COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Leitch, 2012 ONCA 85

DATE: 20120207

DOCKET: C52984

Feldman, Watt JJ.A., and Dambrot J. (ad hoc)

BETWEEN

Her Majesty the Queen

Respondent

and

Jonathon Leitch

Applicant/Appellant

Paul Burstein, for the appellant

Greg Skerkowski, for the respondent

Heard and released orally: January 26, 2012

On appeal from the conviction entered on August 26, 2010 and the sentence imposed on November 25, 2010 by Justice Brophy of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals from conviction on three counts of driving "over 80" causing bodily harm. The Crown alleged that the appellant had been at a party where he consumed alcohol. After leaving the party, and while having over the legal limit of alcohol in his blood, the appellant drove his van through a stop sign and collided with another vehicle causing bodily harm to three people in the other vehicle. The central issue at trial was identity – was the appellant the driver of his van at the time of the collision.

[2] On this appeal, the appellant argues that the trial judge made the following three errors in finding that he was the driver of the car: (1) he shifted the onus of proof onto the appellant; (2) he misapprehended or failed to appreciate material evidence; (3) he failed to disclose a proper basis for finding that the only rational inference that could be drawn from the circumstantial evidence was that the appellant was the driver.

[3] We would not give effect to any of these grounds of appeal.

[4] We will deal with the first and second grounds of appeal together. With respect to these grounds, the appellant argues that the trial judge found that the appellant was the driver of the van for four reasons, each of which involved the shifting of the onus of proof to the appellant, or a misapprehension of the evidence. This argument is founded on the erroneous premise that these four points formed the entire basis of the decision of the trial judge. They did not.

[5] After summarizing the evidence in considerable detail, the trial judge stated: "the case comes down to an assessment of all of this evidence..." He then turned to the central issue in this case, the identification of the driver of the van. He began by reminding himself of the onus of proof, particularly as it relates to circumstantial evidence, and then identified a number of reasons, including the four reasons relied on by the appellant to challenge the decision for determining that there was no other conclusion that could be reached other than that Mr. Leitch was the driver. It is apparent that the four reasons identified by the appellant did not stand alone, but were considered by the trial judge in the context of the whole of the evidence.

[6] An examination of the whole of the evidence discloses a compelling basis for the conclusion that the appellant was the driver of the van. On the other hand, there was no evidence that someone else had been driving the van. The appellant did not testify. He could do little more than point to evidence that when he was assisted out of the cornfield where he was found after the accident, he asked, "Where's Trevor?" Although the appellant had driven Trevor Hall to the party, Hall testified that he did not leave with the appellant, and was not in the van at the time of the collision. Counsel for the appellant argued that this evidence supports the inference that someone else was in the van, but that the appellant was wrong about who it was. In our view, the appellant's utterance is devoid of evidentiary value on this issue.

[7] It is in that context that we consider the appellant's four complaints about the inferences drawn by the trial judge. The appellant argues that:

(1) the trial judge inferred that the appellant would not readily have allowed anyone to drive the van from the fact that he had just purchased it two weeks before the collision;

(2) the trial judge inferred that anyone who was in the van would have been injured, despite the fact that some of the people that were injured in the collision were fully mobile;

(3) the trial judge never rejected the genuineness of the appellant's "expressed concern" about Trevor's whereabouts following the collision, and failed to address the significance of the appellant's honest belief that someone else had been in the van just before the collision, even if that person was not Trevor, who admittedly was not there; and

(4) the trial judge misunderstood the expert seatbelt evidence and erroneously said that the evidence was not indicative of anyone else being in the van.

[8] With respect to the first point, the trial judge was entitled to take into account, as he did, that the appellant had recently purchased the van and had made an investment in it. Contrary to the submission of the appellant, he did not draw the inference from these facts that the appellant would not readily have allowed anyone to drive his van, although that might have been a common sense inference if he had drawn it.

[9] With respect to the second point, this inference was so obviously available that it was conceded by the appellant's counsel at trial.

[10] With respect to the third point, there was no evidence that the appellant honestly believed that someone else, other than Hall had been in the van at the time of the collision. As a result, there was no evidence that the trial judge was required to reject. As we have already stated, the fact that the appellant asked, "Where's Trevor?" in the circumstances here, does not support an inference that someone else was in the van. The trial judge made no error in making the finding that the appellant was the driver of the van despite the appellant's question about Trevor.

[11] With respect to the fourth point, the trial judge made no error in respect of the seatbelt evidence. He was entitled to take into consideration the expert evidence that suggested that the passenger seatbelt was likely, although not definitively, not in use at the time of the accident.

[12] In addition to these points, in oral argument counsel directed us to evidence that the appellant had earlier expressed an intention not to drive home, which was not adverted to by the trial judge. There was no need for him to refer to this evidence. It was not capable of giving rise to a reasonable doubt.

[13] Accordingly, we would not give effect to the first two grounds of appeal. The trial judge neither shifted the onus of proof onto the appellant, nor misapprehended or failed to appreciate material evidence.

[14] Finally, we turn to the third ground of appeal, that the trial judge failed to disclose a proper basis for finding that the only rational inference that could be drawn from the circumstantial evidence was that the appellant was the driver.

[15] As is apparent from what we have already said, we are of the view that the trial judge was fully justified in drawing this conclusion. It was unnecessary for him to say more about it. Accordingly, this appeal must be dismissed.

"K. Feldman J.A."

"David Watt J.A."

"M. Dambrot J. (ad hoc)"