Court File and Parties
Court File No.: CR-16-1733
Superior Court of Justice
Her Majesty the Queen
v.
Trevor Khan
Reasons for Judgment
Before The Honourable Justice M. Fairburn
On April 3, 2017 at Brampton, Ontario
Appearances:
D. Beaton Counsel for the Crown
M. Forte Counsel for Trevor Khan
Table of Contents
Witnesses
Witness: Examination In-Chief Cross-Examination Re-Examination
Exhibits
Exhibit Number Entered on Page
Reasons for Judgment 1
Transcript Ordered: ....................April 10, 2017 Reasons Submitted for Review:...........April 12, 2017 Reasons Returned: ......................April 18, 2017 Reasons Submitted for Review: ..........April 30, 2017 Reasons Returned: ......................May 3, 2017 Transcript Completed: ..................May 4, 2017 Ordering Party Notified: ...............May 5, 2017
Reasons for Judgment
Monday, April 3, 2017
Fairburn, J. (Orally):
(I) Overview
On December 29th, 2015, the driver of a stolen SUV ran a red light and crashed into another vehicle. The SUV driver got out and ran north. Shortly after the man ran from the vehicle, Mr. Khan was discovered running in a field to the northeast of the intersection. He was arrested and now faces four charges.
- Failing to stop for a peace officer under section 249.1(2);
- Dangerous driving under section 249(1)(a);
- Possession of a stolen vehicle under section 354(1)(a) and;
- Fail to stop under section 252(1).
Counsel are in agreement that this case turns on identification. If I am satisfied beyond a reasonable doubt that Mr. Khan was the driver of the SUV then it is agreed that he is guilty of each offence. If I have a reasonable doubt on this issue, it is agreed that I must find him not guilty of each offence.
(II) General Facts
An agreed statement of facts revealed that during the evening of December 28, 2015, a silver Honda CRV was stolen from Woodbine Race Track. There is no dispute that this is the vehicle involved in the crash.
When it was searched following the crash, Mr. Khan's health card was found in the vehicle, as were bags of clothing belonging to him.
At just after 8:00 a.m. on December 29th, Cst. Patrick Chatelain of the Ontario Provincial Police was patrolling northbound on Cawthra Road. He noticed the SUV driving northbound at a high rate of speed. He paced the vehicle for about 300 metres and clocked it going about 110 kilometres an hour, in a 50 kilometre per hour zone. The officer activated his emergency lights and siren.
Cst. Chatelain testified that it was raining and that the roads were slick and slushy. He acknowledged that he was unable to see into the vehicle and could not say how many people were inside.
After the SUV shot through two red lights, and owing to public safety concerns, the officer ended the pursuit. He pulled over and called dispatch. About a minute after discontinuing his pursuit, still facing northbound on Cawthra Road, Cst. Chatelain saw flashing lights. He proceeded northbound on Cawthra to Eastgate Parkway. When Cst. Chatelain arrived at the intersection at about 8:04 a.m. he saw someone in handcuffs. This was Mr. Khan.
Caroline Bordin was waiting at a red light, facing northbound on Cawthra at Eastgate. She was positioned in the centre of three northbound lanes when the SUV blew by her on the right side. She saw the SUV crash into Michael Williamson's car travelling eastbound on Eastgate. Mr. Williamson's vehicle took a direct hit on the passenger side and came to rest northbound on Cawthra. Mr. Williamson was injured, including suffering a broken rib. His glasses came off and he was unable to make observations after he had been struck.
Tao-Yin Wan and her daughter were en route to a hockey game. They were facing eastbound on Eastgate, waiting to turn north onto Cawthra when they were hit. Cst. Jeremy Maehler was sitting in his Peel Regional Police vehicle facing westbound on Eastgate and waiting to make a turn southbound onto Cawthra. Just before the accident, he saw the stolen SUV travelling fast northbound on Cawthra. Cst. Maehler's police cruiser was struck by another vehicle. All told, the driver of the SUV set off a chain of events that resulted in a four-vehicle crash.
