he was present at the execution of the DNA warrant. He testified that he heard Mr. Zamora say a few words. In Cst. Epp’s opinion, the voice in Session 225 was, more likely than not, the voice of Mr. Zamora.
[151] On cross-examination, Cst. Epp said he was aware that other officers suspected it was Mr. Zamora’s voice, and that he approached his analysis of the calls through that lens. He agreed the quality of the intercept was not good. He has never given voice identification evidence before and he agreed it was an inherently difficult process. Session 225 contained ambient noise and the sound level varied. Mr. Zamora said very few words to Cst. Epp during the DNA warrant process and the constable agreed that Mr. Zamora was emotional that day.
Cpl. Auger
[152] Cpl. Auger listened to Session 225 and the two calls on Mr. Leach’s phone as well as a known sample of Mr. Zamora’s voice. He thought the voice on Session 225 and the two calls was Mr. Zamora’s. He could not describe anything specific about the voice.
[153] On cross-examination, Cpl. Auger said he received a request from the Crown on June 17 to review the audio. He was aware Sgt. Rettie thought it was Mr. Zamora. Cpl. Auger has no specific training or expertise in voice recognition and has never given opinion evidence about it before. He agreed that Session 225 was not of great quality and that there was ambient noise.
The Law of Voice Identification
[154] The jurisprudence has evolved to place voice identification evidence on a similar footing to eyewitness identification evidence in terms of its potential for unreliability.
[155] In HMTQ v. Chan, 2001 BCSC 1180, Dorgan J. observed that a person testifying that he or she identifies the voice recorded is doing so not as an expert in voice identification, but on the basis of familiarity with that voice. Expert evidence is not required to identify a voice. The reliability of the identification is a matter of weight: R. v. Williams (1995), 1995 CanLII 695 (ON CA), 98 C.C.C. (3d) 160. Dorgan J. said:
[28] In R. v. Rumbaut, supra, at para. 47, the court notes the several methods by which a party to a private communication may be identified:
1. A lay witness familiar with the voice of the accused may express an opinion as to the identity of the parties in the communication even where the witness heard the tapes before listening to the person.
2. Self-identification on the recording itself (use of address or name that identifies the speaker).
3. Physical surveillance that coincides with the audio-recording to establish the identity of the speaker.
4. Direct evidence, such as a person testifying that he or she was with the accused at the time the accused was part of the communication.
5. Spectrographic analysis.
[156] Dorgan J. compiled a list of factors from the authorities, which would be of assistance to a trier of fact assessing the reliability of the witness’s identification of an accused’s voice [at para. 31]:
a) Are there distinctive or distinguishing features of the voice: see R. v. Reid, R. v. Savoy, [2000] B.C.J. No. 695 (S.C.), R. v. Gulstad, [1994] Y.J. No. 44 (Terr. Ct.), R. v. Latchana, [1997] O.J. No. 2330 (G.D.)?
b) Did the party to the communication identify him or herself?
c) Did the party to the communication provide information that would allow the listener to identify him or her?
d) Was there evidence of physical surveillance at the same time as the private communication to allow the speaker to be identified?
e) Did the witness hear the voices under the same conditions, or was the emotional state different in each situation: R. v. Reid?
f) What is the length of time during which the witness was able to hear the voice: R. v. Gulstad, R. v. Williams and R. v. Savoy?
g) Was there any reason for the witness to focus on the voices?
h) What was the condition of the witness when he or she heard the voices, alert or groggy: R. v. Gulstad?
i) What was the length of time between the times the witness heard the voices: R. v. Gulstad?
j) Were there any contradictions in the description given by the witness - did the witness testify that the accused spoke with an accent when he or she did not: R. v. Parsons, [1999] Y.J. No. 3 (Terr. Ct.), R. v. Narsing, [1996] A.J. No. 1263 (Prov. Ct.)?
k) Did anything compromise the identification process - was the witness assisted in identifying the voice, or was the witness' opinion tainted by the expectation that the voice was that of the accused: R. v. Parsons, and R. v. Williams?
l) Is the witness' opinion contradicted: R. v. Williams?
