ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: 30/15
DATE: 20150723
B E T W E E N:
HER MAJESTY THE QUEEN
S. Bradley, for the Respondent
Respondent
- and -
MATTHEW PAUL SHANE McNEILL
(also known as SHANE P. McNEILL)
S. Whitzman, for the Appellant
Appellant
HEARD: July 15, 2015 at Milton, Ontario
REASONS FOR JUDGMENT
[On appeal from the conviction of Cooper J.
dated February 19, 2015]
André J.
[1] The appellant, (“Mr. McNeill”), appeals his conviction of the offence of dangerous driving pursuant to s. 249(1)(a) of the Criminal Code of Canada (“the Code”). He contends that the learned trial judge erred in law in finding that the respondent (the “Crown”) had proven the issue of identity beyond a reasonable doubt and accordingly, his conviction should be set aside and an acquittal entered. The Crown submits that the trial judge committed no error and consequently, that the appeal should be dismissed.
BACKGROUND FACTS
[2] P.C. Steven Nopper investigated a traffic accident in the Town of Oakville on September 13, 2013.
[3] The officer obtained statements from the complainant, Davinder Panglia, and other witnesses. He received information that an unknown male driving a red pick-up truck had first honked his horn and had then rear-ended Mr. Panglia’s minivan three times while it was stopped at an intersection.
[4] One of the witnesses gave the officer a napkin on which she had hand written the licence number of the red pick-up. Another witness also wrote down the licence number of the red pick-up which matched that written by the witness except for one digit. P.C. Nopper received information from the Ministry of Transportation that the plate was registered to Mr. Shane McNeill with a date of birth of August 30, 1975. Subsequent checks provided him with a telephone number for Mr. McNeill.
[5] P.C. Nopper called the number. He listened to a voicemail recording which confirmed that the number belonged to a person called Shane McNeill. The officer then left a message for Mr. McNeill to return his call.
[6] Later that evening, a male identifying himself as Shane McNeill called P.C. Nopper from the same number that the officer had obtained during his investigation. He said that he owned a red pick-up truck with a plate number which matched the number given to the officer by the witnesses. He also confirmed that he had been in Oakville earlier that day. He consented to attending the police station to talk to the officer.
[7] The male then asked P.C. Nopper what the call was about. The officer replied that it was about an accident without giving the male any other details.
[8] The male then replied:
The Indian guy flipped me the bird. He sped up in front of me into my lane. I almost hit him and he did it again. He slammed on his brakes and I accidentally hit his bumper. He flipped me the bird at the intersection and I drove off to the left. I check my car for damage and there wasn’t any, so I went about my stuff to do and I went home.
[9] Mr. Panglia is an Indian male.
[10] P.C. Nopper spoke to the male who had identified himself as Shane McNeill on September 30, 2013. They agreed that he would attend the station on October 5, 2013, to be arrested and released.
[11] Mr. McNeill attended the station on October 5, 2013, and identified himself with a valid driver’s licence. He provided a videotaped statement which was not entered into evidence.
TRIAL JUDGE’S DECISION
[12] During the trial, the court entered into a voir dire to determine the admissibility of the statement from the person who identified himself as Shane McNeill. The appellant submitted that the Crown had failed to prove beyond a reasonable doubt that the statements attributed to Mr. McNeill were his because his identity as Shane McNeill had not been established. The trial judge held that:
There’s certainly strong circumstantial evidence proving the identity of the defendant because everything matched up to him and his vehicle and in addition in that call the person on the phone mentioned the Indian guy as being involved in the accident. I find the Crown has proven identity beyond a reasonable doubt.
[13] Defence counsel then consented to the Crown reading the rest of its evidence as part of its case against Mr. McNeill.
[14] At the commencement of the trial, the parties agreed that upon completion of the voir dire, the evidence called by the Crown, if accepted as being admissible, would apply to the trial proper.
APPELLANT’S POSITION
[15] The appellant submitted on the voir dire that the statements of “Shane McNeill” to P.C. Nopper on the telephone were not admissible, because it could not be proved that “Shane McNeill” was the appellant (identity question #1). The learned trial judge found that it was proved. The appellant submits that the only effect of this ruling was that the statements then became admissible and could be used to prove the guilt of the appellant by establishing that he was the driver of the red pick-up truck (identity question #2). The appellant submits that the learned trial judge failed to answer question #2 and never engaged in an analysis of that issue or explained how he reached the conclusion that the appellant was guilty.
