COURT FILE NO.: CR-19-50000096-00AP DATE: 20200731
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – MOHANED ALOBEDI
Counsel: Kim Motyl, counsel for the Respondent Crown Michael Little, counsel for the Appellant Alobedi
HEARD: July 22, 2020
M.A. CODE J.
REASONS FOR JUDGMENT
A. Overview
[1] Mohaned Alobedi (hereinafter, the Appellant or Alobedi) was charged with a single count of sexual assault. The Crown proceeded summarily and the case was tried in the Ontario Court of Justice by Oleskiw J. After a two-day trial held on July 11 and 12, 2019, Oleskiw J. reserved judgement. On September 13, 2019, she gave Reasons for finding Alobedi guilty. On December 18, 2019, Alobedi was sentenced to 90 days intermittent in jail and two years probation.
[2] Alobedi appealed to this Court against conviction only. He was released on bail pending appeal. The appeal was heard on July 22, 2020, by teleconference, while most courtrooms in Toronto remained closed during the Covid-19 pandemic. I reserved judgement at the end of oral argument. These are my Reasons for Judgement.
B. Facts
[3] The main ground of appeal is a “fresh evidence” Application. A proper analysis of that ground of appeal requires consideration of some of the more detailed parts of the evidence heard at trial. Accordingly, I will set out a general summary of the trial evidence in this section of my Reasons and then refer to some of the more relevant details in the next section of my Reasons when assessing the “fresh evidence” Application.
[4] The alleged sexual assault took place in the front seat of an Uber driver’s car on August 1, 2018. During the course of an Uber ride, the driver was alleged to have asked the passenger to move to the front seat where he proceeded to take her hand and have her masturbate him.
[5] Alobedi was a 31 year old Uber driver at the time of the relevant events on August 1, 2018. He is married with four young children. He came to Canada from Iraq in 2011. His first language is Arabic. He drove a Volkswagen Jetta with seating for five, that is, three in the back and two in the front (including the driver).
[6] The complainant, N.I., was 20 years old at the time. She lived with her older sister in Mississauga and worked at a grocery store in downtown Toronto, while also enrolled in an educational program. Oleskiw J. allowed her to testify from behind a screen because she has a learning disability and a slight speech impediment and she appeared to be “shaky and trembling” in court. She testified that she was unexpectedly called into work on August 1, 2018 and that she had to be at work by 10:00 am. As a result, she called Uber. The driver arrived at her sister’s residence in Mississauga and drove her into work in downtown Toronto. The Uber record of the trip (Exhibit 8) indicated that she called Uber at 9:06 am and arrived at her destination at 9:56 am. The Uber record also indicated that the route taken was south from the residence in Mississauga to the Q.E.W. and then east into Toronto along the Gardiner Expressway. However, the Uber record also showed an important deviation from this route, at the mid-point of the trip, where the car left the Gardiner Expressway, traveled a short distance to the north on a side street, and then returned to the eastbound highway route into downtown Toronto.
[7] A number of significant admissions were made at the outset of the trial. These admissions meant that the Crown did not have to tender Alobedi’s statement to the police and could simply call the complainant as its only witness. The first admission was that Alobedi was the Uber driver who picked up N.I. on the date in question. As a result, identity was not in issue and the sole focus of the trial was on whether the incident occurred. Equally important were a number of further admissions, as follows: it was admitted that Alobedi initiated the suggestion that N.I. move from the back seat into the front seat; it was admitted that N.I.’s call was for an “Uber Pool ride”, which meant that other passengers could be picked up along the way; it was admitted that at some point during the trip Alobedi cancelled the “Uber Pool” option; as a result, it was admitted that N.I. was the only passenger during the entire trip.
[8] N.I. testified that Alobedi asked her a series of personal and sexual questions during the early stages of the trip, while she was seated in the rear passenger side of the car. He then asked her to move into the front passenger seat. She resisted this suggestion. She is a large woman, weighing over 300 pounds. She is 5’5” tall and she told Alobedi, “I’m good, I can stay here” in the back seat. She then noticed that he had exited off “the highway” and they were on “like the main street”, that is, “when we first came off the highway, it actually went onto a road”. The lake was on the right and they turned left, away from the lake and to the north, towards a condominium building. Once they turned left, there was a “side street” where this condominium or apartment building was located. It was “like a back street where you go into the condos that were there.” At this point, Alobedi stopped and asked her to move to the front. She got out of the car and moved to the front passenger seat. She explained that she moved to the front seat because he “already came off the highway” and was “just sitting there” and “like I have to go to work”. She thought, “maybe if I just move to the front…he’ll start driving”.
