Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Amrow Sodhi
Before: Justice J.P.P. Fiorucci
Heard: February 7, 2019 and March 4, 2019
Reasons for Judgment Released: June 25, 2019
Counsel:
- C. Hopkins, for the Crown
- J. Stephenson, for the defendant Amrow Sodhi
FIORUCCI J.:
INTRODUCTION
1On March 23rd, 2018, at 3:58 p.m., a Sergeant in charge of the Hamilton Police Service Division 30 High Enforcement Action Team (HEAT), and two other plainclothes police officers in that unit, arrested Mr. Amrow Sodhi. They arrested Mr. Sodhi inside a Dollarama store. They arrested him for driving while disqualified.
2The police took Mr. Sodhi to the parking lot of the store. They searched him. They also searched the car Mr. Sodhi had arrived in, a Chrysler 300. The police say the search of the vehicle was an inventory search in anticipation of the vehicle being towed. The vehicle was not towed. Mr. Sodhi was released at the scene on an Appearance Notice. The police gave Mr. Sodhi the keys to the car and they left the scene.
3At approximately 3:56 p.m., the Chrysler 300 travelled northbound on Upper Gage Avenue in the City of Hamilton before pulling into the parking lot of the Dollarama store. The police say that Mr. Sodhi was the driver. Mr. Sodhi and his friend, Richard Bound, say that Mr. Sodhi was a passenger in the vehicle and that Mr. Bound was the driver.
4Mr. Sodhi entered a not guilty plea to driving while disqualified, contrary to section 259(4) of the Criminal Code. The accused admits that he was a disqualified driver at the time. I must determine whether the Crown has proven beyond a reasonable doubt that Mr. Sodhi operated the motor vehicle on March 23rd, 2018.
EVIDENCE
5The three HEAT unit officers were working as a team that day. All three were in plainclothes. They were in three separate unmarked vehicles. The officers were using bump phones, which allowed them to communicate privately, not over the police radio.
6Two of these officers, Sergeant Peter Hall and P.C. Jacek Przednowek testified that they positively identified Mr. Sodhi operating the Chrysler 300. Sergeant Hall was the first to observe Mr. Sodhi driving the vehicle. He then advised the other members of the team that he was following Mr. Sodhi northbound on Upper Gage Avenue.
7Both Sergeant Hall and P.C. Przednowek purported to observe Mr. Sodhi operating the vehicle northbound on Upper Gage Avenue between Mohawk Road East and Fennell Avenue East. The Chrysler 300 turned right into the parking lot of the Dollarama. The parking lot was just before the intersection of Upper Gage Avenue and Fennell Avenue East. Both Sergeant Hall and P.C. Przednowek testified that they saw Mr. Sodhi exit the driver's seat of the Chrysler 300 after the vehicle had parked in the Dollarama parking lot.
8The third officer, P.C. Ryan Tweedle, testified that he happened to be in the area of Upper Gage Avenue and Mohawk Road East when Sergeant Hall called for assistance to arrest Mr. Sodhi, a disqualified driver. P.C. Tweedle stated that he was doing surveillance on an unrelated drug investigation at the time. P.C. Tweedle did not see Mr. Sodhi operate the vehicle, nor did he see Mr. Sodhi exit the driver's seat of the vehicle. By the time P.C. Tweedle arrived at the Dollarama, no one was inside the Chrysler 300.
9The accused, Mr. Sodhi, testified that his brother, Amargit Sodhi, was the owner of the Chrysler 300. However, Amargit allowed the accused's girlfriend to use the vehicle because she had a driver's licence and could drive the accused around. She would also use the vehicle to drive herself to medical appointments for a work related injury she had sustained.
10Mr. Sodhi testified that he was at his girlfriend's house on March 23rd, 2018. At the time, she lived in the area of Upper Gage Avenue and Stone Church Road East. Mr. Sodhi's friend, Richard Bound, was also there that day.
11At some point, Mr. Sodhi wanted to go out to get some treats for his pets and some chocolate for his girlfriend. Mr. Bound offered to drive because Mr. Sodhi's girlfriend was not feeling well.
