ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO. : SC 161/10
DATE : 2012-10-10

RE: Her Majesty The Queen v. Nigel Taylor

BEFORE: Mr. Justice Kenneth L. Campbell

COUNSEL:
Richard Nathanson , for the Crown, respondent
Monte MacGregor , for the accused, appellant

HEARD: October 9, 2012

ENDORSEMENT

[Summary Conviction Appeal]

A. Introduction

[ 1 ] The appellant, Nigel Taylor, was tried by the Honourable Mr. Justice H. Borenstein of the Ontario Court of Justice on charges of dangerous operation of a motor vehicle and three counts of failing to comply with a recognizance. The evidence and closing arguments were heard on November 4, 2010. On November 9, 2010, Bornenstein J. delivered lengthy Reasons for Judgment finding the appellant guilty of all charges.

[ 2 ] On December 1, 2010, after hearing the submissions of counsel, and taking into account the appellant’s plea of guilty in relation to a coincident provincial offence of driving while his license was under suspension, Borenstein J. sentenced the appellant to a total of four months imprisonment, a three year driving prohibition and a fine of $1,500.

[ 3 ] The appellant now appeals against his conviction in relation to the dangerous driving charge. There was no issue at trial that whoever was driving the accused’s vehicle on the night of the alleged offence (March 20, 2010) was driving the vehicle dangerously. The only issue at trial was identification – more specifically, whether the Crown could establish beyond a reasonable doubt that it was the appellant that was operating his vehicle at the time it was being driven dangerously.

[ 4 ] On appeal, the accused contends that the trial judge: (1) misapprehended crucial elements of the evidence in assessing the guilt of the accused; (2) erred in concluding that the identification evidence of the police officers could be supported by the evidence that the appellant owned the vehicle in question; and (3) improperly reversed the burden of proof.

B. Overview of the Facts

[ 5 ] On the evening of March 20, 2010, three uniformed Toronto Police Service officers were patrolling the Malvern area of Scarborough in an unmarked van. They came across a dark blue 1986 Toyota Supra with a large silver after-market spoiler. The vehicle was parked blocking the driveway and fire route of a townhouse complex on Windgarden Court. Investigating the license plates of the vehicle through the police computer system, the police learned that the vehicle was registered to the appellant. The police also learned that the appellant was required, by the conditions of a recognizance, to: (1) remain at his sister Judith Taylor’s residence at all times, unless in her company; and (2) refrain from being in the front seat of any motor vehicle. The police also learned that the appellant was subject to multiple driving prohibitions. The police officers parked their van and took up surveillance of the appellant’s car. While they waited, the officers reviewed the available police database photographs of the appellant, from 2002 and 2009, on the monitor in the police van.

[ 6 ] At approximately 9:05 p.m. a lone male walked over to the Toyota and entered the vehicle. Due to the lighting conditions and their proximity to the Toyota, the police officers could not identify this individual. However, as the Toyota drove away, the police followed the vehicle.

[ 7 ] Shortly thereafter, the Toyota pulled to a stop in a left-turn lane approximately a car length behind the car in front. The police pulled up on the passenger side of the Toyota and came to a stop right beside it. The passenger-side window of the Toyota was down, as was the driver-side window of the police van.

[ 8 ] Constable Lembke, the driver of the police van, honked the horn of the van to get the attention of the driver of the Toyota, who appeared to be listening to loud music in the Toyota. Constable Thayalan, who was in the passenger seat of the van, leaned across and flashed a “Stop – Police” red light inside the Toyota. Both Constables Lembke and Thayalan testified that the driver of the Toyota was the appellant as they recognized him from the photographs they had just studied. The third police officer, Constable Kane, who was seated in the back seat of the van, did not have an opportunity to see the driver. At that point, the Toyota quickly accelerated, veered to the right in front of the police van, and sped away at a very high rate of speed.

[ 9 ] Constable Lembke testified that he was able to see clearly into the interior of the Toyota, and had a “clear look” at the driver, who he identified as the appellant. He described the appellant as having a “deer in the headlights” look on his face, and as appearing “very alarmed” to see the police next to him. Then, all of a sudden, the appellant “gunned the engine” of the Toyota. Similarly, Constable Thayalan testified that, as soon as the appellant realized it was the police in the van next to him, his facial expression changed from a “questionable” look of “what’s going on here,” to a “concerned” look of “Oh crap.” Within a second, the appellant turned forward and “floored” the gas pedal on the Toyota.

