COURT FILE NO.: SCA(P)57/20

DATE: 2022-12-13

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HIS MAJESTY THE KING Respondent

• and -

JUSTIN PRASAD Appellant

Counsel: D. Galluzzo, for the Crown N. Gorham, for the Appellant

HEARD: September 20 and December 7, 2022

SUMMARY CONVICTION APPEAL JUDGMENT

(On Appeal from the verdicts of Justice Currie, of the Ontario Court of Justice, dated January 10, 2020)

Ricchetti J.

THE APPEAL:

[1] After a blended trial and voir dire before by J. Currie, Mr. Prasad was convicted of:

• operating a motor vehicle while impaired by alcohol and,
• without reasonable excuse, failed to comply with a demand to provide a breath sample.

[2] Mr. Prasad appeals alleging:

• the trial judge made errors of law in arriving at his findings of fact;
• the verdict was unreasonable; and
• Mr. Prasad’s Charter rights were violated.

THE TRIAL

[3] On March 14, 2017, Mr. Prasad was charged with four offences: a) Failing to stop after being in an accident; b) Operating a motor vehicle while impaired by alcohol; c) Operating a motor vehicle while suspended; and d) Without a reasonable excuse, failed to comply with a breathalyzer demand.

[4] The trial took place on December 5, 6, and 7, 2018.

[5] The Crown called Mr. Javier (the person whose vehicle had been struck), the police officers who attended Mr. Prasad’s home (Cst. Darcy and Ross), the qualified breathalyzer technician (Cst. Crawford) and Cst. Metheral (contacted Mrs. Prasad regarding the Prasad vehicle seizure).

[6] The Defence called Mr. Prasad and Mr. Bokhari. Both, Mr. Prasad and Mr. Bokhari, testified Mr. Bokhari was the driver of the subject vehicle at the time of the accident.

[7] During Mr. Bokhari’s testimony, part way through his cross-examination, his testimony ended for the day. The trial was adjourned for his continued cross-examination. Despite attempts to have Mr. Bakari re-attend court to complete his evidence, Mr. Bokhari failed to re-attend. After almost a year delay, the Defence decided not to seek yet another adjournment. The Crown sought to strike his entire evidence. The Defence opposed. The trial judge allowed Bokhari’s evidence to remain as part of the trial record but considered his failure to complete his evidence a factor going to the weight of his evidence.

[8] Closing Submissions were heard on November 12, 2019.

[9] The trial judge provided oral reasons on January 10, 2020.

THE FACTS

[10] On March 14, 2017, Mr. Javier’s vehicle was parked on the street near Mr. Prasad’s home.

[11] Mr. Prasad’s vehicle struck Mr. Javier’s vehicle.

[12] Mr. Javier, who was about 25 feet away, heard the crash, went to his vehicle to find that Mr. Prasad’s vehicle attempting to back up and leave the scene. Mr. Javier was able to prevent the Prasad vehicle from leaving.

[13] The driver of the Prasad vehicle got out and spoke to Mr. Javier. Mr. Prasad was the driver. Mr. Prasad and Mr. Javier discussed a resolution/compensation for the accident. Mr. Prasad suggested that the discussions continue at Mr. Prasad’s home.

[14] Mr. Prasad drove his vehicle to the Prasad home some 50 meters away from Mr. Javier’s home from where the accident had occurred. Mr. Javier followed on foot.

[15] Mr. Javier entered the Prasad home and had a discussion with Mr. Prasad about the accident and about settling the damage claim. Mr. Javier provided his ownership and insurance information. He wanted the ownership and insurance documents from Mr. Prasad.

[16] Mr. Javier noticed that Mr. Prasad had been drinking alcohol that evening and was unstable.

[17] Then, without producing his ownership and insurance, abruptly, Mr. Prasad denied he had been the driver and that someone else had been operating the vehicle, the driver who was no longer there. Mr. Javier objected stating that it was Mr. Prasad driving.

[18] Mr. Javier saw no one else at the Prasad home except an older lady. Mr. Javier did not see any male person in the Prasad home or observe anyone leave the Prasad home from the time of the accident until the police arrived.

[19] When nothing appeared resolvable, Mr. Javier left and called the police.

[20] The police officers arrived 10 - 15 minutes later. Mr. Javier gave the police a description of Mr. Prasad including that he was wearing a green jacket. Mr. Javier remained at the scene at the request of the police.

[21] The police attended Mr. Prasad’s home. Mr. Prasad matched to any extent the description given by Mr. Javier and was wearing a green jacket.

[22] Mr. Prasad was arrested. Mr. Javier observed Mr. Prasad come out of the home.

