ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 799
Date: 2014/08/08

B E T W E E N:

Her Majesty The Queen

Peter Rollings, for the Crown

Respondent

• and -

Taylor Fifield

Robert Sheppard, for the Appellant

Appellant

HEARD: March 11, 2014

Summary Conviction Appeal from the decision of Leroy J. dated February 13, 2013

LEITCH J.

[1] The appellant appeals against his conviction for dangerous operation of a motor vehicle, uttering threats and assault by Leroy J. on February 13, 2013.

[2] He raises two grounds of appeal. The first is that the evidence falls short of establishing that he had physical control over a taxi in which he was a front seat passenger. The second ground of appeal is that that the trial judge misapprehended the evidence with the result that her finds of credibility are called into question.

The Evidence at Trial

[3] The incident leading to the charges against the appellant arose from events occurring during the early morning hours of September 18, 2011. The appellant and two other young men hailed a taxi on Richmond Street. Mr. Cetikaya, a cab driver with fifteen years of experience, responded and they entered his vehicle. The appellant sat in the front passenger seat beside Mr. Cetikaya and the two other men sat in the rear seats.

[4] As Mr. Sheppard put it, Mr. Li, one of the men in the rear, became unruly. Mr. Cetikaya testified that Mr. Li damaged his vehicle and the other passengers “encouraged” Mr. Li’s unruly behavior. As Mr. Cetikaya put it, the appellant was “running the show”. [line 16, p. 54] Mr. Cetikaya testified that the appellant kicked the doors of his car. His passengers wanted to leave the car but Mr. Cetikaya said they were going to pay for the damage and he wanted to take them to the police station.

[5] Unfortunately, the in-car video is not available to illustrate what occurred.

[6] In any event, because of the conduct of his passengers Mr. Cetikaya called his dispatcher for help and decided to reverse direction and to travel west on Oxford Street back towards Richmond Street where he was confident polices officers would be nearby.

[7] Mr. Cetikaya testified at trial that at one point, Mr. Li grabbed Mr. Cetikaya around the head and shoulders.

[8] Mr. Cetikaya also testified that the appellant threatened him and said he was going to kill him and he was going to punch him if he did not stop the car. Mr. Cetikaya testified with respect to the appellant that: “with the left hand he was holding the steering, and with the right hand he was holding his punch high”. [line 9-13, p. 14] Mr. Cetikaya went on to indicate that the appellant was turning the steering wheel. He further explained that “he was turning it up and down” [line 4, p. 16] and his car travelling in the westbound lane veered into the eastbound lane and almost hit another taxi. [line 16-19, p. 16]

[9] Mr. Cetikaya further testified that he was “scared” and thought he was “going to get into an accident any minute, because my car was controlled not by me, it was controlled by him and the Chinese guy [Mr. Li] was shifting the gear”. [line 23-26, p. 14] He later testified again that he was trying to control his cab with his left hand. [line 29-32, p. 16]

[10] On cross-examination, Mr. Cetikaya testified that the appellant moved the steering wheel up and down with his left hand while his car was travelling west on Oxford Street “just past Colborne Street” into the intersection of Richmond and Oxford Street, around the corner southbound on Richmond up to Mill Street where he observed a police cruiser . [line 9-30. P. 31]

[11] When the cab slowed down almost to a stop, the appellant tried to get out of the vehicle but Mr. Cetikaya held him down. [line 1-2, p. 20; line 30-32, p. 35]

[12] Although the appellant told Mr. Cetikaya to stop the vehicle he did not do so because they had damaged his car, they wanted to run away and he wanted to get to the police. [line 31-2, p. 18] As he put it on cross-examination: “if I stop I didn’t know what’s going to happen. They going to punch me out, beat me up, run away, after all this damage?” [line 11-13, p.51]

[13] Officer Ryan and Officer Troy were the two police officers that saw the cab “slam its brakes on” [line 3, p. 62] and they approached the vehicle by which time the driver, the front seat passenger and the rear passenger behind the driver were outside the vehicle. [line 9-12, p. 62; line 19-22, p. 81].

