R v Singh, 2023 MBCA 68

Citation: R v Singh, 2023 MBCA 68 Date: 20230727 Docket: AR23-30-09888 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Marianne Rivoalen Madam Justice Holly C. Beard Madam Justice Lori T. Spivak BETWEEN : ) K. E. Smith HIS MAJESTY THE KING ) for the Appellant ) Respondent ) D. Sahulka ) for the Respondent ) - and - ) Appeal under rr 37.3 and 38 of the ) MB, Court of Appeal Rules ) SUKHBIR SINGH ) Joint written submissions filed: ) July 10, 2023 (Accused) Appellant ) ) Judgment delivered: ) July 27, 2023 BEARD JA (for the Court): I.

THE ISSUE [ 1 ] The accused is appealing his conviction for operating a motor vehicle in a manner that was dangerous to the public and causing the death of Andrew Labossiere (the deceased), contrary to

section 320.13(3) of the Criminal Code . [ 2 ] While the accused raised several grounds of appeal, he is now limiting his appeal to one ground, being that the trial judge misapprehended material evidence, leading to a miscarriage of justice. He is asking this Court to overturn his conviction and order a new trial. [ 3 ] The Crown joins the accused in his appeal, agreeing that there was a miscarriage of justice as a result of the trial judge’s misapprehension of material evidence, that the conviction should be overturned, and that there should be a new trial ordered.

Moreover, both parties agree that this appeal may be determined on the basis of written materials filed, without an oral hearing being held (see r 37.3 of the MB, Court of Appeal Rules , MR 555/88R ). II. BACKGROUND [ 4 ] Very briefly, the accused was driving a heavy-duty semi-trailer truck, going south on Highway 13, while the deceased was driving a half-ton truck, going east on Highway 2. Those two highways intersect; Highway 13 has a stop sign at the intersection, while Highway 2 does not.

It was admitted that, at approximately 6:00 a.m. on February 28, 2020, the accused drove through the intersection without stopping. The deceased’s half-ton truck drove into the passenger side of the semi-trailer truck and was pushed into the southwest ditch, while the accused’s semi-trailer truck ended up in the southeast ditch. The deceased died at the scene. [ 5 ] There was Crown evidence from two police expert witnesses regarding the driving and weather conditions, the speed, braking and other metrics from the vehicle recording devices and the accused’s cellphone usage data.

There were also photographs of the scene of the accident, the intersection, and some of the signs on both highways. [ 6 ] The parties filed an agreed statement of facts at the trial, in which the accused admitted that he failed to stop at the intersection. At the trial, the accused testified and admitted that, in failing to stop at the stop sign, his manner of driving was objectively

dangerous, so that the actus reus of the offence was established. [7] The accused took the position that he lacked the mens rea for the offence because the Crown had failed to prove thathis conduct was a marked departure from the standard of care expected of a reasonable person. He argued that the evidence was that itwas dark, he had reduced his speed, had not been distracted by the cellphone, by eating or drinking, and he was not intoxicated. Further,he was unfamiliar with the road, the weather was not ideal and the police evidence was that the various warning signs were very closetogether.

All of this, he argued, pointed to a momentary lapse of attentiveness, not the required marked departure. [8] The trial judge accepted the accused’s concession that the act of driving a semi-trailer truck through a stop sign andinto an intersection at high speed endangered the public and constituted the actus reus of the offence.

He accepted the accused’stestimony as to his activities preceding the collision, noting that the accused had no memory of the events immediately prior to thecollision. [9] Further, the trial judge found that the accused failed to note the reduced speed zone and he missed other “trafficwarning signs and rumble strips before speeding through a stop sign.” He relied on photo five in trial exhibit one to support SergeantMcCuen’s evidence that the reduce speed zone signs existed. [10] The trial judge concluded that, in all of the circumstances, the manner of driving was a marked departure from thestandard of care expected of a reasonable person, and he found the accused guilty.

III. MISAPPREHENSION OF EVIDENCE [11] A misapprehension of evidence constitutes a miscarriage of justice if it relates to material aspects of the evidence. Theerror must play an essential

part in the trial judge’s reasoning leading to a conviction. If there has been a material misapprehension of theevidence, the accused has not received a fair trial. In that case, the conviction must be overturned and a new trial ordered, even if theother evidence would be capable of supporting a conviction. (See R v Morrissey (1995), (ON CA), 97 CCC (3d) 193at 221 (Ont CA); R v Lohrer, 2004 SCC 80 at para 2; R v Sinclair, 2011 SCC 40; and R v Whiteway (BDT) et al, 2015 MBCA 24 atpara 32.) [12] A misapprehension of evidence may be the result of (

i) a mistake as to the substance of the evidence; (ii) a failure toconsider evidence relevant to a material issue; or (iii) a failure to give proper effect to evidence. (See Whiteway at para 32.) IV. ANALYSIS AND DECISION [13] Sergeant McCuen testified as to the signage for southbound traffic on Highway 13 at the intersection with Highway 2. The accused testified that he did not recall any signs regarding a reduce speed zone and that there were no signs posted when he drovethe route on later dates. [14] The trial judge accepted Sgt.

McCuen’s evidence that there were reduce speed signs, finding that photo five in exhibitone supported his evidence. However, Sgt. McCuen testified that photo five depicted the reduce speed zone for eastbound traffic onHighway 2. The trial judge misapprehended the highway being depicted in photo five. [15] The trial judge made several references to the erroneous evidence in his analysis of the mens rea of the offence.

Indetermining whether a reasonable person would have foreseen the risk created by the manner of driving and taken steps to avoid thatrisk, the trial judge reviewed the evidence, including whether “they encounter[ed] several different traffic warnings that tell them there isa stop ahead.” In determining whether the manner of driving was a marked departure from that of a reasonable person in the accused’scircumstances, the trial judge made reference to photo five in exhibit one depicting the reduce speed sign.

Finally, in concluding thatthere had been a marked departure from the standard of care expected of a reasonable driver, the trial judge found that the accused “thenmissed numerous traffic warning signs and rumble strips before speeding through a stop sign.” [16] The parties both argue that, “Given the test for dangerous operation of a motor vehicle, this material error played ‘anessential part not just in the narrative of the judgment but in the reasoning process resulting in a conviction’” (see also Lohrer at para 2),and that the conviction cannot be upheld. [17] We agree with the parties that the trial judge misapprehended the photographic evidence, that the misapprehensionplayed an essential

part in his reasoning process, leading to the conviction, and that, as a result, there was a miscarriage of justice,leading to an unfair trial. We also agree that the correct remedy is that of overturning the conviction and ordering a new trial. In theresult, we so order. JA CJM JA