[23] The police officers placed Mr. Prasad in their cruiser and stopped near Mr. Javier, who confirmed that the person arrested, Mr. Prasad, was the person Mr. Javier had identified as the driver of the Prasad vehicle at the accident and person he had spoken to at the Prasad home.

[24] Mr. Prasad was taken before a Cst. Crawford, a breathalyzer technician.

[25] Despite numerous demands, Mr. Prasad refused to provide a breathalyzer sample.

THE DEFENCE EVIDENCE (REJECTED BY THE TRIAL JUDGE)

[26] Mr. Prasad denied he was driving the Prasad vehicle at the time of the accident. Mr. Prasad testified it was Mr. Bokhari who was the driver at the time.

[27] Mr. Bokhari testified he was the driver of the Prasad vehicle.

JUSTICE CURRIE’s DECISION

[28] Aside from the Charter and voluntariness issues, the sole factual issue was whether the Crown has established beyond a reasonable doubt that Mr. Prasad was the driver of the Prasad vehicle, at the time of the accident.

[29] The Defence raised a breach of Mr. Prasad’s s. 8, 9 and 10(b) Charter rights.

[30] Justice Currie accepted the evidence of Mr. Javier and entirely rejected the evidence of Mr. Prasad and Mr. Bokhari.

[31] Justice Currie dismissed Mr. Prasad’s Charter applications.

[32] Justice Currie was not satisfied beyond a reasonable doubt that Mr. Prasad failed to stop after the accident (as he had stopped his vehicle when Mr. Javier came out) nor that the Crown had established beyond a reasonable doubt that Mr. Prasad’s drivers license was suspended at the time of the accident. Accordingly, Mr. Prasad was acquitted on these charges.

[33] Justice Currie’s Reasons included:

a) On the Identification of the Driver Issue, Justice Currie stated:

I do not accept the evidence of Mr. Bakari. It seemed to me to be pre-rehearsed, if you will. He basically, reiterated the fundamental position of Mr. Prasad, but was unable to provide any particular details.

Aside, completely from my lack of confidence in the testimony of Mr. Prasad and of Mr. Bakari, neither of their testimonies is consistent with what I find had to happen in this case. There is no question that Mr. Javier would have attended at Mr. Prasad's home in all the circumstances of this case.

The driver of the vehicle that struck Mr. Javier's car told Mr. Javier to come to that address. Mr. Javier was some 50 metres from that address. Mr. Prasad's testimony that Mr. Javier never attended at his home is simply not believable in the face of that inevitability. Mr. Javier certainly would have pursued the driver of the vehicle to continue their conversation about what he might be recompensed for the damage to his vehicle.

I find as a fact that Mr. Javier did attend at that address. That finding of fact flies in the face of Mr. Prasad's testimony which was that, he never saw Mr. Javier. In my view, that is simply impossible.

Similarly, Mr. Bakari's and the defendant's testimony that Mr. Bakari had attended and had some shouting argument with Mr. Prasad at the door of his home and then left, would have been something that would have been seen by Mr. Javier in the course of his 50 metre journey to Mr. Prasad's home.

Mr. Bakari, had he been there and had he been the driver, would have been there to be seen by Mr. Javier when he attended at that home. Mr. Javier did not see him. I find as a fact, that Mr. Bakari was not there.

The only conclusion I can draw from the evidence before me, which I do accept, and I do accept the evidence of Mr. Javier, he did precisely what one would expect a person in his position to do in the circumstances described. He attended and had a conversation with the person who was driving the vehicle that had struck his own. He attempted to make arrangements to receive payment and ultimately gave up on that and called police. I accept his evidence.

In light of the evidence I do find to be credible, I can only conclude and do conclude, beyond a reasonable doubt that Mr. Prasad was operating the motor vehicle in the night in question.

b) On the ss. 8 and 9 Charter Issues, Justice Currie stated:

I turn now to the Charter applications. Whether or not the evidence is admissible against Mr. Prasad. In relation to sections 8 and 9 of the Charter, that is his rights to be free from unreasonable search, that is the subsequent proceeding at the police station. And arbitrary detention, that is his actual arrest. It's alleged in the application that the arresting officer, Constable Ross, did not have reasonable and probable grounds to arrest Mr. Prasad at the time.

In terms of reasonable and probable grounds, the officer must subjectively, have reasonable and probable grounds on which to base her arrest. And those grounds must in addition, be justifiable from an objective point of view. That is, a reasonable person, placed in the position of the officer, must be able to conclude that there were indeed, reasonable and probable grounds for the arrest.

