R. v. Shah, 2025 ONSC 2295

Court File No.: CR-23-10000029-00AP
Date: 2025-04-14
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Sayed Shah (Appellant)

Appearances:
Tania Monteiro, for the Crown
Sayed Shah, acting in person

Heard: April 11, 2025
Released: April 14, 2025
Dineen J.

Introduction

[1] The Appellant was charged on a three-count Information with impersonating a peace officer, dangerous driving, and failing to stop for the police. The Crown elected not to proceed on the first count and a trial on the other counts took place on May 18 and 19, 2023. On the latter date the trial judge convicted the Appellant of dangerous driving and acquitted him of failing to stop. He imposed a fine of $1500, an 18-month driving prohibition, and a probation order for three years.

[2] The Appellant represented himself at both trial and on appeal. While there was at least some ambiguity in his notice of appeal about whether he was appealing from both conviction and sentence, in oral argument he advanced arguments directed at both. Crown counsel fairly agreed to respond to all of his submissions including those not directly mentioned in his written materials and she made effective arguments on each contested issue.

[3] I have concluded that the appeal from conviction must be allowed on the first ground advanced by the Appellant in oral argument: that a reasonable apprehension of bias was created by the trial judge’s comments about a stereotypical belief he held about drivers in Israel, a country he described as “involved in wars all the time” and whose driving culture he characterized as “aggressive,” and the trial judge’s suggestion that this stereotypical view was relevant to the Appellant, who moved to Canada from Afghanistan. I accordingly have not considered the other arguments concerning conviction or sentence [1].

The Factual Background

[4] The charges related to events on July 28, 2021. The Appellant was driving on the 401 highway in a Dodge Charger that had formerly been used as a police vehicle. He testified that he had purchased this vehicle at an auction.

[5] A police officer, Constable Noh, saw the Appellant’s vehicle and it appeared to him to be a police vehicle. He was surprised to see such a vehicle in his patrol zone and so checked the license plate on his car’s computer system. The system reported that the Appellant was the registered owner and that the vehicle’s permit was expired and his license was cancelled.

[6] Constable Noh was driving what he described as a “subdued” marked police vehicle, meaning that the police markings were designed to only be apparent at short distances. He testified that while he was conducting the computer check, he saw the Appellant’s vehicle suddenly accelerate to a high rate of speed relative to traffic and to abruptly cross several lanes to the left. The Appellant took an exit ramp and Constable Noh lost sight of his vehicle.

[7] Constable Noh testified that he later located the Appellant’s vehicle going northbound on the Allen Road. He blocked the vehicle off by moving his own vehicle in front of two lanes of traffic and activated his police lights. He described the Appellant revving his engine and moving his vehicle forward in response. Constable Noh left his vehicle and demanded the Appellant get out of the car at gunpoint. The Appellant eventually did so and swore at the officer before ultimately being compliant when arrested.

[8] The Appellant testified and denied driving in a dangerous way at any time. He testified that he had not recognized Constable Noh’s vehicle as a police vehicle on the highway, in part because his car’s windows were heavily tinted. When Constable Noh pulled in front of him cutting off multiple lanes of traffic, he assumed that the officer was targeting some other car and moved his vehicle only in an attempt to pull over out of his way.

[9] The trial judge gave the Appellant the benefit of the doubt that he did not knowingly attempt to evade the police, but accepted Constable Noh’s evidence about his manner of driving and rejected the Appellant’s evidence, finding that the Appellant gave inconsistent responses about his knowledge that he was unlicensed and about his intended destination at the time.

The Trial Judge’s Comments During Sentencing

[10] The Appellant had no criminal record, but did have a prior driving record. He comes from Afghanistan and told the court that his ambition was to join the Canadian military, whose soldiers he had tried to assist in his youth during conflicts in that country. In the course of sentencing the Appellant, the trial judge said:

Hyperaggressive driving and tricks to get away with it, that is what your record tells me. Your presence tells me that you are smart and you are driven. So use your brains and your ambition and aggression to achieve something useful other than driving like a maniac.

