COURT FILE NO.: CR-15-0211 DATE: 2016 June 13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – ANDREW WILBY Appellant

COUNSEL: J. McInnes, for the Crown F. Addario and A. Burgess, for the Appellant

HEARD: May 25, 2016 at Kingston

Tranmer, J.

DECISION ON SUMMARY CONVICTION APPEAL

[1] The Appellant appeals against his conviction in the Ontario Court of Justice on a count of dangerous driving. The incident occurred in the early morning hours of March 18, 2012, while he was on duty driving his police cruiser northbound on Division Street in Kingston. The Reasons for Decision of the learned trial Justice DeLuzio were delivered February 27, 2015.

GROUNDS OF APPEAL

[2] There are three grounds of appeal advanced, namely,

1. The learned trial judge used speculation to reject defence evidence capable of raising a reasonable doubt;
2. The learned trial judge applied a harsher standard of scrutiny to defence evidence than to Crown evidence; and
3. The verdict was unreasonable, because the guilt of the Appellant was not the only reasonable inference on the evidence.

BACKGROUND FACTS

[3] The incident occurred in a part of Kingston known by police to be heavily populated by students, many of whom would come and go on foot through the area in which the incident occurred at the same time of day. The incident occurred in the evening hours of St. Patrick's Day and police knew the area would be even busier with student pedestrians and that some of them would have consumed alcohol.

[4] The Appellant was an on-duty police officer driving a cruiser. He had been southbound on Division Street. He received a dispatch that Cammalleri was fleeing from and being chased by fellow on-duty Officer Fisher. The Appellant and Fisher knew that Cammalleri was a fast runner who was known to run from police. For the purpose of assisting in apprehending Cammalleri, the Appellant executed a U-turn on Division Street in the area of William Street and accelerated his vehicle to approximately 53 km/h within the block, before Johnson Street.

[5] Four independent student witnesses, who were not under the influence of alcohol, testified that the Appellant made a U-turn with his cruiser, accelerated northbound on Division Street, drove onto the sidewalk and collided with Cammalleri while he was running southbound on the sidewalk. The learned trial judge accepted their evidence.

[6] The evidence is uncontradicted that the impact between the cruiser and Cammalleri occurred on the sidewalk.

[7] Officer Fisher testified that as he was chasing Cammalleri, Cammalleri ran onto the roadway into the front right corner of the cruiser and that the vehicle was on the roadway at the point of impact. The learned trial judge rejected that evidence. The Appellant concedes that it was open to her to do so.

[8] The Appellant testified that the first time he saw Cammalleri was when Cammalleri’s body struck the windshield of his cruiser. He testified that his car was on the roadway when he hit Cammalleri. He admitted that when he stopped the cruiser, the right front tire was on the curb. He could not explain how this happened.

[9] Evidence gathered by Officer Saunders of the Kingston Police, for internal purposes, identified that the police cruiser moved in a northbound direction, from near the centerline of the southbound and northbound lanes on Division Street, to the right and onto the sidewalk.

[10] The learned trial justice concluded that the Appellant deliberately drove his police cruiser onto the sidewalk in front of Cammalleri in an effort to apprehend him.

POSITION OF THE APPELLANT

1. Speculation By the Trial Judge

[11] The Appellant submits that the learned trial judge erred in rejecting defence expert witness Brown’s opinion because it was based in part on Cammalleri’s testimony that he was running at a speed of 25 to 30 km/h. As I noted during submissions, that is a pace of a sub two-hour marathon. I note that Cammalleri’s run was over a very short distance. The learned trial justice rejected that speed estimate. It was reasonably open to her to do so as an exaggeration.

[12] The Appellant submits that the learned trial justice erred in rejecting the evidence of Brown because his larger point was that the Appellant had no time to react in the circumstances. I note that there is physical evidence on the record indicating braking before impact even though the Appellant did not remember braking.

[13] Cammalleri testified that the collision happened very quickly, thus supporting the Brown opinion.

[14] The Appellant submits that the learned trial judge’s findings that it was “reasonable to infer” in respect of five matters was error.

[15] He submits that she erred in finding that it was “reasonable to infer” that if Cammalleri saw the cruiser, then the Appellant saw Cammalleri especially because he was looking for Cammalleri to be running southbound on the east side of Division Street. (Para. 87).

[16] The Appellant further submits that the learned trial judge erred in finding that it was “reasonable to infer” the Appellant anticipated Cammalleri would be running on the east side of Division Street because of where The Spot nightclub was located. (Para. 94).

