Court File and Parties

Court File No.: Brampton – 13-623; 13-16537 Date: 2015-05-28 Ontario Court of Justice (Central West Region)

Between:

Her Majesty the Queen

• Counsel: R. Levan

- and -

Brent Samuel

• Paralegal: B. Peterson

Heard: February 10, March 6, 2015

Reasons for Judgment

Schreck J.:

I. Introduction

[1] Brent Samuel is charged with failing to stop at an accident with the intent to escape civil or criminal liability, contrary to s. 252(1) of the Criminal Code. He is also charged on a Provincial Offences Act Information with driving while his licence was suspended, contrary to s. 53 of the Highway Traffic Act, careless driving, contrary to s. 130 of the Highway Traffic Act and driving without insurance, contrary to s. 2(1)(a) of the Compulsory Automobile Insurance Act.

[2] There is no dispute that on November 20, 2013, a motor vehicle registered to Mr. Samuel was involved in an accident with another vehicle and that the person who was driving Mr. Samuel's vehicle fled the scene. There is also no dispute that at that time, Mr. Samuel's driver's licence was suspended and that he was not insured. The central issue is whether the Crown has proven beyond a reasonable doubt that Mr. Samuel was the person operating his motor vehicle at the relevant time.

II. Evidence

A. The Case for the Crown

[3] On the morning of November 20, 2013, Tanya Robson-Ferzoco was driving her children to school heading southbound on Torbram Road in the City of Brampton. While stopped at a red light at the intersection of Torbram Road and Clark Boulevard, she felt a jolt from behind. Realizing that her car had been struck by another vehicle, she exited her vehicle and observed a black car directly behind her. There was smoke coming from it and it had evidently been damaged in the collision. Ms. Robson-Ferzoco's car had sustained less damage but there was some to the rear bumper. Ms. Robson-Ferzoco estimated that the accident happened at around 7:40 a.m.

[4] The driver of the black car exited his vehicle and told Ms. Robson-Ferzoco that he was a mechanic and that he would "take care of it." Ms. Robson-Ferzoco replied that she believed that 911 should be called and that she intended to call her insurer. She returned to her vehicle to call her ex-husband and advise him of the accident. She then got out of her vehicle again and at this point observed the driver of the black car behind his car. The trunk of the black car was open and according to Ms. Robson-Ferzoco, the man appeared to be "fiddling" with something behind the car. Ms. Robson-Ferzoco then called 911. At that point, she noticed the driver of the black car walk towards some bushes at the side of the road and then walk through the bushes. Ms. Robson-Ferzoco estimated that about 15 minutes passed between the time of the accident and the time the man left the scene.

[5] At no time did the man provide Ms. Robson-Ferzoco with his name or any insurance information. He did not ask how she or her children were, nor did he offer any assistance. She did not observe anybody else in the area or anybody else whom she associated with the black car.

[6] Ms. Robson-Ferzoco described the driver of the black car as being a black male with a very "scruffy" face, short hair, about six feet tall, and wearing work clothes, including boots, jeans and "sweatshirt-type" clothing. She testified that she saw the man again in November 2014, when she attended court for the first scheduled date for trial. The trial did not proceed at that time, but she saw him sitting directly outside the courtroom where the trial was to take place. She also made an in-dock identification of Mr. Samuel at trial.

[7] As a result of Ms. Robson-Ferzoco's 911 call, Cst. Ryan Olton was dispatched at 7:48 a.m. to attend the scene. He arrived there at 7:52 a.m. The black car, which was later identified as a Cadillac, had no licence plates on it. A trace of the Vehicle Identification Number ("VIN") through the Ministry of Transportation revealed that the registered owner was the Defendant, Brent Samuel, with an address of 1020 Central Park Drive in Brampton. The accuracy of the information from the Ministry is not in dispute.

[8] According to a Google map tendered in evidence, the shortest distance between the scene of the accident and 1020 Central Park Drive is 2.3 km. Cst. Taylor Dunn, who had also been dispatched to the scene, drove to that address together with another officer, arriving there at about 8:30 a.m. They knocked on the door, which was answered by a woman later identified as Mr. Samuel's great-aunt. The officers asked to speak to Mr. Samuel and he came up from downstairs. According to Cst. Dunn, Mr. Samuel was dressed in black clothing and appeared to be sweating. In cross-examination, he clarified that it appeared to him as if Mr. Samuel had just finished doing some sort of cardiovascular activity. The officers had a conversation with Mr. Samuel. The Crown has not sought to rely on any utterances made by Mr. Samuel and I have not considered them. Mr. Samuel was then arrested.

