COURT FILE NO.: CR-24-24-AP
DATE: 2024 11 27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
A. Ansari, for the Respondent, Crown
– and –
Dalton Lisso
C. Sewrattan, for the Appellant Dalton Lisso
HEARD: November 19, 2024
REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL
Conlan J.
[1] Dalton Lisso (“Lisso”) was charged that he, on or about April 29, 2023, at Mono, Ontario, did operate a conveyance while his ability to do so was impaired by alcohol, contrary to section 320.14(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, as amended (“Criminal Code”), and further that he had a blood alcohol concentration above the legal limit (“over 80”), contrary to section 320.14(1)(b) of the Criminal Code.
[2] After a very short trial, during which only the Crown called evidence from Lisso’s partner (“Mangolt”) and from the arresting police officer (“Mask”), in relatively brief written reasons for judgment dated March 11, 2024, Lisso was convicted of over 80 and acquitted on the other count.
[3] Lisso appeals against his conviction. There is no sentence appeal.
[4] For the following reasons, despite the able submissions of Mr. Sewrattan on behalf of the appellant, I would dismiss the appeal.
I. The Trial and the Reasons of the Trial Judge
[5] In the context of drinking and driving cases, this was an unusual trial. The Crown called no witness who saw Lisso inside or driving the motor vehicle. The case for the prosecution was entirely circumstantial.
[6] The trial judge, in the reasons for judgment, properly recognized that (i) it was an entirely circumstantial case, and that (ii) the Crown’s theory of the case rested on a conclusion that the only reasonable inference to be drawn from the facts was that Lisso was the driver of the Ford pickup truck, and that (iii) the defence theory of the case (Mr. Sewrattan was not trial counsel) was that there were other rational exculpatory inferences available such that the Crown failed to prove the identity of the driver beyond a reasonable doubt and, therefore, Lisso should be acquitted on both counts, one such reasonable inference being that someone else had driven the truck before Mask arrived at Lisso’s residence and then spoke with and ultimately arrested Lisso (paras. 1-3 of the reasons for judgment).
[7] After summarizing the evidence of the only two witnesses who testified at trial, Mangolt and Mask, the trial judge, at page 3 of the reasons for judgment, concluded that “the Crown has failed to prove the identity of Mr. Lisso as the erratic driver reported to police and I find Mr. Lisso not guilty of the impaired driving charge” (para. 14 of the reasons for judgment).
[8] Immediately thereafter, the trial judge concluded that “the only reasonable inference to be taken on all of the evidence is that [Lisso] was in care and control of the white truck found in front of his residence and that he had arrived at the residence in the truck very shortly before Ms. Mangolt found him in the foyer of their residence”. In the next paragraph of the reasons for judgment, the trial judge outlined eight items of circumstantial evidence that he relied upon to draw that inference, including, as one of the eight, that “Ms. Mangolt heard a knock on her door and observed Officer Mask shortly after Mr. Lisso appeared in her foyer”. That timing issue was referred to again in the next paragraph of the reasons for judgment, where the trial judge stated that “Mr. Lisso had just operated the vehicle and had been in care and control of the motor vehicle in close proximity to the officer’s arrival”. Finally, the trial judge concluded that the inference being urged by defence counsel, that is that someone else had driven the truck to the place where Mask found it, in front of Lisso’s residence, was “at best, speculation” (paras. 15-18 of the reasons for judgment).
II. Analysis
Jurisdiction
[9] This Court’s jurisdiction to hear Lisso’s appeal derives from section 812(1)(a) of the Criminal Code, under Part XVII, which provides that the Superior Court of Justice is the “appeal court” for summary conviction offences.
[10] The within appeal is brought under section 813(a) of the Criminal Code, which provides, in part, that the defendant may appeal (i) from conviction and/or (ii) against a sentence.
[11] As stated above, there is no sentence appeal in this case. Against the conviction, Lisso asks for an acquittal as the remedy and, in the alternative, the ordering of a new trial.
Grounds of Appeal
[12] It is alleged that the conviction on the over 80 count was an unreasonable verdict because (i) the alternate suspect argument could not be disproven and was not speculative, and (ii) the trial judge misapprehended the evidence, and (iii) the trial judge received much inadmissible and prejudicial hearsay evidence.
Standard of Review
[13] There are three possible bases upon which the within appeal may be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence; (ii) there was a wrong decision made on a question of law; and/or (iii) there has been a miscarriage of justice. R. v. Hunt, 2024 ONSC 5454, at paragraph 11; R. v. McLean, 2021 ONSC 34, at paragraph 11.