[9] Once N.I. was in the front seat, Alobedi took her hand and placed it in his lap. She could feel that he had an erection. He “didn’t immediately drive away…we’re still parked.” He then “started to drive” and “that’s when he motioned” her hand or “pushed his hand over my hand, put my hand underneath” his shorts and underwear, making her touch his penis and making a motion to give him a “handjob”. He “had to make a U-turn out up where he went” and then he “turned back into the road that the highway came off of.” They were “right beside the water” now. He was asking her to “have sex” or to give him “oral sex” at a nearby park. She insisted that she had to go to work. He continued to ask her about sexual matters and “about meeting later on”, but she was not responsive. At this point he “went back on the highway”. The masturbation of his penis continued for what could have been 20 minutes, while he was driving. She explained that “it was like a complete blur…I was just in shock…I just froze at that moment…I felt like if did whatever he want, I would be able to leave”. Once they reached downtown Toronto and were getting close to her work place destination, “he took my hand off of him and said that it’s becoming too hard…it’s uncomfortable” because “I won’t give him, like oral, so it's like hard on him”. He continued to ask if they could “meet later” and he asked for her phone number. She said “yeah sure” and gave him a false phone number, got out of the car, and went into work.
[10] There was a large body of evidence about N.I.’s process of disclosure. She initially told her sister only that she had been in a “weird situation” with her Uber driver but she also went on to complain in writing to Uber. She stated that “he made me feel very uncomfortable” by talking about “my past relationship and sex life”. She told Uber that she did not “want to get him in trouble” but she wanted “to ensure I don’t have him again”. She took the above steps later on the same day as the incident, that is, on August 1, 2018. Uber replied to her email complaint by asking for “additional details”. She again stated that, “I just want to be reassure that I wouldn’t ever have him again, is that possible?” Uber again asked her for more details.
[11] It was now August 2, 2018 and she sent two lengthy emails to Uber, on August 2 and 3, 2018, setting out the substance and some of the details of her account. In particular, she stated: “he stop the car so I could move to the front. I felt like I had to so I did. Then when I went to the front, he holded my hand then motion me to jerk me off. Then he wanted me to give him oral sex. I said no I have to go to work.” She continued to take the position with Uber that “I don’t want to press charges, maybe he thought I was into him or whatever. I was shocked in the situation and didn’t know what to do…I don’t think I would ever feel safe in an Uber unless I know I will never have him again. The guy knows where I work and where my sister lives…He would know where to find me. So can you send reassure me I will never have him again??” Uber advised on August 3, 2018 that “our team has launched an internal investigation and someone will be in contact with you as soon as possible.” She continued to ask Uber to contact her in further emails on August 3 and 4, 2018, stressing that “it’s been 3 days since the experience.” She testified that during these days immediately after the incident she was unsure whether what had happened to her in the car was a sexual assault, as a matter of law.
[12] N.I. also conferred by text message with various friends, asking “is it weird that I feel bad for the guy? So you think reporting it was the right thing to do? I don’t want to give anyone a criminal record. That’s like a death sentence in Canada.” What finally caused N.I. to go to the police was that a man came to her place of work four days after the incident, on August 5, 2018. He did not say anything to her. He “just looked at me blankly.” He had a tattoo on his hand. She was sure it was the Uber driver who had sexually assaulted her. She “felt very uncomfortable”. She conferred with her sister, with her friends, and with a co-worker. After work she went to the police station. She gave the police a lengthy tape recorded statement.
[13] The Appellant Alobedi testified in his own defence. When he drove the Volkswagen Jetta, he would move the driver’s seat back as far as it goes. This meant that there was little room in the back seat, if a passenger was to sit immediately behind the driver, although there would still be room for two passengers in the back seat. The call from N.I. was an “Uber Pool ride”. This could potentially mean one passenger in the front and three in the back. However, Alobedi testified that “I usually don’t take or pick up four passengers because my vehicle is very small.” N.I. was “big in size” and she sat in the rear seat on the passenger side.
