DATE: 20001005

DOCKET: C33531

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – ROBERT GOGO (Appellant)

BEFORE: WEILER, ROSENBERG and SHARPE JJ.A.

COUNSEL: Matthew Webber, for the appellant

Karen Shai, for the respondent

HEARD: October 3, 2000

On appeal from the conviction imposed by Justice Lynne L.C. Leitch, sitting with a jury, dated April 20, 1998 and from the sentence imposed by Justice Leitch dated May 15, 1998.

E N D O R S E M E N T

[1] The appellant was tried before a judge and jury and was convicted of criminal negligence causing death. He was sentenced to three years imprisonment and received a driving prohibition of eight years. He appeals both his conviction and sentence.

[2] A brief summary of the background facts is of assistance in placing the grounds of appeal in context. The appellant was with some friends at a campsite. They had a stolen dirt bike and an all terrain vehicle (“ATV”). The appellant was drinking. The appellant and his friends moved from the site to a residence to get supplies. While travelling back, the appellant and Ms. Heidi Turner were on the dirt bike. They were not wearing helmets. Mr. Dyck was riding on the ATV. The ATV stalled and the dirt bike hit it from behind. Ms. Turner died as a result of head injuries sustained in the accident. The principal only issue at the trial was whether the Crown had proven beyond a reasonable doubt that the appellant was the person driving the dirt bike.

[3] With respect to conviction, the appellant raises several grounds of appeal concerning the admissibility of evidence and the manner in which the trial judge dealt with that evidence in her charge with which we propose to deal seriatim.

(i) Evidence of habit (i.e., that the appellant never “let a girl” drive him on a motorcycle)

[4] The evidence of habit to which no objection was taken at trial was not evidence of discreditable conduct. The evidence was probative and therefore admissible unless there was some basis for excluding it. We have not been persuaded that there was a basis on which the evidence should not have been admitted.

(ii) The evidence of Sgt. Hibbert

[5] Sgt. Hibbert is an expert in collision investigation and reconstruction. His opinion was based upon photographs and medical records. The appellant submits that his conclusions were based on unproven premises and that the trial judge erred in failing to so direct the jury.

[6] Contrary to the appellant’s submission, there was some evidence to support the premises for Sgt. Hibbert’s opinion. As well, the trial judge properly instructed the jury:

In this case, two of the experts, Mr. Walker and Sergeant Hibbert, provided their opinions which were based on assumptions or premises and, of course, their opinions are only as good as those premises. In deciding what weight to give the evidence of those experts, you should look at the underlying premises and decide how much weight to attach to their evidence, based upon whether those premises have been proved or made out in the evidence.

(iii) The demonstration evidence of Cst. Kowalczyk

[7] The appellant submits that the demonstration involving Cst. Kowalczyk was misleading because the dirt bike was not in the same condition as at the time of the collision and that there was no one on the rear of the bike. Mr. Shepherd was the owner of the dirt bike. He testified that the height of the bike as rebuilt was the same height as the bike was when it was stolen. In light of the owner’s evidence it was open to the trial judge to conclude that the demonstration was not misleading. During the defence case, their expert testified that the height of the bike as shown in the photograph was lower than as portrayed in the demonstration and that the bike would have been lower with a passenger. The jury was in a position to weigh this evidence against the demonstration by Cst. Kowalczyk. There was no prejudice to the defence in the circumstances.

(iv) Hearsay evidence

[8] Crown counsel read to the jury hearsay evidence from a chart during a nurse’s cross-examination when questioning her about how she recalled the deceased’s injuries.

[9] We agree with the appellant that this evidence was inadmissible for its truth. However, the trial judge made this clear to the jury:

Also, I want to indicate to you that in this particular trial, you have heard certain medical evidence and two medical reports have been filed as exhibits. In that evidence, there is a history of what happened to the patient. That history, except to the extent that it has been established in direct evidence, should not be considered by you to show the truth of the facts the information which the medical practitioner recorded. That is, the history contained in the reports or notes is not evidence itself, but simply what was told to the nurse or doctor so that he or she could properly treat the patient.

In our opinion the judge’s charge appropriately dealt with the effect of Crown counsel’s cross-examination.

(v) The verdict was unreasonable

[10] In light of our disposition of the above grounds of appeal, it cannot be said that the verdict was unreasonable.

[11] We would dismiss the appeal as to conviction.

[12] With respect to sentence, the appellant submits that the trial judge erred in principle in failing to consider Ms. Turner’s contributory role in the offence. We are of the opinion that the trial judge committed no error in principle in imposing the sentence he did and that the sentence is fit and appropriate. Accordingly, while leave to appeal sentence is granted, the appeal as to sentence is dismissed.

[13] In the result the appeal is dismissed.

Signed: “Karen M. Weiler J.A.”

“M. Rosenberg J.A.”

“Robert J. Sharpe J.A.”