File #0584/01

COURT OF ONTARIO
SUPERIOR COURT OF JUSTICE
(Central West Region)
at Guelph

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

- and -

JOHN DAVID OLIVER

Appellant

APPELLANTS FACTUM

PART I: STATEMENT OF THE CASE

1. The Appellant was tried at Cambridge, before the Honourable Mr. Justice N.

Douglas of the Ontario Court of Justice, on November 4th, 2002, on his plea of not guilty

to an Information charging that he:

on or about the 9th day of March in the year 2001 at the Township of West
Garafraxa while his ability to operate a motor vehicle was impaired by alcohol or
a drug, operated a motor vehicle, contrary to section 253(a) of the Criminal Code.

And further that he:

on or about the 9th day of March 2001 at the Township of West Garafraxa
operated a motor vehicle having consumed alcohol in such a quantity that the
concentration thereof in his blood exceeded 80 milligrams of alcohol in 100
millilitres of blood contrary to section 253(b) of the Criminal Code.

Information, Appeal Book, p.5

2. The "over 80" charge was dismissed by the trial judge at the conclusion of the

Crown's case. The Appellant was found guilty of the charge of impaired driving. The

Appellant was sentenced to a 15 month driving prohibition and a fine of $1000. The

Appellant appeals against conviction and sentence.

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PART II: SUMMARY OF THE FACTS

A. Overview

3. The Appellant was involved in a three-car collision on the evening of March 9 th,

2001. Shortly after the accident, the police arrived to investigate. The Appellant, who

remained on the scene, was arrested for impaired driving and was read the demand for a

breath sample. He was taken to the police station and provided samples of his breath as

required. A charge of "over 80" was added. At trial, the Crown's evidence was considered

on a Charter application to exclude the breathalyzer readings. The Crown called a total of

five witnesses: (1) Jason William Douglas, a good samaritan who saw the Appellant

driving earlier, then later heard the accident take place and attended the scene; (2) Paul

Douglas, the driver of the first car the Appellants vehicle struck; (3) Robert Hagey, the

driver of the second vehicle the Appellants vehicle struck; (4) Constable Dolderman, the

investigating officer in regard to the criminal charges; and (5) Constable Florio, the

officer who investigated the accident scene. A statement made by Dave Bittorf, a witness

to the accident, who first called police, was read in. The Crown intended to rely upon

certificate evidence to prove the "over 80" charge. The Appellant testified on the Charter

application. The Charter application was successful and Exhibit A, the breathalyzer

results, were excluded from the trial. The charge of over 80 was dismissed by the trial

judge upon the conclusion of the Crowns case. The rest of the evidence heard on the

voir dire, including the testimony of the Appellant was, on consent, applied to the trial

proper. Subsequently the Appellant further testified in his own defence.

B. Events of March 9th, 2001

4. At approximately 4:00 o'clock in the afternoon of Friday, March 9 th, 2001 the

Appellant, after finishing work, went to Jesses Bar and Grill in Guelph with a co-worker.

The Appellant left at approximately 6:45 that evening, after having had three beers. He

started the drive home from Guelph to Orangeville. On the way, at approximately 7:15,
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on County Road 18, the Appellant was involved in a motor vehicle collision involving

three cars: his own van, a car driven by Paul Douglas and a car driven by Robert Hagey.

Paul Douglas and Mr. Hagey were both travelling about 80 kilometers per hour

westbound at the time of the accident. The Appellants van, which was traveling east,

crossed the centre line and clipped the rear view mirror of Paul Douglass car, which was

travelling west. The Appellants car then collided with Mr. Hageys automobile, which

was also travelling west. It was conceded that the point of impact was within Mr. Hagey's

lane. Both the Appellants and Mr. Hageys vehicles suffered extensive damage.

J. Oliver, Transcript, p. 83, l. 15 p. 84, l. 27

P. Douglas, Transcript, p. 14, l. 16 p. 15, l. 15
R. Hagey, Transcript, p. 23, l. 16 p. 24, l. 16
Admission, Transcript, p. 75, l. 19 - p. 77, l. 22

5. Just prior to the accident Jason Douglas, who was travelling east on County Road

18, noticed a car behind him attempting to pass his vehicle. When the accident occurred

Jason Douglas pulled over and attended the scene of the collision to see if he could render

any assistance. Mr. Douglas saw the Appellant in his van. The Appellant seemed dazed

and confused, and made some comments about not knowing what had occurred, his air

bags going off, and his door being stuck. Jason Douglas concluded that no one was

seriously injured and left the scene.

