SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: SCA 52/13
DATE: 20140331

RE: HER MAJESTY THE QUEEN, Respondent

• and –

AHMAD AZIZI, Appellant

BEFORE: TROTTER J.

COUNSEL: Stefania Fericean, for the Respondent
Mark Halfyard, for the Appellant

HEARD: February 28, 2014

ENDORSEMENT – summary conviction appeal

[1] After a trial before the Honourable Justice R. Otter of the Ontario Court of Justice, the appellant was found guilty of dangerous driving, contrary to s. 249 of the Criminal Code. Although the appellant initially advanced three grounds of appeal, two of them were abandoned. He now contends that he should receive a new trial because the learned trial judge misapplied the principles in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.).

[2] The facts are straightforward. The appellant was alleged to have driven his car in a dangerous manner on a portion of road in a townhouse complex. A number of mothers, along with their children, were in the vicinity when this occurred.

[3] Tamiya Anderson said that the appellant’s vehicle sped by, narrowly missing children that were playing. The vehicle made a U-turn and came back towards her. The vehicle then backed up towards her again, hitting her leg. A heated exchange ensued. Mr. Azizi flicked his cigarette at Ms. Anderson, who in turn slapped him in the face. Mr. Azizi then drove off. This version of events was confirmed in certain respects by two other witnesses on the scene, Karen Boreland and Ormain Morrison. However, there were also some contradictions on some of the details of the event.

[4] The appellant gave a statement to the police, in which he said that he had been visiting his girlfriend in the complex and was leaving slowly when a young child jumped into his path. He told the police that he was approached by a black female, who pounded on his hood and said she would kill him and his girlfriend. The appellant backed up and left.

[5] The appellant testified in a manner that was, in some ways, consistent with his statement. He said that he almost hit a young child who suddenly came off the sidewalk. He then heard screaming and saw a woman walking towards his car, threatening to kill him and his girlfriend. Significantly, he suggested that the woman was West Indian or East Indian, and described her in much more detail than in his statement to the police. The appellant denied that the woman who confronted him was Ms. Anderson. When asked about the scenario described by the three Crown witnesses, the appellant said: “Didn’t happen at all.” Finally, the appellant denied that he smoked in his car and flicked a cigarette at the woman.

[6] The appellant’s girlfriend testified about an incident that shortly preceded the appellant’s incident. She too said a child jumped in front of her car and that women started yelling at her. She said that she did not call the appellant to tell him about the incident that she was in. When asked about the appellant’s smoking habits (and whether he smokes in the car), she contradicted the appellant by testifying that he smokes all the time.

[7] The trial judge rightly observed that the case came down to a matter of credibility. Trial counsel for the appellant (who was not Mr. Halfyard) stressed various inconsistencies in the evidence of the Crown witnesses. In his Reasons for Judgment, the trial judge pointed to:

…..one major weakness….that is, the Defence version was not put to any Crown witness which makes it difficult to weigh the evidence against the other evidence and would constitute a violation of the rule in Browne v. Dunn. That doesn’t mean it’s excluded, but the weight to be attached to it is somewhat diminished.

More significantly, the Crown then wants to address the issue of credibility….. [emphasis added]

[8] The trial judge went on to assess the evidence of the witnesses and came to the conclusion that the defence evidence did not raise a reasonable doubt and that dangerous driving had been clearly established.

[9] Mr. Halfyard argues that the trial judge dealt with the Browne v. Dunn issue unfairly. He points to the fact that Crown did not raise the issue until the evidence was complete. By then it was too late for the appellant’s counsel to do anything about it. Moreover, he submits that it was unfair for the Crown to raise the issue in the circumstances because, by virtue of the appellant’s statement, it had always been aware of the appellant’s version of events.

[10] Ms. Fericean for the Crown contends that, based on the appellant’s statement to the police, the Crown would not have anticipated that he would have testified that Ms. Anderson was not involved in the incident. Moreover, she observed that, after the Crown raised the issue during submissions, defence counsel at trial made no submissions about the issue in reply. Instead, he urged reasonable doubt on the trial judge based on the inconsistencies in the evidence.

