Court of Appeal for Ontario

Date: July 10, 2018 Docket: C61791 Justices: Doherty, MacPherson and Rouleau JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Nicholas Andrew Semple Appellant

Counsel

K.Y. Tina Yuen and Cate Martell, for the appellant

Mabel Lai, for the respondent

Hearing and Appeal

Heard: July 5, 2018

On appeal from: The conviction entered on December 4, 2015, by Justice Robert F. Scott of the Superior Court of Justice.

Reasons for Decision

[1] At the conclusion of the hearing, the court advised that the appeal was dismissed with reasons to follow. These are those reasons.

[2] The appellant and his older cousin Aaron Knapman attended a party after a day of drinking. They left the party in Aaron's van with Aaron driving and the appellant in the passenger seat. Both were intoxicated.

[3] About 30 minutes later, the van spun off the highway and collided with an exit sign. The appellant was able to escape the van. He flagged down passing cars in an attempt to obtain help. To one of the drivers who pulled over, he yelled "help me, help me Adam's [sic] in the car in the passenger side". The driver attempted to help the appellant break a window to get into the van, but they were unsuccessful. The van caught fire and Aaron ultimately died in the flames.

[4] The appellant made several false statements to bystanders and, later, to police. He denied any involvement in the accident and he asked several bystanders to drive him away from the scene. When the police approached him as he was sitting in a bystander's vehicle, the appellant said to the driver "I'm with you right?" The driver had to clarify that that was not the case.

[5] The appellant told another police officer on the scene that he had witnessed the accident from a cornfield beside the highway. Having observed that the appellant was injured and had no shoes on, the officer determined that the appellant had been in the vehicle at the time of the accident and arrested him. The appellant then maintained that he had seen the accident from the overpass, but when the officer asked him if his identification was still in the van, the appellant responded yes and then froze. It was at this point that the appellant admitted to being in the van, but maintained that he was not the driver.

[6] A few hours after the accident, the appellant told a breathalyzer technician that he had only known Aaron for two months. Several hours after that, in a formal police interview, the appellant said that Aaron had been driving because he had not been drinking that night.

[7] Aaron's body was found in the wreckage in a seated position in the passenger seat. His cause of death was determined to be smoke inhalation.

Trial and Charges

[8] The appellant was charged with impaired driving causing death and "over 80" causing death. The issue at trial was whether Aaron or the appellant was driving at the time of the accident. The Crown's theory was that sometime after leaving the party, Aaron and the appellant had changed places and at the time of the accident, the appellant was the driver.

[9] At trial, an expert in accident reconstruction testified that, based on the position of Aaron's body and his head being trapped in a "fold" in the roof line and door frame that had occurred on impact, Aaron was likely the passenger at the time of the accident. The expert could not, however, exclude the possibility that Aaron had either fallen or moved from the driver's seat to the passenger seat after the impact.

[10] The appellant testified and offered a number of explanations for his false statements: that he did not want to face his family or Aaron's family and he felt guilty that he could not save Aaron; that he was scared and in shock; that he did not know if Aaron was alive; and that he was only 18 years old. The defence relied principally on this first explanation for the appellant's false statements.

Trial Judge's Decision

[11] After instructing himself on R. v. W.(D), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 and acknowledging the appellant's young age, intoxicated state and the physical and psychological trauma of the accident, the trial judge rejected the appellant's denial that he was driving. The trial judge also rejected the appellant's various explanations for the false and misleading statements he made to bystanders and the police following the accident.

[12] The judge made clear that the evidence of the accident reconstructionist, on its own, was not sufficient to discharge the Crown's burden to prove its case beyond a reasonable doubt. Something more was required.

[13] Later in his reasons, the trial judge noted that "[s]ometimes an accused by a combination of his actions and his exculpatory statements also assist greatly the court in determining that the case has been proven by the Crown beyond a reasonable doubt". In the trial judge's view, the appellant's post-offence conduct supported an inference of guilt.

[14] As a result, having rejected the appellant's evidence and in reliance on the evidence that he did accept, the trial judge concluded that the only reasonable inference was that the appellant was the driver at the time of the accident. As a result, he was convinced beyond a reasonable doubt of the guilt of the accused.

Grounds of Appeal

[15] The appellant raises three grounds of appeal.

First Ground: Inferring Guilt from Disbelief

[16] First, he argues that the trial judge erred in inferring guilt from his disbelief of the appellant. In support of this submission, he points to comments made by the trial judge in his exchanges with counsel during the defence submissions at trial, which he says demonstrate the trial judge's misunderstanding of the limited use he could make of his rejection of the appellant's evidence.

[17] In our view, these statements by the trial judge, when read in context, do not support the assertion that the trial judge inferred guilt from disbelief. In his reasons, the trial judge made clear that he understood that in order to convict, he not only had to reject the appellant's testimony, but he had to find, on the evidence he did accept, that the Crown had proven beyond a reasonable doubt that the appellant was the driver. As a result, we reject this ground of appeal.

Second Ground: Treatment of Falsehoods as Fabricated Statements

[18] The second ground of appeal is that the trial judge erred in treating the appellant's falsehoods as fabricated statements from which an inference of guilt could be drawn.

[19] We disagree. The trial judge was alive to the requirement that there be independent evidence, apart from the evidence showing that the statements were false, that the appellant deliberately fabricated the statements.

[20] The trial judge emphasized that the appellant continued to make false statements for many hours after the accident, including in his formal statement to police. It is clear from his reasons, read in the context of the record as a whole, that the trial judge's finding of fabrication flowed from the evolution, timing and duration of the statements as well as the nature of the appellant's deception. The record provides ample support for finding that the statements were not merely false, but fabricated for the purpose of escaping criminal liability. The appellant's falsehoods evolved rapidly in lockstep with the shifting circumstances, they were inherently implausible, and their timing and duration evinced a deliberate effort to deceive.

[21] As explained by this court in R. v. McLellan, 2018 ONCA 510, [2018] O.J. No. 2941, at paras. 47-49, the probative value of post-offence conduct must be determined by viewing the conduct as a whole and not in isolation. Viewed in this way, the appellant's fabrications were capable of supporting the inference that the appellant was the driver of the vehicle at the time of the accident. The trial judge properly treated the fabrications as circumstantial evidence of guilt.

Third Ground: Unreasonable Verdict

[22] The final ground of appeal is that the verdict was unreasonable. In support of this submission, the appellant, in effect, repeats his submission that the post-offence conduct had little or no probative value. He also submits that the appellant's guilt was not the only reasonable inference to be drawn from the evidence in this circumstantial case.

[23] We disagree. The evidence of the accident reconstructionist combined with the appellant's post-offence conduct, viewed in the context of the evidence as a whole, is such that a properly instructed trier of fact, acting judicially, could reasonably have concluded that the appellant's guilt was the only rational inference that could be drawn. We see no basis to interfere.

Conclusion

[24] In conclusion, therefore, the appeal is dismissed.

"Doherty J.A."

"J.C. MacPherson J.A."

"Paul Rouleau J.A."