R. v. Constantine Giannakopolous

COURT FILE NO.: CR-21-15AP

DATE: 20220627

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Constantine Giannakopolous

BEFORE: Justice R. Raikes

COUNSEL: Ravin Pillay - Counsel, for the Appellant

Deanna Bronowicki - Counsel, for the Respondent (Crown)

HEARD: March 4, 2022

ENDORSEMENT

[1] This is a summary conviction appeal by the defendant from his conviction for dangerous driving contrary to s. 320.13(1) of the Criminal Code. The conviction for dangerous driving followed a three-day trial. He was acquitted at trial of stunt driving contrary to s. 172(1) of the Highway Traffic Act.

[2] The Appellant raises the following grounds of appeal:

1. The trial judge erred in finding that identification of the Appellant’s vehicle on Highway 8 was proved;

2. The trial judge misapprehended the evidence which led him to wrongly reject or disbelieve the Appellant’s evidence;

3. The trial judge wrongly accepted and relied upon the police officer’s evidence that the odour he smelled emanating from the Appellant’s vehicle was caused by hot brakes; and

4. The trial judge unevenly scrutinized the evidence.

[3] In oral submissions, the Appellant also submitted that the trial judge’s finding that the Appellant “tailored” his evidence is an error of law: see R. v. M.D., 2020 ONCA 290, at paras.22-30 and R. v. G.V., 2020 ONCA 291, at paras. 24,25, and 45 (released concurrently); R. v. C.T., 2022 ONCA 163, at para. 1.

[4] For reasons that follow, the appeal is allowed, and a new trial is ordered.

Background

[5] In 2019, the Appellant resided in Toronto and owned a process serving business. He had been to Goderich to file documents at the courthouse on four or five previous occasions including in 2018. He was familiar with the route.

[6] On July 25, 2019, the Appellant drove from Toronto to Goderich to file documents at the courthouse. He was stopped by police three times during that trip.

[7] The Appellant testified that the first stop occurred in Stratford sometime between 1:30-2:30 p.m.. He testified in-chief that he told the officer that he was “in a rush” to get to Goderich to file documents. He testified that he was not in a hurry but said that in the hope that the officer would feel sorry for him and let him off. He was given only a warning.

[8] The Appellant was stopped the second time in or near Seaforth where he was charged with careless driving. That stop happened sometime between 3-3:45 p.m. and took 40 minutes.

[9] The Appellant drove from Seaforth to Goderich on Highway 8.

[10] Between Clinton and Goderich, Highway 8 passes along undulating hills and has long curves. It passes by Woodland Golf Course and soon after, through a small community, Holmesville, located between Clinton to the east and Goderich to the west. Between Clinton and Goderich, Highway 8 is generally two lanes with one spot on the west end of Holmesville where there is a third lane for passing.

[11] The last police stop occurred in Goderich after he had parked his car on North Street near the Square. It was about 4:45 p.m.. When he got out of his car to go across the street to the courthouse to file the documents, he was stopped and arrested by police. The Appellant agreed in cross-examination that he told Sgt. Yantzi, one of the officers in the Goderich stop, that he was worried about getting fired. He agreed that that was a lie.

[12] The Appellant testified in cross-examination that he was driving quickly but he was not late. He was in “a little bit of a hurry”.

[13] It is undisputed that the Appellant was alone in the Mercedes and was the only driver of that car to Goderich on July 25, 2019.

[14] The Crown called five witnesses:

1. Raymond Lawson – he testified to being passed on Highway 8 by a dark coloured car driving very fast near Woodland Golf Course. He did not see the driver of the vehicle. It was past him “in the blink of my eye”. That vehicle passed another car very soon after it passed him and was then gone from sight.

He drove onto the Goderich Square where he saw police by a vehicle that looked like the one that passed him. He decided to stay and speak with police to let them know what happened on Highway 8. He testified that the vehicle he saw on the Square could be picked up and put in Holmesville which I take to mean that it looked like the same car. In cross-examination, he agreed that he could not say if the vehicle in the Square was, in fact, the same vehicle that had passed him.

2. OPP Constable Kaneko – he was on patrol on July 25, 2019 when he heard a dispatch from Perth County OPP that provided information about the Appellant, his vehicle, the two stops, and that he was headed to the Goderich Courthouse. He was on the lookout for the Appellant’s vehicle.