J. Douglas, Transcript, p. 4, l. 30 p. 12, l. 25

6. Jason Douglas had testified in chief that the Appellant had been driving

"somewhat erratically" behind him. He explained further, however, that by this he meant

that the Appellant appeared to be trying to pass him. The Appellant would pull up behind

him, then move towards the centerline as if to begin to pass, but then would return fully

to his own lane and drop back from Jason Douglas' car. County Road 18 is a two-lane

highway with gravel shoulders. Jason Douglas testified that it was dark outside at the
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time of the events. In cross-examination, Jason Douglas re-characterized the driving as

"aggressive" effort to pass him rather than as "erratic". He also characterized this sort of

an aggressive effort to pass as "not behaviour that I would say I haven't seen at other

times". He linked the characterization of the driving as "aggressive" to his recollection

that the Appellant, in the aborted effort to get past him, would come up to within two to

three car lengths behind him. After being shown his statement to the police, in which he

said that the Appellant was six car lengths behind him, Jason Douglas conceded that his

recollection as recorded in the statement, and not his evidence at trial, was accurate. He

also agreed he had never said that the Appellant's driving was erratic or aggressive in the

statement made at the time.

J. Douglas, Transcript, p. 4, l. 28 p. 5, l. 27; p. 9, l. 12 - p. 11, l. 6

7. At the time of the accident, the Appellant was still driving behind Jason Douglas

as he had not managed to complete the pass. Jason Douglas he heard a bang behind him

and looked into his rear view mirror to see the Appellant's vehicle headed towards the

shoulder of the road.

J. Douglas, Transcript, p. 5, l. 28 -p. 6, l. 12

8. When Jason Douglas walked back to the Appellant's vehicle, he noted that the

front end on the driver's side had sustained extensive damage. His assessment that the

Appellant was not injured was based on his observation that the Appellant was coherent,

was able to move and "all his limbs were working". In chief, Jason Douglas testified that

the Appellant told him he did not know what had happened. In cross-examination, Jason

Douglas acknowledged that he had told the police that he asked the Appellant, "What the

hell happened" and at the Appellant responded, "My air bags went off and my door

stuck". This conversation took place within a minute of the collision and Jason Douglas
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testified that after the serious accident, "it would be understandable" if the Appellant was

dazed and confused.

J. Douglas, Transcript, p. 6, ll. 13-30, p. 11, l. 6 - p. 12, l. 24

9. Jason Douglas did not notice an odour of alcohol on the Appellant nor any slurred

speech.

J. Douglas, Transcript, p. 9, ll. 4-11

10. Dave Bittorf, whose statement to the police was read in at trial, told Constable

Florio, that just after the accident he spoke to the Appellant, who seemed "somewhat

confused". The Appellant told him he had a couple of beers approximately two hours

before the accident. He further told Mr. Bitterdorf that he had no recollection of what

had happened. He only remembered that his air bags went off, and he did not know if he

had hit any other vehicles.

D. Bittorf, Transcript, p. 56, ll. 1 30

11. Paul Douglas, the driver of the car that had its mirror clipped by the Appellants

van, testified that after the accident the Appellant approached him and Mr. Hagey and

spoke to them briefly. He testified that the Appellant said to him, I must have dozed off,

but immediately qualified his evidence in this regard by adding, "or something to that

effect and, you know, it didn't really, you know, take a lot of attention after that what he'd

said". The Appellant inquired whether he and Mr. Hagey were all right. He testified that

the Appellant was anxious and very quick moving. However, Paul Douglas did not notice

any slurred speech, difficulties walking or odour of alcohol. Paul Douglas's vehicle

suffered very little damage except to the rear view mirror. Paul Douglas said it was dusk,

or getting dark out, at the time of the accident.

