Court File and Parties
Court File No.: SCA(P) 1184/18 Date: 2019-04-08 Ontario Superior Court of Justice Summary Conviction Appeal
Between: Her Majesty the Queen, Respondent – and – Satgur Singh, Appellant
Counsel: Gregory Hendry, for the Crown Respondent Douglas R. Lent, for the Appellant
Heard: March 25, 2019
Reasons for Judgment [On Appeal from the Judgment of Justice I. Jaffe, dated May 3, 2018]
J.M. Woollcombe J.
Introduction
[1] Mr. Singh appeals from his convictions for operating a motor vehicle while impaired, contrary to s. 253(1)(a) of the Criminal Code and fail to remain, contrary to s. 252(1) of the Criminal Code.
[2] By way of overview, Adam Pincente was at home in his bedroom on the evening of March 12, 2017 when he heard the loud bang of a car crash. He went outside to see if anyone needed help. He saw what he believed at the time had been a two car crash, but later learned was a collision by one car into a parked car. He noticed a male standing outside one of the cars and said that he did not think there was anyone else on the street in this residential area.
[3] Mr. Pincente asked the male if he was injured. The male responded that he was fine and that there was nobody else. Mr. Pincente asked if he had called 911. He said that the male made it clear to him that he should not call 911 and that he said, “Do not call 911 I had drink”.
[4] Not wanting to call 911 near the male, Mr. Pincente walked back to his house to make the call. He called 911 and the police arrived as soon as he was off the call. By then the male had left. Mr. Pincente provided the police with a description of the person to whom he had spoken.
[5] Police Constable Kelvin Wong received a radio call about an impaired driver at 10:43 p.m. While on route to the address, he saw the appellant, Mr. Singh, and believed that he was the driver of the vehicle who had left the scene. After a brief conversation with him, he arrested Mr. Singh.
[6] At trial, it was the defence position that the Crown had failed to prove beyond a reasonable doubt that Mr. Singh was the driver of the car involved in the collision and was the person to whom Mr. Pincente spoke.
[7] The trial judge carefully reviewed the evidence and was satisfied beyond a reasonable doubt that the appellant was the driver of the car that had the collision, and was the person to whom Mr. Pincente spoke immediately after. The appellant submits that the trial judge’s conclusion that Mr. Singh was the driver of the vehicle in the collision was unreasonable. While other grounds of appeal were advanced in appellant’s factum, at the oral hearing, counsel made clear that the sole ground of appeal he was pursuing was that the findings of guilt for impaired driving and fail to remain were unreasonable.
[8] It is well-established that on an appeal in which it is alleged that the verdict was unreasonable, the function of an appellate court is to determine whether, on the facts that were before the trier of fact, a properly instructed jury, acting reasonable, could convict. The appeal court must review the evidence and re-examine it and, to some extent, re-weigh it.
Analysis
[9] The appellant reminds me that the inherent frailties in eyewitness identification evidence are well-established and that identification evidence must be subjected to careful scrutiny. It is his position that while the trial judge adverted to the defence arguments as to why the description of the male provided by Mr. Pincente did not match Mr. Singh, she unreasonably dismissed them and so erred in concluding that Mr. Singh was the driver.
[10] The appellant submits that there were eight inconsistencies between the individual with whom Mr Pincente spoke and the person who was arrested. It is submitted that while she purported to address these inconsistencies, the trial judge did not do so in a meaningful way, and that her conclusion that the person arrested was the same person with whom Mr. Pincente spoke after the collision was, therefore, unreasonable.
[11] In my view, the trial judge was alive to the alleged inconsistencies and addressed fairly why, despite them, she was satisfied that Mr. Singh was the person with whom Mr. Pincente spoke and the driver of the car that had the collision.
[12] It is significant to note at the outset that, as she was required to, the trial judge made credibility findings respecting Mr. Pincente. She found that he was credible and that he had readily acknowledged the limitations in his observations. She also found that he admitted to having been confused by the commotion and concerned that someone might have been injured. She concluded that to the extent his description of the male with whom he spoke did not precisely fit Mr. Singh’s actual description, “those discrepancies can be reasonably explained by the limited duration and lighting in which Mr. Pincente’s observations were made.”
[13] I shall review each of the inconsistencies alleged by the defence at trial and on appeal, and the manner in which the trial judge considered and resolved them.
[14] First, the appellant says that Mr. Pincente described the person with whom he spoke as “Arab”. He testified that he had friends who were both Arab and East Indian and that he could distinguish between them. By contrast, the appellant says that he is East Indian. P.C. Wong testified that he had a Punjabi accent.
[15] While in his report to police, Mr. Pincente labeled the person with whom he spoke was Arabic, in his evidence at trial, he said that his skin complexion was brown.