12Mr. Sodhi testified that Mr. Bound drove northbound on Upper Gage Avenue. Mr. Bound went through a yellow light at the intersection of Upper Gage Avenue and Mohawk Road East, and continued driving northbound until he arrived at the Dollarama. Mr. Bound turned into the Dollarama parking lot.
13According to Mr. Sodhi, when Mr. Bound parked in one of the spots in the parking lot, he (Mr. Sodhi) got out of the passenger side of the vehicle. As he was walking around the car, Mr. Sodhi saw Mr. Bound light a cigarette while he was still seated in the driver's seat of the car. Mr. Sodhi told Mr. Bound that he could not smoke in the car and would have to smoke outside.
14At that point, Mr. Sodhi went to the driver's side of the car. Mr. Sodhi reached into the driver's side, rolled up the power window, and took the keys from the ignition. Mr. Sodhi then locked the car and went inside the Dollarama store. Mr. Bound waited outside, smoking his cigarette.
15Mr. Bound testified that he was driving the Chrysler 300 that day. Mr. Bound's evidence regarding what happened when they arrived in the Dollarama parking lot was consistent with Mr. Sodhi's testimony. Mr. Sodhi told Mr. Bound that he could not smoke in the car. Mr. Bound then got out of the driver's seat. Mr. Sodhi took the keys from the car and went into the Dollarama.
16According to Mr. Bound, a male approached him walking pretty quickly. Mr. Bound thought this man was a security guard. He later learned that the man was a police officer. This officer asked Mr. Bound to give him the car keys. Mr. Bound told the officer that his buddy took them. Mr. Bound testified that, shortly thereafter, another officer came out of the store and said, "I got them". This other officer was referring to the keys he was shaking in his hand.
ANALYSIS
17The accused is presumed innocent and that presumption can only be displaced if his guilt is established beyond a reasonable doubt by the Crown. I must instruct myself in accordance with the criminal standard of proof set out by the Supreme Court of Canada in R. v. Lifchus. A reasonable doubt must be based on reason and common sense. It is logically derived from the evidence or absence of evidence. It is not sufficient to believe that the accused is probably guilty or likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so because such a standard of proof is impossibly high.
18In this case, Mr. Sodhi testified and led evidence which is inconsistent with his guilt. I am required to consider and apply the framework enunciated in R. v. W.(D.), which states that:
(1) If I believe the testimony of the accused, I must find him not guilty;
(2) If I do not believe the accused's evidence, but the evidence leaves me with a reasonable doubt, I must find him not guilty;
(3) Even if the accused's evidence does not leave me with a reasonable doubt, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of the guilt of the accused.
19I can accept all, some or none of a witness's evidence. A criminal trial is not an inquiry into what happened, or whose case is stronger. I must determine whether the Crown has proven the specific criminal allegations it has made beyond a reasonable doubt.
20Even if I were to prefer the evidence of the police to the evidence offered by the accused and Mr. Bound, it does not resolve whether I have a reasonable doubt about the accused's guilt. There are other options requiring acquittal, including "the legitimate possibility" that I am unable to resolve the conflicting evidence and am accordingly left in a reasonable doubt.
21A criminal trial is not a "credibility contest". The overriding consideration is whether the evidence as a whole leaves the trier of fact with any reasonable doubt about the guilt of the accused. The evidence favourable to the accused must be assessed and considered with the conflicting evidence offered by the Crown as a whole, not in isolation.
22It is important to understand the backdrop against which Mr. Sodhi was arrested. The Defence position is that three members of the HEAT unit did not arrest Mr. Sodhi because he was observed driving a motor vehicle while disqualified. The Defence submits that the arrest was a pretext to search for contraband on Mr. Sodhi's person and, more importantly, within the vehicle.
23The Crown concedes that Mr. Sodhi was a person of interest to the HEAT unit, and acknowledges that perhaps the police had investigative objectives beyond the drive disqualified charge. Notwithstanding any other investigative objective that may have existed, the Crown contends that the evidence of the officers has established the charge of driving while disqualified beyond a reasonable doubt.
