SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-13-70000147-00AP

DATE: 2015-11-09

RE: HER MAJESTY THE QUEEN, Respondent

AND:

JEREMY NORMAN, Appellant

BEFORE: MacDonnell, J.

COUNSEL:
Amanda Ross, for the Appellant

Robert Wright, for the Respondent

HEARD: October 21, 2015

Appeal book endorsement

[1] On November 1, 2013, after a two-day trial before Justice Clements in the Ontario Court of Justice, the appellant was found guilty of failing to comply with the term of a bail order that required him to be within his place of residence at all times “except to go directly to and from and while at employment, counselling (including residential treatment), reporting to parole officer, medical emergencies or in the direct company of either surety”.

[2] The appellant was charged with that offence following his interaction with the police during a traffic stop that was initiated after he was observed in the area of 285 Shuter Street. The evidence of the arresting officer was that the appellant told him that he was in the area to visit a friend. The appellant denied making that statement. His evidence was that he was on his way to an Alcoholics Anonymous (A.A.) meeting and that he told the officer that. The trial judge accepted the evidence of the officer, rejected that of the appellant, and found the appellant guilty as charged.

[3] The appellant raises four grounds of appeal. He alleges that the trial judge:

(i) shifted the burden of proof and failed to properly apply the principles of R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742;

(ii) improperly used his failure to provide a detailed explanation to the police as a basis for rejecting his testimony;

(iii) misapprehended or failed to consider and give proper effect to the evidence; and

(iv) improperly took judicial notice of the level of evening traffic congestion.

I would not give effect to any of those grounds of appeal.

(i) Did the Trial Judge Shift the Burden of Proof?

[4] The principle that an accused person is presumed to be innocent unless the Crown proves guilt beyond a reasonable doubt is the principle around which every criminal trial in the Ontario Court of Justice revolves. If there is any principle to which the presumption that a judge knows the law should apply, this is it. In assessing an argument such as is made here, that an experienced Ontario Court judge has shifted the burden of proof, that is something that must be kept in mind.

[5] In this case, the trial judge not only adverted to the decision of the Supreme Court of Canada in R. v. W.(D.), he considered Justice Code’s discussion of that case in R. v. Thomas, 2012 ONSC 6653, [2012] O.J. No. 5692 (Sup. Ct.). The appellant submits, however, that the trial judge failed to apply the W.(D.) principles and that in a number of instances he placed a burden on him to adduce evidence to prove his innocence. I do not interpret the passages relied on by the appellant in that way. The appellant has failed to establish a shifting of the burden of proof.

(ii) Was the Appellant’s Right to Silence Infringed?

[6] The evidence of the arresting officer was that when the appellant was spoken to at roadside after a traffic stop he stated that he had been at 285 Shuter Street to see a friend prior to going to work. That statement, if it was made, was incriminating, because visiting a friend was not within the permitted exceptions to the house arrest term of the appellant’s recognizance.

[7] In his testimony, the appellant denied telling the officer that he was at Shuter Street to see a friend. He testified that what he actually said was “something about A.A….. I said I was going to A.A.” In cross-examination, it was suggested that “you didn’t actually tell the police officers that you were going to an A.A. meeting”. He responded “I’m pretty sure that that came up at some point” but “I don’t remember a lot of the evening”. It was in that context that the trial judge observed that given the nature of the house arrest terms by which the appellant was bound, one would expect that “he would be most anxious to tell the police the exact details about the location of the meeting to which he intended to go.” The judge stated:

He failed to do so and at best, on his evidence, he surmised he said something about an A.A. meeting. I am not persuaded he said anything to the police about his intent to attend that meeting…

And later:

Moreover, I find that whatever explanation and reason he provided to the police for being in the area of the city did not include information about his intention to attend a specific A.A. meeting. In those circumstances, I find no basis to reject the police evidence that he said something to them about a friend and being on his way to work.

[8] In the context of the issue that the trial judge was addressing, I read his reasons as holding that if the appellant had actually made the statement that he claimed to have made, his memory of it would not have been vague. The vagueness of his memory about something important was a factor that the trial judge was entitled to consider in relation to whether to believe the police evidence that the appellant had made an inculpatory statement rather than the appellant’s evidence that he had made an exculpatory statement. This was not a case like R. v. Wilson, 2013 ONSC 7830, where the sparseness of an accused’s initial explanation to the authorities was used as a basis for rejecting a more expansive explanation provided at trial. Rather, it was a case where the sparseness of the appellant’s trial testimony with respect to what he had said earlier was used as a basis for rejecting his trial testimony in that respect. That use did not implicate the appellant’s right to silence.

(iii) Did the Trial Judge Misapprehend the Evidence?

[9] The appellant submits that the trial judge “misapprehended or failed to consider or give proper effect to” several aspects of the evidence. In my opinion, the appellant is essentially arguing that the trial judge ought to have come to a different conclusion with respect to the impact of the evidence. It is not the function of this court to retry the issues raised at trial. The appellant has failed to demonstrate an error warranting appellate intervention.

(iv) Did the Trial Judge Improperly Take Judicial Notice?

[10] In the course of his reasons for rejecting the appellant’s evidence as to the route he was taking at the material time, the trial judge stated: “No one who drives in the City of Toronto on a regular basis is likely to understate the level of traffic congestion but at 8:00 or 8:30 in the evening such concerns likely would be diminished if not minimal.”

[11] The level of traffic congestion in downtown Toronto was not only undisputed at trial, the appellant relied on it to explain the circuitous route he was taking to the A.A. meeting. The only fact that the trial judge judicially noticed was that the level would likely be diminished at 8:00 or 8:30 in the evening. In my opinion, the fact that city traffic is likely to be less congested later in the evening than at rush hour is something that is sufficiently notorious to be judicially noticed. In any event, the more substantial reason why the trial judge rejected the appellant’s explanation for the route he was taking was that it was plainly not the most direct route. The A.A. meeting that he said he was going to was at the intersection of Dundas and Bathurst Streets. The appellant’s evidence was that prior to his encounter with the police he was already on Dundas, heading west toward Bathurst. In the circumstances, the trial judge concluded that it did not accord with common sense that the appellant would take a detour south to Queen Street rather than continuing along Dundas. That was something that it was open to the trial judge to consider.

(v) Disposition

[12] For the foregoing reasons, the appeal is dismissed. Mr. Alex Soutar, a law student with Downtown Legal Services, assisted Ms Ross in the preparation of the appellant’s factum. The court is indebted to Mr. Soutar for his assistance in that respect.

MacDonnell, J.

Date: November 9, 2015