DATE: 19990504
DOCKET: C29243
COURT OF APPEAL FOR ONTARIO
LABROSSE, ROSENBERG and FELDMAN JJ.A.
B E T W E E N : )
) David M. Tanovich
HER MAJESTY THE QUEEN ) for the appellant
)
Respondent )
)
- and - ) Feroza Bhabha
) for the respondent
CLIFTON RICHARDS )
)
Appellant ) Caroline Engmann
) for the intervener
)
- and - )
)
AFRICAN CANADIAN LEGAL CLINIC )
) Heard: February 4, 1999
Intervener )
)
On appeal from the conviction by Prov. Ct. Judge Paul B. Pickett
on March 21, 1997.
ROSENBERG J.A.:
[1] Following a trial in the City of Toronto before Pickett
Prov. Ct. J., the appellant was convicted of escaping lawful
custody, assaulting a police officer with intent to resist
arrest, attempted choking and uttering a death threat. The
appellant was sentenced to a total of 28 months’ imprisonment.
He appeals the convictions.
[2] All the charges arise out of a confrontation between the
appellant, who is black, and a police officer, who is white,
following a demand by the officer that the appellant produce his
driver’s licence. For the reasons that follow, I would allow the
appeal from conviction, because of errors made by the trial judge
in his assessment of the credibility of the arresting officer,
and order a new trial.
[3] Counsel for the appellant also presented a wide-ranging
argument centred on the appellant’s skin colour. He submitted
that the encounter between the appellant and the officer was the
result of impermissible racial profiling and he suggested
evidentiary measures, including presumptions that should be
employed by the courts in determining the legal outcome of such
encounters. In my view, the issues arising in this case are
considerably narrower and this is not an appropriate case to
expound upon racial profiling.
THE FACTUAL CONTEXT
[4] At about 3:00 p.m. on December 10, 1996, Constable Scott
Aikman, who was working by himself in a marked police cruiser,
observed a van pass him in the opposite direction. Aikman
testified that the van was travelling at a high rate of speed and
was changing lanes without signaling. Aikman decided to
investigate the van for these traffic violations and he followed
the van to a service station. However, he did not enter the
service station and only attempted to stop the van when it left
the station. In the meantime, he called to request that another
police unit stand by while he investigated. In notes made after
the incident, Constable Aikman described the occupants of the
vehicle as two black males, one female and possibly one other
person. Two of the occupants were described as wearing their
hair in dreadlocks.
[5] When he stopped the vehicle, Constable Aikman discovered
that none of the original occupants was in the van and that it
had a single occupant whom he described as "Oriental". At that
time, the back-up officer, Constable Niezen, arrived. Constable
Aikman decided to return to the service station to locate the
original driver.
[6] Constable Aikman testified that upon returning to the
service station, he and Constable Niezen approached the
appellant. Aikman asked to see the appellant’s driver’s licence.
When the appellant asked "why", Aikman responded "because you
were driving that van". Aikman asked the appellant his name and
the appellant refused to identify himself. Aikman immediately
arrested the appellant under the Highway Traffic Act for failing
to identify himself. He seized the appellant’s arm, but the
appellant broke away and fled the scene. Aikman gave chase and
caught up to the appellant. A struggle ensued and according to
the officer, the appellant attempted to get his service revolver.
The officer sprayed the appellant with pepper spray. During the
struggle, the appellant attempted to choke the officer,
threatened to kill him and at one point grabbed his testicles.
This part of the altercation was not witnessed by any other
officer. Eventually, Aikman subdued the appellant with the
assistance of another police officer.
[7] The appellant’s version of events was very different. The
van he was driving was owned by his spouse’s brother. He and his
cousin were using the van for their dry cleaning business. The
appellant did not have a driver’s licence. At the time the van
was seen by Constable Aikman, it contained three passengers, one
of whom, Phil Samuel, testified for the defence. The appellant
denied that he was speeding or driving improperly when the van
caught the attention of the officer. The appellant’s evidence in
this regard was, to some extent, supported by Mr. Samuel.