24I will begin by considering the Defence evidence. Mr. Sodhi has a criminal record which starts in October 1991 and ends in June 2009. He has multiple convictions for driving offences, including several convictions for driving while impaired or over 80, and two convictions for dangerous driving. Mr. Sodhi also has convictions for offences involving violence and possession of controlled substances, including a conviction for possession for the purpose of trafficking, and two convictions for production of a controlled substance. I do not consider the above-referenced convictions to be relevant to the accused's credibility as a witness.
25However, the accused's criminal record also includes convictions which are demonstrative of a disregard for court orders or the administration of justice. These convictions, like offences involving dishonesty or false statements, have a greater bearing on whether an accused witness is likely to be truthful. Mr. Sodhi has numerous convictions for failure to comply with probation and breach of recognizance, and one breach of a conditional sentence order. He also has three prior convictions for driving while disqualified.
26I have considered these convictions in assessing the testimony of Mr. Sodhi. I find that the nature and number of prior convictions certainly have probative value with respect to the testimonial trustworthiness of the accused, but their probative value is significantly diminished by the lack of proximity of these convictions to the time when the accused gave his evidence in these proceedings. The most recent entry on the accused's record was the breach of the conditional sentence order nearly ten years before Mr. Sodhi gave his evidence in this trial.
27I have also considered the criminal record of the other Defence witness, Mr. Bound. Although Mr. Bound has two convictions for property related offences of dishonesty, his criminal record is so dated that it has very little probative value to the issue of his testimonial trustworthiness as a witness.
28I have carefully reviewed and considered the substance of Mr. Sodhi's evidence. Mr. Sodhi gave his evidence in a straightforward and balanced manner, with a readiness to make appropriate concessions. For example, when he was questioned about the photographs the Defence introduced to show the extent of the police search of the vehicle, Mr. Sodhi readily conceded that the photos may have been taken a couple of days after the incident or even up to a week later when he noticed the damage. He did not attempt to embellish the extent of the damage caused by the police when they searched the car.
29Mr. Sodhi denied being the driver of the vehicle on March 23rd, 2018. There was nothing in the substance of Mr. Sodhi's evidence or the manner in which he testified that led me to disbelieve his evidence.
30Mr. Sodhi's evidence was corroborated in material respects by Mr. Bound. Mr. Bound presented as an unsophisticated witness who had difficulty recalling certain peripheral details such as how he arrived at Mr. Sodhi's girlfriend's home that day and what they were doing before leaving for the Dollarama. However, Mr. Bound gave clear and cogent evidence corroborating Mr. Sodhi's denial that he drove the vehicle. Again, there was nothing in the substance of Mr. Bound's evidence or the manner in which he gave his testimony that caused me to disbelieve his evidence.
31I find that the Defence evidence which is inconsistent with guilt leaves me in a state of reasonable doubt. Considering the totality of the evidence, I am left unsure whether Mr. Sodhi's and Mr. Bound's testimony that the accused was not driving is true. This is especially so in light of concerns I have identified with respect to the credibility and reliability of the evidence led by the Crown. I will now discuss the concerns I have with the testimony of the police officers.
32Firstly, I wish to address the manner in which Sergeant Hall gave his evidence. At times, he was evasive and was unwilling to make appropriate concessions. For example, when he was asked whether the speed of his vehicle and the speed of the other vehicle would affect his ability to observe, his response was "not necessarily", which was illogical.
33Sergeant Hall was often confrontational with Defence counsel during cross-examination, and answered questions defensively rather than in a forthright manner. For instance, when he was questioned about the photographs of the vehicle and the thoroughness of the search, Sergeant Hall repeatedly stated that the police had not caused damage to the vehicle. Rather than answering the questions in a forthright manner, he attempted to control the narrative.
34When Defence counsel asked Sergeant Hall about one particular photograph and suggested that he had removed the parts seen in the photograph, he disagreed and added, "looking at this picture that I'm not even sure is relevant, it is the piece of –if I took this into my mechanic, this would be a broken off piece from rust it is so damaged…from rust not from anything….other than that." The manner in which Sergeant Hall gave his evidence did not instill confidence that he was a witness without an agenda, who was intent on being truthful. This affected his credibility as a witness and the credibility and reliability of his identification of the accused as the driver of the vehicle.
