Her Majesty the Queen v. Kwok Hung Davis Ng, 2018 ONSC 1520

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-15-05131-00AP

DATE: 20180305

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KWOK HUNG DAVIS NG

Defendant/Appellant

Bradley Juriansz, for the Crown

Peter Lindsay, for the Defendant/Appellant

HEARD: January 19, 2018

REASONS FOR DECISION

DE SA J.:

Overview

1The Appellant argues that the trial judge erred in law in her assessment of the evidence. According to the Appellant, the trial judge shifted the onus on the Appellant to provide evidence in support of an innocent explanation. She failed to consider that innocent explanations could equally arise from an absence of evidence. The Appellant also argues that the trial judge erred in relying on the evidence of the civilian witnesses given its evident unreliability.

2I disagree with the Appellant. The reasonableness of an innocent explanation (an inference consistent with innocence) and whether such an inference arises on the evidence is very much a determination to be made by the trial judge. Such an inference arises from the specific weight attributed by the trier to facts when considered in the context of the evidence as a whole. Absent a misapprehension of the evidence or a clear indication that the trial judge ignored relevant evidence, an appeal court must defer to the trial judge’s assessment of the evidence and the reasonableness of inferences arising therefrom. Similarly, assessments of credibility are very much the domain of the trial judge. Absent a palpable and overriding error, it is not the place of this Court to interfere.

3For the reasons outlined below, the appeal is dismissed.

Facts

Evidence at Trial

4On June 22, 2015, late in the evening, Marah Vasilopoulos (“Marah”) was in her vehicle with her brother Daniel Vasilopoulos (“Daniel”). Daniel was in the front passenger seat. A friend, Kyle O’Brien (“Kyle”), was sitting in the rear of the vehicle. After reversing out of her driveway, Marah started travelling east and pulled over briefly to speak with a friend who was walking on the sidewalk close to her home. The Appellant was driving west on the same street. As the Appellant approached their vehicle, they noticed that the Appellant’s vehicle was travelling quickly and swerving in their direction. As he passed their vehicle, the Appellant hit the rear driver’s side door where Kyle was seated. The Vasilopoulos’ vehicle’s airbag deployed. The Appellant continued travelling past until his vehicle came to a stop on the wrong side of the road. The Appellant’s vehicle was no longer operable.

5After being hit, Marah ran inside to get her father. Daniel ran after the car to speak with the Appellant. The Appellant rolled down his window. As he spoke with the Appellant, Daniel noticed that the Appellant’s breath smelled strongly of alcohol. The Appellant uttered “Whoa, this is amazing” appearing to have no appreciation of the seriousness of what just occurred. As the Appellant exited his vehicle, he appeared to be stumbling, and was unsteady. According to Daniel, the stumbling was more consistent with intoxication, rather than an injury from the crash. Marah advised the Appellant she would be calling the police. The Appellant repeatedly asked them not call the police. All three occupants “believed” the Appellant was intoxicated given his breath, and his overall behaviour.

6The police were called by Marah’s father and informed that there was an accident caused by an impaired driver. After receiving the call, Constable Simard attended the scene. The Appellant was back in his vehicle when she arrived. Constable Simard noted the damage to the two vehicles on scene. She spoke with the three civilians about what happened and then went to see the Appellant at his vehicle. As she approached the Appellant’s vehicle, she noticed that the left front tire of the Appellant’s vehicle was flat. This was the same side of the Appellant’s vehicle that impacted the Vasilopoulos’ vehicle.

7As she spoke with the Appellant, he was speaking in a slurred manner and a strong smell of alcohol was emanating from his breath. His eyes were very red and glossy. His lips were very dry and dark coloured. To Constable Simard, it looked like the Appellant had been drinking wine as his lips were still blackish in colour from the alcohol. After he exited the vehicle, she noticed the Appellant was unsteady on his feet. As he tried to re-enter his vehicle, the Appellant fumbled with the door. On the basis of the call, and her observations at the scene, Constable Simard arrested the Appellant for impaired driving.

Trial Judge’s Reasons for Decision

8At trial, counsel for the Appellant attacked the reliability of the observations of the civilian witnesses. He pointed out the various discrepancies in their evidence relating to the location of the Vasilopoulos’ vehicle prior to impact. He identified inconsistencies between their evidence at trial and statements they gave to the police relating to the “swerving” of the vehicle. He also argued that the fact that they discussed the case together may have contaminated their evidence.