[14] As he was driving towards downtown Toronto, Alobedi received “a call from someone and the GPS actually got me off heading to that”. He believed the GPS took him off onto Lakeshore Blvd. and that it was at the intersection of Parklawn and Lakeshore that he got the Uber Pool call. He asked N.I. if she “would like to move, actually, to the front in order to enjoy the more space for you, because she’s big in size”. N.I. replied, “no problem” and got out of the car at the intersection and moved into the front seat. This only took a “few seconds”, while the car was stopped at “the traffic lights”. Between one and four passengers can be picked up on an Uber Pool call and he told her that she could move to the front “so other people would be able to sit at the back and no one will bother you.” It was Alobedi’s idea to ask her to move “in order for her to be more comfortable”. She had not said that she was uncomfortable in the back seat. However, if the car is full of passengers, the most comfortable seat is in the front.
[15] After N.I. had moved to the front seat, Alobedi testified that “I pulled to the left. I saw there was a construction, actually, working there”. As a result of the construction “there was traffic and she objected”. She said that, “I’m going to be late for work”. Alobedi explained that he had “wanted to go to the left” but N.I objected and said, “No, there’s traffic congestion”. As a result, Alobedi cancelled the Uber Pool call. It was his decision to cancel the Uber Pool call but only after N.I had objected. N.I. was cross-examined about this Uber Pool call and its eventual cancelation. She testified that Alobedi never told her that he was going to pick up another Uber Pool ride and he never told her that he had cancelled it.
[16] Alobedi denied asking N.I. personal or sexual questions and he denied making her touch his penis. He dropped her off at the supermarket where she worked. He could have obtained her phone number from Uber if he had wanted to call her, simply by telling Uber that she had left something in the car. He denied returning to her work place on August 5, 2018. It was a Sunday and he was with his family at a park north of Toronto. He produced a parking receipt from his day at this park. The receipt was from his debit car records. He does not have a tattoo on his hand. He showed both hands to the trial judge. As a result of Alobedi having no tattoo on either hand, combined with the alibi evidence concerning Alobedi’s whereabouts on August 5, 2018, there was a serious issue as to the reliability of N.I.’s identification of him as the man with the tattoo who came into her workplace on that day. However, it will be recalled that Alobedi’s identity as the Uber driver on August 1, 2018 was admitted.
C. Analysis
[17] In the end, the present case turned on only one issue. The identity of Alobedi as the Uber driver was admitted. The fact that N.I. was his sole passenger was admitted. The fact that Alobedi asked her to move to the front seat was admitted. The fact that he then cancelled “Uber Pool” was admitted. And the fact that the conduct alleged amounted to a sexual assault, as a matter of law, was not in dispute. The only issue was whether the Crown had proved that the conduct occurred. That issue turned on an assessment of the credibility of N.I. and Alobedi.
[18] Oleskiw J. described the burden of proof in generous terms as “proof to a near certainty”. She instructed herself impeccably, pursuant to W.D., as to how to apply the burden of proof in a case that turned solely on credibility. She then reviewed the evidence that emerged from the two opposing accounts given by N.I. and Alobedi, without misstating it. Finally, she made findings of credibility. She disbelieved Alobedi and she believed N.I., while providing a number of reasons for these two conclusions. In particular, she found that Alobedi was “evasive” when cross-examined about Exhibit 8 (the Uber record of his trip) which showed that he had turned left and headed north at Windermere and Lakeshore Blvd., deviating from his eastward route along the Gardiner Expressway. She also found that Alobedi’s explanation for asking N.I. to move to the front seat, while stopped “at an intersection”, was “implausible”. She did not believe that the move to the front seat was “in anticipation of picking up another customer”. In contrast, she found that N.I.’s “description of where the accused turned off, away from the water and beaches, is consistent with the geography and route shown on Exhibit 8.”
[19] It can be seen that Alobedi’s difficulty in explaining his deviation or turn to the north at Windermere and Lakeshore Blvd., and his difficulty in explaining why he had asked N.I. to move to the front seat at this point in the trip, figured prominently in the trial judge’s credibility assessment. The complainant N.I., on the other hand, gave an account that was rationally consistent with this turn to the north that was shown on Exhibit 8. The “fresh evidence” Application is focused on this particular aspect of the evidence.