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P. Douglas, Transcript, p. 17, l. 5 p.18, l. 29, p. 21, ll. 1 - 23

12. Robert Hagey, the driver of the more seriously damaged vehicle, also testified that

the Appellant had approached him and asked him if he was all right. Mr. Hagey testified

that the Appellant then said, "well I must have dozed off or something to that effect". The

Appellant then walked back to his own vehicle, which was about 100 yards down the

road. Mr. Hagey testified that it was dark out at the time of the accident. When asked if he

had noticed whether the Appellant had been drinking, Mr. Hagey answered that he did not

but that, "I didnt really have all my wits together at that time, right at that moment

either." In cross-examination, Mr. Hagey agreed that it took "some time" before he had

gathered his wits after the accident.

R. Hagey, Transcript, p. 23, ll. 26-28; p. 25, l. 5 p. 26, l. 10; p. 27, ll. 7-13

13. Constable Dolderman of the Ontario Provincial Police arrived at the accident

scene at 7:39 that evening. He testified that it was "a little dark" out and he turned on his

cruiser light to ensure the area was lit to prevent further accidents. After he had spoken

with Mr. Hagey, Cst. Dolderman saw the Appellant approach him from his van. The

Appellant's van was about 200 meters down the road from the Hagey vehicle. The

Appellant volunteered in, apparently one sentence, I am the driver of the yellow van, I

caused the accident, and I also had a couple of beers two hours ago. Cst. Dolderman

testified that he noticed the Appellant had "a slurring in his words", and that as he moved

closer to the Appellant he could smell alcohol on the Appellant's breath. He testified that

the Appellants eyes were watery and that the Appellant was unsteady on his feet. Cst.

Dolderman testified that when he asked the Appellant to produce his drivers licence, he

initially produced his health card, but on a second request provided him with the proper

identification. At 7:45, Cst. Dolderman formed the opinion that the Appellant was
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"impaired by the consumption of alcohol",1 and placed him under arrest. Cst. Dolderman

did not give evidence of any further observations, after the arrest, in regard to the alleged

impairment of the Appellant. In the view of Cst. Dolderman, the Appellant did not require

medical attention and exhibited no signs of injury.2 He acknowledged that persons

involved in serious accidents are sometimes in shock or groggy, but he never asked the

Appellant whether he was injured. He took the Appellant to the police station for the

breath tests. Cst. Dolderman testified that the Appellant did not seem confused about the

accident itself, but expressed concern about the valuable equipment belonging to his

employer that had been in the van. Cst. Dolderman claimed that the Appellant did not

exhibit any emotional trauma at all as a result of the accident.

M. Dolderman, Transcript, p. 28, ll. 24 27, p. 31, l. 27 p. 32, l. 20, p. 39, ll. 10-18, p. 47, l. 23
p. 48, l. 11, p. 50, l. 25 p. 53, l. 15

14. At the time of his arrest, the Appellant was informed of his right to counsel. The

breath readings were excluded from evidence after an infringement of s. 10(b) of the

Charter was found, on the balance of probabilities, by the trial Judge. The evidence on

the Charter voir dire was applied, on consent, to the trial proper. The Charter violation

flowed from an entry in Cst. Dolderman's notebook that when asked if he understood the

right to counsel, the Appellant had answered "no", and, further, that when asked if he

wanted to speak to a lawyer, the Appellant indicated "yes". The officer did not make any

effort to further explain the Appellant's rights after the answer that he did not understand

them. Further, the Appellant had not been put in touch with a lawyer when he arrived at

the police station. Cst. Dolderman testified that he believed that he had wrongly recorded

the Appellant's responses in his notes. However, the basis for his belief was his own

1 Cst. Dolderman did not testify that he ever formed the more relevant opinion, that the Appellant's ability
to operate a motor vehicle was impaired by the consumption of alcohol.
2 Cst. Dolderman gave evidence to the effect that Mr. Hagey, similarly, did not claim to be, or appear to be,
injured. Mr. Hagey had testified that he had taken sometime to regain his wits. (p. 50, ll. 16-24)
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failure to act consistently with the responses by, (1) making further efforts to ensure that

the Appellant understood his s. 10(b) rights, and (2) putting the Appellant into contact

with a lawyer. The trial Judge found that while Cst. Dolderman believed in the validity of

the logic he employed to reconstruct the event, he had no actual recollection that events

had proceeded contrary to the manner in which they were recorded in his notes. 3 The trial

Judge also found that, contrary to Cst. Dolderman's belief, he may have recorded the

Appellant's answers accurately, but then failed to take the further steps required by the

Charter. The trial Judge had some doubt that the Appellant understood his Charter rights.

