COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sagoo, 2020 ONCA 770

DATE: 20201204

DOCKET: C64847

Doherty, Roberts and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jastaap Sagoo

Appellant

Mark C. Halfyard, for the appellant

Tanya M. Kranjc, for the respondent

Heard: November 27, 2020 by video conference

On appeal from the convictions entered by Justice G.S. Lapkin of the Ontario Court of Justice, dated June 26, 2017.

REASONS FOR DECISION

[1] The appellant appeals from his convictions on a charge of dangerous driving causing bodily harm and a charge of impaired driving causing bodily harm. Both charges arose out of an accident on the Gardiner Expressway at around 3:30 a.m. on June 18, 2015.

[2] The appellant drove his vehicle into a stopped crash truck, parked in the passing lane to protect persons working on the roadway ahead of the truck. The appellant’s vehicle struck the crash truck, spun out of control into the adjoining lane and was struck by an oncoming vehicle. The driver of that vehicle suffered bodily harm.

[3] There were two live issues at trial:

• Was the appellant guilty of dangerous driving?

• Did the Crown prove the appellant’s ability to operate a motor vehicle was impaired by alcohol at the time of the accident?

[4] The appellant testified. He indicated he had been drinking the previous evening at a concert and later at a nightclub. According to him, he had five drinks. He could not indicate how much alcohol was in any of those drinks. He had something to eat around 2:00 a.m. and did not drink during his meal. The accident occurred about 3:30 a.m.

[5] Both the appellant and a passenger in his vehicle testified and described the accident. They said the appellant was driving at about 95 kilometres an hour in the passing lane, closely behind a large utility van. That van blocked their view of the lane ahead of the van. When the utility vehicle suddenly changed lanes, the appellant saw the crash truck. He attempted to change lanes, but it was too late. His vehicle struck the crash truck, spun out of control and was hit by another vehicle.

[6] Whether there was any large van in front of the appellant’s vehicle became the primary factual dispute at trial. Three persons who were in the vehicle that eventually struck the appellant’s vehicle testified. They saw the appellant’s vehicle approach in the passing lane, pass them and strike the crash truck. None of those witnesses saw a big van travelling in front of the appellant’s vehicle.

[7] The trial judge ultimately rejected the evidence of the appellant and his passenger about the black van. He indicated he did not believe that evidence, nor did that evidence leave him with any reasonable doubt about the existence of the van.

[8] The trial judge went on to conclude, based on the evidence of the other witnesses, the Crown had proved beyond a reasonable doubt the appellant was guilty of dangerous driving (see reasons, pp. 46-47). It was agreed bodily harm was caused to the driver of the other vehicle.

[9] The trial judge also concluded the Crown had proved the appellant’s ability to operate the motor vehicle was impaired by alcohol. The trial judge relied on evidence the appellant had a substantial amount to drink over the evening, although he had stopped drinking about two hours before the accident. This finding was open to the trial judge on the evidence. While he could not quantify the amount consumed by the appellant, it was a fair inference on the appellant’s own evidence he had been drinking socially over several hours that evening. The trial judge also referred to the police officers’ evidence that the appellant smelled of alcohol at the scene, even several hours later.

[10] The trial judge also relied on the circumstances surrounding the accident. On his findings, the appellant drove at about 100 kilometres an hour into the back of a very large, brightly lit crash truck stopped in the lane in which the appellant was driving. On the evidence, that truck would have been visible to the appellant for about 15 or 16 seconds. The appellant did not apply his brakes, and did not take evasive action, even though the persons in the other vehicle testified the appellant could have safely moved into their lane ahead of them.

[11] In addition, the trial judge considered the appellant’s evidence that he had been awake for some 21 hours at the time of the accident.

[12] The appellant raised four issues in his factum, but counsel abandoned the fourth. These reasons address the other three issues.

Issue #1: Did the trial judge err in considering the appellant’s failure to mention the van in the 9-1-1 call when assessing the appellant’s credibility?