[32] As with visual identification, voice identification suffers from the frailty that a witness may simply be mistaken. This is not a question of the honesty or integrity of the witness. However, honesty and integrity of a witness cannot be relied upon to overcome weaknesses in identification evidence. As Lysyk J. noted in R. v. Savoy, [2000] B.C.J. No. 695 (S.C.): "What requires assessment is a risk that he may be mistaken."
See also R. v. Adam, 2006 BCSC 1884 at para. 139.
[157] Applying the factors summarized by Dorgan J. to the voice identification evidence, there were no distinctive or distinguishing features of the voice described by the officers or discernible to me as I listened to the recordings of UM and Mr. Zamora. The officers all agreed that the recording of Session 225 was of poor quality and tended to fade in and out. There was also background noise.
[158] UM did not identify himself or provide information that would allow the listener to identify him, except to the extent that he had firearms for sale and they were in a storage locker. UM offers to take Mr. Leach out to the storage locker later that night, but it is clear that UM and Mr. Leach anticipate further communication to make the arrangements for the evening. There is no evidence of any calls from Mr. Leach to UM, or to anyone else, between the end of Session 225 and the time Mr. Zamora is picked up. Nor is there any evidence from the audio intercept in Ms. Ebrahimi’s Acura.
[159] ... It is entirely possible that Mr. Zamora was sent along to escort Mr. Leach to the storage locker in place of UM, given the lapse in time.
[160] Mr. Zamora’s fingerprint was found on a piece of paper in one of the boxes in the storage locker. At some point he obviously touched the paper, but there is no direct connection between the piece of paper and the identity of UM. In any event, the Public Storage records show that there was access to the locker several times in May, indicating others may have had access to it and knowledge of its contents consistent with the knowledge UM demonstrated.
[162] None of the officers were familiar with Mr. Zamora’s voice except through repeatedly listening to known recordings of him while he was in police custody. There was little audio when the DNA warrant was executed. When Mr. Zamora was arrested he repeatedly requested to be returned to his cell, making his utterances sound like a monotonous incantation. In both of those known instances Mr. Zamora was in custody and under stress, and therefore the context in which those utterances were captured was significantly different from that of the conversation captured in Session 225.
[163] There were no contradictions in the description of the similarities between UM and Mr. Zamora’s voices, but there was nothing noted by the officers that stood out to connect the two.
[164] The officers candidly agreed that they were all aware that others held the opinion that the voice on Session 225 was Mr. Zamora’s.
[165] In the result, while the police witnesses honestly believe the voice on Session 225 is Mr. Zamora’s, I cannot place much, if any, weight on their evidence.
[166] It is open to the trier of fact to come to a conclusion about the identity of a voice, but the same circumstances that posed difficulties with the police identification apply to my assessment. The quality of Session 225 is poor and there is nothing about the way UM speaks that stands out to an untrained ear. Nor does the circumstantial evidence and Mr. Zamora’s presence in the car and at Public Storage permit the conclusion that Mr. Zamora was UM as the only reasonable inference from the evidence.
[167] The circumstances as a whole are obviously highly suspicious, but I am not satisfied beyond a reasonable doubt that Mr. Zamora was UM and therefore I am not satisfied he had the requisite knowledge and control over the firearms in the storage locker. Accordingly, I find Mr. Zamora not guilty.
R v McKenzie, 2020 SKQB 206
[August 20, 2020] Impaired Operation: Evidence of Impairment of the Ability to Drive [R. W. Elson J.]
AUTHOR’S NOTE: In an impaired operation case, the crucial question is whether the degree of intoxication presented by the operator impaired their ability to drive to any degree. Where the evidence relates to non-driving observations, a trial judge has to connect those observations to the ability to drive. Failure to do so can result in them being overturned on appeal. Signs of impairment are not necessarily, to the exclusion of any other reasonable conclusion, signs of an impaired ability to drive.
Overview
[2] The central issue in the trial and on this appeal relates to whether the evidence of impairment was sufficient to satisfy a trier of fact, beyond a reasonable doubt, that the appellant’s ability to operate a motor vehicle was impaired by alcohol at the time in question.