M. Dolderman, Transcript, p. 32, l. 21 - p. 34, l. 25; p. 40, l. 2 - p. 47, l. 22

Ruling, Transcript, p. 71, l. 11 - p. 73, l. 9

C. Defence Evidence

15. The Appellant testified on the Charter application and this evidence was admitted,

on consent, on the trial proper. After the close of the Crown's case, the Appellant retook

the stand and gave further evidence on the trial proper in his own defence. On the

Charter application, the Appellant's evidence was directed at his lack of understanding of

his s. 10(b) rights. The effort to establish lack of understanding was by way of, (1)

evidence that the Appellant was a complete neophyte in terms of police involvement, and

(2) that the accident had caused some transitory impairment of his cognitive functioning.
The latter evidence would also be relevant to the issue of impairment and the use to be

made of the Appellant's statements at the roadside.

16. The Appellant testified that, at the time of his interaction with Cst. Dolderman, he

was feeling "stressed out" as well as "confused, groggy, disoriented". The air bags in his

van had been released by the accident. They hit him on the upper torso and face and

3 The purpose for the inclusion of this aspect of the trial process is not to gratuitously point out a Charter
breach relevant to the result on the other count. Rather, this evidence of expressed lack of understanding is
relevant to the Appellant's later submissions in respect of the limited use that could be made of all of the
Appellant's statements at the roadside.
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caused him to be thrown back. He felt the impact of the collision almost immediately.

This impact was still operative when he was at the police station. The Appellant testified

that, while at the station, he remained, "confused, very stressed out, disoriented and still a

little groggy from the whole event." Everything had happened so quickly and that he felt

the "weight of the world" on his shoulders. He could not say that he fully understood the

implications of what was happening.

J. Oliver, Transcript, p. 58, l. 13 - p. 61, l. 3; p. 64, ll. 19-26

17. The Appellant agreed that after the accident, he managed to walk about 200 feet

to Mr. Hagey's vehicle and ask Mr. Hagey if he was injured. Mr. Hagey appeared to be

"okay".4 The Appellant managed to walk the 200 feet back to his vehicle and, knowing

that someone had called the police, sat and waited for the police to arrive. The Appellant

acknowledged that despite his feeling confused, groggy and disoriented, his "first

reaction" was to check and ensure the other driver was "okay" as he was concerned

someone could be "dying or bleeding to death".

J. Oliver, Transcript, p. 62, ll. 8-27; p. 68, ll. 6-13

18. As to the events leading up to the accident itself, the Appellant testified that he

had started work at 7:30 or 8:00 in the morning. It was a Friday and he and his colleague

went to the bar at 3:30 or 4:00 that afternoon. The Appellant had eaten lunch at the job-

site and had eaten a meal while at the bar. He drank three bottles of Rickard's Red beer.

His colleague left the bar at approximately 6:00 or 6:30 and the Appellant stayed a further

10 to 15 minutes, at most. They had been playing pool from the time of their arrival until

about 6:00 o'clock. The Appellant had not been drinking earlier during the day or the

evening before.

4 This is to be contrasted with Mr. Hagey's evidence that at the time of this conversation with the Appellant
he did not have his wits about him.
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J. Oliver, Transcript, p. 80, l. 4 p. 81, l. 3; p. 82, l. 27 - p. 85, l. 25

19. The Appellant left the bar at "approximately 6:30". He was "debating" passing the

Jason Douglas vehicle and moved towards the center of the road a couple of times.

However, as this was one of the first occasions on which he had driven on this road and it

was dark outside, he decided it would be unwise to pass and backed off. The Appellant

testified that, at that point, a valuable piece of equipment that had been sitting on the

passenger's seat, fell off the seat and onto the floor. The equipment, an "Optimax", was

for use in connecting fibre optic cable. It was in a padded carrying bag. The van was

loaded with supplies and equipment and the Appellant had decided that the Optimax

would be safe on the passenger seat in its padded bag. He conceded that he could not say

why the Optimax fell at that given moment without speculating. He wanted to see if it

had been damaged and whether it was still secure in the padded bag. The Appellant

testified that, as it was dusk and not pitch black, he saw that the Optimax was not sitting

right and wanted to reposition it by sitting it upright. He took his eyes off of the road

briefly to do so. He grabbed the bag by the two handles and sat the Optimax upright on

the floor.