[14] The appellant testified that he got nervous when Mr. Cetikaya drove back downtown really fast. He described Mr. Cetikaya slamming on his brakes at the yellow light at the intersection from Richmond and Oxford Street, almost hitting a cab in front of them, going through a yellow light which turned red and “that kind of crossed the line for me and that’s when I got a little bit upset and I grabbed him [Mr. Cetikaya] on his shoulder and told him that if he didn’t pull over that I was going to do something but I never did anything, but I was pretty nervous, so.” [line 19-25, p. 9] The appellant went on to explain that he grabbed Mr. Cetikaya because he did not want him to hit anybody; he was scared Mr. Cetikaya was going to hit another car. [line 27-29, p. 9]

[15] The appellant testified that he “felt kind of like trapped in his cab” [line 9, p. 10] and when the cab slowed down to about five kilometers an hour he “jumped out of the cab while it was moving” and he “rolled on the ground”, and then got up and just went across to the other side of he street. [line 18-21, p. 10]

[16] The appellant asserted that he had “absolutely not” had control of the cab and at all times the cab driver had it under his control. [line 21-24, p. 12]. He absolutely denied Mr. Cetikaya ‘s versions of events when it was put to him on cross-examination. [line 12-15, p. 46]

[17] The appellant also testified that he did not recall exactly what he said to Mr. Cetikaya during the course of the events, but because he was scared he probably said “I am going to punch you in the face or … just things that you would say when you’re kind of nervous and in that kind of mindset where you just want to escape”. [line 32, p. 13; line 1 – 7, p. 14]

The Reasons of the Trial Judge

[18] The trial judge began by assessing the evidence of the appellant utilizing the R. v. W.D. template and she rejected his evidence and found that it did not raise a reasonable doubt for a number of reasons she outlined.

[19] She accepted the evidence of Mr. Cetikaya and found that the appellant’s “attempts to control and maneuver the vehicle in the circumstances” were a marked departure and she found him guilty of dangerous driving. The appellant was also found guilty on the two other counts - a threatening charge and an assault charge.

The Grounds of Appeal

[20] Mr. Sheppard on behalf of the appellant emphasizes that at the most here, the appellant interfered with Mr. Cetikaya’s driving. He notes that “operate” is defined in s. 214 in respect of a motor vehicle as driving the vehicle.

[21] He asserts that the evidence falls short of establishing that the appellant was driving (that is that he had physical control over the vehicle) and at most, he was a contributor along with Mr. Cetikaya in the operation of the vehicle. Therefore, a reasonable argument could be made that he had committed the offence of interfering with Mr. Cetikaya’s lawful use or operation of his property contrary to s. 430(1)(c) of the Criminal Code but he had not dangerously operated the motor vehicle.

[22] The appellant distinguishes these circumstances from those before the Supreme Court of Canada in R. v. Belanger (1970), 2 C.C. 206. In the Belanger circumstances, a passenger wholly took over the steering of the vehicle causing a fatal collision and was found guilty of dangerous driving.

[23] The appellant also submits that his evidence that he was going to punch Mr. Cetikaya in the face in the circumstances he uttered that statement does not support a conviction on the threat charge and if his evidence that he touched Mr. Cetikaya’s shoulder to deter him from driving dangerously, that action was justified and does not constitute an assault.

[24] In relation to the second ground of appeal the appellant submits that the trial judge misapprehended the evidence with the result that her finds of credibility are called into question and he asserts that her reasons for rejecting the evidence of the appellant are not supported by the evidence at the trial.

Analysis and Disposition

[25] I will first deal with the appellant’s second ground of appeal. The appellant references the factors the trial judge considered in assessing the appellant’s evidence and impugns certain of her comments that he outlined in 5 categories. The overall position of the appellant is that these five errors render the trial judge’s verdict unreasonable and the trial judge’s findings on credibility did not have a firm evidentiary foundation.

[26] Firstly, the trial judge commented that she found the appellant’s evidence not internally consistent noting that “he testified that he was acting in self defence but in cross examination admitted that he acted out of anger”. The appellant submits that he didn’t admit to being angry. While he became angry, anger was not his motivation when he put his hand on Mr. Cetikaya’s shoulder when Mr. Cetikaya’s driving frightened him and regardless of whether he was angry his assertion of self-defence was in relation to self-preservation.

