CITATION: R. v. Botelho, 2017 ONSC 6502

COURT FILE NO.: Crim Motion(P) 354/17

DATE: 2017 11 01

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Peter Maund, for the Applicant

Applicant

• and -

ANTHONY BOTELHO

Aarika Heath, for the Respondent

Respondent

HEARD: September 22, 2107

REASONS FOR RULING ON CERTIORARI APPLICATION

Justice Thomas A. Bielby

INTRODUCTION

1The Crown has brought this application seeking an order of mandamus in aid of certiorari, to quash the order of Justice K.L. Hawke of the Ontario Court of Justice made on February 17, 2017. Therein the Judge, following a preliminary inquiry, discharged the Respondent, Anthony Botelho, from the charge of, dangerous driving causing death, contrary to s. 249(4) of the Criminal Code.

2The Applicant further seeks an order directing the preliminary hearing Judge to order the Respondent to stand trial on the additional charge of dangerous driving while street racing, causing death contrary to s. 249.4(4).

3The offence is alleged to have occurred on November 29, 2014, at approximately 2:30 am. The preliminary hearing was held on February 1st, 2nd and 3rd, 2017.

4Hawke J. found that there was no admissible evidence upon which a reasonable and properly instructed jury could find the Respondent guilty of dangerous driving. The Crown submits that, in doing so, the hearing Judge committed a number of jurisdictional errors.

5It is the theory of the Crown that on the night in question the Respondent was street racing with the deceased, Eric Dhandhari. Both were operating Honda Civics northbound, in close proximity, on Summerlea Road, in Brampton. A collision occurred between the two vehicles, causing the deceased to lose control of his vehicle and crash into a utility pole, which collision caused his death.

6Both the deceased and the Respondent worked at the Faurecia Emissions Control located on Summerlea Road just north of Walker Road. The incident occurred shortly after they left work, their shift ending at 2:00 am.

7The evidence at the preliminary included the evidence of two civilian witnesses, one of whom saw the alleged driving at the beginning and another who observed the end of the alleged race.

8The Crown, through the evidence of PC Mladen of the Peel Police, introduced surveillance videos taken from commercial buildings fronting on Summerlea and sought to introduce as evidence multiple collision scene photographs.

9The surveillance video allegedly depicts both vehicles travelling northbound on Summerlea in close proximity to each other. The Crown also submits that the vehicles were travelling at a high rate of speed.

10Summerlea is a two lane, well lit road, with one lane in each direction and a 50 kph speed limit. Weather was not an issue.

EVIDENCE

11It was admitted at the preliminary hearing that there were two vehicles travelling northbound, a white Honda Civic driven by the Respondent, and a silver Honda Civic driven by the deceased.

12It was the evidence of Mr. Sharma, who also worked at Faurecia that, after his shift finished at 2:00 am, he was in the parking lot waiting for his car to warm up. He observed two cars on Summerlea Road near the south entrance of the lot onto Summerlea. They were side by side, facing north. A white Honda was to the right of a vehicle he could not describe.

13The witness testified that it seemed like the two cars were racing but he could not be sure. He went on to say that both vehicles proceeded 200 to 300 metres northbound at a normal speed before stopping side by side adjacent to the north entrance to the lot. They remained stopped in that position for 20 to 30 seconds when one car proceeded followed by the other in 10 or 11 seconds. Both seemed to be travelling at a normal speed.

14Mr. Sharma lost sight of the vehicles after that.

15Mr. Saud was a civilian witness and on the evening in question he was operating a tractor-trailer northbound on Summerlea. He waited on a red light at the intersection of Summerlea and Clark Boulevard with the intention of turning left. He observed a white Honda behind his truck proceeding northbound, travelling at a speed of 70 or 80 kph.

16Mr. Saud then noticed an additional light coming from behind his truck. It was the headlights of a grey or silver Honda travelling northbound in the southbound lane of Summerlea beside the white Honda. He testified that this car was initially 100-150 metres behind the white one and was, he thought, attempting to pass the white Honda.

17At that time of the day Mr. Saud thought the normal speed on Summerlea, was 60-70 kph.

