Her Majesty the Queen v. Bilal Moucho, 2019 ONSC 3463

COURT FILE NO.: 85/18-00AP DATE: 20190605

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Arish Khoorshed, for the Respondent Respondent

- and -

BILAL MOUCHO Fariborz Davoudi, for the Appellant Appellant

HEARD: May 1, 2019 at Milton

REASONS FOR JUDGMENT

[On appeal from the Judgment of Justice S. Brown dated January 5, 2018]

F. Dawson J.

[1] On January 5, 2018 the appellant was convicted by Justice S. Brown of the Ontario Court of Justice of dangerous driving and failing to stop for the police, contrary to ss. 249(1)(a) and 249.1(1) of the Criminal Code. He was also convicted of the provincial offence of speeding, by driving 116 kilometres per hour in an 80 kilometre per hour zone.

[2] The only issue at trial was the identity of the driver of the offending vehicle. The other elements of the offences were admitted. The appellant testified at trial that he was not the driver. The trial judge rejected his evidence, accepted the evidence of the police officer, who was the only other witness, and convicted the appellant.

[3] The appeal is limited to the admissibility of fresh evidence tendered by the appellant. If the fresh evidence is admissible a new trial must be ordered. If the fresh evidence is not admissible the appeal must be dismissed.

[4] The fresh evidence consists of cell phone records for the number 647-302-9491 and a brief affidavit of the appellant. In that affidavit the appellant swears that on March 15, 2015 he was not in the Milton area, where the offence occurred, but working on a renovation job in Etobicoke. He also swears that the cell phone records recently produced are for his cell phone. He submits that the records demonstrate that his cell phone was being used in Toronto at the time the officer testified he saw the appellant operating a vehicle in a dangerous manner in Milton. The appellant also testified on the appeal to supplement his affidavit in respect of his exclusive use of the cell phone.

[5] In order to evaluate the admissibility of the fresh evidence it is important to have some understanding of the evidence at trial and how the case was defended.

The Evidence at Trial

[6] Cst. Mark Jolly was the only prosecution witness. He testified that on Sunday March 15, 2015 he was operating an unmarked police vehicle heading eastbound on Derry Road in Milton. He was in the centre lane. He noticed a red car approaching from behind in the curb lane at a high rate of speed. As the vehicle passed him he picked up speed beside it to pace it and to observe the driver.

[7] The trial judge found that Cst. Jolly observed the other driver for approximately seven to nine seconds and that during that time the suspect removed his sunglasses and looked directly at Cst. Jolly before putting the sunglasses back on. The trial judge found that Cst. Jolly had a good opportunity to observe the other driver and that he had recorded a description of the driver in his notes.

[8] Cst. Jolly testified that when he pulled in behind the red car and activated his police emergency lights the vehicle failed to stop. He provided other details of the ensuing pursuit, which he abandoned due to safety concerns.

[9] Cst. Jolly had the make and licence plate number of the red vehicle. He learned that it was registered to a rental company and that the accused had rented it on February 14, 2015 for one month. Cst. Jolly obtained the phone number provided by the appellant when he rented the vehicle, which is the same number as appears on the cell phone records produced as fresh evidence. He also obtained the appellant’s particulars which allowed him to access a single photograph of the appellant through Ministry of Transportation records. Cst. Jolly testified that upon seeing that photograph he was certain the appellant was the driver. As he put it, he was “110 percent sure”.

[10] Cst. Jolly testified that he called the phone number in question about 10 times over a period of time commencing on March 16, 2015. With one exception, no one answered the phone. The phone would go to a busy signal. There was no answering service. One time he received a recorded message that the customer was unavailable. On one occasion in April 2015, shortly before the appellant attended at a police station and was arrested, Cst. Jolly said the phone was answered by a female. He assumed she was the appellant’s girlfriend. Cst. Jolly told the female that the appellant should come to the police station.

