ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA (A) 381/13
DATE: 20140415

B E T W E E N:

HER MAJESTY THE QUEEN

Mr. R. Rota, for the Crown

Respondent

• and -

AZAM GULAMOIDIN

Mr. A. Ross, for the appellant

Appellant

HEARD: April 4, 2014

REASONS FOR JUDGMENT

[On appeal from the judgment of The Honourable Justice Kerrigan Brownridge dated May 27, 2013]

Fragomeni J.

[1] The appellant appeals against the conviction and sentence of the Honourable Madam Justice J. Kerrigan Brownridge of the Ontario Court of Justice at Brampton, Ontario on May 27, 2013, on a charge of fail to remain at the scene of an accident contrary to s. 252(1) of the Criminal Code. The appellant was fined $2,000.

[2] The appellant sets out the following grounds in his notice of appeal:

1. That the learned trial Judge erred in law and in mixed fact and law in that she misapprehended the evidence at trial, and further erred in that she disregarded evidence heard at trial which were of assistance to the defence;

2. The learned trial judge erred in fact and law in that she found as a fact that the accused was the driver of the motor vehicle when the evidence did not support such a finding;

3. The learned trial judge erred in fact and law in that she ignored important aspects of the evidence which contradicted the arresting officer’s opinion of the events and which, had this evidence been adverted to, would have created a reasonable doubt as to the identity of the driver. Specifically, the learned trial judge failed to consider that the accused could not be picked out of a line up, that he denied any involvement, and that his wife, the registered owner was never questioned as to whether the vehicle was loaned or not. The Justice also failed to consider the evidence of the defendant admitted through a statement that he was home on the night of the incident while his wife was at work.

Summary of the Facts

[3] On July 12, 2011 at approximately midnight, Mr. Alden Gorosed (“Gorosed”) was driving a 1996 Honda Civic at the intersection of Confederation Parkway and City Centre Drive in Mississauga. Ms. Rosen Saludares was also in the vehicle.

[4] While waiting for the traffic light to change to green, Gorosed’s vehicle was hit from behind by a red van with plate number BDKR 311.

[5] The driver of the red van did not get out of the vehicle. Gorosed got out of his vehicle, looked at the red van and the driver was just sitting inside the van. He described the person in the red van as a male, with a beard, brown skin, late 30s to 40s.

[6] Gorosed stated that the driver of the red van stayed there for a moment and he was trying to talk to him, but all of a sudden, he reversed a little and made a U-turn and drove away.

[7] In cross-examination, Gorosed was asked how much time he believed went by from the time he got out of his car to when the van drove away and he said, “probably like five minutes, not even”. That was an estimate.

[8] Ms. Saludares did not describe the driver of the red van.

[9] Mr. Delroy Weller (“Weller”), a witness at the scene, testified that “some time last year” near midnight, he was stopped at a red light on Confederation Parkway and saw a Civic on his left, driven by a “Pilipino guy” when it was hit.

[10] Weller indicated that Gorosed’s vehicle was hit by a red Dodge mini van.

[11] Weller described the driver of the red Dodge mini van as a “heavier set guy, full beard…brown late thirties.”

[12] Weller said that he was able to write down the plate number of the red mini van as it drove away and he provided it to the 911 operator. Weller was not able to pick out the appellant from a photo line-up. In cross-examination about the photographs he saw, he stated that “all the people looked exactly the same.” He said. “[L]ike the differences are – you would never know that that many people look alike.”

[13] Cst. Slav Kosarev of the Peel Regional Police testified that he received a radio call that a red van, plate number BDKR 311, was involved in a hit and run.

[14] On August 24, 2011, as a result of a Ministry of Transportation search, Cst. Kosarev was led to the appellant. Cst. Kosarev had contacted the appellant and arranged a meeting.

