





CITATION:
R. v.
Badhwar
, 2011
          ONCA 266



DATE: 20110406



DOCKET: C51563



COURT OF APPEAL FOR ONTARIO



Moldaver, Juriansz and Rouleau JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



Ravi Badhwar



Appellant



Vincenzo Rondinelli, for the appellant



Gregory J. Tweney, for the respondent



Heard: February 28, 2011



On appeal from conviction for criminal negligence causing
          death and failing to stop at the scene of an accident by Justice Bruce A.
          Glass of the Superior Court of Justice, sitting with a jury, dated October 3,
          2009 and from sentence imposed on December 3, 2009.



Moldaver J.A.:



[1]

The appellant was convicted of criminal negligence
    causing death while street racing contrary to s. 249.2 of the
Criminal Code
and failing to stop at the
    scene of an accident involving bodily harm that resulted in death contrary to
    s. 252(1.3)(b) of the
Criminal Code
.
    Both offences attract a maximum punishment of life imprisonment. The appellant
    was sentenced to 25 months imprisonment on the criminal negligence count (30 months
    less 5 months for time spent in pre-trial custody) and 12 months consecutive
    for the failing to stop count.

[2]

The appellant appeals against conviction and sentence.
    For reasons that follow, I would dismiss the appeal in its entirety.

CONVICTION APPEAL

[3]

The appellant raises the following four grounds of
    appeal against conviction:

(1)

The
    trial judge erred in precluding the appellant from testifying about a prior
    consistent statement he gave to the police on arrest.

(2)

The trial judge erred in leaving the appellants flight
    from the scene of the accident as circumstantial evidence from which the jury
    could infer guilt on the charge of criminal negligence.

(3)

The trial judge erred in failing to instruct the jury
    to treat the two counts in the indictment as separate and distinct.

(4)

The trial judge prejudiced the appellant in his
    instructions on the use the jury could make of his admission that he was the
    driver of a green Honda Civic on the day in question.

Overview of the Case and Position of Parties

[4]

On
    June 18, 2007, David Virgoe was killed when he drove his tractor trailer into a
    ditch after being struck by a car driven by Nauman Nusrat, a friend of the
    appellant. Prior to the accident, Mr. Nusrat and Prabhjit Multani, another
    friend of the appellant, had been street racing for more than 40 kilometers on
    a heavily travelled portion of Highway 400 due north of Toronto.  Witnesses called by the Crown variously
    described the Nusrat and Multani vehicles as reaching speeds of 170 km per
    hour, weaving in and out of heavy traffic, forcing drivers to brake quickly and/or
    take evasive measures to avoid being struck and generally driving with complete
    disregard for the lives and safety of other motorists. No issue is taken with
    the manner of their driving or the descriptions offered by the many Crown
    witnesses who observed it. Nusrat and Multani pleaded guilty to criminal
    negligence causing death while street racing and each was sentenced to
    imprisonment for 30 months.
[1]


[5]

As
    for the appellant, the issue at trial was whether he was an active third
    participant in the street racing, as the Crown maintained, or a mere onlooker,
    driving as safely as he could while trying to keep his friends in sight, as the
    appellant claimed.

[6]

In
    an agreed statement of fact, the appellant conceded that he was the driver of a
    green Honda Civic motor vehicle on Highway 400 in the morning of June 18,
    2007 and that he and his friends [Nusrat and Multani] were driving north to
    Wasaga Beach in separate vehicles.

[7]

Numerous
    Crown witnesses (9 or 10 in number) took note of the appellants vehicle and
    described it as one of the three vehicles they observed street racing. According
    to these witnesses, the appellants vehicle was seen weaving in and out of
    traffic, driving at speeds approaching 170 km per hour and cutting vehicles off
    as it proceeded north on Highway 400 to the point of the accident.

[8]

The
    appellant testified and denied that he was a participant in the street racing
    with Multani and Nusrat. In support of his position, he called several
    independent witnesses who were driving north on Highway 400 and who saw Nusrat
    and Multani street racing. Some of these witnesses remembered seeing a Honda,
    others did not. None could specifically recall seeing the Honda street racing.
    Two witnesses, who were passengers in the Multani and Nusrat vehicles, claimed
    that the appellant was not involved in street racing. A passenger in the
    appellants vehicle stated that at times he felt that the appellant was
    travelling too fast. On one occasion, he told the appellant that he [the
    appellant] had cut someone off. The appellant was not aware of having done so. The
    passenger remembered that the three vehicles were travelling together at times,
    but they were not together when the accident occurred. The appellant was some
    distance behind the tractor trailer when it was struck by Nusrats vehicle and
    went out of control.