[11] The appellant testified that he was not driving the rental car on the afternoon of March 15, 2015. While he did not give definitive evidence from first hand knowledge as to who was driving the rental car at the relevant time, the thrust of the defence case was that the driver was likely Mahmoud Bawadkji, an employee of the appellant’s renovation business. While the appellant’s trial evidence was confusing and disorganized, he maintained that he had instructed Mr. Bawadkji to return the rental car. This evidence was confusing because it was intermingled with the appellant’s evidence that he and his girlfriend had booked a trip to Mexico which had to be delayed for a few days while he finished a renovation project. He testified at trial that he instructed Mr. Bawadkji to return the car before he was scheduled to leave, although he did not see Mr. Bawadkji after giving those instructions. He said Mr. Bawadkji did not come to work and did not answer his phone. The car was not returned until March 25.

[12] The appellant was initially confused about the dates when he left on the Mexico trip when he gave a statement to the police following his arrest on April 17, 2015. He was also confused about that date when he testified at trial and again when he testified on the appeal on the limited issue of his use of the cell phone.

[13] Returning to Cst. Jolly’s evidence, the officer testified that on March 25, 2015 he learned that the overdue rental car was to be returned to the rental agency that day. He waited in a parking lot near the rental company in an unmarked police vehicle, hoping to arrest the person he had seen driving on March 15. When the car was returned it was being driven by Mr. Bawadkji, whom the officer spoke to in some detail. Cst. Jolly said Mr. Bawadkji was not the person he saw driving the car on March 15, 2015. This was after the officer had seen the photo of the appellant and concluded that he was sure the appellant was the driver. The appellant and Mr. Bawadkji are both of Syrian dissent.

The Trial Judge’s Reasons for Judgment

[14] The trial judge gave extensive reasons, reviewing all of the evidence in considerable detail. His reasons reflect that he was well aware of the frailties of eyewitness identification evidence. He took into account that in the early part of Cst. Jolly’s investigation the officer had seen a single photograph of the appellant which was associated with the appellant’s driver’s licence in records available from the Ministry of Transportation.

[15] Of central importance to the trial judge’s ultimate conclusion was his finding that during the appellant’s police interview on April 27, 2015 he said that prior to his departure for Mexico the only time Mr. Bawadkji drove the red Dodge Dart rental car was on “coffee runs” to Tim Hortons for 10 to 15 minutes. In that same statement it was eventually established that the appellant’s delayed departure to Mexico was on March 20, 2015 (five days after the alleged offence) and that he returned to Toronto on March 25, 2015 (the day the rental car was returned). At the beginning of the trial it was admitted that the appellant’s statement of April 27, 2015 was voluntary. It appears it was placed into evidence, although that is somewhat unclear. In any event, the appellant was cross-examined on the portions of the statement the trial judge relied upon. The trial judge held that this undermined the evidence of the appellant and tended to corroborate the evidence of Cst. Jolly.

Other Relevant Factors

[16] I observe that the entire thrust of the defence at trial was that Mr. Bawadkji was likely the driver, not that there was some other unknown person driving the car at the time. I also observe that, while the appellant always denied he was the driver, he did not advance a classic alibi defence at trial. Although it was implicit that as he was not the driver he was elsewhere, he did not testify with precision as to where he was at the time of the offence. He did testify that in addition to his regular employment he had a renovation business and that he was working on renovation projects in Etobicoke in March 2015. He made no mention of the cell phone in question during his trial evidence.

[17] The appellant’s explanation for failing to raise his cell phone records at trial is briefly stated in his affidavit in support of the fresh evidence application. There he states: “At the time of my original trial I did not inform my counsel of the phone records for my cell phone because I did not think the evidence of my cell phone records would be necessary or have helped me at my trial.”

[18] When testifying on the fresh evidence application the appellant said he was the only person who used the cell phone. When he was cross-examined about the officer’s evidence that on the one occasion when the phone was answered it was by a female, the appellant said that his fiancée may have answered the phone when he was in the shower. He maintained that otherwise, he had exclusive use of the cell phone.

