J.C. Y. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: JULIUS CHORNEY and HER MAJESTY THE QUEEN RESPONDENT Orest Rosowsky, Q.C. for the appellant Daryl B. Bode for the Crown JUDGMENT ARMSTRONG J. January 24, 1995 The appellant, Julius Chorney (herein sometimes"Chorney"), seeks to overturn a conviction by Andrychuk J. inthe Provincial Court that he:. . . did operate a motor vehicle while his ability to operatethe vehicle was impaired by alcohol and/or a drug contrary toSection 253(a) and Section 255 of the Criminal Code. The powers of this Court on this appeal are set forth in ss. 686(1)(a) of the Criminal Code: 686.[613](1) On the hearing of an appeal against conviction or against verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of wrong decision on question of law, or (iii) on any ground there was miscarriage of justice. The notice of appeal cites six grounds, one of them an alleged violation of the Charter. There is an added catch all "any other grounds that may appear from reading of the transcript". There is no mention in the notice of appeal, at least in the language of the section, of any of the grounds set out in ss. 686(1)(a). However at the opening of argument theappellant abandoned all but the Charter matter and oneinvolving the "principle of reasonable doubt". The Charter allegation reads:. . .d)That the accused's right to life, liberty and security ofthe person and the right not to be deprived thereof except inaccordance with the principles of fundamental justice as setout in Section 7 of the Charter were infringed by virtue ofthe fact that the Crown failed to provide disclosurerespecting crucial evidence of impairment to the accused orhis counsel after being requested to do so, thereby denied theaccused his right to make full answer and defence. Notices of this allegation were served on the Attorneys General of Canada and Saskatchewan as required by The Constitutional Questions Act, R.S.S. 1978, c. C-29, in the following terms: TAKE NOTICE that the accused JULIUS CHORNEY through Counsel on his behalf intends to make an application for dismissal of the charge on the grounds that the accused's right to be provided with timely disclosure of the Crown's evidence was infringed as guaranteed by Section of the Canadian Charter of Rights and Freedoms. Particulars are noticeably absent from the notice of appeal and even more so from the notices for the Attorneys General. Neither Attorney General was represented at the trial. The information that was not disclosed by the Crown before trial was that the investigating officer had received telephone call in which she was informed that Chorney "had left [the town of] Endeavour and was driving intoxicated." The fact of the telephone call was revealed when it was volunteered in the examination in chief of the investigating officer. It is agreed that counsel for the Crown knew nothing whatsoever about the telephone call prior to hearing it from the witness at trial. Failure to disclose was not raised before the trialjudge. (Counsel for Chorney on this appeal was not counsel at the trial). It should have been if it was to be raised atall. See Mark Joseph Cartier v. Her Majesty the Queen, Sask. Q.B.C.A. No. 12/93, J.C. Prince Albert, August 31, 1994, Baynton J. (as yet unreported) and the cases cited by Baynton J., R. v. Anaquod (1990), 1990 CanLII 7459 (SK QB), 88 Sask. R. 205 and R. v. Kutynec (1992), 1992 CanLII 12755 (ON CA), 12 C.R. (4th) 152 159. Had the objection of failure to disclose been raisedat trial the trial judge would then have had to decide whetherthere was a reasonable possibility that the withholding ofinformation had impaired the right of the accused to make fullanswer and defence  R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 340. If the information could be of some use to the accused,it is relevant and should have been disclosed. The trialcould have been adjourned if wanted. There being no complaint at the trial, of nondisclosure, this appeal on this point could justifiably be dismissed. However invited counsel in argument to advance any idea as to how knowledge of the telephone call might have prompted anything different in the action or inaction of the defence. The defence did not call evidence at the trial. In R. v. Durette (1994), 1994 CanLII 123 (SCC), 88 C.C.C. (3d) (S.C.C.), Sopinka J. held that an accused should not be required to demonstrate the specific use to which information the accused had not even seen, might be put. But in the present case the information that the telephone call was made has been known since the trial (if not before as to which see below). do not see how Chorney was prejudiced in making full answer and defence by not knowing that someone other than the investigating officer thought he was inebriated the night in question. Counsel argues that it is impossible to tell what use could have been made if the information had been available before trial. But this does not bring this case within the Durette provision. It is not "Catch 22" situation. In Durette, the appellants did not know what had not been disclosed. In the present case the appellant has now had the information seven months, if not longer. Besides, Durette dealt with securing wire tap evidence which Sopinka J. said formed substantial part of the evidence against the appellants in that case. In the present case, neither the telephone call nor the information conveyed thereby was any evidence against the accused. The telephone call was no more than part of the investigating officer's narrative of how she came to be out on the highway on the night in question. do not know how the appellant might have benefited from disclosure of the telephone call before trial but more significantly, Chorney does not offer any idea. Accordingly reject this ground of appeal. should mention that even if allowing the appeal on this point, the proper disposition would be to order new trial. Durette, p. 59. There may be another and disquieting ground for rejecting the appellant's Charter argument. The following is from the cross-examination of the investigating officer (transcript, p. 25): QNow you'd indicated earlier you'd received call with respect to Mr. Chorney. When did that call come in? AApproximately five to 6:00. QAnd where did that one where did the call