DATE: 20030624
DOCKET: C38455 & C38467
COURT OF APPEAL FOR ONTARIO
MACPHERSON, CRONK and GILLESE JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Robert Kelly for the appellant /respondent, Her Majesty the Queen
Appellant/Respondent
- and -
JOHN NIKITIN
Sharon E. Lavine for the respondent/appellant, John Nikitin
Respondent/Appellant
Heard: June 4, 2003
On appeal, by Mr. Nikitin, from the conviction by Justice Paul U. Rivard of the Superior Court of Justice, sitting with a jury, on April 2, 2002, and on appeal, by the Crown, from the sentence imposed on May 31, 2002.
MACPHERSON J.A.:
[1] This is a sad case. John Nikitin, a 64 year old man with no criminal record, a good family life and a lifetime of steady employment, was convicted of manslaughter following a jury trial in North Bay presided over by Justice Paul U. Rivard.
[2] Nikitin was driving his truck and trailer. A school bus was parked at the side of the road with its red warning lights flashing and its stop sign arm extended. Five-year old Adam Ranger and his 12-year old brother, Alex, were crossing the highway to the driveway of their home. Nikitin did not see the boys until it was too late. He swerved to avoid them and crashed into the ditch. Unfortunately, the trailer he was towing behind his truck struck Adam, killing him instantly.
[3] The trial judge’s charge to the jury was impeccable – it was not challenged in any respect by defence counsel at the trial nor is it challenged on this appeal. However, Nikitin appeals his conviction on three grounds.
[4] The trial judge imposed a conditional sentence of 22 months and a five-year driving prohibition. The Crown appeals the sentence.
A. Conviction Appeal
[5] Nikitin appeals his conviction on three grounds: (1) the admission of Crown ‘re‑enactment’ or ‘experiment’ evidence and the use made of this evidence by Crown counsel in his closing address to the jury; (2) alleged improprieties in Crown counsel’s closing address in relation to Nikitin’s testimony; and (3) unreasonable verdict.
(1) Crown ‘re-enactment’ or ‘experiment’ evidence
[6] The day after the accident, one of the investigating officers, Constable David Moore, returned to the scene with Constable Jonathan Dumond. They re-enacted some of the events using the school bus from the incident and a vehicle similar in size to Nikitin’s truck. Constable Dumond retraced Nikitin’s path down Rochon Hill towards the Ranger house and the parked school bus. He was instructed to stop when he saw the entire bus and its flashing lights. He did so and measurements were taken. The distance from the ‘point of first perception’ to the school bus was 654 meters.
[7] At trial, Constable Moore testified about the re‑enactment. In addition, the videotape of the re‑enactment was played for the jury and became an exhibit.
[8] Nikitin contends that the re‑enactment or experiment evidence rendered the trial unfair in three respects: (1) Constable Moore’s testimony constituted impermissible opinion evidence that did not comply with the admissibility criteria set out in R. v. Mohan, [1994] 2 S.C.R. 9; (2) there were problems and deficiencies with the evidence that should have led to its exclusion; and (3) Crown counsel used the re‑enactment or experiment evidence in an improper fashion in his closing address.
[9] I do not accept these submissions. Although not determinative, I note that defence counsel at trial made no objection to the admission of either Constable Moore’s testimony or the videotape, to Crown counsel’s closing address, or to the trial judge’s charge on this issue.
[10] The evidence relating to the partial re‑enactment the day after the incident was not opinion evidence; rather it was evidence of facts observed during a pre‑trial re‑enactment or experiment. The essence of Constable Moore’s testimony was factual in nature. He described the conditions of the experiment and the results, in numerical terms, that it produced. The Crown did not ask him, and he did not give, expert opinion evidence with respect to the experiment.
[11] Turning to Nikitin’s second submission, I begin with the observation that the words ‘re‑enactment’ and ‘experiment’ are both apt descriptors of the police evidence. ‘Re‑enactment’ is accurate because the police sought to replicate the conditions (location, vehicles, time of day, weather) and some, but not all, of the relevant events (driving until the bus was seen, but not to point of impact). ‘Experiment’ is also accurate because the purpose of the partial re‑enactment was to identify the potential ‘point of first perception’ of the school bus by a driver.
[12] Nikitin objects to Constable Moore’s testimony about the experiment component of the re‑enactment. On that issue, the parties acknowledge that the leading case is R. v. Collins (2001), 160 C.C.C. (3d) 85 (Ont. C.A.). In that case, Charron J.A. observed that the general principles of evidence — reliability, materiality and prejudice — apply to experiment evidence. She continued, at pp. 95‑96:
A pre-trial experiment can be as simple as driving from one location to another to determine the time it takes to cover the distance in order to substantiate or disprove an alibi, or driving along a particular stretch of road to determine at what point a stop sign becomes visible. The evidence in such cases, provided that it is relevant to an issue in the case, will usually be admitted without argument. It is entirely factual, and its admissibility is only subject to the general principles of relevance, materiality and discretion as discussed earlier. ...
In a nutshell, experiment evidence, if it is relevant to an issue in the case, should generally be admitted, subject to the trial judge’s residuary discretion to exclude the evidence where the prejudice that would flow from its admission clearly outweighs its value. ...
