Court and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20230622 DOCKET: C66185

Trotter, Thorburn and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

Mohinder Saini Appellant

Counsel: Marianne Salih and Alexander Ostroff, for the appellant Andrew Cappell, for the respondent

Heard: April 11, 2023

On appeal from the conviction entered by Justice J. Bryan Shaughnessy of the Superior Court of Justice, dated September 14, 2018, with reasons reported at 2018 ONSC 5260, and from the sentence imposed on November 9, 2018.

Thorburn J.A.:

Overview

[1] The appellant, Mohinder Saini, appeals his conviction on four counts of dangerous driving causing death and nine counts of dangerous driving causing bodily harm. He also appeals his six-year sentence.

[2] The facts underlying his conviction are as follows: The appellant was a commercial truck driver. At approximately 10:29 p.m. on October 2, 2015, he was traveling westbound on Highway 401 near Whitby in a tractor-trailer. The weather and visibility were good that evening, and the roads were dry. After driving his commercial truck through a construction zone with numerous signs of upcoming construction and reduced lanes, he failed to slow down or react to slowed traffic ahead of him and instead, struck a Ford Fiesta from behind which set off a multi-impact collision involving 17 vehicles. Four people, including two children, were killed and nine others sustained significant bodily harm, including permanent, life-altering injuries.

[3] There is no dispute on appeal that the collision of the appellant’s truck with other vehicles caused the deaths and injuries.

[4] The central issue at trial was whether the Crown had proven the requisite intent (“mens rea”). The Crown took the position that the requisite intent was met as the appellant’s conduct was a marked departure from the standard of care a reasonable person would observe in the circumstances. The appellant however, claimed the accident was caused by a momentary inattention which did not represent a marked departure from the standard of care.

[5] The defence called two expert witnesses who testified that at the time these offences were committed, the appellant likely had untreated sleep apnea and had experienced “microsleep” in the moment immediately prior to the collision that rendered him unable to stop in time to avoid the collision.

[6] The trial judge rejected their evidence and held that the Crown had proven the mens rea for the offences. On September 14, 2018, the appellant was convicted on all counts and on November 9, 2018, a six-year custodial sentence was imposed.

[7] The appellant claims his appeal of conviction should be allowed and a new trial ordered.

[8] First, he claims the trial judge applied uneven scrutiny to the defence evidence by rejecting all of his evidence except those parts that contradicted the appellant’s expert evidence. He claims the trial judge also applied uneven scrutiny in rejecting the expert evidence that the accident was probably caused by the appellant’s undiagnosed sleep apnea and his momentary lapse of awareness while driving.

[9] Second, he claims the sentence was demonstrably unfit as the sentencing judge afforded too much weight to specific deterrence and not enough to the mitigating factors of the appellant’s advanced age and medical condition. He claims that specific deterrence is not applicable in this case given the appellant’s age and his undertaking not to drive any more.

[10] Third, the appellant seeks leave to adduce fresh evidence in support of his new argument that his s. 14 Charter rights were violated by virtue of the inadequate interpretation from English to Punjabi, during the trial and sentencing. Given that the appellant’s focus was on the sentencing phase of the proceedings, I address this issue in the context of the sentence appeal below. [1]

[11] For the reasons that follow, I would dismiss the appeal.

Analysis of the Issues

The First Ground of Appeal: Uneven Scrutiny of the Evidence

[12] The appellant claims the trial judge applied uneven scrutiny to the defence evidence by (i) largely rejecting the appellant’s evidence and (ii) applying uneven scrutiny in rejecting the expert evidence that the accident was probably caused by the appellant’s undiagnosed sleep apnea and his momentary lapse of awareness while driving.

[13] Findings of credibility and reliability are entitled to a high degree of deference. To succeed on an argument of uneven scrutiny of the evidence, “the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that makes it clear that the trial judge applied different standards in assessing the evidence of the appellant and the [Crown]”: R. v. Howe (2005), 192 C.C.C. (3d) 480, at para. 59 (Ont. C.A.); R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at paras. 96-98; and R. v. S.P., 2021 ONCA 233, at para. 27.

