DATE: 20040722

DOCKET: C39179

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – WILLIAM NELSON (Appellant)

BEFORE:

WEILER, SHARPE AND SIMMONS JJ.A.

COUNSEL:

Gregory Lafontaine

for the appellant

Riun Shandler

for the respondent

HEARD:

July 13, 2004

On appeal from the decision of the summary conviction appeal by Justice S.C. Hill of the Superior Court of Justice dated October 31, 2002.

E N D O R S E M E N T

[1] The appellant seeks leave to appeal the dismissal of his summary conviction appeal from a conviction for dangerous driving. For the following reasons, we would dismiss the appeal.

i) the evidence at trial

[2] This was a two-witness case. A police officer testified on behalf of the Crown and the appellant testified on his own behalf. They offered differing versions of some very bad driving on the QEW.

[3] On the officer’s version, there were four lanes of traffic (he described the left-hand passing lane as the fourth lane). The officer first observed the appellant’s vehicle in the third lane of traffic proceeding at a faster rate of speed than a silver vehicle (the “Schwandt vehicle”). The Schwandt vehicle was ahead of the appellant’s vehicle in the left hand lane and about three car lengths behind another vehicle that the officer was unable to describe. Upon overtaking the Schwandt vehicle, the appellant made a “very quick” lane change from the centre lane to the passing lane and cut off the Schwandt vehicle.

[4] The officer said the vehicles “narrowly missed, it was very, very close”. The Schwandt vehicle fell back initially and then sped up to within a foot of the appellant’s vehicle. At that point, both vehicles were swerving back and forth within lane four and the officer noted other vehicles slowing down behind them and “sort of clearing out of the way”. The Schwandt vehicle then “pulled abruptly into lane three and pulled up beside [the appellant’s vehicle]”. Once even with the appellant, the Schwandt vehicle veered into the passing lane almost hitting the appellant and causing the appellant to move towards the centre median. The two vehicles continued to swerve back and forth and the drivers appeared to engage in a shouting match. At that point, the officer observed the traffic ahead of them making note and pulling out of the way.

[5] The Schwandt vehicle then accelerated and the appellant pulled into lane three behind it. The Schwandt vehicle started to brake and the appellant accelerated towards it as if trying to ram it. Schwandt then threw something that hit the appellant’s windshield. Shortly thereafter, the officer pulled over the Schwandt vehicle. Both drivers were eventually charged with dangerous driving.

[6] The appellant testified and said that there were three lanes of traffic where the incident occurred. He was proceeding in the left-hand passing lane when a black vehicle came up quickly behind and followed him closely. The appellant was unable to move out of the passing lane immediately but eventually moved into the centre lane to allow the black vehicle to pass. After the black car passed, the appellant moved back into the passing lane and began to accelerate. In cross-examination, the appellant said that he was not aware of cutting anyone off, but conceded that he might not have signaled and that he might have inadvertently cut off another vehicle.

[7] The black vehicle then slowed down, seemingly as “pay back” to the appellant for not having moved out of the passing lane earlier, and “remained in a relatively parallel position with the car to his immediate right”. At that point, the appellant noticed the Schwandt vehicle for the first time. It was in the centre lane on his immediate right. Schwandt veered towards the appellant forcing the appellant to swerve to the centre median to avoid collision. He moved back to the passing lane and noticed that Schwandt was angrily shouting at him but the window on the passenger side of his vehicle was up and he denied shouting back. Again the Schwandt vehicle swerved towards the appellant and forced him over towards the median. The appellant slowed down but so did Schwandt. Eventually, Schwandt accelerated and arrived at a point beside the black vehicle when the drivers of those two vehicles appeared to be engaged in a discussion.