J. Oliver, Transcript, p. 81, l. 4 p. 81, l. 26; p. 85, l. 25 - p. 87, l. 26; p. 88, l. 14 - p. 91, l. 25

20. While the Appellant was attending to the Optimax, his car clipped the rear view

mirror on Paul Douglas' car. The sound of the contact caused the Appellant to jerk

himself up suddenly. In doing so, he banged his head against the driver's side window or

doorframe. He was dazed by the blow and ploughed into Mr. Hagey's vehicle. The

collision caused his air bag to be deployed, which again smashed his head against the

doorframe. He testified that he felt a little groggy, as a result of the collision. The

Appellant denied that the alcohol that he had consumed had impaired his ability to drive
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the van.

J. Oliver, Transcript, p. 81, l. 26 p. 82, l. 25; p. 91, l. 27 - p. 93, l. 3

21. The Appellant agreed in cross-examination that the Jason Douglas vehicle in front

of him was travelling at about 80 kilometers per hour and that this was the posted speed

limit. He further agreed that he was in no particular rush to get home. He was asked why

he had even considered passing. The Appellant answered that he could not say for sure,

but surmised that Jason Douglas might have slowed down for a while then picked up his

pace again. He conceded that he could not now articulate the rationale he had held back

at the time of the event, but said he had felt "it would be better to pass him".

J. Oliver, Transcript, p. 87, l. 27 - p. 88, l. 9

22. After the accident, the Appellant had to use the passenger side door of the van to

exit his vehicle. The Appellant had not been feeling tired and did not fall asleep at the

wheel. He acknowledged that he did not tell the other witnesses about the Optimax

falling while he was at the scene in the period immediately after the accident. In fact, he

did not even recall speaking to Paul Douglas. He agreed he told Mr. Hagey that he might

have dozed off. He explained that as a result of the blows to his head, he was dazed and

confused in the period right after the accident and gave the only explanation that he could

offer at the time. It was not until the next day that he clearly recalled the exact sequence

of events leading to the accident.

J. Oliver, Transcript, p. 88, ll. 10-13; p. 93, l. 3 - 97, l. 4

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PART III: ISSUES AND THE LAW

A. The Erroneous Finding of Concoction

23. It is respectfully submitted that the trial Judge erred in finding that the Appellant

had concocted his evidence and, as a consequence, using the conclusion of concoction as

independent evidence of guilt. The relevant portion of the Judgment is as follows:

I was left with the definite conclusion that this accused was trying to come up
with an explanation from what really happened. And so, while at the end of the
Crown's case, in my opinion, it was a strong case of impairment, using the
Stellato test, after the accused gave evidence, the Crown's case became stronger,
in my view. And therefore, I find that the Crown has proven that on the 9 th of
March, 2001, the accused's ability to operate motor vehicle was impaired by
alcohol and that he drove a vehicle in that state, and therefore is guilty of count
number one.

Reasons for Conviction, Transcript, p. 107, ll. 13-25

24. It is respectfully submitted that the evidentiary foundation in this case was not

such as to support the extraordinary step of the use of rejection of the defendant's own

evidence as positive evidence of guilt. While a statement by a defendant, whether in

evidence at trial or an out of court statement, can be used as a positive evidence of guilt,

the circumstances in which such use is permitted are rare. There are sound reasons to

maintain the very narrow scope of the rule. In R. v. Coutts, Doherty J.A., articulated the

importance of a restrictive approach as follows:

