Court Information

Court: Ontario Court of Justice

Date: November 22, 2017

Court File No.: 16-15002080 (Toronto Old City Hall)

Parties

Between:

Her Majesty the Queen

— And —

Shawn Adrian Singh

Before the Court

Justice: Beverly A. Brown

Heard: July 31 and August 1, 2017

Reasons for Judgment Released: November 22, 2017

Counsel

For the Crown: Ms. Tania Monteiro

For the Defendant: Mr. Alan Pearse

Judgment

BROWN, B., J.:

Introduction

[1] Mr. Shawn Singh was charged with the offence of having operated a vehicle while his blood alcohol level was in excess of the legal limit, on March 19, 2016. The Crown proceeded summarily. The defence filed a Charter application in relation to sections 7, 8, 9 and 10. The court commenced the trial with a blended voir dire. The Crown called four witnesses, including Mr. Jeremy Morrison, a TTC streetcar operator who had come upon the scene, and three police officers, PC Sean Shapiro, PC William Norman and PC Rohan Smith. The Crown also filed in evidence a report by a toxicologist relating the readings back to a time period the Crown relied upon as the time of prior driving. There was no evidence called by the defence. By the conclusion of evidence in this trial, the defence had in effect abandoned its Charter applications, relying upon the evidence, and the fact that any utterances of Mr. Singh to a police officer were not to be led or considered for the truth of their contents, related to any elements of the offence. The issue of leading those utterances for grounds was relevant to Charter applications that the defence abandoned. In effect, then, for the purpose of this trial, the court does not consider any statements of Mr. Singh to a police officer.

[2] The issues in this case are quite simple, in the end. The defence argues that the Crown has not established to the requisite standard that Mr. Singh had operated his motor vehicle at the relevant time. Secondly, for the purpose of any evidence of his blood alcohol content, the defence argues that the Crown has not established to the requisite standard that Mr. Singh had driven a vehicle during a 90 minute period preceding the arrival of the first police officer, which was a range of the offence period linking the blood alcohol readings set out in the toxicology report filed in evidence. The Crown argues that it has established that Mr. Singh had driven his vehicle, and done so in the relevant period of time, to the level of proof beyond a reasonable doubt.

Evidence

1) First Witness Who Arrived on Scene – TTC Operator Mr. Morrison

[3] Many of the facts in this case are not in issue, arising from evidence which remains uncontradicted. Mr. Jeremy Morrison was a TTC streetcar operator, who was operating a streetcar on Queens' Quay, in the area of Harbourfront, in the City of Toronto. This portion of the streetcar tracks is elevated from the road surface, and separated from the lanes of live vehicular traffic eastbound and westbound by a median. On top of the median was a streetcar track.

[4] As Mr. Morrison was operating his TTC streetcar, approaching the Union Station tunnel through Queens' Quay, which was a tunnel solely for TTC streetcars and not for other vehicles or for pedestrians, he had to stop his eastbound streetcar before entering the tunnel. He had to stop before going into the tunnel as he observed a car (not a streetcar) on the westbound section of the tracks in the tunnel. This car was just sitting on the westbound tracks, although the nose of the car was facing eastbound, which is to say the opposite direction of those tracks. At that time, Mr. Singh was the only person there, and he was walking towards Mr. Morrison. Mr. Singh was at that time approximately 50 to 100 feet from the Acura vehicle.

[5] At this time, the vehicle was down inside the tunnel, off the concrete and sitting on the streetcar tracks where there was no concrete alongside the streetcar tracks. There was only a streetcar track below the vehicle. Mr. Morrison described the location of the vehicle as fairly deep into the tunnel, and hung up on the streetcar tracks. The vehicle could not be driven out of that location. A tow truck was required to remove it from the position it was found in on top of the tracks.

[6] There were no other vehicles in the tunnel. There were people watching on a bridge, looking at this car in the tunnel.