35Sergeant Hall testified that he was familiar with the accused, and the accused's brother, Amargit Sodhi. He knew that Amargit Sodhi was the owner of the Chrysler 300. Sergeant Hall had many dealings with the accused and his brother prior to March 23rd, 2018. He had viewed the accused's photograph on the NICHE system as part of these prior investigations.
36Sergeant Hall testified that he first noticed the Chrysler 300 at 3:56 p.m.. According to Sergeant Hall, the vehicle passed by him travelling northbound on Upper Gage Avenue, south of Mohawk Road East. However, the officer could not recall what lane his police vehicle was in when the Chrysler 300 passed by.
37During his examination-in-chief, Sergeant Hall offered little detail about how he identified the driver to be Mr. Sodhi. He merely stated that he had observed Mr. Sodhi "unobstructed through a window". He provided no details regarding his vantage point or location when he made this observation of Mr. Sodhi. The cross-examination of Sergeant Hall revealed that he made virtually no notes about how he was able to identify Mr. Sodhi as the driver of the car.
38However, during cross-examination, Sergeant Hall testified for the first time that he was able to identify Mr. Sodhi as the driver because he pulled up beside the Chrysler 300 at one point. Sergeant Hall claimed that the Chrysler 300 was in the passing lane and his police vehicle was in the curb lane. According to Sergeant Hall, after he pulled up beside the Chrysler 300, he then backed off and continued to follow the vehicle northbound on Upper Gage Avenue.
39When he first testified about pulling up beside the Chrysler 300, Sergeant Hall made no mention of where he had done so. Much later in his cross-examination, when Defence counsel re-visited the issue, Sergeant Hall testified that he had pulled up beside the Chrysler 300 at a stale red light at the intersection of Upper Gage Avenue and Mohawk Road East. This resulted in the following exchange between Sergeant Hall and Defence counsel:
THE COURT: Which intersection are we talking?
A. We were referring to Mohawk.
MS. STEPHENSON: Mohawk and Upper Gage. Sorry, Your Honour.
A. Yeah. It was red, we call it a stale red, which means it's been red for some time, it's about to change. So, it would be a- a few seconds before its change over to green.
Q. Okay. And at that point, you're behind the Chrysler, correct?
A. I pulled up beside it.
Q. You pulled up beside it. So, you pulled up beside it and it's still red now?
A. Yeah.
Q. Okay. Because you didn't say that earlier.
A. Okay.
Q. You just said, you pulled up?
A. Oh, yeah. I didn't make specific reference to when or what was going on with the lights, but that's what I recall, yeah.
Q. Yeah. Okay. Well, that would've been kind of important because how fast you're going and how fast the other vehicle was going is contingent on your ability to observe, right?
A. Not necessarily.
40Sergeant Hall's testimony on this point is troublesome in many respects. Firstly, it is difficult to understand why his evidence about pulling up beside the Chrysler 300 would have come out for the first time during cross-examination. Furthermore, when he first mentioned pulling up beside the vehicle, he did not say that he had done so at a stale red light at an intersection. When he initially mentioned it, his testimony gave the impression that he had pulled up beside the vehicle while in motion, and then backed off to continue following the vehicle northbound.
41Next, Sergeant Hall's evidence that he pulled up on the passenger side of the Chrysler 300 to make his identification of Mr. Sodhi as the driver is internally inconsistent with his evidence-in-chief that he observed Mr. Sodhi unobstructed through a window. If Sergeant Hall pulled up on the passenger side of the vehicle, one would think that his view of the driver was obstructed by the passenger seated beside the driver. Perhaps Sergeant Hall did indeed view Mr. Sodhi unobstructed through the passenger side window because Mr. Sodhi was the passenger?
42At a later point in his cross-examination, Sergeant Hall stated that one of the reasons he did not park right beside Mr. Sodhi in the Dollarama parking lot was the risk of exposing their "vehicle's identity", because they re-use their police vehicles. Why then was Sergeant Hall willing to take that risk when he pulled up beside the vehicle at the intersection?
43The three officers were working as a team that day. They were communicating using bump phones. However, both P.C. Tweedle and P.C. Przednowek testified that they just happened to be in the same area as Sergeant Hall when he notified them that he was following Mr. Sodhi.