He was driving eastbound on highway 8 near Holmesville when he saw a vehicle matching the description of the Appellant’s in a line of traffic heading west toward Goderich near Holmesville. He indicated that as he was passing the line of cars, he was able to match the licence plate to that provided by Perth dispatch. That fact was not in his notes and his testimony about matching the licence plate was not accepted by the trial judge.

The Mercedes was not speeding when he first saw it. It was driving normally.

Cst. Kaneko waited for the line of cars to pass, then did a U-turn. By the time he had turned in the same direction, the suspect vehicle had pulled out and passed the cars in front of it. Cst. Koneko put his lights and siren on and sped up to catch up to that car. He was going 125-130 kmph. By the time he crested the hill where he last saw the vehicle, it was nowhere in sight. He travelled another 12 kilometers to Goderich and did not see the vehicle. He passed 25-30 vehicles during this pursuit. He continued to the Square with his lights and siren turned off because he understood from the dispatch he heard earlier that that was the Appellant’s destination.

When he arrived at the Square, he saw pedestrians waving to him and pointing to the Appellant’s car. He pulled in behind it to block it in. He saw the Appellant grab a package from the front seat. He told the Appellant to remain. He could smell the distinct strong odour that brakes emit when they have been recently used hard.

After speaking with the pedestrians and Sgt. Yantzi, the Appellant was arrested and charged. He testified that the vehicle driven by the Appellant was one that is very uncommon in Goderich even during the busy summer tourist season.

3. Sgt. Yantzi arrived at the Square soon after Cst. Koneko had detained the Appellant. He asked the Appellant what he was doing; this was the third time he had been stopped. The Appellant replied, “I know. I had to get to court by 5 p.m. or I’d be fired.”

4. Rebecca Meriam – she is employed by a law firm whose office is on the Square. She and her two daughters were shopping on the Square that afternoon. As they were about to cross North Street, she heard a vehicle and squealing tires. She saw the Appellant’s car approaching. She thought that it was being driven erratically but there was time for her and her daughters to safely cross. They were crossing North Street with the oldest daughter trailing a step behind. They were roughly mid-way across the street when the Appellant’s car passed behind her oldest daughter (10) giving her a fright. Her daughter was startled and cried afterward. She estimated the speed of the vehicle at 60-70 kmph. The posted speed on the Square is 30 kmph. She denied that they were only a foot or step from the opposite curb when the Appellant’s car turned behind them. She believed that they were closer to the middle of North St. and the car had come close to hitting her daughter. She saw the vehicle pull into a parking lot behind a dentist office.

5. Chris Walls – Mr. Walls and his wife were sitting on a bench on the Square facing the courthouse enjoying an ice cream when he heard, then saw the Appellant’s vehicle driving very fast. It went past them and turned right at the next corner, roughly half a block away. He heard squealing tires when it turned. It did not appear to slow down before the turn. It made a hard right. There was a family crossing and a child in the intersection had to scramble out of the way to avoid being hit. He estimated the speed of the vehicle at 60-70 kmph, much faster than any other vehicle that he had seen on the Square in the times they were there. The vehicle was driving much too fast for a pedestrian area.

[15] The defendant testified. I have already referred to his evidence as to the two stops by police before he arrived at the Square in Goderich. He testified that:

• The trip between Seaforth and Goderich was uneventful. He was driving 90-100 kmph except when passing where he went up to 100-110 kmph.

• He passed maybe 3-4 vehicles during that trip.

• He did not see any OPP cruisers.

• His vehicle is a 2015 black Mercedes ML550 which is a larger SUV with a V-8 cylinder biturbo engine. The engine is loud. The vehicle was regularly maintained and in good repair on July 25, 2019.

• He stopped at the stop sign on Hamilton St. before turning right onto the Square. North St. is the next intersection.

• There is no stop sign on the road that circles the Square. He made a right turn onto North Street.

• When he made that turn, he was doing 40-50 kmph.

• It is possible that his tires squealed when he made that turn.

• He saw a lady and her kids crossing North Street. They were about a foot from the curb when he made the turn.

• He stayed in his lane throughout the turn.