[17] He submits that she erred in finding that it was “reasonable to infer” that if Cammalleri knew the Appellant could not catch him while he was running if the Appellant had to stop his vehicle, park it, get out of the vehicle and chase him, then the Appellant knew that too. “Wilby knew that his only chance of apprehending Cammalleri was to obstruct his path on the sidewalk, and that's what he tried to do. He didn't mean to hit Cammalleri, but he made a U-turn, sped up and mounted the sidewalk because he meant to catch him. That's what all the independent witnesses say he did and I believe them.” (Para. 89).

[18] The Appellant submits the learned trial judge erred in finding that it was “reasonable to infer, based on Wilby’s stated intention, which was to assist in Mr. Cammalleri’s apprehension, that he deliberately steered his vehicle onto the sidewalk to obstruct him and prevent him from escaping.” (Para. 94).

[19] The Appellant further submits that the learned trial judge erred in finding that it was a “reasonable inference” that the Appellant's maneuver onto the sidewalk was deliberate. I note that she found “it was not a reaction to a perceived hazard … (Having rejected Fisher's evidence in this regard) … (Brown’s) darting out theory that Wilby braked in reaction to a hazard and mounted the curb after braking hard is simply without any evidentiary foundation.” (Para. 95).

2. Harsher standard of scrutiny to defence evidence

[20] The Appellant submits that the trial judge should not have weighed against him the fact that he moved his vehicle after the collision, and that after the incident while there was an ongoing SIU investigation, he stopped his car and called Cammalleri over to speak to him. He submits that there is no rule against moving a vehicle following a collision and there was no prohibition against the officer from speaking to Mr. Cammalleri. The judge also noted that the Appellant’s evidence as to his speed and distance was vague yet he testified that he was traveling 50 km/h. The Appellant was critical that at trial the Appellant testified that the lighting at the intersection of Division and Johnson Street was not very good yet in his statement to the SIU he testified it was good. Officer Saunders also testified that the lighting was good in the area of the incident.

[21] The Appellant submits that that is a harsher standard than she applied to Cammalleri, who admitted to drinking that night, fleeing from the police, had a criminal record and was suing the police as a result of the incident.

[22] The Appellant also criticized what he submitted was a different standard applied to the evidence of the two expert witnesses.

[23] The Appellant also criticized the trial judge for finding in favour of Cammalleri’s credibility, although in his earlier statement, he did not say he had been on the sidewalk when he was struck yet rejected Fisher’s credibility when he failed to indicate that the collision was on the road in his initial notes and will say statement.

3. Unreasonable verdict

[24] The Appellant submits that even accepting that the trial judge accepted the Crown's case at its highest, those facts do not support a case of a criminal conviction for dangerous driving.

[25] The Appellant stresses that the incident occurred at night, within 3 seconds, that the Appellant was driving at 50 km/h, according to both experts and that Cammalleri said he had no time to get out of the way.

[26] An alternative reasonable and logical inference available on the evidence, was that the officer was caught by surprise, and made an intuitive, not deliberate reaction.

POSITION OF THE CROWN

[27] The Crown submits that the overarching issue on the appeal is whether the trial judge's finding that the Appellant's choice to deliberately drive onto the sidewalk in order to assist his fellow officer and to apprehend Cammalleri was a reasonable one, supported by the evidence.

[28] The Crown points out that the streets were busy with pedestrians celebrating St. Patrick's Day, which would involve the consumption of alcohol.

[29] The Crown points out that the Appellant testified that he knew Cammalleri and Fisher were running right towards him. Cammalleri testified that he saw the cruiser on the road and he assumed that he would be able to run right by it by staying on the sidewalk. He was adamant that he was hit while on the sidewalk. The trial judge rejected Fisher's evidence that Cammalleri was on the road. The independent lay witnesses called by the Crown, all identified the cruiser as being on the roadway, but then striking Cammalleri on the sidewalk.

1. Speculation By The Trial Judge

[30] With Cammalleri found to be on the sidewalk, there was no hazard on the roadway for the Appellant to steer to the right to try to avoid. The Crown submits that the trial judge’s inference that the Appellant intended to drive up onto the sidewalk in order to help his fellow officer apprehend the fleeing Cammalleri is a reasonable one. There was no other reason to take evasive action.

[31] The evidence of the lay witnesses and Cammalleri that he was on the sidewalk when he was struck was open to be accepted by the trial judge. She rejected Fisher's contrary evidence, and Brown’s darting out theory because of the running speed of Cammalleri that he used to conclude that the Appellant would have had no time to react only intuitively or by instinct.

[32] The Crown submits that there was no other reasonable or plausible explanation for the police cruiser to swerve to the right except a deliberate choice made by the Appellant to block Cammalleri’s path as he fled from Fisher.