[20] Counsel for the Appellant, Mr. Little, made it clear that the “fresh evidence” Application was by far the most important ground of appeal. The great majority of his oral argument was devoted to that one ground. There were three other grounds raised in the Appellant’s factum. One was abandoned and the other two were only addressed briefly during oral argument. I did not call on the Respondent in relation to these other grounds of appeal. None of them had any merit.
[21] The “fresh evidence” Application is difficult and complex and Mr. Little addressed it carefully and thoroughly. It is comprised entirely of evidence obtained from Uber Technologies Inc., a U.S. corporation based in California, which controls “all Uber user data”. Counsel for the Appellant obtained a subpoena seeking information related to the present case and served it on Uber’s counsel based in Canada. In response to the subpoena, Uber’s Canadian counsel produced the requested information in the form of a letter with lengthy GPS data attached. He could not provide sworn evidence about the second-hand information set out in the letter, or about the attached GPS data, because the records custodian who had obtained this “Uber user data” was in California. Ms. Motyl, on behalf of the Crown, properly objected to the form of the “fresh evidence” because it was inadmissible hearsay and because she could not cross-examine on it. With assistance from Uber’s Canadian counsel, Mr. Little then obtained an affidavit from the Uber records custodian in California. This person searched Uber’s records and found the requested information and GPS data concerning the Uber ride that was the subject of the present trial. The affidavit was dated July 6, 2020 and the hearing date for this appeal was July 22, 2020. Rather than try to arrange a formal cross-examination of the affiant in this short period of time, Mr. Little and Ms. Motyl must have exchanged questions with the affiant and obtained his answers electronically because they managed to reduce the results of this virtual cross-examination into an Agreed Statement of Fact. Both counsel are to be commended for their hard work and professional approach to the task of getting the “fresh evidence” before the Court in a timely way, without delaying the hearing of the appeal.
[22] Uber’s data about the particular August 1, 2018 ride in this case comes from N.I.’s and Alobedi’s cell phones (and from the cell phone of a third party who also ordered an Uber Pool ride that day). These cell phones use Uber Apps and GPS and they transmit data over the Internet. Uber Technologies Inc then stores this “user data” in its records in California. The substance of the “fresh evidence”, based on these records, is as follows:
i. N.I. requested an Uber Pool ride at 9:06:58 am, it was accepted by Alobedi at 9:07:06 am, he arrived at N.I.’s sister’s residence in Mississauga at 9:11:30 am, and the trip began at 9:12:34 am; ii. almost 11 minutes into the trip, at 9:23:17 am, a third party named Gupta requested an Uber Pool ride from 105 The Queensway in Toronto to 105 Front St. East in Toronto. The request was accepted by Alobedi at 9:23:22 am; iii. just over five minutes later, at 9:28:52 am, Alobedi cancelled the Gupta request for an Uber Pool ride; iv. N.I.’s ride to work ended some 27 minutes later, at 9:56 am; v. the GPS data stored by Uber shows the time, speed and location of the car when the above events occurred. It was loaded by counsel into “Google Maps”, in order to produce a visual image of the position of Alobedi’s car when certain events occurred. This GPS data is subject to some variables and inaccuracies. However, assuming it is generally accurate, it indicates that Alobedi’s car was traveling at 65 km/hr when the Gupta request for an Uber Pool ride was accepted by Alobedi at 9:23:22 (perhaps consistent with traveling eastbound on the Gardiner Expressway during the late rush hour). Some four minutes later, at 9:27:30 am, the car came to a complete stop and remained stopped for 51 seconds until 9:28:21 am (perhaps consistent with stopping at a Lakeshore Blvd. traffic light). Some 31 seconds later, at 9:28:52, when the Uber Pool request from Gupta was cancelled by Alobedi, the car was now traveling northbound on Windermere at 32 km/hr and was directly underneath the Gardiner Expressway in an underpass (consistent with having made a left turn at Windermere and Lakeshore Blvd.). Some 21 seconds later, at 9:29:13 am, the car had traveled further north on Windermere and had reached the intersection of Windermere and two driveways that lead to the west and to the east into two large condominium/apartment buildings (including 105 The Queensway where the now-cancelled Uber Pool ride request from Gupta had been waiting to be picked up). At this point, the car came to a stop and remained completely stationary at the intersection for two seconds. It then traveled at a very slow speed of less than 1 km/hr for the next five seconds, until 9:29:20 am, while still remaining at the intersection. Finally, one second later, at 9:29:21 am, the car began to travel south on Windermere, initially at a very slow speed (all of the above evidence relating to this eight second period, from 9:29:13 to 9:29:21 am, tends to indicate that the car had stopped and made a U-turn at the intersection of Windermere and the two condominium driveways). After 24 seconds of traveling south on Windermere, at 9:29:45 am, the car had now picked up speed and was moving at 30 km/hr. At this point, the car was about one third of the way back to Lakeshore Blvd. and the Gardiner Expressway (consistent with resuming the eastbound trip into downtown Toronto after a short, approximately one minute, deviation to the north).