44When P.C. Przednowek was asked what he was doing in the area at that time, he replied, "just general duties as a plainclothes officer, nothing specific…nothing noted". He could not recall what he was doing when he received Sergeant Hall's call at 3:56 p.m.. P.C. Przednowek had no notes in his notebook regarding what he had done before 3:56 p.m..
45I find it implausible that P.C. Tweedle and P.C. Przednowek were in the area and available to assist Sergeant Hall with the arrest of Mr. Sodhi merely by chance. Mr. Sodhi was likely the target of their investigation that day. Sergeant Hall testified that the traffic and weather conditions that day posed no problem "conducting surveillance". The surveillance the police were conducting was likely on Mr. Sodhi and the Chrysler 300.
46P.C. Przednowek, like Sergeant Hall, testified that he observed Mr. Sodhi driving the motor vehicle on Upper Gage Avenue. I have concerns regarding the credibility and reliability of P.C. Przednowek's testimony. His evidence was vague on material matters.
47P.C. Przednowek was unable to say exactly where he was when he received Sergeant Hall's call at 3:56 p.m.. He testified that shortly after getting the call, he went northbound on Upper Gage Avenue and saw the Chrysler 300. However, P.C. Przednowek was unable to provide the route he took to get to Upper Gage Avenue.
48P.C. Przednowek testified that, at one point between Mohawk Road East and Fennell Avenue East, he was beside the Chrysler 300 for a couple of seconds and "had a look at the driver". He claimed that, at that time, his police vehicle was in the passing lane and the Chrysler 300 was in the curb lane. However, he was unable to recall any details about where on this stretch of road he pulled up beside the vehicle. He stated that he "would never think….that was, like important to note at that time".
49What is most troubling about P.C. Przednowek's testimony is that he has no recollection of seeing Sergeant Hall's vehicle when he is purportedly making his observations of the Chrysler 300 on Upper Gage Avenue:
Q. I take it when you went out in the morning you know what vehicle Officer Hall was driving?
A. Not that day, no.
Q. Okay. …So, the three of you go out together you, Officer Hall and Officer Tweedle and you don't know what kind of vehicles each other were driving?
A. I would've known that day.
Q. Right.
A. Do I know it-do I remember it today, no.
Q. Okay. That's fine, but you knew that day?
A. I would've known that day, yeah.
Q. So, where was Officer Hall on Upper Gage when you were beside the Chrysler?
A. I don't remember.
Q. You don't remember. Did you see him?
A. I - I don't remember if I saw him either.
50At 3:56 p.m., Sergeant Hall first observed the vehicle and called the other officers. The police arrested Mr. Sodhi inside the store at 3:58 p.m., two minutes later. In that interval, both Sergeant Hall and P.C. Przednowek purported to have followed the vehicle northbound on Upper Gage Avenue.
51Sergeant Hall was the first to pursue Mr. Sodhi and notified the others that he was doing so. P.C. Przednowek somehow joined that pursuit in progress, although he could not explain where he first observed the vehicle, or started to follow it. It is difficult to understand how P.C. Przednowek could pull up beside the Chrysler 300 without noticing Sergeant Hall's vehicle which would presumably have been in the same area.
52Sergeant Hall testified that he did not lose sight of Mr. Sodhi or his vehicle when it drove into the Dollarama parking lot. Sergeant Hall stated that his police vehicle was still in motion when he observed Mr. Sodhi exit the driver's seat in the Dollarama parking lot. He then parked his police vehicle once Mr. Sodhi entered the store.
53P.C. Przednowek also testified that he saw the vehicle turn into the Dollarama parking lot. He stated that at that point he too drove into the lot and turned his police vehicle around to face the Chrysler 300. It was at this point that he saw Mr. Sodhi exit the driver's side and the passenger exit the passenger side. However, P.C. Przednowek was again unable to recall where Sergeant Hall's vehicle was at that time, or if he even saw Sergeant Hall's vehicle.
54If Sergeant Hall and P.C. Przednowek were indeed jointly pursuing Mr. Sodhi, and each of them observed Mr. Sodhi exit the driver's seat of the vehicle, it is implausible that P.C. Przednowek would not have made note of the location of Sergeant Hall. If this team of officers was communicating by bump phones, I would expect that the first officer to have noticed Mr. Sodhi turn into the lot would have communicated that to the other officers.