Facts
[5] Shortly after 3:00 a.m. on the day in question, the civilian witness, Mike Hamilton, was driving home from Victoria Hospital, where his wife was a patient. On 28 th Street, he observed a truck parked at a bit of an angle up on the snowbank, with the lights on and the driver’s side door wide open. As he drove past the truck, Mr. Hamilton saw its sole occupant, later identified as the appellant, slouched behind the steering wheel and not moving. He also saw items strewn on the street, just outside the open door. Concerned that the appellant was unconscious and may have been the victim of an assault or robbery, Mr. Hamilton decided to stop and check on him. He pulled his vehicle over and then walked back towards the truck.
[6] As Mr. Hamilton approached the truck, he noted that the engine was running and the radio was on. At the driver’s side door, he tried to speak to the appellant but could not elicit a response. The appellant remained unresponsive even after Mr. Hamilton began striking the truck’s windshield a few times in an effort to roust him. Eventually, the appellant grunted a response, after which Mr. Hamilton called the police. He estimated that he spent roughly a minute at the truck before the appellant responded.
[7] In cross-examination, Mr. Hamilton testified that he did not recall any smell of alcohol at the time he stood at the open driver’s side door.
[10] Cst. LeBlue testified that, upon arrival at the scene, he spoke to Mr. Hamilton from his vehicle. After the appellant’s truck was pointed out to him, the officer saw the appellant starting to move about within the truck. Cst. LeBlue decided to turn his patrol vehicle around and pull in behind the truck, at a considerably sharper angle than the truck was parked. As he did this, the officer saw the appellant getting out of the truck, for approximately two or three steps. However, when Cst. LeBlue began to approach the truck by foot, the appellant got back in the truck and closed the door.
[11] When the officer got to the truck, he tapped on the driver’s side window and asked the appellant to open the door. After receiving no response, the officer opened the driver’s side door, himself, approximately a foot or so. Cst. LeBlue testified that, upon opening the door, he noticed a strong odour of beverage alcohol. He then asked the appellant to step out of the vehicle. Although the evidence is not as clear as it might otherwise be, one of the reasons the officer asked the appellant to step out was because he wanted to isolate the odour of alcohol.
[12] Once the appellant stepped out of the truck and began speaking with the officer, Cst. LeBlue noted that the appellant’s eyes appeared to be “droopy, watery and glassy”. It was at this time the officer also asked the appellant to produce his driver’s licence and vehicle registration. As the appellant was trying to produce these documents, he checked various pockets in his clothing, and came out empty. Eventually, the appellant went back inside the truck and appeared to retrieve the requested documents from the console. At the same time, the appellant shut off the engine. According to Cst. LeBlue, it was during this exercise that the appellant dropped his keys in behind the console.
[13] In the cross-examination on this part of the narrative, Cst. LeBlue acknowledged that he did not describe the appellant’s actions as a form of “fumbling”. He also acknowledged that, had he observed any such fumbling, he would have included that observation in his notes and in his report. No such entry was made.
[14] Cst. LeBlue testified that, at one point, he asked the appellant to walk to the police vehicle. As the appellant did so, the officer observed that he had difficulty moving. Specifically, Cst. LeBlue testified that the appellant had a 2- to 3-inch sway as he walked, demonstrated unsure footing and showed a wide stance in his gait.
[15] At 3:30 a.m., Cst. LeBlue arrested the appellant for impaired care and control of a motor vehicle. By that time, he had spent roughly nine minutes at the scene.
[16] In cross-examination, Cst. LeBlue added some additional points not raised in his earlier testimony. Specifically, he added that the appellant appeared to comprehend his Charter rights (under the Canadian Charters of Rights and Freedoms) when they were read to him and did not slur words when he spoke. In fact, Cst. LeBlue gratuitously told defence counsel that the appellant’s speech was “fine”. Additionally, in response to a direct question from defence counsel, the officer acknowledged that he could not gauge the degree of impairment of an individual from the strength of the odour of alcohol.
