New & Notable: How you Say it Can be as Important as What you Say

Janet Smith has asthma and suffers from anxiety and panic attacks.  This conditions can be exacerbated during times of stress.  When she testified about this during her trial for failing to provide a breath sample the trial judge believed her.  The trial judge did not believe, however, that these conditions were a reasonable excuse for her failure to provide a breath sample.  Smith was convicted of failure and appealed.  MacDonnell J heard the summary conviction appeal: R v Smith, 2011 ONSC 5377.

Smith was involved in a motor vehicle accident which was investigated by the police. During the investigation the police formed grounds to believe she was impaired and arrested her. She was transported to the police station where she began to exhibit signs of distress and insisted she was have trouble breathing. She was transported to a hospital.
A breath technician then attended the hospital along with an approved instrument. Despite 11 attempts, Smith failed to provide a suitable sample. She was charged with failure.
At trial Smith testified that the medical conditions she suffered from made it impossible for her to provide the sample as she did the best she could. The trial judge, although accepting her conditions existed, held that she “intentional [failed] and that she exaggerated her symptoms at the relevant time in order to avoid providing a sample” [para 4].
At trial the trial judge had the opportunity to view a DVD of Smith recorded on the day of the incident at the police station. The trial judge further had the opportunity to observe Smith as she testified in her own defence. In convicting Smith the trial judge concluded that her “in-court observations and the events shown on the DVD greatly contribute to my findings that [Smith] exaggerated her symptoms in order to avoid providing a sample” [para 4].

On appeal Smith argued (i) that the trial judge erred by giving undue weight to the observations of Smith on the DVD and in-court; (ii) that it was also an error to do so without giving Smith notice or the opportunity to explain her behaviour; and (iii) that in the absence of medical or other expert evidence the trial judge’s observations had no probative value [para 5].

MacDonnell J considered each of the issues. 
First, MacDonnell J noted that it is not improper for a trial judge to consider demeanour on the issue of credibility - citing inter alia: R v Jabarianha, 2001 SCC 75 at paras 30-31; R v Devine, 2008 SCC 36 at para 28 [para 9].  In the present case the trial judge did not err or place undue weight on DVD or Smith’s in-court behaviour, it was merely “one factor among many that was of assistance in assessing the credibility of the appellant’s assertion that medical difficulties prevented her from complying with the breath demand” [para 6].

Second, MacDonnell J found that the trial judge was not required to give Smith notice or an opportunity to explain her behaviour [paras 11-15]: “[a] judge might well choose to bring the accused’s in court behaviour to his or her attention before acting on it, a judge is not required to do so” [para 12].


Third, with respect to the need for medical evidence, MacDonnell J rejected the submission:

The trial judge was not purporting to diagnose the appellant's condition. She was simply noting that both on the DVD and in the course of the trial the appellant had demonstrated that she was capable of turning on or off, at will, the symptoms that, she asserted, had interfered with her ability to comply with the breath demand. The judge did not have to hear medical testimony in order to make that observation or to assess its significance. [Emphasis added]; [para 16].
DG Mack