COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Siddiqui, 2016 ONCA 376

DATE: 20160518

DOCKET: C60692

Epstein, Pepall and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muhammad Siddiqui

Appellant

Counsel:

Richard Litkowski, for the appellant

Nadia Thomas, for the respondent

Heard and released orally: May 13, 2016

On appeal from the conviction entered on December 15, 2014 and the sentence imposed on July 6, 2015 by Justice Roselyn Zisman of the Ontario Court of Justice.

ENDORSEMENT

[1] Early in the morning of March 3, 2013, the appellant was driving his Honda with three passengers, along the Queen Elizabeth Way (QEW). Ali Shahid, the passenger in the front seat, noticed a Nissan, driven by Ahmed Manzoor, beside them. Both cars increased their speed. The cars changed lanes several times. The Honda spun out of control and crashed. Mr. Shahid was ejected from the car and suffered serious injuries.

[2] The appellant was charged with three counts of dangerous driving causing bodily harm. Mr. Manzoor was charged with dangerous driving.

[3] The trial judge, citing R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, correctly noted that to establish the offence of dangerous driving, the Crown had to prove that the appellant was driving in a manner that amounted to a marked departure from the standard of care that a reasonable person would observe in the particular situation.

[4] With respect to Mr. Manzoor, the trial judge found that the actus reus was established, but not the mens rea. The trial judge had no doubt that Mr. Manzoor’s driving was negligent but was left with a reasonable doubt that it was a marked departure from the standard of care. The trial judge acquitted Mr. Manzoor.

[5] The trial judge found the evidence to be much stronger as it pertained to the appellant. Mr. Shahid testified that just prior to the accident the appellant was driving around 170-180 km/h. He asked the appellant to slow down, but the appellant did not. Mr. Shahid testified that once again, he asked the appellant to slow down. Once again, the appellant did not heed Mr. Shahid’s warning. On this evidence, the trial judge found that at the time of the accident, the appellant was driving at a very high speed, refused to slow down when twice asked to do so and was tailgating the Nissan.

[6] The trial judge found the appellant guilty of the charge relating to Mr. Shahid and acquitted him of the charges in relation to the other two passengers. The trial judge imposed a sentence of five months in jail and a five year driving suspension.

[7] The appellant appeals both conviction and sentence.

[8] Concerning the conviction appeal, the appellant submits that the trial judge misapprehended the evidence relating to causation. The appellant contends that even if the evidence supported a finding that the appellant was driving in a manner that represented a marked departure, there was insufficient evidence to support the conclusion that such driving was the cause of Mr. Shahid’s injuries. Specifically, while there was evidence that the appellant was speeding and made a lane change before the accident, there was no evidence of the manner of driving at the time of the accident. Furthermore, argues the appellant, the evidence that the Crown relied on as to the appellant’s driving at the time of the accident was unreliable.

[9] We do not agree with this submission.

[10] The trial judge made specific factual findings available to her on the evidence. Based on Mr. Shahid’s testimony, the appellant was speeding just prior to the accident and, significantly, he ignored repeated warnings to slow down. The trial judge explained why she accepted this evidence, Further, the trial judge accepted the evidence of a witness, Karen Johnson, who saw the two cars pass her a minute or so before the accident at a speed Ms. Johnson estimated to be approximately 150 km/h. The trial judge was not required to address each and every inconsistency in the evidence relevant to this issue.

[11] The appellant also submits that in convicting him and acquitting Mr. Manzoor, the trial judge arrived at inconsistent verdicts. Based on the trial judge’s findings, Mr. Manzoor’s driving was the same as that of the appellant.

[12] Again, we cannot accept this argument.

[13] For a verdict to be inconsistent there must be no realistic view of the evidence or any rational logical basis upon which the verdicts may be reconciled. R. v. Pittiman, 2006 SCC 9, [2006] 1 S.C.R. 381.

[14] The trial judge pointed to two key pieces of evidence that she felt made the case against the appellant stronger than that against Mr. Manzoor - Mr. Shahid’s evidence about the appellant’s speed and his ignored warnings about the speed. This evidence provided insight, not only as to the appellant’s driving, but also as to his state of mind at the time of the accident – that he had repeatedly been made aware of the dangerousness of his manner of driving, and repeatedly chose to ignore the warnings. Such evidence was not available in the case of Mr. Manzoor.

[15] Based on the evidence that was available in relation to the appellant’s driving and state of mind, that was not available in relation to Mr. Manzoor, the high threshold for establishing an inconsistent verdict has not been met in this case.

[16] Concerning the sentence appeal, the appellant argues that having determined that a custodial sentence was required, the trial judge erred in principle in failing to thoroughly consider the appellant’s request for an intermittent sentence.

[17] We disagree. The trial judge expressly addressed the appellant’s request for an intermittent sentence and was of the view that a five month custodial sentence was necessary.

[18] We find no reason to interfere with the sentence imposed by the trial judge. The trial judge clearly showed she was mindful of the principle of restraint, particularly in the light of appellant’s status as a youthful first offender. The five month sentence imposed was fit in all of the circumstances of this offence and this offender.

[19] The appeal as to conviction is therefore dismissed. Leave to appeal sentence is granted. The sentence appeal is dismissed.

“Gloria Epstein J.A.”

“S.E. Pepall J.A.”

“K.M. van Rensburg J.A.”