(III) Following the Crash
I will now review the events following the crash. Ms. Bordin is the only person who had her eyes trained on the SUV after it came to rest on the north side of Eastgate, just east of Cawthra. She testified that it was the worst thing she had ever seen. The SUV was positioned facing northeast. She testified that it was a bright day and there was good visibility. She later revised this evidence to say that she was not sure about the weather.
Ms. Bordin testified that she could see the driver's side door as it was closest to her. She could not see the passenger's door.
While it was not in her original statement she testified that she saw a man get out of the driver's door and run northbound on the east side of Cawthra toward the 403. He ran on the east side of a barrier, clearly visible in the pictures. She did not see anyone else get out of the SUV. While she did not know if someone else was in the SUV, she did not see anyone but a slim, white male with a fair complexion and a bright green and blue jacket emerge from the driver's door. About 20 to 30 seconds later, possibly less, she saw a police officer, who she identified as Cst. Maehler, running after the man who had emerged from the driver's door. These were the only two men she saw running.
Ms. Bordin agreed that at the preliminary inquiry she testified that she was surprised to see Mr. Khan's skin tone because she thought that the man she had seen was fairer than Mr. Khan. She testified as follows: "I cannot say who exited that vehicle. All I know is somebody exited the driver's side of that car and started running."
After being hit, Cst. Maehler placed a radio call from inside his cruiser. He then exited very quickly, estimating that it would have been within seconds of the crash. He saw a woman at the southwest part of the intersection and she called out that a man from the SUV had run northbound. The officer made another radio transmission and then ran to the northeast part of the intersection, which he described as elevated and looking down into a field. Despite the fact that it was lightly raining at the time, he could see a fellow officer chasing a male party in the field. The officer continued running northbound on Cawthra. The man was wearing a blue top and dark pants. He identified the male as Mr. Khan.
Cst. Maehler testified that there was no pedestrian traffic that morning and that it was very uncommon to see pedestrians in the area. He did not see anyone standing or sneaking around.
Ms. Wan testified it was raining out when the accident occurred. She was sitting in her car when she saw a man running northbound on the east side of Cawthra and thinks she saw another man chasing him. As for the first man, who she definitely saw, she believes he ran on the west side of a barrier and then jumped over it, moving toward the east into a field. As for the second person, she is not clear whether it was a male or a female. She could not say whether the second person, if there was one, was chasing the first. What caught her eye was the first person running because it was a “cold, awful, awful winter rainy day.” An accident had just occurred and she had no idea why someone would run up Cawthra. She later described a distance between the two people. There was nothing that led her to conclude that the second person was chasing the first. It was just, "just very odd to have two runners, even one runner on this wintry, rainy day." In the end she said that she wanted to “stick” with what she could remember, which was one person running and another, "following in my mind." She could not say whether one of the people she saw, if she saw two people, was a police officer.
Cst. Reid was driving along the MiWay, a special road built for Mississauga Transit buses. Just after 8:00 a.m. Cst. Reid was driving eastbound, just to the northeast of Cawthra and Eastgate. While Cst. Reid cannot recall it raining that day, he does recall that it was overcast. He saw Mr. Khan running northbound toward a concrete barrier separating the MiWay roadway from a parking area. He thought that Mr. Khan would run in front of the police car and so the officer put on his brakes. Mr. Khan cleared the barriers on the south and north of the MiWay and continued running northbound in a field.
Cst. Reid testified that he could not see anyone else in the area, including at the MiWay bus stop where Mr. Khan crossed the roadway. At the same time that he was watching Mr. Khan clear the barriers, Cst. Reid heard Cst. Maehler make a radio transmission regarding the suspect in the car crash having fled. A foot chase ensued. Cst. Reid caught up to Mr. Khan and arrested him. Mr. Khan said he had run because he knew he was wanted. He was wearing a darker blue sweater, black pants and a black hat. Cst. Reid does not recall Mr. Khan's sweater as being bright in colour.
The grass in the field came up to Cst. Reid's upper thighs. He is 6 foot 3 inches tall. He agreed that it would be possible to conceal oneself in the tall grass. Cst. Reid testified that he had a very good field of vision in almost all directions but that his view to the south was impeded by what he described as a decline. A bus shelter also created what he described as a visual barrier to the south.