[7] Mr. Morrison asked Mr. Singh "is this your car?". Mr. Morrison pointed at the car, which was an Acura. Right away, Mr. Singh responded "I am really really sorry to do this to you guys". In cross examination, Mr. Morrison agreed that in his statement to the police he had indicated that Mr. Singh had stated responded to the question with "yes, I'm very sorry" and that he also said he was from Markham. Mr. Morrison interpreted the response as having asked Mr. Singh if this was his car, and Mr. Singh effectively responding yes, and apologizing for holding them up. The two parties then spoke further. Mr. Singh stated he was not used to this, he was from Markham. Mr. Morrison testified that other people in the area of Mr. Singh at the time of Mr. Singh's statement were chuckling. There are red flashing lights and "do not enter" signs in the area.

[8] Mr. Morrison was initially reluctant to convey to the court the words he used right after that with Mr. Singh, but upon the Crown giving him permission to use his actual words, he continued that he had stated to Mr. Singh "What were you thinking?" "what are you on ?" and then Mr. Morrison said "What the fuck were you doing, are you on something, are you fucked up?" Mr. Singh did not really answer. Mr. Morrison described Mr. Singh as having a look, a blank stare, that he looked absent. He described Mr. Singh as not looking right when he spoke. He was mumbling a bit. Mr. Morrison did not know if he was acting that way as a result of what had happened. Mr. Singh asked Mr. Morrison if he had any cigarettes, and Mr. Morrison said he did not.

[9] At some point Mr. Singh left to go back to the car (in the tunnel), went in the car and grabbed something from the car. Mr. Morrison could not see what Mr. Singh removed from the car. He used the driver's side door of the car to get in the car and to get the item. When Mr. Singh left the car, he saw him put his keys in his pocket.

[10] Mr. Singh then left the scene to go and buy cigarettes. He was not present when the TTC supervisors arrived, together with the police. It took a minute or two to find the driver, Mr. Singh, according to Mr. Morrison, after they arrived.

[11] Over the time, Mr. Morrison had safety concerns for Mr. Singh as he proceeded back and forth to his car, that they wanted to get him out of the area and away from the tracks. He described the safety concerns as potentially being a lot worse than what happened if a streetcar had entered the tunnel, came around the corner in the tunnel, and hit his car.

[12] At the scene, Mr. Morrison pointed out Mr. Singh to his supervisor as the guy who had been driving the car. At the time Mr. Singh was wearing a white shirt, jacket, pretty sure he had jeans and running shoes. Mr. Singh's clothing at the subsequent time at the police station was also recorded in a video, and consistent with that description. He also identified Mr. Singh in court. There is no issue in this trial that Mr. Singh is the party referred to by Mr. Morrison.

[13] In cross-examination Mr. Morrison was asked about the confusion on the scene as to who had been the driver of the car on the streetcar tracks, and Mr. Morrison maintained that he was not confused as to the identity of the driver.

[14] Although there was no evidence to contradict the evidence of Mr. Morrison, it is important for the court to consider the credibility and reliability of his evidence. In that regard, Mr. Morrison was largely unshaken in his testimony, including a cross-examination where a slight inconsistency in his testimony was revealed. This was the discrepancy between his testimony at trial, that Mr. Singh had stated he had asked Mr. Singh "is this your car?" and that Mr. Morrison pointed at the car, which was an Acura. Right away, Mr. Singh responded "I am really really sorry to do this to you guys". The discrepancy was that he admitted in his cross examination that Mr. Singh had stated responded to the question with "yes, I'm very sorry" and that he also said he was from Markham. Mr. Morrison interpreted the response as having asked Mr. Singh if this was his car, and Mr. Singh effectively responding yes, and apologizing for holding them up. By and large this was a fairly minor inconsistency in his testimony. His evidence was relatively consistent, and he steadfastly maintained his identification of Mr. Singh as having been the person to whom he spoke, and the clear understanding he had from his exchange with Mr. Singh that Mr. Singh effectively admitted he was the driver of the Acura car. He was a very credible witness, and in carefully considering his evidence, and in the context of all of the other evidence in this trial, the court finds that his evidence was reliable in all of the circumstances.