[14] The trial judge properly rejected much of the appellant’s testimony and held that “the collision never occurred in the manner described by [the appellant]” as:

a) Although the appellant claimed he was reducing his workload and this was to be his last drive, the appellant’s own logbook showed that he had not reduced his workload for the period leading up to the collision;

b) Although the appellant testified that before the collision he put his foot on the brake and never stepped on the accelerator again, that evidence was contradicted by data downloaded from the appellant’s vehicle and the reconstruction report which showed that the appellant did step on the accelerator again after braking;

c) His testimony at trial regarding the collision was unclear or contradictory on several other points: for instance, the appellant provided evidence at trial that he could not remember which vehicle he struck first which was contradicted by the appellant’s statement to police at the site, and he testified that he did not know how many vehicles he had struck, and at another, that he only hit one vehicle; and

d) The appellant claimed he was forced to hit his brakes because the truck in front of him suddenly braked but this evidence was contradicted by vehicle data, the reconstruction report, and the testimony of other drivers that the traffic was stopped or slowed a substantial distance ahead of the appellant. His own counsel therefore conceded that his evidence on this point should be rejected.

[15] There was therefore ample evidence to support the trial judge’s conclusion that the appellant’s evidence as to how the collision occurred was not credible.

[16] Second, there was evidence upon which the trial judge relied to (i) dismiss the opinions of the appellant’s expert witnesses that the collision was likely caused as a result of a “microsleep” moments before the impact and (ii) reject the appellant’s evidence that he failed to see the construction signs because of a “restriction of awareness” caused by fatigue.

[17] The findings in the reconstruction report were not disputed. The reconstruction report provides that the collision occurred “at the end of the curve” (that is, within the curve) not out of the curve in the road and the appellant testified that he put on his brakes 1.5 seconds before the collision.

[18] Both Drs. Rudin-Brown and Shapiro agreed that it would be impossible to steer through a curve in a road while asleep. The appellant acknowledged that he knew he was going into a construction zone and had to pay special attention while driving.

[19] Given the appellant’s experts’ opinion that it would be impossible to steer through a curve while asleep, and the reconstruction expert’s report that the impact occurred within the curve, there was evidence to support the trial judge’s conclusion that the appellant could not have experienced a “microsleep” while navigating the curve. In any event, as noted by the trial judge, the Maintenance of Wakefulness Test “objectively shows that the [appellant]’s sleep apnea did not interfere with his ability to stay awake on the dates of testing in April and June 2018, [such that] I find that it is a reasonable inference that [his] sleep apnea on [the date of the accident] also did not interfere with his ability to stay awake” (emphasis in original).

[20] For these reasons, the trial judge concluded that although the appellant claimed he saw no construction signs leading up to the collision:

I find on all the evidence that since the accused could not have been micro-sleeping through the curve, I find that the expert evidence of a “micro-sleep” is speculative at best and unsupported by any relevant evidence.

[21] There was also evidence to reject Dr. Shapiro’s opinion that the appellant was “abnormally sleepy” on the day of the accident as the appellant had not complained of fatigue to his physician and he steadfastly denied in his testimony at trial and his statement to police, that he was tired in any manner on the day of the accident. In finding the appellant’s evidence that he was not sleepy on the date of the collision did not support a finding that he had experienced a microsleep, the trial judge was merely pointing out that the appellant’s evidence in this regard did not support the theory of the appellant’s experts.

[22] Third, the trial judge rejected the appellant’s account of how the collision occurred (which was not supported by other evidence), but accepted the appellant’s uncontroverted evidence that he was aware, based on previous trips along the same route, that construction was taking place in the area where the collision occurred.

[23] The trial judge wrote extensive reasons in which he explained the basis for his findings of fact and deference is owed to those findings. He was entitled to accept some, all or none of the appellant’s evidence and properly exercised his discretion in so doing: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 64-67; R. v. A.K., 2018 ONCA 567, at para. 7; and R. v. N.K., 2021 ONCA 13, at para. 11. I see no palpable or overriding error in those reasons. As such, I would dismiss the first ground of appeal.

The Second Ground of Appeal: Appeal of Sentence

[24] Second, the appellant claims the sentence was demonstrably unfit as the sentencing judge afforded too much weight to specific deterrence and not enough to the mitigating factors on sentence.