[23] In my view, there are two significant issues that arise concerning the admissibility of the above-summarized “fresh evidence”. First, the GPS data had already been obtained by the Crown at trial by way of a production Order and it had been disclosed to the defence. Defence counsel at trial, or Crown counsel, could have loaded the GPS data into “Google Maps” but they chose not to, instead relying on Exhibit 8 (which already showed the route taken to the north along Windermere, but did not show the timing or speeds of that deviation from the main eastbound route). The “user data” stored by Uber in California, showing that Alobedi received and accepted Gupta’s request for an Uber Pool ride, the time and location of that ride request, and the time and location of its cancelation was not information that trial counsel ever obtained. However, it could have been obtained had trial counsel taken the same steps that appellate counsel took by serving a subpoena on Uber Canada Inc. In other words, there is a serious issue in this case concerning the “due diligence” criterion for the admissibility of “fresh evidence”.
[24] The second issue is whether the “fresh evidence” would have helped the defence, that is, the “sufficient cogency” criterion for the admissibility of “fresh evidence”. Mr. Little argues forcefully that the above summarized Uber “user data” and GPS data contradicts N.I. and corroborates Alobedi. Ms. Motyl argues, equally forcefully, that the Uber “user data” and GPS data contradicts Alobedi’s trial evidence, advances an entirely new defence theory on appeal, and does not contradict N.I. This is not an easy issue to resolve.
[25] The power to admit “fresh evidence” on indictable appeals is found in s.683(1) of the Criminal Code and is incorporated into summary conviction appeals in s.822(1). The broad “interests of justice” test in s.683(1) has been defined more precisely in the case law. In R. v. Palmer and Palmer (1980), 50 C.C.C. (2d) 193 at 205 (S.C.C.), McIntyre J., speaking for the unanimous full Court, set out the authoritative test for admissibility of “fresh evidence” as follows:
- 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: see McMartin v. The Queen, [1965] 1 C.C.C. 142;
- the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
- the evidence must be credible in the sense that it is reasonably capable of belief;
- 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.
[26] The four-part Palmer test has been refined in the modern case law, as explained in Reference re Truscott (2007), 2007 ONCA 575, 225 C.C.C. (3d) 321 at para. 92 (Ont. C.A.):
The admissibility of this kind of evidence on appeal is tested against the criteria articulated by the Supreme Court of Canada in R. v. Palmer and Palmer (1979), 50 C.C.C. (2d) 193. Those criteria are well known. They encompass three components:
• Is the evidence admissible under the operative rules of evidence? • Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict? • What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence?
[27] There is no dispute that the “fresh evidence” tendered by the Appellant, now in the form of an affidavit from the Uber Technologies Inc. records custodian, based on his search of the company’s business records, is “admissible under the operative rules of evidence”. It is the second and third criteria – cogency and due diligence – that are in dispute. It is important to assess the cogency criterion, before assessing the due diligence criterion, because the degree of cogency of the “fresh evidence” can have an impact on the application of the due diligence criterion. See: Reference re Truscott, supra at para. 102.