come from? AI just took it that it came from Endeavour. There was no name given. The caller just said that he had left Endeavour, driving intoxicated. QFrom what understand, you're aware of the identity of this person? AHe's an anonymous caller. QWell understand, from what you're saying, that he didn't give his name but understood also that you do know who it is, regardless of whether he named name or not? AI do. The foregoing exchange taken together with the fact that there was no objection raised at trial over the nondisclosure by the prosecution of the telephone call suggests very strongly, if not conclusively, that the defence knew before trial about the telephone call and accordingly knew more than counsel for the Crown. There is then the ground and argument "involving the principle of reasonable doubt" so described by counsel for the appellant. Although not specifically so characterized by the appellant it has to be under ss. 686(1)(a)(i) that the verdict is unreasonable or cannot be supported by the evidence. Chorney is deaf. The investigating officer knew Chorney prior to the incident resulting in Chorney's conviction. She knew he was deaf. When Chorney's car was stopped by the officer he was not wearing his boots but they were on the floor beside him in his car. The officer wanted him to leave his car and come back to the police car but wanted him to first put his boots on. She said that he refused to do so. The following brief exchange took place in cross-examination of the officer: QDid you ask him why he was why he didn't want to wear his boots? AI no, just asked him to put them on and he refused to put them on. QWere they taken with you back to the detachment? AYes, they were. There were few more questions that concerned the alleged condition of the boots but nothing relating to how the officer "asked" Chorney to put on his boots. When Chorney got out of his car as requested by the officer he did so in his stockings only. It was the 12th of January, there was snow on the ground and it was very cold. The fact that Chorney did not put his boots on was emphasized by the trial judge in his decision. He said this: Over and above everything that have just commented on insofar as the officer's evidence is this issue of the shoes. Now it's twenty below, Officer Grimsrud's evidence think is in the low twenties, whether that means twenty-one is low number in the twenties or twenty-nine is also low because you're close to thirty, but accept as fact that her evidence is that it's in the twenties. She's trying to get the Defendant to put his shoes on and he won't and, if you are visualizing or attempting to visualize in your mind's eye what the actions would be of person who is impaired by alcohol, it seems to me that sensible, sober person may well complain if he is not given an opportunity to put his shoes on in these circumstances, or indeed may refuse to exit the vehicle. Here the driver is refusing to put his shoes on. And the trial judge went on to find Chorney guilty. Now counsel (and again, present counsel was not counsel at trial) argues that the evidence of the officer asking Chorney to put on his boots should never have been considered because Chorney is deaf and wouldn't know he was being asked to put his boots on. He goes on to argue that without this particular evidence there is not enough other evidence to convict "beyond reasonable doubt". First of all, if the evidence was to be challenged it should have been challenged at first opportunity. It was not challenged; the officer was not even cross-examined on how she "asked" Chorney to put his boots on. In examination-in-chief she testified how she wrote out the required warning to him, that she wrote out the demand for breathalyser test and wrote out questions regarding calling lawyer. She knew Chorney was deaf and there is nothing in the evidence to indicate that he did not get her message. But even if one assumes that Chorney did not get the message, is it any less "different" that he gets out of his car in only his stockings? The trial judge observed that sober person might refuse to exit his vehicle without his boots, never mind any request to put them on. Secondly, even if one could find merit in counsel'sargument, which I do not, and even if it was accepted, thetrial judge could reasonably convict on the other evidence heconsidered. In the so often referred to case R. v. Andres (1980), 1979 CanLII 2238 (SK CA), Sask. R. 96 (C.A.) Culliton C.J.S. said (p. 99): The right of the Appeal Court to set aside conviction on the evidence is set out in Section 613(1)(a)(i) namely that the verdict is unreasonable or cannot be supported by the evidence. The Court of Appeal cannot and should not set asidea conviction merely because it would have taken a differentview of the evidence than did the trial Judge. The Court of Appeal must remember that it is neither its duty or its function to re-try cases its function is one of review. Thus while the Appeal Court may differ with the trial Judge as to the facts established by the evidence, it will only disturb his findings of fact if it is satisfied that such findings are not supported by the evidence or that the conclusion reached by the trial Judge is so clearly wrong as to make that decision unreasonable. See the judgment of Branca, J.A., in R. v. Dhillon (1973), 1972 CanLII 1356 (BC CA), C.C.C. (2d) 414, for correct statement of the principles to be followed and very helpful review of authorities. The appeal is dismissed.
The accused appealed his conviction by a Provincial Court Judge on a charge of impaired driving. The accused argued that the Crown had failed to make proper disclosure contrary to s.7 of the Charter and that the trial judge has misapplied the concept of reasonable doubt. HELD: Appeal dismissed. 1)The failure of the Crown to disclose was not raised at trial as it should have been. If the matter had been raised at trial and the judge then thought that the evidence not disclosed impacted the accused's defence, he could have adjourned the trial. 2)The evidence not disclosed would not have affected the accused's defence in any event. 3)On the issue of reasonable doubt, the trial judge could reasonably have convicted on the evidence, and the Court would therefore not substitute its own view of the evidence.