18As Mr. Saud commenced his left turn he heard a loud crash and looked back. He observed the white Honda spinning in the roadway and the grey Honda had hit a utility pole. The witness exited his truck to assist and as he approached the scene he heard the Respondent shouting, "He's my friend, he's my buddy."

19The Respondent then called 911 and emergency responders were dispatched.

20As noted, surveillance video footage was recovered from Faurecia along with footage from a number of other commercial enterprises along Summerlea.

21In the Faurecia video the Respondent and the deceased are observed leaving the building and getting in their cars. The Respondent's vehicle is observed leaving the lot, followed by the deceased, onto northbound Summerlea where it stops in the middle of the road for no apparent reason.

22L.V. Lomas is a company located at 99 Summerlea, north of Faurecia and one kilometre south of the intersection of Summerlea Road and Barton Court. The Lomas video depicts the two cars northbound side by side on Summerlea, at the same speed, and then they slow to a stop in the middle of the roadway for no apparent reason.

23After a short period of time both vehicles begin to accelerate forward at the same time and exit off camera.

24Paccar is a company located on Summerlea, north of Lomas. On the Paccar video a tractor-trailer is observed northbound on Summerlea and less than a minute later, two cars are observed travelling northbound at what the Crown alleges is a high rate of speed. One car is ahead of the other but both are in close proximity of each other. The vehicles exit the frame allegedly six seconds after first appearing.

25Seven or so minutes thereafter a police car and ambulance are observed travelling northbound on Summerlea at a high rate of speed. The ambulance exits the video frame eight seconds after entering.

26Another company located on Summerlea is Anti-Friction and its camera angle looks down northbound Summerlea. A tractor trailer is observed travelling northbound on Summerlea after which the two Hondas can be observed entering the frame, allegedly at a high rate of speed. One is ahead of the other but they are within one or two car lengths of each other. The vehicles exit the frame within five seconds.

27Thereafter an ambulance and police car are observed northbound at a high rate of speed, the ambulance taking eight seconds to exit the frame.

28PC Mladen gave evidence in regards to distance and speed, in regards to the Anti-Friction video, and using landmarks captured by the camera. He measured from one point on the roadway which he identified as ninety degrees into the roadway from a flag pole as a starting point. He measured ninety degrees from another flagpole further north of the first flag pole and testified that the distance between the two points is 106 metres.

29The officer testified that by observing the video he determined that it took three seconds for the vehicles to travel the measured distance between the two poles and calculated the speed of the vehicles to be 126.9 kilometres per hour.

30Photographs of the collision scene were lead through PC Mladen. They allegedly depict the following:

(a) Tire marks on Summerlea from the southbound lane into the northbound lane, over a curb on the southeast corner of the intersection with Barton Court, over the curb on the northeast corner terminating at the point of the collision with the utility pole.

(b) The deceased's silver Honda Civic after the collision, depicting catastrophic damage to the vehicle and the utility pole imbedded into the front passenger side of the vehicle. The body of the deceased is observed in the driver's seat.

(c) The white Honda Civic owned by the Respondent on the roadway with damage to the rear driver's side of the vehicle.

31Hawke J. ruled that the only photographic evidence that was to be admitted were the pictures of the damage to the white Honda's left rear quarter panel. She found the pictures of the tire marks and the deceased's vehicle to be inadmissible.

32It was Hawke J.'s opinion that there was no expert evidence called by the Crown necessary to interpret the pictures. She ruled the photos are not self-evident and an ordinary person would require assistance to assess them. Without such expert opinion the photos were irrelevant and therefore inadmissible.

33She further ruled that the pictures of the deceased's car were highly prejudicial and had no probative value.

34Returning to the evidence of PC Mladen and his calculation of speed, the Applicant submits that Hawke J. did not understand the evidence of the officer and intervened improperly in the evidence by questioning PC Mladen for some length. The hearing Judge drew a sketch and asked the officer to comment thereon. She questioned the officer at length as to the starting and stopping points of his measurement of distance and how they compared to other alleged starting and stopping points.

35On the third day of the preliminary hearing Hawke J. presented to both counsel and to PC Mladen a 13 point hypothetical scenario she had prepared overnight. It included a photograph she had taken from her chambers of an intersection adjacent to the courthouse, all for the purpose of questioning the officer.