[19] The phone records show that on Sunday March 15, 2015 the cell phone in question made or received seven calls between 5:19 p.m. and 5:46 p.m. and that the phone was in Toronto at that time. The numbers that called the phone or were called by the phone are identified. No evidence has been provided by the appellant or the respondent about those numbers. No affidavit has been provided from the appellant’s fiancée about whether she used the phone.

[20] The phone records also show that there was no activity on the cell phone from March 20, 2015 at 5:45 p.m. until March 26, 2015 at 10:19. This coincides with the appellant’s trip to Mexico.

The Test for Admissibility of Fresh Evidence

[21] An appellate court has a broad discretion to admit fresh evidence on appeal pursuant to s. 683(1)(d) of the Criminal Code. In deciding whether to exercise that discretion the overriding consideration is the interests of justice: R. v. G. (K.R.) (1991), 5 O.R. (3d) 406, 68 C.C.C. (3d) 268 (Ont. C.A.). The principles which should be applied to determine the admissibility of fresh evidence were described in R. v. Palmer and Palmer, [1980] 1 S.C.R. 759, at p. 775, as follows:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[22] It has been held that in determining whether the due diligence requirement has been met the reason why the evidence was not available at trial must be determined: R. v. B.(G.D.), 2000 SCC 22, [2000] 1 S.C.R. 520, 143 C.C.C. (3d) 289. As Doherty J.A. put it in R. v. M.(P.S.) (1992), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 409, the question is whether there is “a satisfactory explanation for the failure to produce the evidence at trial”. As Doherty J.A. also said of the four Palmer criteria in M.(P.S.), at p. 409:

The last three criteria are conditions precedent to the admission of evidence on appeal. Indeed, the second and third form part of the broader qualitative analysis required by the fourth consideration. The first criterion, due diligence, is not a condition precedent to the admissibility of "fresh" evidence in criminal appeals, but is a factor to be considered in deciding whether the interests of justice warrant the admission of the evidence: [Citations omitted.]

[23] The importance of the due diligence requirement varies from case to case and must yield where a miscarriage of justice would otherwise result: R. v. B.(G.D.); R. v. Warsing, [1998] 3 S.C.R. 579, 130 C.C.C. (3d) 259. However, as Doherty J.A. said in M.(P.S.), at p. 411:

While the failure to exercise due diligence is not determinative, it cannot be ignored in deciding whether to admit "fresh" evidence. The interests of justice referred to in s. 683 of the Criminal Code encompass not only an accused's interest in having his or her guilt determined upon all of the available evidence, but also the integrity of the criminal process. Finality and order are essential to that integrity. The criminal justice system is arranged so that the trial will provide the opportunity to the parties to present their respective cases and the appeal will provide the opportunity to challenge the correctness of what happened at the trial. Section 683(1)(d) of the Code recognizes that the appellate function can be expanded in exceptional cases, but it cannot be that the appellate process should be used routinely to augment the trial record. Were it otherwise, the finality of the trial process would be lost and cases would be retried on appeal whenever more evidence was secured by a party prior to the hearing of the appeal. For this reason, the exceptional nature of the admission of "fresh" evidence on appeal has been stressed: [Citations omitted.]

Analysis

[24] I will address each of the four Palmer criteria in order.

[25] There has been a total failure to establish the due diligence criteria in this case. In fact, the appellant’s own affidavit establishes a lack of due diligence. It demonstrates that he was aware of his cell phone records prior to his trial but did not think that they would help him at his trial. Therefore, he did not inform his trial counsel (not counsel on the appeal) about them.

[26] I also observe that it is reasonable to expect that competent counsel would have canvassed with the accused whether there were any receipts or other documents which would tend to support the appellant’s claim that he was not in Milton at the time of the offences. The court has not been provided with an affidavit from trial counsel explaining whether such inquiries were made of the appellant.

