R. v. Singh, 2016 ONCJ 618

ONTARIO COURT OF JUSTICE DATE: 2016·10·13 COURT FILE No.: 14-5652 CITATION: R. v. Singh , 2016 ONCJ 618 BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — KULDEEP SINGH Appellant Before Justice P. F. Band Heard on September 16, 2016 Reasons for Judgment released on October 13, 2016 Mr. P. Quilty ................................................................ counsel for the Crown Mr. M. Stellato ...................................................... counsel for Kuldeep Singh BAND J.: I. INTRODUCTION 1 .

In the early morning of November 16, 2013, the Appellant, a commercial truck driver, was driving his tractor-trailer on Hurontario Street in Brampton. Ahead of him, Mr. Adnan Jonejo, was driving his taxi with his passenger, Juan Cortes. As the cab neared the intersection of Derry Rd., it was rear-ended by the Appellant’s tractor-trailer and projected a considerable distance across and up the road. The taxi’s propane tank, which was in the trunk, had exploded and the cab was engulfed in flames. Mr. Jonejo and Mr. Cortes were incinerated. 2 .

Following an investigation, the Appellant was charged with the following offences under the Highway Traffic Act : [1] (

a) failing to maintain and carry a daily log (s. 190(3)); (

b) failing to surrender that log to police upon demand (s. 190(4)); and (

c) careless driving (s. 130). 3 . At trial, the Appellant did not testify or call any evidence. Justice of the Peace H. Weiss found him guilty of all three charges. He was sentenced to fines totalling $3,000. In addition, a 12 month driving suspension and 24 months’ probation were ordered. 4 . In his Supplemental Grounds of Appeal, the Appellant seeks to appeal convictions and sentence; however, only the conviction appeals were pursued. The ground pled with respect to the offences relating to the log was: (

i) That her Worship erred in essential [ sic ] finding that only through his testimony can there be evidence upon which a defendant can rely upon. 5 . In relation to the careless driving conviction, the Appellant alleged that the Trial Justice: (

i) erred when applying the burden of proof in a careless driving trial; (ii) erred when assessing the Appellant’s driving in failing to consider that perfection is not the standard; (iii) erred in assessing the expert’s evidence by considering facts upon which that evidence relied upon which were either not before the Court or had been disproven; and

(iv) drew conclusions from findings of fact that had no basis in the evidence before her. 6 . The Appellant’s factum consists of a lengthy recitation of the facts and excerpts from the proceedings, followed by a number of paragraphs containing legal principles. It does not track the grounds of appeal or clearly identify the issues. These were refined in oral argument. As I understood them, they were the following. 7 . The Appellant alleges that the Trial Justice committed an error of law by reversing the burden of proof in convicting him of the offences relating to the log. 8 . As for the careless driving conviction, the argument centred on two issues: (

a) whether the Trial Justice erred in her treatment of the relationship between due diligence and the ultimate burden of proof beyond a reasonable doubt in the special context of the offence of careless driving; and (

b) whether her verdict in this circumstantial case was unreasonable for failure to consider reasonable inferences pointing to innocence. 9 . While the grounds include an allegation that the Trial Justice erred in her reliance on the expert’s evidence, this argument was not pursued separately in oral argument. It was essentially folded into the unreasonable verdict argument. 10 . The expert who testified was a Peel Regional Police officer who performed an accident reconstruction analysis. Her calculations as to the speed and distances at play were not challenged at trial (or on appeal).

Beyond that, what opinions or conclusions she came to were not relied upon by the Trial Justice. [2] 11 . This is because, somewhat unusually, the evidence in this case included videotapes obtained from security cameras belonging to two different businesses along Hurontario St. The tractor-trailer and taxi were captured on those cameras and the Trial Justice was able to view the videos and come to her own conclusions about what they depicted. I will discuss this in more detail below. II. THE POWERS OF THIS COURT ON APPEAL 12 .

Section 120 of the Provincial Offences Act (“ POA ”) governs this appeal. It reads: Orders on appeal against conviction, etc. 120.

