COURT FILE NO.: SCA(P) 1378/11
DATE: 20120326
SUPERIOR COURT OF JUSTICE – ONTARIO
SUMMARY CONVICTION APPEAL COURT
RE: HER MAJESTY THE QUEEN Respondent – and – IZZAT ISSAWI Appellant
BEFORE: RICCHETTI J.
COUNSEL:
S. Andersen, for the Crown
B. Daley, for the Appellant
ENDORSEMENT
[On appeal from the judgment of Khoorshed J. of the
Ontario Court of Justice dated July 11, 2011]
Ricchetti, J.
[ 1 ] The Appellant appeals his conviction whereby the learned trial judge, after trial, found Mr. Issawi guilty of dangerous driving and imposed a fine of $500.
[ 2 ] At trial, Officer Kulback testified on behalf of the Crown. Officer Kulback was the police officer who observed Mr. Issawi’s driving.
[ 3 ] At trial, Mr. Issawi testified. Mr. Issawi is a tow truck driver.
[ 4 ] No one else testified at trial. Much of the Defence submissions at trial were that the events described by Officer Kulback, if accepted, would not amount to dangerous driving.
[ 5 ] Justice Khoorshed found Mr. Issawi guilty of dangerous driving and imposed a fine of $500.
The Facts
[ 6 ] At approximately 11 p.m., Officer Kulback received a call regarding a motor vehicle accident at Hurontario Street and The Queensway. Officer Kulback was en route to the accident site heading southbound on Hurontario Street, when she observed Mr. Issawi's tow truck ahead of the officer’s vehicle heading in the same direction.
[ 7 ] Mr. Issawi came to a stop at a red light at the King St. intersection. He stopped his vehicle. He inched forward. Then, Mr. Issawi drove through the red light.
[ 8 ] Over the course of approximately one kilometre, Mr. Issawi’s tow truck accelerated quickly reaching a speed of or close to 120 km/h in the 50 km/h zone. Mr. Issawi travelled through at least one intersection with a green light. Officer Kulback called dispatch, described what she had observed and enquired about other police vehicles to assist.
[ 9 ] At the next intersection, Officer Kulback turned on the lights of her cruiser.
[ 10 ] The section of roadway travelled by Mr. Issawi, while late at night, is “a very, very busy area” with “lots of driveways, in and out of plazas, [and] apartment buildings”. The section of the roadway is designated 50 km/h because of “pedestrian traffic, heavy motor vehicle traffic”. In the area there is a fire department and a 24 hour convenience store/ Shoppers Drug Mart open to midnight and a Pizza Pizza. The intersection was noted by Officer Kulback as a “pretty busy intersection” where there had been a few pedestrians hit by vehicles and motor vehicle collisions. Officer Kulback also testified that, at the time she observed Mr. Issawi's driving, there were pedestrians and other vehicular traffic in the area.
[ 11 ] Mr. Issawi testified that he could not have gone as fast as the police officer stated. Further Mr. Issawi testified that he did not go through the red light. Mr. Issawi denied that he was rushing to the motor vehicle accident scene to be the first tow truck there.
Reasons
[ 12 ] Justice Khoorshed accepted the evidence of Officer Kulback and rejected the evidence of Mr. Issawi. Defence counsel admitted that, the evidence of the speeding and running a red light in the circumstances described by Officer Kulback, if established beyond a reasonable doubt, would be dangerous driving under the Criminal Code .
The Issue
[ 13 ] The Appellant seeks a new trial.
[ 14 ] There was a single issue raised in the Notice of Appeal, namely, the sufficiency of the evidence to establish the actus and mens rea of the offence beyond a reasonable doubt.
[ 15 ] Defence counsel also raised two issues not in the Notice of Appeal, namely, the settlement discussions before the trial judge and the judicial notice of the intersection taken by the trial judge.
i) Sufficiency of the Evidence
[ 16 ] Justice Khoorshed believed the evidence of Officer Kulback noting that “Under the circumstances to disbelieve the officer would be absolutely unscientific, irrational. I therefore have complete belief in the testimony given by the officer. As far as the accused is concerned, I do not believe his accuracy or his statement.” A trier of fact may accept or reject all or some of a witness’ testimony, however, the choice of words “unscientific, irrational” was a poor choice for the trial judge to have used. There was no scientific evidence presented one way or another. There was no evidence that not accepting Officer Kulback's evidence would be “irrational”.
[ 17 ] Justice Khoorshed found that Officer Kulback’s evidence was un-contradicted in all material respects. On the other hand, he found that there were a number of significant contradictions in Mr. Issawi’s evidence causing him to completely reject Mr. Issawi's evidence. This is set out in detail in his reasons.
[ 18 ] Mr. Issawi’s evidence was that his tow truck vehicle couldn’t reach 120 km/h in the distance travelled. However, the evidence of Officer Kulback was that Mr. Issawi's acceleration to this speed was very fast and over approximately one kilometre when Officer Kulback paced the vehicle and noted the speed she was travelling. Justice Khoorshed expressly considered this submission and dealt with it in his reasons, where he rejected it.
[ 19 ] There is no doubt that there was sufficient evidence to support the conviction for dangerous driving. I cannot conclude that the findings by Justice Khoorshed were unreasonable on the evidence before him.
[ 20 ] After completion of the Crown's submission, Defence counsel abandoned this argument during the appeal hearing.
ii) Judicial Notice of the Intersection
[ 21 ] During the trial, Justice Khoorshed indicated to counsel that he could take judicial notice of one of the intersections.
