COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rawn, 2015 ONCA 396

DATE: 20150604

DOCKET: C59940

Watt, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Rawn

Appellant

Joseph Di Luca, for the appellant

Amy Alyea, for the respondent

Heard: April 28, 2015

On appeal from the convictions entered on October 3, 2013 and the sentences imposed on October 31, 2014 by Justice Jane Ferguson of the Superior Court of Justice, sitting without a jury.

Watt J.A.:

[1] Daniel Rawn claimed it was “Steve” who caused the accident. Ran into a pick-up truck parked on the boulevard in front of a house. Right after the accident, “Steve” disappeared. Vanished into the mists of a mid-October night in Collingwood. Never to be seen or heard from again.

[2] Rawn was in the car. A passenger, so he said. But a passenger whom a witness saw get out of the driver’s door of the car immediately after the accident. No choice, Rawn said. The passenger door was too badly damaged to open.

[3] Rawn did not say anything to the police about “Steve”. So the police charged Rawn with possession of stolen property (the car) and several driving offences. Some alcohol related, others not.

[4] Rawn had a trial. He told the judge that “Steve”, not he, was the driver. The judge did not believe Rawn’s story about “Steve”. But in explaining the reasons for her disbelief, the judge made some mistakes. About the character of the defence and an adverse inference permitted by statute. What is left to decide is whether the evidence against Rawn was so overwhelming that no substantial wrong or miscarriage of justice occurred despite the errors in the trial judge’s analysis of Rawn’s testimony.

[5] As I will explain, I am satisfied that the case against Rawn was so overwhelming that a reasonable and properly instructed trier of fact would inevitably have convicted him of the offences with which he was charged. I would dismiss the appeal.

THE BACKGROUND FACTS

[6] The case for the Crown at trial was that Rawn was the driver of the vehicle. He knew it was stolen. He was impaired and disqualified from driving at the time of the accident.

[7] The case for the defence relied on Rawn’s testimony that, although impaired and disqualified from driving, he was not the driver when the accident occurred. “Steve” was the driver. The appellant was a front seat passenger.

[8] The relevant facts are brief.

The Theft

[9] The car involved in the collision was stolen from a residential driveway a few blocks away from the accident site a few hours earlier.

The Collision and its Aftermath

[10] Early in the morning of October 14, 2011, the stolen car crashed into a truck. Within minutes, the appellant emerged from the driver’s door of the car and began to walk away.

[11] The truck owner’s next door neighbour heard the crash. He immediately rushed to his front door. He looked outside and saw that a car had struck his neighbour’s truck and pushed it away from its usual parking spot. He saw the appellant emerge from the driver’s door of the car and leave the scene.

[12] When the appellant broke into a run, the neighbour gave chase. He easily caught up to the appellant. The neighbour escorted the appellant back to the damaged vehicles. The neighbour’s wife called the police.

The Police Response

[13] A police officer responded to the call. She asked those assembled, including the appellant, “who was the driver of the vehicle?” One or more of those at the scene pointed towards the appellant. Within seconds of the question being asked, the appellant raised his hand and said: “Me, Dan Rawn”. He was arrested.

The Appellant’s Condition

[14] When arrested by the police, the appellant was intoxicated. He was also bound by a driving prohibition that disqualified him from operating a motor vehicle.

The Breath Test

[15] At the police station, an officer made a breathalyzer demand of the appellant, who refused to supply a breath sample.

The Appellant’s Account

[16] The appellant testified at trial. He said he was a passenger in the car, not the driver. He got out of the car by the driver’s door because he could not open the passenger door due to the damage caused by the collision.

[17] The appellant said the driver of the car was a man named “Steve”, a person he had seen around local bars about six times in the preceding five years. The appellant had seen “Steve” in a bar shortly before the accident. “Steve” wanted a tattoo, a request he had made of the appellant (a tattoo artist) on several previous occasions. The appellant had declined “Steve’s” earlier requests because “Steve” was always drunk. This time, however, “Steve” was not impaired. The appellant agreed to do the tattoo, even though he had consumed nearly a dozen beers.

[18] The appellant got into “Steve’s” car. “Steve” drove them to the appellant’s mother’s house to pick up the tattoo equipment. The appellant put the equipment in the back of “Steve’s” car. The men headed towards “Steve’s” place in Barrie. Their trip was interrupted by the collision. When the appellant got his bearings after the collision, “Steve” was gone and never reappeared.

The Reasons of the Trial Judge

[19] The trial judge gave oral reasons for judgment the day following the submissions of counsel. She did not believe the appellant’s testimony. She accepted the evidence of the neighbour and the investigating officer. She accepted that the appellant had responded to the investigating officer’s question about who had been driving the car by raising his hand and speaking his name. She found that this was confirmatory of the appellant being the driver. She drew an adverse inference from the appellant’s running from the scene.

THE GROUNDS OF APPEAL

[20] The appellant submits that the trial judge erred in law:

i. in characterizing the appellant’s defence, that “Steve” was the driver of the car, as an alibi, the late disclosure of which supported an adverse inference against the appellant and amounted to positive evidence of guilt;

ii. in using the statutory adverse inference in s. 258(3) of the Criminal Code, R.S.C. 1985, c. C-46, as an item of evidence to prove that the appellant was the driver of the car; and

iii. in making impermissible use of the appellant’s “abysmal criminal record” in reaching her determination of guilt.

