



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sagoo, 2020 ONCA 770

DATE: 20201204

DOCKET: C64847

Doherty, Roberts and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jastaap Sagoo

Appellant

Mark C. Halfyard, for the appellant

Tanya M. Kranjc, for the respondent

Heard: November 27, 2020 by
    video conference

On appeal from the convictions entered by
    Justice G.S. Lapkin of the Ontario Court of Justice, dated June 26, 2017.

REASONS FOR DECISION

[1]

The appellant appeals from his convictions on a
    charge of dangerous driving causing bodily harm and a charge of impaired
    driving causing bodily harm. Both charges arose out of an accident on the
    Gardiner Expressway at around 3:30 a.m. on June 18, 2015.

[2]

The appellant drove his vehicle into a stopped
    crash truck, parked in the passing lane to protect persons working on the
    roadway ahead of the truck. The appellants vehicle struck the crash truck,
    spun out of control into the adjoining lane and was struck by an oncoming vehicle.
    The driver of that vehicle suffered bodily harm.

[3]

There were two live issues at trial:

·

Was the appellant guilty of dangerous driving?

·

Did the Crown prove the appellants ability to
    operate a motor vehicle was impaired by alcohol at the time of the accident?

[4]

The appellant testified. He indicated he had
    been drinking the previous evening at a concert and later at a nightclub.
    According to him, he had five drinks. He could not indicate how much alcohol
    was in any of those drinks. He had something to eat around 2:00 a.m. and did
    not drink during his meal. The accident occurred about 3:30 a.m.

[5]

Both the appellant and a passenger in his
    vehicle testified and described the accident. They said the appellant was driving
    at about 95 kilometres an hour in the passing lane, closely behind a large
    utility van. That van blocked their view of the lane ahead of the van. When the
    utility vehicle suddenly changed lanes, the appellant saw the crash truck. He
    attempted to change lanes, but it was too late. His vehicle struck the crash
    truck, spun out of control and was hit by another vehicle.

[6]

Whether there was any large van in front of the
    appellants vehicle became the primary factual dispute at trial. Three persons
    who were in the vehicle that eventually struck the appellants vehicle
    testified. They saw the appellants vehicle approach in the passing lane, pass
    them and strike the crash truck. None of those witnesses saw a big van
    travelling in front of the appellants vehicle.

[7]

The trial judge ultimately rejected the evidence
    of the appellant and his passenger about the black van. He indicated he did not
    believe that evidence, nor did that evidence leave him with any reasonable
    doubt about the existence of the van.

[8]

The trial judge went on to conclude, based on
    the evidence of the other witnesses, the Crown had proved beyond a reasonable
    doubt the appellant was guilty of dangerous driving (see reasons, pp. 46-47).
    It was agreed bodily harm was caused to the driver of the other vehicle.

[9]

The trial judge also concluded the Crown had
    proved the appellants ability to operate the motor vehicle was impaired by
    alcohol. The trial judge relied on evidence the appellant had a substantial
    amount to drink over the evening, although he had stopped drinking about two
    hours before the accident. This finding was open to the trial judge on the
    evidence. While he could not quantify the amount consumed by the appellant, it
    was a fair inference on the appellants own evidence he had been drinking
    socially over several hours that evening. The trial judge also referred to the
    police officers evidence that the appellant smelled of alcohol at the scene,
    even several hours later.

[10]

The trial judge also relied on the circumstances
    surrounding the accident. On his findings, the appellant drove at about 100
    kilometres an hour into the back of a very large, brightly lit crash truck
    stopped in the lane in which the appellant was driving. On the evidence, that
    truck would have been visible to the appellant for about 15 or 16 seconds. The
    appellant did not apply his brakes, and did not take evasive action, even
    though the persons in the other vehicle testified the appellant could have safely
    moved into their lane ahead of them.

[11]

In addition, the trial judge considered the
    appellants evidence that he had been awake for some 21 hours at the time of
    the accident.

[12]

The appellant raised four issues in his factum,
    but counsel abandoned the fourth. These reasons address the other three issues.

Issue #1: Did the trial judge err in
    considering the appellants failure to mention the van in the 9-1-1 call when
    assessing the appellants credibility?

