ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 73/14

DATE: 20150915

RE: Her Majesty the Queen v. Sandeep Singh

BEFORE: K.L. Campbell J.

COUNSEL:
Darren Hogan, for the Crown, appellant

Frank Bernhardt, for the accused, respondent

HEARD: June 8, 2015

ENDORSEMENT

[Summary Conviction Appeal]

[1] The respondent, Sandeep Singh, was charged with the offences of impaired driving and dangerous driving after he was stopped by the police for speeding northbound on the Don Valley Parkway in Toronto shortly after 3:00 a.m. on January 21, 2013. The respondent was tried by the Honourable Mr. Justice J.C. Moore of the Ontario Court of Justice and was acquitted of both charges on May 8, 2014.

[2] The Attorney General of Ontario appeals against the acquittal of the respondent with respect to the dangerous driving charge. The Crown has not appealed against the respondent’s acquittal on the impaired driving charge. The Crown contends that the trial judge misapprehended certain aspects of the evidence and that these factual errors led him to reach an unreasonable verdict. I disagree.

[3] The Crown sought to establish the commission of the two alleged offences through: (1) the viva voce testimony of two experienced police officers: the officer who observed the respondent’s driving on the Don Valley Parkway and who arrested him at the roadside, and the qualified breath technician; and (2) the audio/video recordings from the in-car camera of the stealth police vehicle and the breath room recording at the police station.

[4] In making his adverse findings as to the reliability of the observations of the police officers regarding the respondent and his driving, the trial judge understandably compared the details of their testimony to the contents of the audio/video recordings. Perhaps most significantly in terms of the dangerous driving charge, the trial judge compared the details of the testimony of the arresting police officer (who stated that he first saw the respondent’s speeding vehicle at approximately 3:02 a.m.), to the audio/video recording of the police in-car camera (that began recording the events, with the police car chasing after the respondent’s vehicle, at precisely 3:02:30 a.m.).

[5] Ultimately, Moore J. concluded that the objective record contained in these recordings undermined the reliability of the subjective recollections of the officers as to their observations of the respondent and his driving. More particularly:

• The trial judge accurately recalled the testimony of the arresting officer that he first observed the respondent’s speeding vehicle at approximately 3:02 a.m. and by 3:04 p.m., had pulled the respondent over to the roadside, and that, in that brief intervening period: (1) the respondent’s vehicle seemed to pick up speed even beyond the 133 km/hr he first observed in the 90 km/hr limit on the Don Valley Parkway; (2) the respondent effected multiple lane changes; (3) the respondent passed and overtook all other vehicles on the road; (4) the respondent was driving aggressively, coming up quickly behind one vehicle and then making an abrupt lane change in order to pass; (5) the respondent did not stop for a considerable distance after being signaled by the officer to pull over; and (6) the road conditions had a light dusting of snow and were salted, wet and damp in areas.

• The trial judge accurately noted that the police in-car audio/video recording during this mostly overlapping time period between 3:02 and 3:04 a.m. (i.e. the in-car camera did not begin recording until 30 seconds before the arresting officer activated his emergency lights) revealed a “very different” state of affairs, namely: (1) there were virtually no other vehicles on the road; (2) there were no multiple lane changes and almost no lane changing at all by the respondent; (3) there was no aggressive driving and abrupt lane changes by the respondent; and (4) the road conditions were somewhat different and were actually “good” in that the weather appeared to be clear, without snow or rain. In the result, the trial judge concluded that the arresting officer had “to some extent embellished his testimony” regarding his observations.

• The trial judge concluded that the audio/video recordings of the respondent contradicted the testimony of the two police officers as to the respondent’s perceived indicia of impairment and revealed the motor skills, balance, responsiveness and speech pattern suggestive of someone who was “not impaired,” notwithstanding the admitted presence of alcohol in his system. This caused the trial judge to have “serious reservations” about the testimony of the two officers as to their alleged observations of his other indicia of impairment both in his operation of the vehicle and in his conduct outside the motor vehicle. In the result, the trial judge concluded that the evidence adduced by the Crown “falls far short of proving beyond a reasonable doubt that the ability” of the respondent to operate a motor vehicle was impaired.

• The trial judge concluded that while the combination of speed and the presence of alcohol (subsequent Intoxilyzer testing showed the respondent did not have an illegal blood-alcohol concentration) can constitute dangerous driving in some circumstances, the evidence in the present case “falls far short” of establishing the necessary “marked departure from the norm” and does “not add up to dangerous driving.” In the result, the trial judge concluded that the Crown had “fallen short of proving beyond a reasonable doubt” that the respondent’s driving amounted to “dangerous driving.”

