ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
ANGELA MacARTHUR, for the Respondent/Crown
Respondent
- and -
MAVINDER SINGH GILL
STEPHEN DARROCH, for the Appellant
Appellant
HEARD: August 31, 2015
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable P.R. Currie,
dated May 28, 2014]
DURNO J.
[1] The appellant was charged with assault by spitting at a partially opened car window and striking a passenger in a car stopped next to his at a stop light. The trial judge heard evidence from the passenger, her husband who was driving their car, two police officers and the appellant. Both drivers testified that at one point they got out of their vehicles and exchanged remarks. The appellant said the other driver used a racial slur in referring to him. While the other driver did not recall if he had made that remark, the trial judge was not sure he accepted the other driver’s evidence on that issue.
[2] The appellant denied he spat on the car or the passenger. The passenger said he spat at the side of their car, hit the window and her. She produced photographs she and her husband took shortly after the incident that appeared to show two areas of spit on the side window. The complainant’s husband testified he heard his wife say, “Ugh” and put her hand to her face. The trial judge rejected the appellant’s evidence and accepted that of the passenger. His Honour imposed a one day jail term followed by twelve months’ probation.
[3] The appellant appeals against the conviction contending the trial judge erred in his application of R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) by stating the test was whether the appellant raised a reasonable doubt, in approaching the case as a credibility contest, and in rejecting the appellant’s evidence because he said he was not angry relying upon how other drivers react.
[4] For the following reasons the appeal is dismissed.
The W.(D.)Issues
[5] The trial judge initially referenced W.(D.) without setting out the three stage approach noted by the Supreme Court of Canada. Later, he returned to the test noting:
As I mentioned earlier, I am bound and guided by the principles set out in R. v. W.(D.). Even if I do not believe Mr. Gill, if his evidence or any of the evidence before me raises a reasonable doubt, he is entitled to be acquitted. (emphasis added)
[6] First, the appellant submits the trial judge erred by reversing the onus as the appellant was not required to raise a reasonable doubt before being acquitted. The onus was on the Crown. He notes that in the W.(D.) judgment the Court noted in relation to the second branch that “if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole,” they must acquit. The appellant submits the trial judge ignored the presumption of innocence by requiring the appellant to raise a reasonable doubt.
[7] The respondent submits the trial judge appropriately applied W.(D.).
[8] Whether a trial judge properly applied W.(D.) does not depend on whether or not he or she mechanically stated the test or whether the test was stated at all. Rather, an appellant court determines from reviewing the entire reasons whether the test was in fact applied. A trial judge can properly apply the test without ever mentioning W.(D.) and can misapply the test while stating it properly.
[9] I am not persuaded the trial judge erred. From reading his reasons as a whole, it is apparent that the experienced trial judge properly applied the presumption of innocence and W.(D.). As the Court of Appeal has held the use of the word “raises” in itself is not fatal in relation to the application of W.(D.) whether it be self-instruction in a non-jury trial or charging a jury.
[10] The same argument was raised in R. v. Basilio (2003), 2003 15531 (ON CA), 175 C.C.C. (3d) 440 in the Court of Appeal. In a non-jury trial the trial judge held:
I do not find credible that evidence tending to support the accused's position; nor does it raise a reasonable doubt in my mind ... [emphasis added].
[11] The appellant argued that the trial judge’s use of the word “raise” instead of “left in” as was suggested in W.(D.), showed the trial judge had put the onus of proof upon the appellant. The Court of Appeal held:
7 This was a trial by judge alone. In considering the trial judge's reasons as a whole, it is my view that although he did not use exactly the same words as in W.D., he followed the approach that it recommended. He disbelieved the appellant's evidence on the crucial issues involving the appellant's role in the fight and gave reasons for coming to that conclusion. Thereafter, he referred to the evidence supporting the appellant's position and made the impugned statement that it did not "raise a reasonable doubt in my mind concerning the accused's guilt".
8 In my view, the statement in question reflects the second stage of analysis recommended in W.D. The second stage requires the trier of fact who disbelieves the testimony of the accused to acquit if the testimony leaves him or her in a reasonable doubt. Here, the trial judge found that the evidence did not raise a reasonable doubt in his mind. It was not a shifting of the burden to the appellant to raise a reasonable doubt. Rather, the statement shows that the trial judge disbelieved the appellant's testimony and had determined that the testimony did not leave him with a reasonable doubt. Accordingly, this ground of appeal fails.
[12] I reach the same conclusion reading these reasons as a whole.
[13] Second, the appellant contends the trial judge approached the case as a credibility contest between the complainant and the appellant. I disagree.
[14] The trial judge found the complainant’s evidence “compelling,” given in a “clear and straightforward manner,” and without exaggeration. He rejected the appellant’s evidence, finding that contrary to the appellant’s testimony, he was angry.