B. The Defence Case

[9] Mr. Samuel testified on his own behalf. He is a farmer by trade and also earns his living making and selling wooden pallets. He resides with his great-aunt, her daughter and her granddaughter. Mr. Samuel explained that the townhouse complex where he lives has one parking spot per residence. When his second cousin moved into the house in 2012, she required the one parking spot so Mr. Samuel had to put his two cars into a storage facility.

[10] According to Mr. Samuel, the storage facility is located at Rutherford and Steeles Avenue. He acknowledges that he told the police officers that it was on Ray Lawson Boulevard, but explained that this was because he was "flustered" at the time. [1] Mr. Samuel described the storage facility as a "trucker's pit" which was used by a lot of mechanics and truck drivers. He did not have any documentation respecting the storage facility. Mr. Samuel testified that he has only one set of keys for his Cadillac and that those keys were kept by the storage facility, as were the keys to his other car. Whenever he wanted to access his cars, he would have to speak to somebody at the facility, presumably to obtain the keys. The last time he saw the Cadillac was in April, by which I assume he meant April of 2013.

[11] Mr. Samuel testified that two or three weeks prior to his arrest, his friend had an altercation with the landlord of the storage facility. Apparently, Mr. Samuel sublets the storage space so he paid his rental fees to his friend, who in turn paid the landlord, whose name is not known to Mr. Samuel. The landlord wanted to increase the cost of the storage, and it was this that led to the altercation. According to Mr. Samuel, because of the altercation he was not permitted to have access to his vehicles.

[12] Mr. Samuel acknowledged that the Cadillac had not had a validation sticker since 2009. His driver's licence is currently under suspension, which he has been aware of since April 2013, when he was charged with driving while suspended. When asked in cross-examination why he paid to keep cars when his licence was suspended, he replied that it was because he was a car enthusiast who loved cars and loved driving cars. Mr. Samuel explained that he could have paid the fines necessary to have his licence re-instated because he was "born into wealth" and had no money problems, however he did not do so because he had not had an "urge to drive" in the last couple of years. He then added that it was also because he had a lot of court fees to pay.

[13] Mr. Samuel testified that on the day of his arrest, he was in bed when the police came to his home. Mr. Samuel denied that Cst. Dunn was one of the officers who attended. According to him, Cst. Dunn attended the following day. This is contrary to the testimony of Cst. Olton, who testified that he had attended Mr. Samuel's home that day with another officer who was not Cst. Dunn. At the time of his arrest, Mr. Samuel was wearing black jeans and a black T-shirt which was a sort of undershirt used for sleeping in.

[14] Mr. Samuel testified that if he had gone out that morning, which he did not, he would have worn a red plaid jacket. He also testified that the only shoes he ever wore were Chuck Taylor sneakers.

[15] According to Mr. Samuel, he was arrested at 8:07 a.m., far earlier than testified to by Cst. Dunn. He knew this because he looked at the clock at the time of his arrest. He also looked at a clock at the time he was placed in a cell at the police station and it was then 8:34 a.m.

[16] Mr. Samuel described himself as being physically unfit. He smokes a lot and has high blood pressure. He said that he would be unable to run 2.3 km. If he tried to do so, he would throw up, would not be able to make it, and would need to smoke a cigarette. He agreed that he would be able to walk that distance in about half an hour, but denied that he would sweat as a result of doing so.

III. Analysis

A. Assessment of the Evidence

(i) The Approach to be Taken

[17] As indicated earlier, the central issue in this case is the identity of the driver of the Cadillac at the time it was involved in an accident with Ms. Robson-Ferzoco's car. Mr. Samuel has testified and denied being the driver of the car at that time. There is, of course, no onus on Mr. Samuel to establish his innocence. Rather, the Crown bears the onus of proving his guilt beyond a reasonable doubt. To ensure that this burden is properly applied, I intend to follow the approach set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. I will begin by considering Mr. Samuel's evidence and, if I believe it, he must be acquitted. Even if I do not believe his evidence, I must consider whether it leaves me with a reasonable doubt and, if so, he must be acquitted. Even if I completely reject Mr. Samuel's evidence, I must still consider whether the evidence relied on by the Crown satisfies me beyond a reasonable doubt of Mr. Samuel's guilt. If, and only if it does can there be a finding of guilt.

(ii) The Defendant's Testimony

[18] I have considered Mr. Samuel's evidence very carefully. I have considerable difficulty with it. He initially claimed that he continued to keep two cars despite being a suspended driver because he loved driving cars. However, when asked why he did not pay his fines to get his licence re-instated, he responded that he had not had an urge to drive in two years, which is inconsistent with his earlier claim that he loved driving. His claim that he could have paid the fines at any time because he was "born into wealth" was inconsistent with his later assertion that he did not pay his fines because he owed court fees. As well, according to Mr. Samuel, the owner of the storage facility, whose name he does not know, would not allow him to have access to his vehicles, yet he did not testify to having taken any steps to repossess these cars, which he professed to love. In all, his evidence as to where his car was stored and why he stored it there made little sense.

