Court File and Parties

COURT FILE NO.: 48/18 DATE: 20190523 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – MANPREET SOHAL Appellant/Defendant

COUNSEL: S. Clarke, for the Respondent Crown M. Caterina, for the Respondent/Defendant

HEARD: March 26, 2019

MOLLOY J.:

REASONS FOR DECISION

INTRODUCTION

[1] Manpreet Sohal appeals from the decision of Justice E. Kelly of the Ontario Court of Justice, dated June 1, 2018, convicting him of impaired driving. Subsequently, Mr. Sohal was sentenced to 6 months’ probation, a 15-month driving prohibition, and a $1500.00 fine. There is no appeal from that sentence.

[2] There were two issues at trial: (1) whether Mr. Sohal was the driver of a Lexus involved in an accident with a Mazda on September 26, 2016; and (2) if so, whether he was impaired by alcohol at the time. On appeal, the only issue is the trial judge’s finding that Mr. Sohal was the driver of the Lexus.

[3] The appellant raises five grounds of appeal, as follows:

(1) The trial judge failed to properly instruct himself on the unreliability of eyewitness identification evidence; (2) The trial judge materially misapprehended the eyewitness identification evidence; (3) The trial judge erred in failing to consider that the reliability of the evidence of the two people in the Mazda (a husband and wife) may have been affected by collusion and collaboration; (4) The trial judge erred by treating the absence of embellishment as adding to the credibility of witnesses; and, (5) The trial judge erred in drawing an identification inference from the accused’s presence in the area of the collision.

[4] For the reasons that follow, I find no reversible error by the trial judge with respect to the first four grounds of appeal. The trial judge was alive to the frailties of eye witness identification, but was nevertheless entitled to take their evidence into account in reaching his verdict. He did not misapprehend the evidence of those witnesses. There was no evidence of collusion or collaboration, as was conceded by defence counsel in argument at trial. However, the trial judge was aware that the married couple eyewitnesses had discussed aspects of the accident prior to trial. Notwithstanding that, he was entitled to give their evidence the weight that he did. He did not treat the lack of embellishment as enhancing credibility; he merely noted that there had not been any. If there had been embellishment, that could be a factor reducing credibility, so it is relevant to take it into account. The only area in which I have any difficulty is with respect to the inferences drawn from the accused’s actions at the scene of the accident, but I find this to be a minor point that does not undermine the verdict.

B. FACTUAL BACKGROUND

The Collision

[5] On the night of Monday, September 26, 2016, Ferzad Yousefi was driving east on Humberline Drive in his Mazda. His wife, Humaira Yousefi was in the front passenger seat beside him. Meanwhile, a dark-coloured Lexus was approaching, driving westbound. At around 11:24 p.m., the Lexus veered directly into the eastbound lane and collided head-on with the Yousefis’ Mazda.

[6] Mr. and Ms. Yousefi gave somewhat conflicting evidence as to how and when the collision occurred. Ms. Yousefi said her husband had slowed down to negotiate a curve in the road and that she saw the Lexus drive “one third” into the eastbound lane when it was 250 metres away, about 30 seconds prior to the accident. She said her husband honked his horn and tried to turn to the right, but the Lexus hit their car at what she thought was right in the middle of the curve in the road. Mr. Yousefi testified that he saw the Lexus at the “split second” it came into his lane, and that he had no time to react. He said it was not far from him when he first saw it, estimating it at 10 to 20 metres away. He also thought the Lexus drove into his lane as he was approaching the curve.

[7] P.C. Bentley, who was the first officer on the scene, testified that when he arrived both vehicles were in the eastbound lane with the Mazda facing east and the Lexus facing west. The roadway where the collision occurred was straight, but there was a curve in the road about 100 metres east of the collision.

[8] Both cars were badly damaged by the collision and Ms. Yousefi was injured. She testified that both airbags in the Mazda deployed and that she was knocked unconscious for a brief time. She said that when she regained consciousness, she was lying on the ground just south of the roadway, a few feet from the Mazda and about 15 to 20 metres from the Lexus. She was crying, her chest hurt, her face was burning, and she was having trouble breathing.