[15] A voir dire was held with respect to the statement made by the appellant to Cst. Kosarev on August 24, 2011. The learned trial judge ruled that the August 24, 2011 statement was voluntary and it was admitted as part of the trial and introduced by the Crown. The officer gave the following evidence as it relates to that statement, at pp. 31-32 of the transcript:

Q. And what was the nature of your – first of all, why were you meeting with Mr. Gulamoiden? What was the purpose?

A. To talk to him in – regarding an investigation I was conducting of a fail to remain involving a red van.

Q. And at that point what did you say to Mr. Gulamoidin?

A. Right after I introduced myself I cautioned Mr. Gulamoidin.

Q. What did you say to him when you cautioned him?

A. I cautioned him that he doesn’t have to tell me anything, but he’s being investigated in a fail to remain – in a remain case and he doesn’t have to tell me anything but if he does tell me anything, it can be used in a court of law.

Q. Why did you caution him?

A. Because he has rights as a – he is under investigation and he has rights as a citizen.

Q. And did you say anything else to him?

A. I conducted an interview.

THE COURT: I’m sorry, you conducted…

A. Well I conducted – I spoke with him, just asked him questions.

THE COURT: Okay. That’s fine, thank you.

MR. SLATE: Q. And what did you ask him?

A. The first thing I asked is, “Who drives the van?”

Q. And do you know his response?

A. There was a response. He advised me that most of the time he does, but sometimes his wife does.

Q. And did you have further conversation?

A. Yup, I had further conversation. I asked him if he has been involved in an accident in the van, and he stated that he wasn’t. Further to that, I asked where he was on July the 12th, 2011, and he advised that he was at home. After that I asked if anyone borrows the van besides the wife, and he stated “no”. And then I asked again, “So only you and your wife drive the van?” and he said, “Yes”. And then I asked, “has your car been stolen recently?” and he said, “no”.

Q. At any point during – was that the extent of your conversation?

A. Yeah, that was pretty much it.

[16] This meeting and interview took place on August 24, 2011 in the parking lot of Country Style Coffee shop at Matheson Boulevard East and Tomken Road. The appellant had arrived at the meeting in a red van with the same licence plate indicated in the call, BDKR 311.

Position of the Appellant

[17] The appellant submits the following:

• Eye witness identification should be treated with caution and the trial judge failed to caution herself about the dangers of relying on eye witness evidence, particularly in the face of evidence to the contrary;

• The trial judge erred by concluding that the evidence of Gorosed and Weller was sufficient to identify the appellant as the driver of the red mini van that rear-ended Gorosed’s vehicle;

• The trial judge did not provide sufficient reasons why she rejected the appellant’s evidence and with respect to her evaluation of the identification evidence; and

• The trial judge failed to consider other reasonable conclusions that could be drawn from the evidence such as the appellant’s wife having lent the vehicle to someone that day. As this case is entirely circumstantial, the trial judge was required to rule out any other reasonable conclusion, and she did not deal with these other explanations in her reasons.

Position of the Crown

[18] The Crown advances the following arguments in support of its position:

• The trial judge made findings of fact which made it clear that even though the evidence was entirely circumstantial, there was enough evidence to support a conviction. The reasons for conviction are clear;

• The trial judge’s findings of fact and credibility should be afforded deference in the absence of a substantial error; and

• The trial judge’s reasons read as a whole, and in the context of the evidence and the arguments at trial, were sufficient and in accordance with the Sheppard standard.

[19] The Crown’s position is succinctly summarized, at para. 13 of the respondent’s factum as follows:

This was a straight forward trial. The trial, including submissions and judgment was completed in less than a day. The trial judge heard brief submissions from defence counsel before rendering her decision orally. The trial judge had to have found the witnesses credible and reliable. The facts as accepted, and as explained by the trial judge, make it clear that the trial judge accepted that the driver was the Appellant, Mr. Gulamoidin. The evidence did not raise a reasonable doubt for the trial judge. In the context of the complete evidentiary record, the reasons were sufficient. There is simply no basis for appellate intervention

Analysis and Conclusion

Sufficiency of Reasons

[20] In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 the court set out the following, at paras. 15-17, 34, 54-56:

15 This Court in Sheppard and subsequent cases has advocated a functional context-specific approach to the adequacy of reasons in a criminal case. The reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review.