2) Location of Incident

[15] P.C. Rohan Smith did the collision investigation for this case. He had received a call to attend at the scene at 10:44 p.m., and arrived at 10:50 p.m. At that time Mr. Singh had left the scene.

[16] The relevant area was Queens' Quay, near Bay St. This tunnel was previously described as the tunnel for streetcars travelling along Queens' Quay to travel in and out of Union Station. In this area, there is for traffic travelling eastbound on Queens Quay, a median for the street car track, which is raised more than a foot and a half off the ground where it enters the tunnel. If a vehicle moved from the live lane of traffic at that point onto the streetcar track, it would have had to go over 18 inches to get on the track. Further east of that location where the tunnel begins, there is a gradual increase in the height of the median, such that if a vehicle moved onto the streetcar track further east of the tunnel, it would not need to go as high to get on the track. The live lanes for vehicular traffic eastbound on Queens Quay are to the south of the TTC track, and for westbound traffic to the north of the TTC track. There is a median separating the portion of TTC track from live lane vehicular traffic. To get on the TTC tracks, a vehicle would need to breach this median. There is signage on both sides of the tunnel, facing the north and south side, which face west for eastbound traffic. These signs convey that this is a streetcar track, and that it is raised. A vehicle on such a track proceeding to enter the tunnel would get stuck on the streetcar track because in the tunnel there is no concrete at the level of the streetcar track alongside the track. It would be like a vehicle trying to drive on top of railway or subway tracks. It would definitely be unsafe.

[17] There is no pedestrian traffic and no sidewalk in the tunnel. Only streetcars enter and exit the tunnel.

[18] The investigating officer, P.C. Sean Shapiro, received a radio call to attend at the scene at approximately 9:55 p.m., in relation to what was described as an impaired driver, at Queens Quay and Bay Street. He arrived on scene at 10:04 p.m. When he arrived the subject vehicle, which was an Acura car, was hooked up to a tow truck. The vehicle was approximately 100 m. away from where it had originally been beached on top of the streetcar tracks in the tunnel. He met with the TTC supervisor and the witness Jeremy Morrison, who gave him a brief overview of what had occurred when he had come upon the scene. At that time, Mr. Singh was approximately 30 to 50 metres from the vehicle.

[19] P.C. Shapiro advised Mr. Singh that he was conducting an impaired driving investigation and that another officer would conduct the collision investigation. At 10:06 p.m. he asked Mr. Singh for his driver's licence. The court is not going to refer to any utterances of Mr. Singh given that they were not tendered for the truth of their contents, and accordingly no voluntariness voir dire was conducted with respect to their admissibility. In the exchange with Mr. Singh, however, P.C. Shapiro had asked for his driver's licence, ownership and insurance, and following that, he followed shortly behind Mr. Singh as Mr. Singh made his way to the subject Acura vehicle. He opened the door of the passenger side of the vehicle, which was not locked at that time. He looked in the glove box, and either retrieved documents from the glove box or centre console.

[20] P.C. Shapiro was dealing with Mr. Singh as the driver of the vehicle. During the time that P.C. Shapiro was on scene as the investigating officer, the officer indicated that no one else approached P.C. Shapiro and stated that he or she was the driver, nor was there any suggestion that anyone else was the driver.

[21] In this trial, there was no evidence of any person other than Mr. Singh being in the immediate area of the subject vehicle, the Acura, at various times after it was beached on the streetcar track.

[22] Upon the arrival of P.C. Rohan Smith, the subject vehicle was located approximately 20 metres into the tunnel, which was approximately 10 metres from Bay St. The tunnel goes under Bay St. This witness made reference to the top, at Bay Street, looking down at the tunnel. He estimated that the vehicle had come to a rest approximately 10 metres along the streetcar tracks portion in the tunnel, where there was no concrete alongside the tracks. There is no access to the location of the vehicle in the tunnel, other than through the entrance to the tunnel.

