CITATION: R. v. Siddiqui, 2017 ONSC 6527
COURT FILE NO.: SCA (P) 1565/16
DATE: 20171101
ONTARIO
SUPERIOR COURT OF JUSTICE
(SUMMARY CONVICTION APPEAL)
B E T W E E N:
HER MAJESTY THE QUEEN
Dhanveer Mangat and Paul Renwick, for the Respondent
Respondent
- and -
SOHAIL SIDDIQUI
Ranbir S. Mann, for the Appellant
Appellant
HEARD: February 13, 2017
REASONS FOR JUDGMENT
[On appeal from a Decision of the Ontario Court of Justice at Brampton, ON, delivered November 18, 2015 and March 30, 2016]
BARNES J.
INTRODUCTION
[1] On November 18, 2001, Justice T. Wolder of the Ontario Court of Justice convicted Sohail Siddiqui (appellant) of one count of dangerous driving contrary to section 249(1) of the Criminal Code, R.S.C., 1985, c. C-46, and one count of mischief under $5,000 contrary to section 430(4) of the Criminal Code. On March, 30, 2016, Justice Wolder imposed a conditional sentence and a restitution order for $4,451.
[2] The appellant appeals the conviction and the restitution order. I dismiss his appeal of the conviction and vary the restitution order to $3,826.26. These are my reasons.
ISSUES
[3] The appellant raises the following issues on appeal: (1) Did the trial judge misapprehend the evidence in finding that the appellant stopped his vehicle in the HOV lane thus causing Mark McMullen (complainant) to stop his car; (2) Did stopping the vehicle constitute dangerous driving; (3) Was there reliable evidence that the appellant caused damage to the complainant’s car; (4) Did the Court err in its decision on the restitution amount? The first three issues are interrelated and will be disposed of together.
BACKGROUND FACTS
[4] On March 15, 2014, the appellant and the complainant were driving their vehicles on highways 403 and 407. They were travelling in the same direction and accompanied by family members. On route, a disagreement arose. The appellant believed that the complainant had cut off his vehicle during a lane change. Both vehicles stopped in a high traffic lane. The appellant and the complainant had a physical and verbal altercation. As a result, there was some damage to the complainant’s vehicle. The complainant left the scene first. Both parties, at different times, called the police to report the incident.
[5] After some investigation, the police proceeded to charge the appellant. At trial, the investigating officer, the complainant, and the complainant’s wife testified on behalf of the Crown. The appellant, his wife, and their daughter testified on behalf of the defence.
POSITION OF THE PARTIES
[6] The appellant submits that the trial judge’s finding that the appellant caused the complainant to stop his vehicle, is based solely on a written statement the appellant gave to the police and this piece of evidence is a neutral factor.
[7] The appellant submits that the trial judge ignored the fact that the appellant’s wife provided a written statement to the police saying that the complainant stopped his vehicle before the appellant stopped his vehicle. He also submits that the investigating officer had doubts about the veracity of the complainant’s story, and for this reason, waited two weeks before charging the appellant with the offences.
[8] The appellant explained that the trial judge erred in law by improperly interpreting and applying the applicable legal principles for dangerous driving. The appellant did not cause the complainant to stop his vehicle on the highway, and even if he did, his conduct does not meet the criminal standard for dangerous driving.
[9] The appellant submits that there was insufficient evidence upon which the trial judge could conclude – beyond a reasonable doubt - that the offence of mischief had been made out. The evidence was insufficient because there was no evidence led by the prosecution that the complainant had reported his claim to an insurance company. The complainant’s delay in repairing the scuffs and dents on his car should cast a doubt on the quality of the complainant’s evidence.
[10] The Crown submits that the grounds of appeal raised by the appellant are simply an attempt to retry the case before an appellate court. The trial judge’s finding that, on an objective basis, the appellant’s conduct satisfied the criminal standard for dangerous driving is reasonably supported by the evidence, and was a conclusion open to the trial judge on the evidence before the court.
[11] The Crown submits the trial judge found that the appellant caused damage to the complainant’s vehicle and that the appellant’s actions were intentional. The issue of whether the complainant had made a claim for this damage to his insurance company is irrelevant. The elements of the offence were proven beyond a reasonable doubt at trial and the appeal should be dismissed.
LAW
[12] On appeal, an appellate court’s jurisdiction to review the evidence is limited in scope. The court can consider whether there are manifest errors on the record; whether the verdict is one that could reasonably have been rendered; whether the evidence is reasonably capable of supporting the conclusions of the trial judge; and whether the verdict is “inconsistent with judicial appreciation of the evidence”. The credibility findings of the trial judge are entitled to deference. The appellate court must not substitute its view for that of the trial judge unless the trial judge has made a palpable and overriding error: R. v. Myerscough, 2001 CanLII 8573 (ON CA), [2001] O.J. No. 2867 (C.A.); R. v. Morrissey, 1995 CanLII 3498 (ON CA), [1995] O.J. No. 639 (C.A.).
