Court of Appeal for Ontario

Date: 2018-12-21 Docket: C64897

Judges: MacPherson, Pardu and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Eric Vining Appellant

Counsel

M. Godoy for the appellant

Jacob Sone for the Crown, respondent

Heard

December 20, 2018

On Appeal

On appeal from the conviction entered on August 18, 2017 by Justice D. Lahaie of the Ontario Court of Justice.

Reasons for Decision

Overview

[1] Mr. Vining appeals from convictions for theft of a pickup truck, dangerous driving, failing to stop for police and mischief. He submits that the trial judge erred in her assessment of credibility by failing to adequately analyze the evidence of Mr. Gilbert, a key Crown witness, and further that she applied uneven scrutiny to Crown and defence evidence. He submits that while the trial judge's reasons support her rejection of the appellant's evidence, the evidence as a whole did not prove the appellant's guilt beyond a reasonable doubt.

[2] Mr. Vining and Mr. Gilbert were both occupants of the truck, careening down highway 401 at speeds up to 160 kmph. Police gave chase, but abandoned that effort for safety reasons. The truck left the highway and crashed through a gate leading to a marina. Both occupants were found in the area close to the abandoned truck. The issues at trial were the following:

1. Who was driving the truck?
2. Had Mr. Vining stolen the truck?

[3] At the start of the trial, the appellant pleaded guilty to possession of the stolen pickup, theft of a licence plate, possession of other stolen property and breach of probation and of a recognizance.

[4] In the course of the police chase, police observed one of the occupants climb into the back seat. Mr. Gilbert testified that he was that occupant and that the appellant was the driver.

[5] The truck had been reported stolen on December 21, 2016 in Prince Edward County. The appellant was seen on a video recording removing licence plates from another vehicle at a repair shop at 2:58 in the morning in that same county. He installed those stolen plates on the stolen truck. At trial the appellant testified that his friend stole the truck, and that he was with the friend when the truck was stolen. According to the appellant, the friend had his own vehicle and the friend agreed the appellant could use the stolen truck.

The Appellant's Evidence About the Road Trip to Toronto

[6] The appellant and Mr. Gilbert met on December 30, 2016, as the appellant was driving the stolen truck in Montreal. They were both drug addicts, and they spent the morning and the early afternoon together consuming drugs and driving around Montreal and stopping at various places. The appellant removed the keys from the vehicle and required Mr. Gilbert to leave the truck, while the appellant visited a prostitute, as he did not trust Mr. Gilbert, and needed the truck for himself. Mr. Vining testified that he drove up to a gas station, filled the tank, and then drove away without paying. Mr. Vining and Mr. Gilbert decided to drive to Toronto. Mr. Vining testified that he directed Mr. Gilbert to change the plates on the truck, and that he then went into the passenger seat and fell asleep. He was high and had been up for a long time. He woke to see that there were five police cars behind them. Mr. Vining testified that he was the one who jumped into the back seat and that Mr. Gilbert continued to drive and smashed through the marina gate. He told Mr. Gilbert they should split up to facilitate evasion of the police, but ultimately Mr. Vining was apprehended, standing on a rock three feet into the water in the St. Lawrence River.

Mr. Gilbert's Evidence About the Road Trip to Toronto

[7] Mr. Gilbert lived in a shelter in Montreal. He wanted to go to Toronto for New Year's Eve, as he had never been out of the Montreal and Laval area. He testified that the appellant agreed to take him to Toronto in exchange for payment. He testified that the appellant told him that he had stolen the pickup. During their time together the appellant wanted to cash a cheque. Before going into the bank he told Mr. Gilbert to get out of the truck, and locked the doors because he did not trust Mr. Gilbert with the truck.