[8] The appellant decided to go past the Schwandt vehicle by moving to the far inside right lane, but Schwandt pulled into the right lane and began swerving back and forth between the centre and right lanes to prevent the appellant from passing him. The appellant backed off and moved into the centre lane, remaining behind the Schwandt vehicle. Schwandt then braked, bringing the two vehicles very close, and then threw something that struck the appellant’s windshield. The appellant then saw Schwandt being pulled over by the officer and the appellant drove on.

ii) the trial judge’s reasons

[9] The trial judge gave brief oral reasons at the conclusion of the trial convicting the appellant. She found that “there were major differences in the evidence that are noteworthy”. The first difference was that:

[The appellant] mentions some interaction between a black motor vehicle and the silver vehicle operated by Mr. Schwandt prior to his becoming involved with the Schwandt vehicle. Indeed there was evidence from [the appellant] of some erratic driving by the operator of the black motor [vehicle] directed towards him. Somehow [the appellant] then becomes involved with the … Schwandt motor vehicle, which started with the …vehicle pulling into his lane of traffic and almost striking him.

The evidence on behalf of the Crown did not disclose any mention of this black motor vehicle interacting with either of the Schwandt motor vehicle or [the appellant’s]. In fact, it was clear from the [officer’s] evidence that other users of the highway were clearing out of the way of [the appellant’s vehicle] and the Schwandt vehicle.

[10] The second noteworthy difference identified by the trial judge was the following:

…[the appellant] did not believe he pulled into or attempted to pull into the [Schwandt] vehicle or make any lane change without a signal. It was his evidence that any attempts to pass the [Schwandt] vehicle were made on the inside, or right lane, and he could not accomplish a passing of the [Schwandt] vehicle. The whole evidence of [the appellant] with respect to any attempts to pass took place, in his chronology, after the Schwandt vehicle … attempted to pull into the appellant’s lane from the right.

[11] Although not precisely accurate in two respects i.e. i) the appellant’s evidence did not disclose any preliminary interaction between the Schwandt vehicle and the black vehicle, and ii) the appellant conceded the possibility that he may have inadvertently cut off the Schwandt vehicle, the trial judge’s reasons capture two important differences between the appellant’s evidence and the officer’s evidence.

[12] First, the officer indicated that the incident began with the Schwandt vehicle in the left hand lane in front of the appellant’s vehicle, which was in the centre lane; the appellant accelerated past the Schwandt vehicle and then moved abruptly into the left-hand lane from the centre lane, cutting off the Schwandt vehicle. Contrary to the officer’s evidence, the appellant referred to interaction between him and the black vehicle as a potentially innocent explanation for the appellant inadvertently cutting off the Schwandt vehicle. The appellant says he returned to the left-hand lane after allowing the black vehicle to pass and concedes that he may have inadvertently cut off the Schwandt vehicle at that point. The important difference in the evidence is that the appellant’s evidence places the black vehicle in front of appellant’s vehicle in the left hand lane as the incident began. On the officer’s account, there is no black vehicle. It was the Schwandt vehicle that was in front of the appellant in the left lane and the appellant pulled into the left hand lane in front of the Schwandt vehicle after passing it on the left.

[13] Second, the officer did not refer to the appellant moving into the extreme right hand lane in an effort to pass; nor did he mention any interaction between the Schwandt vehicle and the black vehicle at that point, which the appellant claimed gave him an opportunity to pass.

[14] What follows is the crucial passage from the trial judge’s reasons:

I accept the evidence of officer Reid. It is the most independent available. He was not on patrol in the area. Indeed he was not a member of either the Ontario Provincial Police or the Halton Regional Police. He saw a pattern of driving that he felt compelled to stop, in which he had observed over a five to six-kilometre stretch of highway. Where his evidence differs from that of Mr. Nelson I prefer that of Officer Reid. The driving exhibited by Mr. Nelson I am satisfied amounted to a marked departure from that which is prudent highway driving. He became involved in a cat and mouse game with the Schwandt vehicle which caused other users of the road to clear away from each of them, which thankfully was brought to an end by Constable Reid who was concerned for public safety. There will be a conviction on this charge. [emphasis added]

iii) the summary conviction appeal

[15] On appeal to the summary conviction appeal court judge, the appellant submitted that the trial judge had misapplied the burden of proof and had dealt with the case as a credibility contest without consideration being given to whether the appellant’s evidence raised a reasonable doubt.