[9] Mr. Yousefi was so focused on his wife’s wellbeing that he did not notice if his own airbag deployed. He did know that the passenger side airbag deployed and that initially his wife was unconscious and appeared not to be breathing. He got her out of the car from the passenger side and she regained consciousness and crawled onto the grass on the south side of the road. He said she was in distress and was having difficulty breathing. He went back to the Mazda briefly to see if he could find some water for her, but otherwise remained by her side until the ambulance arrived.

Eyewitness Identification

[10] Mr. Yousefi described himself as being mainly focused on his wife. However, he did note that at the beginning, the driver of the Lexus remained in his car. He saw another man (who he described as being tall, skinny and of East Indian decent) go up to the Lexus and start punching and kicking the driver of the Lexus as he sat in the driver’s seat. He said the driver of the Lexus then got out of the car, approached within a few feet of Mr. Yousefi, and said “I am sorry. I am sorry. It was my fault.” Mr. Yousefi said the man appeared to be drunk and smelled of alcohol. He said that interaction lasted “a few seconds” and the Lexus driver then went back to the Lexus. Shortly after that, Mr. Yousefi spoke to P.C. Bentley and identified himself as the driver of the Mazda. Soon after, he saw P.C. Bentley place the driver of the Lexus in handcuffs and saw him taken from the scene in a police car. It is common ground that the man arrested at the scene by P.C. Bentley was the accused Manpreet Sohal.

[11] Mr. Yousefi gave a description of the Lexus driver to P.C. Bentley at the scene. He described the Lexus driver as being East Indian, in his early 30s, “not skinny” and “not chubby”, with a “little bit beard” and moustache, short hair, and wearing a black shirt and pants.

[12] In the courtroom, Mr. Yousefi identified Mr. Sohal as the driver of the car.

[13] Ms. Yousefi was taken from the scene by ambulance and did not provide a statement to the officer describing the driver. At trial, she described him as male, brown skin, short hair and not very tall and said that she believed he had a beard. [1] She testified that she saw the driver of the Lexus get out of the driver’s seat and remain next to the door of his car. She said he was “very drunk,” that his head was falling, he “couldn’t hold himself properly” and was “wobbling around.” She said she heard him say he was sorry. Ms. Yousefi identified Mr. Sohal in the courtroom as the person who was the driver of the Lexus. He was seated next to his lawyer at the time she made that identification. She said she was 80% sure of her identification, but could not be completely sure because she had not seen his face properly at the scene. She said that she gave her description of the driver at the trial before looking at the accused. She acknowledged speaking to her husband about the driver after the accident, and in particular about their belief that he was drunk, but denied that her description or identification of Mr. Sohal was influenced by anything her husband told her.

C. REASONS OF THE TRIAL JUDGE

[14] The trial judge provided comprehensive oral reasons for judgment (covering 42 pages of transcript) and appended a separate summary of the evidence, which is a further 38 pages. He identified two issues: (1) whether Mr. Sohal was operating the Lexus; and (2) if so, whether his ability to drive was impaired by alcohol. It is only the first question that is an issue on appeal.

[15] The trial judge held that the in-court identification of Mr. Sohal by both Mr. and Ms. Yousefi had “limited, if any, probative value.” He noted that the only reasonable inference that anyone could have drawn from Mr. Sohal’s position in the courtroom was that he was the accused.

[16] The trial judge also noted the frailties of the Yousefis’ eyewitness identification of Mr. Sohal. He referred to the defence argument as being focused more on “suspect reliability” rather than credibility. He recognized that the defence position was that little if any weight could be put on their testimony identifying the driver at the scene because they were in distress, too preoccupied to make meaningful observations, and were able to make only fleeting observations. Further, he recognized the argument that Mr. Yousefi’s recollection of the appearance of the driver might have been tainted by his observations of Mr. Sohal at the time of his arrest.

[17] The trial judge accepted that “it was possible that the difficulties Mr. and Ms. Yousefi were experiencing in the aftermath of the accident impacted upon their ability to observe the appearance and conduct of the driver of the Lexus.” He also noted that there were limitations on their opportunity to observe the driver, that the observations were made at a very difficult and stressful time and that Mr. Yousefi’s observation of the arrest may have affected his description of the driver. However, having noted these frailties, the trial judge found that these circumstances did not necessarily mean their evidence was unreliable and did not preclude a finding that they had made meaningful observations. He reviewed other weaknesses in their evidence, including some discrepancies in their descriptions, and concluded that notwithstanding those concerns, he considered their evidence “on balance as supporting a determination that Mr. Sohal was the driver of the Lexus.”