[28] There are three components to the cogency criterion, as explained in Reference re Truscott, supra at para. 99:
The cogency criterion asks three questions:
• Is the evidence relevant in that it bears upon a decisive or potentially decisive issue at trial? • Is the evidence credible in that it is reasonably capable of belief? • Is the evidence sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result?
[29] The first two components are easy to apply in this case. As explained above, the trial judge’s credibility assessment was the “decisive issue” in this case, indeed, it was the only issue in the case. That assessment attached significant weight to the difficulties encountered by Alobedi in explaining the deviation or turn to the north that he made on Windermere (as depicted in Exhibit 8), in contrast to N.I. whose account was entirely consistent with Exhibit 8. The “fresh evidence” focuses squarely on this aspect of the case. There is also no question that the Uber “user data” is “reasonably capable of belief.” It depends on the capabilities of the cell phones, the Internet, the Uber App, and GPS technology, none of which are infallible or entirely reliable. Nevertheless, I am satisfied that the data summarized above are reasonably or generally reliable as they fit with certain known facts, they are internally consistent, and there is no suggestion of some specific lack of reliability that is particular to the devices or the technology that was used in this case.
[30] The real issue in this case is the third component of the cogency criterion. In R. v. Reeve (2008), 2008 ONCA 340, 233 C.C.C. (3d) 104 at para. 72 (Ont. C.A.), Doherty J.A. gave the judgement of the Court and helpfully elaborated on the application of this requirement, stating the following:
In testing the Crown’s argument against the admissibility of the toxicology evidence, it is important to bear in mind that the appellant does not have to show that the evidence would probably have affected the result at trial. Nor, however, is it enough for the appellant to show that the evidence is credible and relevant and could possibly have affected the result at trial. The cogency bar rests somewhere between those two standards. The appellate court must, to some extent, weigh the potential probative value of the evidence proffered on appeal. That weighing must be done in the context of the trial evidence and the positions advanced by the parties at trial. If, on that assessment, this court concludes that the toxicology evidence heard on appeal could reasonably be expected to have changed the result at trial, then the toxicology evidence is admissible on appeal subject to a consideration of the explanation offered for the failure to adduce the evidence at trial: see Re Truscott, supra at para. 100; Smith, supra at para. 91. [Emphasis added].
[31] Assessing how the “fresh evidence” could affect the verdict at trial is complex because there are a number of aspects to the “fresh evidence” and each aspect has a potentially different impact on the verdict. In addition, the fresh evidence has an impact on the credibility and reliability of both N.I. and Alobedi and that impact differs, depending on the witness and depending on the issue. In my view, the most important ways in which the “fresh evidence” could affect the verdict can be summarized as follows:
• First, the Uber “user data” establishes that there was a second Uber Pool call (from Gupta) which Alobedi accepted and which appears to have led to his exit off the Gardiner Expressway. This corroborates Alobedi’s account. The Crown squarely challenged Alobedi’s evidence on this point, putting to him in cross-examination that “this other call that you had to pick up is absolute nonsense” and that “you’re making this up to try to come up with a reason that you pulled off that road”. Alobedi denied these suggestions. The trial judge made no findings, one way or the other, on this point. Although the existence or non-existence of the second Uber Pool call does not appear to have figured prominently in the trial judge’s reasoning, it would have enhanced Alobedi’s credibility to some extent to have the support of this independent and reliable corroboration; • Second, the GPS data establishes that the car went north on Windermere until it reached the intersection with two driveways that lead into two large condominium/apartment buildings. This is entirely consistent with N.I.’s evidence. However, the GPS data also appears to show that the car then made a U-turn, without ever stopping for more than a few seconds as it was turning around. This is entirely inconsistent with N.I.’s account. She could not give a reliable estimate of the length of time that the car stopped at this intersection but, according to N.I., they had to stop for a period of time