[8] The appellant testified that he pulled into the service
station to purchase gasoline. He admitted that he saw the police
cruiser parked near the service station and was concerned because
he did not have a licence. The appellant asked the mechanic to
look at the van. The mechanic looked under the hood and then
took the van for a test drive. The mechanic was driving the van
when Constable Aikman stopped it. In the meantime, the
appellant’s passengers had left because they had appointments and
could not wait any longer.
[9] The appellant testified that when Constable Aikman returned
to the service station, he approached him and accused him of
driving a stolen vehicle and ordered him to get into the police
car. The appellant refused and asked if he was under arrest.
Aikman again demanded that the appellant get into the police car
and started to approach him while holding his billy club. The
appellant slipped and while he was on the ground Aikman hit him
on the shoulders with the billy club. The appellant testified
that he was afraid that he would be beaten further and so he fled
the scene. The appellant testified that when Aikman caught up
with him, he pointed his gun at him and said: "freeze nigger or
else I’ll blow your brains out". Aikman then hit him on the head
with his gun, choked him and sprayed him with pepper spray.
[10] The appellant was much larger than Constable Aikman.
Further, while the appellant did not seem to suffer any injuries
from the encounter, Aikman’s various scratches and bruises were
photographed. The photographs were made exhibits at the trial.
[11] It was the theory of the defence that Constable Aikman
became suspicious of the appellant and the van, not because of
any traffic violations but simply because the van was being
driven by a black man. In cross-examination defence counsel
suggested to Aikman that his real purpose in dealing with the
appellant had nothing to do with the Highway Traffic Act, but
rather with his mere suspicion that the van was stolen because of
the appellant’s skin colour. Aikman denied the suggestion.
However, he conceded that he checked the vehicle licence while
waiting outside the service station and found that it was
registered in an "Oriental" name. Further, as noted, the officer
called for "back-up" before stopping the vehicle and his notes
indicate the skin colour of the driver and the occupants.
THE LEGAL CONTEXT
[12] There was some confusion at the oral hearing of this appeal
about the provisions of the Highway Traffic Act that applied in
this case. At the request of the court, counsel were asked to
provide further written submissions. I have found these
submissions to be very helpful in clarifying the legal context
for the issues raised by the appeal.
[13] The resolution of this case depended upon Constable Aikman’s
authority for arresting the appellant. If the arrest was lawful,
the appellant was required to submit to it and his subsequent
conduct, at least as described by Constable Aikman, amply
supported the convictions. On the other hand, if the arrest was
unlawful, the appellant could not be convicted of the offences of
escaping lawful custody and assaulting a police officer with
intent to resist arrest. Further, depending on the view a trier
of fact took of the subsequent altercation between Aikman and the
appellant and whether the appellant used excessive force1 to
defend himself against an unlawful assault, the appellant might
have a defence to the charges of attempted choking and uttering a
death threat.
[14] The parties now appear to agree that the starting point for
assessing the lawfulness of the arrest is s. 33 of the Highway
Traffic Act, R.S.O. 1990, c. H.8, which provides as follows:
33.—(1) Every driver of a motor vehicle or street car
shall carry his or her licence with him or her at all times while
he or she is in charge of a motor vehicle or street car and shall
surrender the licence for reasonable inspection upon the demand
of a police officer or officer appointed for carrying out the
provisions of this Act.
(2) Every person who is unable or
refuses to surrender his or her licence in
accordance with subsection (1) shall, when
requested by a police officer, give
reasonable identification of himself or
herself and, for the purposes of this
subsection, the correct name and address of
the person shall be deemed to be reasonable
identification. [Emphasis added.]