When I look at the evidence which I do accept, which is, Constable Ross was advised by Mr. Javier that the driver of the vehicle had entered the home at 38 Pottery Crescent. That he had been operating a motor vehicle which had struck Mr. Javier's car. That he had been wearing a green jacket and Mr. Javier had provided some description in terms of skin colour and weight. In combination with Constable Ross' observations at Mr. Prasad's home, vis a vis, his condition, that is, her observations in relation to his state of impairment. That combined with the statement from Mr. Javier about Mr. Prasad having been operating the vehicle, in my view, did constitute reasonable and probable grounds for the officer to make the arrest.

Those grounds, in my view, are not just subjectively reasonable, but are also objectively reasonable. That is, a reasonable person in Constable Ross' position, would have been justified in making the arrest with that information.

I bear in mind that reasonable and probable grounds are certainly less than a prima facie case for conviction. And in my view, in this case, the reasonable and probable grounds test was met.

c) On the s. 10(b) Charter issues, Justice Currie stated:

In relation to section 10(b) application, I find that the police officers and in particular, the qualified technician in Mr. Prasad's case, did everything that they were required to do by way of informational and implementational obligations in relation to Mr. Prasad's right to counsel.

The qualified technician, Constable Crawford, in my view, exhibited the patience of Job, in dealing with Mr. Prasad on the issue of right to counsel. Constable Crawford made every effort to explain to Mr. Prasad what his options were. Mr. Prasad seemed intent on refusing to take any steps of his own or make any effort of his own to assist Mr. Crawford in providing legal counsel to Mr. Prasad.

It is trite law that in these circumstances, a defendant must be reasonably diligent in attempting to contact counsel. And I find that in this case, Mr. Prasad was not only, not reasonably diligent, he was the exact opposite or antithesis of that. Mr. Prasad was trying to be as difficult as he possibly could be to avoid whatever consequences might come his way.

I do not find in the circumstances of the case that Mr. Prasad's 10(b) rights were infringed….

GROUNDS OF APPEAL

[34] The grounds of appeal are overly broad: i. The verdicts were unreasonable; ii. The trial judge made legal errors in his assessment of the evidence; and iii. The trial judge erred in his Charter 10(b) assessment.

ANALYSIS

i) Unreasonable Verdict

[35] The Defence submits that the verdicts were unreasonable.

[36] Essentially, in my view, the Defence seeks a re-weighing of the evidence. That is not the function of this appellate court. The trial judge accepted the evidence of Mr. Javier, that Mr. Prasad was the driver of the vehicle at the time of the accident and rejected the evidence of Mr. Prasad and Mr. Bokhari. Absent a palpable and overriding error, the trial judge is owed deference to his findings of fact.

[37] Having accepted the evidence of Mr. Javier that he was the driver of the Prasad vehicle at the time of the accident, there was a reasonable and logical path to conviction of impaired driving and the videotaped evidence established the refusal to provide a breath sample.

[38] The Defence submits there was “considerable” evidence that Mr. Prasad was not the driver – Mr. Prasad’s denial he was the driver, Mr. Prasad’s evidence that Mr. Bokhari was driving, and Mr. Bokhari evidence that he was driving.

[39] The trial judge, in his reasons, reviewed and explained why he rejected Mr. Prasad’s evidence and rejected Mr. Bokhari’s evidence. The trial judge, in his reasons, set out why he accepted Mr. Javier’s evidence. The trial judge was entitled to consider all the evidence, decide which evidence to accept and which evidence to reject, even when a greater number of witnesses testify to a fact.

[40] Let me deal with the specific submissions made by the Defence on this ground of appeal.

Circumstantial evidence

[41] The Defence submits that this case rested entirely on circumstantial evidence. That is incorrect. Mr. Javier’s evidence was direct evidence that Mr. Prasad was the driver as Mr. Prasad. There is no merit to this submission.

[42] The Defence goes on to submit that, because of the evidence of Mr. Prasad and Mr. Bokhari, “left no reasonable path to conviction” because there was another possible and reasonable exculpatory conclusion. I disagree. Again, this was not a completely circumstantial case where the Crown must exclude any other reasonably possible conclusion. Here Mr. Javier’s direct evidence, if accepted as it was, provided a proper legal and direct evidentiary basis to come to the necessary finding of fact beyond a reasonable doubt, namely, that Mr. Prasad was the driver of the vehicle at the time of the accident.

[43] This submission has no merit.