• He pulled into a parking lot behind a dentist office to park. A woman immediately told him that it was a private lot, so he pulled out and parked in a diagonal parking space on North St. near the Square. That is when police arrived.

• It was approximately 4:45 p.m. when he parked his vehicle.

[16] I pause to note that I read the entire trial transcript before writing this decision. The above summary of the evidence is just that: a summary to provide some context for these reasons.

Trial Reasons

[17] The trial judge likewise summarized the evidence of the witnesses before undertaking the W.D. analysis. He correctly noted its application and the analytical framework it requires. He first considered the evidence of the defendant and found that his evidence was not credible or reliable. It did not give rise to a reasonable doubt.

[18] The trial judge then considered whether the Crown had met its burden of proof to establish both the actus rea and mens rea of the offence of dangerous driving beyond a reasonable doubt. As part of that analysis, he addressed two factual findings: 1) whether the vehicle that passed Mr. Lawson on Highway 8 near the Woodland Golf Course was the same vehicle driven by the Appellant; and 2) whether the vehicle pursued by Cst. Koneko was the Appellant’s vehicle. He concluded that he was satisfied beyond a reasonable doubt that the vehicle that passed Mr. Lawson at such a high rate of speed and the vehicle that Cst. Koneko spotted in the line of westbound traffic and tried to catch up to was the Appellant’s Mercedes. I will address those findings below.

[19] Finally, he concluded on the whole of the evidence including the aggressive manner by which the Appellant drove on Highway 8, on the Square, and his turn onto North St. that the Crown had proved the required elements of the offence of dangerous driving beyond a reasonable doubt.

Standard of Review

[20] The powers of a summary conviction appeal court are set out in s. 822(1) of the Criminal Code. That provision incorporates by reference the powers of an appellate court found in s. 686.

[21] Section 686 states:

686(1) On the hearing of an appeal against a conviction …, the court of appeal

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

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,

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

(iii) on any ground there was a miscarriage of justice;

(b) may dismiss the appeal where

(i) it is of the opinion that the appellant, although he was not properly convicted on account or part of the indictment, was properly convicted on another counts for part of the indictment,

(ii) the appeal is not decided in favor of the appellant on any ground mentioned in paragraph (a),

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

(iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby;

(2) where a court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and

(a) direct a judgment or verdict of acquittal to be entered; or

(b) order a new trial.

(3) where a court of appeal dismisses an appeal for subparagraph (1)(b)(i), it may substitute the verdict that in its opinion should have been found and

(a) affirm the sentence passed by the trial court; or

(b) impose a sentence that is warranted in law or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law.

[22] In R. v. Evans, 2020 ONSC 372, Howard J. summarized the law as to the limited jurisdiction of a summary conviction appeal court at paras. 67-70 as follows:

[67] The limited jurisdiction of a summary conviction appeal judge was described by the Ontario Court of Appeal in R. v. Smits, 2012 ONCA 524, at para. 67, where the court held:

Under s. 686(1)(a)(i) and s. 822(1) of the Criminal Code, the jurisdiction of the summary conviction appeal judge to review the finding as to the sufficiency of evidence is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence.

[68] Our Court of Appeal has said that the function of a summary conviction appeal judge is to determine whether the trial judge could reasonably have reached the conclusion that it [sic] did [ R. v. Grosse (1996), 1996 6643 (ON CA), 29 O.R. (3d) 785 C.A.), at pp. 791-792, citing R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at pp. 131-132.]

[69] In the same vein is the explanation of the function and scope of a summary conviction appeal judge offered by Durno J. in R. v. Salerno [ [2000] O.J. No. 3511, at para. 7; followed in R. v. Reid, 2019 ONSC 2165, at para. 29 per Pomerance J.]:

Before examining those areas, the function and scope of a judge sitting on summary conviction appeals must be kept in mind. I am not permitted to re-try the case and substitute my view of the evidence for that of the trial judge. I can examine the transcript and determine if there was evidence upon which the trial findings could reasonably have been made. I cannot substitute my own findings of fact when there was a basis for those reached by the trial judge. The trial judge has the advantage of seeing and hearing the witnesses. If there was an evidentiary basis upon which the findings could reasonably have been made I cannot interfere.

