CITATION: R. v. Forbes, 2017 ONSC 4666
COURT FILE NO.: CR-16-0045-AP
DATE: 2017-08-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
A. Sadler, for the Crown
- and -
MEAGAN FORBES
D. Kiesman, for the Accused
Accused
HEARD: July 5, 2017,
at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons on Appeal
Overview
[1] The Crown appeals Ms. Forbes acquittals for impaired driving and “over 80” contrary to section 253(1)(a) and 253(1)(b) of the Criminal Code.
[2] The Crown argues that the trial judge erred in ruling that the Crown could not ask a certain question of a Crown witnesses during re-examination. The Crown also argues that the trial judge erred in assessing the evidence, in assessing the presumption of care and control and in failing to conduct a “risk of danger” analysis.
[3] The Crown asks that the acquittals be overturned and replaced with a finding of guilt and an appropriate sentence or in the alternative, a new trial.
The Re-Examination
[4] In this case, identification of the driver was key.
[5] The Crown witness testified that she was able to see who was in the vehicle and identified that person as Ms. Forbes. In cross-examination, she admitted that she did not have a clear view of the driver and that at the time she saw the vehicle operating she could not see who the driver was. In re-examination the Crown asked this question: “how is it that you were able to identify Ms. Forbes as the person had been driving?” Ms. Forbes’ counsel objected to the question and, after considering submissions, the trial judge did not allow the question primarily on the ground that this question should have been asked in direct examination.
[6] Counsel agree that this statement from R. v. Candir, 2009 ONCA 915 accurately sets out the limits of re-examination:
148 It is fundamental that the permissible scope of re-examination is linked to its purpose and the subject-matter on which the witness has been cross-examined. The purpose of re-examination is largely rehabilitative and explanatory. The witness is afforded the opportunity, under questioning by the examiner who called the witness in the first place, to explain, clarify or qualify answers given in cross-examination that are considered damaging to the examiner's case. The examiner has no right to introduce new subjects in re-examination, topics that should have been covered, if at all, in examination in-chief of the witness. A trial judge has a discretion, however, to grant leave to the party calling a witness to introduce new subjects in re-examination, but must afford the opposing party the right of further cross-examination on the new facts: R. v. Moore (1984), 1984 CanLII 3542 (ON CA), 15 C.C.C. (3d) 541 (Ont. C.A.), at p. 568. [Emphasis added.]
[7] Since identity was key, I do not disagree with the trial judge’s conclusion that the proposed question should have been asked in direct examination.
The Reasons
[8] Ms. Forbes made some admissible spontaneous statements to the police officer. She said she went to the vehicle to smoke a cigarette and started the car to listen to music. She then remembered someone breaking out the side window of the vehicle and removing her from the vehicle.
[9] The trial judge stated:
That statement, coupled with the circumstances establishes, in my opinion, by her own admission that she was behind the wheel of the motor vehicle. However, I am further satisfied that Ms. Forbes has, on a balance of probabilities, rebutted that she occupied the driver’s seat for the purpose of putting vehicle in motion. Although Ms. Forbes did not testify, the court reviewed her statements and the two audio-visual police recordings relied upon by the Crown. Respecting her statements, Ms. Forbes told the police that she left her home and went into the vehicle to get away from someone who is mad at her, listen to music, and to have a cigarette. She repeatedly stated on the police video recordings that she never intended to put vehicle in motion, although she did start the vehicle to listen to music, and obviously on January 15, when I heard from the police that it was very cold that evening, the heat.
The evidence as to what really happened that evening has left the court with confusion and led to reasonable doubt that Ms. Forbes created a realistic risk of danger to persons or property. I was particularly confused by the 911 caller, Ms. Lozinski. She was a neighbour to Ms. Forbes and she repeatedly referred to the driver as a “he” also referencing that this male was ramming four cars in the driveway. Ms. Lozinski could not identify the vehicle that was doing the ramming other than to say it was a dark vehicle. Admittedly, in her cross-examination evidence Ms. Lozinski agreed that she could not see the driver, although she could see two persons.
[10] The trial judge reviewed Ms. Lozinski’s 911 call in which she described a “great big fight going next door to my house.”
[11] Relying upon R. v. Boudreault, 2012 SCC 56, the Crown argues that because Ms. Forbes admitted starting the vehicle while intoxicated she should be convicted because of the “realistic risk of danger” – “anyone found inebriated and behind the wheel with the present ability to drive will – and should – almost invariably be convicted.” [para. 45]
The Law -Summary Conviction Appeals
[12] In R. v. Boily, 2015 ONSC 4427, Gauthier J. clearly and succinctly set out the legal principles applicable to summary conviction appeals.
27 The standard of review on a summary conviction appeal is whether, based upon the evidence, the decision made by a trial judge is a finding that COULD have been reasonably reached. A court sitting on appeal should only allow an appeal of the decision if:
a. the decision cannot be supported by the evidence, or it is clearly wrong in law, or
b. it is clearly unreasonable, or
c. there was a miscarriage of justice.
R. v. Rivera, 2011 ONCA 225, [2011] O.J. No. 1233 (Ont.C.A.) paragraph 32 (my emphasis).
28 Where a misapprehension of the evidence is alleged, appellate interference is only warranted where the misapprehension is material rather than peripheral to the reasoning of the trial judge. The error must play an essential part of, not only the narrative, but of the reasoning process which resulted in the acquittal. A mere misstatement of or an inaccuracy in the trial judge’s treatment of the evidence does not constitute reversible error. A misapprehension of evidence may refer to a failure to consider evidence relevant to a material issue, a mistake concerning the substance of the evidence, or the failure to give proper effect to the evidence. R. v. C.R., 2010 ONCA 176, [2010] O.J. No. 911 (C.A.) at paras. 29 to 32. R. v. Morrisey, 1995 CanLII 3498 (ON CA), [1995] O.J. No. 639 (C.A.) at para. 83. R. v. C.L.Y., 2008 SCC 2, [2008] S.C.J. No. 2 at para. 19. R. v. J.H., 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.) at para. 46.
29 On matters of credibility and on factual matters, the reviewing court ought to afford due deference to the advantageous position of the trial judge who heard and saw the evidence.
32 In order for me to substitute the verdict of guilty for the acquittal, I must find that the trial judge’s findings of fact support a conviction beyond a reasonable doubt. R. v. Katibak, (2011) 2011 SCC 48, 88 C.R. (6th) 1, 276 C.C.C. (3d) 1 (S.C.C.). All of the findings of fact necessary to support the verdict of guilty must have been made either explicitly by the trial judge or not be in issue. R. v. Cassidy (1989), 1989 CanLII 25 (SCC), 71 C.R. (3d) 350, 50 C.C.C. (3d) 193 (S.C.C.).
33 In order for me to order a new trial, I must conclude that the judge’s error had a material bearing on the verdict of acquittal. R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609.
Analysis and Disposition
[13] I find no error in the trial Judge’s reasons. Her reasons are premised upon her findings of fact central to which was Ms. Lozinski’s observation of a “great big fight” and multiple persons.
[14] The acquittal is supported by the evidence called by the Crown and is not clearly unreasonable. The decision by the trial judge is one which could have been reasonably reached. The uncertainty with respect to the facts led to the exception to the Boudreault “rule”.
[15] This appeal is therefore dismissed.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: August 1, 2017
CITATION: R. v. Forbes, 2017 ONSC 4666
COURT FILE NO.: CR-16-0045-AP
DATE: 2017-08-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MEAGAN FORBES
Accused
REASONS FOR JUDGMENT
Newton J.
Released: August 1, 2017
/lvp