Court File and Parties

Oshawa Court File No.: CR-21-15670-00AP Date: 2023-08-16

Ontario Superior Court of Justice

Between: His Majesty The King, Respondent – and – Ritvik Sharda, Appellant

Counsel: M. Fabre, for the Crown A. Zaitsev, for the Appellant

Heard: March 3, 2023

On Appeal of the Judgment of the Honourable Justice Chester dated October 21, 2021

Reasons for Decision

M.L. EDWARDS, R.S.J.

Overview

[1] This is a summary conviction appeal by Mr. Sharda from his conviction of over-80 contrary to s. 320.14(1)(b) of the Criminal Code of Canada. Mr Sharda also appeals his Highway Traffic Act conviction of failing to remain at the scene of an accident. Mr. Sharda was convicted on October 21, 2021.

The Facts

[2] On June 30, 2020 at approximately 11:30 p.m. Mr. Sharda and a friend Derek Smith were involved in a single vehicle motor vehicle accident (“the accident”) in the city of Oshawa near the intersection of Dean Street and Harmony Road. The accident was not witnessed by anyone. The owner of the vehicle (“the vehicle”) involved in the accident was Derek Smith.

[3] Mr. Sharda and Mr. Smith were observed by two local residents getting out of the driver’s seat area of the vehicle. These residents having heard the impact of the collision then contacted 911.

[4] Police officers who were on patrol received information from the 911 dispatch operator that the accident had occurred and that two male middle-aged individuals may have been involved.

[5] Shortly after receiving this information from the dispatch operator, two police officers who were on patrol observed two male individuals walking within close proximity to where the accident happened.

[6] At trial Mr. Sharda sought a remedy under s. 8 of the Canadian Charter of Rights and Freedoms (“The Charter”). The essence of the Charter application revolved around whether or not the investigating police officers had reasonable and probable grounds to detain and arrest Mr. Sharda. The Charter application was unsuccessful and the remaining issue at trial was the identity of the driver of the vehicle.

[7] In convicting Mr. Sharda of over-80, heavy reliance was placed by the trial judge on what was perceived to be, the confession of Mr. Sharda when he told the police officers transporting him to the police station that he was “very sorry. I’ve never done this before. I screwed up. I screwed up. I made a mistake. I want to be forgiven. Please let me go.” I will refer throughout these Reasons to these words of Mr Sharda as “the utterances”.

[8] In his Reasons, Chester J. concluded that asking for forgiveness and acknowledging his mistake was tantamount to Mr. Sharda saying that he was the driver. As such, a conviction for over-80 was registered given that there was no challenge to the Certificate of Analysis nor any issue with respect to impairment. The Certificate of Analysis established that Mr. Sharda was well over the legal limited of over 80.

The Issues on Appeal

[9] In this appeal counsel for Mr. Sharda argues that the Crown failed to prove the essential element of identity beyond a reasonable doubt. In that regard it is argued that the utterances made by Mr. Sharda subsequent to his arrest and on his way to the police station did not establish his guilt. It is argued that there is more than one interpretation that could be given to the utterances other than a conclusion that Mr. Sharda was admitting that he was the driver of the vehicle.

[10] As it relates to the utterances of Mr. Sharda, defence counsel argues that in coming to the conclusion that the utterances established that Mr. Sharda was the driver, the trial judge reversed the burden of proof. It is argued the burden of proof was reversed by the trial judge when he suggested that Mr. Sharda could have removed any doubt about who was driving the vehicle by subpoenaing Mr. Smith to establish that it was Mr. Smith driving the vehicle and not himself.

[11] As it further relates to the issue of the utterance, defence counsel argues that the utterance was not a confession because it was capable of more than one interpretation. In that regard, heavy reliance is placed on the decision of the Supreme Court of Canada in R. v. Ferris, [1994] 3 SCR 756.

[12] It is argued that when Mr Sharda was apologizing to the police officers while being transported to the police station his words were capable of both of an inculpatory inference as well as an exculpatory inference.

[13] It is also argued as it relates to the utterances and the issue of identity that the trial judge reversed the burden of proof by, in essence, placing the burden on Mr. Sharda to provide an alternative explanation to the meaning of the utterances.

[14] As it relates to the Charter application to exclude the Certificate of Analysis counsel for Mr. Sharda argues that the police did not have reasonable and probable grounds to stop and detain Mr. Sharda. In that regard counsel for Mr Sharda points to the conflicting evidence from the two investigating police officers at it relates to information that they received concerning the colour of the clothing worn by the two male individuals seen leaving the scene of the accident.

Position of the Crown

[15] As it relates to the dismissal of the s. 8 Charter application, Crown counsel argues that the only issue before the trial judge on the application was whether the arresting police officers had reasonable and probable grounds for the arrest. The issue of identity was only a relevant issue once the Charter application was resolved against Mr. Sharda. As it relates to the substantive issue of identity, Crown counsel argues that the trial judge was entirely correct in his findings as it relates to Mr. Sharda’s utterances and specifically that there was no speculation by the trial judge as to the meaning to be ascribed to the utterances other than the finding that Mr. Sharda was admitting that he was the driver of the vehicle.

The Standard of Review

[16] It is well established that under s. 686(1)(a) of the Criminal Code there are three possible bases upon which an appeal may be allowed. They are as follows:

(a) The verdict is unreasonable or cannot be supported by the evidence;

(b) There was a wrong decision made on a question of law; and

(c) There has been a miscarriage of justice.

[17] It is equally well established that the factual findings of a trial judge are entitled to deference and that absent palpable and overriding error the appellate court cannot substitute its own views of the evidence: see R. v. Sheahan, 2017 ONCA 159 at para. 12.

