



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vining, 2018 ONCA 1078

DATE: 20181221

DOCKET: C64897

MacPherson, Pardu and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Eric Vining

Appellant

M. Godoy for the appellant

Jacob Sone for the Crown, respondent

Heard: December 20, 2018

On appeal from the
    conviction entered on August 18, 2017 by Justice D. Lahaie of the Ontario Court
    of Justice.

REASONS FOR DECISION

[1]

Mr. Vining appeals from convictions for theft of
    a pickup truck, dangerous driving, failing to stop for police and mischief. He
    submits that the trial judge erred in her assessment of credibility by failing
    to adequately analyze the evidence of Mr. Gilbert, a key Crown witness, and
    further that she applied uneven scrutiny to Crown and defence evidence. He
    submits that while the trial judges reasons support her rejection of the
    appellants evidence, the evidence as a whole did not prove the appellants
    guilt beyond a reasonable doubt.

[2]

Mr. Vining and Mr. Gilbert were both occupants
    of the truck, careening down highway 401 at speeds up to 160 kmph. Police gave
    chase, but abandoned that effort for safety reasons. The truck left the highway
    and crashed through a gate leading to a marina. Both occupants were found in
    the area close to the abandoned truck. The issues at trial were the following,

1.

Who was driving the truck?

2.

Had Mr. Vining stolen the truck?

[3]

At the start of the trial, the appellant pleaded
    guilty to possession of the stolen pickup, theft of a licence plate, possession
    of other stolen property and breach of probation and of a recognizance.

[4]

In the course of the police chase, police
    observed one of the occupants climb into the back seat. Mr. Gilbert testified
    that he was that occupant and that the appellant was the driver.

[5]

The truck had been reported stolen on December
    21, 2016 in Prince Edward County. The appellant was seen on a video recording
    removing licence plates from another vehicle at a repair shop at 2:58 in the morning
    in that same county. He installed those stolen plates on the stolen truck.  At
    trial the appellant testified that his friend stole the truck, and that he was
    with the friend when the truck was stolen. According to the appellant, the
    friend had his own vehicle and the friend agreed the appellant could use the
    stolen truck.

The appellants evidence about the road trip
    to Toronto

[6]

The appellant and Mr. Gilbert met on December
    30, 2016, as the appellant was driving the stolen truck in Montreal. They were
    both drug addicts, and they spent the morning and the early afternoon together
    consuming drugs and driving around Montreal and stopping at various places. The
    appellant removed the keys from the vehicle and required Mr. Gilbert to leave
    the truck, while the appellant visited a prostitute, as he did not trust Mr.
    Gilbert, and needed the truck for himself. Mr. Vining testified that he drove
    up to a gas station, filled the tank, and then drove away without paying. Mr.
    Vining and Mr. Gilbert decided to drive to Toronto. Mr. Vining testified that
    he directed Mr. Gilbert to change the plates on the truck, and that he then
    went into the passenger seat and fell asleep. He was high and had been up for a
    long time. He woke to see that there were five police cars behind them. Mr.
    Vining testified that he was the one who jumped into the back seat and that Mr.
    Gilbert continued to drive and smashed through the marina gate. He told Mr.
    Gilbert they should split up to facilitate evasion of the police, but
    ultimately Mr. Vining was apprehended, standing on a rock three feet into the
    water in the St. Lawrence River.

Mr. Gilberts evidence about the road trip to
    Toronto

[7]

Mr. Gilbert lived in a shelter in Montreal. He
    wanted to go to Toronto for New Years Eve, as he had never been out of the
    Montreal and Laval area. He testified that the appellant agreed to take him to
    Toronto in exchange for payment. He testified that the appellant told him that
    he had stolen the pickup. During their time together the appellant wanted to
    cash a cheque. Before going into the bank he told Mr. Gilbert to get out of the
    truck, and locked the doors because he did not trust Mr. Gilbert with the
    truck.