13 This court has repeatedly drawn a distinction between statements made by

an accused (or the testimony of an accused), which are disbelieved and,
therefore, rejected and those statements or testimony which can be found to be
concocted in an effort to avoid culpability. The former have no evidentiary value;
the latter can constitute circumstantial evidence of guilt: R. v. Davison, DeRosie
and MacArthur (1974), 20 C.C.C. (2d) 424-428 (Ont. C.A.), leave to appeal to
S.C.C. refused, [1974] S.C.R. viii; R. v. Mahoney (1979), 50 C.C.C. (2d) 380
(Ont. C.A.) at 389, affirmed without reference to this point (1982), 67 C.C.C.
(2d) 197 (S.C.C.); R. v. Sandhu (1989), 50 C.C.C. (3d) 492 (Ont. C.A.) at 499-
501; R. v. Levy (1991), 62 C.C.C. (3d) 97 (Ont. C.A.) at 100-103; R. v. Witter
(1996), 105 C.C.C. (3d) 44 (Ont. C.A.) at 52-53. In an oft-quoted passage from
Mahoney, supra, Brooke J.A. said, at p. 389:
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If the jury accepted the evidence of the Crown witnesses that the
appellant was the killer, disbelief of the appellant's denial was inevitable,
but that disbelief could not be treated as an additional item of
circumstantial evidence to prove guilt. In my view, the jury ought not,
routinely, to be instructed with respect to the inferences that may be
drawn from the fabrication of a false alibi in the absence of a proper
basis for that instruction, as for example, where there is extrinsic
evidence of fabrication, or where the appellant has given different
versions as to his whereabouts, one of which must be concocted.
[Emphasis added.]

14 The words of Brooke J.A. apply with equal force to statements made by an
accused which are not in nature of an alibi, e.g. see R. v. Levy, supra; R. v.
Sandhu, supra.

15 This distinction between statements which are disbelieved and, therefore,

rejected and those which can be found to be concocted and capable of providing
circumstantial evidence of guilt cannot be justified as a pure matter of logic. In
many, if not most cases, the inference of concoction flows logically from the
disbelief of an accused's statements or testimony. The distinction made in
Mahoney is, however, fully justified and, indeed, essential to ensure that the trier
of fact properly applies the burden of proof in cases where statements of an
accused are tendered or an accused testifies. If triers of fact were routinely told
that they could infer concoction from disbelief and use that finding of concoction
as evidence of guilt, it would be far too easy to equate disbelief of an accused's
version of events with guilt and to proceed automatically from disbelief of an
accused to a guilty verdict. That line of reasoning ignores the Crown's obligation
to prove an accused's guilt beyond reasonable doubt. By limiting resort to
concoction as a separate piece of circumstantial evidence to situations where
there is evidence of concoction apart from evidence which contradicts or
discredits the version of events advanced by the accused, the law seeks to avoid
convictions founded ultimately on the disbelief of the accused's version of
events: R. v. Tessier (1997), 113 C.C.C. (3d) 538 (B.C.C.A.), per Ryan J.A. at
556, per Southin J.A. at 561; R. v. Pleich (1980), 55 C.C.C. (2d) 13 (Ont. C.A.).

16 The principle set down in Mahoney and repeatedly accepted by this court is
sound. An instruction that the trier of fact may find that a statement made by an
accused or the testimony of an accused is concocted and, therefore, capable of
constituting circumstantial evidence of guilt should only be given where there is
some evidence of actual concoction. Evidence that supports the case for the
Crown, which if accepted would result in the rejection of accused's evidence as
unworthy of belief, should not be equated with evidence of concoction.

17 If the jury accepted the Crown expert's evidence, they would reject the
appellants' version of where the fire started. The instruction that the jury could go
on from that rejection to a finding of concoction and infer guilt from that
concoction amounted to an instruction that the jury could convict based on the
expert's evidence and the inevitable disbelief of the appellants' stories which
would flow from the acceptance of the Crown expert's evidence. This is the exact
danger which prompted the limiting of this kind of instruction to cases where
there is evidence of actual concoction as opposed to evidence which could
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compel rejection of the accused's version of events.

18 The consciousness of guilt instruction based on a finding of deliberate

concoction should not have been given. It amounted to misdirection and
constituted an error in law.

R. v. Coutts (1998) 126 C.C.C. (3d) 545 at pp. 550 552 (Ont. C.A.)

See also:

R. v. Blazeiko (2000), 145 C.C.C. (3d) 557 (Ont. C.A.)

R. v. Price (2000), 144 C.C.C. (3d) 343 (Ont. C.A.)
R. v. Witter (1996), 105 C.C.C. (3d) 44 (Ont. C.A.)

25. It is respectfully submitted that an inconsistent statement alone cannot compel,

without more, a conclusion of concoction. It might quite properly impact upon the

assessment of the credibility of the witness without necessarily driving a conclusion that

the witness was lying. It is submitted that this assertion would seem almost beyond

question. The criminal justice system would no doubt misfire much more routinely, in

both directions, if mere inconsistency routinely compelled a conclusion of intentional

dishonesty. The defendant is not an ordinary witness. The rules governing a finding of

concoction by a criminal defendant are engaged in only clearly articulated circumstances.