(1) On the hearing of an appeal against a conviction or against a finding as to the ability, because of mental disorder, to conduct a defence, the court by order, (

a) may allow the appeal where it is of the opinion that, (

i) the finding should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground, there was a miscarriage of justice; or (

b) may dismiss the appeal where, (

i) the court is of the opinion that the appellant, although the appellant was not properly convicted on a count or part of an information, was properly convicted on another count or part of the information, (ii) the appeal is not decided in favour of the appellant on any ground mentioned in clause (a), or (iii) although the court is of the opinion that on any ground mentioned in subclause (a) (ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred. Idem

(2) Where the court allows an appeal under clause (1) (a), it shall, (

a) where the appeal is from a conviction, (

i) direct a finding of acquittal to be entered, or (ii) order a new trial; or (

b) where the appeal is from a finding as to the ability, because of mental disorder, to conduct a defence, order a new trial, subject to

section 44. Idem

(3) Where the court dismisses an appeal under clause (1) (b), it may substitute the decision that in its opinion should have been made and affirm the sentence passed by the trial court or impose a sentence that is warranted in law. R.S.O. 1990, c. P.33, s. 120 . III. APPEALS RELATING TO THE LOG The regulatory framework 13 . Police were immediately called to investigate the incident. Upon arrival, an officer requested the Appellant’s log. He did not have

it with him. A short time later, his son brought documents to the scene. 14 . The relevant legal requirements concerning truck drivers’ logs are found in

section 190 of the HTA and the Ontario Regulation 555/06 (the “Regulation”). 15 . Section 190(2) requires commercial drivers to maintain a daily log and “carry it at all times while in charge of a commercial motor vehicle on the highway.” Section 190(4) places an obligation on such drivers to surrender their log to a police officer upon demand.

Section 190 also contemplates certain exemptions as may be created by regulation. 16 .

Section 18 of the Regulation is entitled “Exception to the daily log requirement.” It relieves a driver of the obligation to keep a daily log for a day if the driver: (a) … drives a commercial vehicle solely within a radius of 160 kilometers at which the driver starts the day; and (

b) returns at the end of the day to the same location from which he or she started. 17 . Section 47(3) of the POA places the burden of proof on a defendant who claims the benefit of an exception. It reads: The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information. 18 . In R. v. Goleski , [3] the Supreme Court of Canada recently interpreted a Criminal Code

section that is virtually identical to section 47(3) of the POA . The Court held that the accused bears a persuasive burden to prove such an exception – that is, on a balance of probabilities. The facts and argument of the Appellant 19 . The Appellant’s log contained no entries as to anything that transpired after 4:45 a.m. on November 15 – the day before the incident. In cross-examination, the officer acknowledged that if the Appellant had only travelled from Brampton to Oshawa and back on November 16, it was possible that he had driven less than 160 km. 20 .

After citing section 47(3) of the POA , the Trial Justice wrote: Yes, counsel is correct when he states that since the trip began mid-afternoon the day before the accident there is a distinct possibility that this was a trip of less than 160 km. However there was no evidence called by the defence to show that fact. 21 . She then found that the Appellant had not met his burden and that he was guilty of both offences relating to the log. Analysis 22 . It is not clear to me that the exception relieves a driver of the obligation to carry a log, regardless of the distance of the trip.

It speaks only of the obligation to keep it. However, the Crown’s response appears to assume that the exception was available to the Appellant, at least in principle. The parties did not contemplate this issue and I have not been made aware of any cases addressing it. While I would be inclined to interpret keep in the Regulation as synonymous with maintain in the POA in this context, in the absence of full argument and any governing authorities, I make no such finding. 23 . Assuming the exception was potentially available to the Appellant at trial, Goleski , supra , provides a complete answer to his argument.

The Trial Justice was correct in law and on the facts. The burden was on the Appellant on a balance of probabilities. The possibility that the Appellant drove less than 160 km on November 16 did not amount to probability . The Appellant failed to keep or carry a log for that date, failed to surrender it to the officer on demand and failed to prove the exception. 24 .

Contrary to the Appellant’s pleaded Grounds, this is not a case in which the Trial Justice erred by “finding that only through [the accused’s] testimony can there be evidence upon which a defendant can rely upon.” While it is true that the passage in the Trial Justice’s Reasons that I have excerpted above suggests that an accused person can only rely on evidence “called by the defence” to make out the exception, it must be read in context. The Trial Justice had just referred to the appropriate POA

section and found that the evidence before her consisted only of a “distinct possibility.” 25 . What is more, this is not a case in which the Crown’s evidence could have conceivably provided the defendant with an evidentiary foundation upon which to discharge his burden. 26 . The appeals concerning the log are dismissed. IV. APPEAL RELATING TO CARELESS DRIVING Facts 27 . A brief

summary of some of the important evidence is required in order to properly understand the Trial Justice’s decision. 28 . Shortly after 4:00 a.m. on November 16, 2013, the Appellant’s tractor-trailer and the taxi were proceeding northbound on Hurontario St. 29 . The crash took place on Hurontario St., just south of the intersection of Derry Rd. That intersection is controlled by lights, but

there is no direct evidence of the colour of the light for northbound traffic at the time of the crash. However, a motorist who heard the explosion and arrived at the intersection from the south some 12-17 seconds later testified that the light was green upon his arrival. 30 . Speed was not a factor. In fact, both vehicles were travelling at speeds well below the posted limit. The tractor-trailer was traveling at approximately 55 km/h. 31 . Security videos from two locations south of Derry Rd. were presented in evidence. They both capture a portion of Hurontario.