[15] The trial judge concluded:
It was put to both Mr. and Mrs. Dube that they had fabricated their testimony and that what they were saying did not happen. As I previously indicated, I found Mrs. Dube’s testimony to be compelling, that in combination with the photographs taken very shortly after the incident depicting what they do, which I accept is spit on the window in a location where Mrs. Dube could easily have been struck by some expectorate.
I am satisfied beyond a reasonable doubt on all the evidence before me that the charge is made out. I will enter a finding of guilt.
[16] The trial judge had the distinct advantage of seeing and hearing the witnesses. While his reasons for rejecting the appellant’s evidence were brief, it was open to him to find the appellant was angry. There was no dispute that both men exchanged remarks.
[17] His Honour provided compelling reasons why he accepted the complainant’s evidence. Not only did he see and hear that witness, her evidence was corroborated by the photographs and to some extent by her husband. His Honour did not accept her husband’s purported lack of memory of making a racial slur. However, the trial judge could believe all, part or nothing of what a witness said. In addition, it was open to His Honour to reject the appellant’s submission that the photographs were concocted.
[18] In R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252, at para. 53, Doherty J.A. held:
The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence. (emphasis added)
[19] The trial judge provided cogent reasons why he accepted the complainant’s evidence. That was as much an explanation for the rejection of the appellant’s evidence as one based on a problem identified with the way he testified or the substance of his evidence.
Did the trial judge err in rejecting the appellant’s evidence because the appellant testified he was not angry and other drivers in Peel got angry in traffic disputes?
[20] The appellant testified that the other driver might have felt he was not going fast enough. He said that he had been driving a truck for 14 years and had no tickets. When asked if he was annoyed with the other driver honking at him he said, “I have never gotten in the way. That’s the reason why I do not have a ticket or I do not have an accident, because people give us similar hard time in the truck every day.” He said that “absolutely” this type of thing did not make him annoyed or angry. When the other driver got out of his vehicle he thought he was going to punch his car but “absolutely” was not angry with the other driver.
[21] Early in his reasons the trial judge noted:
Unfortunately, as is all too often the case and apparently increasingly so in this jurisdiction, drivers in our community find themselves more and more frequently at odds. One cannot drive through Mississauga or Brampton on any day without either being involved personally in some kind of traffic issue or seeing other persons so involved.
[22] His Honour found that both drivers were angry when they got out of their vehicles and exchanged remarks. In rejecting the appellant’s evidence the trial judge said:
In his evidence, Mr. Gill testified that he did not get annoyed first at the driving because he is a truck driver and sees that sort of thing every day, and further testified that he did not get angry in the course of this exchange of insults between himself and Mr. Dube. I do not accept that evidence from Mr. Gill. I find that is contrary to common sense and human experience; of course, he was angry.
[23] The appellant submits that, in effect His Honour’s reasons for rejecting the appellant’s evidence were unreasonable and that he erred in placing reliance on how other drivers react to traffic disputes. While initially framed as improperly taking judicial notice, the appellant fairly and appropriately concedes that there was evidence with regards to the number of “road rage” incidents in Peel. He contends that the trial judge improperly relied upon the frequency of those incidents to reject the appellant’s evidence. In effect, because others in Peel get angry, the appellant must have been angry.
[24] I am not persuaded the trial judge erred. While His Honour referenced driving in Peel, he applied common sense and human experience in assessing the appellant’s denial of being annoyed despite the altercation and the racial slur uttered by Mr. Dube. When jurors are charged they are instructed in assessing evidence to apply their own common sense they apply every day of their lives. That is what the trial judge did. He was entitled to do so.
[25] What His Honour said he was doing was applying common sense as opposed to relying on judicial notice just as jurors are instructed according to the Ontario Specimen Jury Instructions, Final 14:
To make your decision, you should consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to you to decide how much or little you will believe and rely upon the testimony of any witness. You may believe some, none or all of it.
When you go to your jury room to consider the case, use the same common sense that you use every day in deciding whether people know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much or how little to believe of a witness’ testimony or how much to rely on it in deciding this case. …
[26] While it may be that another judge would not have viewed this evidence in the way the trial judge did, I am not persuaded the finding was unreasonable. It was open to His Honour to conclude that the interaction between the two drivers would have resulted in some degree of anger in both.
[27] I am not persuaded His Honour erred.
Conclusion
[28] The appeal is dismissed.
DURNO J.
Released: September 17, 2015
COURT FILE NO.:467/14
DATE: 20150917
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
MAVINDER SINGH GILL
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable P.R. Currie,
dated May 28, 2014]
Durno J.
Released: September 17, 2015