[13]

As outlined above, the passenger in the
    appellants vehicle used her cellphone to call 9-1-1 while she and the appellant
    were still in the vehicle. It would appear she did so on the appellants
    direction. The passenger spoke with the 9-1-1 operator. The appellant was,
    however, clearly listening to the call and, on two occasions, provided
    information needed by the 9-1-1 operator. Neither the appellant nor the
    passenger made any reference to the large van blocking their view when
    reporting the accident to the 9-1-1 operator. The operator specifically asked
    about the involvement of other vehicles, but this did not elicit any reference
    to the van.

[14]

The trial judge held that the failure to refer
    to the van in the course of the 9-1-1 call undermined the credibility of the
    evidence given by the passenger and the appellant to the effect their view was
    blocked by this large van. On their trial evidence, the presence of the large van
    was the only reason the appellant had failed to see the crash truck before it
    was too late to avoid the collision.

[15]

Counsel for the appellant accepts the failure to
    mention the van to the 9-1-1 operator could be used in assessing the
    credibility of the passengers evidence at trial. We agree. The passengers statements
    to the 9-1-1 operator could be considered a prior inconsistent statement relating
    to the details of the accident.

[16]

Counsel submits, however, the conversation with
    the 9-1-1 operator cannot be viewed as the appellants statement and therefore
    cannot be used to challenge his credibility. We disagree. It was open to the
    trial judge on this evidence to view the statement to the 9-1-1 operator as the
    statement of both the appellant and the passenger. Both were purporting to
    report the circumstances of the accident to the 9-1-1 operator. On the
    evidence, both clearly heard the question pertaining to the involvement of
    other vehicles.

[17]

On the trial judges view, the 9-1-1 call was a
    statement by both the appellant and the passenger concerning the circumstances
    of the accident. The failure to mention the van in the 9-1-1 call could be
    construed as a material and important difference in the description of the
    accident provided in the 9-1-1 call and the description of the same event provided
    by the appellant and his passenger in their evidence. On that view, the 9-1-1
    call was also a prior inconsistent statement made by the appellant relevant to
    the circumstances surrounding the accident. It was open to the trial judge to
    take that prior statement into account in assessing the appellants credibility.
    The weight to be given to that inconsistency when assessing the appellants
    credibility was a matter for the trial judge.

[18]

In his submissions, counsel for the
    appellant submitted the trial judges use of the appellants failure to refer
    to the van in the 9-1-1 call infringed upon the appellants right to silence
    and/or his right
against self-incrimination. Neither right
    is implicated by the use of the content of the 9-1-1 call as a prior
    inconsistent statement going to the credibility of the appellants evidence at
    trial: see
R. v. Kiss
, 2018 ONCA 184.

Issue #2:
Did the trial judge err in denigrating the appellants evidence
    because he added details in cross-examination and re-examination?

[19]

The manner in which the evidence of a witness
    emerges and develops during his testimony can shed light on the witnesss
    credibility and the reliability of his evidence. The trial judge observed that
    the appellants description of events grew more detailed in the course of his
    testimony. That observation is borne out by a review of the appellants
    evidence. The trial judge was entitled to consider that feature of the
    appellants evidence in assessing his credibility. It was one of several
    reasons the trial judge gave for disbelieving the appellant.

Issue #3:
Is the
    finding of impairment unreasonable?

[20]

The evidence of impairment in this case was not
    as strong as it is in many cases. The officers at the scene observed none of
    the usual indicia of impairment.

[21]

Nonetheless, the evidence outlined above (paras.
    9-11) provided a basis upon which a reasonable trier of fact, properly
    instructed, could find the degree of impairment required to warrant a finding
    the appellants ability to drive was impaired. Counsel takes issue with the
    trial judges reference to the strong odour of alcohol, even hours after the
    appellants last drink. That evidence was evidence of alcohol consumption,
    albeit not evidence on its own of any level of impairment. The trial judge did
    not draw a direct connection between the odour of alcohol and impairment. The
    evidence was part of the overall picture and certainly confirmatory of the appellants
    consumption of alcohol, a first step toward proving impairment. Counsel also
    takes issue with the trial judges use of the word substantial when
    describing the appellants alcohol consumption. It was open to the trial judge,
    based on the appellants own evidence, to come to that conclusion.

Conclusion

[22]

The appeal is dismissed.

Doherty
    J.A.

L.B.
    Roberts J.A.

A.
    Harvison Young J.A.


