COURT FILE NO.: C433/17

DATE: 20180207

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

Her Majesty the Queen

Ms. S. Stackhouse, for the Respondent Crown

• and -

Satkunathaylan Gopalapillai

Ms. S. Tejpal, for the Appellant

Appellant

HEARD: January 29, 2018

REASONS FOR JUDGMENT

[On appeal from the judgment of Renwick, J. dated April 7, 2017]

Conlan, J.

Introduction

1This is a Summary Conviction Appeal brought by Satkunathaylan Gopalapillai (“Gopalapillai”).

2In the Ontario Court of Justice sitting in Brampton, Gopalapillai was tried on two counts – impaired driving and “over 80”, contrary to sections 253(1)(a) and 253(1)(b), respectively, of the Criminal Code.

3The offence date was October 14, 2013.

4The trial commenced on April 5, 2017. On that date, the Court received some Exhibits and heard testimony from Nabpreet Kamboj (“Kamboj”, an employee working at the McDonald’s restaurant drive-thru that Gopalapillai visited on the offence date), Patrick Medeiros (“Medeiros”, the shift manager at McDonald’s on the date in question), and Yuriy Marchyshyn (“Marchyshyn”), the arresting police officer with Peel Regional.

5The trial continued the following day – April 6th. The Court heard testimony from Philip Yake, the Peel Regional Police constable who administered the breath tests, and Jeff Hepton, a second Peel Regional Police constable who assisted Marchyshyn at the scene of the arrest.

6All of the above-mentioned witnesses testified for the prosecution. No evidence was called by the Defence, whether on the merits of the charges or on the statements and Charter issues that had been raised by the Defence.

7The case was presented in the Court below in a blended fashion, as is usual.

8On the merits of the charges, the only issue was the identity of the driver of the motor vehicle that was at the McDonald’s restaurant.

9The Defence had raised several other issues at the outset of the trial – the voluntariness of Gopalapillai’s statements to the police, whether Gopalapillai’s right to counsel of choice was violated, whether the police facilitated a meaningful exercise of Gopalapillai’s section 10(b) Charter right, and what evidence, if any, should be excluded under section 24(2) of the Charter.

10None of those issues is relevant to the Appeal.

11Typed Reasons for Judgment were released on April 7th. Those Reasons are reported at 2017 ONCJ 247. All statements made by Gopalapillai were found to be voluntary and, hence, admissible. A violation of Gopalapillai’s right to counsel of choice was found. In addition, it was held that the police failed to ensure that Gopalapillai understood his rights in terms of accessing legal advice and his right to remain silent. Section 10(b) was found to have been infringed. Under section 24(2) of the Charter, all statements made by Gopalapillai and the breath test results were excluded from the evidence at trial.

12Consequently, Gopalapillai was acquitted on the over 80 charge.

13Based on the other evidence at trial, however, he was found guilty of the impaired operation offence. An intermittent jail sentence of 45 days in length, plus 12 months of probation and a five-year driving ban, were imposed.

14Gopalapillai appeals just the finding of guilt on the impaired driving offence.

The Grounds of Appeal

15Initially, there was one ground of appeal raised by Gopalapillai – “the trial judge erred in determining that [he] was driving a motor vehicle prior to being arrested by the police”.

16The Amended Notice of Appeal alleges that the trial judge misapprehended the evidence when he concluded that the Crown had proven to the requisite standard that Gopalapillai was the driver, and further that the trial judge failed to consider or appreciate relevant evidence.

17In essence, it is argued that the evidence on the identity of the driver was weak, even considered in totality.

The Remedy Sought

18Gopalapillai seeks an acquittal.

The Crown’s Response

19The Crown treats this as nothing but an attempt to re-litigate the issue of identity of the driver. I agree.

20The trial judge committed no error on the law of identification evidence, did not misapprehend or fail to consider any relevant evidence, and reached an eminently reasonable verdict on the impaired driving offence, says the Crown. I agree.

The Standard of Review and the Basic Legal Principles

21Gopalapillai has the burden of proof. He must persuade this Court, on a balance of probabilities, that there is a reason to interfere with what occurred in the Court below.

22Under section 686(1)(a) of the Criminal Code, there are three discrete bases for this Appeal to be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence, (ii) there was a wrong decision made on a question of law, and (iii) there was a miscarriage of justice.

23The first item is most relevant here. As is argued on behalf of Gopalapillai, the “verdict is unreasonable because the recognition evidence, properly scrutinized, cannot support a finding of guilt” (paragraph 40 of the Appellant’s Factum).

24The second item is also relevant. It is submitted that the trial judge misapprehended the identification evidence and/or committed some other error in law with regard to that evidence.

25Factual findings are entitled to deference, absent palpable and overriding error. It is not the role of this Court to substitute its own views of the evidence. R. v. Sheahan, 2017 ONCA 159, at paragraph 12.

Analysis and Conclusion

26For the following reasons, the Appeal is dismissed.