[15] This section was not drawn to the trial judge’s attention
and thus he made no finding as to whether the appellant was "in
charge of a motor vehicle" at the time Constable Aikman made the
demand for identification at the service station. In his written
submissions, counsel for the appellant submits that the appellant
was not "in charge" of the van at that time and therefore
Constable Aikman had no authority to make the demand for a
licence or identification. Counsel for the respondent argues
that the term "in charge" has a broader meaning than actual
present physical custody and can include some element of past
signification.
[16] In my view, whether or not a person is "in charge" of a
motor vehicle is primarily a question of fact. In R. v. Toews
(1985), 21 C.C.C. (3d) 24 (S.C.C.) at p. 29, McIntyre J. in
considering the term "care or control" in [now] s. 254 of the
Criminal Code referred with approval to the decision of Pottier
Co. Ct. J. in R. v. Henley, [1963] 3 C.C.C. 360 (N.S. Co. Ct.) at
p. 366:
The word "care" may also mean custody, charge, safe keeping,
preservation, oversight or attention. Where it is used in this
sense it becomes a relative term and is of broad comprehension.
One has to look at the provision of its use and determine its
physical sense from that standpoint. [Emphasis added.]
[17] The same may be said of the term "in charge". I agree with
Crown counsel that as used in s. 33, the term must be wider than
actual present physical custody and can include circumstances
where the person has only recently and temporarily relinquished
physical custody.
[18] On the facts as disclosed at this trial, it would be open to
a trier of fact to find that the appellant was still in charge of
the vehicle at the time of the demand. He had given the vehicle
to the mechanic for a brief period for a specific and limited
purpose. The appellant otherwise maintained complete control
over the vehicle and its contents. This is particularly true
if, as it was open to a trier of fact to conclude, the assertion
that the vehicle had engine trouble was a sham. On this evidence
a trier of fact could conclude that the appellant was stalling
and looking for excuses not to re-enter the vehicle in case he
was stopped and found to be driving without a licence. If that
were the true state of affairs, the case resembles an example
given by Morden J.A. in R. v. Campbell (1988), 44 C.C.C. (3d) 502
(Ont. C.A.) in considering [former] s. 234.1 of the Criminal
Code, which gave an officer the right to demand a breath sample
for a roadside screening device if the person "is driving" or
"has the care or control" of a motor vehicle. At pp. 505-6,
Morden J.A. pointed out that the section must allow for some
degree of past signification:
For the purpose of the present case it is not necessary nor,
assuming it to be possible, is it advisable to give a
comprehensive answer to this question. I think that it is
sufficient to say that the verb "is" (and, therefore, "has") can
and should have some degree of past signification. To interpret
these words as having a strictly literal (present tense only)
meaning could defeat the purpose of the provision and lead to
absurd results. For example, as far as "has care or control" is
concerned, if the provision is confined to a literal present
tense meaning it would not apply to a person who, when a police
officer approaches, steps out of his car and throws his keys away
or who runs away and is finally caught by the police officer a
substantial distance from the car. Other examples could be given.
[Emphasis added.]
[19] Accordingly, there was evidence upon which it could be found
that the appellant was in charge of the vehicle within the
meaning of s. 33 of the Highway Traffic Act.
[20] The appellant argues that even if the appellant was in
charge of the vehicle, Constable Aikman was not entitled to
exercise the power under s. 33 unless he had some basis for
believing that the appellant had committed an offence under the
Highway Traffic Act. The appellant suggests "articulable cause"
as the standard. Counsel for the respondent submits that the
officer need not have any basis for believing that the motorist
had committed an offence under the Act. She appears to concede,
however, that the demand must be related to highway safety
concerns.
[21] I need not resolve this issue in this case. If Constable
Aikman is believed, he had grounds for making the demand as part
of an investigation into driving offences committed by the
appellant while he was driving the van. At trial, the Crown
rested its case on that basis. The real matter of contention in
this case is whether Constable Aikman’s investigation was
racially motivated and the parties agree that if that was the
basis for the demand, it was unlawful.