In my view, the trial judge committed all three errors. However, and as I mentioned before, I would dismiss the appeal. The evidence was so overwhelming that there was no realistic possibility that a new trial would have led to a different outcome.

Ground #1: The Alibi Ground

[21] Three brief excerpts from the trial judge’s reasons fairly represent her characterization of the appellant’s defence as an “alibi” and her treatment of it:

The ridiculous made-up alibi with late disclosure and no details about this Steve guy who was never mentioned to the police.

With respect to what is essentially an alibi, the Steve driver issue, there was never any disclosure to the police at any time. Apparently it was only disclosed at the judicial pre-trial held, I believe, in June of 2013. No last name, a generic description, no known address were provided. I agree that the details were meaningless. An investigation wasn’t possible.

Again, I’ve already found that this alibi – I don’t believe the alibi, and although it’s not necessary in this case, I also draw an inference with respect to this alibi evidence, the late disclosure, and the lack of detail about this Steve individual.

[22] The appellant denied that he was the driver of the car. However, he admitted that he was in the car when the collision occurred. In the passenger seat, not the driver’s seat. His acknowledged presence at the scene when the offence was committed was not an alibi. He was there. He was not elsewhere.

[23] The Latin word “alibi” means elsewhere. It is an assertion that when the alleged unlawful conduct took place, the person charged with it was elsewhere, and thus it was impossible for him or her to have committed the offence: R. v. Gottschall (1982), 1983 CanLII 3596 (NS CA), 10 C.C.C. (3d) 447 (N.S. S.C. (A.D.)), at p. 455. Alibi evidence must be determinative of the final issue of guilt or innocence of an accused: R. v. Sgambelluri (1978), 1978 CanLII 2514 (ON CA), 43 C.C.C. (2d) 496 (Ont. C.A.), leave to appeal to S.C.C. refused (1978), 43 C.C.C. (2d) 496, at p. 500. The defence advanced here did not shift the factual focus from the facts alleged by the Crown to an entirely different factual scenario: R. v. Wright, 2009 ONCA 623, 247 C.C.C. (3d) 1, at para. 19.

[24] Mischaracterization of the appellant’s position at trial as a defence of alibi led the trial judge into a second error. She drew an adverse inference against the appellant from his failure to disclose his “alibi” in a timely manner. No legal basis existed for her to do so. No alibi. No adverse inference from failure of early disclosure of the alibi.

[25] A final point about the misuse of the alibi. The comment “the ridiculous made-up alibi” comes uncomfortably close to converting disbelief of an alibi to proof of its concoction. No shortage of precedent forecloses this line of reasoning.

Ground #2: The Adverse Inference from Refusal to Comply

[26] The appellant refused to comply with a valid breathalyzer demand made of him at the police station after he had been taken there from the scene of the accident.

[27] The trial judge referred to the provisions of s. 258(3) of the Criminal Code, which permit a court to draw an inference adverse to an accused from his or her failure or refusal to comply with a breathalyzer demand under s. 254. The judge said: “Although not necessary to draw an inference as I’m already satisfied beyond a reasonable doubt without drawing the inference, I draw this inference in this case.”

[28] Section 258(3) permits, but does not require a court to “draw an inference adverse to the accused” from a failure or refusal of an accused to comply with a breathalyzer demand without reasonable excuse. The section applies only to specified alcohol-driving offences. It does not apply in prosecutions for driving while disqualified or prohibited or to prosecutions for possession of stolen property.

[29] A trier of fact is entitled to draw inferences from circumstantial evidence, as for example from the refusal of a person accused of crime to participate in certain investigative procedures: John Henry Wigmore, Evidence in Trials at Common Law, Vol. II, revised by James H. Chadbourn (Toronto: Little, Brown and Company, 1979), at pp. 120-122. At common law, a refusal was considered to be evidence of consciousness of guilt: Wigmore, at pp. 120-121.

[30] Section 258(3) represents a codification of the common law principle in a defined set of circumstances. A breathalyzer is a device that measures blood-alcohol concentration by an analysis of samples of breath. A demand made under s. 254 makes clear the purpose of the test. The results of the test establish the concentration, if any, of alcohol in the blood of the person who provides the sample. And in its turn, the blood-alcohol concentration may establish or help to establish an essential element of an alcohol-driving offence.

[31] Like other statutory provisions that permit a court to draw an adverse inference, s. 258(3) does not show its hand to reveal the precise adverse inference it has in mind. The inference, like any inference from circumstantial evidence, must be logical and reasonable, not illogical or speculative. On this basis, the adverse inference permitted by s. 258(3) must be concerned with impairment and an accused’s state of mind on that issue. It is not a reasonable and logical inference from refusal to provide a breath sample that the person who refused was the operator or had the care or control of a motor vehicle.