As for Cst. Both, he testified that he arrived on scene within minutes of the crash. He parked his car north of the intersection on the east side of Cawthra. He went to Cst. Reid's assistance and took custody of Mr. Khan at 8:04 a.m. Cst. Both did not see anyone moving about the scene of the accident, nor did he see anyone but Mr. Khan and Cst. Reid in the field to the east of Cawthra.
Cst. Both testified that he had a good view of the field to the northeast of Cawthra and Eastgate. While there was a berm to the east of Cawthra and Eastgate, once north of it, the officer had a good view of the field.
(IV) The Issue for Resolution: Identification
As above, if I am satisfied beyond a reasonable doubt that Mr. Khan was the driver of the SUV, both parties agree that I must find him guilty of all four crimes. If I have a reasonable doubt that he was the driver, then I must acquit him of all four. Mr. Khan is presumed innocent. He started this trial with the presumption of innocence and the Crown carries the burden of displacing the presumption with proof beyond a reasonable doubt that he committed the crimes with which he is charged.
A reasonable doubt is not an imaginary, farfetched or frivolous doubt, or one based on sympathy for or prejudice against anyone. It is a doubt based on reason and commonsense and one that logically arises from the evidence or absence of evidence.
While likely or probable guilt is not enough, it is nearly impossible to prove something to an absolute certainty. If after considering all of the evidence, I am sure that Mr. Khan committed the offences, then I will be satisfied of proof beyond a reasonable doubt. If after considering all of the evidence or the absence of evidence, I am not sure that he committed the offences, then I will not be satisfied beyond a reasonable doubt.
I will now analyze the various factors that I take into account in coming to my conclusions in this regard.
First, Ms. Bordin described the person she saw emerging from the driver's side of the vehicle as a white man. I have looked at Mr. Khan. While he is not what one might describe as white, I can imagine that someone witnessing a traumatic event, and seeing the driver for only a fleeting moment as he emerged from the vehicle, could mistake him for white.
The difficulty is that Ms. Bordin did not simply describe the driver as white. She amplified upon this descriptor and said that he had a fair complexion. Having had the opportunity to see Mr. Khan for a few days, he cannot be described as someone having a fair complexion. Indeed, while I can imagine someone may confuse him for having white skin, especially after such a traumatic event, and only observing the individual for a very few seconds, it is difficult to imagine how someone could go further and describe Mr. Khan as having a fair complexion. He does not. This causes me to question whether Ms. Bordin saw someone other than Mr. Khan emerge from the driver's door.
My questions in this regard are reinforced by the fact that Ms. Bordin very fairly acknowledged that she could not say whether Mr. Khan was the driver she had seen emerge from the vehicle. In fact, during the preliminary inquiry, she expressed some surprise when she saw Mr. Khan and his skin tone.
My concern about who Ms. Bordin saw emerge from the driver's door is heightened by the fact that she describes the person as wearing a bright blue and green jacket. Yet when he was arrested, Mr. Khan was wearing what Cst. Reid describes as a darker blue sweater. Cst. Reid concedes that the sweater was not bright. As well, Cst. Maehler describes Mr. Khan as wearing a blue top at the time of arrest. There is, in my view, a significant difference between a bright blue and green jacket and a darker blue or even just blue sweater or top. It is difficult to reconcile this evidence, particularly given that the bright colours stuck out in Ms. Bordin's mind as she saw the person emerge from the driver's seat.
My concern about what Ms. Bordin saw, and who she saw get out of the driver's door, are further reinforced by Cst. Reid's evidence that Mr. Khan was wearing a black hat. Ms. Bordin did not describe a black hat or any hat on the man she saw get out of the vehicle.
While counsel pointed out that Ms. Bordin failed to describe Mr. Khan's obvious hand tattoos and the gold jewellery he was wearing at the time, I find that these are the kinds of things that could be easily missed in the wake of such a traumatic event, especially where Ms. Bordin had such little time to make her observations. These matters do not shake my confidence in the reliability of her evidence. Nor do they shake my confidence at all in the credibility of her evidence. Indeed, neither counsel questioned the credibility of her evidence. But the hat does stand in a slightly different category. Her failure to describe a hat on the man she saw get out of the driver's door causes me to further question whether this man was, in fact, Mr. Khan.