36The Applicant raised with the hearing Judge the questionable propriety of this intervention and expressed the concern that she was assessing the strength of the evidence, something outside of her jurisdiction. While she acknowledged that she was bound to accept the officer's evidence as to the starting point of the distance measured, she believed that based on her hypothetical scenario, the officer's evidence may change.

37The Applicant submits that regardless, Hawke J.'s inquiry did not change the officer's evidence.

LAW

38The only book of authorities filed was that of the Applicant. Counsel for the Respondent graciously advised the court that she agreed with the Applicant's statements on the law.

39The Applicant must establish jurisdictional error to obtain a writ of certiorari. The fact that a reviewing judge may have reached a different verdict is insufficient (R. v. Foster [2008] O.J. No. 827, para. 31).

40The test for committal at a preliminary hearing is, "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty".

41The test is the same whether the evidence is circumstantial or direct. The evidence must be considered as a whole.

42Where the evidence is circumstantial in nature, the preliminary hearing judge must engage in a limited weighing of the evidence to determine if it is capable of supporting the inferences the Crown could ask a jury to draw.

43A trier of fact may accept some, none or all of a witness' testimony. Where a witness' evidence changes against earlier testimony, but the earlier testimony establishes elements of the offence, it is not open to a preliminary inquiry judge to find no evidence of the offence (R. v. Walizadah [2002] O.J. No. 2833, aff'd [2002] O.J. No. 5451 (C.A.).

44The presiding judge is to consider the Crown evidence at its highest.

45The presiding judge can only consider the inferences favouring the Crown. The Crown need only demonstrate that there is a reasonable inference consistent with guilt. A judge is not to consider the inherent reliability or quality of the evidence itself and a judge at the preliminary stage who fails to abide by this restraint acts in excess of their jurisdiction (R. v. Hawley [2012] O.J. No. 4927 (C.A.) para. 10-11. R. v. Dwyer 2013 ONCA 368, [2013] O.J. No. 2554 (C.A.)).

46An error in law and an error as to the sufficiency of the evidence are not jurisdictional errors (R. v. Hawley, para. 10).

47The elements of dangerous driving while street racing, include a street race in a manner dangerous to the public, and where the risk of bodily harm is reasonably foreseeable.

48Street races involve synchronized, in-tandem movements of two or more vehicles marked by high speeds and close proximity. It is prima facie dangerous to the public.

49The dangerous driving component of street racing, section 249.4(4) of the Criminal Code of Canada, requires the same elements as dangerous driving contrary to section 249 does (R. v. Ali [2002] O.J. No. 419, at para. 57-81).

50A reasonable apprehension of bias and denials of natural justice both go to jurisdiction and can be raised as a ground for granting relief by way of certiorari, R. v. Faulkner [2013] O.J. No. 2329, para. 5.

51The criminal process is adversarial and the judge is to be a neutral decision-maker. The administration of justice is brought into disrepute when judicial officers fail to engage in reasoned, thoughtful and diligent decision-making. A judicial officer is required to ensure his or her understanding of the evidence and clarify ambiguities. However, at the same time there are definite limits on this right. A trial judge should confine themselves as much as possible to his or her own responsibilities and leave counsel to his or her function. The judge cannot leave his or her role position of neutrality, as a fact-finder, and become a cross-examiner (R. v. Stucky 2009 ONCA 151, [2009] O.J. No. 600, paras. 63-65).

52The test for reasonable apprehension of bias is, "what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly." In order to maintain public confidence in the administration of justice, the appearance of judicial impartiality is as important as the reality (R. v. C.D.H. 2015 ONCA 102, [2015] O.J. No. 672 (C.A.) at para. 11-12).

53Checking indisputable facts is one thing. Conducting an investigation and drawing inferences, especially without giving the parties an opportunity to respond, is another. The question to be asked is if the interventions by the judge compromised the fairness of the trial (R. v. Ghaleenovee 2015 ONSC 1707, [2015] O.J. No. 1310, para. 21, 22).

