Court Information

Ontario Court of Justice Date: January 30, 2020 Location: Old City Hall - Toronto

Between: Her Majesty the Queen And: Rakeshwar Kisun

For the Crown: A. Serban For the Defendant: D. Johnson

Heard: January 27-30, 2020

Reasons for Judgment

RUSSELL SILVERSTEIN, J.:

A. Introduction

[1] The Accused is charged with dangerous driving, failing to stop for police and driving while prohibited.

[2] On Jan 18, 2019 police observed and chased, on two separate, yet closely consecutive occasions, a silver Dodge Caravan bearing Ontario licence marker CELZ 528.

[3] The only issue to be resolved in this case is whether the Crown has proved beyond a reasonable doubt that the operator of the van on these two occasions was the accused.

[4] Defence concedes that the driver on the two occasions was one and the same person and that this person's driving constituted the commission of the offences charged.

[5] The case against the accused is a purely circumstantial one. He did not testify nor did he call any evidence.

B. An Overview of the Evidence

[6] The van in question had been rented by the accused's spouse, with whom he resided at the time.

[7] The evidence, video and viva voce, overwhelmingly proves that minutes before the van was first observed by the police travelling in a laneway behind 183 Dovercourt in Toronto, the accused was alone in the lobby of that building and that he was working elsewhere in the building as a contractor. He continued to work there as a contractor up to the date of his arrest on Feb 21, 2019.

[8] CCTV video of the accused in the lobby shows him to be a black man with facial hair, a black baseball hat and a dark jacket with a fur-trimmed hood. When he is arrested at 183 Dovercourt a month later he is wearing the same hat and jacket.

[9] Officer Borges was the first officer to follow and chase the van as it left 183 Dovercourt and fled south on Dovercourt, eventually turning right on Sudbury, and eventually escaping at Queen and Gladstone. His only opportunity to catch a glimpse of the driver was as he momentarily pulled level with the van as it and he were about to negotiate their right turn onto Sudbury. According to him he was able to ascertain that the driver was young, black, and wearing a black jacket with fur on the hood. At the time of testifying he had no recollection of the driver wearing a hat and there was nothing in his notes to this effect. Nor did P.C. Borges testify to seeing any facial hair.

[10] After the driver escaped the clutches of P.C. Borges, he was pursued by P.C. Papamanolis and his escort. The escort was driving. At some point during the failed pursuit Papamanolis exited his police car and approached the driver's side of the van. The driver of the van quickly drove off.

[11] Papamanolis had an extremely brief opportunity to see the driver through the driver's window. The interior lights were off. He described him as male, black, 25-30, thin build, unshaven, dark facial hair with moustache and goatee, wearing a light tuque with dark design and a brown jacket. As concerns the light tuque Papamanolis said he was "sure" he saw that.

[12] Officer Vidot investigated and spoke to the accused at 183 Dovercourt about a week later. He gave Vidot the same address as the accused's wife supplied to the car rental company.

[13] Chantal Dulay was called as a witness by the Crown.

[14] According to her, no one drove the Dodge van but her. She testified that on January 18, 2019 she parked it at Square One mall in Mississauga around 3 pm and walked to her school nearby. She returned to the mall on foot and did some shopping with her kids. Around 9 pm they got in the car and drove home. The next morning, she noticed that the plates were missing and reported that to the rental company. This latter assertion is corroborated by the car rental staff.

C. Analysis

[15] It is very difficult to assess Ms. Dulay's evidence. Neither the Crown nor the defence seriously attacked her credibility, yet her evidence that only she operated the van, and that it was in the Square One parking lot between 3pm and 9pm on Jan 18, 2019 is clearly not true. The evidence that the van was in downtown Toronto at around 7 pm is irrefutable. Both counsel acknowledge this.

[16] As a result, I reject all her testimony that is not corroborated. I also accept that she is the spouse of the accused and that they live together.

[17] The sum of her evidence that I do accept is that she and the accused, her spouse, lived together at the time and at the relevant time she was the lessee of the van. I also find as a fact that she reported the plates stolen on Jan 19, 2019.

[18] That she was the lessee of the van and lived with the accused is critical to the Crown's case in that it proves the accused's connection to the van. I conclude that on Jan 18, 2019 the accused was a party to the van having made its way to 183 Dovercourt. Either he drove it there himself or participated in someone else doing so at some time earlier in the day on January 18.

[19] The report of the stolen plate is perplexing. I reject as far-fetched the notion that the plates were co-incidentally stolen from the van by an arms-length third party on the very evening that the van had been involved in a police chase.

[20] Rather, I think the only reasonable inference is that either the accused, someone connected to the accused, or Ms. Dulay removed them thinking it would help prevent the police from finding the van.

[21] Insofar as the spectre of the accused participating in such an obstruction could be post-offence conduct capable of supporting a finding of guilt, it is equally consistent with the accused learning from whoever was driving that the police chase had occurred and taking evasive action to keep the police at bay. It does not settle the fundamental question: Is it a reasonable possibility that the accused gave the key to the van to a third party who drove it away from 183 Dovercourt at around 7:15 pm?

[22] That, after all, is the test. As the Supreme Court held in R. v. Villaroman, 2016 SCC 33 at paras. 35–38:

At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts". However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence": para. 30 (emphasis added). 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.

When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt. 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". "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.

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.

[23] Ms. Serban, for the Crown, argues that it is implausible that the accused could have given the key to someone else resembling the accused, between 7:12 pm and 7:15 pm.

[24] The first weakness in this argument is the sub-argument that the driver of the van resembled the accused.

[25] Both police officers' extremely short and chaotic opportunity to see the driver undermine the reliability of their description. Moreover, their descriptions do not support each other. Borges saw a black jacket with fur. Papamanolis saw a brown jacket and did not see fur. Papamanolis saw facial hair. Borges did not. Papamanolis was sure he saw a tuque. Borges has no recollection of seeing a hat of any kind.

[26] The accused is captured on video on January 18 and February 21. On both occasions he is wearing a black baseball hat.

[27] It would be dangerous to rest a conviction on these two officers' brief encounters with the driver. R. v. Carpenter, [1998] O.J. No. 1819 (C.A.)

[28] Yet, and there is nothing inconsistent with this proposition, officer Papamanolis's observation of a light tuque, a hat much different from the hat worn by the accused on that day, goes a significant distance in raising a reasonable doubt. Especially given his certainty in this regard. Chartier v. Quebec (A.G.), [1979] S.C.J. 56

[29] As concerns Ms. Serban's argument as to the unlikelihood that the accused could have passed the key to someone else, I return first to the Supreme Court's admonition in Villaroman that whether an innocent alternative is a reasonable one does not depend on evidence to support that alternative. It can be reasonable when it accords with logic, human experience and common sense.

[30] Could the accused have given a co-worker the key to the truck at some point that day and, at around 7:14 pm asked him to go get a case of beer, or something to eat? I think the answer is yes. The fact that there is no evidence that the accused was working with someone else does not undermine the reasonableness of this possibility. The fact that the accused is seen alone in the lobby just a few minutes before the truck is seen in the laneway driving away says nothing about when the accused might have given the key to a co-worker. It is possible that the co-worker had possession of the key throughout the day.

[31] The Crown's case proves beyond a reasonable doubt that the accused had access to and control over the van on the day in question. It does not exclude the reasonable possibility that he shared that control with someone else.

[32] For the reasons set out I am not convinced beyond a reasonable doubt that the accused was the driver of the offending van at the material time.

[33] The charges are dismissed.

Released on January 30, 2020

Justice Russell Silverstein