[22] The concession by the Crown that if the demand for the
appellant’s driver’s licence and identification was racially
motivated the demand was unlawful is based upon this court’s
decision in Brown v. Durham Regional Police Force (1998), 131
C.C.C. (3d) 1. In that case, the court considered s. 216 of the
Highway Traffic Act, which gives a police officer, in the lawful
execution of his or her duties and responsibilities, the power to
require the driver of a motor vehicle to stop. Doherty J.A.
held, at p. 15 that a stop may be lawful under s. 216 even if it
is made for purposes other than those related to highway safety
matters provided that these other purposes are not themselves
improper. At p. 17 Doherty J.A. directly addressed the concern
raised in this case:
While I can find no sound reason for invalidating an
otherwise proper stop because the police used the opportunity
afforded by that stop to further some other legitimate interest,
I do see strong policy reasons for invalidating a stop where the
police have an additional improper purpose. Highway safety
concerns are important, but they should not provide the police
with a means to pursue objects which are themselves an abuse of
the police power or are otherwise improper. For example, it
would be unacceptable to allow a police officer who has valid
highway safety concerns to give effect to those concerns by
stopping only vehicles driven by persons of colour. Section
216(1) of the HTA does not, in my view, authorize discriminatory
stops even where there is a highway safety purpose behind those
stops.
When I refer to improper police
purposes I include purposes which are
illegal, purposes which involve the
infringement of a person’s constitutional
rights and purposes which have nothing to do
with the execution of a police officer’s
public duty. Officers who stop persons
intending to conduct unauthorized searches,
or who select persons to be stopped based on
their sex or colour, or who stop someone to
vent their personal animosity toward that
person, all act for an improper purpose.
They cannot rely on s. 216(1) of the HTA even
if they also have highway safety concerns
when making the stop. [Emphasis added.]
[23] I agree with Crown counsel’s concession that Doherty J.A.’s
analysis of s. 216 in Brown is applicable to s. 33. The last
piece of the legal context concerns the power of arrest. If the
demand was lawful in accordance with Brown and if the appellant
refused to identify himself, Constable Aikman had the power to
arrest him without a warrant under s. 217(2) of the Highway
Traffic Act.
THE GROUNDS OF APPEAL FROM CONVICTION
[24] The appellant raised two broad grounds of appeal.2 He
argued that the verdicts were unreasonable and that the trial
judge erred in his assessment of credibility. Within the context
of these two grounds, Mr. Tanovich raised numerous issues,
including the use of racial profiling. Relying on statistics,
which he argues show that a disproportionate number of black male
drivers in Toronto are stopped by the police, counsel submits
that there is a prima facie case that some police officers are
engaging in racial profiling. In its written submissions the
intervener, the African Canadian Legal Clinic, defined racial
profiling in these terms:
Racial profiling is criminal profiling based on race.
Racial or colour profiling refers to that phenomenon whereby
certain criminal activity is attributed to an identified group in
society on the basis of race or colour resulting in the targeting
of individual members of that group. In this context, race is
illegitimately used as a proxy for the criminality or general
criminal propensity of an entire racial group.
[25] To combat racial profiling, counsel for the appellant argues
that the courts should impose a legal burden on the Crown in any
case where criminal charges follow the stopping of a black person
to establish that the stop was lawful and not the result of
racial profiling. I take it from his submissions that if the
Crown could not rebut this presumption of illegality, this would
affect the validity of the criminal charges. As counsel
ultimately conceded, however, the issue simply does not arise in
this case. All of these charges flow from the arrest of the
appellant. The Crown conceded that it had the burden of proving
that the arrest was lawful. If there was a reasonable doubt that
the demand under s. 33 was racially motivated, the arrest was
unlawful and the appellant was entitled to be acquitted.3
Appropriately, the trial judge dealt with the case on that basis.