[18] Finally, the trial judge considered other corroborative evidence in the form of documents relating to the car ownership and evidence from the surveillance camera on the police car. There were documentary exhibits at trial demonstrating that although the accused Manpreet Sohal was not the registered owner of the Lexus, the registered owner also had the surname Sohal and resided at the same address as the accused.

[19] The first police car on scene was equipped with a video camera that covered the area in front of the cruiser. The trial judge noted that very soon after the officer arrived on scene and was talking to firefighters, Mr. Sohal approached, but was waved away by the officer. The trial judge concluded that the manner in which Mr. Sohal was waved away was not consistent with a direction to Mr. Sohal to remain at the scene. However, Mr. Sohal continued to remain near the Lexus throughout, demonstrating that he had an interest in the vehicle.

[20] The trial judge ruled that none of the evidence of Mr. Yousefi and Ms. Yousefi as to their observations at the scene, the conduct of Mr. Sohal as shown on the police car video, or the documents in relation to the car would be sufficient, if considered separately, to establish beyond a reasonable doubt that Mr. Sohal was the driver of the Lexus. However, he ruled that the cumulative effect of the evidence was that the only inference that could be reasonably drawn is that Mr. Sohal was the driver of the Lexus at the relevant time and that any suggestion it was someone else could only be based on speculation.

D. ISSUE ONE: TREATMENT OF EYEWITNESS IDENTIFICATION

[21] The appellant argues that the trial judge merely “paid lip-service” to factors affecting the reliability of the Yousefis’ identification evidence and failed to “properly instruct himself” on the inherent frailties of eyewitness identification.

[22] The general principles with respect to the frailties of eyewitness identification and the dangers of convicting on such evidence are well-known and accepted by both parties. [2] However, care must be taken to distinguish between such cases dealing with the adequacies of a jury instruction, [3] as opposed to a decision of a judge sitting alone. A trial judge is not required to recite each and every aspect of the case law dealing with the frailties of eyewitness identification, in the nature of a jury instruction given to himself. It is sufficient that the trial judge’s reasons demonstrate that he was alive to the particular weaknesses of the evidence before him and that he grappled with them.

[23] It is apparent from the reasons of the trial judge that he was fully aware of the inherent frailties of eyewitness identification. He identified the particular weaknesses in the evidence before him and correctly ruled that such evidence, standing alone, would not be sufficient to convict. I would distinguish two of the cases relied upon by the appellant on this basis. In R. v. Goran, 2008 ONCA 195, the trial judge’s entire reasons were four pages and his comments with respect to eyewitness evidence consisted of three sentences, all of a general, conclusory nature. Blair J.A. wrote, “If I were able to ascertain from the trial judge’s reasons that he did in fact ‘address [himself] as to the dangers of the identification evidence of witnesses to a crime’, there would be no substance to this appeal.” [4] That is not the situation before me. The trial judge’s reasons in this case demonstrate his appreciation of the issues and how he addressed them.

[24] Similarly, in R. v. Gough, 2013 ONCA 137, the decision of the trial judge was reversed because he failed to scrutinize the specific frailties of the evidence and relied upon the witness’ testimony having a “ring of truth” to it, without recognizing that the frailty of eyewitness identification is not with respect to credibility or honesty of the witness—the witness will typically be sincere and truthful in his evidence and sound very compelling. The real issue is the reliability of the sincerely held belief. That is not an error made by the trial judge in this case. He directly addressed the reliability issue.

[25] There are two other important distinctions in the case before me. First, this is not a situation in which an eyewitness, in difficult circumstances and with a short opportunity to observe, later identifies somebody as the perpetrator. In this case, Mr. Yousefi observed the driver get out of the car, observed the driver come over and speak directly to him, apologizing to him for the collision, and then within minutes saw that same person arrested by the investigating officer and placed in the cruiser. There is no doubt that Mr. Sohal is the person arrested at the scene. Mr. Yousefi was able to connect the dots at the very time this was occurring. The trial judge was alive to that and also took into account, but rejected, the suggestion that Mr. Yousefi’s witnessing of the arrest tainted his identification. Second, this is not a situation in which the eyewitness testimony was the only evidence supporting the conviction. The trial judge specifically stated that he would not convict on the evidence of the eyewitnesses alone, but that he found their testimony to be supported by the corroborative evidence.