[ 10 ] The police tried briefly to pursue the fleeing Toyota, but due to its great rate of speed, the unmarked nature of the police van, and its inability to match the Toyota in speed, the police quickly lost sight of the Toyota and abandoned the pursuit. The police officers did, however, observe the Toyota speeding down the road, weaving in and out of traffic, and going through red lights.

[ 11 ] When the police lost sight of the Toyota at approximately 9:10 p.m., they attended at the registered address of the owner of the Toyota, which was nearby. As mentioned, this was the appellant’s registered address as the owner of the Toyota.

[ 12 ] At 9:14 p.m. the police arrived at the appellant’s address and immediately located the same Toyota parked in front of the residence. The hood of the vehicle and the tailpipe section of the vehicle were still warm. Clearly, the engine had just been running. There was also a “brake fade” smell, which happens when a vehicle is driven at a high rate of speed and the brakes are then applied “really hard.” The doors of the vehicle were closed but unlocked. The ignition did not appear to have been tampered with or “punched” out.

[ 13 ] When the police went to the residence, the appellant’s mother answered the door and advised them that her son, the appellant, was not home. The police were consensually permitted to search the residence and they confirmed that the appellant was not at home.

[ 14 ] When the appellant’s mother provided the police with the appellant’s phone number, the police sought to contact him. They were able to speak with the appellant briefly, but the call quickly and unexpectedly ended.

[ 15 ] Once the officers exited the residence the appellant’s brother, Michael Smith, arrived on the scene. He asked if he could get his wallet out of the vehicle.

[ 16 ] The appellant’s sister, Judith Taylor, arrived on the scene at approximately 10:30 p.m. She lived with her husband and their children in Ajax, approximately 20 minutes away. As mentioned, at the time, pursuant to the terms of a recognizance, the accused was required to live with Ms. Taylor in Ajax.

[ 17 ] The police officers sought to contact the appellant again by telephone. During this conversation, the appellant denied that he had been driving his car that night. He explained that he had left his car with a mechanic named “Ray.” Both Constables Lembke and Thayalan thought that the appellant was drunk based upon this telephone conversation with him.

[ 18 ] When the police threatened to impound his vehicle, the appellant agreed that he would contact his sister and arrange his surrender later that night. At 12:30 a.m. the appellant attended at the 42 Division detachment and surrendered himself. After seeing the appellant at the police station, Constables Lembke and Thayalan both confirmed that the appellant was the individual operating the Toyota earlier that evening. Constable Thayalan testified that, looking at his hair style and facial features, there was “no doubt” in his mind that the appellant was the person who had been driving the Toyota earlier that night. Constable Lembke testified that the appellant was the “same person” seen earlier in the evening driving the Toyota. While the appellant denied driving his car that night, he was unable to provide any further details about the mechanic “Ray.”

[ 19 ] At trial, the defence called two witnesses, namely, Michael Smith and Judith Taylor, both siblings of the appellant. Mr. Smith testified, essentially, that he had taken control of the Toyota earlier in the day when it was delivered to his mother’s residence by a tow truck. He got the key to the vehicle from the tow truck driver. Mr. Smith testified that, at one point he sat in the car “chilling” with some of his friends and listening to music, but at no time did he ever drive the vehicle that day. Mr. Smith testified that he left the keys in the Toyota when he was finished sitting in it.

[ 20 ] Ms. Taylor testified that on the evening of March 20, 2010 she went out to dinner with her husband. When they left their Ajax residence at 8:00 p.m. her son, Andre, and the appellant were still inside the residence. Later, while she was at dinner, she received a call from her mother about the police being at her home looking for the appellant. Ms. Taylor testified that she then went to her mother’s home, where she spoke to the police and learned about their investigation. She testified that she then called home and spoke to both her son and the appellant. They said they were playing video games. Later she went home and drove the appellant to the police station.

C. Analysis of the Issues

1. Did the Trial Judge Misapprehend the Evidence?

[ 21 ] The appellant contends that the trial judge misapprehended or disregarded significant elements of the evidence. More particularly, the appellant contends that the trial judge ignored the testimony of Judith Taylor that, when she called home at about 10:30 p.m. that night, she spoke to both her son and the appellant, and learned that they were playing video games. While the trial judge mentioned that Ms. Taylor had spoken to her son, and observed that what he had told Ms. Taylor was “hearsay,” the trial judge did not mention her conversation with the appellant.

