COURT FILE NO.: CR-21-10000061-00AP

DATE: 20221026

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

AZAAD MERWAR

M. Petrie, for the Crown

J. Vamadevan, for the Appellant

HEARD: 21 September 2022

S.A.Q. AKHTAR J.

FACTUAL BACKGROUND AND OVERVIEW

Background Facts

[1] The appellant was convicted of the offences of dangerous driving contrary to s. 320 of the Criminal Code; Driving whilst prohibited from doing so contrary to s. 320.18 of the Code; three charges of failing to comply with a recognizance contrary to s. 145(3) of the Code; and failing to stop after an accident contrary to s. 320.16(1) of the Code.

[2] The Crown alleged that on 4 March 2019, the appellant, Azaad Merwar, drove to Roncesvalles Avenue in the City of Toronto where his former girlfriend, Kelsey Molder, and her family resided. The appellant had been previously charged with assaulting Ms. Molder and was subject to a recognisance of bail forbidding him to be within 100 metres of her home address.

[3] The appellant was seen on the street outside the residence by Kelsey’s father, Craig Molder, who left his house and approached the appellant’s car. The two had a brief confrontation and Mr. Molder informed the appellant of his intention to call police following which the appellant fled the scene. When Mr. Molder spoke to police, he identified the appellant’s car as a grey Audi with the licence plate BFKY 893. Mr. Molder was familiar with the appellant’s vehicle because he had driven the same car to Mr. Molder’s home on previous occasions.

[4] The appellant drove away at high speed in the direction of Parkside Drive and High Park Boulevard, an intersection controlled by traffic lights which were red as the appellant approached. Another car travelling in the same direction was stopped at the lights. The appellant passed this car, drove through the red light, and collided with a third vehicle which was passing through the intersection on a green light (“the collision”).

[5] The appellant failed to remain at the scene and departed at a high speed. The incident was witnessed by Zoltan Enyedi, a civilian who told police that the fleeing vehicle was a “dark coloured sports sedan”. However, he was unable to identify the model.

[6] The impact of the collision resulted significant damage and caused the licence plate bearing the registration BFMY 893, to become detached and fall from the dark coloured sedan. When police conducted a search to identify the holder of the licence plate, they found it to be registered to a grey Audi owned by a numbered company.

[7] The appellant’s trial commenced on 27 May 2021. One week prior, he served an alibi notice on the Crown explaining that on the night of the incident he had been at home in the presence of his cousin, Harkipaul Singh, who had unexpectedly dropped by for a visit. The appellant testified that he had not seen Mr. Singh for over 2 years, and that he randomly showed up at the appellant’s house shortly before the trial.

[8] The trial judge rejected the appellant’s evidence as well as the alibi. He found the Crown had proven its case beyond a reasonable doubt and convicted the appellant of all charges.

[9] The appellant appeals his convictions on the following grounds:

1.The trial judge erred in his application of R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, and specifically, failed to consider the second step of the W.(D.) test; and

2. The trial judge provided insufficient reasons in rejecting Mr. Singh’s evidence and in his acceptance of Mr. Molder’s evidence.

DID THE TRIAL JUDGE ERR IN HIS APPLICATION OF THE W.(D.) ANALYSIS?

Legal Principles

[10] In W. (D.), Cory J. set out the following three step instruction that a judge might use to charge a jury on credibility issues:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused, but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[11] The law has made clear that failure to use the language in the manner described is not fatal so long the charge or reasons for judgment as a whole demonstrate that the trial judge has correctly applied the burden of proof. Nor do judges need to slavishly follow the formula when explaining their reasons or follow some type of linear thought process when coming to their verdicts: R. v. Boucher, 2005 SCC 72, 3 S.C.R. 499 at para. 29; R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521; R. v. Minuskin (2003), 2003 CanLII 11604 (ON CA), 68 O.R. (3d) 577, at para. 22.

[12] In R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 23, the Court remarked that there is “nothing sacrosanct about the formula set out in W.(D.)” and added:

[…] the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W.(D.); it will depend on the context (para. 112). What matters is that the substance of the W.(D.) instruction be respected. In a case such as this one that turns on credibility, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.

No Error in the W.(D.) Analysis

[13] The trial judge’s reasons were concise, but explicitly referred to the W.(D.) principles in the opening paragraph.

[14] The judge moved onto the appellant’s defence - that he was with his cousin on the night in question, did not drive to Roncesvalles Avenue, never encountered Mr. Colton, and accordingly could not have been the driver of the “dark coloured sports sedan” seen by Mr. Enyedi.

