CITATION: R. v. Badhwar, 2011 ONCA 266
DATE: 20110406
DOCKET: C51563
COURT OF APPEAL FOR ONTARIO
Moldaver, Juriansz and Rouleau JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
Ravi Badhwar
Appellant
Vincenzo Rondinelli, for the appellant
Gregory J. Tweney, for the respondent
Heard: February 28, 2011
On appeal from conviction for criminal negligence causing death and failing to stop at the scene of an accident by Justice Bruce A. Glass of the Superior Court of Justice, sitting with a jury, dated October 3, 2009 and from sentence imposed on December 3, 2009.
Moldaver J.A.:
[1] The appellant was convicted of criminal negligence causing death while street racing contrary to s. 249.2 of the Criminal Code and failing to stop at the scene of an accident involving bodily harm that resulted in death contrary to s. 252(1.3)(b) of the Criminal Code. Both offences attract a maximum punishment of life imprisonment. The appellant was sentenced to 25 months imprisonment on the criminal negligence count (30 months less 5 months for time spent in pre-trial custody) and 12 months consecutive for the failing to stop count.
[2] The appellant appeals against conviction and sentence. For reasons that follow, I would dismiss the appeal in its entirety.
CONVICTION APPEAL
[3] The appellant raises the following four grounds of appeal against conviction:
(1) The trial judge erred in precluding the appellant from testifying about a prior consistent statement he gave to the police on arrest.
(2) The trial judge erred in leaving the appellant’s flight from the scene of the accident as circumstantial evidence from which the jury could infer guilt on the charge of criminal negligence.
(3) The trial judge erred in failing to instruct the jury to treat the two counts in the indictment as separate and distinct.
(4) The trial judge prejudiced the appellant in his instructions on the use the jury could make of his admission that he was the driver of a green Honda Civic on the day in question.
Overview of the Case and Position of Parties
[4] On June 18, 2007, David Virgoe was killed when he drove his tractor trailer into a ditch after being struck by a car driven by Nauman Nusrat, a friend of the appellant. Prior to the accident, Mr. Nusrat and Prabhjit Multani, another friend of the appellant, had been street racing for more than 40 kilometers on a heavily travelled portion of Highway 400 due north of Toronto. Witnesses called by the Crown variously described the Nusrat and Multani vehicles as reaching speeds of 170 km per hour, weaving in and out of heavy traffic, forcing drivers to brake quickly and/or take evasive measures to avoid being struck and generally driving with complete disregard for the lives and safety of other motorists. No issue is taken with the manner of their driving or the descriptions offered by the many Crown witnesses who observed it. Nusrat and Multani pleaded guilty to criminal negligence causing death while street racing and each was sentenced to imprisonment for 30 months.[^1]
[5] As for the appellant, the issue at trial was whether he was an active third participant in the street racing, as the Crown maintained, or a mere onlooker, driving as safely as he could while trying to keep his friends in sight, as the appellant claimed.
[6] In an agreed statement of fact, the appellant conceded that he was the driver of a “green Honda Civic motor vehicle on Highway 400 in the morning of June 18, 2007” and that “he and his friends [Nusrat and Multani] were driving north to Wasaga Beach” in separate vehicles.
[7] Numerous Crown witnesses (9 or 10 in number) took note of the appellant’s vehicle and described it as one of the three vehicles they observed street racing. According to these witnesses, the appellant’s vehicle was seen weaving in and out of traffic, driving at speeds approaching 170 km per hour and cutting vehicles off as it proceeded north on Highway 400 to the point of the accident.
[8] The appellant testified and denied that he was a participant in the street racing with Multani and Nusrat. In support of his position, he called several independent witnesses who were driving north on Highway 400 and who saw Nusrat and Multani street racing. Some of these witnesses remembered seeing a Honda, others did not. None could specifically recall seeing the Honda street racing. Two witnesses, who were passengers in the Multani and Nusrat vehicles, claimed that the appellant was not involved in street racing. A passenger in the appellant’s vehicle stated that at times he felt that the appellant was travelling too fast. On one occasion, he told the appellant that he [the appellant] had cut someone off. The appellant was not aware of having done so. The passenger remembered that the three vehicles were travelling together at times, but they were not together when the accident occurred. The appellant was some distance behind the tractor trailer when it was struck by Nusrat’s vehicle and went out of control.