because this is when she got out of the back seat and moved to the front seat and this is also when the sexual assault began. She testified that “he stopped there” and she referred in her testimony to “just sitting there”, before she agreed to change places. She also testified that Alobedi “didn’t immediately drive away…we’re still parked”, after she had changed places and as the sexual assault began. Although she could not give a precise estimate, she appeared to be sure that they were stopped for a number of “minutes” (plural). The GPS data contradicts this important part of her account and could, therefore, have had a negative impact on the assessment of her credibility and reliability; • Third, the combination of the Uber “user data” and the related GPS data establishes that Alobedi cancelled the second Uber Pool ride (from Gupta) at a point when he was already heading north on Windermere (the car was in the underpass beneath the Gardiner Expressway and was heading in the direction of the Gupta pick-up at 105 The Queensway). After canceling the Gupta ride, the car then continued north to the first intersection, made a U-turn, and returned directly south to Lakeshore Blvd. and the Gardiner Expressway, taking little more than a minute for the entire trip to the north. This arguably provided an innocent explanation for the otherwise suspicious deviation to the north, that was captured on Exhibit 8. Alobedi struggled in cross-examination, when the Crown repeatedly confronted him with Exhibit 8 and the fact that he “took a turn off” and that “you got off of your route”. The trial judge understandably characterized this key part of Alobedi’s testimony as “evasive”. He certainly appeared to be defensive about this suspicious change of direction or deviation from his route, as I read the transcript of his evidence. He twice tried to explain, during this part of the cross-examination, that “I had…another client, another rider, actually, to pick up, so I was following GPS” and testifying that “I turned off my route because I have another call.” If Alobedi had the benefit of the Uber “user data” and the related GPS data, showing not only that he had accepted the Gupta Uber Pool ride but, more importantly, that he did not cancel it until he was already heading north on Windermere, he may have handled this cross-examination in a more straightforward and less defensive manner. In the result, the trial judge placed considerable weight on his difficulties in responding to repeated questions about this short deviation or turn to the north that was depicted in Exhibit 8; • Fourth, it is also arguable that Alobedi never testified at trial in a manner that is consistent with the GPS data. In particular, he never testified that he actually did turn left at Windermere and Lakeshore Blvd., then travelled to the north to the intersection with the condominium/apartment building driveways, then did a U-turn, and then returned south to Lakeshore Blvd. It was N.I. who substantially gave this account. Alobedi did testify that he stopped at a red light at an intersection on Lakeshore Blvd., which is arguably consistent with the GPS data. However, his account of what happened next was vague at best, testifying that “I pulled to the left” and “I wanted to go to the left” and that “there was a construction” and “there was traffic”. N.I. complained about these delays and so he “cancelled the trip and it continued, actually, my way, normally”. Counsel tried to clarify this latter answer by asking, “and [by] ‘normally’ you mean the original route” and Alobedi replied, “Yes, yeah.” In her Reasons for Judgement, the trial judge interpreted this testimony as meaning that Alobedi “continued on to his original route along the Lakeshore”. At two points during the trial, Alobedi’s trial counsel (not Mr. Little) exacerbated this ambiguity about whether Alobedi ever turned left off Lakeshore Blvd. and ever went to the north on Windermere to the vicinity of the condominium buildings. First, he put the following proposition to N.I. in cross-examination: “I’m going to suggest he didn’t pull off the highway near any condo.” Second, during closing submissions trial counsel submitted that the deviation from the route shown on Exhibit 8 indicated only that Alobedi’s car was “right next to the Gardiner…it might be just briefly past the Gardiner.” In other words, there is some support in the trial record for Ms. Motyl’s position, on behalf of the Respondent, that the “fresh evidence” is being used to advance an account of Alobedi’s route that is quite different from the one advanced at trial. The position advanced on appeal is certainly much more detailed and unambiguous about the left turn off Lakeshore Blvd. and the drive to the north along Windermere to the vicinity of the condominium buildings.
