Court of Appeal for Ontario
Before: Doherty, Moldaver and Epstein JJ.A.
Between:
Her Majesty the Queen Respondent
and
Zolton Torok Appellant
Counsel: Robert Lepore, for the appellant Joanne Stuart, for the respondent
Heard and orally released: March 30, 2010
On appeal from the conviction entered by Justice Peter A. Grossi of the Superior Court of Justice, sitting with a jury, dated October 25, 2007 and the sentence imposed on December 20, 2007.
ENDORSEMENT
1We would dismiss the appeal from conviction and sentence.
2There is no error in the trial judge’s ruling admitting the out-of-court statements of the witness, Z. The trial judge admitted a statement given to the police by the witness, Z., the day after the accident that led to the charges. The trial judge also admitted a transcript of the testimony of Z. given at the trial of one of the other individuals who was charged as a result of the same incident.
3The trial judge found that Z. was a “recanting witness” and that it was, therefore, “necessary” to admit the out-of-court statements. In our view, this finding, which is essentially a finding of fact, was open to the trial judge on the evidence he heard on the voir dire. We see no error in that finding.
4There was abundant evidence that the out-of-court statements, both the statement taken by the police and the prior testimony, were sufficiently reliable to justify their admission under the principled approach to hearsay. Perhaps most importantly, the witness, Z., was available for cross-examination at trial. As was evident on the voir dire, Z. was only too anxious to accommodate and assist the defence in his testimony. In our view, the availability of Z. for cross-examination, the fact that the out-of-court statements were recorded and that Z. volunteered the statement to the police knowing full well the potential criminal implications should he lie to the police, made the statements sufficiently reliable to justify their admission.
5The appellant argues that the jury should not have been given a copy of the DVD containing the statement to the police during their deliberations. We disagree. The jury saw the DVD during the trial and it was marked as an exhibit. The defence made much of the appearance of the witness Z. on the DVD in his closing. Presumably, the jury requested the DVD so it could give full and careful consideration to the submissions that had been made to it by the defence. There was no suggestion at trial that the jury should not be given a copy of the DVD to examine during their deliberations.
6The appellant also submits that the jury should have been cautioned to not put undue emphasis on the contents of the DVD and should have been given the transcript of the prior testimony of Z. and the transcript of his testimony at trial.
7It may be that had the trial judge been asked, he could have given the jury a caution not to put undue emphasis on the DVD. Absent any such request, in our view, it is not reversible error to fail to do something that the trial judge was not asked to do. Furthermore, we do not see how the added documentation now suggested by counsel for the appellant, as necessary for the jury’s deliberations would have helped them. This is made evident by the absence of any such request at trial.
8The appellant also argues that the instruction on the essential elements of the crime of criminal negligence causing bodily harm was not clear. We disagree. The trial judge made the distinction between criminal negligence and dangerous driving. The distinction is a subtle one and any difficulty in understanding it is perhaps a product of that subtle difference rather than anything the trial judge said. In any event, we do not see how any possible error in relation to the instruction on criminal negligence could have made any difference. This was an overwhelming case of criminal negligence causing bodily harm.
9With respect to sentence, counsel for the appellant argues that the trial judge erred in failing to give any reasons for rejecting the submission that a conditional sentence should be imposed. The trial judge’s reasons on sentence do indicate why he rejected that submission. The trial judge said at p. 7 of his reasons:
A disposition short of actual custody would endanger the community and mock the principles of general and specific deterrence.
10We agree entirely with that sentiment. Indeed, as a subsequent decision in this court, R. v. Nusrat (2009), 2009 ONCA 31, 239 C.C.C. (3d) 309, has made clear, convictions for offences of criminal negligence arising out of racing on public highways must be met with significant sentences. As was indicated by my colleague in that case, at para. 69, “every street racer is a potential killer”. We agree.
11The appellant in this case is lucky that he was not facing charges of criminal negligence causing death. The manner in which he drove has caused serious injury to two victims. It could easily have left nothing short of carnage.
12The appeal from conviction and sentence is dismissed.
“Doherty J.A.”
“M.J. Moldaver J.A.”
“Epstein J.A.”