[9] Following the accident, the appellant stopped his vehicle. Witnesses gave conflicting evidence as to the length of time he remained at the scene. Some witnesses claimed he left within a few minutes; the appellant maintained that he stayed for about 20 or 25 minutes. According to the appellant, he was not permitted to get close to the area where the tractor trailer had come to rest. He also stated that various onlookers were acting aggressively towards him and his friends and some were shouting racial slurs. This prompted him to leave the scene.
[10] The appellant agreed that he did not talk to a police officer at the scene, nor did he attempt to do so. Moreover, after leaving the scene, he took no steps to contact the police.
[11] Several hours after the accident, the appellant was contacted by a police officer and asked to attend at the police station, which he did. It was then, for the first time, that he provided a statement to the police, some five hours after the accident. There was evidence that the appellant spoke to his friends at the scene and also by cell phone after the accident.
Ground One – admissibility of the appellant’s prior consistent statement to the police
[12] Prior to the commencement of the trial, defence and Crown counsel agreed that if the appellant conceded that he was the driver of the green Honda Civic, the Crown would not hold a voir dire to determine the admissibility of the appellant’s statement to the police, nor would the Crown seek to tender it in evidence. The appellant, it seems, did not want his statement introduced into evidence; nor did he want it available to the Crown for cross-examination purposes. Indeed, the appellant made it clear that if the Crown sought to have his statement admitted into evidence, he would argue that it was obtained in violation of his rights under s. 10(b) of the Charter and seek to have it excluded under s. 24(2) of the Charter.
[13] Part way through the trial, the appellant had a change of heart. He sought permission from the trial judge to cross-examine one of the arresting officers to establish that he [the appellant] had given a statement to the police and to elicit its contents. In return, he undertook to testify and subject himself to cross-examination.
[14] The trial judge refused the appellant’s request. He did so on the basis of established authority from this court holding that subject to certain limited exceptions (none of which applied here) an accused could not lead evidence of his or her prior consistent statement to the police.
[15] In his ruling, the trial judge made it clear that if the appellant testified, he was not to mention the fact that he had given a statement to the police, nor was he to mention its contents. Despite that ruling, while giving evidence in-chief, the appellant told the jury that on the day of the collision, he attended the police station and spoke to the police for about an hour. The Crown objected and in the absence of the jury, the appellant was warned not to breach the trial judge’s ruling again.
[16] On appeal, the appellant submits that the trial judge erred in not allowing him to disclose the contents of his police statement to the jury. He relies on this court’s recent decision in R. v. Edgar (2010), 2010 ONCA 529, 101 O.R. (3d) 161, which he acknowledges was not decided at the time of his trial.
[17] Edgar stands for the proposition that “it is open to a trial judge to admit an accused’s spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination”. The statement does not go in for its truth (unless it is otherwise admissible as original evidence) but “is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence”. (See Edgar at para. 72).
[18] The proposition of law stated in Edgar must be assessed against the factual backdrop of that case. In Edgar, the accused was literally caught by the police in the act of stabbing his girlfriend. At para. 76 of the decision, Sharpe J.A. described the statements that Edgar wished to have admitted into evidence as follows:
The first two statements were spontaneous and made within minutes of the appellant’s arrest for murder. The appellant was in a highly agitated state and he had little time to think or to fabricate a story. While the third statement was made four hours after the arrest, it was made at a time when the appellant was in the hospital recovering from the injuries he had sustained in the altercation and the third statement was really a continuation of the first two statements. In my view, the appellant’s three out-of-court statements may fairly be described as statements made by an accused person upon his arrest and upon being first confronted with the allegation of murder. [Emphasis added.]
