Court of Appeal for Ontario

Date: 2017-05-30 Docket: C59866

Judges: Rouleau, Trotter and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Nishanth Srikanthan Appellant

Counsel

Breana Vandebeek, for the appellant

Amy Alyea, for the respondent

Heard and Released

Heard and released orally: May 18, 2017

On appeal from the conviction entered on March 11, 2014 by Justice Gordon D. Lemon of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] The appellant was convicted of failing to stop at the scene of an accident, impaired operation of a motor vehicle causing bodily harm, operation of a motor vehicle while over 80 causing bodily harm and dangerous driving causing bodily harm. The sole issue at trial was whether the appellant was the driver of the vehicle when it collided with an oncoming car. The vehicle then fled from that accident and ran into a tree.

[2] The appellant raises two grounds of appeal. First, he argues that the trial judge erred in his instructions to the jury with respect to the in-dock identification made by the Barone sisters who testified as eyewitnesses.

[3] We disagree.

[4] In our view, the trial judge's jury charge reveals no error. Although in his summary of the evidence, the trial judge recited testimony of one of the Barone sisters to the effect that she was confident in her identification, this statement came shortly after cautioning the jury about the frailties of eyewitness evidence including the instruction that an apparently convincing witness can be mistaken.

[5] Although the judge could have added to this caution, in our view, on the particular facts of this case, it was not necessary. The evidence was not objected to when it was given and the appellant's counsel agreed to the portion of the trial judge's instruction that dealt with this point.

[6] In addition, the trial judge thoroughly reviewed the frailties with respect to that identification evidence.

[7] Finally, the identification evidence was only one part of an otherwise substantial Crown case.

[8] We also see no error in the trial judge having included in his jury charge a review of the Barone sisters' identification of Ms. Kugan, the passenger in the car driven by the appellant. This was simply one part of the trial judge's review of the totality of the Barone sisters' evidence. It could not possibly have led the jury to find the Barone sisters' identification of the appellant more reliable. The evidence of their identification of Ms. Kugan was general, vague and did not occupy a significant part of the charge.

[9] The second ground of appeal is that the trial judge erred in noting as part of his charge that Ms. Kugan may have an interest in the outcome of the case because she was a good friend of the appellant. We do not consider this to be an error. It was reasonable to alert the jury to the possibility that Ms. Kugan was covering up for the appellant. In any event, even if the trial judge erred by leaving the jury with that one sentence, his error could not reasonably have affected the verdict in the face of a significant and substantial Crown case.

[10] For these reasons, the appeal is dismissed.

Paul Rouleau J.A.

G.T. Trotter J.A.

David Paciocco J.A.