ANALYSIS
1. Unreasonable Verdicts
[26] Counsel for the appellant argues that there is a compelling
circumstantial case that Constable Aikman undertook his
investigation because of the appellant’s skin colour. He argues
that the evidence as to the officer’s conduct is consistent with
the officer suspecting that the appellant was driving a stolen
vehicle based on nothing more than the appellant’s race. I have
reviewed some of that evidence above. I am not convinced that
the verdicts are unreasonable. Constable Aikman’s evidence as to
the sequence of events does not stand alone. In particular,
Constable Niezan, who the trial judge found to be a credible and
forthright witness, confirmed that Aikman asked the appellant for
identification. It is also not without significance that the
appellant’s version of the two altercations with Aikman is
inconsistent with the evidence of the injuries. Whereas the
appellant claimed to have been choked and repeatedly struck by
the officer’s billy club, he made no complaint of any injury. On
the other hand, Aikman suffered injuries consistent with his
description of the assaults by the appellant. A trier of fact,
acting reasonably, could accept the evidence of the two officers
and reject the appellant’s evidence. In that case, the arrest
was lawful and the appellant would have been properly convicted.
2. The Trial Judge’s Assessment of Credibility
[27] Credibility was a critical issue in this appeal and it was
essential that the trial judge properly apply the burden of proof
to that issue. In my view, he failed to do so and the
convictions cannot stand. The trial judge erred in approaching
this trial as if it was the police officers, especially Constable
Aikman, who were on trial. That, of course, was not the issue.
The appellant was on trial and the issue was whether the Crown
had proved his guilt beyond a reasonable doubt. The focus did
not shift simply because one of the issues engaged the lawfulness
of Constable Aikman’s conduct. The issue was still whether the
Crown proved beyond a reasonable doubt that the arrest was
lawful. If at the end of the trial, the judge was unable to
determine whether Constable Aikman acted lawfully, the appellant
was to be acquitted. The trial judge was not conducting a
disciplinary hearing for the police.
[28] To appreciate the trial judge’s approach, it is necessary to
refer to an incident that occurred immediately after arraignment.
At that time, defence counsel applied for an order that all
witnesses be excluded from the courtroom. The application was,
of course, granted. He then expanded that application and asked
that the instructing officer, who was not a witness, be excluded
while Constable Aikman testified. The trial judge asked for an
explanation for this somewhat unusual request and defence
counsel, Mr. Menzies, made this submission:
This is a case in which there is going to be a tremendous
discrepancy between police evidence and defence evidence.
The defence position will be that the
arrestee [sic], the so-called arresting
officer, has not acted lawfully in this
matter.
And my client…I know the overtones of
some of the unfortunate issues that sometime
arise in these cases of race, Your Honour,
and police abuse.
…
But I think, Your Honour, that in all of
these cases the arresting officer should be
here to give his evidence without even the
psychological benefit of a support system,
when my client has no such benefit.
[Emphasis added.]
[29] The issue of race was thus introduced at the opening of the
trial. Unfortunately, it appears to have skewed the trial
judge’s approach to credibility. The following dialogue occurred
between the trial judge and defence counsel in the course of
closing submissions:
THE COURT: And your position is that it’s racially
motivated, and you from there. And I’m waiting for you to give
me the evidence base that I could look at to see where we’re
going here.
MR. MENZIES: Well, my position –
THE COURT: If this police officer
operated in a racially motivated way, he can
be tossed off the force.
MR. MENZIES: Correct.
THE COURT: There’s no place for it.
MR. MENZIES: Correct.
THE COURT: And it’s my duty to say so.
So don’t worry. I’ll do that if that’s the
case.
MR. MENZIES: Your Honour, just to make
it as clear as I can, sir, my position is
that it was never a Highway Traffic related
investigation. For all practical purposes
that is a kind of a smokescreen to try to
justify his desire to investigate the
occupants of the vehicle.