55It is not my task to make a finding as to whether or not the police had an ulterior motive to arrest Mr. Sodhi, and to falsely accuse him of driving while disqualified. However, the existence of a potential motive for a witness to concoct is a relevant consideration in the assessment of credibility. It must be considered together with the totality of the evidence to determine whether the Crown has established the criminal allegation beyond a reasonable doubt.
56The police evidence regarding the search of the Chrysler 300 and the decision not to tow the vehicle is troublesome. It contributes to my concerns regarding the credibility and reliability of the police evidence, and therefore affects the credibility and reliability of the evidence identifying Mr. Sodhi as the driver of the motor vehicle.
57Sergeant Hall admitted that the police searched the motor vehicle thoroughly. Sergeant Hall and P.C. Tweedle testified that this was an inventory search because the vehicle was going to be towed.
58Sergeant Hall and P.C. Tweedle gave inconsistent testimony regarding the reason the police decided not to tow the vehicle after conducting the search.
59Sergeant Hall testified:
Ultimately at the end, Mr. Sodhi was cooperative with us, was polite at the end and was requesting that he have someone pick up his vehicle and not have it towed. And I deemed if he could leave the area and get someone to come back to get the vehicle because it was on private property, that I would-I would allow that to happen.
60Sergeant Hall stated that "when the uniform came, we had decided that we were not going to tow the vehicle." According to Sergeant Hall, when uniform arrived at the scene, they were not required. He stated, "once they attended the scene I told them they could leave".
61When Sergeant Hall was asked in cross-examination who from uniform attended the scene, he replied, "I have no idea". Sergeant Hall made no notation of the uniform officer or officers who attended the scene. He testified that he did not think it was relevant for the Defence to know the identity of the uniform officer or officers who attended the scene because they were not required. Sergeant Hall could not recall whether the uniform officer he spoke with was male or female, and stated that it was of no relevance to him at that point.
62P.C. Tweedle gave the following evidence regarding the reason why the vehicle was not towed:
Q. And so, you've said that you went outside, what happened outside?
A. A brief inventory search of the vehicle, waiting for a tow truck to arrive. And then I believe the ultimate decision was made by Sergeant Hall that it was taking too long for a tow truck, so, we decided to not tow the vehicle and we released Amrow at that point.
63The police claimed that the only reason to conduct the search of the vehicle was to prepare it to be towed. However, the two officers who participated in that search gave inconsistent reasons why the vehicle was not towed after the extensive search.
64P.C. Tweedle denied that the notation in his notes "search negative car" had anything to do with the police searching the vehicle for drugs. He claimed that this notation was made because no items of value were found during the inventory search.
65When Defence counsel asked Sergeant Hall whether he had called a tow truck, he replied, "I would never call a tow truck, a uniform would deal with that". If calling a tow truck was a task only a uniform officer would perform, why is it that the thorough inventory search to prepare the vehicle to be towed was conducted by two officers of the HEAT unit? I find it implausible that the only reason these officers conducted an extensive search of the vehicle, including removing speakers and checking behind them, was to catalogue the vehicle's contents in preparation for it to be towed.
66I accept Mr. Bound's evidence that the officer who approached him asked for the keys to the vehicle. By all accounts, the officer who dealt with Mr. Bound was P.C. Przednowek. When Defence counsel suggested to P.C. Przednowek that he asked Mr. Bound for the keys, the officer stated that he did not remember his conversation with Mr. Bound. When Defence counsel asked whether it was possible then that he had asked Mr. Bound for the keys to the car, P.C. Przednowek again replied, "I- I - I don't remember my conversation with him".
67One possible inference that can be drawn from the officer asking Mr. Bound for the keys to the vehicle, the most probable inference, is that the police knew Mr. Bound to have been the driver of the vehicle.
68In light of the concerns I have identified with respect to the police evidence, and my inability to resolve the conflicting evidence as to who was driving the Chrysler 300 motor vehicle, I am left in a state of reasonable doubt.
69Mr. Sodhi is found not guilty of the charge of Driving while Disqualified.
Released: June 25, 2019
Signed: Justice J.P.P. Fiorucci