[26] The trial judge gave thorough reasons with respect to the weaknesses in the eyewitness evidence. However, he correctly held that this did not render that evidence completely devoid of any weight. He took into account the totality of the evidence, including other evidence that confirmed the eyewitness identification. He determined that the only reasonable inference was that Mr. Sohal was the driver. That is an inference that was open to him on the evidence. The weight to be given to such evidence is for the trial judge, and should not be second-guessed on appeal. [6]

[27] I would not give effect to this ground of appeal.

[28] I will deal below with the trial judge’s reliance on the connection between Mr. Sohal and his car as shown on the police car video and whether that undermines the ultimate verdict.

E. ISSUE TWO: MISAPPREHENSION OF THE EVIDENCE

The alleged errors

[29] The appellant argued that the trial judge materially misapprehended two aspects of the identification evidence: (1) Mr. Yousefi’s description of the Lexus driver’s build; and (2) Ms. Yousefi’s description of the driver of the Lexus. She submitted that these errors undermined the trial judge’s determination on identification.

Mr. Yousefi’s evidence as to build

[30] Mr. Yousefi described the Lexus driver as being of “average build.” Counsel for the appellant argued that the video evidence depicted Mr. Sohal as being a larger individual, bigger than “average.” The trial judge accepted that Mr. Sohal, at the time of trial, appeared to be above average weight. However, he noted that 18 months had passed since the time of the accident and “weight loss or gain over time is a common experience.”

[31] Counsel for the appellant argued that the trial judge fundamentally misapprehended the issue by failing to take into account the video footage from the scout car, which she submitted clearly showed Mr. Sohal to be heavier than average at the time of the accident.

[32] I have reviewed that video footage. Mr. Sohal was wearing pants and a loose shirt that was not tucked in. There were points of time in the video when the wind blew the shirt open and it could be seen that Mr. Sohal was carrying some extra weight around his belly. However, without the belly being exposed, which for the most part it was not, characterizing Mr. Sohal as being of “average build” is not an unfair description. It must, of course, be borne in mind that there is an element of subjectivity in this and that every person will have a somewhat different concept of what is “average.” For present purposes, however, I am satisfied that the trial judge committed no error in failing to hold that Mr. Yousefi’s description of Mr. Sohal as being of average build was inaccurate and undermined his identification evidence.

Ms. Yousefi’s description of the Lexus driver

[33] Ms. Yousefi did not provide a physical description of the Lexus driver prior to testifying at the trial. When she was testifying, Mr. Sohal was seated at the counsel table next to his lawyer. Counsel for the appellant submits that the trial judge erred in giving any weight to Ms. Yousefi’s description, which was tainted by her ability to observe the accused in the courtroom and was the equivalent of showing a lineup with a single photograph in it.

[34] Ms. Yousefi testified that she had not looked at Mr. Sohal in the courtroom before she gave the description she did and that her description was based entirely on what she had observed at the scene of the accident. The trial judge was in a position to observe the witness as she testified and was entitled to accept her at her word. Her evidence would only be tainted if she had in fact seen the accused before giving it.

[35] In these circumstances, I see no material misapprehension of the evidence by the trial judge. It was open to him to believe the witness on this point.

[36] As previously noted, the trial judge did make one error in respect of the identification evidence of Ms. Yousefi. His recollection of her evidence was that she described the driver of the Lexus as having no facial hair. In his reasons, the trial judge took into account the fact that Ms. Yousefi’s description of no facial hair was not consistent with Mr. Yousefi’s testimony that the driver had a slight beard as if he had not shaved for a few days. [7] In fact, when asked at trial whether the driver had any facial hair, Ms. Yousefi testified. “I believe, yes, he had a beard.” [8] This is an error, however, that enures to the benefit of the accused. The accuracy of the descriptions of the driver, and the consistency between the two descriptions, was stronger than the trial judge realized.

