Court Information
Ontario Court of Justice
Date: October 5, 2017
Court File No.: Brampton 3111 998 16-1681
Parties
Between:
Her Majesty the Queen
— And —
Zaki Pera
Judicial Officer and Counsel
Before: Justice G. P. Renwick
Heard on: October 3, 4, 2017
Reasons for Judgment released on: October 5, 2017
Counsel:
- J. Kingdon, counsel for the Crown
- M. Gries, counsel for the defendant Zaki Pera
Judgment
RENWICK J.:
Introduction
[1] Mr. Pera is charged with dangerous operation of a motor vehicle arising out of an incident on 12 January 2016. Police also allege that upon his arrest, the defendant was found to be in possession of a small amount of cannabis marihuana which was located by police in the centre console of the motor vehicle the defendant drove.
[2] The prosecution called evidence from both police officers who made observations of the defendant's driving. The defendant was the sole witness who testified for the defence. During submissions, the prosecutor conceded that there was a lack of continuity between the substances alleged to be marihuana and the certificates of analysis produced to prove same and invited me to acquit the defendant on the count involving possession of cannabis.
Issues
[3] With respect to the remaining count on the Information there is only one issue: Did the defendant operate a motor vehicle in a manner that was dangerous to the public?
Discussion
The Parties Agree on the Law
[4] I begin by noting that if the Crown prosecutor has failed to satisfy me beyond a reasonable doubt that the defendant drove his car in a manner that was dangerous to the public just after 6:00 pm on 12 January 2016, I must find him not guilty of this offence. To determine this question, I am entitled to consider the nature, condition, and use of the road where the driving occurred, the amount of other traffic, both vehicular and pedestrian present at the time, the amount of other traffic, both vehicular and pedestrian that might reasonably be expected to be on that road at that time, and any other factor related to the operation of the defendant's motor vehicle.
[5] I remind myself that dangerous operation of a motor vehicle involves more than mere carelessness or a lack of consideration for other users of a highway. I must be satisfied that the defendant's conduct represents a marked departure from what a reasonable, prudent driver would do in the same circumstances. I must be satisfied beyond a reasonable doubt that a reasonable driver in these circumstances should have been aware of the risk and of the danger involved in the manner of driving exhibited by the defendant. I also remind myself that it is the manner of driving rather than the consequences that must be my focus. The consequences of the defendant's driving may assist me to decide whether the defendant's operation of his motor vehicle was a marked departure from what a reasonable, prudent driver would do in the circumstances, but standing alone, the consequences do not prove that the defendant's driving was a marked departure from how a reasonable, prudent driver would operate his car in the circumstances: see R. v. Roy, 2012 SCC 26, at paras. 33-38.
[6] Anyone who commits that actus reus with the requisite mens rea is guilty of dangerous driving. The mens rea can be established in two ways. In some cases, the prosecution will be able to establish that the accused drove in a deliberately dangerous manner. The accused's decision to drive in a dangerous manner within the meaning of s. 249(1)(a) amounts to subjective mens rea. The mens rea can also be established by demonstrating that the accused failed to meet the objective standard of a reasonable, prudent driver in the circumstances. In such cases, the fault element is not the marked departure from the conduct of a reasonably prudent driver, but the fact that a reasonably prudent driver in the defendant's circumstances would have been aware of the risk of that conduct and would have acted in a manner that was markedly more prudent. The mens rea may only be inferred where the impugned conduct represents a marked departure from the norm, and it is not inferred from the simple fact that the defendant operated the motor vehicle in a dangerous manner.[1]
[7] In this case, there is no disagreement among the parties as to the applicable law or how the law ought to be interpreted. The parties disagree on some of the facts. On the prosecution's theory, the police were in a good position to observe the defendant's driving, it was clearly dangerous and it represented a marked departure from the reasonable, prudent driver in all of the circumstances. On that theory, the defendant purposely drove away from police to avoid being stopped by them, and in so doing he endangered a pedestrian and he interfered with another motorist, almost causing a collision, before abruptly pulling into a parking lot and parking between other cars. The defendant fundamentally disagrees with the evidence of the police officers. The defendant denies any untoward or dangerous driving. According to his evidence, the defendant's tires and the road conditions would not have allowed him to make any sudden or dangerous moves. Once the defendant noticed the flashing headlights of the unmarked police car he immediately pulled off the roadway, safely.