2. Harsher scrutiny.

[33] The Crown submits that it was open to the trial judge, having accepted the Crown evidence, to reject the defence evidence that he did not intentionally drive up onto the sidewalk. He submits there was no evidence to support Brown's conclusion that the Appellant instinctively braked in reaction to the hazard of Cammalleri running out onto the road in front of the cruiser and then swerved to his right. The only evidence of Cammalleri being on the road was that of Fisher which was rejected.

3. Unreasonable verdict.

[34] The Crown submits that there are no other reasonable or plausible inferences other than the Appellant chose deliberately to drive up onto the sidewalk to apprehend Cammalleri. He submits that even though the decision to do so and then doing so occurred within a very short timeframe, such driving in all of the circumstances proves the offence of dangerous driving.

[35] The Crown submits there was no compelling reason to catch Cammalleri on this occasion, so as to warrant considering the officer's actions as necessary in the line of duty. The Crown submits that a reasonably prudent person would recognize this driving as criminally dangerous driving.

ANALYSIS

1. Speculation by the trial judge

[36] The learned trial judge was entitled to reject Cammalleri’s estimate of his running speed. The evidence was that he had consumed marijuana and 14 beers that evening and he said he was running at a speed of 25 to 30 km/h.

[37] Dalton Brown's calculations and opinion were based on that speed estimate, and therefore, the learned trial judge was entitled to reject his opinion that the Appellant had time only to act intuitively without planning or deliberation.

[38] The learned trial judge was also entitled to reject Fisher's evidence that the collision occurred on the road surface.

[39] The evidence supports the learned trial judge's finding that the cruiser travelled from near the center of Division Street in a northbound direction from left to right onto the sidewalk before colliding with Cammalleri.

[40] Having made those findings supported by the evidence, “it was open to the trial judge to draw inferences that reasonably and logically flowed from the facts established by the evidence.” R. v. MacIssac 2015 ONCA 587, [2015] O.J. No. 4538, para. 46. The reasonable and logical inference is that the Appellant drove into the path of Cammalleri because he was on duty, he heard the call for assistance from his fellow officer, he was looking for Cammalleri to aid in his apprehension, he knew that Cammalleri was running and that he was a fast runner who could outrun the police, and he knew there was a connection with The Spot which was on the right side of northbound Division Street. Having rejected the darting out theory and that the impact occurred on the roadway, there was no other reasonable and logical inference as to why the cruiser proceeded from left to right.

2. Harsher scrutiny

[41] With respect, I find that the learned trial judge's analysis in resolving the issues of credibility arising from the Appellant’s testimony and that of Cammalleri was reasonable, balanced, thorough, and supported by the evidence. Her reasons clearly articulated why she made the findings that she did. In my view, the same can be said with respect to her analysis and conclusions with regard to the differences between the testimony of the experts and in regard to Fisher's evidence that his notes indicated the collision occurred on Division Street, yet his statement to the SIU and evidence at trial was that it occurred on the road, and Cammalleri’s evidence that the impact occurred on the sidewalk yet he told the police he was running on Division Street. Her reasons indicate that she considered the differences and she articulated why she made the findings that she did. The evidence supports her findings.

[42] I disagree with the Appellant's assertions that this is a case similar to R. v. Gravesande 2015 ONCA 774. I do not find that in the present case, the trial judge's reasons “demonstrate a degree of scrutiny of the prosecution evidence that was tolerant and relaxed as compared to the irrelevant, tenuous and speculative observations largely about collateral matters applied to unfairly discount the Appellant's evidence.” Para. 42. In that case, the Court of Appeal made it clear that the “different standards of scrutiny” argument is a difficult argument to succeed on in an appellate court. It is difficult for two related reasons: “credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably viewed this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge’s credibility determinations.” Para. 18. The court went on to say that for an Appellant to successfully advance this ground of appeal, he or she must “identify something clear in the trial judge's reasons or the record indicating that a different standard of scrutiny was applied in something sufficiently significant to displace the deference due to a trial judge's credibility assessments.” Para. 19.

[43] The facts in Gravesande clearly demonstrate speculation and a different standard of scrutiny. Examples in that case, include, the trial judge's conclusory statement, “why, the question must be asked, with a lawyer who is in good standing, be so foolish as to take the chance to bring drugs into a jail and give them to a former client?” The trial judge indicated that he could not point to an area of the Appellant's examination in chief or cross examination where he would say that his evidence was implausible or unbelievable. Yet, the trial judge went on to say “that does not mean I found his evidence compelling enough to say I believed him or that it left me in a state of reasonable doubt.” That sounds a lot like the trial judge in that case reversed the burden of proof. That trial judge also considered irrelevant things such as the Appellant suffering from depression, not remembering his exact income, and bringing only a thin file to the jail with him. In that case, the trial judge did not analyze the evidence of two other correctional officers whose observations of the Appellant differed from those of Beaulieu. He did not analyze the fact that the search conducted by Beaulieu did not comply with procedure. These are serious relevant difficulties with Beaulieu’s evidence.