3) Breath Tests, Readings, and Toxicologist Report

[23] There was a delay in leaving the scene, following the failure registered on the approved screening device arising from Mr. Singh's breath sample at the roadside. This delay arose from the need to secure the vehicle, the need to hand off the case to another officer, and waiting for that officer. Following those steps, Mr. Singh was taken to traffic services by P.C. Shapiro. He was given and took the opportunity to consult with duty counsel.

[24] He was taken into the breath room at 11:30 p.m. for his first test. The Intoxilizer 8000 C was set up and in proper working order. As the qualified technician proceeded to deal with Mr. Singh, the officer received a note from the Staff Sergeant in charge of the station to the effect that a note had been provided with contact information for a lawyer. The qualified technician stopped dealing with Mr. Singh, and P.C. Shapiro took Mr. Singh to provide a second opportunity to consult with counsel, Mr. Pearce. Mr. Singh took that opportunity to speak with counsel Mr. Pearse.

[25] Following the second consultation with counsel, at 11:56 p.m., Mr. Singh was taken back to the breathalyzer room. P.C. William Norman, the qualified technician, described Mr. Singh as having a strong odour of an alcoholic beverage on his breath, blood shot eyes, skin which appeared to be a little flushed although he was non-Caucasian, and he had an accent so the officer did not infer any particular observations about his speech. He was polite. PC Norman described him as being in kind of a party mood, not appearing to know the gravity of the situation. In his opinion, Mr. Singh appeared to be intoxicated but it was not clear as to the level. At 12:04 a.m., he provided a sample that was analyzed to be 175 mgs. of alcohol per 100 mls. of blood. When he was returned for his second test, which was taken at 12:27 a.m., the reading was 167 mgs. of alcohol per 100 mls. of blood.

[26] A letter was provided by a Centre of Forensic Sciences toxicologist, Inger Bugyra, which was put in evidence. The opinion of this toxicologist was based upon an assumed time of driving between 8:34 p.m. and 10:04 p.m. Based upon that time of driving, together with other particulars set out in this opinion, the toxicologist opined that the blood alcohol level during that time frame would have been between 160 to 235 mgs. of alcohol per 100 mls. of blood.

Issues

[27] There are really only two issues in this case. The first is whether the Crown has established beyond a reasonable doubt that Mr. Singh was operating the vehicle, and the second related issue is whether he was operating it at the relevant time.

Analysis

[28] It is a fundamental principle in our system of criminal justice that a defendant is presumed to be innocent of the charge against him unless and until the Crown proves beyond a reasonable doubt that he is guilty. The entire burden of proof rests on the shoulders of the Crown. There is no obligation on a defendant to prove or establish anything. The court must be satisfied on the totality of evidence that there is no reasonable doubt as to a defendant's guilt. A finding of guilt does not necessarily follow if the trier of fact believes the Crown witnesses. Even if a trier of fact believes the Crown witnesses, the consideration of the all of the other evidence may still leave the trier of fact with a reasonable doubt.

[29] In considering the evidence of witnesses, a court may believe all, none or some of the evidence of a witness. A trier of fact is entitled to accept parts of a witness' evidence and reject other parts. And a trier of fact can apply different weight to different parts of the evidence of a witness that the trier of fact has accepted.