[16] In her reasons, the trial judge recognized that Mr. Pincente had identified the person with whom he spoke as Arabic and that Mr. Singh was not Arabic. She then reviewed the evidence before her, noting that it appeared that Mr. Pincente had identified the male as Arabic to police as that was what had been broadcast over the radio. At the same time, she observed that when he testified, Mr. Pincente had said that male had brown skin complexion. She also noted that P.C. Wong, when he described seeing Mr. Singh, had described him as a “Middle Eastern male”. She said, “to the extent that Mr. Pincente’s description of the male as being Arabic was intended to convey that the male had darker skin and hair, I find that is not at all inconsistent with Mr. Singh’s appearance”.
[17] In my view, it was open to the trial judge, on the evidence before her, to find no significant inconsistency between the fact that Ms. Pincente had described the male with whom he spoke as “Arabic” and the fact that Mr. Singh is, in fact, East Indian. What was significant is not the particular ethnic labels attached to the description of the male or Mr. Singh. Labels can be inaccurate. Indeed, as the trial judge observed, P.C. Wong also mis-characterized Mr. Singh as Middle Eastern. What is important is the skin tone attributed to the individual with whom Mr. Pincente spoke, and whether that accorded with Mr. Singh’s skin colour. On that point, Mr. Pincente was clear that the male he spoke with had dark skin. The trial judge could see Mr. Singh’s skin colour and assess the quality of Mr. Pincente’s description. In my opinion, it was reasonable for the trial judge to find that Mr. Pincente’s description of the male’s skin colour was consistent with the skin colour that Mr. Singh had and, on that basis, to conclude that the descriptions of their appearances were not at all inconsistent. To the contrary, it is my view that this evidence supported the potential for finding that Mr. Pincente spoke to Mr. Singh.
[18] Second, the appellant says that Mr. Pincente testified that the male did not present as injured. P.C. Wong said that the appellant appeared to him to be limping and favouring his left leg.
[19] In his evidence, P.C. Wong clarified what he meant by limping. He said that he had recorded in his notes that the male was “stumbling / limping on the left side”. He said that the limping could have been because he was intoxicated or as a result of a pre-existing condition.
[20] The trial judge adverted in her reasons to the issue of Mr. Singh’s limp, as was observed by P.C. Wong, and the fact that Mr. Pincente did not observe any injuries. She found that the limp supported an inference that Mr. Singh was the driver of the crashed car. She also found it not to be significant that Mr. Pincente had not observed any limp, noting that he had only seen the male standing by the car and that his opportunity to see Mr. Singh’s gait had been limited.
[21] I see nothing unreasonable about the trial judge’s analysis of this alleged discrepancy. P.C. Wong testified that it was when he watched Mr. Singh cross an intersection that he observed “that he appeared to be limping” on his left side and that he was not wearing his shoe properly. On Mr. Pincente’s evidence, he did not watch the male with whom he spoke walk away, and only noticed that the male was gone after his 911 call. He was neither asked, nor provided any evidence about ever having seen the person walking. In view of this evidence, it was reasonable for the trial judge to reject the alleged evidential discrepancy as having any significance.
[22] Third, the appellant says that Mr. Pincente observed no blood on the clothes or lip of the male with whom he spoke. P.C. Wong testified that he observed some blood on Mr. Singh’s shirt. Asked to clarify where he had seen the blood, he said he had seen dried blood on Mr. Singh’s jacket and “some blood – dry blood” on his bottom lip.
[23] The trial judge concluded that the blood seen by P.C. Wong provided some support for Mr. Singh having been the driver of the crashed car. Further, she held that “it is not surprising to me that Mr. Pincente would not have immediately noticed dried blood on dark clothing in a dimly lit scene. It is not as though Mr. Singh was bleeding profusely.” She also observed that there is no way of knowing how or when any injury occurred.
[24] In my view, the trial judge’s explanation for having no concern about the fact that Mr. Pincente did not see the blood that was later observed by P.C. Wong was reasonable and makes sense. The male seen by Mr. Pincente wore dark clothing. Mr. Pincente described the lighting on the street as “dark” and “with dim lighting”. It seems entirely reasonable to me that Mr. Pincente would not have noticed blood on the male’s jacket, given the lighting, the fact that the jacket was dark and the duration of time Mr. Pincente spent with the male. Further, as the trial judge noted, it is of some significance that there is no evidence as to when the lip injury occurred. While the appellant asserts that if Mr. Pincente had spoken to Mr. Singh, he would have noted the blood on the lip, I am far from persuaded that this is necessarily so. To the contrary, given the dimly lit area and absence of evidence as to how and when Mr. Singh’s lip was injured, I think it was open to the trial judge to find the alleged inconsistency about the blood on the lip to be inconsequential.