There are countries, Canada is not presently at war, but I can think of a few of them where there are driving cultures so aggressive that more people die on their roads than die in their wars. I am thinking particularly of Israel, which is involved in wars all the time and always loses more people on their roads than they do to casualties in war. And I say this because I sense in you a determination to drive exactly the way you want to drive when you want to drive. (emphasis added)

The Trial Judge’s Stereotypical Comments About Aggressive Driving Cultures Give Rise to a Reasonable Apprehension of Bias

[11] The test for determining whether a reasonable apprehension of bias exists was established in the Supreme Court of Canada’s decision in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369:

What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?

[12] This test is a stringent one and there is a strong presumption of judicial impartiality: R. v. R.D.S., [1997] 3 S.C.R. 484.

[13] I am certain that the trial judge meant no harm by the impugned comments and simply wished to emphasize the potential lethal consequences of aggressive driving. However, the confusion and disquiet the Appellant reported feeling about these comments and the worry that he was being judged on his cultural background strike me as both understandable and reasonable.

[14] Whether or not there was any truth to the trial judge’s understanding about the rate of dangerous driving in Israel [2], he was expressly stereotyping the people of that nation as possessing an aggressive driving culture. While he no doubt referred to the history of Israel’s wars only as a way of emphasizing how many people died from dangerous driving, it seems to me that a reasonable observer would see him as implicitly linking what he understood to be their “aggressive” driving culture with the fact that they are “involved in wars all the time,” especially given the contrast he drew with Canada’s current state of peace.

[15] The Appellant is not from Israel. However, his own country of origin, Afghanistan, was the site of a lengthy armed conflict that involved Canadian troops and has a history of other armed conflicts.

[16] I do not suggest that the trial judge actually held any bias. He was speaking extemporaneously while presiding in a busy trial court. All of us who work in the justice system may sometimes express ourselves in a clumsy or infelicitous way and need to be afforded some leeway. I understand Ms. Monteiro’s submission that this was simply a passing comment of no real significance. After careful reflection however, I cannot agree.

[17] While sentencing an immigrant to this country for a driving offence, it was in my view ill-judged and wholly inappropriate to begin discussing the aggressive driving cultures that the trial judge believes exist in other countries in implied contrast to Canada, whatever his basis for that belief may be.

[18] In my view, a reasonable and dispassionate observer could draw the following inferences from the trial judge’s comments in the context of the record as a whole:

• The trial judge holds a stereotypical view that Israeli drivers are aggressive and that this is a product of their national driving culture.
• The trial judge connects his perception that Israeli drivers are unusually and dangerously aggressive to the fact that Israel “is involved in wars all the time.”
• This stereotypical view of Israeli drivers was brought to the trial judge’s mind by what he “sensed” in the Appellant, a person he knew was from another notoriously war-torn country from the same general geopolitical region of the world and who had an interest in joining the military.

[19] Although the comments were made in the sentencing phase of the proceedings, it seems to me that a reasonable observer who drew these inferences would legitimately believe that the trial judge’s stereotypical views about national driving cultures were likely to have consciously or unconsciously affected his credibility findings in assessing the contested issue of whether it had been proven that the Appellant had driven in an aggressive and dangerous way.

[20] It is axiomatic that justice must not only be done but be seen to be done. In my view, the trial judge’s express invocation of national and cultural stereotypes about aggressive driving created an appearance of unfairness in the particular circumstances of this case and would leave both an informed observer and the Appellant himself reasonably believing that justice may not have been done. This occasioned a miscarriage of justice and requires a new trial.

Disposition

[21] The appeal is allowed and a new trial ordered on the charge of dangerous driving.

Dineen J.
Released: April 14, 2025

Notes

[1] I note however that the Crown did not request a probation order and the trial judge imposed one without inviting submissions. He further appears to have cut off the Appellant when he was still trying to advance sentencing submissions and to have not fully heard from him. Given my conclusions on the conviction appeal I need not decide whether this conduct of the sentencing hearing merits a variation to the sentence imposed.

[2] The trial judge did not cite any specific statistical evidence that Israel’s traffic fatality rate is meaningfully greater than Canada’s and did not identify the source of his beliefs about Israeli drivers.