[14] Although not clearly expressed in the submissions of counsel for the appellant, this Court is of the view that the appellant is relying upon all three bases. The first, unreasonable verdict, was expressly relied upon in the written and oral submissions of counsel for the appellant. The second, error in law, relates to the alleged inadmissible and prejudicial hearsay evidence. The third, miscarriage of justice, emanates from the alleged misapprehension of the evidence argument.
[15] Though questions of law are generally reviewed on a standard of correctness, the jurisdiction of this Court to review a finding of fact made by the trial judge is limited. I am not entitled to retry the case or to substitute my own view of the evidence for that of the trial judge. This is not a retrial. This Court has no basis upon which to interfere with the trial judge’s findings unless they are unreasonable or unsupported by the evidence. R. v. Smits, 2012 ONCA 524, at paragraph 67, 294 O.A.C. 355, 102 W.C.B. (2d) 316 (Ont. C.A.), [2012] CarswellOnt 9437 (C.A.), [2012] O.J. No. 3629 (C.A.), 36 M.V.R. (6th) 217 (Ont. C.A.); R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 29 O.R. (3d) 785 (C.A.), at pages 791-792; R. v. Hunt, supra, at paragraph 12; R. v. McLean, supra, at paragraph 13; R. v. Doyle, [2006] O.J. No. 315 (C.A.), at paragraph 6.
[16] Put another way, the factual findings of a trial judge are entitled to deference, and an appellate court may only interfere 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 can interfere. R. v. Hunt, supra, at paragraph 13; R. v. Clark, 2005 SCC 2, at paragraph 9, [2005] 1 S.C.R. 6 (S.C.C.), 249 D.L.R. (4th) 257 (S.C.C.), 193 C.C.C. (3d) 289 (S.C.C.), 25 C.R. (6th) 197 (S.C.C.), [2005] S.C.J. No. 4 (S.C.C.); R. v. Sheahan, 2017 ONCA 159, at paragraph 12, 8 M.V.R. (7th) 1 (Ont. C.A.); R. v. R.E.M., [2008] 3 S.C.R. 3 (S.C.C.), at paragraph 54, 2008 SCC 51; Housen v. Nikolaisen, [2002] 2 S.C.R. 235 (S.C.C.), at paragraphs 10 and 23, 2002 SCC 33.
The first error alleged – that the alternate suspect argument could not by disproven and was not speculative
[17] I would not give effect to this argument.
[18] In terms of the legal principles regarding circumstantial evidence, although in a different context I outlined those in my decision in R. v. Beharie, 2024 ONSC 370, at paragraphs 28-31, those clauses reproduced below:
[28] The leading authority on how a trier of fact ought to assess circumstantial evidence is the decision of the Supreme Court of Canada, authored by Justice Cromwell, in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paragraphs 29 through 43.
[29] A helpful summary of the governing principles outlined by Justice Cromwell can be found in the decision of the Court of Appeal for Ontario, authored by Justice Watt, in R. v. Okojie, 2021 ONCA 773, at paragraphs 137-139 and 141-142, reproduced below.
[137] In a case in which proof of one or more essential elements of an offence depends exclusively or largely on circumstantial evidence, the inference of guilt or of an essential element of the offence must be the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30, 34.
[138] Inferences consistent with innocence may, but need not, arise from proven facts. This is because these inferences may also arise from a lack of evidence: Villaroman, at paras. 35-36. To establish guilt, the Crown is required to negative these reasonable possibilities consistent with innocence, but need not negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of an accused: Villaroman, at para. 37. These other plausible theories or reasonable possibilities must be based on logic and experience applied to the evidence, or absence of evidence, not on speculation: Villaroman, at para. 37.
[139] To support a finding of guilt based entirely or substantially on circumstantial evidence, the circumstantial evidence, taken as a whole, and assessed in the light of human experience, must exclude any other reasonable alternatives: Villaroman, at para. 41; R. v. Ali, 2021 ONCA 362, at paras. 97, 98.
[141] When a conviction based wholly or substantially on circumstantial evidence is challenged as unreasonable on appeal, the appellate court may consider the appellant’s failure to testify as indicative of the absence of any inference alternative to guilt: R. v. Corbett, 1973 CanLII 199 (SCC), [1975] 2 S.C.R. 275, at pp. 280-81; R. v. George-Nurse, 2018 ONCA 515, 432 D.L.R. (4th) 88, at para. 32, aff’d, 2019 SCC 12, [2019] 1 S.C.R. 570.