Analysis: Standard of Review
[27] There is considerable jurisprudence, in Saskatchewan and elsewhere, on the approach an appellate court is required to follow. One such authority is the decision of this Court in R v Helm, 2011 SKQB 32, [2011] 6 WWR 641, where Popescul J. (as he then was) reviewed the relevant authorities on the application of s. 686(1)and (2), generally. With respect to the factual grounds for such an appeal, he wrote the following at para. 19:
19 On the factual grounds, the standard of review is whether there is evidence upon which a trier of fact, properly instructed, could reasonably reach the verdict. See R. v. Bigsky, 2006 SKCA 145, [2007] 4 W.W.R. 99 at para. 74; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; and R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168. The appellate court ought not substitute its own view of the evidence for that of the trial judge. However, the appellate court is entitled to review, re-examine and reweigh the evidence, but only for the purpose of determining if the evidence was reasonably capable of supporting the learned trial judge’s conclusion. See R. v. B. (R.H.), 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656.
[29] ... In Saskatchewan, these considerations were recently discussed by Barrington-Foote J.A. (ex officio) in R v Cramer, 2018 SKQB 298, 36 MVR (7th) 25 [Cramer], aff’d 2019 SKCA 118 (CA). In Cramer, Barrington-Foote J.A. specifically addressed the issue in the aftermath of the Supreme Court of Canada’s decision in R v Villaroman, 2016 SCC 33, [2016] 1 SCR 1000[Villaroman], and said the following at paras. 10-15:
13 With this foundation, Cromwell J. summarized the standard of review that applies when an accused appellant says a guilty verdict based on circumstantial evidence is unreasonable (at para. 55):
... the appellate court to re-examine and to some extent reweigh and consider the effect of the evidence. ...This limited weighing of the evidence on appeal must be done in light of the standard of proof in a criminal case. Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence. ...
[Emphasis added]
Analysis: Impairment of the Ability to Drive
[30] ... Be that as it may, there is no dispute that Stellato laid to rest this belief when it held that proof of “any degree” of impairment, in the ability to operate a motor vehicle, will be sufficient to establish the offence. In this respect, Labrosse J.A., for the court, wrote the following at p. 384:
In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.
[31] It is important to note that the “any degree of impairment” test specifically applies to an accused’s ability to operate a motor vehicle, and that the trier of fact must be satisfied that both elements have been proved, beyond a reasonable doubt, before a guilty verdict is rendered. In a circumstantial case, such as the present appeal, the question arises as to whether impairment in the ability to perform certain functions, other than driving, may also establish impairment of an accused’s ability to operate a motor vehicle. Three years after Stellato, the Alberta Court of Appeal, in R v Andrews, 1996 ABCA 23, 104 CCC (3d) 392[Andrews], addressed this question. In doing so, it described the approach a trial judge must take in assessing the impact of circumstantial evidence of impairment.
[32] In Andrews, the appellant was convicted of impaired driving and his summary conviction appeal was dismissed. According to the evidence, the appellant was seen speeding, making an abrupt lane change and making a right turn without signalling. When he was stopped, the appellant had a strong smell of alcohol on his breath, a flushed face, glassy and bloodshot eyes and a slight slur in his speech. He also appeared slightly off balance when exiting the vehicle. In other respects, the attending officers testified that the appellant’s actions were good, including coherence in the questions he asked. The trial judge focussed on the evidence of the degree of the appellant’s impairment, finding it sufficient to meet the test in Stellato.
[33] In a divided decision, the Court of Appeal allowed the appeal. The majority concluded that the trial judge had misapplied the analysis in Stellato. In particular, the majority felt that the trial judge directed his attention to the level of the appellant’s impairment, as opposed to its impact on his ability to operate a motor vehicle. Although this distinction was not clearly described in Stellato, the majority held that the distinction was crucial. In this respect, Conrad J.A., writing for the majority, said the following, at p. 399:
The courts must not fail to recognize the fine but crucial distinction between “slight impairment” generally, and “slight impairment of 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 may well 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 the individual’s functional ability is impaired to any degree. The question is whether the person’s ability to drive is impaired to any degree by alcohol or a drug. In considering this question, judges must be careful not to assume that, where a person’s functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired.