[44] In the Appellant's case, the learned trial judge considered the relevant evidence and made findings, which were supported by the relevant evidence. I find that her stated reasoning as to which evidence she accepted is sound, balanced and consistent with proper judicial fact finding. The Appellant's case is not one where the trial judge found that a witness was credible, although had been “shaping his evidence”, para. 41. It is not a case where the trial judge rejected the Appellant’s “otherwise credible evidence on the basis of weaknesses which even the trial judge admitted were small and inconsistent.” In Gravesande, the trial judge rejected the evidence of the Appellant as not “compelling enough to say that I believe him.” Para. 41.

[45] In the Appellant's case, the learned trial judge’s analysis and fact-finding are in sharp contrast to those in Gravesande.

[46] The Court of Appeal in that case took a close look at the trial judge’s analysis. The consequences of conviction were serious for that accused. The same can be said in the present case and I too have taken a close look at the trial judge’s analysis. I have carefully considered the words of the Alberta Court of Queen's bench in R. v. Brander [2003] A.J. No. 1112, paras. 91 and 92.

3. Unreasonable Verdict

[47] The Appellant’s stated goal was to apprehend Cammalleri. He knew that Cammalleri was a fast runner and could out run the police. For the reasons that I have given already, I disagree with the Appellant's position that the trial judge engaged in impermissible speculation. The inferences that she drew were reasonable, logical, and supported by the evidence, which she accepted.

[48] I cannot accept the Appellant's position that another reasonable and logical inference was open to the trial judge, namely that the Appellant acted through instinct, without thought, causing the cruiser to travel from left to right, in the absence of any hazard on the roadway, or other reason to do so.

[49] The learned trial judge was alive to the circumstances including that this was a student area of the city. It was usually busy at this time of night. It was particularly busy because it was St. Patrick's Day. There were pedestrians on the sidewalks. The consumption of alcohol was at play. The officer made a deliberate U-turn for the purpose of assisting his fellow officer in apprehending a fast runner who was fleeing from police. He was looking for Cammalleri and thought that he had some involvement with The Spot which is on the same side of Division Street as the point of impact. It was a well lit area. There was no hazard on the roadway. The officer accelerated his cruiser from a U-turn to 53 km/h in less than one short block and the cruiser travelled from left on the roadway to the right toward and in the direction of the sidewalk.

[50] Her conclusion that “he decided to drive his vehicle on the sidewalk to obstruct Mr. Cammalleri’s path” was reasonable and logical and supported by the evidence. It was the only reasonable and logical inference available on the record in view of her findings.

[51] There was no pressing need for Cammalleri’s detention. He was wanted on a warrant for mischief. He was not engaged in, or fleeing from the commission of a serious crime. He posed no risk to police or the community.

[52] The learned trial judge applied the test for dangerous driving, set out in R. v. Roy 2012 SCC 26, [2012] 2 S.C.R. 60.

[53] Although the time frame was brief, a matter of seconds, and the distant short, the Supreme Court of Canada in R. v. Beatty 2008 SCC 5, [2008] 1 S.C.R. 49, para. 47 endorsed Justice Doherty’s decision in R. v. Willock (2006), 210 C.C.C. (3d) 60 (Ont. C.A.), para. 32, that conduct during a 2 or 3 second timeframe could constitute dangerous driving “if the Appellant deliberately jerked the steering wheel to cause the vehicle to swerve, presumably to either show off or frighten his young passengers. If that finding was reasonably open on the evidence, then the Appellant could properly have been convicted of criminal negligence, as he was unable to regain control of the vehicle before it crossed the median and collided with the westbound vehicle.”

[54] The Appellant submits that the alternative inference that the Appellant was caught by surprise when Cammalleri rounded the corner, that he slammed his brakes instinctively, and unintentionally skidded the cruiser from the road partially onto the sidewalk due to the force of his braking was not only available on the evidence, but was the more plausible conclusion. The Appellant did not testify to doing that or even seeing Cammalleri until he impacted with the windshield of the cruiser. The learned trial judge made no reversible error in rejecting that position.

[55] I find no reversible error in fact or in law on the part of the learned trial judge.

DECISION

[56] For these reasons, the appeal was dismissed.

Honourable Mr. Justice Gary W. Tranmer

Released: June 13, 2016