[16] The summary conviction appeal judge disagreed. He observed that the appellant’s counsel very fairly acknowledged that in all likelihood defence counsel at trial had cited the decision of W(D) v. The Queen (1991), 63 C.C.C. (3d) 397 ( S.C.C.) to the trial judge. In any event he was not persuaded that the trial judge’s reasons had dealt with the case as a credibility contest and thereby shifted the burden of proof to the appellant. He stated:

References to the officer’s independence and to preferring the constable’s testimony are not unfair comments on the evidentiary record and to not, in my view, substantiate the submission that the issue of proof of guilt was reduced to resolution of a credibility contest.

…..While the court’s reasons for rejecting the appellant’s version are not articulated in any detail, the finding of guilt cannot be described as unreasonable or unsupported on the evidence. The prosecution evidence clearly established an instance of dangerous driving. On his own evidence, the appellant may have cut off the Schwandt vehicle, not signaled lane changes and traveled at 110 km/hr in moderate traffic conditions. Significant aspects of the appellant’s testimony were never put in cross-examination to the prosecution witness. The trial court was entitled to find guilt in the circumstances.

iv) the appellant’s submissions on appeal

[17] The appellant submits that the trial judge was obliged to state in her reasons whether the appellant’s evidence raised a reasonable doubt in her mind and that the summary conviction appeal judge erred in dismissing this ground of appeal. In support of his submission with respect to shifting the burden of proof, the appellant relies on the recent decision of this court in R. v. Y.M., [2004] O.J. No. 201at paras. 29-35, and also submits that the reasons of the trial judge are inadequate.

v) analysis

[18] This was a straightforward case that did not involve any difficult legal issues. The result turned on the trial judge’s assessment of the credibility of the police officer and the appellant. Applying the functional analysis described in R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 ( S.C.C.), we are satisfied that the reasons clearly reveal why the trial judge rejected the appellant’s evidence and are not merely conclusory reasons without explanation. The trial judge explained that the evidence on behalf of the Crown did not disclose any mention of this black motor vehicle. She also found the officer’s evidence to be “the most independent available”. She identified specific inconsistencies between the evidence of the appellant and that of the police officer and accepted the officer’s evidence. The reasons do not indicate that the trial judge felt obliged to accept the evidence of either the police officer or the appellant.

[19] In light of the jurisprudence recently developed by this court, which the summary conviction appeal judge did not have the benefit of, a trial judge ought to generally articulate in his reasons that he has considered the middle ground of W(D). In this case, however, it was not essential that the trial judge do so. It was implicit in her reasons that she found the appellant’s testimony incredible and that it did not therefore leave her with a reasonable doubt. Unlike Y.M., the appellant knew why his denials were disbelieved and the reasons provide an adequate basis for appellate review.

[20] The appellant further submits that there were not great differences in the evidence between that of the officer and that of the appellant. As a result, he says that when the trial judge accepted the evidence of the officer, the appellant’s evidence did not fall away and was still capable of raising a reasonable doubt. He submits the summary conviction appeal judge erred in upholding the decision of the trial judge.

[21] Contrary to the appellant’s submission, we agree with the summary conviction appeal judge that there were significant differences between the evidence of the appellant and the officer and that significant aspects of the appellant’s evidence were not put to the officer. We have already referred to important differences in the evidence referred to by the trial judge.

[22] Further, the officer’s evidence was that during a five to six kilometer stretch no other cars passed them and, contrary to what the appellant testified, there was no third vehicle involved. Nor did the appellant deal with the finding that he drove his car very close to the Schwandt vehicle from behind and that other cars were getting out of the way of each of the vehicles. The trial judge’s acceptance of the officer’s evidence in the circumstances meant that she not only rejected the evidence of the appellant but that it could not raise a reasonable doubt. Accordingly, we would grant leave to appeal and dismiss this appeal.

“Karen M. Weiler J.A.”

“Robert J. Sharpe J.A.”

“Janet Simmons J.A.”