26. The inconsistencies between the Appellant's evidence at trial and the roadside

statements provided a classic example of when a finding of concoction is not permissible.

Before the proven existence of prior inconsistent statements can be permitted to drive a

finding of concoction by a criminal defendant, as was made clear in Mahoney, the

circumstances must be such that it is beyond question that one of the statements was

concocted. In this case, it was far from the case that either one or the other of the

statements at issue was concocted. In fact, there was absolutely no circumstance on the

record of this trial that came even close to establishing the foundation for a permissible

inference of concoction.

R. v. Mahoney (1979), 50 C.C.C. (2d) 380 at 389 (Ont. C.A.); affirmed without reference to this
point (1982), 67 C.C.C. (2d) 197 (S.C.C.)
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B. Misapprehensions of the Evidence and Unreasonable Findings of Fact

27. It is respectfully submitted that the reasons for conviction are replete with

misapprehensions of the evidence and unreasonable findings of fact. Some of these errors

went to the conclusion of impairment while others were used to reject the Appellant's

evidence. Some were used for both purposes.5

28. It is respectfully submitted that a misapprehension of the evidence or

unreasonable finding of fact will necessitate a new trial when it results in a miscarriage of
justice. The relationship between misapprehensions of evidence and the miscarriages of

justice was explored in R. v Morrissey, as follows:

When will a misapprehension of the evidence render a trial unfair and result in a
miscarriage of justice? The nature and extent of the misapprehension and its
significance to the trial judge's verdict must be considered in light of the
fundamental requirement that a verdict must be based exclusively on the
evidence adduced at trial. Where a trial judge is mistaken as to the substance of
material parts of the evidence and those errors play an essential part in the
reasoning process resulting in a conviction, then, in my view, the accused's
conviction is not based exclusively on the evidence and is not a ''true'' verdict.
Convictions resting on a misapprehension of the substance of the evidence
adduced at trial sit on no firmer foundation than those based on information
derived from sources extraneous to the trial. If an appellant can demonstrate that
the conviction depends on a misapprehension of the evidence then, in my view, it
must follow that the appellant has not received a fair trial, and was the victim of a
miscarriage of justice. This is so even if the evidence, as actually adduced at trial,
was capable of supporting a conviction.

R. v. Morrissey (1995), 97 C.C.C. (3d) 193 at p.221 (Ont. C.A.)

29. It is submitted that the following provide significant examples of the

misapprehensions of the evidence and unreasonable findings of fact located throughout

the reasons for conviction:

(i) The erratic driving described by Jason Douglas. It is submitted that it was unfair to

5 None of the misapprehensions of the evidence or unreasonable findings of fact had the effect of
improving the Appellant's situation.
 17

characterize the Appellant's driving behind Jason Douglas as "erratic" in view of Jason
Douglas's evidence as a whole. Rather, the only fair inference was that the driving was
not at all unusual and the Appellant was considering passing the Jason Douglas vehicle.
(p. 102, ll. 2-18)

(ii) The roadside statement to Jason Douglas. The trial Judge wrongly, and entirely
unfairly, characterized this witness's evidence as disclosing "two explanations for the
accident" different than that given in evidence. Rather, the witness gave one version in
chief, which he modified in cross-examination. Further, the version that came out in
cross-examination, "my air bags went off and my door stuck" did not purport to be a
description of the cause of the accident, but was a statement of the Appellant's
recollection of consequences of the accident. (p. 102, l. 19 - p. 103, l. 18)

(iii) The reliance on the Appellant's appearance as not injured. The trial Judge appears to
have relied upon evidence that the Appellant did not appear to be injured to discount the
Appellant's evidence that the impact of the accident caused him to have some loss of his
faculties for some time. It is submitted that this conclusion was entirely inconsistent with
the evidence of Mr. Hagey that he had not regained his wits by the time he spoke to the
Appellant after the accident, despite the evidence of others that he did not appear injured.
(p. 103, l. 19 - p. 104, l. 5)