27This Appeal was heard in Brampton on January 29, 2018. Counsel for the Appellant concentrated on two things: alleged misapprehension of the evidence by the trial judge, and alleged errors committed by the trial judge regarding identification evidence.

28In my view, this Appeal is a classic case of an invitation to re-try the matter. To consider the same arguments that were made by trial counsel and, without any deference to the trial judge and without worrying about the pinpointing of any particular error in his analysis, make my own conclusions.

29I decline to accept that invitation. Appeals are not decided that way.

Misapprehension of Evidence, or Some Other Error in Law?

30At page 27 of the transcript from the trial proceedings on April 5, 2017, Kamboj testified that she could not recall what the man who visited McDonald’s was wearing.

31At paragraph 49 of the Reasons for Judgment, the trial judge referred to the “physical description (including clothing) of the defendant by Navpreet (sic) Kamboj”.

32The Defence argues that the trial judge misapprehended the evidence of Kamboj.

33If this Court isolated its assessment of this issue to only the above, I would agree with the Defence. But the Reasons must be read in their entirety. At paragraph 53, the trial judge is more specific about Kamboj’s evidence. His Honour describes it as providing a “generic description” of the man being “short, chubby, dark pigmentation, of unknown ethnicity”. The trial judge says nothing about clothing.

34Clearly, the trial judge was not under any misapprehension that Kamboj had provided a description of the man’s clothing.

35Besides, the trial judge placed little weight on Kamboj’s description of the man. Consequently, even if I was persuaded that a misapprehension of the evidence on this single point was established, it in no way affected the verdict and, thus, is no reason for this Court to intervene.

Unreasonable Verdict?

36The Defence makes several points: the trial judge failed to adequately account for the lack of any photo line-up conducted by the police, and the trial judge failed to appreciate how short of a period of time these McDonald’s employees had to observe the man at the drive-thru, and the trial judge failed to appreciate the dangers of in-court identification (see R. v. M.B., 2017 ONCA 653, at paragraphs 6-10), and the trial judge was inconsistent in the Reasons for Judgment (specifically, as between paragraphs 52 and 54), and the trial judge ignored or paid insufficient attention to how long ago (3.5 years) the event had taken place, and the trial judge ignored or paid insufficient attention to the differences between what the McDonald’s employees stated at trial and what the breath room video showed, in terms of the appearance of the accused.

37I reject each of those points.

38On identity, this was a circumstantial evidence case. On appeal, I must be satisfied that the trier of fact acting judicially could “reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”. R. v. Youssef, 2018 ONCA 16, [2018] O.J. No. 140 (C.A.), at paragraph 4.

39I am satisfied of that. Looking at the very short interval between the times that the suspect was at the drive-thru and when Gopalapillai was arrested, and looking at the map of the area (Exhibit 1), and looking at the MTO documents (Exhibit 2), and there being no doubt that Gopalapillai’s motor vehicle was at the drive-thru (given its description and its licence plate) and then was at his residence along with Gopalapillai, and considering the striking similarity between the shirt described by Medeiros and the shirt worn by Gopalapillai on the breath room video, plus the presence of the children at the home as observed by the police matching what was observed at McDonald’s, plus the fact that the police observed alcohol on the breath of the accused, all in all, this was nothing short of an overwhelming circumstantial case.

40The in-court identification of Gopalapillai by Kamboj and Medeiros added not much to the overall puzzle, as the trial judge expressly recognized at paragraphs 52 to 55 of the Reasons for Judgment.

41Very strong circumstantial evidence, as in this case, goes a long way to minimizing the dangers associated with eyewitness identification. R. v. Gonsalves, 2008 CanLII 17559 (ON SC), [2008] O.J. No. 2711 (S.C.J.), at paragraph 45.

42The trial judge, of course, was aware of there having been no photo line-up. And he explicitly referred to the factor of how long (short, actually) these witnesses had to observe the man at the drive-thru. And he explicitly referred to how long had elapsed between the event and the time of trial. And he explicitly referred to the “dangers” of identification evidence and the need to treat it with “extreme caution”. The reader is directed to paragraph 51 of the Reasons for Judgment.

43There is absolutely nothing inconsistent between paragraphs 52 and 55 of the Reasons for Judgment. In essence, both paragraphs say the same thing – the identification evidence is weak and needs to be supported by other independent evidence that this accused was indeed driving that motor vehicle at that drive-thru at that time.

44On the issue of whether the trial judge failed to expressly include in his Reasons remarks about whether the McDonald’s witnesses said anything inconsistent with the demeanour of the accused as shown in the breath room video, it matters not.

45Counsel arguing the Appeal for the Defence acknowledged that the exchange between the trial judge and counsel for the accused during closing submissions shows that the trial judge was acutely aware that there was a difference. The trial judge did not suddenly forget that when preparing his Reasons the very next day. No set of reasons can ever be completely exhaustive.

46Having considered all of the arguments raised by the Appellant, I conclude that no errors have been made out. The verdict was entirely reasonable. The Appeal is therefore dismissed.

Conlan, J.