[30] There are two types of evidence in any criminal trial. One is direct evidence. This is evidence from the testimony of witnesses that directly proves a fact in issue. The other type of evidence is circumstantial evidence. Circumstantial evidence is evidence that can come from the testimony of witnesses. It can also come from physical evidence. From the circumstantial evidence, the court is asked to draw an inference proving a fact in issue. An inference must not be a mere guess or suspicion, however shrewd that guess may be. An inference is much stronger than conjecture or speculation. If there are no proven facts from which an inference can logically be drawn, it is impossible to draw an inference. Both direct and circumstantial evidence are admissible as a means of proof. Sometimes circumstantial evidence is more persuasive than direct evidence. The evidence of one witness may contradict that of another, but the circumstances of an event may not be in dispute, as alluded to by the SCC in R. v. Truscott, [1967] S.C.R. 309, at 384-84. The court must be very careful in dealing with circumstantial evidence. Before the court can base a finding of guilt on circumstantial evidence, the court must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts; R. v. Cooper, [1978] 1 S.C.R. 860 at 881; R. v. Fleet (1997), 120 C.C.C. (3d) 457 at 464-65 (Ont. C.A.); R. v. Tombran (2000), 142 C.CC. (3d) 380, at para. 29 (Ont. C.A.); R. v. Griffin, 2009 SCC 28, 2009 S.C.C. 28, para 33; R. v. Sunshine, 2013 BCCA 102, lta refd [2013] S.C.C.A. No. 190 (QL).

[31] Whether an inference can reasonably be supported based on circumstantial evidence is variously said to depend on common sense, experience and logic; R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 (Ont. C.A.) at paras. 49 and 33; R. v. Mihalkov, [2009] O.J. No. 624 (C.A.), at paras. 36 and 37; R. v. Watson (1996), 108 C.C.C. (3d) 310, at p. 324 (Ont. C.A.)

[32] Often, in drinking and driving investigations, the Crown relies upon evidence in the form of direct evidence that a person was the driver, or the person in care or control of the vehicle at the subject time. Often, this is either through a witness identifying a defendant as having been the driver, or a statement of the defendant admitting prior driving or care or control. However, as with any criminal case, evidence can be given in the form of direct or circumstantial evidence. Where circumstantial evidence is relied upon by the Crown with respect to a constituent element of an offence, the Crown is still required to convince the court beyond a reasonable doubt, of that fact. In this case, no witness saw the driver of the Acura as it was being driven to the point where it was in the tunnel, beached up on top of the streetcar tracks. The Crown relies upon circumstantial evidence to prove the identity of the driver.

[33] It is critical for this court to carefully review the circumstantial evidence upon which the Crown relies in this case. It consists of the following:

1. The Acura car was first seen inside a tunnel for TTC streetcars, which led into Union station;

2. There was no vehicular traffic permitted inside this tunnel, and there was signage to advise parties outside the tunnel of the prohibited nature of the area;

3. There was no access to pedestrians to this tunnel, it was an area solely to be entered by way of a TTC streetcar.

4. The area inside the tunnel consisted of streetcar tracks, nothing else. There were no lanes for vehicles to travel, or sidewalks for people to walk. It contained raised streetcar tracks for streetcars to travel along, much like a railway or a subway.

5. When the streetcar travelling eastbound along Queen's Quay approached the tunnel, operated by the witness Jeremy Morrison, Mr. Morrison saw the car later identified as the Acura car, and no other vehicles in the area.

6. Mr. Morrison saw Mr. Singh walking away from the Acura car, away from the inside of the tunnel where the car was located, and towards the streetcar operated by Mr. Morrison;

7. There was no way into or out of the area where the Acura was located other than streetcar access through the tunnel;

8. The streetcar operator pointed to the car in the tunnel and asked "Is this your car?". Mr. Morrison testified that right away Mr. Singh stated "I am really really sorry to do this to you guys". He also stated that Mr. Singh stated "Yes, I'm very sorry".

9. Mr. Singh also told Mr. Morrison that he was not used to this, that he was from Markham.

10. Mr. Morrison asked Mr. Singh "What were you thinking?", "what are you on", and "what the fuck were you doing, are you on something, are you fucked up?". Mr. Singh did not really answer. Mr. Morrison described him as having a blank stare, that he looked absent.

11. After Mr. Singh asked Mr. Morrison if he had any cigarettes, Mr. Singh then went back into the tunnel to the Acura car. He opened the driver's side door of the car, got in the car, and removed something.

12. After taking something out of the car, Mr. Singh put his keys in his pocket.

13. Other than Mr. Singh, there was no one else, on the evidence in this trial, in the immediate vicinity of the Acura car after it was observed stuck on the streetcar track in the tunnel.