[8]

Mr. Gilbert testified that the appellant stole
    gas for the truck, then instructed him to place the stolen licence plates on
    the truck. Mr. Gilbert said he complied. Mr. Gilbert said the appellant drove
    the truck and began to nod off because of fatigue and drug consumption. Mr.
    Gilbert said he turned up the radio and tried to get the appellant to stay awake.
    Mr. Gilbert said he was the front passenger who jumped into the back seat to
    retrieve his cell phone which had been thrown there as a result of the erratic
    driving. Mr. Gilbert was apprehended near the shoreline at the marina,
    distraught, crying, frightened and injured. Mr. Gilbert said that the appellant
    ordered him to run, threatened him and pushed him to the ground, injuring his
    hand.

Decision of the trial judge

[9]

The trial judge rejected the appellants
    evidence because of several inconsistencies. The appellant said he was awake
    for the collision which occurred when police pursued them, however it was clear
    on the evidence that the collision occurred before police began their pursuit.
    The appellant testified that he recalled seeing the collision, but also that he
    only woke up on seeing five police cars in pursuit. The trial judge concluded
    that the appellant often tailored his evidence when he realized his evidence
    was illogical or inconsistent. The appellants credibility was adversely
    affected by a finding that he lied under oath about his address to try to get
    bail on an earlier charge and by his criminal record including crimes of
    dishonesty. He concluded that the appellant was intentionally vague and
    misleading. The trial judge found it made no sense that the appellant would
    have contemplated escaping by swimming into the St. Lawrence River in December
    had he only been guilty of the more minor crimes for which he admitted guilt.

[10]

On the other hand, after careful analysis, the
    trial judge found that Mr. Gilberts evidence was reliable,

Although Mr.
    Gilbert conceded that he was high on the date of these offences, and that he
    too had a criminal record for crimes of dishonesty, I found his evidence to be
    reliable. Mr. Gilbert provided his evidence in a clear and straight-forward
    manner. He was excited and nervous as he testified, as he remained fearful of
    the accused. I accept that he was approached by individuals who threatened to
    harm him and his family if he testified against the accused. Mr Gilbert was
    fearful of the accused at the trial, and when he ran with him to avoid police
    when ordered to do so by the accused, Mr. Gilberts demeanour upon arrest as
    described by the officers, support this finding.

Defence counsel
    argued that the evidence of Mr. Gilbert should raise a reasonable doubt as he
    had a motive to fabricate his evidence in order to avoid being charged or
    convicted of the driving offences. I have considered this motive in arriving at
    my ultimate conclusion that Mr. Gilbert was telling the truth. I found his
    evidence both credible and reliable.

Defence counsel
    pointed to the tablet belonging to Mr. Gilbert which was found on the floor on
    the drivers side of the vehicle. Mr. Gilbert could not explain this, other
    than to point to the fact that everything in the truck went flying when the
    accused struck the metal gate. I accept that this is what occurred when Mr.
    Gilbert jumped into the backseat to get his phone, his tablet remained in the
    front and ended up on the floor on the drivers side. The swerving of the
    vehicle and ultimate collision with the gate, caused the table to land in this
    area.

Mr. Gilbert
    testified that he did not know how to drive. I believed him. I find that he
    never drove the truck that day. There would have been no reason for Mr. Vining
    to allow him to drive. Mr. Vining testified that he let Mr. Gilbert drive
    because he chipped in for gas. I reject this evidence, as it is illogical.
    Mr. Gilbert did not know how to drive and Mr. Vining was not intimidated,
    frightened or threatened by Mr. Gilbert. He did not know this man. It is
    illogical that he would have let him drive in the circumstances, especially
    when he was going to such pains to remove the key and lock the door when he
    went into the bank for instance. Mr. Vining testified that he did not trust Mr.
    Gilbert with the truck. On the totality of the evidence, I find that it defies
    common sense and logic, that Mr. Vining would have allowed Mr. Gilbert to drive
    this stolen truck.

Mr. Gilbert
    readily conceded that he was a drug addict, that he had a criminal record, that
    he changed the licence plates. He did not minimize his evidence or tailor his
    evidence as he testified.

While I find that
    someone who is high on drug is generally a poor historian, I accept that Mr.
    Gilbert did not drive at all, because he could not drive, the vehicle was not
    his to drive, and the accused would not have entrusted the vehicle to him.