[25] The sentencing judge referred to the principles relevant to sentencing set out in s. 718 of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge considered the mitigating factors such as the fact that the appellant was a 76-year-old first-time offender at the time of trial, with strong family support, no prior driving record who suffered from chronic renal disease and sleep apnea. He noted that the correctional authorities are able to address those medical issues.

[26] He also noted that the law requires that sentences not exceed the lifetime of an individual.

[27] However, the trial judge also appreciated the importance of denunciation and deterrence as four people died, including two children, and nine others suffered life-changing injuries. He found that the appellant did not take responsibility for his actions and appeared to have “no sincere appreciation of how his driving continues to pose a very serious harm to others.” As such, although neither party raised specific deterrence as an issue on sentence, the trial judge was entitled to and did consider the need for specific deterrence.

[28] The sentence was well within the range for similar offences committed in similar circumstances: see, e.g., R. v. Regier, 2011 ONCA 557, 282 O.A.C. 392; R. v. Bhangal, 2016 ONCA 857.

[29] In short, the sentencing judge considered the factors set out in s. 718 of the Criminal Code, the aggravating and mitigating factors in this case, and imposed a sentence that was not demonstrably unfit. Significant deference is owed on sentencing: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 25-26; R. v. R.A., 2021 ONCA 126, 154 O.R. (3d) 552, at paras. 30-32.

[30] For these reasons, I would dismiss the second ground of appeal.

The Third Ground of Appeal: Breach of a Charter Right to Interpretation

[31] Third, the appellant claims his section 14 Charter right to the assistance of an interpreter was breached.

[32] The appellant brings an application to introduce fresh evidence, which he claims supports his argument that his s. 14 Charter right to the assistance of an interpreter was breached. The evidence consists of an affidavit on behalf of the appellant’s trial counsel, and an affidavit of Muhammad Shafique (who also interpreted at the applicant’s trial), to which two “error reports” are appended.

[33] Given his difficulties with English, the appellant required the services of interpreters throughout the trial and sentencing. He claims the basic standard of interpretation was not met. He claims that he did not appreciate the extent of the problem until an assessment of the evidence was done by an expert translator after his sentence was imposed.

[34] The appellant submits that the admissibility of the proposed fresh evidence be evaluated through the lens of Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775. However, the proposed fresh evidence does not purport to address an issue litigated at trial; instead, it seeks to shed light on the validity of the trial process. I would admit the evidence on this more limited basis, which does not inevitably result in the ordering of a new trial: R. v. Joanisse (1995), 102 C.C.C. (3d) 35, at para. 17.

[35] Section 14 of the Charter confers upon all accused a constitutionally guaranteed right to the assistance of an interpreter where the accused does not understand or speak the language of the court. The right to obtain the assistance of an interpreter ensures that a person charged with a criminal offence hears the case against him or her and is given a full opportunity to answer it: R. v. Tran, [1994] 2 S.C.R. 951.

[36] A person alleging a violation must show that (i) they needed an interpreter, (ii) there was a departure from the basic, constitutionally guaranteed standard of interpretation, and (iii) the alleged lapse in interpretation occurred “in the course of the proceedings themselves when a vital interest of the accused was involved, i.e., while the case was being advanced, rather than at some point or stage which was extrinsic or collateral to the advancement of the case.” In other words, an appellant must demonstrate that there is a real possibility that the appellant either did not understand or was misunderstood: Tran, at pp. 978-991; R. v. Rybak, 2008 ONCA 354, 233 C.C.C. (3d) 58, at paras. 72-86; Little c. R., 2022 QCCA 1138, at para. 15; R. v. Gill, 2017 SKCA 76, 356 C.C.C. (3d) 103, at paras. 44-48; R. v. Match, 2015 BCCA 271, 326 C.C.C. (3d) 41, at paras. 8-10.

[37] The onus to establish a breach of s. 14 of the Charter falls on the party asserting the violation and the standard of proof is on a balance of probabilities. Once a court is satisfied that the first three requirements have been met, a violation of s. 14 will have been made out unless the Crown is able to prove, again on a balance of probabilities, that there was a valid and effective waiver of the right which accounts for the lapse in (or lack of) interpretation shown to have occurred. This must be assessed in the overall context of the trial and not on a piecemeal basis. The standard is not perfection given the real time demands of the court room, the possibility of ambiguity in the original phrases, and the fact that there may not always be an exact translation for certain phrases and the standard is lower than it might be for translation of a written document. The number, quality and impact of the errors are all relevant: Little, at paras. 17-19, 51; Tran, at pp. 986-988; and R. v. S.A., 2021 ONCA 434, at paras. 26-32.

