R. v. Mangat, 2019 ONCJ 850

ONTARIO COURT OF JUSTICE CITATION: R. v. Mangat , 2019 ONCJ 850 DATE: 2019 11 26 COURT FILE No.: Brampton 3111 998 18 8250 BETWEEN: HER MAJESTY THE QUEEN — AND — ANDEEP MANGAT Before Justice G.P. Renwick Heard on 25 November 2019 Reasons for Judgment released on 26 November 2019 R. Raeesi............................................................................................... counsel for the Crown B.

Daley............................................................ counsel for the defendant Andeep Mangat RENWICK J.: INTRODUCTION [ 1 ] The Defendant is charged with having driven his automobile while impaired by alcohol (“Impaired Driving”) and while having a blood alcohol concentration (“BAC”) in excess of the legal limit (“Over 80”). [ 2 ] The Defendant brought a Charter application to exclude the breath test results for alleged breaches of his ss. 8, 9, and 10(

b) rights. [ 3 ] Quite fairly, during final submissions, counsel for the Defendant conceded that there was no s. 10(

b) violation. [ 4 ] As well, the Defendant conceded during submissions that in light of the evidence in this case, even were I to find a s. 8 Charter violation in relation to the alleged lack of reasonable grounds to arrest, he could not succeed to exclude the breath test results under s. 24(2) of the Charter , pursuant to the decision in Jennings . [1] [ 5 ] On consent of the parties, the trial evidence for the prosecution and the evidence called on the Charter application proceeded in a “blended” fashion. Only three witnesses testified: Mr.

Robert Reeve (a third-party motorist), Provincial Constable Robert Visconti (the arresting officer), and Provincial Constable Pawel Sikora (the qualified technician). Documents related to the operation of the approved instrument and a Certificate of Qualified Technician were introduced provisionally, subject to the Charter application, as exhibits on the trial. [ 6 ] This brief trial took less than three hours of court time to complete.

Counsel for the Defendant is to be commended for directing his attention to three factual issues which he posited should have a dispositive effect upon this trial. [ 7 ] Primarily, the only issues for this trial were whether: i. It was proven beyond a reasonable doubt that the Defendant was the driver of the Nissan vehicle;

ii. The pre-condition of the “target value” of the standard alcohol solution found in s. 320.31(1) (

a) of the Criminal Code had been established, beyond a reasonable doubt, in order to apply the presumption of accuracy; and iii. It was proven beyond a reasonable doubt that the Defendant’s first breath sample was taken within two hours of his operation of a motor vehicle. [ 8 ] For the purposes of maintaining an appeal, the Defendant made a nominal Shaikh argument, [ 2] regarding the presumption of identity, but acknowledged that I have ruled against this argument in the past. [3] The Defendant essentially conceded that there were no new grounds with which to mount this challenge.

GENERAL LEGAL PRINCIPLES [ 9 ] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the duration of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution's burden of proof never shifts during the trial.

In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of the offences charged beyond a reasonable doubt, and more specifically, if I have a reasonable doubt that either, or both, of the charges are proven, the Defendant will be acquitted of the charge or charges. [ 10 ] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial.

While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities. [4] If after considering all of the admissible evidence I am sure that the Defendant committed the alleged offence I must convict him, since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt.

Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow. [ 11 ] The evidence of identity in this case is largely circumstantial. [5] In order to be satisfied that the Defendant has been proven to be the driver of one of the vehicles in question, beyond a reasonable doubt, I must be satisfied that it is the only reasonable inference available on the evidence. [6] In assessing the case, I must consider the evidence cumulatively and as a whole.

Given that each circumstantial piece of evidence may be insufficient on its own to support the required inference, I must consider all of the pieces of evidence together to determine whether the prosecution has met its burden. THE EVIDENCE AND FINDINGS OF FACT [ 12 ] This case can be resolved on the first issue: identity . [ 13 ] Mr. Reeve testified about a motor vehicle collision he observed on Highway 401 during the early morning of 01 July 2018. He was a credible witness and his reliability was not significantly challenged in cross-examination. Mr.

Reeve testified in a genuine, simple, and straightforward manner. I accept his evidence completely. [ 14 ] Notably, Mr. Reeve never said what time the collision took place nor which police officers he spoke with about his observations. Mr. Reeve was not asked if the Defendant was the driver of the Nissan he observed to side-swipe the (Toyota) sport utility vehicle [7] before it flipped onto its roof and caught fire. In terms of his evidence about the driver of the Nissan vehicle Mr. Reeve testified, “He looked like a Pakistan fellow.

