ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 161/11
DATE: 20121009
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
REDWANUL JAIGIRDAR
Appellant
Jason A. Gorda, for the Crown/ Respondent
Jeffrey Milligan, for the Appellant
HEARD: May 18, 2012
TROTTER J.
[ 1 ] The appellant was charged with dangerous driving and failure to stop for the police, contrary to ss. 249 and 249.1 of the Criminal Code . After a trial presided over by the Honourable Mr. Justice R. Khawly, the appellant was found guilty of both offences. He was fined $2,000 and received a six-month driving prohibition on the dangerous driving count. The fail to stop charge was stayed.
[ 2 ] The conviction is challenged on the basis that the learned trial judge used the appellant’s silence at the scene as a basis for rejecting his evidence at trial. For the following reasons, the appeal is allowed.
[ 3 ] The sole issue in this case was – who was a driver of a vehicle that was admittedly being driven in a dangerous manner. All other aspects of both offences were admitted by the defence. In short, a police officer observed a vehicle speeding on the Don Valley Parkway (DVP) in Toronto. The officer followed the vehicle and directed it to stop. It did not, and then exited the DVP, re-entered the DVP and then exited again before coming to a stop. The police officer pulled up in his cruiser behind the stopped vehicle and waited for back-up.
[ 4 ] The officer testified that he was close to the vehicle after the stop and said he saw no movement or shaking motion from in the vehicle. A camera on board the police cruiser did reveal movement on two occasions. The officer said he saw a male in the right passenger seat of the vehicle. In fact, a male got out of the rear passenger side of the vehicle. When the officer approached the driver’s side, the appellant was seated in the driver’s seat. The officer thought that he was impaired by alcohol and ultimately demanded a sample of the appellant’s breath. When the test was taken, there was no alcohol in his body.
[ 5 ] The appellant testified at trial and said that he was out with some friends. When they left to go home, his friend, Noor Mohammed, drove the vehicle. He drove in an erratic fashion. When the vehicle finally came to a halt, Mr. Mohammed and another person in the car told the appellant to switch places. The appellant apparently complied, moving into the driver’s seat.
[ 6 ] The evidence of the police officer was vigorously challenged on a number of points at trial, especially to the extent that it deviated from what could be observed from the on-board camera. The trial judge found the officer to be a credible witness. He took a different view of the appellant’s evidence, which he rejected. As Mr. Milligan fairly acknowledged during oral argument, there were plenty of reasons for the trial judge to disbelieve the appellant’s evidence. However, he submits (and the Crown agrees) that one of the reasons, revealed in the following passage, was impermissible:
In fairness, there are certain limitations on what the defence can lead as to the fact that they are not guilty unless they take the stand, but he did take the stand. In addition, there is nothing in the video that is showing any kind of protestation on his part. There is no suggestion on the video that when the officer makes him exit and handcuffs him, that he is in any manner protesting and saying “You got the wrong guy.” Nothing like that, no gestures. How passive can one be?
I say this because I have to go back to the old worn words that, most of the time, do not apply, which is this idea that evidence must have an “air of reality,” except in this case that old worn phrase does not apply. [emphasis added]
The trial judge then said that the story might have been more believable but for the failure of the appellant to call as witnesses others who were in the car that evening. But he quickly cautioned himself that he must not make any adverse inferences from this failure.
[ 7 ] As a general matter, the credibility findings of trial judges are entitled to great deference on appeal. This proposition is now so elemental that it does not require resort to case citations. But this does not equate with the proposition that credibility findings are impervious to review. They may be reviewed. Indeed, verdicts based on credibility findings may be set aside if they are infused with legal error.
[ 8 ] In this case, it is clear that the trial judge’s reliance on the appellant’s failure to protest his innocence at the scene was a factor along his path of reasoning to conviction. It is equally clearl that this line of reasoning is impermissible: see Regina v. Palmer , 2008 ONCA 797 , at para. 9 and Regina v. Rohde (2009), 2009 ONCA 463 , 246 C.C.C. (3d) 18 (Ont. C.A.), at p. 22. The critical issue on this appeal is whether this factor can be safely extracted from the equation without disrupting the trial judge’s ultimate conclusion.
[ 9 ] Based on the record before me, I am unable to tell how much reliance the learned trial judge placed on this impermissible factor. The nature, organization and structure of his Reasons, which are at times difficult to follow, do not allow for this type of an assessment. It was one of the very first features of the appellant’s evidence that the learned trial judge seized upon in rejecting the appellant’s evidence.
[ 10 ] Even if it were permissible to rely upon this aspect of the evidence, I am not convinced of the logic in the trial judge’s reasoning. Presumably, if the appellant had been persuaded to assume the front seat of the vehicle to shield the actual driver from liability for impaired driving or some other offence, it would make little sense for him to immediately declare that he was not the driver of the vehicle. It would undermine the entire plan.
[ 11 ] As noted above, there were plenty of reasons for rejecting appellant’s evidence. There was one that was impermissible. From my assessment of the learned trial judge’s reasons, I am not able to say that it was unimportant to his ultimate conclusion. On this record, I am unable to remove this seemingly important (and impermissible) link in the trial judge’s chain of reasoning and still conclude that the path to conviction was otherwise inevitable.
[ 12 ] The appellant also argued that the learned trial judge erred by applying differing standards of scrutiny to the Crown’s sole police witness and to the appellant: see Regina v. Cloutier (2011), 2011 ONCA 484 , 272 C.C.C. (3d) 291 (Ont. C.A.). Given my conclusion on the main ground of appeal, I need not decide this issue. However, I observe that many of the shortcomings of the officer’s evidence, especially when considered in light of the DVD recording from the on-board camera, were swiftly swept aside by the trial judge.
[ 13 ] The appeal is allowed. The conditional stay on the charge under s. 249.1 of the Criminal Code is lifted and a new trial is ordered on both counts.
TROTTER J.
Released: October 9, 2012
COURT FILE NO.: 161/11
DATE: 20121009
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
REDWANUL JAIGIRDAR
Appellant
REASONS FOR JUDGMENT
TROTTER J.
Released: October 9, 2012