CROWN ARUMENT

54The Crown submits that Hawke J. committed jurisdictional errors in four ways.

(1) By failing to consider the cumulative effect of the evidence as a whole and by not taking the Crown's case at its highest.

(2) By ignoring or rejecting inference available to the Crown.

(3) By creating a reasonable apprehension of bias due to her own intervention and investigation, relying on that inquiry in rejecting the evidence of PC Mladen.

(4) By finding there was no evidence of dangerous driving.

55The Crown submits that the evidence, taken as a whole, supports a reasonable inference of street racing. The cars are both northbound on Summerlea Road. The Lomas video shows the vehicles in close proximity, driving side by side, with the deceased's car in the southbound lane, travelling northbound.

56PC Mladen, by observing the Anti-Friction surveillance video and using the two flagpoles as reference points, takes a measurement and determines the speed of the vehicles to be in excess of 126 kph as they enter and exit this video clip.

57In the Paccar and Anti-Friction videos the vehicles are seen northbound on Summerlea, in close proximity with each other, one or two car lengths apart.

58Emergency vehicles presumably responding to the collision and therefore likely travelling at a relatively high speed, took longer to move across the video clip than did the two Honda vehicles in issue. The Crown submits from this fact alone an inference of a high rate of speed can be drawn.

59The Crown especially takes issue with the preliminary hearing Judge's treatment of the evidence of PC Mladen. It is submitted by the Crown that the hearing Judge's intervention went well beyond questions to clear up a misunderstanding of the officer's evidence as to how speed was calculated.

60The hearing Judge conceded that she believed the officer would change his opinion as a result of her intervention. It is submitted that the hearing Judge was testing the strength of the officer's evidence and thereby exceeded her jurisdiction.

61In doing so the hearing Judge showed a reasonable apprehension of bias and thereby exceeded her jurisdiction.

62The Crown submits that the preliminary hearing Judge's failure to accept the photographs presented as evidence of the loss of control, as a result of a high rate of speed, was a further jurisdictional error. The image of the deceased's Honda represents an image of a catastrophic collision which in and of itself can be used as an inference of a high rate of speed impact. The tire marks can be used to infer a loss of control.

63The Crown submits that such inferences can be drawn by ordinary reasonable people, properly instructed and do not, contrary to the findings of Hawke J., necessitate expert evidence through a witness qualified to draw such inferences.

64The Crown submits that the video clips, the evidence of the civilian witnesses, the evidence of PC Mladen, and the pictures of the tire marks and the collision, taken cumulatively, give rise to an inference of racing, high rates of speed and dangerous driving sufficient for a committal to trial.

DEFENCE ARGUMENT

65Counsel for the Respondent submits that Hawke J. made no such jurisdictional errors. In her ruling the Judge made it clear she took the Crown's case at its highest, considered the evidence as a whole, and did not consider competing inferences.

66It is submitted that Hawke J. properly found there was no evidence of significant speed, no evidence of bad driving or of a bad single maneuver. There was no evidence of dangerous driving.

67Counsel for the Respondent submits that Hawke J. was correct in rejecting the evidence of PC Mladen who was not qualified as an expert and could not provide opinion evidence as to speed.

68In regards to the Judge's questioning of the officer, it is submitted that she understood that the officer's measurements were inaccurate, and were based on an assumption.

69It is submitted by defence counsel that the decision to discharge her client was the correct one and her conclusion that the surveillance video did not provide any evidence of driving which would amount to dangerous driving. Hawke J., while agreeing that speed is a relevant consideration, correctly determined that the only acceptable evidence of speed was the evidence of Mr. Saud who estimated the two cars were travelling at 70-80 kph.

ANALYSIS

70Hawke J. found that there was no admissible evidence upon which a reasonable and properly instructed jury of fact could find the Respondent guilty.

71She made this finding after rejecting the evidence of PC Mladen and deciding that apart from the pictures of the damage to the Respondent's vehicle, all of the other pictures were inadmissible because to interpret them necessitated the evidence of an expert witness in the field of accident reconstruction.

72Hawke J. noted, that while she was not entitled to weigh the evidence, she could make findings of admissibility.