[13] The offence of dangerous driving is described in section 249(1) of the Criminal Code. The following legal principles apply: (1) The Crown is required to prove beyond a reasonable doubt that, when viewed objectively, the Appellant was driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”; (2) it is the manner in which the motor vehicle is operated that is at issue, not the consequences of that operation; (3) the prosecution must establish that the appellant’s conduct was a “marked departure” from the standard of care that a reasonable person in the similar circumstances would exhibit; (4) where the appellant offers an explanation, the trier of fact must be satisfied, beyond a reasonable doubt, that a reasonable person in similar circumstances would be aware of the risk and danger emanating from the appellant’s conduct: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 41.
[14] To obtain a conviction for the offence of mischief, the Crown must prove that the appellant wilfully destroyed or damaged property: section 430(1)(a) of the Criminal Code. The Crown must prove the damage to property was more than negligible or a minor inconvenience and that the use or value of the property was impaired as a result: R. v. Jeffers, 2012 ONCA 1, [2012] O.J. No. 1.
ANALYSIS
[15] The trial judge did not misapprehend the evidence. The trial judge provided thorough reasons. Justice Wolder’s findings of fact are supported by the evidence. Specifically, the findings that the appellant stopped his vehicle in the HOV lane, thus causing Mark McMullen (complainant) to stop his car, and that the appellant caused damage to the complainant’s vehicle are reasonable conclusions supported by the evidence. It was appropriate for the trial judge to take judicial notice of the fact that highway 403 and 407 are very busy highways.
[16] The trial judge’s finding that the way the appellant stopped his vehicle constitutes dangerous driving is in accordance with the principles articulated in Beatty. It is also a finding of fact, which on the evidence, was open to the trial judge.
[17] The trial judge began his reasons by referencing the charges, and providing a general summary of the parties’ conduct on the date of the incident. The trial judge found that the complainant’s vehicle was traveling faster than the appellant’s vehicle. The complainant was traveling in the high occupancy lane. He brought his vehicle behind the appellant’s vehicle, overtook the appellant’s vehicle, and returned again to the high occupancy lane. The appellant was driving behind the complainant’s vehicle. The complainant began to slow down. It is at this point that the appellant, believing that the complainant was playing games with him, became angry: Reasons for Decision, pp.83-86.
[18] The appellant’s primary complaint is that the trial judge did not accept his version of the events or that of any other witnesses who testified on his behalf. The trial judge articulated his reasons for rejecting the appellant’s evidence. He found that the appellant had provided a different version of the events to the police than what he had provided in court. This is because the appellant’s written statement was consistent with the complainant’s version of what happened: Reasons for decision, pp. 89–90. For this reason, the trial judge did not find the reasons the appellant provided to be truthful. Having concluded that the appellant was untruthful, the trial judge then found that the complainant had pushed the appellant in self-defence and left the scene.
[19] The trial judge found that the altercation occurred in high traffic. The trial judge held that the complainant’s actions were rational in all the circumstances. Furthermore, the trial judge rejected the appellant’s evidence where it was inconsistent with the complainant’s evidence: Reasons for Decision, pp. 91-92.
[20] The trial judge found the evidence of the appellant’s wife to simply be a repetition of what she had been told by the appellant. She did not have much recollection of what occurred and did not see very much at all: Reasons for Decision, p. 93. Justice Wolder found the evidence of the appellant’s daughter to be inconsistent with the evidence of the complainant. Nevertheless, the trial judge discounted her evidence because it had been tainted. In the middle of the trial, the appellant’s daughter had been given the evidence of the complainant and the complainant’s wife to review: Reasons for Decision, pp. 93-95.
[21] The trial judge gave reasonable and principled reasons for rejecting the defence’s evidence and accepting the evidence of the complainant and his wife. These findings were reasonably available to the trial judge on the evidence before the court, and therefore, there is no basis for the appellant’s interference with these findings: see Myerscough, supra and Morrissey, supra.