Both show the taxi pass first, followed by the tractor-trailer. The first video is from the Holiday Inn near Admiral Drive and Hurontario St., which is approximately 370 m. south of the scene of the crash (“Video 1”). The second video is from Hoops Sports Bar and Grill (“Hoops”), which is approximately 80 m. south of Derry Rd. (“Video 2”). 32 . In Video 1, the tractor-trailer enters the frame approximately 5 seconds after the taxi. In Video 2, the time gap has increased to 8 seconds. 5 seconds after the tractor-trailer exits the frame, a flash of light is seen in Video 2.

It is agreed that the flash of light was caused by the explosion. 33 . Video 2 also shows that the taxi’s brake lights were on. There is no evidence that the tractor-trailer’s brake lights were illuminated in either video. There is evidence that the tractor-trailer was mechanically fit and that its brake lights were operational. 34 . None of these facts were disputed at trial or on appeal. 35 .

After reviewing the evidence of each witness, the Trial Justice came to the following additional findings and inferences: • At the time of the crash, the weather was cool and clear, the roads were dry, traffic was light and visibility was good. • The tractor-trailer and the taxi were travelling in the same lane from the point they are seen in Video 1 to the point of the collision. • The point of impact was 4.3 m. south of the intersection. • Based on the tractor-trailer’s skid marks, it had not applied the brakes until at or immediately after the impact. • The taxi’s illuminated brake lights suggest that it had been slowing down. • Given the 8 second gap in the videos, the collision could only have occurred if the taxi had decreased its speed. 36 .

In addition, the record contains an agreed statement of facts, which included the following: As it approached Derry Road, the taxi cab slowed and seconds later, the transport truck collided with the rear of the taxi cab. The Trial Justice’s self-instruction as to the legal test for careless driving 37 . The Trial Justice instructed herself as follows: Has the prosecution proven the actus reus of the offence beyond a reasonable doubt that the defendant had either driven his motor vehicle on a highway without due care and attention or without reasonable consideration for other persons using the highway?

In short, would a reasonable person in similar circumstances facing the defendant have acted as the defendant did? 38 . She also cited the appropriate authorities, including R. v Beauchamp . [4] 39 . In oral argument, the Appellant conceded that this instruction was correct. The Trial Justice’s self-instruction as to the burden of proof 40 . The Trial Justice described the burden of proof as including two aspects: One, has the prosecution met its burden of proving beyond a reasonable doubt that the defendant committed the actus reus of the careless driving offence?

And two, if the prosecution has met its burden in proving beyond a reasonable doubt that the defendant has committed the actus reus of the careless driving offence, then has the defendant met its burden in establishing a defence of due diligence on a balance of probabilities in order to be acquitted as per R. v. Sault Ste. Marie ? 41 . The Trial Justice then stated In the matter before this court the defence has not called evidence, so two does not apply . The defendant relies on raising a reasonable doubt as to the actus reus of careless driving. [my emphasis] The argument at trial 42 .

In his submissions, trial counsel took the position that the taxi must have sped up between the Holiday Inn and Hoops, given the increased gap in time. He also accepted that the taxi then slowed down, as its brake lights were visible. His position was that it seemed a “reasonable likelihood” that the Appellant “maintained a constant speed.” 43 . He took issue with the reconstruction expert’s assumption that the light was “stale red” at the time of the collision.

Relying on the evidence of a witness who had passed through the intersection approximately 12-17 seconds after the impact, trial counsel submitted that “the only inference that’s reasonably available from the evidence we do have tends to support that it was not a red light.” 44 . The essence of trial counsel’s theory was that the Crown had failed to prove (1) that the two vehicles had been driving in the same

lane prior to the collision and (2) that the light was red. 45 . In relation to the lane, trial counsel made the following concession: Obviously, if these two vehicles are in the same lane…and my client is following and sees this vehicle slow down whether for a red light or a green light, the Crown is in a better position to argue he should have a heightened sense of awareness to the situation. A heightened onus is then placed on him concerning this care for – show the appropriate amount of care and consideration for other users of the highway; the careless driving standard. 46 .