[27] I am satisfied the trial judge did not misapprehend the evidence and she did not err in finding an internal inconsistency in the appellant’s evidence. She outlined that in chief the appellant testified that he grabbed Mr. Cetikaya by the shoulder and might have said to Mr. Cetikaya that he was going to punch him in the face because he was “nervous and wanting to escape”. However, she also accurately noted that in cross examination the appellant indicated that when Mr. Cetikaya turned onto Richmond Street and almost hit another cab he became angry: “I was not angry until he drove and put us in danger by almost hitting another car. I was just uncomfortable in the car” [line 13-20, p. 45]

[28] Secondly, while the trial judge commented that the appellant’s evidence that Mr. Cetikaya drove in a dangerous manner endangering his own life defied common sense, the appellant submits that it would be equally implausible that the appellant would risk his own life by doing what Mr. Cetikaya contended he did. Again I am satisfied the trial judge did not err in concluding that there was simply no reason for Mr. Cetikaya to drive in a dangerous manner that night. She noted that he had called dispatch, help was on the way and he was heading downtown for police help that was not far away.

[29] Thirdly, the trial judge commented that the appellant’s evidence that he acted to avoid danger also defied common sense because “he chose to grab hold and move the steering wheel grab the shoulder of the driver and threaten to harm the driver”. The appellant correctly notes that he testified that he put his hand on Mr. Cetikaya’s shoulder but did not grab the steering wheel and move it. However, the trial judge’s finding remains reasonable - it defies common sense to explain or justify what the appellant says he did by suggesting that such action was required to stop a vehicle being driven dangerously.

[30] Fourthly, the trial judge also commented that the appellant’s evidence of what he said to Mr. Cetikaya that he would do if he did not stop the vehicle “was not put to Mr. Cetikaya which undermines [the appellant’s] credibility” and she gave “little weight to [the appellant’s] evidence on that point”. She went on to say that she “had the distinct impression he was reaching for some plausible innocent explanation as he was being cross-examined, but failed”. The appellant submits that this should not have had any impact on the appellant’s overall credibility. However, I agree with the crown’s position that the failure to cross-examine Mr. Cetikaya can be considered when weighing the evidence of the appellant and I find the trial judge did not err in doing so (see R. v. Paris, (2000), 2000 17031 (ON CA), O.J. 4687 (C.A)).

[31] Fifthly, the trial judge also commented that the appellant’s version of events at the end of the ride was inconsistent with Mr. Cetikaya’s evidence and the evidence of Officer Ryan. However, the appellant correctly notes that Mr. Cetikaya’s evidence that he held the appellant was inconsistent with the evidence of both officers and neither officer contradicted the appellant’s evidence. Notwithstanding this misapprehension of the evidence I am not satisfied that the trial judge erred in her assessment of the appellant’s evidence.

[32] I am satisfied that the trial judge’s findings in relation to the appellant’s credibility should not be interfered with. I am also satisfied that the trial judge did not err in accepting the evidence of Mr. Cetikaya which was the basis for her convicting the appellant of assault, uttering threats and dangerous driving. As the crown noted, she was entitled to accept the evidence of a sober, responsible and experienced taxi driver and she gave reasons for doing so.

[33] The remaining issue is whether the action Mr. Cetikaya attributed to the appellant is sufficient to support a conviction of dangerous driving. As previously noted, the contentious issue is whether the appellant was operating, that is driving, the vehicle. Mr. Cetikaya’s evidence was that the appellant was in control of the vehicle and he turned the vehicle into oncoming traffic. I find these facts analogous to those before the court in R. v. Belanger 1970 222 (SCC), [1970] 2 C.C.C. 206 (S.C.C.) where the appellant in that case “had deliberately grabbed the steering wheel and taken control from the hands of the constable” and “for the brief period during which the appellant assumed control, he was solely responsible for the dangerous driving”. I find that the trial judge did not err in her conclusion that the evidence established that the appellant’s conduct met the legal definition of dangerous driving.

Conclusion

[34] The appeal against conviction is dismissed.

[35] At the hearing of the appeal there was a joint submission from counsel that if the conviction appeal was dismissed, an appeal against sentence would be allowed to vary the term of community service imposed to equate to the 35 hours of community service completed by the appellant.

[36] I am satisfied that this joint submission should be accepted and the appellant’s terms of probation are varied accordingly.

Justice L. C. Leitch

Released: August 8, 2014