16 It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 524).

17 These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a "watch me think" fashion. It is rather to show why the judge made that decision. The decision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard. But the description in Morrissey of the object of a trial judge's reasons is apt. Doherty J.A. in Morrissey, at p. 525, puts it this way: "In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision" (emphasis added). What is required is a logical connection between the "what" - the verdict - and the "why" - the basis for the verdict. The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.

34 In R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245 the issue was whether the trial judge's reasons had adequately detailed the path to the verdict. Binnie J., writing for the Court, held that while the reasons "fell well short of the ideal", they were not so impaired that the Crown's right of appeal was impaired (para. 27). He stated: "Reasons are sufficient if they are responsive to the case's live issues and the parties' key arguments. Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue" (para. 20).

54 An appellate court reviewing reasons for sufficiency should start from a stance of deference toward the trial judge's perceptions of the facts. As decided in H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, and stated in Gagnon (para. 20), "in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected". It is true that deficient reasons may cloak a palpable and overriding error, requiring appellate intervention. But the appellate court's point of departure should be a deferential stance based on the propositions that the trial judge is in the best position to determine matters of fact and is presumed to know the basic law.

55 The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue.

56 If the answers to these questions are affirmative, the reasons are not deficient, notwithstanding lack of detail and notwithstanding the fact that they are less than ideal. The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence. Nor should error of law be found because the trial judge has failed to reconcile every frailty in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out. For example if, in a case that turns on credibility, a trial judge explains that he or she has rejected the accused's evidence, but fails to state that he or she has a reasonable doubt, this does not constitute an error of law; in such a case the conviction itself raises an inference that the accused's evidence failed to raise a reasonable doubt. Finally, appellate courts must guard against simply sifting through the record and substituting their own analysis of the evidence for that of the trial judge because the reasons do not comply with their idea of ideal reasons. As was established in Harper v. The Queen, 1982 11 (SCC), [1982] 1 S.C.R. 2, at p. 14, "[a]n appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. ... Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede."

[21] In R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, the court noted at paras. 25-26:

25 Sheppard instructs appeal courts to adopt a functional approach to reviewing the sufficiency of reasons (para. 55). The inquiry should not be conducted in the abstract, but should be directed at whether the reasons respond to the case's live issues, having regard to the evidence as a whole and the submissions of counsel (R. v. D. (J.J.R.) (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 32). An appeal based on insufficient reasons will only be allowed where the trial judge's reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25.

26 At the trial level, reasons "justify and explain the result" (Sheppard, at para. 24). Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal. Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error (see R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 23). As this Court noted in R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, the accused is entitled to know "why the trial judge is left with no reasonable doubt":

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonably available. Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of an adult, an accused is entitled to know why the trial judge is left with no reasonable doubt. [paras. 20-21].

[22] In R. v. C.R., 2010 ONCA 176, 260 O.A.C, 52 Justice Cronk stated, at para. 31 that, “credibility is a question of fact. On factual matters, it is a reviewing court’s responsibility to afford due deference to the advantageous position of the trial judge who actually saw and heard the witness: R. v. Cresswell 2009 ONCA 95, at para. 14; R. v. J.H. (2005), 2005 253 (ON CA), 192 C.C.C, (3d) 480 (Ont. C.A.), at para. 46.

[23] As set out by Justice Doherty in R. v. J.J.R.D., (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 at p. 261, “The circumstances of the particular case will determine the adequacy of the reasons for judgment and the effect, if any, of the adequacy of reasons or the outcome of the appeal. Reasons for judgment must be examined in the context of the entire proceeding, especially the nature of the evidence heard and the arguments advanced.”

[24] With these legal principles in mind I wish to set out the reasons of the trial judge. The judgment was given orally. The appellant did not testify.

[25] The trial judge starts her analysis by stating that she found the evidence of Mr. Gorosed, Ms. Saludares, Mr. Weller and Officer Kosarev was presented in a clear and straightforward manner. She found it to be credible and reliable.