While trial counsel pointed to the absence of evidence as to what the taxi did in the 80 m. between Hoops and the point of impact, he later indicated that “the defence does not concede that this taxi changed lanes and then changed lanes again between that point and the impact.” 47 . This is because his theory was that the Appellant had not changed lanes either, and was maintaining a constant speed. 48 .

In relation to the absence of evidence that the Appellant slowed down, trial counsel submitted So, the idea that he’s not slowing down because of the braking and therefore the issue of culpability, that might be a problem for him on that point, you have to keep in mind that he’s already the speed that [a] reasonable prudent driver would have to slow down to; it can easily be argued. The Trial Justice’s analysis and conclusions 49 . The trial justice made a crucial finding of fact in this case: that the two vehicles were traveling in the same lane.

In oral argument, the Appellant conceded that this finding is unassailable. 50 . The Trial Justice also addressed the issue of to the colour of the light. She adverted to the fact that in cross-examination, the reconstruction expert’s evidence had changed to “most likely it was a green light.” In her conclusion, below, the Trial Justice indicated that the colour of the light was irrelevant in the circumstances. 51 .

After reviewing the circumstances surrounding the crash, the Trial Justice stated that “the care owing in the circumstances comes down to a single issue, brake lights, a warning that there is a hazard up ahead.” 52 . On that issue, the Trial Justice came to the following conclusions: An average prudent driver would respond by slowing down and applying his brakes regardless of the colour of the light up ahead, or knowing why the vehicle slowed.

The fact that the defendant continued driving at his speed of about 55 kilometers per hour, despite the taxi slowing in front of him, shows me that he was not alert or paying attention. He did not modify his driving to suit the conditions. ... I find that the defendant’s driving just before the accident occurred fell below the standard of a reasonable, prudent driver facing similar circumstances.

Accordingly, I find that the prosecution has proven beyond a reasonable doubt the actus reus of the offence that the defendant had been driving without due care and attention and without reasonable consideration for others using the highway…. The Appellant’s Arguments • Reversal of the Burden of Proof 53 . The Appellant focuses on the Trial Justice’s self-instruction to the effect that there is no need to consider due diligence because “the defence has not called evidence.” 54 . If one reads this passage in isolation, it appears to be in error.

Evidence of due diligence does not have to come out of the “mouth of the accused” or other defence witnesses. It can emerge from the Crown’s case. [5] 55 . Also, one must also bear in mind that careless driving is “somewhat of an anomaly in that the failure to take reasonable care is part of the actus reus of the offence.” Evidence that raises a reasonable doubt will produce an acquittal. The effect of this on many careless driving charges is “to make the onus on the accused to establish due diligence academic.” [6] 56 . Of course, this phrase in the Trial Justice’s reasons cannot be read in isolation.

Rather, it must be read in light of the way the trial was conducted and the submissions of counsel. It is true that no evidence was called by the defence. More importantly, trial counsel made his position absolutely clear: the prosecution did not prove its case beyond a reasonable doubt because of the uncertainty as to the colour of the light and whether the vehicles were in the same lane. 57 . I would not give effect to this ground of appeal. It does not disclose a reviewable error, substantial wrong or miscarriage of justice. • Unreasonable Verdict 58 .

Appeal counsel argued that the increased time gap between Video 1 and 2 is evidence that the Appellant had slowed down between the Holiday Inn and Hoops. As a matter of logic, if the taxi slowed down between the two points, and the time gap increased, then the tractor-trailer must have slowed down. 59 . Appeal counsel also emphasized a passage in the reconstruction expert’s cross-examination where she acknowledged that trucks (as well as other vehicles) can slow down when their operators lift their foot off the accelerator and let the engine slow them down.

When asked if she associated a certain sound a truck makes with it is “slowing down other than by applying its brakes” she responded “Ireally haven’t put much thought into that.” 60. He also argued that the Crown had not proved how long it would take a tractor-trailer to slow down and stop. 61. As the argument goes, in the absence of evidence as to what happened in the 80 m. leading up to the collision, the circumstantialevidence that the tractor-trailer had slowed down was reasonably capable of supporting an inference other than guilt. Having failed toconsider it, the Trial Justice made a reversible error. 62.

I have very strong concerns that this argument is nothing more than an attempt to retry this case on appeal. This argument wasavailable to trial counsel who, instead, chose to argue that the taxi had sped up and then slowed down while his client had maintainedhis speed. This, too, was a logical

interpretation of the evidence. In fact, Appeal counsel agreed when I asked whether it was also areasonable

interpretation of the facts. 63. For this reason alone I would reject this ground of appeal. However, the Crown chose to address it on the merits and so I will aswell. • Reasonable inferences in circumstantial cases 64. The parties agreed that this case was largely circumstantial. As a result, appeal counsel rightly relied on R. v. Villaroman, 2016SCC 33 , [2016] S.C.J. No. 33, in which the Supreme Court of Canada revisited the rule in Hodge’s Case. 65.