Reliance on Mr. Prasad’s statement that his wife was the driver

[44] The Defence submits that J. Currie relied on “inadmissible evidence” that Mr. Prasad told the police his wife was driving. This submission relates to the first statement made by Mr. Prasad when the police originally attended at him home and before Mr. Prasad was arrested and given his rights and caution:

“In this case, the prosecution introduced evidence of what Mr. Prasad purportedly said to the police officers when they attended his front door.” (para 26 of the Defence factum).“

[45] While this submission does not relate to subsequent statements made by Mr. Prasad to the police officers, they are relevant to this analysis.

[46] When the police arrived at Mr. Prasad’s home and told him they were there to investigate the accident, Mr. Prasad spontaneously volunteered that his wife was driving. He wasn’t asked that question. He volunteered it. There was nothing involuntary about the statement spontaneously made to the police in these circumstances.

[47] It is noteworthy that, after Mr. Prasad was arrested and cautioned, Mr. Prasad again told the officers that his wife was the driver and had been out to the movies the past 3 or 4 hours despite the fact the accident had happened less than an hour earlier. At other times he suggested that there were other persons in his home, suggestive that others from his household could have been the driver.

[48] Mr. Prasad repeated the same statements about his wife and others who could have been the drivers, to the arresting officers AFTER his first caution. And some at the instance of the Defence questioning. And the fact Mr. Prasad repeated the same type of statements to the breathalyzer officer AFTER his second caution and secondary caution.

[49] Accordingly, I fail to see any prejudice or harm to the admission of the first statement to the police officers that his wife was driving considering the subsequent similar and often more detailed statements, by Mr. Prasad after being cautioned.

[50] The Defence goes on to submit that this evidence should have been the subject of a voir dire.

ii) The Voir Dire

Agreement to a Blended Trial

[51] The Defence submits that the trial judge was required to hold a voir dire to determine voluntariness, and the failure to do so, is reversible error. See paras 25 and 26 of the Defence factum.

[52] Prior to the Crown’s case, the Crown advised it was proposing to enter two statements made by Mr. Prasad: the initial statement made by the police described above and the statements made by Mr. Prasad to the breathalyzer technician (Officer Crawford).

[53] The Defence submits that the trial judge erred in failing to hold a voir dire on voluntariness of the statements made by Mr. Prasad to the police officers at his home.

[54] Holding a separate voir dire is not necessary where counsel agree that the voir dire and the trial proceed together as a blended trial. At page 105 of the transcripts, both counsel agreed that the trial would proceed by way of a blended voir dire and trial on the issues of voluntariness, the Charter applications, and the trial evidence proper. In these circumstances, a separate voir dire was not required

No Specific Ruling on Voluntariness

[55] Let me turn to the fact that no specific voluntariness ruling was made by the trial judge. I agree that there was no specific voluntariness ruling in J. Currie’s Reasons.

[56] Context, including the evidence in this case, the positions of the parties and the submissions made by counsel, are important to this ground of appeal.

[57] There are several significant points to bear in mind:

a) the police officers gave evidence in chief about the lack of threats, promises and inducements. There was no cross-examination by the Defence in these areas except once where the Defence suggested to Officer Crawford that telling Mr. Prasad not to interrupt him was a threat. That exchange, recorded on video, was undoubtedly not a threat:

[FROM VIDEO] “CRAWFORD: [near the bottom,] But if you interrupt me one more time it’s going to make it very awkward because you and I are going to just sit here in silence starring at each other PRASAD: Well, you got to.... CRAWFORD: Well, I would like to respect you and I would like to have respect back. That’s all.”

DEFENCE COUNSEL to Mr. Prasad: Now, when Officer Crawford said, “If you interrupt me one more time it’s going to make it very awkward”, what did you take out of that statement at the time?

A. I felt that he is, he is just some sort of threatening me, that we are going to be here all night and he cornered me. He kind of made me speechless at that point, that I don’t have, I don’t have any choice left. He is, he is just, he put me into a lot of pressure, a lot of pressure, as you have seen in the video and when he said this word I was like, okay, this is, it’s, it’s either his way or there is no other way out of here.

A. Well, I just want him to do his job because nobody is believing me, nobody is listening to me, nobody wants to hear that I was not the driver, so he keep bringing back that a job he is supposed to do he wants to do the, do the breath sample and I keep refusing it and I told him, do what, what he needs to do to get this things done so I can come to the court and explain my position

b) Mr. Prasad was cautioned immediately upon his arrest and expressly told that he didn’t have to say anything but that anything he said could be used against him. The officer testified he believed Mr. Prasad understood the caution, was deliberately delaying and was talkative.

c) Mr. Prasad was again cautioned (including a secondary caution) by the breathalyzer officer (Cst. Crawford). Mr. Prasad advised he understood. Mr. Prasad’s belligerent and talkative attitude continued right through the events in the breathalyzer room.

d) There was no suggestion by Mr. Prasad, in his evidence, that he made the statements that his wife or family member were or could have been the driver because of any threat, promise or inducement by the police officer. There was no suggestion by Mr. Prasad that he felt compelled to tell the police it was his wife or others in his household. The Defence position, and the evidence led by the Defence, was that Mr. Prasad was fearful of Mr. Bokhari which caused him to make these admittedly false statements to the police officers. NOT because of the police officers did or said anything.

