Appeal by accused from his conviction for driving with blood alcohol level above legal limit. Issue at trial was whether it was proven beyond reasonable doubt that accused was driver of truck that was involved in accident. Accused claimed that trial judge misapprehended evidence of paramedic who treated accused and who had conversation with him. After closing submissions were made, which dealt with identification issue, judge was given transcript of paramedic’s evidence and she retired to consider her decision. When judge returned to give her oral decision she summarized evidence she considered to be relevant to identification issue. Accused conceded that during summary judge accurately set out paramedic’s evidence. In his examination-in-chief paramedic said accused made statements that indicated that he drove his truck. In cross-examination paramedic said he could not say with certainty that accused said that he was driving. Accused submitted that during judge’s analysis of evidence she did not refer to what paramedic said in cross-examination and it was this omission that showed that she misapprehended evidence. Appeal dismissed. When judge’s reasons were read as whole they demonstrated that she was aware that it was uncertain what accused said to paramedic. In her reasons she did not only consider examination-in-chief evidence. Rather, she considered all of paramedic’s evidence along with surrounding pieces of circumstantial evidence and she drew inferences to conclude that on the whole of evidence she was satisfied that accused was driver. Judge’s inferences were reasonable and they were entitled to deference. Judge did not misapprehend evidence.
R. v. Arnold
(Dec. 6, 2011, Ont. S.C.J., Dawson J., File No. SCA (P) 1001/11) 98 W.C.B. (2d) 570 (6 pp.).