[27] As my review of the applicable legal principles above demonstrates, this conclusion on the first Palmer criteria is not determinative, but yet it cannot be ignored. As a number of cases indicate, the issue becomes whether in the totality of the circumstances the findings in terms of the other Palmer factors are so compelling that, in the balancing, the interests of justice requires the admission of the evidence. See, for example, R. v. C.(R.) (1989), 47 C.C.C. (3d) 84 (Ont. C.A.), at p. 87. There the tension between the due diligence criteria and the overall interests of justice was referred to as a “conundrum”.

[28] The second Palmer criteria requires that the evidence must be relevant to a decisive or potentially decisive issue at trial. This requirement is easily met by the proposed fresh evidence in this case. The evidence is relevant to the issue of the identity of the driver, which was the critical issue at trial. If the appellant was the exclusive user of the cell phone on March 15, 2015 the records provide evidence tending strongly to show that he was not in Milton at the relevant time.

[29] I observe that no affidavit has been tendered from a representative of the cell phone provider to explain the billing records. However, based on the expanded billing records filed at the hearing of the appeal on consent, it is apparent that calls placed to or from Toronto, Milton and Oakville, for example, are all differentiated in the records. I am satisfied that an indication in the billing records that the cell phone was called or making calls while in Toronto indeed means that the phone was not in Milton.

[30] The third criteria is credibility, but as stated in Palmer the question at this stage is whether the evidence is “reasonably capable of belief”.

[31] In this case there is no suggestion that the records themselves are not credible and reliable. I observe that the cell phone was registered to a renovation business that was operated by the appellant. This assists in tying the cell phone to the appellant, although it also raises the possibility that others employed in the business used the phone. The appellant testified at trial that he had two other employees at the time of the alleged offences. I will comment on this issue further below. However, in terms of the credibility of the records themselves, I note that the respondent did not apply to cross-examine the appellant on his affidavit in advance of the hearing and has not filed any evidence to challenge the accuracy of the records or anything else relevant to the application.

[32] While the records themselves appear to be credible, the real issue is whether the appellant was in possession of the cell phone at the relevant time on March 15, 2015. Counsel for the respondent challenges the appellant’s credibility on that important point. As indicated, I expressed concern at the commencement of the application that the appellant’s affidavit was somewhat ambiguous on this point. It was as a result of that concern that viva voce evidence was called on the fresh evidence application.

[33] Counsel for the respondent took no objection to proceeding in that fashion and cross-examined the appellant on this issue. While I did not permit cross-examination at large on all aspects of the fresh evidence application, considerable leeway was extended so that counsel for the respondent could test the appellant’s credibility. The appellant steadfastly maintained that he was the only one who used the cell phone on March 15, 2015. The thrust of his evidence was that, while his fiancée may have answered the phone on the day the officer called, the phone was for his use. There is no evidence the cell phone was used by other employees or by anyone other than the appellant on March 15, 2015 or at any other time.

[34] I observe that the credibility of the appellant on this issue might also be analyzed under the fourth Palmer requirement. If the credibility requirement is not met in relation to the appellant’s exclusive possession and use of the cell phone on March 15, 2015 then the fresh evidence could not reasonably be expected to have affected the result. Recognizing that this consideration bleeds into the fourth Palmer factor, I find it best to deal with the credibility issue here.

[35] One of the things that has caused me concern is the inter-relationship between the lack of due diligence described earlier and the credibility issue now under discussion. One might think, as a matter of common sense, that in circumstances where an accused is asserting that he was not present at the time and place of the crime, that he would provide his counsel with any documentation that might tend to support his position. It seems to me that being aware of the cell phone records and yet failing to produce them could support an inference that they were not produced because the appellant was aware that they would not be of assistance. This could be on the basis that he was not the exclusive user of the cell phone. This is something which weighs against the appellant’s credibility in relation to this particular issue and I have given it careful consideration.

[36] However, as noted in Warsing, at para. 52, citing R. v. Stolar, [1988] 1 S.C.R. 480, an assessment of credibility in a fresh evidence application should be carried out against the whole background of the case. From both his trial testimony and his testimony before me I formed the impression that the appellant is a generally disorganized person. He was also not prepared for his trial. He arrived late for the trial because he thought it was scheduled for the following day. He has a great deal of difficulty with dates and times and becomes easily confused. I also observed when the appellant was testifying before me that he seemed to be having some difficulty with language. English is not his first language. I am advised he did not have an interpreter at his trial, nor did he when testifying before me.