[34] Conrad J.A. went on, at pp. 404-405 ...
In my view the following general principles emerge in an impaired driving charge:
(1) the onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt;
(2) there must be impairment of the ability to drive of the individual;
(3) that the impairment of the ability to drive must be caused by the consumption of alcohol or a drug;
(4) that the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and
(5) proof can take many forms. Where it is necessary to prove impairment of ability to drive by observation of the accused and his conduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof be met. To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessing the evidence and arriving at the required standard of proof that the ability to drive is actually impaired.
[40] [In R v Landes (1997), 161 Sask R 305 (QL) (QB)] As for the four indices presented in evidence, Klebuc J. addressed each of them, namely: 1) manner of driving; 2) bloodshot eyes; 3) odour of alcohol; and 4) slurred speech. He concluded that none of these indices, taken individually, were capable of proving the requisite impairment. The manner of driving, including the speeding, failure to observe the stop sign and abrupt turn was not referable, in the context of the evidence, to impairment by alcohol, as opposed to any other cause. In this respect, Klebuc J. noted the acknowledgement, by the attending officer, that sober drivers can, and do, demonstrate similar driving behaviours. Similarly, he observed that the bloodshot eyes could be attributable to eye strain, fatigue or the mere consumption of alcohol, without any impairment of the ability to drive. Citing Alan D. Gold, Defending Drinking and Driving Cases (Toronto: Carswell, 1995), Klebuc J. observed that the strong smell of alcohol was only probative of the appellant having recently consumed a beverage containing alcohol. As for the slurred speech, Klebuc J. accepted that the trial judge could accept this evidence has some form of physical impairment induced by alcohol, but not, in the context of all the indicia, as proof of impairment of the ability to drive.
[41] In Cramer, Barrington-Foote J.A. followed a similar approach to the judgment in Landes. That said, the trial judgment raised fewer arguable indices of impairment.
[42] The facts in Cramer can be summarily described. In that case, the attending police officer observed the appellant travelling at speeds of 120 to 130 km/h in a 50 km/h zone that turned into a residential area in Regina. Eventually, the officer stopped the vehicle and asked the appellant to produce his driver’s licence and rental agreement for the vehicle. At trial, the officer testified that the appellant was fumbling around for the requested documents and eventually produced an Alberta driver’s licence. It was during this time that the officer could smell alcohol coming from the vehicle but could not determine which of the four occupants was the source of the odour. In answer to a specific question, the appellant told the officer that he had been drinking. After the appellant exited the vehicle, the officer noted that the strong odour of alcohol came from him. At that point, the appellant was placed under arrest. Evidence of a portion of the interaction with police was captured on video inside the police vehicle and at the police station.
[43] At para. 8 of Cramer, Barrington-Foote J.A. recited the portion of the oral judgment that contained the trial judge’s analysis. It reads as follows:
8 … The signs of impairment in this case that crucially were gathered before...the demand was made that I have found and accepted are as follows: (1) Mr. Cramer was driving at an estimated speed of 120 to 130 kilometres per hour in a residential 50 kilometre per hour zone; (2) Mr. Cramer admitted to drinking alcohol; (3) Mr. Cramer had trouble getting his driver’s licence out of his wallet, and; (4) the strong smell of alcohol coming from Mr. Cramer.
I find that Mr. Cramer had no problems with his balance, there was no slurred speech, and he did not have bloodshot eyes. The detention video audio of Mr. Cramer did not reveal any other obvious signs of impairment, other than showing that Mr. Cramer was nervous and concerned. I also find that Mr. Cramer was overall polite, cooperative, and followed instructions properly....
I find that the speed at which Mr. Cramer was driving the vehicle was significant evidence of poor judgment, and thus impairment. His driving was erratic when I consider that he admitted drinking, had trouble getting his driver’s licence out of his wallet, and smelled strongly of alcohol. It is referable to his impairment and not to mere negligence. A reasonable person would conclude that Mr. Cramer’s ability to operate a vehicle was...impaired by alcohol to a degree that was greater than slight.