[142] A final point concerns the manner in which circumstantial evidence is to be assessed. Neither triers of fact at first instance, nor appellate courts on review for unreasonableness, examine individual items of circumstantial evidence separately and in isolation, adjudging them against the criminal standard and rejecting them should they fail to measure up to that standard. No individual item of circumstantial evidence is ever likely to do so. They are bricks with which to construct a wall, not the wall itself. In circumstantial cases, it is commonplace that individual items of evidence adduced by the Crown, examined separately and in isolation, have not a very strong probative force. But all the pieces of evidence have to be considered, each one in relation to the whole, and it is the whole of them taken together whose cumulative force must be considered and may constitute a basis for conviction: Coté v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 361-62
[30] In a circumstantial evidence case, the fact that the accused did not testify does not, on its own, justify an inference of guilt. It may, however, practically speaking, mean that there is the absence of an innocent explanation of inculpatory facts and, thus, a basis to conclude something other than guilt. Bains, supra, at paragraph 175.
[31] Why do we have special jury instructions about circumstantial evidence, and what led to the guidance provided by Justice Cromwell in the seminal decision of the Supreme Court of Canada in Villaroman, supra? I think that the answers to those questions can be found at paragraphs 28 through 30 of Villaroman itself, set out below.
[28] The reasonable doubt instruction describes a state of mind — the degree of persuasion that entitles and requires a juror to find an accused guilty: Berger, at p. 60. Reasonable doubt is not an inference or a finding of fact that needs support in the evidence presented at trial: see, e.g. Schuldt v. The Queen, 1985 CanLII 20 (SCC), [1985] 2 S.C.R. 592, at pp. 600-610. A reasonable doubt is a doubt based on “reason and common sense”; it is not “imaginary or frivolous”; it “does not involve proof to an absolute certainty”; and it is “logically connected to the evidence or absence of evidence”: Lifchus, at para. 36. The reasonable doubt instructions are all directed to describing for the jurors how sure they must be of guilt in order to convict.
[29] An instruction about circumstantial evidence, in contrast, alerts the jury to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence: Berger, at p. 60. This is the danger to which Baron Alderson directed his comments. And the danger he identified so long ago — the risk that the jury will “fill in the blanks” or “jump to conclusions” — has more recently been confirmed by social science research: see Berger, at pp. 52-53. This Court on occasion has noted this cautionary purpose of a circumstantial evidence instruction: see, e.g., Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, per Rand J., at p. 22; John, per Laskin J., dissenting but not on this point, at p. 813.
[30] It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
[19] The appellant submits that “the trial judge was compelled to acquit the appellant if he accepted that the appellant’s parents often used the appellant’s truck and, in so doing, returned it to the appellant’s residence with the keys inside” (emphasis in the original), and, in fact, “the trial judge did not even have to believe that the appellant’s parents drove the truck” in that “[t]he trial judge was required to acquit the appellant if, after accepting that the appellant’s parents often used his truck, he was unsure of who drove it on the day in question” (para. 30 of the appellant’s factum).
[20] With respect, there was no error committed by the trial judge. He simply did not find as a fact that Lisso’s parents often used the truck, and thus, the basis for the appellant’s argument does not exist.
[21] The trial judge, in summarizing the evidence of Mangolt, stated that, according to her, “sometimes Mr. Lisso’s parents borrow his pickup to move things but that she had not seen them that evening at all nor had she spoken to them about doing so” (para. 7 of the reasons for judgment).
[22] We cannot take from that a finding of fact made by the trial judge that Lisso’s parents would often, or even sometimes, use Lisso’s truck.
[23] Even if the trial judge accepted that evidence of Mangolt, that is that Lisso’s parents sometimes used the truck, which acceptance or not is uncertain, it did not rise to the level of a plausible theory or a reasonable possibility that Lisso’s parents had operated the truck at the time in question. I agree with the trial judge’s conclusion that the inference urged by defence counsel at trial was, at best, speculation.
The second error alleged – that the trial judge misapprehended the evidence
[24] I would not give effect to this argument.
[25] In R. v. Doodnaught, 2017 ONCA 781, 358 C.C.C. (3d) 250 (Ont. C.A.), Watt J.A. summarized the legal principles applicable to an appeal that is grounded on an alleged misapprehension of the evidence by the trial judge. Paragraphs 71-75 of that decision are set out below.
[71] A misapprehension of evidence may involve a failure to consider relevant evidence; a mistake about the substance of evidence; a failure to give proper effect to evidence or some combination of these failings: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 218. To succeed before an appellate court on a claim of misapprehension of evidence, an appellant must demonstrate not only a misapprehension of the evidence, but also a link or nexus between the misapprehension and the adverse result reached at trial.