[70] To the same effect is the more recent reiteration by our Court of Appeal in R. v. Polcano [2018 ONCA 444, at para. 20 citing R. v. O’Meara, 2012 ONCA 420, at para. 36, leave to appeal to S.C.C. refused, [2018] S.C.C.A. No. 271.] where Nordheimer J.A. said on behalf of the unanimous court that:

The jurisdiction of a summary conviction appeal judge is limited. a summary conviction appeal judges not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judges also not entitled to interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence.

[23] The standard of review for findings of fact and factual inferences drawn by trial judges is well established. An appellate court will only interfere with such findings where there is a palpable and overriding error. They must be clearly wrong, unsupported by the evidence or otherwise unreasonable: R. v. Clark, 2005 SCC 2, at para. 9.

[24] Appellate deference on issues of credibility is justified and must be shown to the trier of fact given his or her advantage in seeing and hearing the witness’ evidence. A difference of opinion between the appellate court and the trial judge is not enough to overturn a conviction: R. v. G.F., 2021 SCC 20, at paras. 5, 81-82; R. v. Gagnon, 2006 SCC 17, at paras. 10, 19-20, and 24.

[25] A verdict is unreasonable where the judge draws an inference or makes a finding of fact essential to the verdict that is plainly contradicted by the very evidence from which it was drawn, or upon which it has been made to rest. Similarly, where the judge draws an inference or makes a finding of fact essential to the verdict that is demonstrably incompatible with evidence that is neither contradicted by other evidence nor rejected by the trial judge, the verdict is unreasonable: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1 and 2

[26] Not all misapprehensions of evidence constitute a reversible error or necessitate appellate intervention. The misapprehension of evidence has to go to the substance rather than to detail and has to be material rather than peripheral to the reasoning of the trial judge, such that the errors played an essential part, not just in the narrative of the judgment, but in the reasoning process resulting in conviction: Lohrer, at para. 2.

[27] On the Yebes test for reasonableness of a verdict under subsection 686 (1)(a)(i), where the appeal relates to a judge alone trial, the appellate court should identify the defects in the judge’s analysis that led to an unreasonable conclusion. The reviewing court must articulate as precisely as possible what features of the case suggest that the verdict was unreasonable: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381.

[28] Although the verdict rendered is available on the evidence, it may nevertheless be “unreasonable” if the trial judge reached that verdict by an illogical or irrational reasoning process: R. v. Beaudry, 2007 SCC 5, at para. 77. Subsection 686(1)(a)(i) addresses the reasonableness of the judge’s verdict by, inter alia, scrutinizing the logic of the judge’s findings of fact or inferences drawn from the evidence admitted at trial.

[29] The appellate court must consider all of the evidence that was considered by the trier of fact before making a finding that there was an error: R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, at para. 4. In considering all the evidence, the court must not dissect the reasons of a trial judge and examine each piece in isolation: R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (ON CA), at para. 28.

[30] A trial judge’s misapprehension of evidence and failure to appreciate relevant evidence are errors of fact or mixed fact and law. If those errors deprive the accused of a fair trial, they may result in a miscarriage of justice within the meaning of subsection (1)(a)(iii). An accused whose conviction rests on material findings tainted by error has been denied a fair trial: R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (ON CA), at p. 221.

[31] In R. v. Sinclair, 2011 SCC 40, LeBel J wrote at para. 53:

[53] …In my opinion, for an appellate court to decide to order a new trial on the basis of a miscarriage of justice resulting from a misapprehension of the evidence, more is needed then an “apparent” mistake (e.g. an error that the trial judge may have committed) in the reasons. A court of appeal should not, in applying the Lohrer test, order a new trial unless the trial judge has made a real error; its decision cannot be speculative. The plain language or the thrust of the reasons must disclose an actual mistake. When such errors are in fact committed, appellate courts have no difficulty in explaining why they caused the trial judge’s reasoning process to be fatally flawed and where they may be found in the reasons. In such situations, the errors are readily obvious."

Did the trial judge err in finding that the vehicle that passed Mr. Lawson on Highway 8 and that Cst. Kaneko pursued was the Appellant’s vehicle?