Credibility Issues
[8] This case squarely raises issues of credibility. These issues have been explored by many courts, but the Supreme Court of Canada decision in R. v. W.(D.)[2] remains instructive. I recognize that I cannot decide this case as if it were simply a contest of competing versions of events where I am permitted to prefer one version over the other. That is never permissible for a trier of fact because it ignores the presumption of innocence and the unending burden upon the prosecution to prove the offence charged beyond a reasonable doubt. In fact, even if I totally reject the defendant's evidence, I must acquit him unless I am not left with a reasonable doubt about his guilt based upon the evidence I do accept.
[9] In W.(D.), the court clarified the governing principles for deciding credibility cases:
i. First, if you believe the evidence of the accused, obviously you must acquit.
ii. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
iii. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.[3]
[10] In a recently published scholarly paper, Mr. Justice Paciocco of the Ontario Court of Appeal elaborated upon these principles:
(a) If you accept as accurate evidence that cannot co-exist with a finding that the accused is guilty, obviously you must acquit;
(b) If you are left unsure whether evidence that cannot co-exist with a finding that the accused is guilty is accurate, then you have not rejected it entirely and you must acquit;
(c) You should not treat mere disbelief of evidence that has been offered by the accused to show his innocence as proof of the guilt of the accused; and
(d) Even where evidence inconsistent with the guilt of the accused is rejected in its entirety, the accused should not be convicted unless the evidence that is given credit proves the accused to be guilty beyond a reasonable doubt.[4]
[11] I am also aware that I can accept some, none, or all of what a witness says as truthful, and this remains so regardless of the role of the witness in the proceedings. Although again, I must remind myself that a rejection of the defendant's evidence is not dispositive of whether or not I am convinced of his guilt beyond a reasonable doubt.
[12] In considering the overall credibility of the witnesses, I will consider the following:
- general character of the witness;
- motive to fabricate; and
- evidential value.
As well, I will consider the overall reliability of the witnesses, in terms of the following:
- ability to observe;
- memory; and
- presentation.
The Evidence of Constable Jean-Luc Perreault
[13] This police officer testified first. He drove the low-profile police car that eventually stopped the defendant's car. He admitted that he knew the white Infinity motor vehicle, that he had "run the vehicle" (performed police computer checks on it) in the past, he also knew that the car was associated to the defendant, he knew that the defendant was a prohibited driver, and lastly, he was aware that there was a warrant outstanding for the defendant's arrest with London police. As he drove by the defendant's residence, what caught Constable Perreault's attention was the engine running and the headlamps illuminated on the white Infinity which made it likely that someone, and possibly the defendant, might operate the vehicle shortly. For that reason, the officer pulled over his police vehicle and awaited almost 30 minutes for the vehicle to eventually move.
[14] Officer Perreault described the manner of driving from the defendant's address until Steeles and McMurchy Avenues. Nothing was unusual. The officer wanted to get close enough to see if the defendant was driving, but until he pulled up alongside the Infinity at the red light at Steeles, he could not determine the driver's identity. At that point the officer saw the defendant. The officer could not initially determine the identity of the motorist because the view of the driver was obscured by the door frame pillar. Once the officer recognized the defendant he called out in a loud voice, using the defendant's name to pull over. Constable Perreault testified that the defendant accelerated his vehicle very quickly and a male pedestrian who had been crossing the road had to jump back to get out of the defendant's way. The officer also testified that he observed the defendant to signal and suddenly change lanes causing another motorist to brake hard to avoid a collision, before the defendant returned to the curb lane and then abruptly into the church parking lot on the north side of Steeles Avenue. It was the defendant's sudden rapid acceleration, which caused the pedestrian to jump back to avoid being struck, his speed on the snow-covered, icy roads, the sudden lane change in front of another car, and the abrupt turn into the driveway to exit the road that comprised the dangerous driving evidence, according to this witness.