[72] To determine whether an appellant has demonstrated that a misapprehension of evidence has rendered a trial unfair and resulted in a miscarriage of justice, an appellate court must examine the nature and extent of the misapprehension and its significance to the verdict rendered by the trial judge in light of the fundamental requirement of our law that a verdict must be based exclusively on the evidence adduced at trial. The misapprehension of evidence must be at once material and occupy an essential place in the reasoning process leading to the finding of guilt: Morrissey,at p. 221.
[73] The standard set for misapprehension of evidence to warrant appellate reversal is stringent. An error in the assessment of the evidence will amount to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction is based on unsteady ground: R. v. Sinclair,2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56.
[74] Where an appellant alleges a misapprehension of evidence, an appellate court should first consider the unreasonableness of the verdict rendered at trial. A verdict may be unreasonable because it is one that could not have been reached by a properly instructed trier of fact acting reasonably, or because it can be seen from the reasons of the trial judge that the verdict was reached illogically or irrationally, in other words, due to fundamental flaws in the reasoning process: Sinclair,at paras. 4, 44.
[75] Where an appellant succeeds in establishing that a verdict is unreasonable, an appellate court will enter an acquittal. On the other hand, where the appellate court is satisfied that the verdict is not unreasonable, the court must determine whether the misapprehension of evidence occasioned a miscarriage of justice. An appellant who shows that the error resulted in a miscarriage of justice is entitled to a new trial: Morrissey,at p. 219.
[26] More recently, Zarnett J.A., for the Court of Appeal for Ontario, stated the following at paragraphs 53-55 of the decision in R. v. Kwok, 2023 ONCA 458, 427 C.C.C. (3d) 462.
[53] That a trial judge, in the course of convicting an accused, got some of the evidence wrong, does not necessarily equate to a miscarriage of justice.
[54] But a conviction that rests on a material misapprehension of the evidence will be reversed, and a new trial directed, if the misapprehension goes to substance, and is on a matter that is material to the trial judge’s reasoning process. To overturn a conviction, the misapprehension must have played an essential part of the reasoning process that resulted in it. If a misapprehension of evidence was essential to the verdict, the verdict is not true, the trial has been unfair, and a miscarriage of justice will have occurred. This is a stringent standard. It does not apply to peripheral reasoning or matters of detail or narrative only: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; Morrissey, at p. 541.
[55] A misapprehension ground of appeal can succeed even if the conviction, based on all the evidence, was not unreasonable: Morrissey, at p. 541. If a conviction was unreasonable, it must be set aside and an acquittal entered. If evidence was misapprehended in a way that was essential to the trial judge’s finding of guilt, the misapprehension could have affected the outcome, and, accordingly, the verdict should be set aside, even if the evidence properly before the trial judge was capable of supporting a conviction.
[27] First, in summarizing the evidence of Mask, at paragraph 10 of the reasons for judgment, the trial judge stated that, when Mask arrived at Lisso’s residence, the “keys were in the ignition” of the pickup truck.
[28] In fact, Mask testified that the keys were inside the truck but not necessarily in the ignition because he believed that it was a key fob (page 50 of the trial transcript).
[29] That error by the trial judge in summarizing the evidence of Mask had nothing to do with the route taken by the trial judge in finding Lisso guilty on the over 80. It was not important. It was not the subject of any finding of fact made by the trial judge. It was not the subject of any of the eight items pointed to by the trial judge as being circumstantial evidence pointing to guilt. It could not possibly have affected the outcome of the case, as it had nothing to do with the reasons as to why the trial judge found that Lisso had just operated the vehicle.
[30] Second, at paragraph 16 of the reasons for judgment, the second last bullet point, the trial judge stated the following as being one of the eight pieces of circumstantial evidence pointing to guilt – “Ms. Mangolt heard a knock on her door and observed Officer Mask shortly after Mr. Lisso appeared in her foyer”.
[31] It is the reference to “shortly after” that is controversial.
[32] I agree with counsel for the appellant that Mangolt was not entirely consistent on the evidence that she gave at trial on this point. At page 5 of the trial transcript, in direct examination by the Crown, Mangolt testified that it was “shortly after” Lisso arrived home and greeted and hugged her that there was someone (who turned out to be Mask) at the door. On the next page of the trial transcript, however, page 6, still in direct examination by the Crown, the Crown asked “[a]nd how long had [Lisso] been home before police knocked on the door?”, to which question Mangolt replied “I, I honestly don’t know. I don’t remember”. She repeated that same answer when the Crown tried again to have her confirm that it was “shortly after” she hugged Lisso that the police knocked on the door.