Mr. Gilberts
    evidence flowed in a logical fashion. He recalled details such as the precise
    location where he met the accused, near the McDonalds at St. Catherines and
    Papineau, the drugs each consumed, the type of cigarettes he provided to the
    accused, how much he paid the accused to drive him to Toronto, and many other
    important details. Mr. Gilbert did not exaggerate his evidence, and he was
    unshaken in cross-examination. He testified that there was no event with a
    prostitute, and that he did not enter the accuseds apartment. He was unshaken
    in cross-examination, on all of the key issues.

When his memory was refreshed on certain
    points, he readily admitted that he had forgotten certain things. For example
    he testified that he had no debts. When his statement to police was put to him,
    and specifically that he owed $200 and $500, he readily conceded that this was
    accurate. I find that the passage of time caused him to forget this detail. I
    found Mr. Gilberts evidence reliable.

[11]

She found that the evidence of the police
    officers describing Mr. Gilberts demeanour on arrest corroborated Mr.
    Gilberts evidence. Her analysis demonstrates that she was aware of the
    strengths and weaknesses of Mr. Gilberts evidence.

[12]

The trial judge concluded that the appellant was
    the driver of the stolen truck at all times, that he drove in a dangerous
    manner, failed to stop for police, and deliberately smashed through the marina
    gate, thereby committing mischief. He found that the appellant was, at the very
    least, a party to the theft of the pickup truck, but also found that the
    appellant stole the truck.

Arguments on appeal

[13]

The appellant argues that the trial judge
    misapprehended the evidence of Mr. Gilbert by failing to reconcile the finding
    that Mr. Gilbert did not drive with Mr. Gilberts evidence that at one point
    during the high speed chase, when Mr. Vining slammed on the accelerator and let
    go of the wheel, Mr. Gilbert said he grabbed the wheel and controlled the
    steering wheel for 20-25 seconds. He submits that Mr. Gilberts credibility was
    fatally undermined because Mr. Gilbert only mentioned for the first time at
    trial that he climbed back into the front seat during the chase and further
    undermined because Mr. Gilbert did not fully admit his past criminal conduct.
    Trial defence counsel did not suggest to the trial judge that these matters
    undermined Mr. Gilberts credibility. The appellant submits that the trial
    judge erred in inferring that Mr. Gilberts tablet went flying into the
    drivers side from the passenger side as a result of the forces exerted on the
    vehicle.

[14]

The appellant argues further that the trial
    judge failed to properly apply
R. v.

W.D.,
a requirement all the more acute when dealing with a
Vetrovec
witness who was high at the time of the events.

Analysis

[15]

Findings of credibility are entitled to
    deference. Watt J.A. explained in
R .v. Wadworth
, 2009 ONCA 716 at para. 66,

Resolution of credibility controversies is the
    daily fare of trial judges. Assessment of credibility is a difficult and
    delicate subject, often defying precise and complete verbalization. At bottom,
    belief of one witness and disbelief of another, in general or on a specific
    issue, is an alloy of factors, not a purely intellectual exercise.
The unique position of trial judges to see and hear witnesses,
    and the inestimable advantage they enjoy in the result in assessing witnesses
    credibility and the reliability of their evidence, cannot be squandered by
    unrealistic expectations of scientific precision in language used to describe
    the complex coalescence of impressions that effuse after watching and listening
    to witnesses and attempting to reconcile their renditions of critical events.
[Emphasis added, citations omitted.]

[16]

There was no misapprehension or uneven scrutiny of
    the evidence by the trial judge. The conclusions of which the appellant
    complains were all reasonably drawn from the evidence, and supported by
    detailed reasons. Mr. Gilberts evidence that he seized the steering wheel in a
    moment of panic when the appellant let go of it while flooring the accelerator
    could not reasonably be described as contradicting Mr. Gilberts own evidence
    that he did not drive. Mr. Gilbert was essentially homeless and carried all of
    his possessions with him; it is difficult to see how he could have had the
    means to drive. Mr. Vining had been driving and had had possession of the
    pickup since it was stolen.

[17]

Nor was there any misapprehension of the onus of
    proof, which was clearly stated and applied. The conclusion that the appellant
    had stolen the truck was reasonably open to the trial judge given her
    acceptance of Mr. Gilberts evidence that the appellant told him he had stolen
    the truck, and the appellants possession of the truck from the time it was
    stolen.

[18]

The appeal is accordingly dismissed.

J.C.
    MacPherson J.A.

G. Pardu
    J.A.

David
    Brown J.A.