[19] In the circumstances, Sharpe J.A. found that while testifying, Edgar should have been permitted to inform the jury of the contents of those statements in their entirety and the trial judge had erred in holding that only parts of them were admissible. Nonetheless, Sharpe J.A. concluded that the error was harmless in the circumstances, primarily because the probative value of the excluded statements was low. In this regard, at para. 81, he noted that:
(1) There was nothing in the excluded statements that was not already in Edgar’s evidence;
(2) The jury was aware of the incoherent portions of Edgar’s statements, thereby reducing if not eliminating the risk that “without knowing anything about what [Edgar] said upon arrest, the jury might have drawn an adverse inference on account of the evidence being excluded”;
(3) The primary reason Edgar “wanted the statements to be admitted was to show his confused and agitated state of mind to support his real defences to murder, namely automatism and lack of intent.” That evidence was admitted; and
(4) The excluded portions of the statements were relevant to the defence of self-defence which, in the circumstances “was tenuous at best”.
[20] In concluding that Edgar should have been permitted to inform the jury of the contents of his statements, Sharpe J.A. placed considerable emphasis on their spontaneity and the fact that they were made before he had time, in the words of Sir Rupert Cross, to “think things out”. (See para. 48 of Edgar and the quote from Evidence, 4th ed. (London: Butterworths, 1974), at p. 218). At para. 69, Sharpe J.A. observed that when spontaneity is lacking, the statements “may be either excluded or, in the case of doubt, made the subject of an instruction to the jury as to weight by the trial judge”.
[21] That brings me to the statement of the appellant. Whatever else may be said about it, it can hardly be characterized as spontaneous. The appellant had five hours to consider his position and “think things out” before going to the police station. He also had the opportunity to speak to his friends after the accident, either directly or by cell phone, before speaking to the police.
[22] In these circumstances, if the trial judge had had the benefit of Edgar, I believe he would likely have excluded the appellant’s statement for lack of spontaneity. But even if the statement had been admitted, in my view, its probative value would have been minimal due to its lack of spontaneity. The appellant’s reaction upon being confronted with an accusation that he knew was coming and that he had had five hours to think about was not likely to be of much value to the jury. Bearing that in mind, as well as the fact that the statement contains nothing that the appellant did not tell the jury in his testimony, I am satisfied that the verdict would inevitably have been the same had the appellant been permitted to inform the jury of his statement to the police. In this respect, I note that the jury was aware that the appellant spoke to the police for about an hour when he was arrested. He told them so in his examination-in-chief, albeit in contravention of the trial judge’s ruling. While the jury may have wondered what he told the police, they did not see the Crown cross-examining him on any inconsistencies in his statement. Obviously, the Crown could not have done so but the jury would not have known that. Hence, the jury would have had no reason to believe that the appellant’s evidence differed from what he told the police.
[23] Accordingly, I would not give effect to this ground of appeal.
Ground Two - The appellant’s flight from the scene
[24] The appellant’s flight from the scene was central to the jury’s assessment of the failing to stop charge. Apart from its importance on that charge, the trial judge also left it as evidence from which the jury could infer guilt on the charge of criminal negligence causing death. He did so however, in the most benign terms.
[25] Specifically, the trial judge made it clear that flight was but one piece of evidence the jury could consider, along with all of the other evidence, in deciding whether the Crown had proved its case against the appellant. Moreover, in the context of that instruction, the trial judge impressed on the jury the “importance [of] evidence that offers other explanations for this conduct …”. The trial judge then reminded the jury of the appellant’s evidence that he did not think he was a part of the accident but that he stayed for 20 to 25 minutes nonetheless until people in the area began “expressing insults and threats to his group”. It was only then that he decided to leave. The trial judge followed that review with the following sharp warning:
You must not use this evidence about what [the appellant] did or said afterwards in deciding or helping you decide that [he] committed these offences unless you reject any other explanation for it. [Emphasis added.]
[26] Contrary to the appellant’s submission, I think it was proper for the trial judge to leave evidence of flight as circumstantial evidence from which the jury could infer guilt. No objection was made to the impugned instruction at trial – for good reason in my view.