[32] When applying all four of the above ways in which the “fresh evidence” could have affected the verdict at trial, it must be remembered that this case turned entirely on the trial judge’s assessment of N.I.’s and Alobedi’s credibility and reliability. The subtleties and difficulties involved in assessing credibility are well known. See, e.g.: R. v. L.G. (2006) 2006 SCC 17, 207 C.C.C. (3d) 353 at para. 20 (S.C.C.); R. v. R.E.M. (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 at paras. 48-9 (S.C.C.). The first three points set out above all go directly to that assessment and, in combination, they could have had a real impact on the trial judge’s conclusions concerning both N.I.’s and Alobedi’s credibility and reliability. The fourth point set out above troubles me because “fresh evidence” should not be used as a means to advance a new defence on appeal, especially one that is inconsistent with the defence advanced at trial (although an exception to this general rule can sometimes be made in cases involving a s.16 defence). See, e.g.: R. v. Warsing (1998), 130 C.C.C. (3d) 259 at paras. 16-22 and 57-60 (S.C.C.); R. v. Buxbaum (1989), 70 C.R. (3d) 20 at paras. 20-38 (Ont. C.A.); Reference re R. v. Gorecki (No. 2) (1976), 32 C.C.C. (2d) 135 at 144-7 (Ont. C.A.); R. v. Kimberley and Clancey (2001), 157 C.C.C. (3d) 129 at para. 56 (Ont. C.A.). However, Alobedi’s testimony at trial about the exact route that he took, was characterized more by vagueness and a lack of detail than by obvious inconsistency with the “fresh evidence”. If he had the benefit of the Uber “user data” and the GPS data, he would likely have provided a more confident and detailed account of his exact route.
[33] For all the above reasons, I am satisfied that the cogency criterion for the admissibility of “fresh evidence” on appeal has been met in this case.
[34] The final criterion is “due diligence”. It is settled law that this criterion is not applied strictly in criminal cases, if the cogency criterion is strong. In R. v. Warsing, supra at para. 51, Major J. made this point succinctly:
It is desirable that due diligence remain only one factor and its absence, particularly in criminal cases, should be assessed in light of other circumstances. If the evidence is compelling and the interests of justice require that it be admitted then the failure to meet the test should yield to permit its admission.
However, one circumstance where a failure to meet the “due diligence” criterion can be determinative is where it was a tactical decision not to lead the evidence at trial. As the Court of Appeal stated in Reference re Truscott, supra at para. 102:
The failure to offer an adequate explanation for not producing material at trial that is tendered on appeal will not necessarily lead to the exclusion of the evidence on appeal. Evidence may be so cogent that it should be received on appeal despite the absence of a satisfactory explanation for not leading the evidence at trial. It is also true, however, that evidence which is sufficiently cogent to warrant its admission on appeal may be excluded because of the absence of any adequate explanation for not adducing that evidence at trial. The failure to lead evidence at trial that is tendered for the first time on appeal becomes particularly important where the decision not to lead the evidence at trial was a considered, tactical decision by the defence.
Also see: R. v. Hay (2013), 2013 SCC 61, 302 C.C.C. (3d) 147 (S.C.C.); R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 (S.C.C.); R. v. Smith (2001), 161 C.C.C. (3d) 1 (Ont. C.A.); R. v. Dooley et al (2009), 2009 ONCA 910, 249 C.C.C. (3d) 449 at paras. 105-109 (Ont. C.A.).
[35] In my view, the “due diligence” criterion has not been met in this case. The evidence could have been obtained by trial counsel with the exercise of reasonable diligence. Indeed, he already had the GPS data through Crown disclosure. All he had to do was input that GPS data on “Google Maps” and subpoena the “user data” from Uber. It required some effort and determination by appellate counsel, to take the necessary steps to obtain the Uber records stored in the United States. However, the same effort could have been made by trial counsel. Having said that, there is nothing to suggest that defence counsel at trial made a “tactical decision” not to obtain or use this evidence. It was clearly helpful to the defence. Furthermore, the raw GPS data which counsel had in his possession is meaningless until the latitude and longitude readings are downloaded onto a map. It is far more likely that defence counsel did not appreciate the utility of the GPS data and did not make the effort to properly analyse it and to then connect it to “user data” that was in Uber’s possession.
[36] Although the “due diligence” criterion has not been met, I am satisfied that the “fresh evidence” is sufficiently cogent that it should be admitted on appeal, in spite of the failure to exercise “due diligence” at trial. The appropriate remedy is to order a new trial. See: R. v Reeve, supra at para. 89; Reference re Truscott, supra at para. 110.
D. Conclusion
[37] For all the above reasons, the appeal is allowed, the conviction is set aside, and a new trial is ordered. The Appellant should appear in four weeks time, on August 28, 2020, in courtroom 205 at 2201 Finch Ave. West, Toronto at 10:00 am.
[38] Both counsel are to be commended for their forceful and effective advocacy and for their professionalism in this difficult appeal.
M.A. Code J. Released: July 31, 2020