…
THE COURT: … If this police officer
acted in an improper fashion, I’ve told you
he should be turfed off the force. If he
arrests somebody in a manner that is
unlawful, that’s another reason he should
have his conduct investigated.
And your position is even if it’s
under the Highway Traffic Act it’s unlawful.
Am I correct?
…
MR. MENZIES: Your Honour, I’ve seen you
make findings of credibility in your own very
straightforward way.
THE COURT: I’ve made findings against
police officers. Don’t hesitate on that.
[30] The trial judge returned to the police officer’s
vulnerability to sanctions in his reasons for judgment. It is
necessary to set out those reasons at some length.
I was required to form an opinion as to credibility.
In doing so, I employed my own observations and the guidance of
the superior courts, commencing with the Supreme Court of Canada
in White v. The King (1947), C.C.C. 148, and proceeding there-
through on the decisions of the superior courts, including the
very kind guidance of the Ontario Court of Appeal in R. v. M.G.
(1994), O.J. No. 2086, in particular the guidance of Mr. Justice
Galligan.
In view of Mr. Menzies’ opening
remarks, I applied this test in its most
stringent form on any police officer who
testified, it being my respectful opinion if
there is any basis for Mr. Menzies’ position
the matter must be referred to the Police
Services with a request that the officer in
question be considered for removal from the
force.
I applied this test to the witness
Scott Aikman; he is a police officer. He was
given permission to use his notes to refresh
his memory, and did so. Counsel are aware
his testimony covers the first day with Mr.
Innes for the Crown and covers some 82 pages
of transcript.
Mr. Menzies in his submissions
requested that I carefully observe this
particular witness and that I go beyond his
words uttered in the witness box and observe
him to see if there is any hidden language
which would show that the words were not
truthful, either by his actions or any other
conduct. I particularly followed Mr.
Menzies’ request.
This witness was carefully examined
by two very senior members of the bar, Mr.
Innes and Mr. Menzies. They were both, in my
respectful opinion, very well prepared and
dealt with this matter with the seriousness
that was important that it be dealt with.
In my respectful opinion, the
witness listened to the question put to him
by both counsel. He gave the question the
respect that it was due, firstly, because it
was a question put to him under oath, and
secondly, because it was a question put to
him by senior counsel.
I noted that he responded to the
question. I noted that he responded to the
question if it was repeated, and he responded
to the question no matter the number of times
it was repeated. I did not notice in any
response or in any physical action or in any
action of his face that there was anything
other than respect given to counsel and to
the questions put. In my respectful opinion,
he simply dealt with the question put to him,
as he was obliged by his oath, namely, to
answer the questions truthfully. He was a
credible witness.
…
I applied the test as I have
outlined from the guidance of the superior
courts and my own observations to the witness
Clifton Richards, but of course not to the
same degree of stringency that I applied to
the police officers, it being my respectful
opinion that any finding of any deviation
from truthfulness and honesty by any of the
police officers would require that the matter
be referred, as I have indicated previously,
to the Police Services Board for immediate
dismissal of the officer.
…
I note that Mr. Richards had to be
pressed to answer on many occasions
throughout the cross-examination. I note
that his testimony in cross-examination
differed completely in essential elements
from that of Constable Aikman, and in my
respectful opinion the one could not stand if
the other was not rejected.
I reserved making my finding of
credibility until I heard the entire
evidence, and I felt that this was important
because in dealing with my finding of
credibility for Phil Samuel I found Mr.
Samuel a clean-cut, well-spoken gentleman who
regretfully left before the events other than
the alleged Highway Traffic Act infraction
took place, and so could not give me the
assistance that I would have appreciated from
Mr. Samuel.
I found Mr. Samuel to be a
gentleman in whom I could put my complete
faith and trust, and insofar as it is
necessary for the finding of fact that I will
make I found him to be a credible witness.