[15] In terms of his general character, I have no reason to suspect that the evidence of Constable Perreault was not truthful. I have no knowledge of his reputation for truthfulness in the community, but nothing became of his cross-examination or the evidence lead by the defence to cause me to doubt his sincerity or truthfulness as a witness. That said, I note that the defendant implicitly challenges the authenticity of this witness' evidence. As well, during cross-examination it was suggested that this officer is a thief. This suggestion was denied and given that there was no evidence or reason to suspect otherwise, I accept that this witness is of unblemished moral character.
[16] The defendant did not specify a motive for this officer to fabricate his evidence, but implicit in the defendant's cross-examination, his testimony in his defence, and the defendant's final submissions is the suggestion that this officer went to the defendant's home to arrest him, the officers did not have an arrest warrant to enter his home, they waited to catch him outside the home, and this witness lied about the pedestrian and the defendant's manner of driving to provide the grounds to stop the defendant and arrest him for the outstanding warrant.
[17] Respectfully, this makes no sense. The defendant concedes that there was an outstanding warrant for his arrest on the date in question. Once the police pulled alongside the defendant and ascertained his presence in the Infinity vehicle, the police had the grounds to arrest the defendant on the strength of the outstanding warrant. There is simply no reason for the police to fabricate dangerous driving as a pretext to detain or arrest the defendant. However, the absence of a motive to fabricate does not end the inquiry.
[18] I have considered the evidentiary value of Constable Perreault's testimony, and it is quite high. I say this for several reasons. First, the officer was completely transparent with respect to his motives and the reasons for his presence outside the home of the defendant. There were no attempts made by Officer Perreault to minimize that the only reason he parked his car and began static surveillance of the Infinity vehicle was his belief that it was a possibility that the defendant may soon be driving that car. Second, the officer testified in a balanced manner. In cross-examination Officer Perreault testified that the position of the driver in the car initially obscured his view, although it had been his perception that the driver was trying to hide his face. He admitted that the defendant made the right turn into the curb lane on Steeles, and the officer testified in chief that the defendant signalled to make a lane change to the middle lane. If the officer wanted to embellish the dangerousness of the defendant's driving he would not have mentioned these two items. Also, there was no exaggeration on the part of the witness. He never testified that the defendant's vehicle ever lost control, swayed or fish-tailed, or left its lane without making a lane change. Lastly, this witness' evidence was internally consistent, it accorded with the evidence of Officer Drepaul in all significant respects, the evidence was reasonable in the sense that it did not defy logic or common sense, and the officer was aware that he could arrest the defendant on sight, thus removing not only a motive, but a necessity to find an offence being committed in order to arrest the defendant.
[19] In terms of the witness' reliability, I find him completely reliable. The officer was in a favourable position to make the observations he made, his memory was good on the essential parts of his evidence, and his presentation was consistent, professional, and neutral. Let me explain.
[20] Of the two police officers, as the driver, Perreault was in the better position to determine his speed and the speed of the defendant's vehicle at various times. He was able to recall distances, speeds, and actions of his car and the defendant's in a credible manner, without over reliance on his notes to refresh his memory.
[21] Although the officer could not say what colour the traffic light was for the pedestrian crossing in front of his vehicle, nor whether the pedestrian was rushing, or wearing a hat or gloves, these are small details that would be lost to most people in light of the observation that the defendant was apparently trying to avoid being stopped by the police and had suddenly and rapidly accelerated in a manner that caused the pedestrian to jump back to avoid being struck. Rather than finding fault with the officer for his lack of detail respecting the pedestrian's appearance or walking speed, I find that the officer's admissions are candid, sincere, and accurate. I imagine that I might be hesitant to accept the officer's evidence if he had noted the gait of the pedestrian or other insignificant details about his dress at a moment in time when his attention was more appropriately directed to the actions and driving of the defendant.