[18] In R. v. Smits, 2012 ONCA 524 at para. 67 the Court of Appeal confirms that the jurisdiction of a summary conviction appeal judge to review a trial judge’s finding of facts is very limited. A summary conviction appeal judge is not entitled to retry the case nor is a summary conviction appeal judge entitled to substitute his or her own view of the evidence for that of the trial judge. Simply put, as the Court of Appeal observes in Smits a summary conviction appeal judge has no basis upon which to interfere with the trial judge’s findings unless they are unreasonable or they are not supported by the evidence.

[19] As it relates to the standard of review for findings of fact and factual inferences, an appellate court can only interfere with such findings where there has been a palpable and overriding error. Findings of fact and factual inferences must be clearly wrong, unsupported by the evidence or otherwise unreasonable before an appellate court may interfere: see R. v. Clark, 2005 SCC 2 at para. 9.

Analysis

[20] Counsel for Mr. Sharda argues as it relates to the s. 8 Charter application, that the investigating police officers who observed Mr. Sharda and Mr. Smith approximately 200 yards from the scene of the accident did not have the requisite reasonable and probable grounds for his arrest. Specifically counsel refers to the conflicting evidence of the police officers as it relates to the information relied upon as it concerns the colour of the clothing worn by the two male individuals seen leaving the scene of the accident.

[21] The argument made on behalf of Mr. Sharda must fail. The investigating police officers may have been confused as it relates to the colour of the clothing worn by Mr. Sharda and Mr. Smith. What is not in dispute is the other evidence of these police officers. They had information from their dispatch officer that two middle-aged male individuals had been observed by eyewitnesses exiting the vehicle that had been involved in the single vehicle crash. What the investigating police officers saw as they were on patrol in the area of the accidence was in fact two middle-aged male individuals who were walking away from the scene of the accident. When Mr. Sharda and Mr. Smith were confronted on the sidewalk, they were advised by the investigating police officers as to the reason why there were being questioned. The officers received information from Mr. Smith that it was Mr. Sharda who was driving the vehicle and not him.

[22] In my view there were reasonable and probable grounds viewed both subjectively and objectively that could lead to the conclusion that Mr. Sharda had been involved in the accident and as such, the investigating officers did have reasonable and probable grounds to question and detain Mr. Sharda. The decision of the trial judge as it relates to the s. 8 Charter application concerning whether such reasonable and probable grounds existed is well supported in the evidence.

[23] As it relates to the identity of Mr. Sharda as the driver of the vehicle it is accepted that no one actually saw Mr. Sharda driving the vehicle. Observations were made of both Mr. Smith and Mr. Sharda exiting the driver’s door, but those observations standing alone would not suffice to establish that it was Mr. Sharda as opposed to Mr. Smith who was driving the vehicle.

[24] The basis on which the trial judge came to the conclusion that the Crown had established the identity of Mr. Sharda beyond a reasonable doubt is found in the trial judge’s Reasons as it relates to the utterances by Mr. Sharda after he had been arrested.

[25] Counsel for Mr. Sharda argues on the basis of the Supreme Court of Canada decision in Ferris that Mr. Sharda’s utterances were open to more than one interpretation. Counsel for Mr Sharda accepts that the utterances made by Mr. Sharda could lead one to conclude that he was admitting he was driver. It is also argued that the utterances were equally open to an inference that Mr. Sharda was suggesting that he had “screwed up” by walking away from the scene of the accident or an inference that they were the words of a drunk man who had found himself in police custody.

[26] Counsel for Mr. Sharda argues that Mr. Sharda’s utterances could be viewed as both inculpatory as well as exculpatory and that both inferences were nothing more than speculation.

[27] No issue is taken on this appeal (nor at trial) as it relates to the voluntariness of Mr. Sharda’s utterances. The real issue relates to the meaning of the utterances and the weight that can be attached to them, specifically as it relates to the issue of identity. Put simply do the utterances establish that Mr. Sharda self identified himself as the driver beyond a reasonable doubt.

[28] In analysing the utterances, they must be looked at in the context of all of the evidence at trial. The evidence included the evidence of the investigating police officers that Mr. Sharda had been cautioned and clearly understood that he was being investigated in connection with the impaired operation of a motor vehicle. Mr. Sharda was provided the usual rights to counsel. It was only after he was provided with the standard police caution that Mr. Sharda, unprompted in the back of the police vehicle on the way to the police station, uttered the words reflected in paragraph 6 above. The trial judge, in my view, was entitled make the common sense conclusions that he did as it relates to Mr. Sharda’s utterances.

[29] As it relates to the issue raised by Mr. Sharda that the trial judge implicitly reversed the burden of proof, I agree with the Crown that Mr. Sharda misconstrues the trial judge’s words in the context in which they were made. In essence, the trial judge was dealing with the argument advanced on behalf of Mr. Sharda, that the meaning of his utterances were nothing more than speculation. The trial judge’s determination as to the meaning to be attributed to Mr. Sharda’s utterances was nothing more than a common sense meaning that he was apologizing for his actions and admitting that he was the driver.

[30] While it is entirely accurate that Mr. Sharda’s utterances could have had an alternative meaning as suggested on his behalf at trial, those alternative inferences were only open to the trial judge if he had evidence to support them. Simply put, the trial judge did not have that evidence and as such his conclusion that Mr. Sharda was the driver of the vehicle was entirely open to him based on the evidence as it was presented.

[31] There is no basis to interfere with the factual findings of the trial judge, findings which were entirely open to him on the basis of the evidence heard at trial. Mr. Sharda’s appeal against conviction is dismissed.

M.L. EDWARDS, R.S.J.

Released: August 16, 2023