[32] The Appellant submits that the trial judged in law in finding that the Crown had proven identification on Highway 8 beyond a reasonable doubt because:

1. The trial judge’s decision offers no meaningful appreciation of the frailties of the identification of the vehicle on Highway 8. The car observed by Mr. Lawson and Cst. Kaneko was of a generic class of vehicles (a dark Mercedes SUV) with no distinguishable descriptor. The observations made were of a moving vehicle traveling at a high rate of speed by persons also in moving vehicles. In these circumstances, identification of a vehicle suffers from greater frailty than identification of a person.

2. Neither witness observed the driver of the vehicle they saw. The identification evidence was circumstantial. The trial judge failed to consider whether the only reasonable inference to draw from the circumstantial evidence was that the vehicle observed by Mr. Lawson and Cst. Kaneko was in fact the Appellant’s car. The trial judge failed to consider whether the Crown had disproven all reasonable competing inferences. Specifically, he failed to consider that the vehicle they saw could have turned off Highway 8 or elsewhere in Goderich. There could have been two similar dark Mercedes SUVs on that highway. Mercedes undoubtedly made more than one such vehicle.

3. The trial judge wrongly used the identification evidence of each witness to bolster the identification of the other.

4. The trial judge failed to consider the impact that the subsequent observation of the Appellant’s vehicle in the Square had on their identification on Highway 8.

5. The trial judge failed to consider whether the witnesses were mistaken about the make and model of the vehicle they observed in light of the very brief time they had to observe it.

[33] The Respondent submits that:

1. The trial judge was alive to the issues including frailties of identification of the vehicle. His judgment reflects same.

2. On the totality of the evidence, a reasonable trier of fact could conclude that it was the Appellant’s SUV observed on Highway 8.

3. There was no reasonable competing inference that coincidentally in the exact same time frame there was another black high-end SUV speeding excessively and passing vehicles in an unsafe fashion on Highway 8.

4. Even without the evidence of the Appellant’s driving on Highway 8, there was still sufficient evidence to find the Appellant guilty beyond a reasonable doubt based on his driving on the Square alone.

[34] I am mindful that the trial judge’s reasons should not be analyzed or read as if they were an instruction to the jury. Instead, the reasons are to read as a whole, in the context of the evidence, the issues, and the arguments advanced at trial: R. v. Villaroman, 2016 SCC 33, at para. 15.

[35] Neither witness saw the driver of the vehicle on Highway 8. The finding that the vehicle that passed Mr. Lawson and was chased by Cst. Kaneko was the Appellant’s is a finding of fact. It is an inference drawn by the trial judge.

[36] I do not agree that the trial judge used the identification evidence of each witness to bolster the identification of the other. Rather, the trial judge used the location and timing of their observations and the timing of arrival of the Appellant’s vehicle on the Square as part of the rationale for concluding that they were the same vehicle. In other words, the timing of the Appellant’s vehicle coming onto the Square was consistent with the vehicle observed by Lawson and Kaneko and the speed of the vehicle they saw.

[37] The trial judge did not, however, specifically address the frailties in the identification evidence including:

1. The very brief opportunity that each had to observe the vehicle. Cst. Kaneko saw it as he was passing a line of cars moving in the opposite direction. Given their respective speeds at the time, he had little more than a fleeting glance. Mr. Lawson testified that the vehicle came from behind and passed him in the blink of an eye.

2. Apart from the fact that a high-end Mercedes SUV is uncommon in that area, the car otherwise had no distinguishing features. This was no distinctive roadster or vehicle with particular markings on it. The descriptions provided are generic – colour, make and model.

3. Both Mr. Lawson and Cst. Kaneko lost sight of the vehicle they saw soon after. Both had to travel several kilometers to arrive at the Square. There are numerous roads, side roads and driveways between where they saw the SUV and the Square.

4. The trial judge did not explain how he could find beyond a reasonable doubt that it was the same car when Mr. Lawson testified that he was not sure that it was.

[38] Similarly, the trial judge did not consider the reasonable possibility that the vehicle observed by Mr. Lawson and Cst. Kaneko had turned off Highway 8; that the car they saw was similar to but not the same as that driven by the Appellant.

[39] In assessing circumstantial evidence, inferences consistent with innocence do not need to arise from proven facts: Villaroman, at para. 35 and the cases cited therein.

[40] When assessing circumstantial evidence, the trier of fact must consider other plausible theories and other reasonable possibilities which are inconsistent with guilt: Villaroman, at para. 37. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or lack of evidence: Villaroman, at para. 37.