[8] Mr. Gilbert testified that the appellant stole gas for the truck, then instructed him to place the stolen licence plates on the truck. Mr. Gilbert said he complied. Mr. Gilbert said the appellant drove the truck and began to nod off because of fatigue and drug consumption. Mr. Gilbert said he turned up the radio and tried to get the appellant to stay awake. Mr. Gilbert said he was the front passenger who jumped into the back seat to retrieve his cell phone which had been thrown there as a result of the erratic driving. Mr. Gilbert was apprehended near the shoreline at the marina, distraught, crying, frightened and injured. Mr. Gilbert said that the appellant ordered him to run, threatened him and pushed him to the ground, injuring his hand.

Decision of the Trial Judge

[9] The trial judge rejected the appellant's evidence because of several inconsistencies. The appellant said he was awake for the collision which occurred when police pursued them, however it was clear on the evidence that the collision occurred before police began their pursuit. The appellant testified that he recalled seeing the collision, but also that he only woke up on seeing five police cars in pursuit. The trial judge concluded that the appellant often tailored his evidence when he realized his evidence was illogical or inconsistent. The appellant's credibility was adversely affected by a finding that he lied under oath about his address to try to get bail on an earlier charge and by his criminal record including crimes of dishonesty. He concluded that the appellant was intentionally vague and misleading. The trial judge found it made no sense that the appellant would have contemplated escaping by swimming into the St. Lawrence River in December had he only been guilty of the more minor crimes for which he admitted guilt.

[10] On the other hand, after careful analysis, the trial judge found that Mr. Gilbert's evidence was reliable:

Although Mr. Gilbert conceded that he was high on the date of these offences, and that he too had a criminal record for crimes of dishonesty, I found his evidence to be reliable. Mr. Gilbert provided his evidence in a clear and straight-forward manner. He was excited and nervous as he testified, as he remained fearful of the accused. I accept that he was approached by individuals who threatened to harm him and his family if he testified against the accused. Mr Gilbert was fearful of the accused at the trial, and when he ran with him to avoid police when ordered to do so by the accused, Mr. Gilbert's demeanour upon arrest as described by the officers, support this finding.

Defence counsel argued that the evidence of Mr. Gilbert should raise a reasonable doubt as he had a motive to fabricate his evidence in order to avoid being charged or convicted of the driving offences. I have considered this motive in arriving at my ultimate conclusion that Mr. Gilbert was telling the truth. I found his evidence both credible and reliable.

Defence counsel pointed to the tablet belonging to Mr. Gilbert which was found on the floor on the driver's side of the vehicle. Mr. Gilbert could not explain this, other than to point to the fact that everything in the truck went flying when the accused struck the metal gate. I accept that this is what occurred when Mr. Gilbert jumped into the backseat to get his phone, his tablet remained in the front and ended up on the floor on the driver's side. The swerving of the vehicle and ultimate collision with the gate, caused the table to land in this area.

Mr. Gilbert testified that he did not know how to drive. I believed him. I find that he never drove the truck that day. There would have been no reason for Mr. Vining to allow him to drive. Mr. Vining testified that he let Mr. Gilbert drive because he "chipped in for gas." I reject this evidence, as it is illogical. Mr. Gilbert did not know how to drive and Mr. Vining was not intimidated, frightened or threatened by Mr. Gilbert. He did not know this man. It is illogical that he would have let him drive in the circumstances, especially when he was going to such pains to remove the key and lock the door when he went into the bank for instance. Mr. Vining testified that he did not trust Mr. Gilbert with the truck. On the totality of the evidence, I find that it defies common sense and logic, that Mr. Vining would have allowed Mr. Gilbert to drive this stolen truck.

Mr. Gilbert readily conceded that he was a drug addict, that he had a criminal record, that he changed the licence plates. He did not minimize his evidence or tailor his evidence as he testified.

While I find that someone who is high on drug is generally a poor historian, I accept that Mr. Gilbert did not drive at all, because he could not drive, the vehicle was not his to drive, and the accused would not have entrusted the vehicle to him.