14. Mr. Singh then left the scene to go and get some cigarettes.

15. After P.C. Shapiro arrived on scene to commence the impaired investigation, he had an exchange with Mr. Singh wherein he requested the driver's licence, ownership and insurance. Mr. Singh then proceeded over to the Acura car, with P.C. Shapiro following closely behind.

16. Mr. Singh opened the passenger door of the Acura and looked through the glove box, and subsequently removed from the glove box or centre console of the Acura the ownership and insurance particulars which were turned over to P.C. Shapiro.

17. While on the scene P.C. Shapiro conducted his investigation on the basis of Mr. Singh having been the driver. No one else came forward to tell P.C. Shapiro, or to suggest, that anyone else was the driver.

18. There was no evidence that anyone else went into the car during the investigation by P.C. Shapiro, nor during the observations of the streetcar operator Mr. Morrison.

[34] The Crown also relies upon the evidence as to the nature of the area of this investigation, in downtown Toronto, Harbourfront, near the Union Station, where there were onlookers observed by the first witness on the scene, Mr. Morrison. This witness observed the onlookers chuckle when Mr. Singh said he was not used to this as he was from Markham. Mr. Morrison testified as to the nature of the signage and all of the indications present to advise of the prohibited nature of the tunnel area. The Crown relies upon the circumstantial evidence set out above and asks the court to find that it is sufficient proof, beyond a reasonable doubt, that Mr. Singh was the driver of this vehicle. The Crown also relies upon the circumstantial evidence above, together with the nature of the area, in downtown Toronto, where there were onlookers observed when the first witness arrived. The crown's submission is that the call to dispatch P.C. Shapiro at 9:55 p.m., given the nature of this area, in downtown Toronto, so close to Union station, is such that it is quite reasonable to infer that the incident would have occurred shortly before being reported, which would have been shortly before the dispatch to P.C. Shapiro. The crown also asks the court to find that the incident would have happened no earlier than 8:34 p.m., (1 hour and 21 minutes before the radio dispatch to the officer) which is critical for the expert opinion as to the blood alcohol readings which were related back to the time of driving.

[35] Many courts have considered circumstantial evidence in relation to issues such as those in the case at bar.

[36] In this case, for the issues of the identity of the operator of the Acura car, and the timing of the previous operation of this vehicle, the court must consider circumstantial evidence. The court must be satisfied beyond a reasonable doubt, where it relies upon circumstantial evidence that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. If there are reasonable inferences other than guilt, then the Crown's evidence falls short of establishing the guilt of Mr. Singh beyond a reasonable doubt. However, the circumstantial evidence against Mr. Singh must be considered as a whole. The court must consider the cumulative effect of all of the evidence in applying the test. Individual items of circumstantial evidence must not be subjected to isolated scrutiny in a piecemeal analysis, as they are links in the chain of ultimate proof. R. v. Chen, [2017] O.J. No. 3715 (S.C.); R. v. Griffin, 2009 SCC 28 at para. 33; R. v. Pearle, 2016 ONCA 954, at para. 7; R. v. Biggs, 2016 ONCA 910, at para. 17; R. v. Morin, [1988] 2 S.C.R. 345, at p. 361; R. v. Smith, 2016 ONCA 25, at paras 81-82.

[37] Reasonable doubt, as stated by the S.C.C. in R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 30 is a doubt based on reason and common sense, which must be logically based upon the evidence or lack of evidence. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.

[38] As further commented upon by the S.C.C. in R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33, at paras 36 to 38:

"…A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

37 When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff'd , [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

38 Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty."

Further at paras. 55-56 the Court elaborated:

"… Where the Crown's case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence…

[56] The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine, at para. 22. The court noted that "[c]ircumstantial evidence does not have to totally exclude other conceivable inferences" and that a verdict is not unreasonable simply because "the alternatives do not raise a doubt" in the jury's mind. Most importantly, "[i]t is still fundamentally for the trier of fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.""