9Counsel pointed out that these inconsistencies left open the reasonable possibility that Marah’s vehicle was over the line and in the eastbound lane. The condition of the vehicle raised the possibility that the accident was caused by a blown tire. The Appellant’s behaviour after the accident was consistent with disorientation and shock from the accident rather than impairment. Counsel took the position that the Crown had failed to discharge its burden.

10The trial judge considered the inconsistencies in the evidence of the civilians. She also considered the alternate theories put forward by defence. Having considered the evidence as a whole, she found the Appellant guilty. She explained in her reasons:

The only issue is whether or not the Crown has satisfied its burden of proving some degree of impairment beyond a reasonable doubt. It would be an error for me to take the piecemeal approach to the evidence suggested by Mr. Lindsay.

Mr. Justice Cromwell makes it clear in Villaroman that the test is whether I am satisfied that the accused’s guilt is the only reasonable conclusion available on the totality of the evidence. The burden of proof beyond a reasonable doubt applies to the evidence as a whole, which is often greater than the sum of its individual parts.

I am satisfied from the totality of the evidence that Mr. Ng’s ability to operate a motor vehicle was impaired by alcohol.

On the evidence which I did hear and accept the only reasonable inference is that Mr. Ng’s bad driving was caused by impairment by alcohol.

Issues on Appeal

11The Appellant takes the position that the trial judge erred in her assessment of the evidence. She failed to give proper consideration to innocent explanations which were equally available on the evidence. Moreover, she relied on evidence of the civilian witness despite its evident unreliability. According to the Appellant, the trial judge made the following errors:

1. The trial judge erred in law by failing to consider innocent explanations for the accident by requiring the defence to provide evidence of those alternate explanations;

2. The trial judge erred in relying on the civilians’ testimony in the face of the various inconsistencies in their evidence. Moreover, the trial judge’s reasons do not adequately explain the basis upon which she chose to accept their evidence.

Analysis

A) Did the trial judge fail to consider innocent explanations arising on the Evidence?

12The Appellant takes the position that the trial judge erred in law by failing to consider reasonable inferences consistent with innocence. According to the Appellant, the trial judge improperly shifted the onus by requiring the accused to positively establish by evidence the existence of these innocent explanations. More particularly, the Appellant argues the trial judge ignored that:

a. The evidence left open the reasonable possibility that Marah’s vehicle was over the line because of the impact;

b. The condition of the vehicle raised the possibility that the accident was caused by a “blown tire”.

c. The vehicle could have continued driving because the vehicle was still in motion.

d. The Appellant’s behaviour after the accident was consistent with disorientation and shock from the accident rather than impairment.

13I agree with the Appellant that the accused need not establish with evidence inferences other than guilt. Innocent explanations can equally arise from the absence of evidence. But those inferences must be “reasonable” given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. As the Supreme Court explained in R. v. Villaroman, [2016] 1 SCR 1000, 2016 SCC 33 at paragraph 35:

When assessing circumstantial evidence, the trier of fact should consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

14Moreover, the “reasonableness” of the various possibilities must be left to the trier of fact to determine. This “reasonableness” assessment is ultimately driven by the weight attributed to the various competing inferences having regard to the evidence as a whole. The weighing of competing inferences is very much an individual process, and an appeal court is required to defer: Mezzo v. The Queen, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802. In other words, whether or not there is a rational explanation for the evidence other than the guilt of the accused, is a question for the trier of fact. Reasonable people may disagree.

15A trial judge should not be found to have misapprehended or ignored evidence or come to the wrong conclusions merely because the appellate court diverges in the inferences it draws from the evidence. Engaging in a reassessment of the evidence where the trial judge has made no error of law is an unjustified interference with the findings of the trial judge. R. v. Johnston, 2016 ONCA 834, [2016] O.J. 5738 (C.A.), at para. 9; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para. 24; Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, 1994 CanLII 106 (SCC), [1994] 1 S.C.R. 114, at paras. 13, 15 and 18; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10 and 24; H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 55, 56, 110; R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at para. 20.