[22] The following findings were reasonably available to the trial judge on the evidence and conclusively satisfy the test articulated in Beatty: (1) the appellant was angry that the complainant was playing games with him on the road and brought his vehicle to a stop in front of the complainant’s vehicle in the midst of a busy and active highway. The appellant “cut in front” of the complainant’s vehicle: Reasons for Decision, at pp.85-86. (2) The appellant aggressively attempted to and did open the complainant’s car door in live traffic. (3) The complainant’s action in pushing down the appellant was an act of self-defence and a rational action in all the circumstances: Reasons for Decision, at pp. 86-87. (4) The appellant made it clear that his intent was to inflict harm on the complainant: Reasons for Decision, at p. 87. (5) The appellant is a professional driver who would have been aware of the risks to himself and others caused by putting his vehicle in front of the complainant’s vehicle, thereby causing the complainant’s vehicle to stop. Finally, (6) the appellant got out of his vehicle, in heavy traffic and on a moderately busy highway, to confront the complainant: Reasons for Decision, at pp. 91-92.
[23] A further issue is whether there was sufficient evidence to support the finding at trial that the appellant caused damage to the complainant’s vehicle. The trial judge concluded that the appellant had caused damage to the complainant’s vehicle. Justice Wolder states, at page 95 of his oral reasons:
I find that Sohail Siddiqui did slam his fists down on the hood of Mr. McMullen’s car. I accept and I find that it has been established beyond a reasonable doubt that he caused damage to that vehicle in that manner. I am not prepared to comment on the damage to the windshield because it is not clear to me how striking it with his hand could have caused damage to the windshield. It is possible, I suppose, if he had a ring or some hard object, but it certainly hasn’t been explained in the evidence, and I am not fully satisfied beyond a reasonable doubt on that point. But certainly, the defendant was interfering with the vehicle, and I find that the scuff marks and the fingerprints amply demonstrate his interference with the McMullen vehicle and the damage that he caused to some degree to that vehicle.
[24] The Crown submits that the applicant’s argument that the complainant failed to make a claim to his insurance company is an irrelevant consideration. In thorough and clearly articulated reasons, Justice Wolder explained why the Crown had proven beyond a reasonable that the legal test for the offence of mischief, as articulated in Jeffers, had been satisfied. This finding is also reasonable on the evidence and was open to the trial judge.
Did the Court err in imposing the restitution amount?
[25] The trial judge did not err in ordering the appellant to pay restitution in the amount of $4,451.
[26] The appellant takes no issue with the imposition of a conditional discharge; however, he takes issue with the restitution order. The appellant submits that the trial judge was not satisfied that all the damage to the complainant’s car was caused by the appellant. Therefore, although a repair estimate of $4,451 was introduced into evidence, the trial judge had no evidence of the complainant’s related out-of-pocket expenses incurred to repair the damage to his car to arrive at the amount in question. The appellant argues the restitution order of $4,451 was improper and should be struck.
[27] The Crown submits that there was evidence of the estimated cost to repair the damage to the complainant’s car. Section 738(1)(a) of the Criminal Code provides the trial judge with discretion to impose a restitution order. The amount imposed was in accordance with the evidence. Therefore, the Crown argues there is no need to interfere with the restitution order.
[28] Section 738(1)(a) of the Criminal Code authorizes a sentencing court, on its own motion, in addition to any other measure it may seek to impose, to order the accused to make restitution to another person in cases involving damage to property or loss or destruction to property that occurred as a result of the commission of the offence. The restitution order shall not exceed the cost to repair the damage as of the date the order is imposed.
[29] On appeal, restitution orders issued as part of a sentence are entitled to deference. The exception is if the trial judge committed an error in principle or the restitution award is excessive or inadequate: R. v. Castro, 2010 ONCA 718, [2010] O.J. No. 4573.
[30] The trial judge was not satisfied beyond a reasonable doubt that the damage to the complainant’s windshield was caused by the appellant. The restitution award was based on an estimate that included the cost of repairing the windshield. Under these circumstances, the trial judge’s award is excessive. It is therefore reduced by the estimated cost of repairing the windshield. According to exhibit 1 filed at trial, the estimated cost of windshield repair is $624.74. Therefore, the restitution amount awarded at trial is reduced by this figure. The restitution order now amounts to $3,826.26.
[31] In all other aspects, the appeal is dismissed. The restitution order made at trial remains the same in all other respects. The conviction and sentence at trial are upheld.
Barnes J.
Released: November 1, 2017
CITATION: R. v. Siddiqui, 2017 ONSC 6527
COURT FILE NO.: SCA (P) 1565/16
DATE: 2017 11 01
ONTARIO
SUPERIOR COURT OF JUSTICE
(SUMMARY CONVICTION APPEAL)
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
- and -
SOHAIL SIDDIQUI
Appellant
REASONS FOR JUDGMENT
[On appeal from a Decision of the Ontario Court of Justice at Brampton, ON, delivered November 18, 2015 and March 30, 2016]
Barnes J.
Released: November 1, 2017