R. v. Sarkoon Oraha, 2015 ONSC 1505

R. v. Sarkoon Oraha, 2015 ONSC 1505

COURT FILE NO.: CR-13-30000071-00AP

DATE: 20150313

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

SARKOON ORAHA

Appellant

Kim Walker, for the Respondent

Kate Findlay, for the Appellant

HEARD: December 10, 2014

B. P. O’MARRA, J.

REASONS FOR JUDGMENT

[On appeal from the judgment of Justice T. Cleary of the Ontario Court of Justice dated April 22, 2013]

OVERVIEW

1These charges arose from yet another incident of road rage. The appellant and the other driver both ended up with criminal convictions. Both were first offenders. The other driver was an off duty police officer. He was separately charged with assault causing bodily harm. That charge related to an incident at the roadside where the appellant sustained a fractured jaw.

2The appellant was found guilty of dangerous operation of a motor vehicle and assault with intent to resist arrest contrary to ss. 249(1)(a) and 270(1)(b) respectively of the Criminal Code, R.S.C., 1985, c. C-46.

3Before sentence was imposed, the appellant brought a Charter motion for a judicial stay of both charges. This was based on the conviction of the other driver of assault causing bodily harm to the appellant.

4The trial judge found that there was a breach of s. 7 of the Charter based on the excessive force used and the injury caused by the off duty police officer.

5The trial judge declined to order a stay of the charges pursuant to s. 24(1) of the Charter. The remedy granted was a lesser sentence than would normally be applied to the appellant for these offences in the circumstances. On the dangerous operation of a motor vehicle a conviction was entered. The appellant was fined $300.00 and prohibited from driving for 12 months. On the assault with intent charge a conditional discharge was granted with 1 year probation.

6The appellant submits that the trial judge made errors in the findings of guilt. He further submits that a stay of the charges should have been imposed in any event.

APPEALS AGAINST FINDINGS OF GUILT

7The appellant testified at trial. The way in which the trial judge dealt with his evidence is determinative of this appeal.

8A brief overview of the evidence will be sufficient to address the issues.

9The appellant and the other driver Thomas were proceeding in the same direction on a multiple lane highway. The appellant was behind the other vehicle in the same lane. The other vehicle was travelling at less than the speed limit. The appellant drove very close behind and flashed his high beams and the other driver lightly touched his brakes more than once. The appellant decided to pass the other vehicle to the right on the paved shoulder.

10The appellant said he had great difficulty in returning to his lane as the other vehicle sped up and prevented him from reentering. He was finally able to accelerate and pass the other car and return to the lane.

11There was conflicting evidence of the vehicles jockeying for position. The other car ended up behind the appellant. The other driver followed the appellant and hit his horn a few times rapidly. He also held up his police warrant badge and waved his hand to indicate that the appellant should pull over to the right.

12The appellant eventually pulled into an emergency lane and stopped his vehicle.

13Thomas got out of his car and walked back towards the appellant. Shortly thereafter Thomas told the appellant to put his hands on his car. The appellant claims Thomas swore at him and struck him on the left side of his face with his fist. The appellant claims he repeatedly asked Thomas to stop and put his hands up to defend himself. The appellant denied he intended to apply force to Thomas other than by reflex and to defend himself.

14Thomas claimed that the appellant tried to strike him in the face with his elbow. He blocked the blow with his forearm and then delivered two punches to the left side of the appellant’s face.

15The two men were involved in a struggle. Thomas delivered a knee strike to the appellant’s thigh and struck a further blow to his head.

16The trial judge’s reasons for judgment total approximately 17.5 pages. The portion dealing with the assault with intent charge is approximately 1.5 pages and is as follows:

With regards to the assault resisting arrest: the Crown has to show beyond reasonable doubt that he knew Mr. Thomas to be a police officer and that he did some act that amounts to resisting lawful arrest. Obviously there has to be a lawful arrest, but I’m satisfied beyond reasonable doubt that based on his own evidence that he believed it was a police badge held up to the window that gave him some security as was part if not all the reason that he stopped. The only reasonable inference is that Officer Thomas made all that effort to get him to stop and show him he was a police officer when driving. When he exited his own vehicle, Officer Thomas, I’m satisfied did show and hold up badge and say “I’m a policeman” or “Police”, indicating he was under arrest.