My assessment of Mr. Samuel then
led me into the position where I must make an
adverse assessment as to Mr. Richards, the
reason being that Mr. Samuel in-chief advised
Mr. Menzies that the sole reason for going
into the gas station was that the vehicle
needed gas. [Emphasis added.]
[31] The approach to the application of the burden of proof to
questions of credibility has been set out in a number of
decisions of this court and the Supreme Court of Canada. The
leading decision is R. v. W. (D.) (1991), 63 C.C.C. (3d) 397
(S.C.C.) where at 409 Cory J. stated the law in these terms:
In a case where credibility is important, the trial judge
must instruct the jury that the rule of reasonable doubt applies
to that issue. The trial judge should instruct the jury that they
need not firmly believe or disbelieve any witness or set of
witnesses. Specifically, the trial judge is required to instruct
the jury that they must acquit the accused in two situations.
First, if they believe the accused. Secondly, if they do not
believe the accused's evidence but still have a reasonable doubt
as to his guilt after considering the accused's evidence in the
context of the evidence as a whole: see R. v. Challice (1979), 45
C.C.C. (2d) 546 (Ont. C.A.); approved in R. v. Morin, … at p.
207.
Ideally, appropriate instructions on the
issue of credibility should be given, not
only during the main charge, but on any
recharge. A trial judge might well instruct
the jury on the question of credibility along
these lines:
First, if you believe the
evidence of the accused, obviously you must
acquit.
Secondly, if you do not
believe the testimony of the accused but
you are left in reasonable doubt by it,
you must acquit.
Thirdly, even if you are not
left in doubt by the evidence of the
accused, you must ask yourself whether,
on the basis of the evidence which you
do accept, you are convinced beyond a
reasonable doubt by that evidence of the
guilt of the accused.
[32] The particular error in this case was explained by Morden
J.A. in R. v. Challice at p. 556:
Undoubtedly, it is wrong to instruct a jury in a criminal
case that they are obliged, in order to render a verdict, to
decide whether they believe the Crown evidence or the defence
evidence. The jury is obliged to consider all of the evidence
before arriving at their verdict and the putting of the stark
alternatives of believing the Crown evidence or the defence
evidence excludes the legitimate possibility of being unable to
resolve the conflicting evidence and, accordingly, being left in
a state of reasonable doubt on whether the Crown has proven its
case: R. v. Nimchuk, … at p. 210. If the jury is instructed in
such terms that they may understand the case to turn on the
result of a credibility contest then this will, depending on
other relevant directions in the charge, in effect, shift the
burden of proof to the accused or lower the standard of proof
resting on the Crown. [Emphasis added.]
[33] Martin J.A. found the same error in a judge alone trial in
R. v. Nimchuk (1977), 33 C.C.C. (2d) 209 (Ont. C.A.) at 210-1:
In our view, the trial Judge in concluding that in order to
acquit the appellant he would have to find that Mrs. Vanka was
"framing him", in effect, placed the burden of proof upon the
appellant. The trial Judge appeared to think that he was
confronted with a choice between two alternatives, either
accepting the evidence of the accused, and finding that Mrs.
Vanka framed him, or accepting the evidence of Mrs. Vanka, which
required a conviction. There was, of course, a third alternative,
namely, if a reasonable doubt existed, in view of the conflicting
testimony, as to exactly where the truth of the matter lay, it
would, of course, require an acquittal.
In R. v. Nykiforuk (1946), 86 C.C.C. 151
at p. 155, [1946] 3 D.L.R. 609, 2 C.R. 41,
Mackenzie, J.A., delivering the judgment of
the Saskatchewan Court of Appeal said:
It is manifest as the learned
Judge has said that the story of the
witnesses for the Crown are absolutely
opposed to that given by the accused. It is
also obvious as he remarks that they could
not both be true.