[41] In this case, the trial judge did not consider other reasonable possibilities, nor did he explain why he rejected such possibilities on the evidence before him. It is entirely possible that there was a second Mercedes SUV on Highway 8 traveling at a high rate of speed. That is the vehicle Mr. Lawson and Cst. Kaneko saw. That vehicle turned off Highway 8 and was gone from sight by the time either witness passed the road or driveway where the vehicle turned. In my view, the trial judge erred when he failed to consider that possibility.

[42] I agree with the Appellant that the inference drawn that the vehicle observed by Mr. Lawson and Cst. Kaneko was the Appellant’s vehicle was unreasonable. I also agree that the trial judge erred in law by failing to consider other reasonable possibilities.

[43] That does not, however, end the analysis. I agree with the Respondent that even if the Appellant’s vehicle cannot be said to be the same vehicle observed on Highway 8, there is evidence sufficient to find beyond a reasonable doubt that he ought to be convicted of dangerous driving for the manner he drove on the Square.

[44] The essential elements of the offence of dangerous operation of a motor vehicle are:

• The defendant operated a motor vehicle, and

• the defendant operated the motor vehicle in a manner that was dangerous to the public.

[45] To decide whether a defendant operated a motor vehicle in a manner that was dangerous to the public, the trial judge must consider all the circumstances in which the driving occurred. He or she must consider, but are not limited to,

• the nature, condition and use of the place where the driving occurred;

• the amount of other traffic, both vehicles and pedestrians, actually there at the time; and

• the amount of other traffic both vehicles and pedestrian, that might reasonably be expected to be there at the time

[46] Dangerous operation of a motor vehicle involves more than just carelessness. The Crown must prove beyond a reasonable doubt that the defendant’s driving was a “marked departure from what a reasonable, prudent driver would do in the same circumstances”.

[47] In R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, The Supreme Court of Canada held that the actus reus of dangerous driving is driving in a manner dangerous to the public in all the circumstances. The focus must be on the risks created by the defendant’s manner of driving, not on the consequences of the driving. The mens rea of dangerous driving requires proof that the degree of care exercised by the defendant was a marked departure from the standard of care that a reasonable person would observe in the defendant’s circumstances.

[48] Mens rea may be inferred from the fact that the defendant drove in a manner that constituted a marked departure from the norm, but proof of the actus reus without more, does not support a reasonable inference that the required fault element or mens rea has been established.

[49] The mental element in dangerous operation does not require proof that the defendant had a positive state of mind, such as intent or recklessness. The Crown must establish, on the basis of all the evidence, including any evidence about his actual state of mind, that the defendant's conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the defendant’s circumstances: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 46.

[50] In my view, there was ample evidence that would justify a finding of guilt for dangerous driving when the Appellant drove on the Square in Goderich.

[51] The trial judge accepted the evidence of Ms. Meriam and Mr. Walls. Both testified that the Appellant was driving at an excessive speed – well above the posted 30 kmph speed limit. He made a hard right turn without slowing down onto North Street. He did so while pedestrians were still in the crosswalk. His tires squealed from the turn. Ms. Meriam’s daughter had to scramble out of the way so as not to be hit per Mr. Walls. The car came close enough to her to startle her. The Square is the retail and commercial hub of Goderich with numerous shops and offices. This happened during the busy summer tourist season shortly before 5 p.m. on a weekday when pedestrian and vehicular traffic should be expected.

[52] The Appellant told the officer who stopped him in Stratford that he was “in a rush”, a statement he testified was a lie. When asked by Sgt. Yantzi what he was doing given that it was the third time he was stopped by police that day, he lied again and said he had to get documents filed or “be fired”. Again, that is consistent with being in a rush. He had to get to the courthouse before it closed. It was 4:45 p.m. when he was stopped the final time. The evidence points strongly to a man hurrying to get to the courthouse before it closed.

[53] The evidence from witnesses on the square supports the trial judge’s finding that the actus reus and mens rea elements were both satisfied. The Appellant’s manner of driving in that location, at that time, in the presence of pedestrian traffic while in a rush was a marked departure from the standard of care that a reasonable person in the defendant’s circumstances would observe. That no one was injured is fortuitous for all but does not derogate from the sufficiency of the evidence to prove beyond a reasonable doubt that he operated the vehicle in a manner dangerous to the public.