[16] The appellant submits that the learned trial judge erred in his ruling on the voir dire that the statements of “Shane McNeill” were admissible. He submits that the trial judge engaged in a form of bootstrapping by using the statements themselves to prove identity (between “Shane McNeill” and the appellant), a preliminary fact that had to be proved on a balance of probabilities by independent evidence before the statements became admissible. The admissible evidence probative of identity was simply the similarity of their names. The appellant contends that this Honourable Court can take judicial notice that Shane McNeil is not an uncommon or distinctive name in Ontario: see R. v. Evans, [1993] 3 S.C.R. 652, 1993 86, at 93ff; R. v.MacLean (1973), 1973 1379 (NS SC), 11 C.C.C. (2d) 568 at 572 (N.S. Co. Ct.); R. v. Chandra (1975), 1975 1294 (BC CA), 29 C.C.C. (2d) 570 at 573-74 (B.C.C.A.).
[17] The appellant submits in the alternative that if the statements of “Shane McNeill” were properly admitted, the circumstantial evidence in its totality did not prove beyond a reasonable doubt that the appellant was the driver of the red pick-up truck. This conclusion was not the only rational inference that could be drawn. One alternative reasonable inference was that the person who falsely identified himself as “Shane McNeill” was the driver and wished to deflect blame onto the appellant (or at least away from himself): see Evans, at 92-93.
[18] The appellant further submits that the learned trial judge erred in law by failing to provide an explanation for his decision that was sufficiently intelligible to provide for meaningful appellate review. The learned trial judge provided no reasons given for finding the appellant guilty. However, assuming that the reasons given on the voir dire were meant to stand for those reasons, they were inadequate. They do not clearly, if at all, explain how the judge reached the conclusion he did. Specifically, they do not make clear whether the judge thought that a “yes” answer to identity question #1 necessarily implied a “yes” answer to identity question #2 – and if so, why: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, [2002] S.C.R. No. 30.
LEGAL PRINCIPLES
Standard of Review
[19] In discharging its reviewing function under s. 686(1)(a)(i), of the Criminal Code, an appellate court must determine on the whole of the evidence whether the verdict is “one that a properly instructed jury acting judicially, could reasonably have rendered.” While this will involve re-examining the evidence, an appeal court ought to recognize its disadvantage in weighing evidence and cannot merely substitute its views for those of the jury. All factual findings are open to the trier of fact, except unreasonable ones. The fact that an appeal court judge has a vague unease or lingering doubt is an insufficient basis to conclude that the verdict was unreasonable: see R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.) at paras. 24, 36-38; R. v. Beaudry (2007), 2007 SCC 5, 216 C.C.C. (3d) 353 (S.C.C.) at paras. 55-60.
Circumstantial Evidence
[20] No adverse inference can be drawn if there is no case to answer. A weak case cannot be strengthened by the failure of the accused to testify. But there seems to come a time, where, in the words of Irving J.A. in R. v. Jenkins (1908), 1908 243 (BC SC), 14 C.C.C. 221 at p. 230, 14 B.C.R. 61 (C.A.), “circumstantial evidence having enveloped a man in a strong cogent network of inculpatory facts, that man is bound to make some explanation or stand condemned.” That point, it seems to me, can only be the point where the prosecution’s evidence, standing alone, is such that it would support a conclusion of guilt beyond a reasonable doubt…: see R. v. Johnson (1993), 1993 3376 (ON CA), 12 O.R. (3d) 340 (C.A.), at pp. 347-348; R. v. Burns, 2012 BCCA 104 at para. 46.
Sufficiency of the Reasons
[21] A trial judge is presumed to know the law and is not required to expressly indicate that he or she has taken into account all relevant considerations or aspects of the evidence. Nor does a trial judge, where the conclusion is apparent from the record, err in failing to allude to difficulties in the evidence, or even in failing to explain why he or she does not entertain a reasonable doubt as to an accused’s guilt: see R. v. Burns (1994), 1994 127 (SCC), 89 C.C.C. (3d) 193 (S.C.C.) at 198-200; R. v. Myerscough, 2001 8573 (ON CA), [2001] O.J. No. 2867 (C.A.) at paras. 7-11; R. v. Sheppard, 2002 SCC 26, [2002] S.C.J. No. 30 at para. 55.
[22] Accused persons are entitled to adequate reasons, not perfect reasons, and brief reasons will not necessarily be inadequate. Even where the reasons of the trial judge are inadequate, if the appeal court can understand from the record how the trial judge reached his conclusion, the appeal must be dismissed: see R. v. Tzarfin, 2005 30045 (ON CA), [2005] O.J. No. 3531 (C.A.); R. v. F.A., [2004] O.J. No. 4135 (C.A.).