The danger in circumstantial cases is that the trier of fact will unconsciously “’fill in the blanks’ or bridge the gaps in the evidenceto support the inference that the Crown invites it to draw.”[7] As a result, it is important to remind oneself that “an inference of guiltdrawn from circumstantial evidence should be the only reasonable inference that such evidence permits.”[8] The trier of fact shouldconsider other plausible theories and other reasonable possibilities that are inconsistent with guilt.[9] 66.

However, “’other reasonable possibilities’ must be based on logic and experience applied to the evidence or the absence ofevidence, not on speculation.”[10] 67.

On appeal, the following principles set out in Villaroman are instructive:[11] • A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered; • Applying this standard requires an appellate court to re-examine and to some extent reweigh and consider the effect of theevidence; • The question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was theonly reasonable conclusion available on the totality of the evidence; • It is fundamentally for the trier of fact to decide if any proposed alternative way of looking at the case is reasonable enough toraise a reasonable doubt; and • The trier of fact’s assessment can only be set aside where it is unreasonable.[12] 68.

It must first be pointed out that appeal counsel’s theory – that the tractor-trailer had slowed down – was not “proposed” by trialcounsel. His theory was different. That said, the Trial Justice did consider four alternatives, including whether the taxi had gone backand forth between lanes in the last 80 m. I agree with appeal counsel that not all of them are clearly attributable to trial counsel. But aTrial Justice can hardly be faulted for considering alternative theories that appear to arise from submissions or cross-examinations oreven her own concerns with the evidence.

One would think that is exactly what a Trial Justice should do in order to be satisfied that noother reasonable conclusion is available on the evidence. 69. I am of the view that appeal counsel’s alternative theory is not reasonably capable of raising a reasonable doubt. Arguably, there isa gap in the evidence as to whether or not the Appellant slowed the tractor-trailer down using a method other than braking. But evenaccepting that he did, the question is whether in all the circumstances this could reasonably give rise to an inference that is inconsistentwith guilt. 70. In my view, it can not. 71.

The road conditions, lighting and visibility were good. Traffic was light. The tractor-trailer was in good mechanical condition. Itwas traveling directly behind the taxi, in the same lane at a speed of approximately 55 km/h. There was an 8 second gap between the twovehicles by the time they reached Hoops. At this point, at least 80 m. south of the intersection, the taxi’s brake lights were illuminated. The taxi was struck from behind 4.3 m. from the intersection and projected forward a considerable distance. The truck’s tire marks donot begin until the point of impact or immediately thereafter. 72.

Even if the Appellant had slowed down in response to the taxi’s brake lights some 80 m. from the intersection, this was clearly notenough to raise a doubt. He had 80 m. and 5-8 seconds to respond to the situation by using his brakes. He did not do so until the point ofimpact. Nor is there any evidence that he took any other sort of evasive action.

73 . The Trial Justice’s conclusion was the only reasonable conclusion available on the totality of the evidence regardless of the colour of the light and the absence of direct evidence as to exactly what took place in the 80 m. leading up to the crash. 74 . This case is not an example of a Trial Justice holding an accused to the standard of perfection.

But it is an illustration of the principle that an accused bears a practical burden to provide an explanation where an inference of carelessness can be drawn upon (or despite) unexplained evidence where that explanation rests wholly within his knowledge. [13] Additional arguments presented orally 75 . In oral argument, appeal counsel presented two other arguments. 76 . First, he argued that the prosecution did not prove that the light was red and that this was important.

In the circumstances before her, the Trial Justice was correct in finding that the colour of the light was irrelevant to the Appellant’s guilt. 77 . In addition, to find otherwise on these facts would be to focus erroneously on civil liability rather than the law of careless driving. [14] 78 . Second, appeal counsel argued that the prosecution had not called expert evidence to show how long it would take for a tractor- trailer to slow down and stop. This argument is simply an invitation to find that that Crown did not prove that the crash was avoidable. Such reasoning constitutes an error of law. [15] V.

CONCLUSIONS 79 . The Trial Justice committed no reviewable error and there has been no substantial wrong or miscarriage of justice. 80 . As a result, the appeal is dismissed. Released: October 13, 2016 ____________________________ Justice P. F. Band