[6] In summary conviction matters, pursuant to s. 813(b)(i) of the Criminal Code, R.S.C. 1985, c. C-46, the Crown may appeal against any order that “dismisses an information” upon questions of law alone, questions of mixed fact and law, or even questions of pure fact. See R. v. Century 21 Ramos Realty Inc. and Ramos (1987), 1987 171 (ON CA), 58 O.R. (2d) 737, 37 D.L.R. (4th) 649 (C.A.), at pp. 768-769; R. v. Multitech Warehouse (Manitoba) Direct Inc. (1995), 1995 6261 (MB CA), 102 Man.R. (2d) 141, 100 C.C.C. (3d) 153 (C.A.), at p. 149; R. v. Giles (1990), 1990 6500 (NL CA), 81 Nfld. & P.E.I.R. 1, 54 C.C.C. (3d) 66 (Nfld.C.A.), at para. 51; R. v. Medicine Hat Greenhouses Ltd. and German, 1981 ABCA 114, 26 A.R. 617 (C.A.), at para. 30; R. v. Labadie, 2011 ONCA 227, 105 O.R. (3d) 98, at paras. 49-60. However, this broad right of appeal by the Crown does not permit summary conviction appeal courts to retry the case and simply substitute their own findings of fact for those made by the trial judge. Rather, to provide for the necessary deference to the verdicts of trial courts, findings of fact may only be set aside if the reasons of the trial judge reveal the presence of “palpable and overriding error.” See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-37; R. v. Tiffin, 2008 ONCA 306, 232 C.C.C. (3d) 303, at paras. 22, 36, 41-43; R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at paras. 71-72; R. v. Carrano, 2011 ONSC 7718, [2011] O.J. No. 603, at para. 4; R. v. O’Meara, 2012 ONCA 420, 284 C.C.C. (3d) 567, at paras. 36-38; R. v. David, 2014 ONSC 5049, at paras. 14-15; R. v. Balogun-Jubril, 2014 ONSC 5308, at para. 49.

[7] In advancing the position that the trial judge misapprehended the evidence, the Crown’s main argument was that the trial judge, in effect, compared “apples to oranges” when he contrasted the testimony of the arresting officer as to the “dangerous driving” he personally witnessed, with the respondent’s driving as revealed by the in-car audio/video recording, without any apparent appreciation that the recording did not capture all of the respondent’s driving. I cannot accept this argument for two reasons.

[8] First, the trial judge could not have failed to appreciate that the in-car audio/video recording did not capture the entirety of the respondent’s driving. The arresting officer was clear in his evidence as to what was recorded by the in-car camera once it was activated, and it was clearly not activated until sometime after the officer began to chase the respondent’s vehicle. Moreover, the date/time stamp on the recording itself reveals that the recording did not commence until 3:02:30 a.m., beginning with the police vehicle chasing after the respondent’s speeding vehicle. Accordingly, there was a period of at least 30 seconds that was not recorded between the time when the arresting officer first saw the respondent’s speeding vehicle and the time the police in-car camera began recording events after it was activated. Nothing said by the trial judge supports the suggestion that he failed to appreciate that clear reality. Indeed, during one interaction during the course of the cross-examination of the arresting officer, a comment made by the trial judge showed that he fully appreciated this reality.

[9] Second, it is hardly surprising that the trial judge, in considering the reliability of the testimony of the arresting officer, thought it appropriate to compare the testimony of the arresting officer as to his observations of the respondent’s allegedly dangerous driving northbound on the Don Valley Parkway, against the objective audio/video recording of all but approximately 30 seconds of the respondent’s driving. After all, nowhere in his testimony did the arresting officer suggest that the respondent’s dangerous driving only took place in the first 30 seconds of his observations, or that all of the respondent’s dangerous driving took place long before the police in-car audio/video camera was activated. In his evidence the arresting officer agreed that the in-car camera captured more than two kilometers of the approximately three kilometers total distance that the officer chased the respondent’s vehicle on the Don Valley Parkway between Wynford Drive and York Mills Road. Further, during his evidence, the arresting officer maintained that some of the respondent’s dangerous driving was, in fact, captured on the audio/video recording. In these circumstances, it would have been unusual if the trial judge had not undertaken this type of comparative analysis.

[10] In any event, after carefully considering the reasons for judgment delivered by Moore J. against the complete evidentiary backdrop of this case, I can discern no proper basis upon which to interfere with the decision of the trial judge. There is simply no justification for disturbing the acquittal of the respondent on the charge of dangerous driving. In my view the trial judge did not misapprehend any important aspect of the evidence, nor did he make any unreasonable findings of fact, or any palpable and overriding error.

[11] In the result, the Crown appeal against the respondent’s acquittal on the charge of dangerous driving must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: September 15, 2015