Court of Appeal for Ontario
Watt, Lauwers and Benotto JJ.A.
Between
Her Majesty the Queen Respondent
and
James Cook Appellant
Counsel: Boris Bytensky, for the appellant Craig Harper, for the respondent
Heard and released orally: October 21, 2016
On appeal from the conviction entered on February 9, 2011 by Justice J.S. O’Neill of the Superior Court of Justice, sitting without a jury.
Endorsement
1After a 45 day trial before a judge sitting without a jury, the appellant was found guilty of three offences. The trial judge entered convictions on counts of impaired operation of a motor vehicle causing death and driving while disqualified and a stay on the count of causing death by operating a motor vehicle when his blood alcohol concentration exceeded the prohibited limit.
2The single issue litigated at trial was the identity of the driver of the snowmobile involved in the accident that killed the deceased, a fifteen year old boy. The Crown alleged that the appellant, who was 27 years old at the time of the incident, and had only purchased the snowmobile days earlier, was the driver. The defence position, unsupported by the testimony of the appellant, was that the 15 year old deceased was the driver.
3The appellant advances four grounds of appeal against conviction. He submits that the trial judge erred in law:
i. in failing to consider the exculpatory portions of statements made by the appellant;
ii. in misapplying the burden of proof, in particular, the principles enunciated in R. v. W.(D.), 1991 SCC 93, [1991] 1 S.C.R. 742;
iii. in permitting the Crown to split its case by calling a witness in reply; and
iv. by reaching an unreasonable conclusion of guilt on the count of driving while disqualified.
4We would not give effect to any of these grounds.
5To take first the ground of appeal relating to the failure to consider the exculpatory parts of the appellant’s 911 call and his statement to Sergeant Alexander at the hospital. As I have said, the single issue before the trial judge was the identity of the driver. These utterances were relevant evidence on that issue. Like any item of evidence in a criminal trial, the trial judge was entitled to accept or reject this evidence in whole or in part. He did so. We are not persuaded that in accepting an inculpatory portion of the 911 call, it can reasonably be said that he ignored or failed to consider exculpatory aspects of that call or those in the statement made to Sgt. Alexander at the hospital. Indeed, he recited these exculpatory parts in paragraphs 9; 17; 44; 53 and 379-382 of his reasons.
6Second, in reading the reasons as a whole, we are not persuaded that the trial judge founded his conviction on some lesser standard than proof beyond a reasonable doubt. That burden applies to the evidence as a whole, which is often greater than the sum of its individual parts. The trial judge proceeded to consider the many strands of circumstantial evidence and then assessed their cumulative effect. These individual strands are not subject to the criminal standard of proof, and the piecemeal analysis invited by the appellant is inconsistent with the approach to circumstantial evidence required by the authorities.
7Third, the complaint about reply evidence is equally unavailing. The evidence did not exceed what the law permits. It is also significant that this was a judge alone trial, not a jury trial where reply evidence, as the last evidence heard by the trier of fact, is thought to have a greater impact on the ultimate verdict. Further, it was open to the appellant to seek to call surrebuttal evidence, but no such application was advanced.
8The appellant concedes that if the convictions on impaired operation are sustained, the conviction of driving while disqualified cannot be impeached as unreasonable. We agree.
9The appeal from conviction is dismissed. The appeal from sentence is dismissed as an abandoned appeal.
“David Watt J.A.”
“P. Lauwers J.A.”
“M.L. Benotto J.A.”