[37] An example of the appellant’s disorganization and confusion arose during his cross-examination before me. Crown counsel cross-examined the appellant about when he departed on his delayed trip to Mexico. Although this is something which has come up repeatedly in this case the appellant cannot keep the dates straight. This could be an indication of a lack of credibility but, while it is something which has given rise to confusion when the appellant testifies, the trip itself is not something that has been contentious. When interviewed by the police at the time of his arrest the appellant was in possession of travel documents which showed that he returned from the trip on March 25 and there was no real contest about how long he was away. Yet he remains confused.

[38] When testifying before me, by making reference to the days of the week the appellant said he left for Mexico on March 17. He also agreed in cross-examination that, as he was the only one who used the phone, his phone would not be making or receiving calls when he was in Mexico.

[39] Counsel for the respondent then cross-examined the appellant on his cell phone records to demonstrate that they showed calls made on March 17, 18 and 19, 2015. Counsel for the respondent suggested to the appellant that this showed the he was not telling the truth when he said he had exclusive use of the cell phone.

[40] At that point appellant’s counsel brought to the court’s attention that in the appellant’s police statement of April 17, 2015, which I observe was contained in the respondent’s supplementary record on the fresh evidence application, it had been established that the appellant left for Mexico on March 20, 2015 and returned on March 25, 2015. As mentioned, the dates were established in part by reference to some travel documents the appellant took to the police station.

[41] At that point I looked at the cell phone records and noticed that there was no cell phone activity from just before 6:00 p.m. on March 20 until the morning of March 26, 2015. Counsel for the respondent then abandoned that line of cross-examination. In my view this evidence is of considerable assistance on the credibility issue. While not conclusive, it is a circumstance that assists in supporting the appellant’s testimony that he, and not his employees, used the cell phone. I recognize that it does not assist in establishing that his fiancée did not use the phone.

[42] On a consideration of all the circumstances, I find that I am satisfied that the evidence is credible in the sense that it is “reasonably capable of belief”. This is what the Palmer criteria requires. I am unable to say on the basis of the content of the appellant’s evidence or manner in which it was given, that I disbelieve him. While other things could have been done by both parties to either support or contradict the appellant’s evidence that he was using the phone on March 15, 2015, such as investigating the numbers associated with the calls placed to and from the phone at the relevant time, I am satisfied on the basis of what is before me that, on balance, this evidence is reasonably capable of belief.

[43] The appellant has always maintained that he was not the driver. He testified at trial that in March 2015, without clearly tying it to March 15, he was working in Etobicoke on a renovation project that was behind schedule and caused him to delay a trip to Mexico. He is not a sophisticated person but someone who seems easily confused and is disorganized. I observe that when he attended at the police station he produced travel documents and spoke of a period of time when he said he was not in the country. He apparently did not understand when the offence occurred.

[44] A close reading of his somewhat confused trial testimony also reveals that he said he asked Mr. Bawadkji to return the car on March 13, when the appellant was originally scheduled to go to Mexico. The appellant also testified that Mr. Bawadkji failed to come to work after that, that Mr. Bawadkji was not answering his phone and that he had not spoken to him again before departing for Mexico. Nothing in the trial evidence leads me to conclude that the fresh evidence, including the appellant’s evidence that he was using the cell phone on March 15, 2015, is not reasonably capable of belief.

[45] Turning to the fourth Palmer requirement, I conclude that the fresh evidence, if believed, could reasonably, when taken with the other evidence, have been expected to have affected the verdict. As held by Doherty J.A. in M.(P.S.), at p. 422: “It is not for the appellate court to retry the case with the ‘fresh’ evidence factored in.” He explained that the appellate court’s role is more limited and pointed out that a new fact introduced into the assessment of the case may be sufficient to find this criteria to have been met.

