Court of Appeal for Ontario

Date: 2018-09-20 Docket: C63696

Judges: Strathy C.J.O., Doherty and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Aman Bhandhol Appellant

Counsel

Glen Henderson, for the appellant Justin Reid, for the respondent

Heard: September 17, 2018

On appeal from: The conviction entered by Justice C. Ann Nelson of the Ontario Court of Justice on December 22, 2016.

Reasons for Decision

[1] The appellant appeals from his conviction for various impaired and dangerous driving offences. At the conclusion of the hearing of the appeal, we dismissed the appeal with reasons to follow. These are those reasons.

[2] The main issue at trial was the identification of the driver of the motor vehicle ("the Acura") that hit the victim's motor vehicle and sent it smashing into a pole, causing the victim very serious, permanent injuries. The appellant admitted that he was impaired, that the driving of the Acura, which belonged to his father, was dangerous, and that it caused the victim bodily harm. For the purposes of the appeal, it is conceded as a reasonable finding by the trial judge that the appellant was associated with and an occupant of the Acura. However, the appellant maintains that the trial judge erred in finding that he was the driver.

[3] The appellant submits that the verdict was unreasonable because of the unreliability of the four witnesses called by the Crown. Each testified about seeing one or two people fleeing from the Acura. The appellant says the trial judge erred by failing to recognize the exculpatory effect of the serious inconsistencies in the witnesses' description of the driver's clothing, including the possibility that there was a third person in the Acura who may have been the driver. This should have left the trial judge with a reasonable doubt as to the identity of the driver of the Acura.

[4] We are not persuaded by these submissions.

[5] The present case is entirely distinguishable from the circumstances of R. v. Boucher, [2000] O.J. No. 2373 (CA), where the conviction of one of the appellants was founded primarily on inconsistent eye-witness testimony about the clothing worn by one of the parties to a robbery and there was not "a scintilla" of other evidence connecting him to the offence (paras. 19-20). Here, the trial judge did not base her conviction of the appellant on the eye-witness testimony alone nor did she consider it in isolation from the totality of the evidence. As she correctly noted, the Crown had amassed a "formidable circumstantial case" against the appellant, which she carefully reviewed in her meticulous reasons.

[6] In addition to the appellant's concessions and the portions of the eye-witness testimony that the trial judge accepted as credible and reliable, the Crown's case included the video footage from the adjacent church showing the appellant running through the church parking lot, away from the crash site while frequently looking behind him, and into the forest where he was found and arrested in due course by the police in company with the other occupant of the Acura, who was light-skinned and wearing shorts. The appellant's darker skin colour, the fact he was wearing pants, and his movements following the crash were also corroborated by the eye-witness testimony accepted by the trial judge. There was no dispute that the appellant was the person seen in the video and that at the time of his arrest he was wearing the same clothing – a dark grey t-shirt, blue jeans and white sneakers – as also shown in the still from the booking video the police station and confirmed by the arresting officers' evidence.

[7] The trial judge approached the eye-witness testimony with the necessary caution that she acknowledged was required because of its inherent frailties. As she was entitled to do, she accepted the evidence of two of the four eye-witnesses that the appellant exited from the driver's side of the Acura and then ran through the church parking lot and into the forest. She was clearly alive to the discrepancies in the eye-witness testimony and their potentially exculpatory nature, as is demonstrated by her examination of the evidence. She returned to these discrepancies several times in her reasons as she looked at them from the perspective of the various defence arguments, including whether they gave rise to the possibility of a third occupant of the Acura.

[8] At the conclusion of her thorough analysis, the trial judge came to grips with the crucial question of whether these discrepancies left her with a reasonable doubt as to the identity of the driver:

A final point, does the issue of the clothing discrepancy raise a reasonable doubt that Mr. Bhandhol was the driver? In other words, when the clothing discrepancy is considered as part of the totality of the evidence, as it must be, is, nevertheless, the only reasonable inference available one of guilt, that is, that Mr. Bhandhol was the driver of the Acura owned by his father at the time of the accident; that it was Mr. Bhandhol who departed the accident scene through the church parking lot, and that it was Mr. Bhandhol who was arrested by police in the clearing in the woods near the church parking lot? The answer, in my view, is yes. There is no other reasonable explanation based on the totality of the evidence, notwithstanding the discrepancy in the description of the clothing. [Emphasis added.]

[9] We see no error in the trial judge's analysis and conclusions which were open to her on the record.

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

"G.R. Strathy C.J.O." "Doherty J.A." "L.B. Roberts J.A."