[44] On appeal, the appellant’s appeal was allowed. The conviction was quashed and an acquittal was entered. In arriving at his decision, Barrington-Foote J.A. carefully followed the framework for the consideration of the circumstantial evidence presented at trial. In doing so, he was expressly mindful of the direction in Villaroman that an appellate court should defer to the trier of fact’s responsibility to distinguish reasonable doubt from speculation. Even so, Barrington-Foote J.A. could not accept that a conviction was the only reasonable conclusion to follow from the evidence. In this respect, he said the following at para. 28:
28 I am mindful of the direction in Villaroman that it is fundamentally for the trier of fact to draw the line that separates reasonable doubt from speculation and that their assessment can be set aside only where it is unreasonable. I am also mindful of the fact that the issue is not whether there are reasonable alternative explanations for the separate indicia that may signal impairment, but whether impairment was the only reasonable conclusion available on the totality of the evidence. However, with the greatest respect, it is my opinion that it was not reasonable for the learned trial judge to conclude that the evidence as a whole excluded all reasonable alternatives to a finding that the appellant was impaired. The evidence as a whole left open the plausible alternative that the accused fumbled because he was nervous, exuded a strong smell due to recent consumption, and was speeding because drivers sometimes speed.
Analysis
[45] In the case on appeal, the trial judge made several findings of fact related to the evidence, or absence of evidence, as to whether the appellant was impaired. In no particular order, these findings are as follows:
a. the appellant did not slur his speech;
b. the appellant did not fumble when he was looking for licence and registration documents;
c. the appellant was not “staggering” when he walked, despite there being evidence of “slipping” possibly attributable to icy conditions;
d. the appellant had glassy and watery eyes;
e. the appellant had difficulty walking, demonstrating a wide and unusual gait when he walked to the police vehicle;
f. the appellant presented with a strong odour of alcohol;
g. the appellant’s vehicle was parked “in a snowbank” with the driver’s side door wide open and garbage strewn about on the ground;
h. the appellant was found “passed out” and “slouched” in the driver’s seat in the truck, which was parked in front of the appellant’s own house;
i. the civilian witness, Mr. Hamilton, was of the opinion that the appellant was “drunk”;
j. after exiting the truck, the appellant climbed back in when he saw Cst. LeBlue approaching, following which the appellant did not respond to the officer when he tapped on the window in the driver’s side door; and
k. the appellant dropped his keys behind the truck console.
[52] From the findings of fact made by the trial judge, he appears to have identified seven particular findings as signs of impairment presented by the appellant. These findings were :
a. glassy and watery eyes;
b. strong odour of alcohol;
c. wide and unusual gait;
d. difficult to awaken;
e. parked in a snowbank with the door open and garbage on the ground;
f. climbing back in the truck when the police officer approached; and
g. dropping keys behind the truck console.
[53] In identifying these findings, the trial judge did not bridge the crucial distinction, discussed in Andrews, between general signs of impairment and impairment of the appellant’s ability to drive. Put another way, 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. In my view, 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 new trial.
[55] The more pressing question is whether, in allowing the appeal, this Court should acquit the appellant, instead of ordering a new trial. As stated in Landes, that question calls for this Court to examine the totality of the evidence and determine whether a properly instructed jury or trier of fact could have concluded that the appellant was guilty of the offence as charged. Perhaps more accurately, and having regard to the direction in Villaroman, the question is whether the circumstantial evidence of impairment gives rise to reasonable inferences other than guilt.
[57] Without lapsing into speculation, I am satisfied there were plausible explanations available to the trial judge, even for some of the more unusual items of evidence. For example, and as noted in Landes, the presence of a strong odour of alcohol is evidence only of recent alcohol 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 deep sleep, are reasonably explicable by circumstances other than impaired ability to drive. They may reasonably be attributable to fatigue, as would 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 inept parking of a truck, dropping garbage on the ground or attempting to ignore a police officer) may well equate to some form of functional impairment. Such impairment, however, may not impact one’s ability to operate a motor vehicle. Moreover, such impairment may not even be attributable to alcohol. Lack of sleep, or irregular sleep, cannot reasonably be discounted in this analysis.