[25] Fourth, the appellant says that Mr. Pincente testified that he was close to the male and that the male had no odour of alcohol on his breath. In contrast with this, P.C. Wong testified that he detected a very strong odour of alcohol on Mr. Singh’s breath. In a similar, fifth argument, the appellant says that while Mr. Pincente testified that the male with whom he spoke emitted an odour of a spicy substance, P.C. Wong testified that he did not smell anything beside the strong smell of alcohol on Mr. Singh’s breath, which he described as “dry, stale, alcoholic breath”.
[26] The trial judge addressed this issue directly in her reasons, acknowledging the inconsistency that had been pointed out about what odours were smelled by Mr. Pincente and P.C. Wong. She observed that while Mr. Pincente did not detect the odour of alcohol, he did observe an odour of something spicy, consistent with what his friends chew. More importantly, she also noted that the male had admitted to Mr. Pincente that he had consumed alcohol and that, as a result, he did not want 911 called. Mr. Pincente had also said that the male with whom he spoke “seemed kind of dopey” and “he was not in the right mind – state of mind”. Under cross-examination, he was asked about having told the police that the male was “dumb”. He explained that what he had meant was “he was either drunk or dumb”. The trial judge relied on this evidence, combined with the admission of alcohol consumption made by the male with whom Mr. Pincente spoke, to conclude that the person to whom Mr. Pincente spoke had been drinking and so had Mr. Singh.
[27] I find the trial judge’s analysis to be logical and reasonable. It was for the trial judge to assess the significance of Mr. Pincente and P.C. Wong having detected different odours, and to draw available inferences from the evidence as a whole. It was open to the trial judge, while adverting to the odour inconsistency, not to place much weight on it and, instead, to infer that the evidence as a whole suggested that there had been alcohol consumed by both the person with whom Mr. Pincente spoke and Mr. Singh.
[28] Sixth, the appellant points out that Mr. Pincente described the male with whom he spoke as having “salt and pepper” hair. By contrast, P.C. Wong testified that Mr. Singh had black hair that was not “salt and pepper”.
[29] It is important to consider the evidence Mr. Pincente gave about the hair of the male with whom he spoke. Under cross-examination, he confirmed that in the description he provided to police at the time, he said that the person had “salt and pepper hair”. He explained what he meant saying, “So he has dark hair with – you can see like greying – it’s greying, like, grey coming out, like grey roots kind of thing…” He further clarified, “…I meant he had dark hair that was – looked like it was starting to grey”. He then agreed with counsel’s suggestion that it was “black hair but grey sort of mixed in throughout his hair”.
[30] The trial judge said that she was not troubled as a result of Mr. Pincente having described the male’s hair as “salt and pepper”. She explained that Mr. Pincente had made clear that by “salt and pepper”, he meant that it was “dark hair that looked like it was starting to grey”. She reasoned that grey was “clearly not a predominant colour” and that “dark was”.
[31] I do not accept the appellant’s position that the trial judge did not fairly and reasonably assess what is said to be a conflict in the hair colour described by Mr. Pincente and P.C. Wong. On the basis of the evidence of Mr. Pincente, which the trial judge was in the best position to assess, it was open to her to conclude that Mr. Pincente thought the male’s hair was predominantly dark, but starting to grey. While she recognized that this was somewhat inconsistent with how P.C. Wong described Mr. Singh’s hair, I think it was reasonable for her to find that this was not the significant inconsistency suggested by the defence and was a fairly minor difference.
[32] Seventh, the appellant says that the male with whom Mr. Pincente spoke was described as wearing dark clothes, and not anything bright or yellow. By contrast, P.C. Wong said that Mr. Singh was wearing a yellow shirt.
[33] The evidence of P.C. Wong was, in fact, that Mr. Singh wore “a dark coloured winter jacket with blue jeans and he had a yellow shirt underneath”. He testified that when he observed Mr. Singh, he was wearing a black jacket.
[34] The trial judge recognized the alleged inconsistency but noted that the yellow shirt worn by Mr. Singh was underneath a dark jacket. She concluded that it was “entirely possible the jacket was closed when he was speaking with Mr. Pincente.”
[35] I find the trial judge’s explanation for not finding much significance in the discrepancy between Mr. Pincente seeing only dark clothes, and P.C. Wong describing having seen Mr. Singh with a dark winter jacket and a yellow shirt underneath to be reasonable. This was late in the evening in March. Mr. Singh was wearing a dark winter coat. The trial judge’s view that his jacket could easily have been closed, thus preventing Mr. Pincente from seeing his shirt underneath, was certainly available to her on the evidence and, in my view, makes sense.