In most cases, the relevance of the experiment evidence will depend on the degree of similarity between the replication and the original event. Consider the example given earlier where the experiment consists of the driving along a particular stretch of road to determine at what point a stop sign becomes visible. If the distance at which the stop sign becomes visible is in issue at trial, the experiment evidence will be material, but will only be relevant if the replication bears some similarity to the original event. For example, if the original event occurred in the summer when vegetation partly obstructed the driver’s view but the experiment was conducted in winter after all the leaves had fallen, the relevance of the evidence will be greatly diminished. Depending on all the circumstances, it may not be worth receiving.
[13] Nikitin submits that there were problems with the experiment evidence that should have led the trial judge to exclude it, even though defence counsel at trial did not object. The problems cited by Nikitin on the appeal are: (1) a potential difference in the height of Nikitin’s truck and the police van; (2) the fact that Constable Dumond was 28 years old and Nikitin was 64, and that visual acuity diminishes with age; (3) the fact that Constable Dumond wore sunglasses during the re‑enactment whereas Nikitin was not wearing them the day before; (4) the fact that the police van approached the scene very slowly, whereas Nikitin was driving near the speed limit of 90 kilometers per hour; and (5) the important feature that Constable Dumond was expecting to see a school bus whereas Nikitin was not.
[14] I do not agree that these factors rendered the experiment sufficiently unreliable that the trial judge should have excluded Constable Moore’s testimony concerning it. It is impossible for a pre‑trial experiment to replicate the original event perfectly. In this case, the police took pains to replicate the relevant events as best they could — experiment conducted next day, at the same time of day, similar weather conditions, similar vehicles, same school bus put in the same position. Moreover, Constable Moore was completely candid in acknowledging some of the factors that could potentially diminish the accuracy of the experiment evidence, including the fact that visual acuity diminishes with age and the fact that a person will probably see an object sooner if he is expecting to see it.
[15] In addition, and importantly, the trial judge was comprehensive and scrupulous in his charge to the jury on this issue. He identified all of the factors that the defence suggested should diminish the weight to be given to the experiment evidence.
[16] In summary, in Collins at 96, Charron J.A. stated that experiment evidence should generally be admitted, subject to a residuary discretion to exclude it if the prejudice that would flow from its admission clearly outweighs its value. In this case, I am of the view that the experiment evidence comfortably fell on the general rule side of the line.
[17] Nikitin’s third submission on this issue is that Crown counsel made too much of the experiment evidence in his closing address. I disagree. Crown counsel expressly acknowledged that the re‑enactment was not “an exact scientific depiction of what Mr. Nikitin saw.” Moreover, the Crown was entitled to present its case to the jury, including its reliance on a potential point of perception of 654 meters, in a blunt and forceful fashion. Defence counsel was entitled to deal with this evidence in a similar vein. Indeed, he did so, telling the jury: “I’ll tell you right now, that evidence is useless. That point of first perception is meaningless.…You don’t know anything about Mr. Nikitin’s point of first perception other than what Mr. Nikitin tells you. And what he tells you makes sense. What Constable Moore tells you makes no sense.”
(2) Crown counsel’s closing address
[18] Nikitin contends that Crown counsel’s closing address to the jury was improper, and should have been corrected in the trial judge’s charge to the jury, in two respects: (1) he stated that Nikitin’s testimony about the sun being a factor in his inability to see the school bus should be discounted because it arose in response to a leading question from his counsel; and (2) he invited the jury to draw an adverse inference from the fact that other vehicles stopped in front of the bus immediately after the accident.
[19] I do not agree with these submissions. I see nothing wrong with either statement by the Crown. Frankly, they strike me as innocuous components of a comprehensive jury address.
(3) Unreasonable verdict
[20] Nikitin contends that the jury verdict was unreasonable in that no reasonable jury acting judicially could have been satisfied beyond a reasonable doubt that Nikitin had intentionally or recklessly failed to stop for the school bus.
[21] I disagree. On my review of the record, Nikitin received a fair trial presided over by an experienced judge, a good defence from his counsel, including a strong closing address, and an impeccable jury charge. The jury’s verdict was not unreasonable.
B. Sentence appeal
[22] The Crown submits that a conditional sentence of 22 months for manslaughter was demonstrably unfit.
[23] I disagree. There is no rule that disentitles a trial judge from considering a conditional sentence for the serious offence of manslaughter: see R. v. Turcotte (2000), 144 C.C.C. (3d) 139 (Ont. C.A.). The trial judge carefully reviewed all relevant factors. He noted that Nikitin was 65 years old, had been married for 41 years, was an excellent parent and a conscientious and reliable worker, and had no criminal record. He also observed that since the tragic incident, Nikitin had suffered a series of heart attacks. In spite of this, he had managed to provide considerable support and care to his wife who suffers from serious physical ailments.
[24] In light of these factors, and bearing in mind the trial judge’s careful review of the relevant sentencing provisions and principles, I cannot say that the sentence he imposed was unfit, especially in light of the deference that must be shown to sentences imposed by a trial judge: see R. v. Shropshire, [1995] 4 S.C.R. 227, and R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61.
Disposition
[25] I would dismiss Nikitin’s conviction appeal. I would grant leave to the Crown to appeal the sentence and would dismiss the sentence appeal.
RELEASED: June 24, 2003 (“JCM”)
“J. C. MacPherson J.A.”
“I agree E. A. Cronk J.A.”
“I agree E. E. Gillese J.A.”