[58] In cross-examining the officers, the Defence elicited statements that Mr. Prasad had continually denied to the police that he was the driver of the vehicle, such as by telling the police officers he was not driving - his wife was. The Defence relied heavily on these denials that Mr. Prasad was not the driver, suggesting that his wife or others in the household were or could have been the driver of the vehicle.

[59] The Defence also, during the examination in chief of Mr. Prasad, goes to great lengths to elicit evidence that explains why Mr. Prasad lied to the police (and to explain why he didn’t tell them it was Mr. Bokhari – his evidence at trial):

DEFENCE COUNSEL in chief Q. Well, let me ask you this question. Didn’t you know that the police were eventually going to find out that you were lying to them about your wife and...

A. Oh. Yes.

Q. ...son or whatever?

A. Oh. Yes. Yes.

Q. So, why would you do that? Why would you lie to the police?

A. Who else would I, who else would I, it’s a very minor collision. Who else would I have put it onto? There is nobody else that I can, I just, you know, hey, the vehicle is accessible by family members only.

[60] The Defence led extensive evidence in chief that Mr. Prasad was fearful of Mr. Bokhari, and when told of the accident, so fearful, that Mr. Prasad consciously and deliberately lied to the police about who was driving.

DEFENCE IN CHIEF Q. Do you remember saying to Officer Crawford and possibly other officers that the driver of the vehicle was your wife?

A. Yes.

Q. Okay. Why do you say that?

A. They left me with no choice. They left me with no, like, I, I had no, I just don’t know what to do at that point. I, I didn’t know what to do. I just said to him she was the driver, or the kids were the driver, whoever was driving. I had to choose a name because I didn’t want to point the finger on this guy because, you know, my life was....

Q. Let me stop you. Who is, “this guy”?

A. Khurram.

Q. Okay. Khurram?

A. Bokhari.

Q. Okay. Continue, please.

A. I didn’t want to mention his name. I, I knew that if I would open up, if I would mention his name, if the police going to contact him, go arrest him and charge him, I think the rest of my life that I am living here doing work, he knows where my company is because obviously, he was involved at work, I would be in a serious, serious danger from this guy, Khurram Bokhari.

Q. Well, let me ask you this question. Didn’t you know that the police were eventually going to find out that you were lying to them about your wife and...

A. Oh. Yes.

Q. ...son or whatever?

A. Oh. Yes. Yes.

Q. So, why would you do that? Why would you lie to the police?

A. Who else would I, who else would I, it’s a very minor collision. Who else would I have put it onto? There is nobody else that I can, I just, you know, hey, the vehicle is accessible by family members only.

[61] The Defence suggested that Mr. Prasad that he didn’t understand what was asked of him when a breath sample was requested. A review of Mr. Prasad’s evidence suggests he did know what was going on:

[From video] “CRAWFORD: Okay. The only think you are required to do by law is to give me these suitable samples into the instrument. Okay? Does that make sense? You understand that? PRASAD: I don’t understand. CRAWFORD: You don’t understand the only thing that you have to do by law is provide those two samples? PRASAD: I don’t understand that.”

DEFENCE COUNSEL: Why did you not, did you understand that?

A. Well, I understand his question but one thing I didn’t understand is why do I have to give him a sample of me sitting at home in my place at my own home. It’s my privacy and having whatever drink I like to have because I am, I am in my home and the police come in, come into my home and dragging me out and demanding all this stuff, which how does that justify? So, why would I give them my breath sample, for what reason? That was, that was what it was in my mind.

[62] Lastly, the Defence chose to use Mr. Prasad’s statements to the police officers that his wife was driving, as a ground to challenge that the police did not have reasonable grounds to arrest and charge Mr. Prasad. See page 25 of the Submission transcript.

[63] Again, the Defence was trying to use Mr. Prasad’s statements to the police his wife was driving for the benefit of the Defence:

Q. If I were to suggest to you that Mr. Prasad had indicated another individual was driving the vehicle, would that be a reason to believe that another individual was driving the vehicle?

A. I don’t believe that another individual was driving the vehicle.

Q. I was asking you would that be a reason to believe, based on the statements made by Mr. Prasad that he was not the driver of the car, that another individual may have been driving the vehicle.