[ 22 ] While the trial judge did not, in fact, expressly mention this aspect of the testimony of Ms. Taylor, it was not legally necessary for him to do so. It is not an error for a trial judge to fail to mention a particular piece of evidence when his or her Reasons for Judgment otherwise adequately explain to an accused, in a functional way, the reasons for conviction, and permit meaningful appellate review of the decision. See: R. v. Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869, at para. 24-25 , 55; R. v. M.(R.E.) , 2008 SCC 51 , [2008] 3 S.C.R. 3, at para. 11-35 ; R. v. Drabinsky (2011), 2011 ONCA 582 , 107 O.R. (3d) 595 (C.A.) at para. 48-54 ; Leave denied : [2011] S.C.C.A. No. 491; R. v. Hollyoake , 2012 ONSC 5240 , at para. 16-18 .

[ 23 ] It is readily apparent from the detailed Reasons for Judgment provided by Borenstein J. that he wholly rejected the testimony of Ms. Taylor. Having rejected this evidence in its entirety, there was no need for the trial judge to further consider each individual aspect or nuance of her testimony.

[ 24 ] As already mentioned, Ms. Taylor knew that the police were looking for the appellant in connection with the dangerous driving of the appellant’s vehicle earlier in the evening. She heard this from her mother and she was also informed of this when she spoke to the police on her arrival at her mother’s residence. According to her evidence, she knew that when she left home for dinner that night at 8:00 p.m., the appellant was at her residence. She then confirmed by telephone, at 10:30 p.m., that the appellant was at her residence. Nevertheless, at no point in the evening did Ms. Taylor tell the police that the appellant had been at her home in Ajax that night. The trial judge concluded that this spoke “volumes” about the credibility of her evidence. It is indeed difficult to understand how Ms. Taylor could have failed to tell the police of her brother’s apparent innocence if she was being truthful in her testimony. In the result, Borenstein J. stated: “I completely reject her evidence.” I see no error of logic or law in the manner in which the trial judge reached this conclusion. Moreover, this express, wholesale rejection of the evidence of Ms. Taylor explains exactly how the trial judge viewed her testimony. In my view, the trial judge did not need to go further in his examination of her evidence.

[ 25 ] The trial judge also noted that, quite apart from his “credibility concerns” surrounding Ms. Taylor, her evidence did not, in fact, provide the appellant with an alibi in any event, as it would have been entirely possible for the appellant to have been at her residence at both 8:00 p.m. and 10:30 p.m., and yet still been driving his vehicle as observed by the police officers between 9:05 and 9:14 p.m. earlier in the evening. After all, it was only approximately a 15-20 minute drive from the Taylor residence in Ajax to the appellant’s mother’s home in Scarborough. This conclusion by the trial judge was also a reasonable one.

[ 26 ] The appellant also argues that the trial judge erroneously disregarded the testimony of Ms. Taylor that normally the appellant’s car was left parked at their mother’s house, there was no room to park the Toyota at her residence, and there was no other available “ride” at her residence. According to the appellant, this evidence supported the defence theory that the appellant could not have been the driver of the vehicle. I disagree. This evidence, taken at its highest, provided slight, if any, evidentiary support for the defence theory and, accordingly, the trial judge was not obliged to expressly mention this evidence in his Reasons for Judgment . Further, as I have already mentioned, the trial judge wholly rejected the testimony of Ms. Taylor in any event.

[ 27 ] In my opinion, Borenstein J. did not misapprehend or disregard any truly significant aspect of the relevant evidence, and reasonably concluded that the testimony of Ms. Taylor should be rejected outright.

2. Did the Trial Judge Err in Concluding that Other Circumstantial Evidence Supported the Police Identification Evidence of the Appellant?

[ 28 ] The appellant argues that the trial judge erred in concluding that the police identification of the appellant as the driver of the vehicle evidence was supported by the other circumstantial evidence in the case, namely: (1) that the vehicle belonged to the appellant; and (2) that the vehicle was found immediately after the episode of dangerous driving parked in front of the appellant’s mother’s residence. Further, the appellant contends that the trial judge erred in failing to recognize that the police officer’s examination of the photographs of the appellant before viewing the driver of the Toyota weakened and tainted their subsequent identification evidence. Instead, the trial judge concluded that this “strengthened” their identification evidence.

[ 29 ] In my opinion, the trial judge committed no error in his assessment of the identification evidence, nor did he commit any error in his assessment of the circumstantial evidence that supported this identification evidence.

[ 30 ] While two of the police officers testified that they were able to identify the appellant as the driver of the vehicle, the trial judge was correct to approach their identification with care. Borenstein J. cautiously noted that such opinion evidence was “notoriously unreliable” and that honest but mistaken eye witness identification evidence is “responsible for many wrongful convictions.” It was, accordingly, “essential” to examine any “corroborating or contradictory evidence” that might either “support or cast doubt” on the identification evidence.