[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 all reasonable alternatives to the finding that the appellant’s ability to operate a motor vehicle was impaired.
Conclusion
[60] In the result, the appeal is allowed. The appellant’s conviction is quashed and a verdict of acquittal is entered.
R v Czechowski, 2020 BCCA 237
[August 13, 2020] – Bail Pending Appeal: Crown Application to Revoke Bail Pending Appeal following New Charge [Mr. Justice Butler]
AUTHOR’S NOTE: Once the presumption of innocence is gone, bail is more difficult to obtain. As one would expect, if a person is alleged to have committed a new offence while on such a release, resisting an application to revoke bail is more difficult. However, this decision adopts prior jurisprudence to bring some focus on the public safety component in the analysis. Herein, the Appellant was able to continue on bail with more restrictions on his liberty. The driving factors were a distant record for similar offences and no allegation of physical violence in the new alleged offence.
Overview
[1] BUTLER J.A.: On May 16, 2018, Jeremy Czechowski was convicted of four offences in connection to a sexual encounter with the complainant in February 2016. He appealed those convictions and obtained judicial interim release from this Court pending the determination of his appeal. The appeal was heard on June 16, 2020, and judgment is currently under reserve.
[2] On August 5, 2020, Crown received a sworn Information charging the appellant with uttering threats. Pursuant to ss. 679(3) and 524(2) of the Criminal Code, R.S.C. 1985, c. C-46, Justice Griffin issued a warrant for Mr. Czechowski’s arrest on August 7, 2020. The appellant was arrested and the Crown now applies to revoke bail. Mr. Czechowski opposes the application and seeks his release. However, he acknowledges that the new charge has changed the circumstances and submits that it would be appropriate to modify the terms of bail to satisfy concerns arising from the new charge.
Factual Background
[4] In reasons indexed as 2018 BCSC 1646, Justice Ball convicted Mr. Czechowski of one count of sexual assault causing bodily harm; one count of unlawful confinement; one count of choking with intent to enable himself to commit an indictable offence; and one count of uttering threats. He received a global sentence of five years’ imprisonment.
[6] On August 5, 2020, Crown counsel received the Information sworn in relation to the appellant, charging him with uttering threats. The offence is alleged to have taken place on August 3, 2020. Crown also received a copy of the narrative portion of a report to Crown counsel, which has been provided to the Court. The report outlines the complainant’s statement to the police. She met the appellant through a mutual friend. On August 3, she says she attended a gathering on the Enderby River with a group of people, including the mutual friend and the appellant. The complainant left the group when the partying became too rowdy for her but inadvertently left her car key in the appellant’s truck. When she spoke with the appellant on the phone, she alleges he threatened to kill her and kidnap her child. The report also attaches a copy of a Facebook message from the appellant to the complainant in which he states, “I know where you live” and “[it’s] on now”. The complainant says that she is afraid of the appellant.
Law of Revocation
[9] As the warrant was issued, the question that now arises is whether the appellant should be released again. The proper approach to the consideration of this issue is set out in R. v. Mehan, 2016 BCCA 129 and R. v. Joe, 2017 YKCA 1. The recent amendments to s. 679 of the Criminal Code have not altered that approach.
[10] In deciding whether an appellant can be released again, the factors to be considered are those set out in s. 679(3)–(4) as opposed to the grounds listed in s. 515(10). This is, in part, because the benefit of the presumption of innocence no longer inheres to the appellant, and he must be considered guilty for the purposes of the application: R. v. Oland, 2017 SCC 17 at paras. 19, 35. As explained in Joe at paras. 30–31, bail pending appeal raises different considerations than pre-trial bail:
[30] But bail pending appeal engages different considerations, and is governed by different factors, as noted above at Paragraph 25. In my view, it would be incongruous to have the factors set out at section 679 apply at an appellant’s initial application for bail pending appeal, and then, in the event of a breach, revert to the pre-trial bail framework in deciding whether that appellant should be released again pending the hearing of the appeal.