He was my height, and he probably weighed a little more than me.” At the end of his testimony the parties did not object to me asking the witness for his height and weight, the estimated age of the driver of the Nissan, and whether he saw that driver speak to the police. [ 15 ] Mr. Reeve was candid that he never saw the driver of the Nissan speak to the police. He saw the driver go across the highway to confront the driver of the SUV after learning from Mr. Reeve that another motorist had been involved in the collision. [ 16 ] Constable Visconti testified that he spoke to Robert “Reed” (which is likely Mr.

Reeve, but I cannot be certain of this) at the scene of the collision, who pointed out the driver of the Nissan on the right shoulder of the highway. The description the officer was given was, “male, brown eyes, medium length brown hair, blue dress shirt, short well-kept beard.” He was also told that the male was “Middle Eastern.” There is no doubt that the officer spoke to the Defendant and eventually identified and arrested him at the scene. [ 17 ] Counsel submitted that the Defendant was never identified as a driver of one of the motor vehicles involved in the collision. At best, Mr.

Reeve testified that he recognized the Defendant from that morning, but he could not be certain, beyond a reasonable doubt. The Defendant relies upon the following testimony: [8] Q: Has anybody ever pointed him out to you to see if you could recognize him the driver? A: No. Q: Do you recognize the man behind me [the Defendant]? A: Yes. Q: You recognize him from that night [sic]? A: Yes. Q: What stands out? A: He didn’t have a beard then, I don’t believe.

Q: Anything particular about him that allows you to identify him? A: No, he looks familiar. Q: But you can’t say, beyond a reasonable doubt that this was the same gentleman you dealt with that night [sic], correct? A: It was a year ago. Q: You couldn’t really say that he’s the gentleman you dealt with that night [sic]? A: To be honest with you, no. [ 18 ] The prosecutor argues that there were circumstances that assist to establish the identity of the driver as the Defendant, beyond a reasonable doubt.

The prosecutor relied upon the similar confrontational behaviour of the Defendant (as observed by Constable Visconti) and the driver of the Nissan (as observed by Mr. Reeve). The prosecutor did not seek to rely on Mr. Reeve’s evidence that there were only the three vehicles on the road “at the time of the accident, just before the accident.” Nor did the prosecutor ask the court to rely upon the involvement of the paramedics with the Defendant as evidence that he was an involved party.

These are circumstances that may have assisted to establish the identity of the driver of the Nissan. [ 19 ] When I consider all of the evidence (including inferences not sought, but available on the evidence), I am not satisfied that it is proven that the Defendant was the driver of the Nissan vehicle that morning for the following reasons: i. Mr. Reeve was not certain that he recognized the Defendant as the “gentleman” from that morning; in fact, he did not think that the driver had a beard, whereas Constable Visconti described the man he eventually arrested as having a “short, well-kept beard;” ii. Mr.

Reeve was not asked whether he thought that the Defendant was a “Pakistan fellow;” iii. Mr. Reeve is a white person and the Defendant appears to be a person of a different ethnic, racial, or national background – special care must be taken to accept an in-dock identification, and this is especially true in cases of cross-racial identification; iv. Mr. Reeve testified that he did not point out the driver of the Nissan to police; v. Constable Visconti spoke to Mr. “Reed,” who pointed out the driver of the Nissan as the Defendant, but it was not established that this hearsay statement was made by Mr. Reeve; vi.

The description of the driver of the Nissan given to Constable Visconti did not match the description of the driver given by Mr. Reeve, except in a generic way; vii. The Defendant matched Mr. Reeve’s description in a general way, but there was no evidence adduced respecting the Defendant’s height, weight, or age; viii. Mr. Reeve spoke about “people” yelling for him to get away from the Nissan as it began to ignite in flames; there was no accounting for how many people were present at the scene when the police arrived; and ix.

In the absence of an application to adduce the Defendant’s statements as proof of their contents, I cannot rely upon the Defendant’s statements to the police (I survived the collision) as proof that he was the driver of the Nissan. [ 20 ] In the end, and taking into account all of the evidence as a whole, I am not satisfied that it is established beyond a reasonable doubt that the Defendant drove any motor vehicle before he was arrested by Constable Visconti.

I have considered all of the circumstantial evidence and I am not convinced that the only reasonable inference in light of all of the evidence is that the Defendant was one of the involved motorists that morning. CONCLUSION [ 21 ] I need not resolve the other issues raised during this brief trial. The prosecution has failed to satisfy me beyond a reasonable doubt that the Defendant operated a motor vehicle while impaired by alcohol or with an impermissibly high BAC. [ 22 ] Mr. Andeep Mangat is acquitted of both counts. Released: 26 November 2019 Justice G. Paul Renwick