A. No, because he likely wouldn’t admit that he was driving the car. He tried to say his wife and his kids were driving the car.

[64] Prior to calling Mr. Prasad, the Defence did NOT ask for a ruling on voluntariness. Instead, the Defence called Mr. Prasad and, at various parts of the examination in chief of Mr. Prasad, asked questions to elicit Mr. Prasad’s statement that he had told the police that his wife had been driving.

[65] Equally important, after the trial evidence, during submissions, the Defence did not ask for a ruling or make ANY submissions the the statement that his wife was driving, whether before or after the cautions, was involuntary.

[66] In my view, given the evidence and positions of the parties, a specific voluntariness analysis and ruling was no longer necessary nor sought by the Defence. They relied on the statement to advance their position at trial. I accept that it would have been better for a statement by the trial judge obtaining clarification that the voluntariness issue was waived or make a finding of voluntariness.

[67] An out-of-court statement by an accused person to a person in authority is not admissible at trial unless and until the Crown proves, beyond a reasonable doubt, that the statement is voluntary. R. v. Hodgson, [1998] 2 S.C.R. 449 at paras. 12, 29.

[68] The Court in Hodgson considered when a trial judge needs to hold a voir dire of the judge’s own motion, and the role of the appellate court when a voir dire is not held:

The trial judge has a duty “to conduct the trial judicially quite apart from lapses of counsel”: see R. v. Sweezey (1974), 20 C.C.C. (2d) 400 (Ont. C.A.), at p. 417. This includes the duty to hold a voir dire whenever the prosecution seeks to adduce a statement of the accused made to a person in authority: see pp. 41718. However, where the defence has not requested a voir dire and a statement of the accused is admitted into evidence, the trial judge will only have committed reversible error if clear evidence existed in the record which objectively should have alerted him or her to the need for a voir dire notwithstanding counsel’s silence. Thus, the test for holding a voir dire is assessed by an appellate court’s objective review of the evidence in the record to determine whether something should have triggered the trial judge’s obligation to conduct an inquiry. This test is different from the test applicable on the voir dire, which requires the trial judge to undertake an examination of the reasonable belief of the accused and the circumstances surrounding the making of the statement to determine both whether the receiver is a person in authority and whether the statement was made voluntarily.

[Emphasis added.]

[69] On appellate review, reversible error based on the failure to hold a voir dire occurs only when clear evidence exists that, objectively, should have alerted the judge to the need for a voir dire, notwithstanding defence counsel’s silence. The appellate court conducts an objective review of the evidence to determine whether something should have triggered the trial judge’s obligation to conduct an inquiry. Or, as in this case, the need for a ruling on voluntariness of Mr. Prasad’s statement to the police before the first caution.

[70] I am not persuaded that a ruling on voluntariness was necessary, given: i. the failure of any significant questions challenging the lack of promise, threats, inducements, ii. the spontaneous statement to the police prior to the first caution, iii. that Mr. Prasad repeated the same statement several times after the first and second caution, iv. the Defence use of the statement to argue that the police didn’t have reasonable grounds for the arrest, and v. the failure to make any closing submissions that voluntariness remained in issue or seek a ruling on voluntariness at that tim

[71] Like the situation in R. v. S.H., 2019 ONCA 669, even if I concluded that the trial judge failed to hold a separate voir dire on voluntariness (which was obviated by agreement to hold a blended voir dire/trial) or the trial judge failed to specifically make a ruling on voluntariness (notwithstanding this ground was not specifically identified in the Notice of Appeal), given the circumstances of this case, I do not give effect to this ground of appeal.

[72] In any event, the Crown submits that, if the trial judge committed an error in not making a specific ruling on voluntariness, the error, in these circumstances was harmless, thereby engaging the proviso. The Defence submits that because the trial judge admitted inadmissible evidence, the proviso is not applicable. I do not consider the proviso to be so limited. The Defence submits no authority to this effect. I find that, in any event, the error of not making a specific ruling on voluntariness was harmless, and if necessary, I would have applied the proviso to dismiss this ground of appeal.

[73] I dismiss this ground of appeal.

iii) Errors in J. Currie’s Findings of Fact/Weighing of evidence

[74] In my view, the essence of the submissions by Mr. Prasad’s counsel is to have this court re-weigh the evidentiary findings of the trial judge.

Reliance on Assumptions

[75] The Defence submit that the trial judge relied “on assumptions rather than rational evaluation of the actual evidence” referring to the implausibility that Mr. Prasad would fear a long-time employee to the point that Mr. Prasad would lie to the police about who was driving; and the fact that Mr. Prasad continued to work with Mr. Bokhari after the accident, a person he was so fearful of that he implicated his wife or children into a motor vehicle accident and leaving the scene of an accident.

