ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR123000005600AP
DATE: 20131213
BETWEEN:
HER MAJESTY THE QUEEN
– and –
PRAGASH SOMASUNDARAM
Appellant
Kim Walker, for the Crown
Michael Dineen, for the Appellant
HEARD: October 23, 2013
b.p. o’marra j.
judgment
[1] The Appellant was convicted of Dangerous Operation of a motor vehicle by Justice Nakatsuru of the Ontario Court of Justice on February 29, 2012. He appeals his conviction based on the following:
The trial judge materially misapprehended the evidence.
The trial judge erred in his analysis of the Appellant’s evidence.
the evidence
[2] Two groups of young men confronted each other in the parking lot of a bar after closing time. The group that included the Appellant entered his van. He proceeded to drive up and down the parking lot. Crucial evidence of his manner of driving was provided by two plain clothes police officers who were in the area as well as two pay duty officers in uniform.
[3] The plain clothes officers observed the Appellant’s van accelerate towards the second group of young men in the parking lot. The two uniform officers were also in the parking lot on foot.
[4] The two uniform officers saw seven or eight male civilians in the parking lot scatter to avoid being hit by the van. The vehicle then accelerated towards those officers. The van continued at high speed towards them as they shouted for the vehicle to stop. The two officers jumped aside to avoid being struck.
[5] The two plain clothes officers observed the van accelerating towards the civilians and the two uniform officers. The plain clothes officers then drove their vehicle to block the exit of the Appellant’s van from the parking lot.
[6] The front passenger in the Appellant’s van testified that he observed a uniform officer ahead of them with his hand up and saying “stop”. The passenger says he told the Appellant to stop and he did so.
[7] The evidence of the Appellant included the following:
• after the initial confrontation in the parking lot he and his passenger were swarmed by ten men who pulled them out of the van and beat them
• both he and his passenger suffered injuries
• he was then driving his van to flee the attackers and seek medical help for his passenger
• he did not see the uniformed officers
• the unmarked police car blocked the exit from the parking lot so he stopped his vehicle
[8] The Appellant was ordered out of his vehicle at gunpoint and arrested. He was ultimately charged with seven offences including Dangerous Operation of a motor vehicle.
trial judgment
[9] The trial judge made certain findings of fact that were crucial to the conviction:
He concluded that the pedestrians who scattered out of the vehicle’s path were no threat to the Appellant.
He did not accept the passenger’s evidence that the Appellant stopped immediately when he was told that the police were straight ahead.
He did not accept the evidence of the Appellant on certain critical issues.
misapprehension of evidence
[10] The standard applied where an appellant advances misapprehension of evidence as a ground of appeal is stringent. The misapprehension of evidence must be material, not merely peripheral to the reasoning of the trial judge. In other words, the reasons must play an essential part in the reasoning process resulting in a conviction, not just in the narrative of the judgment.
R. v. Mahmood 2011 ONCA 693 at para. 48.
R. v. Morrissey 1995 3498 (O.C.A.).
[11] Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown’s case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction.
R. v. Biniaris 2000 SCC 15 at para. 24.
[12] The Appellant claims that the pedestrians in his way had earlier attacked him and his passenger. On appeal he submits the trial judge misapprehended the evidence in finding that the pedestrians who had to move out of the way posed no threat to him.
[13] The two uniformed officers observed the van accelerating toward seven or eight pedestrians who had to scatter.
[14] The trial judge did not accept the Appellant’s evidence that all of those pedestrians had earlier attacked him and his passenger and thus were a continuing threat. The Court found it would expect others to be in the parking lot at that time.
[15] The fact that two uniformed officers also had to scatter as the van accelerated showed the danger of the situation.
[16] Even if the pedestrians included some of the earlier attackers it was open to the trial judge to find they did not pose a threat to the Appellant as he drove at them. The Court found he appreciated the risk he posed and did nothing to avoid the danger.
[17] The passenger testified that he told the Appellant to stop when he saw the uniformed officers in their path. The officers were gesturing and telling them to stop. The passenger claims the Appellant did stop.
[18] The trial judge was entitled to accept any, all or none of what a particular witness said. He accepted that the passenger told the Appellant to stop. He did not accept that the Appellant stopped immediately. The uniformed officers both testified that the vehicle did not stop immediately and that they had to dive out of the way.
assessment of the appellants credibility
[19] Where the accused testifies, or there is evidence of exculpatory out of Court utterances of the accused the principles in R. v. W.D. apply. The trial judge specifically referred to this in his Judgment.
R. v. W.D. 1991 93 (SCC), [1991] 1 S.C.R. 742 at paras. 27 and 28.
Transcript of February 29, 2012 at p. 50.
[20] In a trial which turns almost exclusively on an assessment of the credibility of the witnesses, the trial judge enjoys a significant advantage. He has the benefit of not only hearing what was said but also how it was said. In making the assessment of credibility, the trial judge has heard all of the evidence as well as the submissions of counsel. An appellate court simply has a transcript and is guided to a selective review of the trial record on which argument is made. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of a witness and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment.
R. v. Cloutier 2011 ONCA 484 at para. 86.
[21] The question whether a verdict is reasonable is one of law. Whether a witness is credible is a question of fact. A court of appeal that reviews the trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they cannot be supported on any reasonable view of the evidence.
R. v. R.P. 2012 SCC 22, 2012 S.C.C. 22 at para. 10.
[22] The trial judge was entitled to consider the Appellant’s criminal record solely on the issue of credibility The prior convictions were as follows:
January 8, 2001
Uttering threats
November 14, 2001
Carry Concealed Weapon and Possession of a Weapon while prohibited
August 20, 2002
Assault Causing Bodily Harm
February 21, 2003
Possession of a Narcotic
January 14, 2005
Assault Causing Bodily Harm
[23] While prior convictions for crimes of dishonesty may be more relevant to credibility the Court is not limited to such where the accused testifies.
R. v. Saroya [1994] No. 2920 (O.C.A., 1994) at paras. 3-13.
[24] There is no indication that the trial judge improperly considered the criminal record for propensity or character purposes.
[25] The trial judge found the Appellant unresponsive and evasive on two important factual issues:
(a) In regard to the presence of the police officers on the road; and
(b) in regard to seeing the group of men on the road near the exit.
[26] The assessment of the Appellant’s evidence by the trial judge was based on factors and findings reasonably open on the evidence.
result
[27] Appeal dismissed.
B.P. O’Marra J.
Released: December 13, 2013
COURT FILE NO.: CR123000005600AP
DATE: 20131213
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
PRAGASH SOMASUNDARAM
Appellant
JUDGMENT
B.P. O’Marra J.
Released: December 13, 2013