[19] Mr. Samuel claimed that he told the police officers about the storage facility at the time of his arrest and it was submitted that the fact that the police did not testify to having investigated and disproved his claim somehow corroborates his account. No police officer who testified was cross-examined on this point. I have no evidence that there was any investigation, or if there was what it revealed and why. Absent some such evidence, I am unable to draw the inference that the police failure to disprove what Mr. Samuel claims he told them corroborates his account.

[20] While I was invited by Crown counsel to take into account the fact that Mr. Samuel did not call as a witness the friend from whom he sublet the storage facility, I decline to do so. There are many reasons why a party may choose not to call a witness and the authorities clearly state that a trier of fact must be extremely cautious before drawing an adverse inference from a party's failure to do so: R. v. Zehr, 54 C.C.C. (2d) 65; R. v. P.(N.L.), 2013 ONCA 773, 305 C.C.C. (3d) 105 at paras. 58-63.

[21] I find that Mr. Samuel's claim that he would be unable to run 2.3 km to be somewhat self-serving. He claimed that if he ran this distance, he would throw up but also said that to attempt to do so would make him want to smoke a cigarette, which is an unlikely desire for somebody who was throwing up. While I accept that it may be difficult to travel this distance quickly, I find that he grossly exaggerated this aspect of his testimony.

[22] For the foregoing reasons, I have concluded that I do not believe Mr. Samuel's testimony, nor does it raise a reasonable doubt. Having so concluded, I must consider whether on the basis of evidence I do accept, the Crown has proven the charges beyond a reasonable doubt.

(iii) Evidence Relied on by the Crown

(a) In-Dock Identification

[23] I will begin by stating that I place no weight on Ms. Robson-Ferzoco's in-dock identification of the Defendant. The frailties of eyewitness identification are well-known and this type of evidence has resulted in numerous and tragic cases of wrongful conviction. In-dock identifications are made in highly suggestive circumstances and, for that reason, should be given little, if any weight: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445 at paras. 49-52. Ms. Robson-Ferzoco's identification of the Defendant on an earlier court date was made in circumstances that were almost as suggestive. She saw him sitting directly outside the courtroom where the trial was to take place.

(b) Circumstantial Evidence of Identification

[24] There being no direct evidence of identification, I must assess whether the Defendant's guilt is the only reasonable inference that can be drawn from the remaining circumstantial evidence: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42 at para. 33. Thus, the approach I must take is as follows. First, I must ask myself whether the Defendant's guilt is a reasonable inference to be drawn from the evidence. If the answer is no, he must be found not guilty. If the answer is yes, then I must ask myself whether there are other reasonable inferences that can be drawn from the evidence. If the answer is yes, then he must be found not guilty. If the answer is no, he must be found guilty.

[25] While I place no weight on Ms. Robson-Ferzoco's purported identification of the Defendant in court, her description is consistent with Mr. Samuel's appearance. It is therefore a piece of circumstantial evidence.

[26] Another piece of circumstantial evidence is that Mr. Samuel is the registered owner of the car, and the only registered owner.

[27] In addition to this, I accept Cst. Dunn's testimony that when he attended Mr. Samuel's home about 35 minutes after Ms. Robson-Ferzoco had seen the driver of the Cadillac leave the scene, he was sweating and appeared to have recently engaged in some cardiovascular activity. Mr. Samuel agreed that the distance between the scene and his home could be walked in about 30 minutes. Given that he is in very poor shape, such a walk would likely have constituted significant physical activity for him.

[28] Cst. Dunn's testimony about seeing Mr. Samuel sweating was challenged by the defence. The submission, as I understand it, is based on Mr. Samuel's evidence that it was in fact another officer who attended Mr. Samuel's home immediately following the accident and that Cst. Dunn attended the following day, as well as Cst. Dunn's inability to remember where the staircase in the Defendant's home was located, which direction his front door opened and other such details. Since Cst. Dunn was wrong about the day he attended and since he could not remember these details, his evidence is said to be unreliable. I do not accept this submission. In my view, it is far more likely that Mr. Samuel was mistaken about which officers attended on which date. With respect to Cst. Dunn's inability to recall where the staircase was and other such details, I am not prepared to draw any inference as to his reliability based on his inability to recall completely insignificant details. I find that Cst. Dunn did attend Mr. Samuel's home shortly after the accident and did observe him sweating.

[29] Finally, from Ms. Robson-Ferzoco's observations of the driver of the car doing something at the back of the car combined with the fact that the car had no licence plates on it when the police arrived, I infer that the driver removed the plates. The obvious reason the driver would have done so would be to prevent anybody from tracing the car to its registered owner.