Did the trial judge misapprehend the evidence leading him to reject the Appellant’s evidence?

[54] The Appellant submits that the trial judge misapprehended the Appellant’s evidence at trial. That misapprehension led him to reject the Appellant’s evidence and to find that it did not raise a reasonable doubt under the W.D. analysis. The alleged misapprehensions are found at paras. 55-58 of the Appellant’s factum and need not be repeated here.

[55] In addition, the Appellant raised for the first time in his oral submissions that the trial judge wrongly found that the Appellant had tailored his evidence to the case put forward by the Crown.

[56] In R. v. C.T., the court wrote at para. 1:

[1] It is an error of law for a trial judge to discount the credibility of an accused’s evidence on the basis that it was tailored to fit Crown disclosure, or evidence or argument heard in court prior to the accused testifying. Drawing the inference that advance notice of the case against the accused has allowed the tailoring of evidence and thus made it suspect, though a natural temptation, is impermissible. It would create a constitutional trap, turning the right to be present at trial under s. 650(1) the Criminal Code, R.S.C. 1985, c. C-46 and the rights to full answer and defence under ss. 7 and 11(d) the Canadian Charter of Rights and Freedoms against the accused: R. v. White (1999), 132 C.C.C. (3d) (Ont. C.A.), at para. 20; R. v. Schell, (2000), 2000 16917 (ON CA), 148 C.C.C. (3d) 219 (Ont. C.A.); R. v. Thain, 2009 ONCA 223, 242 C.C.C. (3d) 230; R. v. Jorgge, 2013 ONCA 485, 4 C.R.(7th) 170, at para. 12; R. v. M.D., 2020 ONCA 290, 392 C.C.C. (3d) 29; R. v. G.V., 2020 ONCA 291, 392 C.C.C. (3d) 14; R. v. B.L., 2021 ONCA 373, at paras. 44-47.

[57] In his Reasons, the trial judge sets out his rationale for rejecting the evidence of the Appellant. As part of that analysis, starting at page 284 of the transcript, the trial judge reviewed the Appellant’s evidence of how he was driving (speed) on Highway 8 and in the Square in Goderich. At pages 285-86 of the transcript, the trial judge wrote:

This apparently sudden change in the nature of his driving, in my view, is contrary to common sense. In my view, he was tailoring his evidence to that led by the Crown. Between Holmesville and Goderich there was no direct witness testimony as to his driving, so he says in his evidence he drove in a modest unremarkable fashion. But on the Courthouse Square he felt he had to address the evidence of Rebecca Meriam and Chris Walls and of the fact through the evidence of Officer Kaneko that other civilians were pointing at his vehicle in a manner consistent with being concerned as to its driving and to assist the officer in identifying the vehicle at issue.

So he basically states that he suddenly did become a more aggressive driver while trying to put a softer spin on it, in my view. For example, I was speeding but not as much as they say and “it's possible” my tires squealed making the corner, “I don't recall”. This struck me as tailored and less than forthright. (Italics added.)

[58] I agree with the submission made by the Appellant that the trial judge erred in law in his analysis of the Appellant’s evidence by drawing an impermissible inference. The trial judge listed other reasons for his finding that the Appellant’s evidence was not credible and did not raise a reasonable doubt.

[59] It seems to me that the impermissible tailoring inference played a significant role in the trial judge’s rejection the Appellant’s evidence even though other reasons were provided. In these circumstances, the error cannot be cured by s. 686(1)(b)(iii): B.L., at para. 50; C.T., at para 11.

[60] I make no comment on the other grounds asserted with respect to misapprehension of the evidence as it is unnecessary to do so.

Did the trial judge unevenly scrutinize the evidence?

[61] The final ground of appeal – uneven scrutiny of the evidence – is moot given the finding made that the trial judge erred in law in his assessment of the Appellant’s evidence.

[62] As indicated, there is evidence from which a trier of fact could find that the Appellant operated his vehicle in a dangerous manner while on the Goderich Courthouse Square. In these circumstances, the appeal should be allowed, and a new trial is ordered.

Justice R. Raikes

Date: June 27, 2022