COURT OF APPEAL FOR ONTARIO
Doherty, Gillese and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Avinash Ramroop
Appellant
Jason Rabinovitch, for the appellant
Nicolas de Montigny, for the respondent
Heard: September 14, 2021 by video conference
On appeal from the conviction entered on April 2, 2019 by Justice L.M. Budzinski of the Ontario Court of Justice.
REASONS FOR DECISION
1The appellant was convicted of impaired driving causing bodily harm and fail to remain at the scene of an accident causing bodily harm arising out of a three-car accident on Weston Road in Toronto. A Chrysler 300, owned by the appellant’s father, struck a northbound Toyota Corolla and an Acura SUV before ending up on the boulevard. An empty can of beer was found on the front passenger seat of the Chrysler. A witness said that the driver of the Chrysler had run into a nearby backyard.
2The appellant was found by Constable McGill in the backyard of a nearby house following the accident. Constable McGill testified that the appellant had a head injury and a bleeding nose. He was vomiting, had difficulty speaking, and was in and out of consciousness. Constable McGill testified that he smelled alcohol coming from the appellant and that there was a strong smell of gasoline.
3The issues at the short trial were whether the appellant was the driver of the Chrysler and, if he was, whether the appellant was impaired. On April 2, 2019, the trial judge gave oral reasons for judgment, finding that the appellant was the driver and that he was impaired.1 On May 1, 2019, the trial judge provided what he described as a more detailed judgment in which he corrected an error he had made earlier. Specifically, the trial judge emphasized that, contrary to what he said on April 2, he was not relying on a statement the appellant had made to the police that he had been driving at a high rate of speed and had been drinking, as the statement was involuntary and not admissible. The trial judge said that his findings were based on the circumstantial evidence.
4The appellant’s primary argument is that the trial judge erred in finding that he was the driver of the Chrysler. The appellant concedes that there is no doubt that he was in the vehicle but argues that the trial judge erred in inferring that he was the driver, as there were other reasonable inferences on the evidence. The appellant argues that although the trial judge acknowledged that his statement was inadmissible, he failed to re-evaluate the evidence in his second judgment. His analysis was essentially unchanged from the first judgment, in which considerable weight was put on the statement.
5We disagree.
6The trial judge instructed himself as to the proper approach to drawing inferences from circumstantial evidence, as set out by the Supreme Court in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at para. 55: “Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence.” The Crown is not required to negative every other possible inference in order to meet its burden. Alternative inferences must be plausible based on the evidence, not speculative.
7There was a substantial body of circumstantial evidence in this case from which it could be inferred that the appellant was the driver of the Chrysler:
The Chrysler belonged to the appellant’s father;
Mr. Tran, a passenger in the Acura, saw a dark-skinned, slim person standing near the Chrysler, wobbling and unable to stand straight;
Constable McGill found the appellant, whose appearance was consistent with the description of the person seen near the Chrysler right after the accident, in the backyard of a home about 30 metres from the accident;
The appellant smelled of gasoline and alcohol; and
No one else from the Chrysler was found at the scene of the accident or sought medical attention.
8The trial judge inferred from this evidence that the appellant was associated with the Chrysler and was involved in the accident. He considered and rejected the possibility that the appellant could simply have been a passenger in the Chrysler: no one else from the Chrysler was found at the scene of the accident or sought medical attention, so the appellant was the only person in the Chrysler and had to be the driver. The discovery of the appellant in the nearby backyard supported the inference that he had fled the scene of the accident and was hiding in the backyard in an attempt to avoid criminal liability.
9We see no error in the trial judge’s determination, on the totality of the evidence, that the appellant was the driver of the Chrysler.
10The appellant raised a secondary argument, challenging the trial judge’s finding that he was impaired. The appellant argued that the trial judge’s reasons on the impairment charge were inadequate, characterizing this as a Villaroman argument rather than an unreasonable verdict argument.
11It is well established that there is no special test for determining impairment. The offence of impaired driving is established by evidence of “any degree of impairment ranging from slight to great”: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90 (C.A.) at 95, aff’d 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478.
12In this case, the trial judge made several specific findings. The accident:
was caused by the Chrysler;
occurred at high speed in excess of the city speed limit;
showed an inattention to the traffic and the nature of the neighbourhood;
displayed an utter lack of control and judgment by the driver of the Chrysler; and
occurred when the road was clear and dry and there was no evidence of road obstruction.
13The appellant does not challenge any of these specific findings. He argues that guilt cannot reasonably be inferred from them.
14This argument must be rejected.
15Although it is not clear exactly how the accident occurred, there is no doubt as to its violent nature. There was evidence that the Chrysler was out of control and that it hit the other two cars at a high speed before landing on its side on the shoulder or sidewalk area in front of a house. A witness described the Chrysler as “flying”.
16The trial judge noted that there was no evidence of anything such as mechanical failure, medical emergency, or road obstruction, that would explain the nature of the accident, and found that it was consistent with some sort of impairment by the driver of the Chrysler. Given the presence of an empty beer can in the passenger seat and the smell of alcohol on the appellant, it was open to the trial judge to conclude from the totality of these circumstances that the only reasonable inference was that the appellant was impaired to some degree, and to find that the Crown had proven its case beyond a reasonable doubt.
17The appeal is dismissed.
“Doherty J.A.”
“E.E. Gillese J.A.”
“Grant Huscroft J.A.”