[22] Respecting Officer Perreault's manner of testifying, I am aware that many courts have cautioned triers of fact of the dangers of credibility assessments which rely too heavily upon the demeanour of a witness:
It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness.[5]
[23] Despite the dangers, triers of fact are not prohibited from reliance upon the manner of a witness' presentation: R. v. N.S., 2012 SCC 72, at para. 25:
It is a settled axiom of appellate review that deference should be shown to the trier of fact on issues of credibility because trial judges (and juries) have the "overwhelming advantage" of seeing and hearing the witness - an advantage that a written transcript cannot replicate: Housen v. Nikolaisen, 2002 SCC 33, at para. 24; see also White v. The King, at p. 272; R. v. W.(R.), at p. 131. This advantage is described as stemming from the ability to assess the demeanour of the witness, that is, to see how the witness gives her evidence and responds to cross-examination.
[24] In this case, I found Constable Perreault to have presented his evidence in a clear, straightforward, unembellished, and professional manner. The officer was not emotional while testifying. Rather, he was fairly detached. It appeared that he had made some observations that had required him to come to court and he was explaining those observations without any sense of urgency or concern for the reception of his evidence or the outcome of the case. Other than a small side to side turn of his head after denying the suggestion in cross-examination that he had stolen $1600 from the defendant's trunk (which was never actually established in evidence), the officer appeared neutral, relaxed, and confident while giving his testimony. I regarded this small, momentary head turning gesture as a completely visceral reaction to an outrageous suggestion. As I replayed the officer's recorded testimony in preparation for writing these reasons I did not detect even the slightest hesitation or lapse in the cadence, tenor, tone, or content of his evidence. To be clear, I do not give this observation much weight, because I do not know this witness, nor whether he has acting training, or an exceptional amount of testimonial experience, but I find that Constable Perreault's presentation as a witness was completely flawless. He was unflappable, and he appeared completely truthful. But again, I acknowledge, that this means very little in a criminal trial.
The Evidence of Constable Ken Drepaul
[25] This police officer had about three years of experience at the time of the events in question. He was partnered with Constable Perreault on the evening in question and his observations were similar, but unique and specific to his vantage point in the police vehicle. I will apply the same format as above to evaluate this witness' evidence.
[26] I have no evidence about the general truthfulness or character of this witness. Interestingly, the defendant did not overtly raise any concerns about the character of this witness (i.e., there was no suggestion that he was a criminal or a co-conspirator to the alleged theft by Officer Perreault), but the implication resulting from the cross-examination, the testimony of the defendant, and final submissions is that this officer colluded with Constable Perreault to support an untrue version of events in order to wrongfully convict the defendant. Despite the dramatic intrigue created by this implication, in the context of an otherwise unremarkable and routine trial, I found it hollow, unproven, and without foundation. In the end, I have no reason to doubt or suspect the moral character of this witness.
[27] There was no apparent motive on the part of Constable Drepaul to fabricate his evidence, other than perhaps the fantastic implication that all police are willing to lie to assist their fellow officers. Notably, the defendant offered no evidence of prior grudges or dealings between these officers and himself, nor any special relationship between the witnesses, so I have no way to measure or assess this bald insinuation. In light of a complete lack of evidence to support the police collusion theory, I give it little weight. Again, this does not mean that Constable Drepaul ought to be believed, but I am unable to assess his evidence from the perspective that he ought not to be.
[28] The evidential value of Constable Drepaul's evidence is moderate. That is not because I doubt the veracity of his observations, but in light of my acceptance of Constable Perreault's evidence, this witness offered very little of additional probative value. Constable Drepaul confirmed the significant parts of his partner's observations. He had less detail in parts, and more detail in other parts.
[29] In terms of his reliability, I find that Constable Drepaul was also a reliable witness. He was in an excellent position to make the initial observation that the defendant was driving the white Infinity vehicle, and there was not a scintilla of forensic challenge to his immediate observation and recognition of the defendant as the driver of that car. To be clear, the officer did not dispute that the Infinity may have had tinted windows, but there was no evidence about the level of tinting, the lack of ambient or artificial lighting in the area, or why it would not have been possible for this witness to have recognized the defendant. His memory of pointing to the police emblem on his shoulder and the defendant's gaze toward the police was not challenged by cross-examination or beyond the defendant's general claim that nobody was stopped beside him at the red light.