Mr. Gilbert's evidence flowed in a logical fashion. He recalled details such as the precise location where he met the accused, near the McDonald's at St. Catherine's and Papineau, the drugs each consumed, the type of cigarettes he provided to the accused, how much he paid the accused to drive him to Toronto, and many other important details. Mr. Gilbert did not exaggerate his evidence, and he was unshaken in cross-examination. He testified that there was no event with a prostitute, and that he did not enter the accused's apartment. He was unshaken in cross-examination, on all of the key issues.

When his memory was refreshed on certain points, he readily admitted that he had forgotten certain things. For example he testified that he had no debts. When his statement to police was put to him, and specifically that he owed $200 and $500, he readily conceded that this was accurate. I find that the passage of time caused him to forget this detail. I found Mr. Gilbert's evidence reliable.

[11] She found that the evidence of the police officers describing Mr. Gilbert's demeanour on arrest corroborated Mr. Gilbert's evidence. Her analysis demonstrates that she was aware of the strengths and weaknesses of Mr. Gilbert's evidence.

[12] The trial judge concluded that the appellant was the driver of the stolen truck at all times, that he drove in a dangerous manner, failed to stop for police, and deliberately smashed through the marina gate, thereby committing mischief. He found that the appellant was, at the very least, a party to the theft of the pickup truck, but also found that the appellant stole the truck.

Arguments on Appeal

[13] The appellant argues that the trial judge misapprehended the evidence of Mr. Gilbert by failing to reconcile the finding that Mr. Gilbert did not drive with Mr. Gilbert's evidence that at one point during the high speed chase, when Mr. Vining slammed on the accelerator and let go of the wheel, Mr. Gilbert said he grabbed the wheel and controlled the steering wheel for 20-25 seconds. He submits that Mr. Gilbert's credibility was fatally undermined because Mr. Gilbert only mentioned for the first time at trial that he climbed back into the front seat during the chase and further undermined because Mr. Gilbert did not fully admit his past criminal conduct. Trial defence counsel did not suggest to the trial judge that these matters undermined Mr. Gilbert's credibility. The appellant submits that the trial judge erred in inferring that Mr. Gilbert's tablet went flying into the driver's side from the passenger side as a result of the forces exerted on the vehicle.

[14] The appellant argues further that the trial judge failed to properly apply R. v. W.D., a requirement all the more acute when dealing with a Vetrovec witness who was high at the time of the events.

Analysis

[15] Findings of credibility are entitled to deference. Watt J.A. explained in R. v. Wadworth, 2009 ONCA 716 at para. 66:

Resolution of credibility controversies is the daily fare of trial judges. Assessment of credibility is a difficult and delicate subject, often defying precise and complete verbalization. At bottom, belief of one witness and disbelief of another, in general or on a specific issue, is an alloy of factors, not a purely intellectual exercise. The unique position of trial judges to see and hear witnesses, and the inestimable advantage they enjoy in the result in assessing witnesses' credibility and the reliability of their evidence, cannot be squandered by unrealistic expectations of scientific precision in language used to describe the complex coalescence of impressions that effuse after watching and listening to witnesses and attempting to reconcile their renditions of critical events. [Emphasis added, citations omitted.]

[16] There was no misapprehension or uneven scrutiny of the evidence by the trial judge. The conclusions of which the appellant complains were all reasonably drawn from the evidence, and supported by detailed reasons. Mr. Gilbert's evidence that he seized the steering wheel in a moment of panic when the appellant let go of it while flooring the accelerator could not reasonably be described as contradicting Mr. Gilbert's own evidence that he did not drive. Mr. Gilbert was essentially homeless and carried all of his possessions with him; it is difficult to see how he could have had the means to drive. Mr. Vining had been driving and had had possession of the pickup since it was stolen.

[17] Nor was there any misapprehension of the onus of proof, which was clearly stated and applied. The conclusion that the appellant had stolen the truck was reasonably open to the trial judge given her acceptance of Mr. Gilbert's evidence that the appellant told him he had stolen the truck, and the appellant's possession of the truck from the time it was stolen.

[18] The appeal is accordingly dismissed.

"J.C. MacPherson J.A."

"G. Pardu J.A."

"David Brown J.A."