CITATION: HMTQ v. Gillies, 2017 ONSC 643

COURT FILE NO.: SCA 8616

DATE: 2017-01-26

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty The Queen, Respondent

AND:

Derek Gillies, Appellant

BEFORE: The Honourable Mr. Justice P.J. Flynn

COUNSEL: D. R. Witmer, Counsel for the Appellant

A. Sethi, Counsel for the Respondent

HEARD: December 22, 2016

APPEAL BOOK ENDORSEMENt

[1] The Appellant was convicted by Woolcott, J. of dangerous driving, driving while disqualified and breach of probation as a result of an incident on July 16, 2014. He was sentenced to 12 months’ custody, 2 years’ probation and a 6 year driving prohibition. The Appellant appeals his conviction. He has served the custodial part of his sentence.

[2] He says that the critical turning point in the trial judge’s reasons is when she “perceives” the defence witness was in “error as to which direction the car was facing” when parked in front of 252 Dolph Street, Cambridge.

[3] The Appellant argues:

(i) that the trial judge misapprehended the evidence of Ana Munoz, thus causing a miscarriage of justice;

(ii) that the trial judge preferred the evidence of the police witness, P.C. Gaiser, over that of the defence witness, Munoz and thus improperly applied the law;

(iii) that the trial judge applied a higher standard of scrutiny in assessing the evidence of the defence witness Munoz than that used to assess the credibility of Cst. Gaiser; and

(iv) that the trial judge resorted to speculation in determining the credibility of the defence witness Munoz.

[4] For these brief reasons, I would dismiss the appeal. In my view, The Honourable Trial Judge carefully reviewed the evidence, scrutinized it in a fair and proper manner, and made reasonable inferences and findings of fact and credibility to which this court must defer. Moreover, the reasons she gave for those findings do not demonstrate speculation on her part.

[5] In an exchange with counsel during the hearing of the appeal, I advised Mr. Witmer that he faced twin peaks of difficulty:

(a) this court’s defence to the trial judge’s factual findings and assessment of credibility; and

(b) trying to convince this court that the verdict was unreasonable, which is the one circumstance where the Appellate Court can intervene in the face of those findings.

[6] In my view, the Appellant has failed to surmount these massive obstacles.

Misapprehension of Evidence

[7] Mr. Witmer cited the correct legal test from Doherty J.A. in R. v. Morrissey (1995), 1995 3498 (ON CA), 97 CCC (3d) 193 (OCA):

Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a ‘true’ verdict. Convictions resting on a misapprehension of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice …

[8] But before a conviction can be set aside for misapprehension of evidence, the appellant must show that the judge misapprehended the evidence, that this misapprehension was material rather than peripheral to the reasoning of the trial judge and that these errors played an essential part in the reasoning for conviction.

[9] And this is where the Appellant goes wrong.

[10] I agree with the Crown as to the whole context of where and how the car was parked before Ms. Munoz got into the front passenger seat and (the then unseen) the Appellant got into the driver’s seat.

[11] The trial judge was certainly alive to all of the issues regarding the placement of the parked vehicles.

[12] In my view, it cannot be said that the trial judge materially misapprehended the evidence. And if there were any misapprehension here about the direction the car was facing, it would be at best peripheral.

[13] Moreover, when one considers the evidence of Cst. Gaiser about the placement of the Gerry can, Ms. Munoz simply couldn’t be right as to how the car was parked.

[14] As to the other grounds, while it must be obvious that trial judges must often ‘prefer’ the evidence of one witness over another when they make findings of fact or draw certain inferences, in my view, the trial judge did not subject Ana Munoz’s evidence to a higher level of scrutiny than the evidence of Cst. Gaiser, nor improperly prefer Cst. Gaiser’s evidence.

[15] In my view, the trial judge’s reasons show that she paid careful attention to what was said by each witness. She had the distinct advantage of observing the witnesses and the manner in which they testified.

[16] I would defer to the trial judge.

[17] I find no palpable and overriding error in her assessment of the evidence.

[18] I would reject the Appellant’s argument on both these grounds without further comment.

[19] I would likewise reject the Appellant’s argument that the trial judge engaged in speculation that went to the core of her reasons for conviction.

[20] I therefore dismiss the appeal.

P.J. Flynn J.

Date: January 26, 2017