[ 22 ] Officer Kulback provided sufficient and detailed information regarding the intersections and the portion of the roadway travelled by Mr. Issawi that evening including:
• describing what businesses and services were in the area and open at the time;
• that there were motor vehicles in the area at the time; and
• there were pedestrians in the area at the time;
put at risk by Mr. Issawi’s driving that evening at that time.
[ 23 ] Again, after hearing submissions from Crown counsel, Defence counsel abandoned this argument during the appeal hearing.
iii) Disclosure of Settlement Discussions
[ 24 ] During his reply submissions, Defence counsel conceded the only issue upon which the Appellant might succeed on appeal related to the disclosure of settlement discussions before Justice Khoorshed.
[ 25 ] The relevant portion of the transcript at pages 54-55, after Mr. Issawi had testified but before Crown cross-examination, was:
The Court: Before you start, sir, I’ve got a couple of questions, just like to leave something with you. Is a settlement of this matter possible between the two of you?
Mr. Shanahan: No. I mean....
The Court: Well, I’m not going to ask you whether you want to or not. I think it’s left to you. Think about it both of you. If you could settle this matter it would be nicer. Otherwise, of course, I will have to pronounce my judgment with – and I’ve looked at all the facts, and, of course, before I do that you will have your cross-examination and your arguments.
Mr. Shanahan: Yeah, Your Honour, I can only indicate to you that the Crown has proposed a settlement in the past and right up until today. So there’s nothing else I can....
The Court: I see.
Mr. Levin: Your honour, perhaps, taking into consideration what Your Honour said, when the settlements are proposed by the Crown sometimes Crowns are at a disadvantage. All they have in front of them....
The Court: Counsel, I don’t ...
Mr. Levin: ...and I understand Your Honour is quite – some notes. Now that my friend heard the evidence, this is perhaps what I think Your Honour means that now that my friend have all the evidence in front of him, maybe this thing should be revisited.
The Court: You want to have....
Mr. Levin: I have no opposition to dedicate five more minutes to this.
The Court: Okay, okay. I don’t tell counsel what they should or should not do. I’m merely asking the possibility. Now, it’s left to the two of you to decide. We’ll break for lunch, and when we are back you let me know yes or no. That’s all I need to know. Okay, so we’ll breach for lunch. Anything else you want?
RECESS
[ 26 ] There is certainly nothing improper with the trial judge enquiring of counsel, during the course of the trial, whether the matter could be settled. The trial judge expressed no view as to how the matter was proceeding and did not direct the parties to any particular settlement. It is unfortunate that Mr. Shanahan advised the court that an offer had been made which had been rejected by the defence.
[ 27 ] The Defence submits that the court wanted the matter settled - which in the circumstances of this case would mean a plea to careless driving under the HTA rather than the Criminal Code offence of dangerous driving. The Defence reads too much into the exchange. Whether the court had in mind a plea to a different charge or an agreement on a sentence is not known and is irrelevant. The trial judge made it clear that he was not telling counsel what they should or should not do. All the trial judge wanted to know, after the recess, was whether the matter had been settled - "yes or no".
[ 28 ] Does the fact the trial judge became aware the defence had turned down a settlement offer prejudice Mr. Issawi's case? No objection was taken by the defence to Mr. Shanahan's comment. There was no request for a mistrial.
[ 29 ] It is clear from Justice Khoorshed's reasons that he reviewed the facts in this case. The facts of this case clearly demonstrated dangerous driving. Mr. Issawi drove through a red light and travelled 120 km/h in a 50 km/h zone in an area known to be and was frequented at the time by other motor vehicles and pedestrians. There is no issue by the Defence that, on these facts, they constitute the essential elements of dangerous driving. I fail to see the harm or prejudice to Mr. Issawi as a result of Mr. Shanahan's unfortunate comment.
[ 30 ] Defence counsel also referred to another portion of the transcript at page 36:
….UNRELATED MATTER DEALT WITH AT THIS TIME
Mr. Levin: We're ready. I don't want the record to reflect the other conversations, Your Honour, of the case.
[ 31 ] It is unclear what the "other conversations" were referring to. Neither counsel could shed any light on Mr. Levin's comment. Was it conversations in other cases? Was it conversations in this case? If so, what was discussed? It would be mere speculation that this comment had anything to do with the settlement issues which were raised later in the trial.
[ 32 ] Despite the comment by Mr. Shanahan, there was nothing in the transcript that suggested any apprehension of bias and no bias has been alleged by the Defence.
[ 33 ] I am not persuaded this ground of appeal has any merit.
Conclusion
[ 34 ] The Appeal is dismissed. The stay granted pending appeal shall continue until midnight March 29, 2012 to give Defence counsel an opportunity to advise Mr. Issawi of the result of this appeal.
Ricchetti, J.
Released: March 26, 2012
COURT FILE NO.: SCA(P) 1378/11
DATE: 20120326
SUPERIOR COURT OF JUSTICE – ONTARIO
SUMMARY CONVICTION APPEAL COURT
RE: HER MAJESTY THE QUEEN – and – IZZAT ISSAWI
BEFORE: RICCHETTI J.
COUNSEL:
S. Andersen, for the Crown
B. Daley, for the Appellant
ENDORSEMENT
[On appeal from the judgment of Khoorshed J. of the Ontario Court of Justice dated July 11, 2011]
Ricchetti J.
Released: March 26, 2012