[15] The judge found the alibi evidence to be incapable of belief and rejected the evidence from both the appellant and Mr. Singh.

[16] He concluded:

When I look at all the evidence, I am satisfied that Mr. Merwar was in fact the individual who was in that vehicle which was found across the street from Mr. Molder's residence and also involved in the accident as described by the civilian witness. I am satisfied beyond a reasonable doubt that the Crown has made out its case with respect to all of the offences on which Mr. Merwar was arraigned, and accordingly, I make findings of guilt on all counts.

[17] The judge explicitly referred to the steps prescribed in W.(D.) and properly applied them. After rejecting the defence evidence, he went on to consider the rest of the evidence tendered by the Crown. This was not the “credibility contest” described by the appellant but an evaluation of whether the remaining accepted evidence demonstrated guilt beyond a reasonable doubt. After properly assessing the evidence, the judge concluded that it did.

[18] As made clear in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639 at para. 27, citing Boucher:

In the result, the trial judge rejected the appellant's testimony. In Boucher, Charron J. (dissenting in part) stated that when a trial judge rejects an accused's testimony, "it can generally be concluded that the testimony failed to raise a reasonable doubt in the judge's mind" (para. 59). Similarly, [citation omitted] McLachlin C.J. stated that "the convictions themselves raise a reasonable inference that the accused's denial of the charges failed to raise a reasonable doubt" (para. 66).

[19] Similarly, the rejection of the alibi evidence, which was the accused’s defence, effectively constituted the second step of W.(D.). There was no error.

[20] Accordingly, this ground of appeal must fail.

DID THE TRIAL JUDGE FAIL TO PROVIDE SUFFICIENT REASONS?

Legal Principles

[21] After the Supreme Court of Canada’s decision in the seminal cases of R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 and R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, a trial court must provide reasons for its decision that explain the result of a case and permit meaningful appellate review.

[22] In R.E.M., at para. 55, the Court further explained the role of an appellate court reviewing reasons:

The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel, and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself viewed thus, whether the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue.

[23] Accordingly, on appellate review, courts are to take a functional, substantive approach to the sufficiency of reasons, reading them as a whole in the context of the evidence, arguments, and the trial. The basis for the trial judge’s verdict must be capable of being made out and a detailed description of the judge’s process in arriving at the verdict is unnecessary. In order to determine whether the verdict is so capable, the court looks not only to the evidence, but to the submissions of counsel to determine the live issues as they emerged during the trial. The party that lost is entitled to know “why” they lost and the reasons must provide for meaningful review: R.E.M., at para. 35; R. v. Newton, 2006 CanLII 7733 (Ont. C.A.) at para. 3; R. v. T.S., 2012 ONCA 289, [2012] O.J. No. 1962 at paras. 45–46.

[24] A judge need not review every piece of evidence or explain each step of the reasoning process so long as the findings linking the evidence to the verdict can be logically understood: R.E.M. at para. 20; R. v. Campbell, 2017 ONCA 209, [2017] O.J. No. 1371 at para. 15.

[25] Significantly, and with particular application to this case, the judge’s reasons must be read as a whole and in conjunction with the evidence, issues, and submissions at trial, together with an appreciation of the purposes or functions for which they are delivered: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 15; R.E.M., at para. 16. The central question is whether the reasons, read in context, show why the trial judge decided the way he or she did: Vuradin, at para. 15.

The Judge Provided Sufficient Reasons

[26] In his submissions on appeal, the appellant divides the trial evidence into two events: the encounter outside Mr. Molder’s house, and the later collision. He argues that even if the judge was correct in finding the appellant to be the person who met with and argued with Mr. Molder outside his home before driving away, he failed to properly analyse the “contradictory” evidence relating to the collision to determine if the appellant was the driver.

[27] For the following reasons, I find the appellant’s approach is misconceived.

[28] A review of the closing submissions made by counsel at trial reveals that the appellant focussed squarely on the issue of whether the Crown had demonstrated that he was the person who attended Mr. Molder’s house and drove the car away.

[29] The appellant’s position was that he was not present and that Mr. Molder was either lying or mistaken about having an altercation with him on 4 March 2019. As the appellant’s counsel put it: “it's possible that Mr. Merwar had this interaction with Mr. Molder, but it is equally possible that this interaction did not occur.”