While Crown counsel elicited important evidence in an attempt to limit the possibility that a second person may have been in this SUV, I have a reasonable doubt about this fact.
While there is evidence about the fact that people were not milling about the scene of the accident, and no one else was seen in and around the field where Mr. Khan was arrested, Ms. Bordin acknowledged that she could not see the passenger’s side of the vehicle from where it had come to rest. While she said she did not see anyone else in the vehicle, the reality is that someone could have emerged from the other side, even Mr. Khan. She may not have seen this happen.
If I could be satisfied beyond a reasonable doubt that there was only one person in the stolen SUV when it crashed, then this may well be a very different circumstantial case. I have no confidence in this fact. This is particularly true given that Cst. Chatelain was unable to provide any evidence about how many people may have been in this stolen vehicle when he observed it just before the crash.
The combination of the absence of evidence coming from Cst. Chatelain and Ms. Bordin's evidence that she could not see the passenger’s side of the vehicle, mean that someone could have emerged from the other side.
My concerns over whether there may have been two people in the vehicle are enhanced by the fact that Ms. Wan saw “possibly” two people running north along Cawthra. If she saw a second person, she did not notice that it was a police officer. One would think that if she saw a second person and it was a police officer, she would have noticed that he was in uniform. Yet she made no such observation. Did she see anyone? Did she see Cst. Maehler? Did she see a second person who may have emerged from the SUV? Did she see the person who emerged from the driver's door? I simply do not know what the answers to these questions are.
I have carefully studied the pictures filed as exhibits during the trial. There is a large berm close to where the SUV came to rest. There was long grass in the field. Cst. Reid very fairly acknowledged that someone may be able to hide in the long grass. His view was also obstructed by the bus shelter down on the south side of the MiWay.
Despite Ms. Bordin's original evidence that it was a bright day, I do not accept this to be so. While the officers described the weather differently, Cst. Maehler saying it was lightly raining, Cst. Chatelain saying it was raining and Cst. Reid saying it was overcast, I find that it was raining and visibility would not have been perfect.
Indeed, I accept Ms. Wan's evidence that it was a cold, awful, rainy morning. Cst. Chatelain testified about the rain and slush by refreshing his memory directly from his notes. I find that the weather conditions were part of the determination he made about public safety and why he needed to discontinue the pursuit. The weather conditions at around 8:00 a.m. and following on December 29th, 2015, did not improve the ability to see if someone else was running away or hiding from the police.
In the end, for all of the above reasons, I am not sure that it was Mr. Khan who got out of the driver's side door. This was a dynamic scene. It was a serious crash involving four vehicles.
As Ms. Bordin noted, it was the most serious thing she had ever seen. It involved a high rate of speed, a large crash and then flight. There is no doubt that Mr. Khan was in the stolen SUV and no doubt that he took flight after it crashed. His statement that he was wanted may well explain his flight. The Crown relies upon flight only for purposes of narrative. I agree with this position taken by Crown counsel.
(V) Conclusion
In the end, I have a reasonable doubt about whether Mr. Khan was driving the stolen SUV. In their closing positions, the parties agreed that if I had a doubt about this fact, Mr. Khan should be acquitted on all counts.
Notwithstanding my finding that he was in the stolen vehicle and that he took flight after the crash, I find Mr. Khan not guilty on all counts.
Certificate of Transcript
Form 2
Evidence Act, Subsection 5(2)
I, Brenda Ferland, certify that this document is a true and accurate transcription of the recording of R. v. Trevor Khan in the Ontario Court of Justice held at Brampton, Ontario taken from Recording(s) No. 3199_308_20170403_133435__30_FAIRBUM, which has been certified in Form 1 by M. Gabriele.
May 4, 2017 (Date) (Signature of authorized person)
This certification does not apply to (i.e. Rulings, Reasons for Judgment, Reasons for Sentence, Charge), which was/were judicially edited.