[9]

Following
    the accident, the appellant stopped his vehicle. Witnesses gave conflicting
    evidence as to the length of time he remained at the scene. Some witnesses
    claimed he left within a few minutes; the appellant maintained that he stayed
    for about 20 or 25 minutes. According to the appellant, he was not permitted to
    get close to the area where the tractor trailer had come to rest. He also
    stated that various onlookers were acting aggressively towards him and his
    friends and some were shouting racial slurs. This prompted him to leave the
    scene.

[10]

The
    appellant agreed that he did not talk to a police officer at the scene, nor did
    he attempt to do so. Moreover, after leaving the scene, he took no steps to contact
    the police.

[11]

Several
    hours after the accident, the appellant was contacted by a police officer and
    asked to attend at the police station, which he did. It was then, for the first
    time, that he provided a statement to the police, some five hours after the
    accident. There was evidence that the appellant spoke to his friends at the
    scene and also by cell phone after the accident.

Ground One  admissibility of
    the appellants prior consistent statement to the police

[12]

Prior
    to the commencement of the trial, defence and Crown counsel agreed that if the
    appellant conceded that he was the driver of the green Honda Civic, the Crown
    would not hold a
voir dire
to
    determine the admissibility of the appellants statement to the police, nor
    would the Crown seek to tender it in evidence. The appellant, it seems, did not
    want his statement introduced into evidence; nor did he want it available to
    the Crown for cross-examination purposes. Indeed, the appellant made it clear
    that if the Crown sought to have his statement admitted into evidence, he would
    argue that it was obtained in violation of his rights under s. 10(b) of the
Charter
and seek to have it excluded
    under s. 24(2) of the
Charter
.

[13]

Part
    way through the trial, the appellant had a change of heart. He sought
    permission from the trial judge to cross-examine one of the arresting officers
    to establish that he [the appellant] had given a statement to the police and to
    elicit its contents. In return, he undertook to testify and subject himself to
    cross-examination.

[14]

The
    trial judge refused the appellants request. He did so on the basis of established
    authority from this court holding that subject to certain limited exceptions (none
    of which applied here) an accused could not lead evidence of his or her prior
    consistent statement to the police.

[15]

In
    his ruling, the trial judge made it clear that if the appellant testified, he
    was not to mention the fact that he had given a statement to the police, nor
    was he to mention its contents. Despite that ruling, while giving evidence in-chief,
    the appellant told the jury that on the day of the collision, he attended the
    police station and spoke to the police for about an hour. The Crown objected and
    in the absence of the jury, the appellant was warned not to breach the trial
    judges ruling again.

[16]

On
    appeal, the appellant submits that the trial judge erred in not allowing him to
    disclose the contents of his police statement to the jury. He relies on this
    courts recent decision in
R. v. Edgar
(2010), 101 O.R. (3d) 161, which he acknowledges was not decided at the time of
    his trial.

[17]

Edgar
stands for the proposition that it is open to
    a trial judge to admit an accuseds spontaneous out-of-court statements made
    upon arrest or when first confronted with an accusation as an exception to the
    general rule excluding prior consistent statements as evidence of the reaction
    of the accused to the accusation and as proof of consistency, provided the
    accused takes the stand and exposes himself or herself to cross-examination.  The statement does not go in for its truth
    (unless it is otherwise admissible as original evidence) but is evidence of
    the reaction of the accused, which is relevant to the credibility of the
    accused and as circumstantial evidence that may have a bearing on guilt or
    innocence.  (See
Edgar
at para. 72).

[18]

The
    proposition of law stated in
Edgar
must be assessed against the factual backdrop of that case. In
Edgar
, the accused was literally caught
    by the police in the act of stabbing his girlfriend. At para. 76 of the
    decision, Sharpe J.A. described the statements that Edgar wished to have
    admitted into evidence as follows:

The first two statements were
    spontaneous and made within minutes of the appellants arrest for murder. The
    appellant was in a highly agitated state and he had little time to think or to
    fabricate a story
.
While the third statement was made four
    hours after the arrest
, it was made at a time when the appellant was in the
    hospital recovering from the injuries he had sustained in the altercation and
the third statement was really a
    continuation of the first two statements
. In my view, the appellants three
    out-of-court statements may fairly be described as statements made by an
    accused person upon his arrest and upon being first confronted with the
    allegation of murder. [Emphasis added.]

[19]

In
    the circumstances, Sharpe J.A. found that while testifying, Edgar should have
    been permitted to inform the jury of the contents of those statements in their
    entirety and the trial judge had erred in holding that only parts of them were
    admissible. Nonetheless, Sharpe J.A. concluded that the error was harmless
    in the circumstances, primarily because the probative value of the excluded
    statements was low. In this regard, at para. 81, he noted that:

(1)

There
    was nothing in the excluded statements that was not already in Edgars
    evidence;

(2)

The
    jury was aware of the incoherent portions of Edgars statements, thereby
    reducing if not eliminating the risk that without knowing anything about what
    [Edgar] said upon arrest, the jury might have drawn an adverse inference on
    account of the evidence being excluded;

(3)

The
    primary reason Edgar wanted the statements to be admitted was to show his
    confused and agitated state of mind to support his real defences to murder,
    namely automatism and lack of intent. That evidence was admitted; and

(4)

The
    excluded portions of the statements were relevant to the defence of
    self-defence which, in the circumstances was tenuous at best.