16In this case, the trial judge concluded that the inferences and “factual possibilities” suggested by the Appellant were not “reasonable” when considering the evidence as a whole. Other triers may have disagreed. That being said, there is nothing to suggest that the trial judge failed to consider relevant evidence, or otherwise misapprehended the evidence.

17The trial judge concluded that on the evidentiary record before her, to find a “blown tire” caused the Appellant to lose control would be a supposition. It would not otherwise be supported by the balance of the evidence. To conclude that the vehicle was originally over the line would ignore that the witnesses said that it was not. The trial judge chose to conclude that the Appellant’s decision to keep driving and stop on the other side of the road after impact was consistent, though not dispositive, of impairment.

18These decisions or “findings” are assessments a trial judge must make. The absence of defence evidence on the issue can often result in a judge making a finding of fact consistent with guilt. This does not mean that the judge is requiring the defence to establish an innocent explanation. A gap or absence of evidence may give rise to an innocent explanation. However, it may not. Again, this decision is made by the trial judge on his/her particular assessment of the evidence.

19I disagree with the Appellant that the trial judge was requiring the defence to provide evidence of innocent explanations. Rather, the trial judge found that the facts did not support the innocent explanations as alternate reasonable inferences when the evidence was considered as a whole.

20Clearly, there was a very strong case for impairment. The Appellant crashed into a stationary vehicle, smelled strongly of alcohol, was stumbling in an intoxicated state at the time of the offence, and ended up stopping on the wrong side of the road. The tire, while flat, was on the same side as the Appellant’s vehicle which hit the other car. To accept the inference suggested by the defence, the trial judge would have to reject the other evidence which contradicted this innocent explanation, or at least be left in doubt as to its force. Again, this is very much an assessment that is to be made by the trial judge when they are considering the evidence as a whole. It is not for an appeal court to interfere.

21I would not give effect to these grounds of appeal.

B) Did the trial judge err in relying on the evidence of the civilian witnesses?

22In this case, the Appellant argues that the range of inconsistencies in the evidence of the civilian witness made reliance on their evidence to convict improper. The Appellant argues, and the trial judge acknowledged, that the civilian witness’ evidence was concerning for the following reasons:

1. The passage of time;

2. Their testimonies differed in a number of ways from their statements to police;

3. They confused details during their testimonies;

4. That they discussed the incident among themselves before providing statements to police, in the time leading up to the trial date, and even on the trial date just prior to testifying.

23The Appellant argues that in light of these problems which were accepted by the trial judge as live concerns, the trial judge was not entitled to accept their evidence. Alternatively, the trial judge’s reasons do not adequately explain the basis for accepting their evidence.

24A trial judge’s assessment of the credibility of witnesses “will not be disturbed unless it can be demonstrated that he/she committed a palpable and overriding error” (citing Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33). In applying the test courts of appeal should show great deference to findings of credibility made at trial. The jurisprudence has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility: White v. The King, 1947 CanLII 1 (SCC), [1947] S.C.R. 268, at p. 272; R. v. M. (S.H.), 1989 CanLII 31 (SCC), [1989] 2 S.C.R. 446, at pp. 465-66. The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses.

25As a matter of law it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable. R. v. W. (R.), [1992] 2 SCR 122, 1992 CanLII 56 (SCC).

26While there were clearly inconsistencies in various aspects of the civilian witnesses’ testimony, I disagree with the Appellant that the trial judge was precluded from considering it. A trial judge is always entitled to accept all, some or none of a witness’ evidence. In this case, when considered together with the other surrounding facts, the civilian witness’ evidence was probative on central issues despite the inconsistencies identified by the Appellant. They each were consistent that the accused smelled of alcohol, and that he was stumbling in an intoxicated state. This evidence was corroborated by the evidence of the officer on scene, and the uncontested facts surrounding the collision. Moreover, she noted the concerns in their evidence, and chose to consider the evidence in the face of them. There is no reason to believe the trial judge failed to apply the proper scrutiny to their evidence.

27The Appellant’s challenge to the reasons of the trial judge are also without merit. Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. In Dinardo, recognizing the various factors that go into a credibility assessment, Charon J. commented at para. 26:

Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal. [Emphasis added]

28In this case, the trial judge provided a clear outline regarding her assessment of the civilian witnesses’ evidence. The surrounding record clearly demonstrates the basis upon which she accepted it.

29I would not give effect to this ground of appeal.

30The appeal is dismissed.