[39] The circumstantial case against the defendant must be considered as a whole. It is only the cumulative effect of all of the evidence that must satisfy the Crown's burden of proof in order to justify conviction. The court must not subject each item of circumstantial evidence to scrutiny, piece by piece. The Supreme Court of Canada stated this test in R. v. Morin, [1988] 2 S.C.R. 345, at p. 361.

[40] The Court of Appeal for Ontario commented further upon this principle in R. v. Smith, 2016 ONCA 25 at paras. 81-82:

"81 The second principle assumes particular significance when, as here, arguments are advanced that individual items of circumstantial evidence are explicable on bases other than guilt. It is essential to keep in mind that it is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof: R. v. Morin, [1988] 2 S.C.R. 345, at p. 361; R. v. Uhrig, 2012 ONCA 470, at para. 13.

82 Often, individual items of evidence adduced by the Crown examined separately lack a very strong probative value. But it is all the evidence that a trier of fact is to consider. Each item is considered in relation to the others and to the evidence as a whole. And it is all the evidence taken together, often greater than the sum of individual pieces, that is to be considered and may afford a basis for a finding of guilt: Uhrig, at para. 13. See also: Côté v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76."

[41] Various courts have applied these principles in cases of drinking and driving. The court also considers the cases below, in its contextual consideration of the two issues.

Issue of Identity of the Driver

[42] In R. v. Lucciantonio, [2010] O.J. No. 947 (Sup.Ct.), Durno, J., sitting as a summary conviction appeal court, upheld a conviction where the driver of the vehicle was not directly identified by a witness. The trial judge relied upon circumstantial evidence, and considered whether there were other reasonable conclusions, other than guilt. The summary conviction appeal court considered all of the circumstantial evidence, and found that there was a basis upon which the trial judge could find that the only rational inference available was that the appellant was the driver. The court was not persuaded that the trial judge was required to find a reasonable doubt on the basis of the absence of evidence.

[43] In R. v. Leitch, [2012] O.J. No. 491 (C.A.), the court reviewed the decision of the trial judge where the central issue was identity. The court reviewed the evidence and held that there was a compelling basis for finding that the appellant was the driver. On the other hand, the court noted there was no evidence that someone else had been driving the van. The appellant did not testify. The Court held that the trial judge properly considered the circumstantial evidence, and upheld the conviction.

[44] The court also considers the summary conviction judgment of R. v. Agyemang, 2014 ONSC 4232, [2014] O.J. No. 5047.

[45] Considering all of the circumstantial evidence in this trial, as set out above, in a cumulative way, the court finds that the testimony of Mr. Morrison was credible and reliable, as was the testimony of P.C. Shapiro. It stood largely uncontradicted. The court makes findings of fact in relation to all of the aspects of evidence as outlined in points 1 through 18 above. There is, this court would find, no way that the Acura car would have proceeded to the location where it was found if it had not been driven there from the street. The question for the court then is who drove the car there, to a location where it could no longer be driven. Based upon all of the circumstantial evidence in this trial, both in favour of the inferences sought to be relied upon by the Crown, and in light of all of the evidence in this trial including those submitted by the defence, the court finds that the only reasonable inference to be drawn from the proven facts, is that Mr. Singh had been the driver of the Acura car which was observed beached on the streetcar tracks in the tunnel, and previously driven to that location.

Issue of Time of the Driving

[46] In R. v. DeCastro, 2016 ONSC 8114, the summary conviction appeal court overturned a conviction at trial where the trial judge had effectively inferred that an accident would have occurred on the 401 highway within approximately 28 minutes before the officer was directed to respond to the site. In that case, there was an accident on the side of the 401 highway, where the vehicle was perpendicular to the guardrail, in a time frame around 12:30 in the morning. Traffic had been diverted into the collector lanes where the vehicle was placed. The appeal court overturned the conviction, finding that it was not appropriate to make that finding in those circumstances.