In order to arrive at a proper
verdict however it was not obligatory
upon the jury, as the learned Judge
suggests, "to solve" the question as to
which side was telling the truth "beyond
a reasonable doubt". On the contrary the
burden of proof being on the Crown
throughout, the question for
determination by the jury was whether
upon the whole of the evidence they were
satisfied beyond a reasonable doubt that
the accused had committed the offence
charged ...[Emphasis added.]
[34] In his reasons for judgment, the trial judge did not refer
to R. v. W. (D.) and did not give any other indication that he
had considered the correct application of the burden of proof.
His reasons must, of course, be read as a whole and the judge was
not required to demonstrate that he knows the law: R. v. Burns
(1994), 89 C.C.C. (3d) 193 (S.C.C.) at 199. However, when those
reasons are read as a whole and especially the parts set out
above, it is evident that the trial judge made several errors.
He introduced into the assessment of credibility and reasonable
doubt an irrelevant consideration, the possibility that Constable
Aikman could be discharged if the trial judge found that the
arrest was racially motivated. By so doing, he eliminated the
"third alternative" -- that if he was unable to determine exactly
where the truth of the matter lay in view of the conflicting
testimony, the Crown had not met the onus of proving that the
arrest was lawful. That finding was possible on this record
without the trial judge having to find as a fact that Constable
Aikman was motivated by improper considerations.
[35] Further, although the trial judge stated that he was
applying a test of credibility in "its most stringent form" to
the police officers who testified, the fact that he linked this
statement to a possible referral to the Police Services Board
gave the appearance of reducing the burden of proof on the Crown.
In particular, it gave the appearance that the trial judge would
be loath to make a finding against the credibility of Constable
Aikman because of the disastrous consequences such a finding
would have for the officer’s career.
[36] Finally, in my view, the trial judge placed undue emphasis
on demeanour in making the credibility determination. In so
doing, he gave little consideration to the problems in the
Crown’s case and he seems to have overlooked the impact of his
own finding that the defence witness, Samuel, was a witness in
whom he could put "complete faith and trust". Mr. Samuel
testified that prior to entering the service station the
appellant did not appear to be speeding and was not driving
erratically. This was important evidence on the question of
Constable Aikman’s motive for investigating the appellant and
hence the lawfulness of the arrest. The trial judge’s failure to
consider this evidence and his use of Samuel’s testimony solely
to undermine the appellant’s credibility highlights the problem
when the trier of fact does not bear in mind the third part of
the W.(D.) instruction:
Thirdly, even if you are not left in doubt by the evidence
of the accused, you must ask yourself whether, on the basis of
the evidence which you do accept, you are convinced beyond a
reasonable doubt by that evidence of the guilt of the accused.
[Emphasis added.]
[37] Credibility was a critical issue in this case and in view of
the trial judge’s misdirection on that issue the verdicts cannot
stand.
DISPOSITION
[38] In his additional written submissions, the appellant argued
that should the court order a new trial, it should nevertheless
stay the proceedings relying upon R. v. Codina, [1994] O.J. No.
249 (C.A.). The circumstances of this appeal are far removed
from that of Codina. This is not an appropriate case for a stay
of proceedings on the record before this court. Accordingly, I
would allow the appeal, quash the convictions and order a new
trial. As the appellant has apparently served the sentence
imposed, the Crown may wish to consider whether it is in the
interests of justice to proceed with a new trial.
(signed) "M. Rosenberg J.A.
(signed) "I agree J.M. Labrosse J.A.
(signed) "I agree K. Feldman J.A.
Released: May 4, 1999
_______________________________
1 R. v. Biron (1975), 23 C.C.C. (2d) 513 (S.C.C.) [per Laskin
C.J.C., dissenting on other grounds] at 519.
2 Prior to the appeal, the appellant served notice of an
intention to introduce fresh evidence. That application was
abandoned in oral argument.
3 Subject, as indicated above, to a possible argument that he
used excessive force in self-defence. |