[46] I commence by noting again that the issue at trial was identification. There was one identification witness, Cst. Jolly. Based on the trial judge’s factual findings, which I must accept, Cst. Jolly had nine seconds to observe the driver of the red car while travelling beside it at fairly high speed. The trial judge said that, allowing for the need for Cst. Jolly to keep his eyes on the road, the observation time may have been seven seconds. The trial judge also found that the driver only had his sunglasses off for part of that time.

[47] Obviously, the trial judge found the officer to be credible and that finding is not challenged on appeal. The trial judge was acutely aware, however, that the real danger in eyewitness identification cases is that an honest witness may be mistaken. The trial judge’s reasons also reflect that he understood that he was to consider all of the evidence together in determining whether the Crown had proven beyond a reasonable doubt that the appellant was the driver. Obviously, his assessment of the appellant’s credibility was a critical part of that process.

[48] In this case, if believed, the fresh evidence has the potential to impact both the reliability of Cst. Jolly’s opinion that the appellant was the driver and the credibility of the appellant’s consistent assertion that he was not. A significant impact on either would be sufficient to satisfy the requirement in the fourth Palmer criteria that, if believed, the evidence could reasonably have affected the verdict.

[49] The trial judge placed considerable weight on his conclusion that the appellant told the police at the time of his arrest that, prior to the appellant leaving for Mexico, Mr. Bawadkji only drove the rental car on coffee runs. The trial judge concluded that that finding both impaired the appellant’s credibility and supported the officer’s identification. As I have said, however, the appellant also testified that he did not see or speak with Mr. Bawadkji after asking him to take the car back to the rental agency on March 13, when he was originally to go to Mexico. In my view the additional factual information available from the cell phone records could reasonably, when taken together with the other evidence, have impacted the overall assessment of the appellant’s credibility. Credibility assessment is a holistic undertaking that involves a consideration of all of the evidence.

[50] While the appellant’s defence at trial was that Mr. Bawadkji was probably the driver, he was under no obligation to establish that. Clearly, the critical issue is whether the appellant was the driver, not who else might have been. The information in the cell phone records and the appellant’s evidence that he was the exclusive user of the cell phone, if believed, could reasonably be expected to have impacted the identification issue in a manner which could affect the verdict.

[51] No error was made by the trial judge in this case. However, it seems to me that the very careful way in which the trial judge approached his task, recognizing the potential for miscarriages of justice in eyewitness identification cases, provides further support for the conclusion that if he had the fresh evidence before him he may have entertained a reasonable doubt in circumstances where, without it, he did not. If believed, the fresh evidence could be viewed as making it more likely that the officer’s identification opinion, while honest, was mistaken. At the same time, it may have led to the conclusion that the appellant’s evidence raised a reasonable doubt.

[52] In summary, I find there has been a lack of due diligence. In addition, I have found satisfaction of the third Palmer requirement to be a close call. However, the second and fourth Palmer requirements are, in my view, easily met. I observe that the fourth criteria is to be considered assuming the evidence is believed.

[53] Given the failure to establish due diligence, I must carefully balance the other considerations in the context of the interests of justice as required by s. 683(1)(d) of the Criminal Code. In doing so and reaching the conclusion that the fresh evidence is admissible, I have taken into account that this is a case based on one eyewitness identification where soon after the event the witness saw a single photograph of the appellant leading him to have great confidence in the correctness of his identification. Experience has shown these are potentially dangerous circumstances of concern to the administration of justice. As Doherty J.A. said in R. v. Quercia (1990), 75 O.R. (2d) 463, [1990] O.J. No. 2063, at para. 5: “The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law.”

Conclusion

[54] As the fresh evidence is admissible but not conclusive, I set aside the convictions and order a new trial.

[55] The appellant is ordered to appear in Courtroom M9, 491 Steeles Avenue East, Milton, Ontario, on Tuesday, June 19 at 9:00 a.m. to set a date for the new trial.

F. Dawson J. Released: June 5, 2019