There was no material misapprehension of evidence

[37] I find no merit in this ground of appeal. There was no material misapprehension of evidence and the manner in which the trial judge handled these two issues in his reasons did not undermine his ultimate finding on identification.

F. ISSUE THREE: COLLUSION AND COLLABORATION

[38] Counsel for the appellant submitted that the trial judge erred in failing to consider that the consistencies and similarities between the accounts given by Mr. Yousefi and Ms. Yousefi may have been as a result of collusion and collaboration.

[39] In cross-examination of Ms. Yousefi, the accused’s trial counsel asked her if she had discussed the accident with her husband. Ms. Yousefi testified that she and her husband had talked about the after-effects of the accident such as attending physio and that they had also discussed the fact that both of them believed the driver was drunk. However, she said they had not discussed their memory of what the driver looked like, nor was she aware of any of the particulars of her husband’s statement to the police. Ms. Yousefi also testified that she had a memory of someone trying to hit the driver and yelling at him before the driver got out of the car, but she was not paying attention and did not remember what was being said. This was something her husband told her after the fact, which is why she did not include the information in her own statement to the police. She said she heard the sounds of an argument, but not what was being said. She also had an independent recollection of the driver coming up to them and saying he was sorry.

[40] Counsel for the accused at trial did not cross-examine Mr. Yousefi about any discussions between him and his wife about any of these matters.

[41] It is clear that collusion between witnesses to concoct evidence is an issue that must be taken into account in assessing both the credibility and reliability of their evidence. [9] However, in the course of closing argument, the accused’s trial counsel specifically advised that collusion was not alleged. The following exchange occurred:

THE COURT: …you are implying in a sense that they have provided generic descriptions because they have consulted with each other about the description of the suspect but what I would like to hear from you is an argument that the evidence discloses that these two people colluded about…. DEFENCE COUNSEL: Oh. No. No. No. I am not suggesting that they have colluded. [10]

[42] Thus, defence counsel: specifically abandoned any argument as to collusion between the Yousefis; failed to suggest even innocent tainting of evidence in her cross-examination of Mr. Yousefi; and raised with Ms. Yousefi the possibility of discussions between her and her husband, only to be met with denials. Notwithstanding that, the trial judge did in fact deal with the issue as follows in his reasons:

Ms. Yousefi acknowledged that she had spoken to her husband about the accident but suggested that for the most part their conversations involved consideration of the physical and emotional impacts that they were experiencing. She denied that her husband had provided her with information about the description of the driver. She did acknowledge that she and her husband spoke about their observations of the driver’s drunkenness. Ms. Yousefi denied that her husband told her anything about the details of his conversations with police officers during his February, 2017 interview. [11]

[43] Elsewhere in his reasons, the trial judge found Ms. Yousefi to be a credible witness. It is obvious that he believed her when she said that she and her husband had not discussed the physical description of the driver of the Lexus. There was no evidence whatsoever of any collusion or collaboration by either of the Yousefis, nor was there even any evidence that the physical descriptions they had provided were tainted by their having unconsciously adapted their version of the description to match what they had heard from each other.

[44] The trial judge was entitled to treat their descriptions of the driver as independent of each other and corroborative. There is no merit to the argument that he erred by failing to find collusion or collaboration.

G. ISSUE FOUR: ABSENCE OF EMBELLISHMENT

[45] The appellant argues that the trial judge erred by treating the absence of embellishment as adding to the credibility of the witnesses, relying on the Ontario Court of Appeal decisions in R. v. R.A.G., 2009 ONCA 829 and R. v. Kiss, 2018 ONCA 184. [12] Neither decision supports the appellant’s argument in this case.

[46] The portion of the trial judge’s reasons giving rise to this alleged error is as follows:

To their credit, all the civilian witnesses made admissions relating to the limits of their observations. … Both Mr. and Mrs. Yousefi acknowledged that their observations of the driver of the Lexus were brief and that they occurred at a point in time when both of them were quite distracted; she with her pain and he with attending to her. Ms. Yousefi identified Mr. Sohal as the driver of the Lexus but then candidly admitted that she was not certain about this identification because she did not get a good look at the driver’s face at the scene of the accident.