[76] I see nothing improper about J. Currie’s assessment and rejection of the evidence of Mr. Prasad including: a) the internal inconsistencies in Mr. Prasad’s evidence, b) Mr. Prasad’s motivation to lie given his prior license suspension, c) Mr. Javier’s evidence, and d) The quality of Mr. Bokhari’s evidence and Mr. Bokhari’s failure to attend to complete his evidence.

[77] When the above is considered, the trial judge had a clear evidentiary basis to reject Mr. Prasad’s evidence. Here the trial judge’s rejection of Mr. Prasad’s evidence as to his alleged fear to name Mr. Bokhari was properly grounded in the evidence, not assumptions.

[78] There is no merit to this submission.

Rejection of Mr. Bokhari’s evidence

[79] The Defence submits there was little analysis of Mr. Bokhari’s evidence and “the limited reasons provided for rejection Mr. Bokhari’s evidence appear to be premised on legal errors”.

[80] The trial judge referred to “challenges” in Mr. Bokhari’s evidence (in particular during his cross-examination but also being a “difficult” witness during his examination in chief); Mr. Bokhari being on medication; Mr. Bokhari’s mental health issues (PTSD (Post Traumatic Stress Disorder), bipolar and schizophrenia); the appearance of rehearsed evidence; inability to provide any further details of the night when questioned; the in-court outbursts (described by the Defence as “rants”) by Mr. Bokhari, requiring intervention by the trial judge; Mr. Bokhari’s failure to re-attend; and internal inconsistency regarding whether he had seen Mr. Javier before.

[81] Considering all these reasons in the assessment of Mr. Bokhari’s evidence, I reject that the trial judge erred in assessing Mr. Bokhari’s evidence by stereotyping persons with mental health as having evidence less credible.

[82] The Defence also submits that the trial judge erred in rejecting Mr. Bokhari’s evidence because Mr. Bokhari’s testified, he did not “give a shit” about Mr. Prasad and there was no basis to conclude that Mr. Bokhari testimony was motivated to assist Mr. Prasad. And then the Defence points to Mr. Bokhari’s failure to re-attend as further evidence of lack of motivation to assist Mr. Prasad. All this evidence was before the court. This submission is nothing more than a re-attempt to have this court re-weigh the evidence and urge this court to come to a different conclusion.

[83] Lastly, the Defence submits that the trial judge erred in relying on Mr. Bokhari’s failure to re-attend because the Crown acknowledged that they were content to rely on the record. Context. There was a lengthy delay of a year in completing the trial because of Mr. Bokhari’s failure to re-attend. Numerous attempts to get the trial completed by having Mr. Bokhari re-attend were in vain. The Defence decided not to ask for an adjournment. The Crown was content to proceed on that basis. However, the Crown did not agree that Mr. Bokhari’s failure to attempt would be ignored. The Crown’s position was best described by the Crown urging the trial judge to exclude all of Mr. Bokhari’s evidence. This demonstrates that the Crown did not waive the completion of Mr. Bokhari’s evidence on the basis it would not challenge Mr. Bokhari’s evidence. This was a live issue, and the trial judge was entitled to consider this in weighing Mr. Bokhari’s evidence.

[84] This submission has no merit.

Rejection of Mr. Prasad’s evidence

[85] The Defence points a possible inconsistent piece of evidence – how long it took to reach Mr. Prasad’s home from the site of the vehicle accident. This was a minor piece of evidence in Mr. Javier’s evidence – whether it took 2-3 minutes to walk 50 meters! This was inconsequential. And the trial judge referred to this issue at page 29 of his reasons. The trier of fact is entitled to accept some and reject some of a witness’ evidence. This is particularly so on inconsequential evidence such as this.

[86] The suggestion that the trial judge “marshalled his own reasons to reject” is unfair to the trial judge. This issue was the subject of Defence and Crown submissions on closing. See page 59-60 of the Defence Closing Submissions.

[87] The Defence also submits that the trial judge considered Mr. Prasad’s evidence piecemeal pointing to the fact Mr. Javier, when following Mr. Prasad in his vehicle to Mr. Prasad’s home, did not observe Mr. Bokhari leaving. There is no basis for this submission.

[88] The question was whether the total evidence of the Crown, Mr. Prasad and Mr. Bokhari raised a reasonable doubt as to who was driving. The trial judge, having weighted all the evidence, concluded there was no reasonable doubt that Mr. Prasad was the driver. There is no basis for this court to interfere with that conclusion.