[33] A misapprehension of the evidence may involve a trial judge failing to appreciate an inconsistency in a witness’ evidence or failing to appreciate the effect of the inconsistency. R. v. Wright, 2019 BCCA 327, at para. 22.
[34] The reasons of the trial judge must be read as a whole, however. Elsewhere in the reasons for judgment, apart from paragraph 16, the second last bullet point, the trial judge summarized the evidence of Mangolt. The trial judge expressly acknowledged that part of Mangolt’s evidence at trial was that she “had a poor recollection” of several things, including “how long after Mr. Lisso got home that the police arrived” (para. 6 of the reasons for judgment).
[35] The trial judge did not commit the error mentioned in the Wright, supra decision. He did not fail to appreciate the inconsistency in Mangolt’s evidence on the timing issue, saying first “shortly after” and then saying she could not remember how long.
[36] Instead, having acknowledged the inconsistency, the trial judge, being entitled to accept all, some, or none of Mangolt’s evidence, accepted her evidence that she heard the knock on the door and saw Mask shortly after Lisso came home. That is how I read the reasons for judgment on this point. That finding of fact is entitled to deference by this Court. It is not the subject of palpable and overriding error on the part of the trial judge, and it is not the product of any material misapprehension of the trial evidence.
[37] Besides, this point was merely one of eight pieces of circumstantial evidence relied upon by the trial judge to convict Lisso on the over 80 count. If there was a misapprehension of the evidence by the trial judge, which I find to not exist, then it cannot be said that “striking the misapprehension leaves the verdict on unsteady ground”. R. v. B.W., 2024 ONCA 412, at para. 56, citing R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56; and R. v. Gill, 2019 ONCA 902, at para. 10.
The third and final error alleged – that the trial judge received much inadmissible and prejudicial hearsay evidence
[38] I would not give effect to this argument.
[39] The appellant focusses on paragraphs 8-10 of the reasons for judgment, which are not findings of fact made by the trial judge but rather part of the trial judge’s summary of the trial evidence of Mask. Those paragraphs are set out below.
[8] Officer Mask received information regarding an impaired driver operating a white pickup truck with licence BE 78411 around 8:24 pm on April 29, 2023. The truck was said to be driving erratically and may have hit a guardrail. He began to drive in the purported location of the truck.
[9] He received two updates regarding new locations of the white truck as he drove. He received information about the registered owner’s residence and he guessed that the white truck was heading in this direction. He estimated that he was a few concessions away when he made this determination and shortly after, located a white truck near the residence.
[10] He parked near the truck, exited and observed the truck was empty but keys were in the ignition. The truck had the same licence plate identified over the radio. He knocked on the front door of the residence. A male and two large dogs came out. He asked the male if he had been driving and the male, Mr. Lisso, indicated that he had just arrived home.
[40] I agree with counsel for the appellant that much of that information was inadmissible hearsay evidence, and I agree further that the last sentence of paragraph 10 of the reasons for judgment refers to an alleged admission made by Lisso to Mask, which admission was inadmissible in the absence of any consideration of its voluntariness.
[41] But there is no significance to these references by the trial judge to inadmissible evidence. They were not material to the trial judge’s findings of fact. They were not material to the eight items of circumstantial evidence relied upon by the trial judge as pointing to guilt. They were not at all essential to the trial judge’s reasoning process. It cannot at all be said that the outcome of the case depended to any degree on any of these references to inadmissible evidence.
[42] Most important, there was no error in law committed by the trial judge in “receiving” inadmissible evidence when it is clear that he did not rely on it, which I find to be the case.
[43] In fact, we know that the trial judge was well aware of the dangers of inadmissible hearsay evidence. At paragraph 14 of the reasons for judgment, the trial judge expressly acknowledged that some of the information known to Mask was provided to him by other sources including witnesses who did not testify at trial and, thus, that information was not admissible to prove identity. The trial judge made that comment in the context of the impaired operation count, but it applied equally to the over 80 count, and there is nothing in the reasons to suggest that the trial judge did not know that.
III. Disposition
[44] I would accordingly dismiss the conviction appeal.
Conlan J.
Released: November 27, 2024
COURT FILE NO.: CR-24-24-AP
DATE: 2024 11 27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King, Respondent Crown
– and –
Dalton Lisso, Appellant
REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL
Conlan J.