[36] Finally, the appellant submits that Mr. Pincente’s evidence was that the male with whom he spoke did not have a beard and had only a five o’clock shadow. By contrast, P.C. Wong’s evidence was that Mr. Singh had a full beard.
[37] It is recall how the evidence about the facial hair was adduced at trial. During his evidence in chief, in response to being asked what the male with whom he spoke looked like, Mr. Pincente said, “at the time he did have a – I believe he had, like, a little bit of like a shadowy beard”. Under cross-examination, he confirmed that he had not mentioned to the police that the male had a beard. He then repeated his evidence that the male had a “shadowy beard”, by which he meant not a full beard.
[38] The trial judge found, as she was entitled to, that having not said anything about facial hair in his statement, Mr. Pincente had been trying, in his evidence, to recall as best he could what facial hair the male, whom he saw briefly, in dim light, and while in a state of confusion, had. She accepted that in the circumstances, there were bound to be inaccuracies and that Mr. Pincente’s description was not entirely inconsistent with how Mr Singh appeared.
[39] I find the trial judge’s conclusion about the significance of the alleged inconsistency between Mr. Pincente’s description of the male with whom he spoke having a shadowy beard, and Mr. Singh having a full beard, was available to her on this record. As she recognized, Mr. Pincente did not describe the male’s facial hair in the description he provided to the police at the time. He was doing his best, much later, to recall and testify about the facial hair he saw. Significantly, his evidence made clear that the male was not clean shaven. I think that the difference between a full beard and a shadowy beard is really a matter degree. On this basis, I cannot conclude that the trial judge’s assessment of the evidence was unreasonable.
[40] Having addressed the defence position that there were important inconsistencies between the evidence of Mr. Pincente about the male with whom he spoke, and the description of Mr. Singh as provided by P.C. Wong, the trial judge went on to make findings about other aspects of the evidence that, cumulatively, persuaded her that the person to whom Mr. Pincente had spoken was Mr. Singh. As she properly recognized, this was not a case that rested on Mr. Pincente’s description alone.
[41] Indeed, other evidence that supported a conclusion that Mr. Pincente spoke with Mr. Singh and that Mr. Singh was the driver of the car involved in the collision included:
a. The fact that within ten minutes of a male speaking to Mr. Pincente at the scene of the crash, Mr. Singh was observed on the very street on which the collision happened, about 200 metres away. The appellant suggests that Mr. Singh was closer than would have been expected had he had ten minutes after the collision to distance himself from it and walk away. The appellant says that the trial judge failed to recognize that Mr. Singh was too close to be an individual trying to distance himself from the collision. I do not accept this. There is no way of knowing the speed at which Mr. Singh was walking. What is known is that Mr. Singh had been drinking, that he appeared to be limping, and that one of his shoes was not worn properly and his laces were untied. In these circumstances, it was open to the trial judge to find it significant that Mr. Singh was seen 200 meters from the collision within 10 minutes of Mr. Pincente’s 911 call. b. The fact that Mr. Singh was seen so close to the accident after 10:30 p.m. in a quiet residential neighbourhood where none of Mr. Pincente, P.C. Wong or P.C. Dhaliwal saw any other pedestrians in the area; c. The male with whom Mr. Pincente spoke had an accent and spoke broken English. Mr. Singh had an accent and spoke in broken English. This evidence was unchallenged; d. The car in the collision had an Alberta license plate. Mr. Singh was found in possession of an Alberta driver’s license. e. There were no significant discrepancies that were not explained or reconciled by the trial judge between the description of the male provided by Mr. Pincente and the description of Mr. Singh.
[42] Bearing in mind the test to be applied to a claim that the verdict was unreasonable, I find that the verdict is one which was properly available on the evidence. I see the evidence, cumulatively, that the person to whom Mr. Pincente spoke was, in fact Mr. Singh, to be compelling. I also find the evidence as a whole fully supported a finding that Mr. Singh was the driver of the car in the collision.
[43] The Crown submits that the court can take into consideration the appellant’s silence in assessing the unreasonable verdict claim. The law is clear that an accused’s silence may not be placed on the evidentiary scales by either a trial court or on appeal. While the accused’s silence is indicative of the absence of an exculpatory explanation, it is not a make weight: R. v. Noble, [1997] 1 S.C.R. 874, 1997 SCC 388; R. v. Prokofiew, [2012] S.C.J. 49, 2012 SCC 49. In this case, the trial judge made nothing of the accused’s silence and I decline to take it into consideration in assessing the reasonableness of the verdict.
Conclusion
[44] In my view the verdict of the trial judge was reasonable. The appeal is dismissed.
Woollcombe J.