[47] R. v. R.A.G., 2009 ONCA 829 was an appeal from the decision of a provincial court judge finding the accused guilty of sexual assault. The Court of Appeal ordered a new trial based on several errors made by the trial judge in her credibility findings and the fact that she failed to properly apply the proper analysis set out in R. v. W.(D.), [1991] 1 S.C.R. 742. [13] One of the issues dealt with was the trial judge’s finding that the complainant had not embellished her testimony, which the Court of Appeal held was the “key factor” used by the trial judge for believing the complainant. The Court of Appeal held as follows (at para. 20):

Finally, the trial judge’s treatment of the complainant’s sudden allegation during her testimony at trial of a fourth incident of sexual impropriety – not revealed to anyone before – is perplexing at least. According to the complainant, this fourth incident was the most recent, and the one that triggered her reporting of the events leading to the charges. It formed what appears to have been for the trial judge the central example of the complainant’s restraint in not embellishing her testimony. Instead of being a factor that might undermine the complainant’s credibility, it became a positive factor underpinning it. I do not understand the logic of this treatment. The trial judge’s finding that the complainant was “restrained and did not take advantage of golden opportunities to embellish” her testimony was a key factor in her credibility findings in favour of the complainant.

[Emphasis added]

[48] In R. v. Kiss, 2018 ONCA 184, the Court of Appeal rejected the appellant’s argument that the trial judge had erred by using non-embellishment as enhancing credibility, even though the trial judge had twice referred to the fact that the complainant in a sexual assault case had not embellished or exaggerated her evidence. The Court of Appeal recognized that “it is wrong to reason that because an allegation could have been worse, it is more likely to be true.” [14] However, the Court went on to hold that because the presence of embellishment can be a basis for finding evidence to be incredible, it is not an error to simply refer to the fact that there is an absence of embellishment. Paciocco J.A. held:

On the other hand, in my view, there is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible.

Trial judges are presumed to know the law. In this case, there is no basis for apprehending that the trial judge inappropriately added weight to K.S.’s credibility. In my view, on a fair reading of the reasons for judgment, the trial judge was simply recording that K.S.’s evidence did not suffer from a problem of exaggeration or embellishment that would have diminished its weight. He did not err on this ground.

[49] The rationale explained by Paciocco J.A. applies with equal, perhaps even greater, force to the case before me. The trial judge in this case did not even refer to the absence of exaggeration or embellishment. His only comment was that the witnesses fairly conceded the frailties in their own evidence. Prefacing that observation with the phrase “to their credit” is not even close to an improper credibility finding. There is no merit whatsoever to the appellant’s argument that the trial judge used an absence of embellishment to bolster his credibility findings.

[50] This ground of appeal is dismissed.

H. ISSUE FIVE: EVIDENCE ABOUT THE VIDEO OF MR. SOHAL AT THE SCENE

The ruling of the trial judge

[51] From the video footage recorded by the camera on the front of the police cruiser, the trial judge noted that Mr. Sohal was the only person ever seen in close proximity to the Lexus. The trial judge also considered the interaction between Mr. Sohal and P.C. Bentley shortly after the officer arrived at the scene. The officer was speaking with firefighters near the collision site when Mr. Sohal left his position beside the Lexus and approached. As he drew near to P.C. Bentley, Mr. Sohal was speaking and pointing towards the Lexus. The officer waved him off, which the trial judge assumed (reasonably in my view) was because he wanted to continue his discussion with the first emergency responders on scene before speaking to anyone else. Mr. Sohal then returned to the area of the Lexus and waited.

[52] The trial judge considered the inferences that could be drawn from this behaviour. He concluded that the officer’s gesture was not consistent with ordering Mr. Sohal to remain at the scene and that Mr. Sohal must have remained on scene because he wanted to speak to the officer. From this, the trial judge inferred that Mr. Sohal had an interest in the Lexus and the accident investigation, and from this, he drew the further inference that Mr. Sohal was the driver of the Lexus.

[53] The trial judge acknowledged that the video evidence, standing alone, would not be sufficient to support a finding that Mr. Sohal was the driver. However, he used Mr. Sohal’s conduct, as seen on the police car video, to corroborate the eyewitness testimony and documentary evidence, concluding on the basis of the whole of the evidence that Mr. Sohal was the driver of the Lexus.