[30] The appellant’s position at trial was that Mr. Molder, as the appellant’s ex-girlfriend’s father, had a bias towards him and a motive to “see him convicted”. He testified that he was not present and was at his home with his cousin. In his submissions, he argued “that Mr. Molder witnessed a vehicle driving away at a fast pace from his home, and he assumed that it was Mr. Merwar in the vehicle.” The appellant’s alternative position was that Kelsey Molder had various boyfriends of “questionable” character and it may well have been one of those persons who Mr. Molder saw driving away.

[31] In other words, at trial the appellant did not take the position that there were two discrete events. If anything, by defining Mr. Molder’s motivation as a desire to see him convicted for the driving offence, he implicitly conceded the person who drove away was the person who was involved with the collision.

[32] It is therefore hard to understand how the judge could have made an error in failing to address reasonable doubt over whether the appellant was the person involved in the collision (if he accepted the appellant had the altercation with Mr. Molder) when this position was never advanced at trial.

[33] I turn next to the appellant’s argument that the judge failed to resolve “contradictory” evidence casting doubt on the appellant being the driver in the car collision. The appellant says this contradiction arises out of the differences in time provided by Mr. Molder and Mr. Enyedi. According to the appellant, Mr. Enyedi’s evidence put the time of the collision before Mr. Molder’s confrontation with the appellant outside his house.

[34] As previously described, the judge was not required to address every inconsistency that arose in this case. However, I disagree that any such inconsistency arose here.

[35] The timings given by the witnesses were all approximate. Mr. Molder initially gave the time of his meeting with the appellant as between 8:00 p.m. and 10:00 p.m. Upon refreshing his memory from his police statement, he remembered it to be 11:00 p.m. and lasted approximately 3-5 minutes.

[36] Mr. Enyedi also gave differing accounts of the time. First, he said it was approximately quarter to 11 at night, but subsequently changed that to “around 11:00 p.m.”. He added that the police arrived 30 minutes after the collision. The attending officer, PC Singh, said that he received the call from police dispatch to attend the collision at 11:35 p.m. and he arrived on scene at 12:07 p.m. Significantly, there was no evidence as to the exact time police dispatch received the original call informing them of the collision.

[37] Although there was some disparity between the times offered by the witnesses, there was no marked or significant discrepancy which cast doubt on the appellant being the person who argued with Mr. Molder, got into a dark Audi, and drove in the direction of the location of the collision. In other words, there was no apparent “contradictory” evidence before the judge which needed explanation.

[38] Moreover, I find the judge adequately explained the reasons for the appellant’s conviction.

[39] He explicitly set out the reasons for rejecting the appellant’s and Mr. Singh’s evidence providing the basis for an alibi. Rejection of the alibi had the “the effect of removing it from consideration as a barrier to the acceptance of the case for the prosecution”: R. v. Davison, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424, (Ont. C.A.) at p. 430.

[40] Nor, as the appellant submits, did the judge reverse the onus of proof when commenting on Mr. Singh’s evidence that he was unable to provide any documentation which established the date he was with the appellant. The judge was not placing an onus on the defence, but simply making an observation that Mr. Singh’s evidence was unsourced in relation to the date and unreliable as a foundation for recollection. These were comments on Mr. Singh’s credibility as a witness and not a declaration that the defence had an onus to tender documentation.

[41] The judge went on to consider the rest of the evidence to determine whether the appellant was guilty. He found Mr. Molder to be a credible witness and that he did see and argue with the appellant on the night of 4 March 2019. The judge found the appellant was driving a dark coloured Audi and also that when he drove away, he headed in the direction of Parkside Drive and High Park Boulevard - the location of the collision.

[42] Finally, the judge did not apply circular reasoning in deciding the case. He found the appellant got into a grey Audi as described by Mr. Molder after their tussle; the Audi drove off at high speed in the direction of the location where the collision occurred; the car involved in the collision was a dark grey sedan as described by Mr. Enyedi; when a search was conducted, the plate found at the scene was registered to a grey Audi; and the plate itself was almost identical to the one described by Mr. Molder as belonging to the car the appellant drove off in.

[43] The judge was entitled to find that the only reasonable inference to be drawn from the evidence was that the appellant was the driver of the car involved in the collision leaving the scene immediately afterwards.

[44] The trial judge properly explained his reasons for convicting the appellant and they were grounded in the evidence before him.

[45] For these reasons, the appeal is dismissed.

[46] I would like to thank both counsel for their very helpful submissions and materials.

S.A.Q. Akhtar J.

Released: 26 October 2022

COURT FILE NO.: CR-21-10000061-00AP

DATE: 20221026

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

AZAAD MERWAR

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.