[30] Officer Drepaul's demeanor while testifying was appropriate, neutral, and professional. There was nothing that indicated any untruthfulness in his delivery, word choice, cadence of speech, or tone. This proves very little, but in the end, I was not suspicious that this witness was trying to support the version of events offered by another police officer at the expense of telling the truth.
[31] Lastly, I must acknowledge that there were slight discrepancies between the evidence of the two prosecution witnesses: Perreault described the pedestrian as possibly a college student, whereas Drepaul offered nothing beyond the race of the male, which was different from his own; the former described the pedestrian as wearing a black parka, while the latter said the male wore a black jacket; Officer Drepaul did not include in the description of the defendant's driving that he had used a turn signal before the sudden lane change that affected another motorist; and there were other small differences. I found that these discrepancies were natural, unrehearsed, and likely the product of two witnesses who had not colluded to create a fictional account, but rather the result of unique perspectives and original observations.
[32] At this point I pause to note that if the police were fabricating their evidence, they did a poor job. They missed the opportunity to claim they observed who had entered the driver's seat of the Infinity when it was parked at the defendant's home, they said nothing remotely suggestive of dangerous driving as the defendant drove from his home until McMurchy and Steeles, and given the lack of distances between the Infinity and the car it allegedly cut-off during the lane change, they left open the chance that the only marked departure their evidence would establish is the near-miss of the pedestrian and the speed of the defendant's acceleration from the police. But again, this does not mean that I must reject the defence theory and accept the police officer's evidence, without scrutiny.
The Evidence of Zaki Pera
[33] The defendant testified that he was driving "my Infinity," which other people have access to, and within which his friends may have left a package of cigarettes, including a suspicious substance in a yellow plastic egg, which he did not notice in the centre console of the car when he left home to go to the bank to deposit money his mother had given him from their tenant for the rent. He described having put the money ("16" to use his description) in his soccer bag in his trunk to travel the short distance from his home to the bank. The defendant drove with his loud music playing in the curb lane despite acknowledging that he was more than ¾ of the way along Steeles Avenue and was approaching grid-locked traffic at the intersection with McLaughlin, where he had to turn left after crossing the intersection to enter the plaza for the bank and that once he saw the flashing police headlights behind him he turned right into the driveway for the church, and he parked in between two cars. When he had been stopped at the intersection of McMurchy and Steeles, the defendant saw no pedestrian crossing McMurchy to go west on Steeles, nor did he see the police officers or any car stopped beside him. The defendant was not aware that he was a suspended driver until after his arrest, but he acknowledged that he was made aware that very day that London police had a warrant for his arrest. The defendant says that he was also aware that his lawyer had arranged for him to turn himself in to London police the following week.
[34] In terms of his general character, the defendant is a 24 year old, former semi-professional soccer player who I assume (he was never asked) has no criminal record. As a starting point, I have no reason to question his truthfulness during this trial.
[35] I do not start my analysis of the defendant's evidence from the position that the defendant is more or less likely to fabricate his evidence than any other person (including police witnesses) just because he is on trial. However, if the defendant was trying to avoid apprehension by the police, and he drove in the manner suggested by the prosecution witnesses, he would certainly have a motive to fabricate his evidence to avoid a finding of guilt.
[36] The evidential value of the defendant's evidence is high. It has the potential to create doubt and prevent the prosecution from meeting its burden of proof. Even if the defendant's evidence is forensically-challenged and completely porous as a vessel of probity, it can still leave the court with a reasonable doubt about the defendant's guilt. In assessing the evidential value of the defendant's denial I bear in mind he is a young adult, who has likely never testified before. His evidence was imprecise and without much specificity, but this may be an artefact of his youth and inexperience as a witness, rather than overt signs of untruthfulness. Given that the defendant's evidence lacked balance in the sense that I must completely reject the prosecution's evidence to accept the authenticity of the defendant's evidence, there is the potential that the defendant's evidence will have a completely overwhelming evidential value, or a very low evidential value depending on the overall reliability I ascribe to his evidence and the evidence of others.