The position of the parties

[54] The appellant raises two arguments with respect to the trial judge’s use of the police car video evidence. First, it is submitted that the use of this conduct breaches an agreement between counsel, on the basis of which the defence abandoned its Charter motion. This, it is argued, interferes with the accused’s fair trial rights. Second, the appellant submits that the inferences drawn by the trial judge are not supportable by the evidence.

[55] The Crown submits that: the manner in which the trial judge used the evidence did not violate the agreement between counsel; the inferences drawn were reasonable; and, in any event, there was no substantial wrong or miscarriage of justice as the same result would have occurred without consideration of the police car video, relying on the curative provisions of s. 686(1)(b)(iii) of the Criminal Code.

The Charter motion and agreement between counsel

[56] The trial commenced on April 19, 2018. At the outset, the Crown advised the Court that he had become aware of a Charter issue that precluded the Crown from relying on the Intoxilyzer results and that the “blowing over 80” charge was therefore being withdrawn. The only charge proceeding to trial would be the impaired driving charge. No issue was taken with any of that.

[57] The defence had brought a motion under s. 7 of the Charter seeking to exclude from evidence the statement given by Mr. Sohal at the scene identifying himself as the driver of the Lexus. Initially, on the morning of April 19, 2018, it was determined that the voir dire on the Charter motion and the trial itself would proceed together on a blended basis. Evidence was heard that morning from an eyewitness, Daniel Butler, and from Ms. Yousefi. The testimony of Mr. Yousefi in-chief commenced, but was not complete by the time of the lunch break.

[58] When the trial resumed that afternoon, defence counsel advised the Court that she and the Crown had been able to resolve the Charter issue and that the Crown would not be seeking to rely on any statements made by Mr. Sohal at the scene for the truth of their contents. She also stated that the police car video at the scene could not be used to identify Mr. Sohal as the driver “simply because the video doesn’t show a vehicle being driven.” However, counsel agreed that the trial judge could use the video to determine that it was Mr. Sohal who was depicted.

[59] The agreement was never committed to writing.

[60] The trial then proceeded and the evidence of Mr. Yousefi was completed.

[61] On the morning of April 20, 2018, both counsel made submissions before the trial judge as to a misunderstanding between them on the precise terms of their agreement with respect to the Charter motion. Both counsel agreed that the actual statement made by Mr. Sohal identifying himself to the officer as the driver of the car would not be entered into evidence. Both counsel also agreed that video of Mr. Sohal amounting to such an admission at the scene would not be admissible, for example stepping forward, identifying himself, and submitting to a breathalyzer. Both counsel also agreed that the trial judge could use the video to determine what Mr. Sohal looked like that evening and whether there were any indicia of impairment. The Crown advised that he had thought from his discussions with defence counsel that identification of the driver was no longer going to be an issue in the trial. Defence counsel was adamant that she had never conceded this point and the trial judge agreed that it was never his impression that identification was conceded. The Crown essentially accepted this, but there was a disagreement between counsel as to the extent the video could be used for purposes other than signs of impairment. The Crown’s position was that the trial judge could use the video to consider whether the conduct of Mr. Sohal at the scene showed that he was the driver of the car. Defence counsel did not agree. The trial judge suggested that it was perhaps premature for him to rule on what could and could not be treated as admissible evidence from the video, as he had not yet seen or heard any of that evidence. It was agreed that the trial would continue and submissions would be made after the evidence had been called as to how it could be used.

[62] The trial then continued with the evidence of P.C. Bentley, and various exhibits were entered including the police car video from the scene and Ministry of Transportation documents relating to the vehicle.

[63] The evidence was followed immediately by submissions. Unfortunately, the issue of the admissibility of the video for purposes of identifying the driver was not addressed. In his submissions, the Crown suggested that the trial judge could take into account the evidence of P.C. Bentley that he asked who the driver of the Lexus was and that nobody apart from Mr. Sohal came forward, as well as a fact that he had been told that the driver of the Mazda was no longer on scene (he had gone to the hospital with his wife), but that he received no information about the driver of the Lexus leaving. When the Crown made those arguments, there was considerable skepticism from the trial judge as to either of those being appropriate, and the Crown did not press the issue. The only submissions made by the Crown in relation to inferences to be drawn from the video related to signs of impairment. Defence counsel responded to the submissions made by the Crown and made no submissions of her own as to the use of the video for purposes of identifying Mr. Sohal as the driver.

