Her Majesty the Queen v. Tabbak, 2018 ONSC 4945

COURT FILE NO.: SCA CR-16-247-00AP

DATE: August 17, 2018

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

KIA TABBAK

Appellant

Holly Chiavetti, for the Respondent

Mark C. Halfyard, for the Appellant

Appeal of the conviction of The Honourable Mr. Justice S. Hunter of the Ontario Court of Justice, dated September 8, 2016

REASONS FOR DECISION

ABRAMS, J

Introduction

1The Appellant was convicted before Mr. Justice S. Hunter in the Ontario Court of Justice in Napanee, Ontario, on September 8, 2016, on one count of dangerous driving. He appeals his conviction.

2The cross-appeal on sentence was abandoned by the Respondent at the outset of oral submissions.

Issues

3The Appellant raises two grounds of appeal, specifically:

1. Did the trial judge err in his treatment of the admissibility of the 911 call entered into evidence; and

2. Did the trial judge err in his analysis of whether the Appellant’s driving amounted to dangerous driving?

Powers of Appeal Court

4Pursuant to Section 822 of the Criminal Code of Canada (“CCC”) in regard to Summary Conviction Appeals, Section 686(1) CCC provides the Summary Conviction Court with authority to:

(a) Allow the appeal from conviction where:

(i) the verdict is unreasonable or cannot be supported by the evidence;

(ii) the court made a wrong decision on a question of law; or

(iii) on any ground there was a miscarriage of justice.

Standard of Review

5The standard of review requires that the appellate court should not interfere merely because it would have reached a different result and should only interfere if the trial judge made a finding that is not supported by the evidence or that is unreasonable and would have affected the result: Housen v. Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235.

6The application of a legal standard to the facts of the case is a question of law and is subject to review for correctness: R. v. Sheppard [2009] S.C.C. 35 at para 20.

7The weighing and examination of the evidence is only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion: R. v. Burns 1994 CanLII 127 (SCC), [1994] S.C.J. No. 30 (SCC).

8The standard of review on a summary conviction appeal requires that deference be given for findings of credibility and findings of fact: R. v. Gagnon [2006] S.C.C. 17 (SCC) at paras 10 and 19.

Brief Background

9The essential facts are not in dispute. On February 11, 2016, the Appellant was operating a transport truck eastbound on the 401 when he was observed:

(1) driving well below the posted speed limit;

(2) varying in speed from 120 km/hour to a near stop;

(3) swerving back and forth from shoulder to shoulder:

(4) at other times straddling the centre-line, causing other vehicles to take evasive action to avoid a collision;

(5) driving with his right signal light engaged when there was no right turn available;

(6) nearly striking a bridge abutment; and

(7) leaving the transport truck parked halfway into a live lane of traffic when he was eventually pulled over by the police.

Trial Judge’s Reasons

10In my view, the penultimate portion of the trial judge’s reasons are summarized on pages 67 and 68 of the transcript of the proceedings beginning at line 24, where he said:

What Mr. Tabbak did, on the other hand, was clear, it was a continuing course of driving over a period of time that was at least a half an hour, if not 40 minutes, on a level 400 highway, where in a big transport truck rig, he’s going shoulder to shoulder and causing near collisions to occur, not to mention nearly colliding with the bridge abutment as described by Ms. Kelly. There is no evidence to explain why the driving occurred in the manner that it did. In my view, the evidence on its face, clearly establishes beyond a reasonable doubt that Mr. Tabbak was operating his motor vehicle in a manner that was dangerous to the public, given the circumstances and the level of traffic expected to be and actually present at the time.

Analysis

11The appeal is dismissed for the following reasons.

911 Call

12The trial judge did not err in his treatment of the admissibility of the 911 call entered into evidence.

13The objections raised by trial counsel to the admission of the 911 call were essentially two-fold:

(1) on the basis of the call being an out of court statement, thus hearsay; and

(2) on the basis of it being used to refresh the deponent’s, Ms. Kelly’s, memory as she was giving her evidence viva voce at trial.

14Counsel on the appeal argues that the 911 call was presumptively inadmissible as it was hearsay evidence. Alternatively, he contends that the 911 call should not have been admitted because it offended the rule against the admission of prior-consistent statements, otherwise known as oath helping.

15A review of the chronology of the order in which Ms. Kelly testified is instructive, in my view. Well before there was any mention of Ms. Kelly’s 911 call, she testified to making the following observations:

• It was not snowing at the time and the visibility was fine;

• She was travelling with the traffic flow at approximately 110 km/hour;

• When she first encountered the Appellant, he was travelling approximately 80 km/hour, in the passing lane;

• She had to slow down for him;

• He began to pull over into the driving lane to let her pass; however, just as she was about to pass, he swerved back into the passing plane, forcing her to pull back;

• It was at this point that she noticed he was swerving shoulder to shoulder;

• When doing so, he nearly forced another transport off the road, as well as a few other cars;

• He also narrowly missed hitting a bridge abutment;

• He drove with his right signal on when there was no exit available;

• At times he sped up to 120 km/hour, and then reduced his speed to 5-10 km/hour;

• She witnessed several near misses between him and other motorists;

• He veered far enough onto the shoulder that he hit the gravel;

• At other times he drove straddling the centre, or white line; and

• He forced another transport truck, that was travelling in the driving lane, over far enough that the other truck’s tires were probably in the snow bank alongside the highway.