[27] The appellant maintained that he was not a party to his friends’ street racing and that he was driving as safely as he could in the circumstances. At worst, he may have been guilty of some minor Highway Traffic Act infractions. The Crown, on the other hand, took the position that the appellant was an active participant in the street racing. Against that backdrop, the jury was entitled to ask what a person driving, as the appellant claims he was, would have done after the accident, and to compare it to what he did, or did not do, bearing in mind his explanation for leaving the scene when he did. That is precisely the type of common sense reasoning we expect of juries. And the use of flight in these circumstances as after-the-fact conduct capable of proving guilt finds support in this court’s jurisprudence (see R. v. Baker (2006), 2006 CanLII 19332 (ON CA), 81 O.R. (3d) 276 and R. v. Phillips (2005), 2005 CanLII 1043 (ON CA), 193 O.A.C. 322).
[28] In oral argument, we queried whether the trial judge should have told the jury that while evidence of flight could be used in deciding the manner of the appellant’s driving, it could not be used to differentiate between the crimes of criminal negligence causing death and dangerous driving. For reasons that follow, I need not finally decide the issue. In this case, if the jury was satisfied that the appellant was an active third participant in street racing, his fate on the charge of criminal negligence was effectively sealed. No jury acting reasonably could have convicted him of a lesser offence. Hence, even if the trial judge should have differentiated between the crimes of criminal negligence causing death and dangerous driving in his instructions on flight, the error was harmless and occasioned no substantial wrong or miscarriage of justice.
[29] Accordingly, I would not give effect to this ground of appeal.
Ground Three - treating the two counts in the indictment as separate and distinct
[30] The trial judge did not specifically instruct the jury to treat the two counts in the indictment as separate and distinct; nor did he warn the jury that a finding of guilt on one count could not be used as evidence of guilt on the other. The appellant submits that this failing “created [a] risk that the jury would impermissibly apply evidence across counts”, especially in view of the after-the-fact conduct instruction which effectively “encouraged rather than cautioned the jury from using evidence on a particular count to influence its determination of another count”.
[31] I would not give effect to this ground of appeal. It was not raised at trial and has no practical application to the facts of this case.
[32] The jury heard all of the evidence relevant to both counts. This is not a case in which the jury was exposed to evidence of an unrelated event involving discreditable conduct on the part of the appellant. Moreover, as I have explained, the appellant’s after-the-fact conduct – in this case flight – was a relevant consideration for the jury in assessing whether the appellant’s driving reached the level of criminal conduct.
[33] Importantly, the trial judge separated the two offences in his charge and provided specific instructions to the jury on each. He properly explained the elements of the two offences and pointed the jury to the evidence they could consider in deciding whether those elements had been met. The trial judge also explained the position of the parties in relation to each of the counts and instructed the jury that the onus rested with the Crown to prove the appellant’s guilt on each count to the criminal standard. Finally, the trial judge made it clear that the jury was to return a separate verdict for each count.
[34] In the circumstances, nothing more was required. An instruction along the lines now sought by the appellant would, in my view, have been more confusing than helpful to the jury.
Ground Four – the use of the appellant’s admission
[35] Part way through the trial, Crown counsel expressed a concern, in the absence of the jury, that the appellant was backing away from his admission that he was the driver of the green Honda Civic on the day in question. As the record discloses, this comment generated a lively debate between Crown and defence counsel and some pointed remarks from the trial judge. When the dust settled, it seems that everyone was satisfied that the appellant was not backing away from his admission but merely asking that it be construed in a somewhat narrower fashion than the Crown had perhaps anticipated.
[36] Be that as it may, in his charge to the jury, after discussing the matter with counsel, the trial judge provided the following instruction:
In effect, the admissions in Exhibit One confirm that Mr. Badhwar was the driver of the third vehicle. Although he testified that some driving described by other witnesses was not his driving, I direct that you do not take that statement to mean that he was not driving the third vehicle. When an admission is made, it is not to be changed during the trial.