[26] The trial judge reviews the evidence of each of the witness and then states:

While the evidence - the court considers all of the evidence and finds that the evidence, while circumstantial, is enough to support the charge before the court being made out. The Crown, in the view of the court, has proven this case beyond a reasonable doubt on the evidence provided.

[27] In her submissions at trial, Crown counsel identified the sole issue at trial was the identity of the driver of the red mini van. The Crown pointed to the following evidence in support of a conviction:

• The plate number BDKR 311;

• The person was male, had a beard, was brown skinned and in his late thirties, forties;

• Weller described the driver as brown skinned, Indian, heavier set, full beard, male 38 to 39;

• The red van is registered to the wife of the accused;

• At the August 24, 2011 meeting with the officer, the appellant drove there in the red Dodge Caravan Plate No. BDKR 311; and

• The voluntary statement made was reviewed with the trial judge.

[28] At pp. 70-71, the following summary is put to the trial judge:

So Your Honour has with respect to the identity, you have the descriptions provided by the witnesses at the time; that it was a male driver who the Crown submits matches the description of Mr. Gulamoidin. That on August 24th Mr. Gulamoidin is operating that van, and the only people to operate that van, according to Mr. Gulamoidin, are him and his wife – clearly his wife is not a male – and that no one else borrows the van. The only people operating it are him and his wife. So it’s the Crown’s position there is certainly circumstantial evidence that Mr. Gulamoidin was operating the van on July 12th, 2011, and that he was the driver, and it’s the Crown’s position that the evidence is clear that there was a fail to remain at the scene of the accident, given the severity of the accident.

[29] In his submissions, trial counsel advanced the following arguments:

• No one talked to the appellant’s wife to see if she has ever loaned the vehicle out, “it’s not unheard of”;

• When the officer meets with the appellant on August 24, 2011, the red Dodge Caravan being driven by the appellant has no damages so it was either fixed or it was not the vehicle in the accident;

• At the August 24, 2011 interview with the officer, the appellant denied he had been in an accident in the van;

• The witnesses could not identify the appellant in court;

• One of the witnesses could not pick the appellant out of a photo line-up; and

• No one checked other variations of the plate number to make sure the correct plate number was called in.

[30] The jurisprudence is clear that where the evidence for the prosecution is entirely or substantially circumstantial, an accused should only be found guilty where the court is satisfied that the guilt of the accused is the only reasonable conclusion to be drawn from the whole of the evidence.

[31] The difficulty I have with the reasons of the learned trial judge is that after reviewing the trial evidence she makes a conclusory finding of guilt without an analysis of that evidence. The reasons do not deal with the arguments advanced by the defence. There is no discussion about the frailties of eye witness identification. There is no indication whether she considered the alternate explanations put forward by the defence. The trial judge does not explain why these alternate explanations should be rejected.

[32] Further, the trial judge does not explain why she rejected the statement made by the appellant to the officer on August 24, 2011, stating that he was not involved in an accident. There is also no indication in her reasons why it could not be possible that the plate number was not recorded accurately.

[33] The eye witness identification was very generic, especially in this part of the Province and the reasons do not explain why that generic identification was sufficient to anchor the Crown’s case.

[34] I find it difficult to assess the trial judge’s findings and conclusions within the context of the arguments advanced at trial by the appellant. I cannot find that the reasons are responsive to the appellant’s arguments made at trial. I am not satisfied that the trial judge set out her “path to the verdict” sufficiently to permit appellate review. As set out in R.E.M., at para. 57, “To conduct meaningful appellate review, the court must be able to discern the foundation of the conviction.”

[35] In all of these circumstances and for the reasons set out herein the appeal is allowed, the conviction is set aside, and the matter is remitted back to the Ontario Court of Justice before a differently constituted court for a new trial. This matter will be set to Courtroom 104 on April 22, 2014 at 9:00 a.m.

Fragomeni J.

Released: April 15, 2014