[11] Mr. Halfyard relies on the recent decision in R. v. Dexter, 2013 ONCA 744 in support of his submission that the trial judge erred in drawing an adverse inference in the circumstances. After undertaking a careful analysis of the Court’s previous case law, Weiler J.A. said the following at paras. 21-22:

There are at least two permissive options to rectify the breach. One is for the trial judge to take into account the failure to cross-examine when assessing a witness's credibility and deciding the weight to be given to that witness's evidence: see Werkman [2007 ABCA 130] at paras. 9-11; R. v. Paris (2000), 2000 17031 (ON CA), 138 O.A.C. 287, at para. 22. Another is to allow counsel to recall the witness whose evidence has been impeached without notice. As Moldaver J.A. explained in R. v. McNeill (2000), 2000 4897 (ON CA), 48 O.R. (3d) 212 (C.A.), at paras. 47-49, where the concern lies in the witness's inability to present his or her side of the story, if the witness is available and the trial judge is satisfied that recall is appropriate, the trial judge ought to offer the aggrieved party that opportunity. The mechanics of when and by whom the witness should be recalled should be left to the discretion of the trial judge. If the aggrieved party who is offered this option declines it, then the trier of fact would simply decide whether to believe all, part or none of the [later] witness's evidence regardless of whether the evidence was uncontradicted.

Deference is owed to a trial judge's exercise of discretion in deciding how to deal with a breach of the rule unless error in principle is shown: see R. v. Blom (2002), 2002 45026 (ON CA), 61 OR (3d) 51 (C.A.), at para. 20. [emphasis added]

[12] Weiler J.A. then considered the contention that it was unfair for the Crown to wait until closing submissions to make the argument that the rule has been breached. She endorsed previous statements of the Court (in R. v. M.B., 2009 ONCA 524 and R. v. Giroux (2006), 2006 10736 (ON CA), 210 O.A.C. 50) that it is “preferable” for the Crown to raise a Browne v. Dunn objection much earlier in the process, perhaps when the defence evidence is tendered. Weiler J.A. considered this line of authority in light of the Crown’s duty of fairness to the administration of justice, citing Boucher v. The Queen, 1954 3 (SCC), [1955] S.C.R. 16 and R. v. Cook, 1997 392 (SCC), [1997] 1 S.C.R. 1113 and R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751.

[13] In the end, the Court of Appeal did not find reversible error in that case. Weiler J.A. said the following at paras. 38 to 41:

Although I have expressed my concern respecting the Crown's exercise of discretion not to raise its objection until closing submissions, in the circumstances of this case, I cannot accept the appellant's argument that the trial judge was obliged to give the defence an opportunity to re-open its case for three reasons.

First, when defence counsel heard the Crown's submissions that the rule had been breached, he did not suggest to the trial judge that the witnesses be recalled and given an opportunity to explain. The appellant has not alleged that his trial counsel was incompetent. In the absence of such a request, the trial judge was not obliged to recall the witnesses on his own initiative:….

Second, as indicated, how a trial judge deals with a breach is dependent upon the circumstances of the case. Unlike McNeill, this was not a jury trial where an instruction was needed to overcome any prejudice to the appellant resulting from counsel's breach. A trial judge is presumed to know the law: see R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, at pp. 664-65. In addition, the trial judge heard the explanation of Rainford when confronted with the suggestion that someone other than the appellant was driving.

Third, the manner in which a trial judge chooses to deal with a breach of the rule involves an exercise of discretion that is entitled to considerable deference. The trial judge chose a permissible option open to him. The appellant has not shown any error in principle in his decision to do so.

[14] These reasons could equally apply to this case. In this judge alone trial, counsel had plenty of time to respond to the Crown’s submissions by requesting an opportunity to recall some or all of the Crown’s witnesses. He chose not to do so, relying instead on the various inconsistencies in their evidence. In the circumstances, the trial judge did not err in the manner in which he dealt with this evidence.

[15] Moreover, the trial judge did not place undue weight on this feature of the evidence. He said that the evidence of the appellant was “somewhat diminished” in the circumstances. It was one factor in his overall assessment of the evidence. The trial judge spent more time addressing the alleged inconsistencies and improbabilities in the evidence of the rest of the witnesses, including two other defence witnesses.

[16] For these reasons, the appeal is dismissed.

TROTTER J.

Date: March 31, 2014