Failure to apply legal principle to eyewitness identification

[89] The Defence submits that the court did not apply the law regarding the caution to eye-witness identification to the evidence. I disagree. Much was made of this in the closing submissions. The trial judge referred to this at page 29 of his reasons.

[90] The submissions of the Defence are speculative. This was not a brief encounter with Mr. Prasad. There was a conversation at the scene of the accident, a meeting and conversation at Mr. Prasad’s home and identification again when Mr. Prasad was in the back of the police cruiser. To suggest that his identification of Mr. Prasad should have been rejected has no merit or there was a palpable and overriding error in making this finding, has no merit. The identification of the driver was entirely within the jurisdiction of the trial judge to make.

[91] There was no stereotyping, inter-racial identification issues at play here requiring intervention by this court.

[92] The Defence submits that there was an issue with Mr. Javier’s ability to identify Mr. Prasad because he was not wearing glasses. There are several difficulties with this submission. The Defence asked Mr. Prasad to read from his statement at trial. Mr. Prasad didn’t have his glasses. Mr. Prasad read the passage. Mr. Javier also testified he could identify faces without his glasses. In any event, the trial judge had that evidence before him and concluded that, given all the evidence, Mr. Prasad could and did identify Mr. Prasad as the driver, the person he spoke to at the scene of the accident, the Prasad home, and the person the police arrested.

Charter Violations

S. 10(b) Charter (right to counsel)

[93] This is the only Charter issue raised by the Defence on the appeal.

[94] The evidence to inform and assist Mr. Prasad to exercise his right to consult with a lawyer was extensive. At the police station, Officer Ross testified there was Google available and a “book that has all the lawyers that practise law”. Officer Ross offered to provide Mr. Prasad with the list of lawyers, if requested by Mr. Prasad.

[95] Let me repeat the summary I find to be accurate from the Crown’s factum:

P.C. Crawford provides rights to counsel to the Appellant in the breath room. The Appellant now stated that he wanted to speak with counsel, but did not have a lawyer. He would not speak with duty counsel and said he needed to find a lawyer. P.C. Crawford said he would assist the Appellant to find a lawyer, but needed him to do some “selfdirected thinking”. P.C. Crawford explained that he (the officer) cannot simply look through the lawyer book or Google to randomly pick a lawyer. The officer also explained that he could contact a lawyer the Appellant used in the past, another lawyer, or the Appellant’s wife or friends to obtain a lawyer’s name. Officer Crawford again mentioned that duty counsel was available. After receiving the above information, the Appellant responded, “Okay. But why do I need a lawyer?”

P.C. Crawford reviewed the Appellant’s charges with him and asked him what he wanted to do. The Appellant explained that he cannot afford a lawyer and refused to speak with duty counsel. P.C. Crawford and the Appellant continued to discuss his options. The Appellant again refuses to speak to duty counsel and states he does not have a lawyer. P.C. Crawford continues to explain the Appellant’s options, but the Appellant again asks why he needs a lawyer and protests that the police have charged him for something he did not do. After explaining the Appellant’s charges again, P.C. Crawford returns to the issue of counsel. The Appellant explains that he does not want to spend money on a lawyer and continues to protest the basis of his charges. After canvassing a number of options with the Appellant “to exhaustion”, P.C. Crawford decided to proceed with the investigation.

Because the Appellant did not want free duty counsel and advised that he does not want to pay for a lawyer, P.C. Crawford believed that he had no other means to recommend a lawyer, as he did not know of any other free lawyers besides duty counsel. P.C. Crawford said there is a lawyer directory in the booking/cells area. He did not know whether the book was Canada- or Ontario-wide, criminal law-specific, or also contained paralegals. It listed the lawyers’ addresses, but he did not know if it listed their areas of expertise.

[96] Having reviewed the trial transcripts, the trial judge’s conclusion that the officers, in particular the qualified technician, did everything required to inform and assist Mr. Prasad in implementing his right to counsel including making known to Mr. Prasad a variety of ways he could obtain the name/number for a lawyer.

[97] I agree with the comment of the trial judge that Officer Crawford, the breathalyzer technician, was extremely patient and persistent in assisting Mr. Prasad’s right to counsel. This is not a case of determining whether the police efforts met the standard were reasonable. They greatly exceeded their legal obligation, in this case. I agree with the trial judge that Mr. Prasad seemed intent on refusing to take any steps to exercise his right to counsel

[98] I reject this ground of appeal.

CONCLUSION

[99] Appeal dismissed.

[100] Mr. Prasad’s bail expires as of midnight tonight.

Ricchetti J.

Released: December 13, 2022