[30] In my view, it may be reasonably inferred from this evidence that Mr. Samuel was the person driving the Cadillac at the relevant time. I must therefore consider whether there are any other reasonable inferences that may be drawn from the evidence. The only other inference would be that a person who matches Mr. Samuel's description somehow obtained his keys, drove the car without his permission, had an accident a few kilometres away from Mr. Samuel's home, and then removed the licence plates for some reason, even though the car would not be traced back to him as he had no legal right to be using it. In addition to this, Mr. Samuel was sweating for some other reason when Cst. Dunn arrived at his home. In my view, such inferences would not be reasonable.

[31] Based on the foregoing, I am satisfied beyond a reasonable doubt that Mr. Samuel was the person driving the Cadillac when it was involved in an accident with Ms. Robson-Ferzoco's vehicle.

B. The Charges

(i) Fail to Remain (Criminal Code, s. 252(1))

[32] To prove this charge, the Crown must prove that the Defendant had the charge of a motor vehicle, that he was involved in an accident, that he failed to stop and provide his name and that he failed to do so for the purpose of escaping civil or criminal liability. While the Information also charges Mr. Samuel with failing to offer assistance, s. 252(1) of the Criminal Code only includes the failure to offer assistance as an element of the offence in cases where "any person has been injured or appears to require assistance". There is no evidence that anybody was injured, and Ms. Robson-Ferzoco did not give any evidence to support a finding that she would have appeared to Mr. Samuel to require assistance. As a result, his failure to offer assistance is not an element of the offence.

[33] Section 252(2) of the Criminal Code provides that evidence of a failure to stop is, absent evidence to the contrary, proof of an intent to escape civil or criminal liability, but once again only in cases where "any person has been injured or appears to require assistance." As a result, in my view the Crown does not have the benefit of this reverse onus provision in the circumstances of this case. That said, I am satisfied beyond a reasonable doubt that Mr. Samuel failed to stop for the purpose of escaping civil or criminal liability. I draw this conclusion from the fact that he was a suspended driver, had been convicted in the past of driving under suspension, and took steps to remove the licence plate in order to prevent the vehicle being traced to him. While Mr. Samuel's motivation was likely to avoid being charged with driving while suspended, the term "civil or criminal liability" has been interpreted broadly to include liability for this offence: R. v. Sanford, 66 M.V.R. (6th) 321 at para. 73; R. v. Benson, 50 M.V.R. 131.

[34] For these reasons, I find Mr. Samuel guilty on the sole count on the Criminal Code Information.

(ii) Drive While Suspended (Highway Traffic Act, s. 53)

[35] It is not disputed that Mr. Samuel's driver's licence was suspended at the relevant time. Given my finding that he was the driver of the car, he must be found guilty on this count.

(iii) Careless Driving (Highway Traffic Act, s. 130)

[36] To obtain a conviction for careless driving, the Crown must prove beyond a reasonable doubt that the Defendant drove without due care and attention or without reasonable consideration for others. The standard is not one of perfection and mere inadvertent negligence will not necessarily result in a conviction. The fact that at an accident occurred is not necessarily relevant, as it is the manner of driving that is in issue, not the consequences that result from it: R. v. Kinch, 2 M.V.R. (5th) 85 at paras. 48-53; R. v. Beauchamp, [1953] O.R. 422.

[37] In this case, there is no evidence as to how the Defendant was driving before his vehicle struck Ms. Robson-Ferzoco's. Crown counsel submits that because Ms. Robson-Ferzoco testified that she was talking to her son when she stopped at the red light, I can infer from this that she must have been stopped for some period of time and therefore the Defendant must have been driving carelessly in order to hit her. This is, in my view, entirely speculative. Crown counsel could have asked Ms. Robson-Ferzoco how long she was stopped at the red light. He did not do so. I do not know whether she was talking to her son before she stopped, I have no way of knowing how long she was stopped, and I cannot in the circumstances conclude that anything more than mere inadvertence caused the accident. While this is a provincial offence which does not carry the same stigma or consequences as a criminal conviction, the burden of proof is the same and the Crown has fallen far short of discharging it. Mr. Samuel must therefore be found not guilty on this count.

(iv) Driving Without Insurance (Compulsory Automobile Insurance Act, s. 2(1)(a))

[38] It is not disputed that Mr. Samuel was not covered by an automobile insurance policy at the relevant time. Given my finding that he was the driver of the car, he must be found guilty on this count.

IV. Disposition

[39] On the sole count on the Criminal Code Information, Mr. Samuel is found guilty.

[40] With respect to the Provincial Offences Act Information, Mr. Samuel is found guilty on Counts 1 and 3. Count 2 is dismissed.

Justice P.A. Schreck

Released: May 28, 2015

[1] The prior inconsistent statement was elicited during the Defendant's examination-in-chief.