[37] As a starting point, I am troubled by several aspects of the defendant's evidence. Not the least of which, is that it suffers from an inherent implausibility. It suggests that the defendant drove prudently and for no reason whatsoever, the police pulled him over and falsely claimed he was driving dangerously, within three minutes after he left his house in circumstances where the police would be hard-pressed to establish how they knew the defendant was driving. If the police were never beside his vehicle, why did they decide to pull it over after it travelled west on Steeles Avenue, and not before? What possible reason would the police have to potentially give the defendant a chance to get away from them by permitting him to reach a major road like Steeles? The police would have had no knowledge how short a trip the defendant had planned to take, but in any event, if they were going to make up a story about dangerous driving, why would the police not include the driving before the intersection of Steeles and McMurchy. Why would the police claim to have been beside the defendant's car at the red light if this had never happened? The police could easily have falsely claimed to have seen the defendant enter his car given that they were aware of him long before he was ever aware of their presence. As the prosecutor pointed out, the police did not need to make up the charge of dangerous driving to arrest the defendant, all they had to do was to spot him outside of his residence.
[38] The problem with the traditional reliability analysis (the vantage point and recall of the witness) is that its utility is predicated upon an assumed sincerity as the starting point. If the defendant is being truthful, he must reconstruct his memory of uneventful recollections from a time before he was aware that he must try to remember his actions. In this sense, it is not surprising that the defendant's version of events would be less specific than the purported police observations which were designed to contradict his evidence and to establish his guilt for a crime he did not commit. Like the police witnesses, the defendant was in a good position to make his observations, but accepting the defendant's evidence at face value requires accepting that his memory had to fill in details of apparently unremarkable events that occurred before he was aware he would need to recall them.
[39] The police officers claim that they saw the defendant driving for about three minutes from the time he left his home until the defendant parked at the church. Constable Perreault, and to a lesser extent Constable Drepaul, gave very detailed evidence about the defendant's driving in this brief period, both before and after the point when the alleged offence was said to have begun. In contrast, the defendant had no reason to make note of his own driving if he never saw the police or their vehicle, as he had claimed, until just before he turned into the driveway for the church. I do not fault the defendant's recollections, or diminish the reliability of his account on this basis. His lack of specificity does not necessarily make his version of events less likely than the officers' testimony.
[40] Unlike the police witnesses, I am less inclined to find that the defendant was a persuasive witness on the basis of his demeanor while testifying. The defendant seemed hesitant, his posture was extremely poor, and he spoke at a low volume, without any apparent conviction in what he said. Luckily, he was only cross-examined for about 12 uneventful minutes. Again, I do not fault the defendant for his presentation. I take little from the difference between the defendant's demeanor and the demeanor of police officers who undoubtedly have training and more experience testifying than the defendant.
[41] Instead, I choose to concentrate on the content of the defendant's testimony rather than the form of its delivery. There was an answer-all quality to the defendant's evidence which undermines its credibility. If the defendant never saw the police beside him at the red light, he certainly did not know they were in the area, nor was he aware that the police were interested to stop him. Yet, the defendant offers a possible explanation for why he never heard the police siren, he was playing loud music. If I accept that the police were never beside the defendant, I must find that the police were completely untruthful about their position at the red light, in which case there is no reason to accept that the police had their siren on for about 300 m (using the scale on the Google Map, Exhibit 2) before the defendant turned into the church parking lot. Again, there is no reason to offer an explanation (loud music) for something that never occurred.
[42] Similarly, the defendant's evidence about other people using his car, the fact that he had not cleaned it in a while, and the fact that he does not smoke cigarettes, is equally over-responsive. It would have been enough for the defendant to say that he had not noticed the plainly visible package of cigarettes beside him in the centre console when he entered the car, and even if he had, they were not his.