[38] In this case, the interpreter at issue did not interpret for the entire trial; six other interpreters, none of whom have been impugned, also assisted the appellant. [2]

[39] The appellant’s expert, Mr. Shafique, reviewed approximately 115 minutes of evidence which the appellant claimed was in issue. In his affidavit, he identified only one error in the translation of the evidence. The alleged error is that the words “You do not normally nap” were interpreted to mean “You do not normally take small sleep”. This is at most an inexact translation and in any event, it is not material.

[40] The other alleged errors relate to a portion of proceedings on June 19, 2018, after the evidence had concluded, during which the trial judge read a ruling relating to the admissibility of hearsay evidence; a portion of the proceedings on June 21, 2018, during which the Crown made closing submissions; and the trial judge’s delivery of his Reasons for Sentence on November 9, 2018.

[41] Much of the June 19 portion is a discussion about scheduling time for submissions. In the Crown’s closing submissions, Crown counsel summarized evidence already adduced by witnesses in the proceeding. Although the audiotape of the translation included some inaudible words, Mr. Shafique characterized the problem as, “the interpreter could not catch up with [the] speed” of the proceedings. The appellant, however, did not indicate that there was anything he did not understand which weighs against his assertion that inadequate interpretation prevented him from meaningfully participating in his trial: see, e.g., R. v. L.C.T., 2012 ONCA 116, 288 O.A.C. 133, at paras. 81-83; R. v. Pham, at para. 6.

[42] The bulk of the alleged interpretation errors occurred during the trial judge’s reading of his lengthy Reasons for Sentence on November 9. The trial judge read his reasons aloud and did not take regular breaks, making it difficult for the interpreter to interpret simultaneously. During the reading of the Reasons for Sentence, the appellant’s trial counsel stated that he did not believe the interpreter was translating all parts of the reasons and the interpreter was not speaking loudly enough. Upon review, some parts of the audiotape with interpretation are inaudible. In his error report, Mr. Shafique identified several specific alleged translation errors but, for the most part, he characterized the interpreter’s translation of various portions of the Reasons for Sentence as “Interpreter summarizes majority of what the judge has said” or “Interpreter summarizes minimum of what the judge has said”.

[43] In sum, the only material errors in interpretation occurred during the reading of the Reasons for Sentence. They did not affect the appellant’s ability to prepare his case, present his case, make submissions to the court, or affect the trial judge’s analysis of the evidence.

[44] Where missing parts of a proceeding can be cured by reading back the missing parts to allow the interpreter to translate them, it may not be necessary to order a new hearing of the issue: Tran, at pp.1010-1011. That is the situation here.

[45] We would order the Crown to obtain a certified translation of the Reasons for Sentence, from English to Punjabi. They will be provided to the appellant so that he has a full and complete appreciation of the reasons for his sentence. A copy of the translated Reasons for Sentence will be filed with the court by providing a copy to the Executive Legal Officer. Consequently, since the appellant has demonstrated no material errors in the translation of the evidence adduced at trial, a new trial is not warranted.

[46] In short, the portions of the interpretation the applicant has impugned do not reveal a real possibility that the interpretation impaired his ability to understand the trial proceedings or make full answer and defence. For these reasons, I would dismiss the third ground of appeal.

Conclusion

[47] For the above reasons, I would dismiss the appeal.

Released: June 22, 2023 “G.T.T” “Thorburn J.A.” “I agree. Gary Trotter J.A.” “I agree. S. Coroza J.A.”

Footnotes

[1] In his written material the appellant also claimed that the trial judge erred in refusing to permit his expert, Dr. Shapiro, an expert in psychiatry and sleep medicine, to testify as to whether sleep apnea or a micro-sleep contributed to the accident. That submission was abandoned in oral submissions on appeal.

[2] The respondent retained an interpreter, Neeta John to provide a verbatim translation, from Punjabi to English, of the portions of the trial interpretation that the appellant identified as being erroneous and/or deficient. We have reviewed her report as well as Mr. Shafique’s.