[13] As outlined above, the passenger in the appellant’s vehicle used her cellphone to call 9-1-1 while she and the appellant were still in the vehicle. It would appear she did so on the appellant’s direction. The passenger spoke with the 9-1-1 operator. The appellant was, however, clearly listening to the call and, on two occasions, provided information needed by the 9-1-1 operator. Neither the appellant nor the passenger made any reference to the large van blocking their view when reporting the accident to the 9-1-1 operator. The operator specifically asked about the involvement of other vehicles, but this did not elicit any reference to the van.

[14] The trial judge held that the failure to refer to the van in the course of the 9-1-1 call undermined the credibility of the evidence given by the passenger and the appellant to the effect their view was blocked by this large van. On their trial evidence, the presence of the large van was the only reason the appellant had failed to see the crash truck before it was too late to avoid the collision.

[15] Counsel for the appellant accepts the failure to mention the van to the 9-1-1 operator could be used in assessing the credibility of the passenger’s evidence at trial. We agree. The passenger’s statements to the 9-1-1 operator could be considered a prior inconsistent statement relating to the details of the accident.

[16] Counsel submits, however, the conversation with the 9-1-1 operator cannot be viewed as the appellant’s statement and therefore cannot be used to challenge his credibility. We disagree. It was open to the trial judge on this evidence to view the statement to the 9-1-1 operator as the statement of both the appellant and the passenger. Both were purporting to report the circumstances of the accident to the 9-1-1 operator. On the evidence, both clearly heard the question pertaining to the involvement of other vehicles.

[17] On the trial judge’s view, the 9-1-1 call was a statement by both the appellant and the passenger concerning the circumstances of the accident. The failure to mention the van in the 9-1-1 call could be construed as a material and important difference in the description of the accident provided in the 9-1-1 call and the description of the same event provided by the appellant and his passenger in their evidence. On that view, the 9-1-1 call was also a prior inconsistent statement made by the appellant relevant to the circumstances surrounding the accident. It was open to the trial judge to take that prior statement into account in assessing the appellant’s credibility. The weight to be given to that inconsistency when assessing the appellant’s credibility was a matter for the trial judge.

[18] In his submissions, counsel for the appellant submitted the trial judge’s use of the appellant’s failure to refer to the van in the 9-1-1 call infringed upon the appellant’s right to silence and/or his right against self-incrimination. Neither right is implicated by the use of the content of the 9-1-1 call as a prior inconsistent statement going to the credibility of the appellant’s evidence at trial: see R. v. Kiss, 2018 ONCA 184.

Issue #2: Did the trial judge err in denigrating the appellant’s evidence because he added details in cross-examination and re-examination?

[19] The manner in which the evidence of a witness emerges and develops during his testimony can shed light on the witness’s credibility and the reliability of his evidence. The trial judge observed that the appellant’s description of events grew more detailed in the course of his testimony. That observation is borne out by a review of the appellant’s evidence. The trial judge was entitled to consider that feature of the appellant’s evidence in assessing his credibility. It was one of several reasons the trial judge gave for disbelieving the appellant.

Issue #3: Is the finding of impairment unreasonable?

[20] The evidence of impairment in this case was not as strong as it is in many cases. The officers at the scene observed none of the usual indicia of impairment.

[21] Nonetheless, the evidence outlined above (paras. 9-11) provided a basis upon which a reasonable trier of fact, properly instructed, could find the degree of impairment required to warrant a finding the appellant’s ability to drive was impaired. Counsel takes issue with the trial judge’s reference to the strong odour of alcohol, even hours after the appellant’s last drink. That evidence was evidence of alcohol consumption, albeit not evidence on its own of any level of impairment. The trial judge did not draw a direct connection between the odour of alcohol and impairment. The evidence was part of the overall picture and certainly confirmatory of the appellant’s consumption of alcohol, a first step toward proving impairment. Counsel also takes issue with the trial judge’s use of the word “substantial” when describing the appellant’s alcohol consumption. It was open to the trial judge, based on the appellant’s own evidence, to come to that conclusion.

Conclusion

[22] The appeal is dismissed.

“Doherty J.A.”

“L.B. Roberts J.A.”

“A. Harvison Young J.A.”