However, Mr. Badhwar did not agree with how various Crown witnesses described the driving of the third vehicle. You are entitled to consider all the evidence describing the way the third vehicle, i.e. the green Honda Civic was driven and how it moved on the highway.
[37] Defence counsel at trial [not Mr. Rondinelli] had only one complaint about that instruction. He urged the trial judge not to tell the jury that when an admission is made, “it is not to be changed during the trial”. Counsel believed that an instruction of that nature was unnecessary and he was concerned that the jury might take from it that the appellant had tried to go back on his admission.
[38] On appeal, the appellant did not press this ground. He accepts that the trial judge left it to the jury to decide how the green Honda was being driven, bearing in mind the differing versions given by the appellant and his witnesses and the witnesses called by the Crown. That is all the appellant wanted. It was never his position that there was a second “phantom” Honda Civic that was either road racing with his friends or otherwise driving in a criminally negligent manner.
[39] As for the concern raised by the appellant’s trial counsel, the wording used by the trial judge was general in nature and I am not persuaded that the jury would have taken from it that the appellant was trying to back away from his admission.
[40] Accordingly, I would reject this ground of appeal.
SENTENCE APPEAL
[41] The appellant seeks to have his sentence of 30 months (less 5 months for time spent in pretrial custody) on the charge of criminal negligence causing death reduced to 23 months. At the same time, he asks that his sentence of 12 months consecutive for failing to stop at the scene of an accident be increased to 19 months (less 5 months for spent in pretrial custody). In other words, the appellant does not seek a reduction of his global sentence of 37 months; he merely seeks to realign the numbers in order to circumvent the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 that prevent him from appealing, as of right, the deportation order he is facing as a result of his conviction and sentence on the charge of criminal negligence causing death.
[42] In support of his position, the appellant has filed fresh evidence, with the consent of the Crown, outlining his present circumstances, his present situation regarding employment and his future education plans. In seeking to have his sentence adjusted, the appellant does not suggest that the trial judge erred in imposing a penitentiary sentence on the charge of criminal negligence causing death – nor could he. This court imposed a 30 month sentence on Mr. Nusrat for the offence of criminal negligence causing death while street racing (2009), 2009 ONCA 31, 239 C.C.C. (3d) 309 and upheld a 30 month sentence for that offence in respect of Mr. Multani (2010), 2010 ONCA 305, 261 O.A.C. 107
[43] Significantly, in Multani’s case, the court refused to give effect to Mr. Multani’s submission that the sentence of 30 months should be reduced to 23 months for reasons relating to his immigration status. At para. 3 of the decision, the court noted that “while the deportation consequences of the sentence may be a proper factor to consider in determining the appropriate sentence in certain cases, immigration consequences cannot take a sentence out of the appropriate range.”
[44] That principle applies equally to the appellant. In his case, somewhat ironically, he seeks to benefit from the fact that he was convicted of two offences and therefore can seek the adjustments he is requesting without interfering with the overall length of his sentence – something Mr. Multani could not do given that he was only convicted of the single offence of criminal negligence causing death.
[45] No matter how one chooses to come at the issue, the bottom line remains the same. Courts ought not to be imposing inadequate or artificial sentences at all, let alone for the purpose of circumventing Parliament’s will on matters of immigration.
[46] The 30-month penitentiary sentence imposed on the appellant for the offence of criminal negligence causing death while street racing was not unfit; indeed, if anything, I think it was lenient.
[47] Accordingly, I would grant leave to appeal sentence but dismiss the appeal.
CONCLUSION
[48] In the result, I would dismiss the appeal from both conviction and sentence.
Signed: “M. J. Moldaver J.A.”
“I agree R. G. Juriansz J.A.”
“I agree Paul Rouleau J.A.”
[^1]: Nusrat initially received a conditional sentence of 2 years less 1 day but his sentence was raised to 30 months imprisonment on appeal. (R. v. Nusrat (2009), 2009 ONCA 31, 239 C.C.C. (3d) 309 (Ont. C.A.).