(iv) The evidence of drinking a couple of hours ago - it is submitted that the trial Judge
wrongly placed weight on the alleged inconsistent statements at the roadside by the
Appellant that he had been drinking a couple of hours ago. The Appellant's evidence was
that he drank three beers after arriving at the bar at 4:00 o'clock. He left the bar around
6:30 and the accident was at about 7:15. Importantly, while there was evidence of the
time that he left the bar, there was no cross-examination or other evidence of the time that
the drinking ended. The trial Judge appears to have speculated that the drinking ended at
the time the Appellant left the bar and that, therefore, the "two hours" comments
amounted to established inconsistencies. They did not. This assumption had no
foundation in the evidence. (p. 103, l. 30 - p. 104, l. 31)

(v) "I must have dozed off" as "yet another" version of events. It is submitted, with great
respect, that to characterize the Appellant's comment to Paul Douglas and Mr. Hagey that
"I must have dozed off" as "yet another" version of events to those allegedly given to
Jason Douglas was utterly and completely unfair to the Appellant. The standard to which
the Appellant, an accused person, was being held in the immediate post-accident period
was unreasonably high and was entirely inconsistent with the presumption of innocence
and an appearance of trial fairness. (p. 103, l. 30 - p. 104, l. 31)

(vi) The indicia of impairment reported by Cst. Dolderman. It is submitted that the
"typical" indicia of impairment were uncritically found as fact despite the evidence of the
other civilian witnesses, which did not appear to have been considered by the trial Judge,
of no apparent indicia of impairment and the explanatory circumstances of a recent, near
head on collision between two cars, both of which were driving at approximately 80
kilometers an hour for an impact speed of 160 kilometers per hour. (p. 104, l. 31 - p. 105,
 18

l. 13)

(vii) The unreasonable rejection of the Appellant's description of the falling piece of
equipment. It is submitted that the trial Judge's basis for rejecting the Appellant's
evidence at trial, that the accident occurred after he made efforts to attend to a fallen
piece of equipment, had no evidentiary foundation: "I reject that explanation. It defies
common sense. Probably defies the laws of physics." It is submitted that these findings
were unreasonably strong in the absence of some evidence in support of them. (p. 106, ll.
2-26)

(viii) The irrelevant consideration, no reason to pass. It is submitted that the absence of
some articulated reason to want to pass the Jason Douglas vehicle was wrongly used as
diminishing the Appellant's credibility. It is submitted that the mere fact that the Jason
Douglas vehicle was driving at the speed limit combined with Appellant's not being in a
hurry could not reasonably amount to evidence undermining the Appellant's credibility or
supportive of impairment. (p. 106, l. 27 - p. 107, l. 8)

C. The Sentence Appeal

31. It is respectfully submitted that the imposition of a fifteen-month driving

prohibition, in the circumstances of the Appellant and of this case, was harsh and

excessive.
 19

PART IV: ORDER REQUESTED

32. It is respectfully submitted that the appeal be allowed, the conviction quashed and

an acquittal entered or, in the alternative, that a new trial be ordered or, in the further

alternative, that the sentence be reduced.

DATED at Toronto, Ontario, the day of March, 2003.

All of which is respectfully submitted.

______________________________
Gregory Lafontaine
LAFONTAINE & ASSOCIATE
Barrister
127 John Street
Toronto, Ontario
M5V 2E2
Tel.: (416) 204-1835
Fax: (416) 204-1849
E-mail: [email protected]

Counsel for the Appellant

 20

TABLE OF AUTHORITIES

R. v. Coutts (1998) 126 C.C.C. (3d) 545 (Ont. C.A.)

R. v. Blazeiko (2000), 145 C.C.C. (3d) 557 (Ont. C.A.)

R. v. Price (2000), 144 C.C.C. (3d) 343 (Ont. C.A.)

R. v. Witter (1996), 105 C.C.C. (3d) 44 (Ont. C.A.)

R. v. Mahoney (1979), 50 C.C.C. (2d) 380 (Ont. C.A.)

R. v. Mahoney (1982), 67 C.C.C. (2d) 197 (S.C.C.)

R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.)