[ 31 ] After reviewing the defence evidence, Borenstein J. reviewed the evidence called by the Crown. The trial judge carefully examined the identification evidence provided by Constables Lembke and Thayalan. He noted that these officers were able to identify the accused after having just seen his photographs, and were able to confirm their identification of the appellant as the driver when they saw him again in person when he surrendered at the police station. The trial judge was cautious in his assessment of this evidence, and gave it the weight it objectively deserved. More particularly, in my view the trial judge was correct to conclude that having just reviewed photographs of the appellant strengthened their subsequent identification of him in the Toyota and thereafter. Moreover, as a practical matter there was no other way for the police to conduct their investigation. Having come upon the appellant’s vehicle parked as it was, and discovering that the appellant was prohibited from driving any vehicle by a variety of court orders, the police needed to know what the appellant looked like so that, if and when the driver of the Toyota returned, they would be able to determine whether the appellant was abiding by these court orders. There was really no other way for the police to practically proceed with their investigation at that point. In any event, Borenstein J. concluded that, if this were the only evidence of identification, he would have acquitted the appellant as he would have had a reasonable doubt.

[ 32 ] The trial judge noted, however, that there was other “corroborative evidence.” In this regard, the trial judge expressly mentioned the evidence that the Toyota, in fact, belonged to the appellant, and that it had been driven just “minutes” before it was parked in front of the appellant’s mother’s home. The trial judge concluded that, when all of the evidence was taken together, he was satisfied beyond a reasonable doubt that the appellant was the individual guilty of the dangerous driving offence.

[ 33 ] In his determination of whether or not the Crown had established the guilt of the appellant beyond a reasonable doubt, the trial judge was duty-bound to consider all of the evidence. Indeed, it would have been wrong for him to have considered the police identification evidence in isolation, and without viewing that evidence in the context of the rest of the evidence in the case. See: R. v. Morin , 1988 SCC , [1988] 2 S.C.R. 345; R. v. Bouvier (1984), 1984 ON CA , 11 C.C.C. (3d) 257 (Ont.C.A.); Affirmed : 1985 SCC , [1985] 2 S.C.R. 485.

[ 34 ] In my view the trial judge was entitled to proceed exactly as he did, and he committed no error in concluding that the police identification evidence was strongly supported by the other circumstantial evidence that the vehicle belonged to the accused, and was returned to the appellant’s mother’s home immediately after the incident of dangerous driving. See: R. v. R.(W.A.) , [2001] B.C.J. No. 2495 (C.A.) .

3. Did the Trial Judge Err in Reversing the Burden of Proof?

[ 35 ] The appellant contends that the trial judge erred in his application of the “reasonable doubt” standard and by, in effect, reversing the burden of proof. In advancing this argument, the appellant relies upon the fact that, twice during the course of his Reasons for Judgment , the trial judge mentioned the fact that there was “no evidence” that “anyone else” was operating the appellant’s car that evening. The appellant contends that, by these comments, the trial judge placed the onus on the appellant to prove that he was not the driver of the vehicle. I disagree.

[ 36 ] The trial judge clearly understood that the burden of proof was upon the Crown to demonstrate the guilt of the appellant beyond a reasonable doubt. His understanding and application of this fundamental principle of the criminal law is evident throughout his Reasons for Judgment .

[ 37 ] Near the outset of his Reasons for Judgment , Borenstein J. expressly stated that the “only issue” in the case was “whether the Crown has proved beyond a reasonable doubt that Mr. Taylor was the driver” of the vehicle on the night in question. After accurately reviewing the important evidence in this case the trial judge reiterated that, by the end of this trial, the “only issue left was identification” and the question was: “Has the Crown proved beyond a reasonable doubt that it was Mr. Taylor driving that day?” Borenstein J. immediately noted that “The onus is on the Crown. Mr. Taylor does not have to prove anything .” [emphasis added]. After conducting his analysis of the defence witness, the trial judge indicated that he rejected the relevant defence evidence and was “not left in any reasonable doubt” by that evidence. Finally, in reaching his verdict, that the appellant is guilty of all charges, the trial judge again clearly referred to the onus on the Crown of having to prove his guilt “beyond a reasonable doubt.”

[ 38 ] In my view, in observing that there was “no evidence” that “anyone else” was operating the appellant’s car that evening, the trial judge was simply making an entirely accurate comment about the state of the evidence that was before him. He was entitled to make that accurate observation and, in my view, he did not reverse the burden of proof in so doing. See: R. v. Robert (2000), 143 C.C.C. (3d) 330 (Ont.C.A.).

D. Conclusion

[ 39 ] In the result, the appeal by the appellant must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

RELEASED: October 10, 2012