[31] Subsection 679(6) incorporates subsection 525(7) by reference, but the wording of the provision includes an important caveat: subsection 525(7) applies “with such modifications as the circumstances require”. In my view, one modification that the circumstances require is that in deciding whether an appellant can be released again, the factors to be considered are those set out at subsections 679(3) and 679(4) as opposed to the grounds listed at subsection 515(10).
[12] The appellant bears the onus of establishing the three criteria set out in s. 679(3). In the present case, the first two criteria are not in issue. Bail would not have been ordered by this Court if those criteria were not met. The question is whether the appellant has satisfied the onus of showing that his detention is not necessary in the public interest given the recent charge.
[16] In Mehan, at para. 29, Justice Donald set out a list of non-exhaustive factors to apply in assessing whether further release of the applicant would be contrary to the public interest. In doing so, he was concerned primarily with the public safety component of the public interest. As the public safety component is the primary consideration here, I will examine those factors below.
Analysis
[19] I will start my analysis by applying the factors outlined in Mehan to the circumstances here.
Is the offence charged in the same class as the index offence?
One of the convictions under appeal is for uttering threats to cause death or bodily harm to the complainant, contrary to s. 264.1(1)(a). While the circumstances of the new charge do not involve a sexual element, the appellant now stands charged with the same offence.
Are the circumstances alleged in direct contravention of a specific term of the release order?
The appellant is not charged with a contravention of a specific term of a release order. Nevertheless, the uttering threats charge can be seen to contravene the term requiring the appellant to keep the peace and be of good behaviour.
Does the appellant have a record of offences similar to the charge?
The appellant does have a dated conviction for uttering threats from 2003. His other convictions are unrelated, with the exception of the index offences. As appellant’s counsel notes, the appellant received a suspended sentence for the 2003 charge from which I can infer that the threat was at the less serious end of the spectrum. I cannot say that the appellant’s record establishes a pattern of similar behaviour.
What is the gravity of the allegations?
An allegation of threatening to cause death or bodily harm is serious. However, it is attenuated somewhat by the fact that the threat was allegedly made over the phone to someone who is not a close acquaintance and little information is provided regarding the surrounding circumstances.
Has there been any difficulty with bail compliance?
The appellant has been on bail pending appeal or disposition of the appeal for almost two years without any difficulties. He was also on bail for a lengthy time leading up to trial. He does have a record of two breaches of an undertaking or recognizance, including one for failing to report as required in 2016, and one breach of an undertaking in 2010.
Is there any allegation of violence in the commission of the offence?
The allegations against the appellant do not involve any physical violence.
[20] I am satisfied that the application of these factors to the circumstances of this case raises real concerns regarding the protection and safety of the public. The new charge changes the circumstances from those existing when the current release order was made. As a result, the question of whether the safety of the public can be met without detention requires reconsideration. Absent any alteration to the terms of the release order, I would not have been persuaded by the appellant that his detention was not warranted.
[22] When I approach the question of public safety contextually and practically, I would make these observations. First, the new charge raises a concern of public safety that is directed at one individual. It did not involve physical violence, but it did involve a serious threat. The circumstances of the charge, while much closer to one of the index offences than the situation in Mehan, are of an entirely different character, and are less serious.
[24] Although I am satisfied that the change in conditions meets the public safety concerns, I must still consider the maintenance of the public’s confidence in the administration of justice. As noted in Oland, the two concerns do not operate in silos. Nevertheless, if the public safety concerns arising from the new charge are satisfied by the imposition of additional conditions to the release order, it is my view that the public confidence consideration is also satisfied. Accordingly, I am satisfied that the appellant’s detention is not necessary in the public interest.
Disposition
[25] I dismiss the Crown’s application to revoke the appellant’s bail pending determination of the appeal. The conditions attached to the release order are varied to: increase the amount of the cash deposit to $20,000; increase the hours of curfew so that the appellant shall not be found outside his residence between the hours of 7:00 p.m. and 6:00 a.m. (condition (d)); and add the complainant to conditions (l) and (m) of the conditions of the recognizance.