73In regards to the evidence of PC Mladen she rejected his ability to form an opinion as to speed based on the surveillance videos, but, nonetheless, was willing to accept the opinion evidence of Mr. Saud as to speed.

74Hawke J. testified that there was, until the very end, little evidence on the videos of either vehicle travelling northbound in the southbound lane, notwithstanding what can be observed in the Lomas video where the cars are observed side by side, travelling northbound, on a road that has only one northbound lane.

75At page 23 of the transcript of Hawke J.'s ruling she commences her review of the evidence of PC Mladen in regards to distance and speed. The officer used a standard mathematical calculation to determine speed through his findings of time and distance.

76Hawke J. in her ruling, then using the same video clip referencing using different points of reference and discounting and challenging the officer's evidence as to speed. She found that the officer's evidence was based on assumptions and that there was no evidence to support his conclusions as to speed.

77From page 26, commencing at line 26, I quote from the decision of Hawke J.,

"At the end of the first day in this, I did a little sketch near the end of the officer's testimony, and adjourned to the next day. The sketch did not help the discussion. For my part, I reflected upon the problem that I could not understand how this officer could give the answers he gave, and he appeared not to understand my questions. Faced with this, I took what I will admit was an extraordinary step, and arguably an inappropriate step, and I prepared an example that would seem to me to be a similar problem using the photograph taken from a window at the courthouse. Ultimately, the officer agreed the example itself made sense, but he was unable to relate it to the problem at hand."

78At line 26 on page 28, the preliminary hearing Judge stated,

"I cannot be in a situation of assessing the quality of the officer's evidence, given that I am presiding over a preliminary hearing, and as such, this would be outside of my role."

79Unfortunately, in my opinion, that is exactly what she did. The extent of her intervention and challenge of the officer's evidence amounted to a jurisdictional error. It was an inappropriate step.

80The officer testified as to his measurements and the time it took the vehicles to travel between the points he choose as the starting and stopping points. He then, using the equation, velocity (V) equals distance (D) over time (T), made a calculation of speed.

81The record shows that the Judge's intervention perhaps initially to understand his evidence proceeded to a challenge of his evidence. She posed questions to the officer based on her own sketch, a hypothetical scenario and a photograph of an intersection in an effort to have the officer change his mind.

82Her rejection of PC Mladen's conclusions was not based on its admissibility but rather on the quality of his evidence.

83The hearing Judge did not accept the Crown's evidence at its highest.

84The officer's basis for his conclusion as to speed may provide defence counsel with considerable "cannon fodder" for cross-examination at trial. However, while it is open to a trier of fact, at trial, to accept all of his evidence, some of his evidence or none of it, a preliminary hearing judge is not so entitled.

85While Hawke J.'s intention may have been well-meaning, her intervention went well beyond an attempt to understand and clarify to the point that there is a reasonable apprehension of bias.

86On that ground alone I will allow the application.

87The officer's evidence as to speed together with all the rest of the Crown's evidence, including video evidence of both vehicles travelling northbound, for some time side by side, on a road with only one northbound lane would allow a reasonable and properly instructed jury to find Mr. Botelho guilty.

88In regards to the issue as to the ruling that most of the photographs are inadmissible, I agree with the reasoning of Hawke J. and find there was no jurisdictional error. In a police force as large as that of the Peel Police Service there would be officers trained in accident reconstruction who would have the expertise to interpret the pictures. Such opinion would be necessary to assist the trier of fact to determine the evidentiary value of the photographs.

89Further, such an evidentiary ruling is not an error of jurisdiction.

RULING

90The Crown's application is granted. Pursuant to R. v. Streeter 2013 ONSC 1952, an order of mandamus in aid of certiorari is to issue, remitting the matter to the preliminary inquiry Judge with the direction that she commit the Respondent for trial on the charges of dangerous driving causing death, contrary to section 249(4) of the Criminal Code of Canada, and, because there is some evidence of street racing, dangerous operation of a motor vehicle, while street racing, causing death, contrary to section 249.4(4) of the Code.

91Within fifteen (15) days, counsel for the parties shall arrange through the Ontario Court of Justice Trial Coordinators office an appearance before Hawke J.

Bielby J.