16It was only after Ms. Kelly testified viva voce to these observations that the Respondent indicated its intention to introduce Ms. Kelly’s 911 call. Accordingly, Ms. Kelly had given substantially all of her evidence without the aid of her 911 call to refresh her memory by the time that the 911 call was entered into evidence. Further, the trial judge, in his reasons, described Ms. Kelly and her evidence thus:

She was an honest, straightforward, intelligent and articulate, observant witness. Her observations were also born (sic) out by the 911 call in which she is describing as she is driving what is occurring in front of her as which (sic) respect to Mr. Tabbak’s vehicle was going from shoulder to shoulder over two lanes, that there was a near collision with another transport truck which caused that transport truck to have to actually stop, that there was a near collision with at least one other vehicle, if not two, and that the accused’s vehicle was driving in an extremely erratic fashion, speeding up, slowing down, going from shoulder to shoulder, straddling the centre line between the passing and driving lanes to the point where it created a situation of danger which was clearly perceived by Ms. Kelly from her subjective perspective and frankly, in the totality of that evidence, one would conclude from an objective perspective as well.

17In my view, although he did not expressly say it, the trial judge turned his mind to the contemporaneous nature of the 911 call in the context of the totality of Ms. Kelly’s evidence so as to bring it [the call] within the res gestae exception to the hearsay rule. Ms. Kelly was, in essence, narrating the offence in real time as she reported her observations to the 911 operator. There was no ability or reason for Ms. Kelly to concoct or tailor any part of her description of the events unfolding before her, as she recounted them to the 911 operator. Moreover, Ms. Kelly was available for cross-examination, thus quieting the historic fear and prohibition regarding the admission of out-of-court statements.

18Alternatively, the contention that the 911 call ought not to have been admitted because it constitutes oath helping is unfounded. The 911 call was not, in my view, adduced solely for the purpose of proving that Ms. Kelly was a truthful witness. Rather, the 911 call provided context, in real time, going to the truth of Ms. Kelly’s statements: R. v. Llorenze, 2000 CanLII 5745 (ON CA), [2000] O.J. No. 1885 (Ont. C.A.) at paras. 27-30.

Dangerous Driving

19To establish the required actus reus, the Crown must show that the accused was driving in a manner that was dangerous to the public, having regard to the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place: R. v. Beatty, 2008 1 SCJ No 5 at para 43.

20Accepting the essential facts set out above, in my view, the trial judge, having taken into consideration the constellation of all of the factors present, correctly determined that the actus reus of the offence was made out.

21The accused’s state of mind is relevant in determining whether the requisite mens rea was present, but the Crown need not prove the accused had a positive state of mind, such as intent, recklessness or willful blindness: Beatty, ibid, at para. 47.

22The modified objective test is used when assessing whether an accused had the requisite mens rea to be convicted of a charge of dangerous driving. Using this test, the Crown must establish that:

(1) the degree of care exercised by the accused was a marked departure from the standard expected of a reasonably prudent person in the accused’s circumstances; and

(2) If an explanation is offered by the accused, a reasonable person in a similar position would have been aware of the risk arising from his or her conduct: Beatty, ibid, at paras. 7-8 & 43.

23Firstly, there was no explanation offered by the accused in respect of the aberrant driving. Secondly, in summarizing the evidence, the trial judge, in my view, touched upon the essential elements of the modified objective test articulated in Beatty, where he said:

What she [Ms. Kelly] describes on a level 400 highway, driving a transport truck, was that Mr. Tabbak’s vehicle was going shoulder to shoulder over two lanes, that there was a near collision with another transport truck which caused the transport truck to have to actually stop, that there was a near collision with at least one other vehicle, if not two, and that the accused’s vehicle was driving in an extremely erratic fashion, speeding up, slowing down, going from shoulder to shoulder, straddling the centre-line between the passing and driving lanes to the point where it created a situation of danger which was clearly perceived by Ms. Kelly from her subjective perspective and frankly, in the totality of that evidence, one would conclude from an objective perspective as well (emphasis added).

24And further that, having turned his mind to the different standard in relation to carelessness or mere momentary inadvertence, the trial judge said:

What Mr. Tabbak did, on the other hand, was clear, it was a continuing course of driving over a period of time that was at least a half an hour, if not 40 minutes, on a level 400 highway, where in a big transport truck rig, he’s going shoulder to shoulder and causing near collisions to occur, not to mention nearly colliding with the bridge abutment as described by Ms. Kelly. There is no evidence to explain why the driving occurred in the manner that it did. In my view, the evidence on its face, clearly establishes beyond a reasonable doubt that Mr. Tabbak was operating his motor vehicle in a manner that was dangerous to the public, given the circumstances and the level of traffic expected to be actually present at the time (emphasis added).

25In my view, the trial judge correctly concluded, based on the totality of the evidence, that the nature of the impugned driving was objectively dangerous and a marked departure from the standard expected of a reasonably prudent person in the accused’s circumstances in accordance with Beatty.

Conclusion

26For all of these reasons, the appeal is dismissed.

The Honourable Mr. Justice B. W. Abrams