ANALYSIS
[23] The appellant’s main contention is that the trial judge failed to apply the appropriate test in determining the authenticity of his statement. The appropriate test, he submits, is that set out by the Supreme Court of Canada in Evans at para. 39
First, a preliminary determination must be made as to whether, on the basis of evidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused. If this threshold is met, the trier of fact should consider the contents of the statement along with other evidence to determine the issue of innocence or guilt. While the contents of the statement may only be consider for the limited purpose to which I have referred above in the first stage, in the second stage the contents are evidence of the truth of the assertions contained therein.
[24] It is clear that the trial judge did not follow this two-step process in Evans. However, there was ample evidence in this case to justify the initial finding, on a balance of probabilities, that the statement was that of the accused. This evidence included the licence number of the culprit vehicle given by the witness and the complainant, the description and colour of the vehicle, the name of the owner of the vehicle, according to the Ministry of Transportation records, and the fact that the appellant identified himself as Shane McNeill when he returned the officer’s call. In my view, this evidence, while falling short of proof beyond a reasonable doubt, constitutes proof, on a balance of probabilities, that the statement was that of the appellant.
[25] The appellant is correct that where the Crown’s case is based on circumstantial evidence, a trier of fact can only convict if the facts were such as to be inconsistent with any other rational conclusion than that the appellant was guilty: Hodge’s Case (1838), 1838 1 (FOREP), 2 Lewin 227; 168 E.R. 1136; Lizotte v. R., 1950 48 (SCC), [1951] S.C.R. 115, at page 117; R. v. Comba, 1938 7 (SCC), [1938] S.C.R. 396 at 397. He is also correct that a strong circumstantial case is not the same as guilt based on a finding that the only rational conclusion to be drawn from the evidence is guilt.
[26] However, the failure to apply the Hodge’s formula does not constitute an error of law. R. v. Kumar 1984 2409 (SK. C.A.), at para. 15. Neither can it be said, pursuant to s. 686(1)(a)(i) of the Code, that the trial judge’s decision should be overturned because it is unreasonable or cannot be supported by the evidence, or should be set aside because of a wrong decision on a question of law under s. 686(1)(a)(ii). On the evidence, it was open to the trial judge to find the appellant guilty beyond a reasonable doubt, the moreso since the appellant gave no explanation.
[27] When the contents of the appellant’s statement is considered with the other evidence, the only rational conclusion to be drawn from the evidence is that of the appellant’s guilt. The statement confirms the following:
(1) Mr. McNeill’s vehicle collided with the victim’s vehicle on September 13, 2013.
(2) Mr. McNeill identified the other driver as an Indian male.
(3) Mr. McNeill confirmed that he was in Oakville on the date of the accident.
(4) Mr. McNeill confirmed that he had left the scene of the accident.
[28] The appellant submits that another reasonable inference from the evidence is that the real culprit could have used the evidence about the incident to incriminate the appellant. That inference however, is both illogical and irrational. The appellant confirmed his identity with a valid licence. He gave a statement confirming that he was the driver of the red pick-up truck that had been involved in the accident. He identified the ethnicity of the victim driver. He confirmed that he had been at the location of the incident at the time the Crown alleged the incident happened. The only rational conclusion to be drawn from this constellation of facts is that the appellant was the male involved in the incident.
[29] The appellant submits that the court can take judicial notice of the fact that Shane McNeill is a popular name and that any other person with that name could have impersonated Mr. McNeill. Assuming without deciding that I can take judicial notice of this fact, there are nevertheless facts in this case which inexorably point to the appellant as the person involved in the accident. This includes the colour and description of his vehicle, the location of his vehicle at the time of the incident, his knowledge of the incident and of the other person involved in it, and his admission that his vehicle collided with another vehicle on the very morning when the incident occurred. It would be ludicrous to conclude that another person could somehow have been involved in the accident and, using the appellant’s telephone, impersonated Mr. McNeill and pinned the responsibility for the accident on him.
[30] Regarding the appellant’s submissions that the trial judge gave inadequate reasons for his decision, it is my view that his decision is apparent from the record and that accordingly, he committed no error.
DISPOSITION
[31] For the above reasons, the appeal is dismissed.
André J.
Released: July 23, 2015
COURT FILE NO.: 30/15
DATE: 20150723
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
MATTHEW PAUL SHANE McNEILL
(also known as SHANE P. McNEILL)
Appellant
REASONS FOR JUDGMENT
André J.
Released: July 23, 2015