[47] In the case at bar, the issue is whether the driving of the car by Mr. Singh (as found above), occurred earlier than 8:34 p.m. This was the earliest point at which the blood alcohol readings, as related back, could apply. The TTC operator, upon coming on the scene and about to enter the tunnel, saw the car in the tunnel on the track. He got out and had a conversation from the driver, and shortly after waited for the arrival of his supervisor and police. The dispatch call to the investigating officer was at 9:55 p.m., and he arrived on scene at 10:04 p.m. It is important to note the evidence regarding the time and location of this incident. It was in downtown Toronto. It was in the tunnel where each eastbound and westbound streetcar going along Queens' Quay would need to travel to go into and out of Union station. The tunnel is under Bay Street. The area of Queen's Quay, and Bay Street going into Union station, is a heavily travelled area for people in and coming into Toronto. This downtown location is proximate to many events, both sporting and entertainment, in that locale. It is a very busily travelled area both by pedestrians and vehicles coming into the area. The time, prior to 10 p.m. is often also a busy time in that area for any events, or just attending venues in the area. The court applies the law, asking whether based on common sense, experience and logic, a time of driving into the tunnel and onto the streetcar track within 1 hour and 21 minutes prior to the police dispatch is the only reasonable inference based on the proven facts in this case. The court also notes the presence of Mr. Singh just walking out of the tunnel as the streetcar operator, Mr. Jeremy M. approached with his streetcar. There were also people in the area of the scene who were watching Mr. Singh and Mr. Morrison and listening to them.

[48] The court considers the summary conviction appeal court judgments in R. v. Agyemang, supra, R. v. Chan, [2011] O.J. No. 3329, and R. v. Irvine, [2002] O.J. No. 5375; aff'd [2004] O.J. No. 914.

[49] As noted by the court in R. v. Palic, [2015] O.J. No. 6637, considering an accident scene on Islington Avenue in Toronto at a time frame around 11:50 p.m., we have been living for many years in the age of the mobile phone, almost as omnipresent as oxygen itself. The court found, in the case of a collision on a main road, literally on the front lawn of a multi-storey apartment building, it was a matter of reasonable inference that the collision would have been called in to the emergency services within minutes of the collision. The court considered the nature of the collision, character of the surrounding area, time of day, and other factors.

[50] The court considers all of the circumstantial evidence in this trial, including those points outlined in para. 33 above, which the court has found as facts in this trial. The court also considers the evidence noted most immediately above, as to the location of this incident, relative to downtown Toronto, the presence of people in the area, and what has been noted to be the proliferation of cell phones carried by people in the city. The court finds based upon all of the circumstantial evidence in this trial, both in favour of the inferences sought to be relied upon by the Crown, and in light of all of the evidence in this trial including those submitted by the defence, that the only reasonable inference to be drawn from the proven facts, is that Mr. Singh had been the driver of the Acura car in the time frame shortly before 9:55 p.m. when the Toronto police dispatched the first police officer to the scene. Certainly, the court finds beyond a reasonable doubt that this Acura car had been driven in that area after 8:35 p.m., and prior to 9:55 p.m. when this car was observed beached on the streetcar tracks in the tunnel.

Conclusion

[51] Based upon all of the evidence in this trial, and the findings of fact made by this court, the Crown has proven beyond a reasonable doubt that Mr. Singh was the driver of the Acura car before it became beached on the streetcar track in the tunnel, and that the prior time of driving was within the time range of being after 8:34 p.m. and being prior to 10:04 p.m. Based upon the evidence of the toxicologist, the intoxilyzer readings related back to this earlier time of driving would have been within the range of 160 and 235 mgs. of alcohol in 100 mls. of blood, which is far in excess of the legal limit of 80. The Crown has proven beyond a reasonable doubt that Mr. Singh was operating his vehicle with excess of the legal limit of alcohol in his body at the relevant time, and he is found guilty of the charge.

Released: November 22, 2017

Signed: Justice Beverly A. Brown