Analysis

[64] I find some element of unfairness in the inferences drawn by the trial judge from Mr. Sohal’s conduct as shown on the video. These are inferences that were not suggested by counsel in argument. That does not necessarily preclude the trial judge from drawing the inferences, but in circumstances where the judge knew this was a source of contention between counsel that had not been resolved and upon which they had not made submissions, it would have been preferable to seek submissions from counsel before drawing any such inferences. The trial judge was in a difficult position given that counsel said they would address the issue in submissions, but then failed to do so. However, he waded into dangerous waters in drawing the inferences he did.

[65] I am particularly troubled by the trial judge drawing an inference from Mr. Sohal approaching the officer and being waved off. The officer obviously said something, and it is speculation to suggest that it was something other than directing Mr. Sohal to wait by the car. Also, Mr. Sohal was compelled by law to remain at the scene of the accident and to provide a statement. Drawing an inference that because he was at the scene and standing beside the car means that he had an interest in the car, is perilously close to running afoul of the same rule that would exclude the compelled statement. [15]

[66] I should not be taken to have ruled that because there is a statutory obligation for a driver to remain at the scene of an accident, no inferences can ever be drawn from the presence of a person at the scene of the accident. This is not an appropriate circumstance to make such a sweeping pronouncement. However, given that this was a contentious issue and counsel were not given an opportunity to make argument about it, I find that the trial judge erred in drawing the inferences he did.

The curative provision

[67] Section 686(1)(b)(iii) of the Criminal Code states:

686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) may allow the appeal where it is of the opinion that

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(b) may dismiss the appeal where

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred

[68] In my view, the inferences drawn from the video footage were of negligible weight in the trial judge’s overall assessment of the evidence. The same result would have been reached without any reference to the video footage. Accordingly, while I find the trial judge erred in drawing the inference he did, I find no substantial wrong or miscarriage of justice. This error does not warrant setting aside the conviction or ordering a new trial, the result of which, in my view, would be inevitable.

I. CONCLUSION

[69] The appeal is dismissed.

MOLLOY J.

Released: May 23, 2019

Footnotes

[1] In his review of the evidence, the trial judge made a factual error, stating that Ms. Yousefi described the driver as having no facial hair. The appellant concedes this was an error by the trial judge.

[2] R. v. Miaponoose (1996), 1996 ONCA 1268, 30 O.R. (3d) 419, 110 C.C.C. (3d) 445, 2 C.R. (5th) 82 (C.A.); R. v. Jack, 2013 ONCA 80.

[3] e.g. R. v. Jack, 2013 ONCA 80; R. v. Yigzaw, 2013 ONCA 547.

[4] R. v. Goran, 2008 ONCA 195 at para. 26.

[5] R. v. Gough, 2013 ONCA 137.

[6] R. v. Hay, 2013 SCC 61.

[7] Reasons of the Trial Judge, Transcript June 1, 2018 at p. 34.

[8] Transcript, April 19, 2018, p.49 line 31- p.50, line 1.

[9] R. v. Burke, [1996] 1 S.C.R. 474, 1996 SCC 229; R. v. Clause, 2016 ONCA 859; R. v. J.F. (2003), 2003 ONCA 52166, 177 C.C.C. (3d) 1, 16 C.R. (6th) 317 (O.C.A.).

[10] Transcript, April 20, 2018, p. 133, lines 4-12.

[11] Reasons for Judgment, Appendix A, Transcript, June 1, 2018 at pp. 60-61.

[12] R. v. R.A.G., 2009 ONCA 829 at para. 20; R. v. Kiss, 2018 ONCA 184 at para. 52.

[13] R. v. W.(D.), [1991] 1 S.C.R. 742, 1991 SCC 93.

[14] R. v. Kiss, 2018 ONCA 184, supra, note 12, at para. 52.

[15] R. v. Soules, 2011 ONCA 429 and cases referred to therein.