Now, the first contact between them happens at the back end of Mr. Thomas’ car. Mr. Thomas indicated he wanted Oraha to go to his own car and then proceeded to move him back there. That little bit of an exchange of contact by itself, in my view, is not sufficient contact to be resisting arrest. Some actions don’t amount to that. However, once he gets back to the car, he puts his hands on the car and there’s two straightening up, two actions of resisting being controlled by someone who he knows is a police officer and told him he’s under arrest, and then the movement of the elbow in the area of the face of the officer. For the purposes of this particular finding, I’m satisfied that the combination of the continued, growing and persistent resistance to being controlled in any way by the police officer whose spoken words of arrest and trying to get him to put his hands on the car and stay there, and the swinging of the elbow amount to an assault with intent to resist arrest, and therefore there’s a finding of guilt, on that count.

APPLICATION OF W.(D.)

17The Supreme Court of Canada has provided a three step approach to reasonable doubt where the accused testifies at trial:

1. if the accused is believed he must be acquitted;

2. if the evidence of the accused is not believed but the trier of fact is left in reasonable doubt by it, he must be acquitted;

3. even if the trier of fact is not left in doubt by the evidence of the accused, there can only be a conviction if, on the basis of the evidence that is accepted, there is proof beyond a reasonable doubt of guilt. See R. v. W.(D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

18The trial judge referred to the second step in W.D. as follows:

The so-called second branch of the W.D. test checking to see if the evidence of an accused could leave a reasonable doubt does not require the trier of fact to look at evidence that was rejected. Logically if a trier of fact rejects part of the evidence of a witness, that evidence isn’t there to make a finding of fact.

So, once that evidence is rejected that part of the evidence couldn’t possibly contribute a reasonable doubt because it’s not accepted to make a finding of fact.

Reasons for Judgment pp. 12 and 13.

19The above passage misstates the second step in W.D. It also conflates the issue of reasonable doubt with fact finding. There is no onus on the accused to establish any facts.

20The appellant had testified that his application of force was reflexive and defensive. It may be implicit in the trial judge’s reasons that he rejected that evidence but it is not clear that he did so. The trial judge did not state that the Crown had proven that the appellant was not defending himself.

21The onus is on the Crown to prove beyond a reasonable doubt that self defence does not apply. see R. v. Mulder 1978 CanLII 2496 (ON CA), [1978] O.J. No. 515 (Ont. C.A.) at para. 9.

22Based on errors related to the application of the principles in W.(D.) and the onus of proof the finding of guilt on the assault with intent charge cannot stand.

SHOULD A RETRIAL BE LIMITED TO THE ASSAULT WITH INTENT CHARGE?

23The trial judge found that the dangerous operation charge was proven based on the appellant’s own evidence. A new trial is required on the assault with intent charge. I have considered whether the new trial should be limited to the second count.

24A limited trial which restricts the accused’s right to control his defence offends a fundamental principle of justice and is an untenable result. The accused must be able to put forward whatever defence he has. see R. v. Thomas 1998 CanLII 774 (SCC), [1998] 3 S.C.R. 535; R. v. Warsing 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579.

25The appellant’s defence on the assault charge was that any application of force by him at the roadside was reflex or in self defence. His state of mind at the roadside would be linked to the driving conduct that led to the confrontation between the drivers when both were out of their cars at the roadside.

26If the appellant testifies at a retrial he will be limited to some extent by the evidence he gave at the first trial. However, I am of the view that he should not also be limited by the finding of guilt at the first trial.

REFUSAL TO GRANT A STAY

27The appellant applied for a stay after the trial judge had found him guilty on both counts.

28A stay of proceedings is the most drastic remedy a criminal court can order. There are rare occasions – the “clearest of cases” – where a stay of proceedings for abuse of process will be warranted. Appellate intervention is warranted only where a trial judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is “so clearly wrong as to amount to an injustice”. see R. v. Babos 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30, 31 and 48.

29If the Crown proceeds on a new trial the issue of whether to grant the discretionary remedy of a stay is best left to the trial judge based on all the circumstances at that time.

RESULT

30The appeal is allowed and a new trial is ordered on both counts.