[43] Perhaps most troubling in terms of the content of the defendant's testimony was the allegation that the defendant put money he was going to deposit at the bank into his soccer bag in the trunk of his car, and his evidence that he was told the money was missing after his arrest. [6] The defendant testified that he saw the officer searching his soccer bag. That is such a specific observation. Yet, there was so little detail about the money itself (no detail was provided for how the money was placed in the bag, or where, nor was there a description of the money itself: what were the denominations, were the bills folded, held by an elastic, or placed in an envelope, for instance), nor did the defendant provide any evidence to explain how he could even make that observation while he was sitting in the back of the police car, parked behind the Infinity.
[44] Again, there is an answer-all quality to this piece of evidence. If I find that the officers are untrustworthy, that they are willing to falsely accuse and prosecute an innocent man, and that they committed perjury to complete their plan, it should not be a stretch to accept that one or both of them are thieves, or, vice-versa: if I accept that Perreault is a thief, it makes it more likely that he is lying about the dangerous driving and he has convinced his less experienced partner to confirm his false evidence, and he has possibly shared the ill-gotten gains with Drepaul. The problem is, there was no proof that any money was stolen, or went missing. Instead, there was a whiff of impropriety wafted in the place of evidence, possibly to cause me to question the truthfulness of the Crown's witnesses. This baseless suggestion was unnecessary and causes me some skepticism about the defendant's testimonial authenticity.
[45] Lastly, I also fail to understand why the defendant who claimed to have been going about 30 or 40 kms/hour would not just pull over when he saw the flashing police headlights. The effort it took to turn into the church driveway, and to continue to the parking lot, and to park between two cars completely undermines the veracity of that evidence. The defendant's ultimate parking spot begs the question whether the defendant was trying to pull over or was he actually trying to lose the police.
[46] After considering all of the evidence, I find the testimony of Officer's Perreault and Drepaul to be completely truthful and accurate. On the other hand, I am only prepared to accept the defendant's evidence in three areas: his admission that he was driving his Infinity; his admission as to where he parked the car; and his admission that the same police who sought to frame him captured his dog after it escaped from his car. In all other respects, I found that the defendant's evidence lacked credibility, consistency with other evidence, and common sense and I specifically reject it as untrue where it attempts to contradict the police witness' testimony.
[47] I find that I am not left with a reasonable doubt after rejecting the defendant's testimony on the basis of the evidence I do accept for the following reasons:
i. This is not a close-call type of case; it is an all or nothing type of case; accepting one version of events completely refutes the possibility of the other version of events; I have completely accepted the prosecution's evidence as true and I have completely rejected the defendant's evidence as deceptive and untrue;
ii. The defendant's evidence is not capable of raising a reasonable doubt in the sense of a possible misinterpretation of events or the differences between one person's recollections and another's;
iii. There was nothing in the cross-examination of the police witnesses that revealed any untruthfulness on their part; and
iv. There was nothing to support the defendant's bald assertions, improbable narrative, or fantastic theory of police collusion and corruption.
Conclusion
[48] I specifically reject the defendant's denials of almost hitting a pedestrian, driving at an inappropriate speed for the weather and road conditions, and cutting off another motorist as untrue and I am not left in a reasonable doubt by the evidence I do accept. This evidence establishes the requisite degree of dangerousness in all of the circumstances, and I am satisfied of the defendant's guilt beyond a reasonable doubt.
[49] Accordingly, I find Zaki Pera guilty of dangerous driving and not guilty of possession of cannabis (marihuana).
Released: October 5, 2017
Justice G. Paul Renwick
Footnotes
[1] Roy, supra, at paras. 39-42.
[2], [1991] S.C.J. No. 26.
[3] W.(D.), supra, at para. 28.
[4] The Honourable Mr. Justice David M. Paciocco, "Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment" (2017) 22 Can. Crim. L. Rev. 31, at p. 72.
[5] R. v. Rhayel, 2015 ONCA 377, at para. 85.
[6] As I noted above, there was no evidence to support the inadmissible hearsay and I find that the allegation that money went missing from the defendant's car is not proven.