[32] The only issue at trial in this case was whether Crown counsel had proven beyond a reasonable doubt that the appellant was the person driving the stolen vehicle at the time of the collision. On that issue, no reasonable and logical inference could arise from his refusal to comply with a breathalyzer demand. Refusal to provide a breath sample on demand does not make it more or less likely that the person who refused, in this case the appellant, had care or control of the stolen vehicle at the time of the collision.

[33] The only issue on which the adverse inference of s. 258(3) could assist the Crown in its proof was not an issue at trial. Counsel acknowledged that the appellant was impaired. Although the trial judge did not expressly say how she used the adverse inference, it seems reasonable to conclude that she used it on the single issue that was in controversy at trial – the identity of the driver. She erred in doing so.

Ground #3: Misuse of the Appellant’s Criminal Record

[34] In her reasons for judgment, the trial judge made reference to the appellant’s “abysmal criminal record,” which had been filed as an exhibit.

[35] The appellant’s criminal record, whether filed as an exhibit or simply put to him when he testified as a witness, was admissible for a limited purpose. It was a factor for the trial judge to consider, one of many, in assessing the credibility of the appellant as a witness at trial and the weight to assign to his evidence.

[36] The reasons of the trial judge do not disclose, either in express terms or by necessary implication, that she confined her use of the appellant’s criminal record, which included multiple convictions for cognate offences, to her assessment of the appellant’s credibility and the weight to be assigned to his evidence.

The Effect of the Errors

[37] Not every error in a criminal trial warrants appellate intervention. Some do. Others do not. Errors of law are not always fatal. Under s. 686(1)(b)(iii) of the Criminal Code, convictions can be upheld despite errors of law provided the error has not resulted in a substantial wrong or miscarriage of justice: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34.

[38] The burden of showing an appellate court that the proviso of s. 686(1)(b)(iii) should be applied and the conviction sustained despite the error rests on the Crown: Van, at para. 34. Two categories of error may be saved by the proviso. An error may be so minor or harmless that it could not have had any impact on the verdict. A second category consists of serious errors, which would otherwise justify a new trial or acquittal, except that the evidence against the appellant is so overwhelming that any other verdict would have been impossible to obtain: Van, at para. 34. Where the evidence against an accused is so powerful and no realistic possibility exists that a new trial would yield a different result, the proviso should be applied to avoid the cost and delay of further proceedings: Van, at para. 36; and R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 46.

[39] This was a simple case. The only issue was whether Crown counsel had proven beyond a reasonable doubt that the appellant was the driver of the stolen car that struck the parked truck. Defence counsel acknowledged at trial that convictions should follow on all counts upon proof beyond a reasonable doubt that the appellant was the driver of the car.

[40] The evidence that the appellant was the driver of the car was overwhelming. He emerged from the driver’s side within at most a couple of minutes of the collision. There was no evidence of anyone else in the immediate vicinity of the vehicle. He attempted to flee the scene, but was stopped by a neighbour. The circumstances of the accident were suggestive of a driver with compromised abilities: the car struck a pick-up truck parked on the boulevard off the travelled portion of the roadway. The appellant was impaired. When a police officer asked who had been the driver of the car, the appellant put up his hand and said “Me, Dan Rawn”.

[41] The trial judge described the requirements of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, and proceeded to consider whether she believed or had a reasonable doubt about the appellant’s denial of liability. She did not believe the appellant. His evidence raised no reasonable doubt about his guilt. She relied upon the testimony of the neighbour who saw the appellant get out of the car, the truck owner and the investigating police officer. It was only after these findings that the trial judge referred to:

i. the alibi and its late disclosure;

ii. the adverse inference in s. 258(3) of the Criminal Code; and

iii. the appellant’s “abysmal criminal record”.

[42] The trial judge’s reasons reveal the errors of law advanced by the appellant. That said, the reasons make it clear that she was satisfied beyond a reasonable doubt about the appellant’s guilt without drawing the adverse inference for which s. 258(3) provides. She also made it clear that she had already rejected the appellant’s “alibi” and that drawing an adverse inference from late disclosure was “not necessary in this case”. The statement about the appellant’s “abysmal criminal record” must also be read in light of her apparently correct use of the criminal record of a Crown witness.

[43] On any objective analysis, the “Steve as driver” story would not give pause to even the most gullible assessor. The appellant, a drunken tattooist, happens upon “Steve”, sober for the first time in the appellant’s experience. “Steve” wants a tattoo. They decide to drive to Barrie to do the tattoo. “Steve” has a car, which he crashes into a pick-up truck parked on the boulevard in front of a house. Then “Steve” disappears so quickly that a witness with an unobstructed view of the accident scene within seconds sees only the appellant emerging from the driver’s door of the vehicle.

CONCLUSION

[44] Despite several errors in the trial judge’s reasons, I am satisfied that the appellant’s convictions should be affirmed. The evidence against him was so overwhelming that there is no realistic possibility that a new trial would produce a different result.

[45] For these reasons, I would dismiss the appeal from conviction. The appeal from sentence is dismissed as abandoned.

Released: June 4, 2015 (D.W.)

“David Watt J.A.”

“I agree S.E. Pepall J.A.”

“I agree M.L. Benotto J.A.”