[20]

In
    concluding that Edgar should have been permitted to inform the jury of the
    contents of his statements, Sharpe J.A. placed considerable emphasis on their
    spontaneity and the fact that they were made before he had time, in the words
    of Sir Rupert Cross, to think things out. (See para. 48 of
Edgar
and the quote from
Evidence
, 4
th
ed. (London: Butterworths,
    1974), at p. 218).  At para. 69, Sharpe
    J.A. observed that when spontaneity is lacking, the statements may be either
    excluded or, in the case of doubt, made the subject of an instruction to the jury
    as to weight by the trial judge.

[21]

That
    brings me to the statement of the appellant. Whatever else may be said about
    it, it can hardly be characterized as spontaneous.  The appellant had five hours to consider his
    position and think things out before going to the police station. He also had
    the opportunity to speak to his friends after the accident, either directly or
    by cell phone, before speaking to the police.

[22]

In
    these circumstances, if the trial judge had had the benefit of
Edgar
, I believe he would likely have
    excluded the appellants statement for lack of spontaneity. But even if the
    statement had been admitted, in my view, its probative value would have been minimal
    due to its lack of spontaneity. The appellants reaction upon being confronted
    with an accusation that he knew was coming and that he had had five hours to
    think about was not likely to be of much value to the jury. Bearing that in
    mind, as well as the fact that the statement contains nothing that the
    appellant did not tell the jury in his testimony, I am satisfied that the
    verdict would inevitably have been the same had the appellant been permitted to
    inform the jury of his statement to the police. In this respect, I note that
    the jury was aware that the appellant spoke to the police for about an hour
    when he was arrested. He told them so in his examination-in-chief, albeit in
    contravention of the trial judges ruling. While the jury may have wondered
    what he told the police, they did not see the Crown cross-examining him on any
    inconsistencies in his statement.  Obviously,
    the Crown could not have done so but the jury would not have known that.  Hence, the jury would have had no reason to
    believe that the appellants evidence differed from what he told the police.

[23]

Accordingly,
    I would not give effect to this ground of appeal.

Ground Two - The appellants flight from the scene

[24]

The
    appellants flight from the scene was central to the jurys assessment of the
    failing to stop charge. Apart from its importance on that charge, the trial
    judge also left it as evidence from which the jury could infer guilt on the
    charge of criminal negligence causing death. He did so however, in the most benign
    terms.

[25]

Specifically,
    the trial judge made it clear that flight was but one piece of evidence the
    jury could consider, along with all of the other evidence, in deciding whether
    the Crown had proved its case against the appellant. Moreover, in the context
    of that instruction, the trial judge impressed on the jury the importance [of]
    evidence that offers other explanations for this conduct
.
The trial judge then reminded the jury of the appellants evidence that he did
    not think he was a part of the accident but that he stayed for 20 to 25 minutes
    nonetheless until people in the area began expressing insults and threats to
    his group. It was only then that he decided to leave. The trial judge followed
    that review with the following sharp warning:

You
    must not use this evidence about what [the appellant] did or said afterwards in
    deciding or helping you decide that [he] committed these offences
unless you reject any other explanation for
    it.
[Emphasis added.]

[26]

Contrary
    to the appellants submission, I think it was proper for the trial judge to
    leave evidence of flight as circumstantial evidence from which the jury could
    infer guilt. No objection was made to the impugned instruction at trial  for
    good reason in my view.

[27]

The
    appellant maintained that he was not a party to his friends street racing and
    that he was driving as safely as he could in the circumstances. At worst, he
    may have been guilty of some minor
Highway
    Traffic Act
infractions. The Crown, on the other hand, took the position
    that the appellant was an active participant in the street racing. Against that
    backdrop, the jury was entitled to ask what a person driving, as the appellant
    claims he was, would have done after the accident, and to compare it to what he
    did, or did not do, bearing in mind his explanation for leaving the scene when
    he did.  That is precisely the type of
    common sense reasoning we expect of juries. And the use of flight in these
    circumstances as after-the-fact conduct capable of proving guilt finds support
    in this courts jurisprudence (see
R. v.
    Baker
(2006), 81 O.R. (3d) 276 and
R.
    v. Phillips
(2005), 193 O.A.C. 322).

[28]

In
    oral argument, we queried whether the trial judge should have told the jury
    that while evidence of flight could be used in deciding the manner of the
    appellants driving, it could not be used to differentiate between the crimes
    of criminal negligence causing death and dangerous driving. For reasons that
    follow, I need not finally decide the issue. In this case, if the jury was
    satisfied that the appellant was an active third participant in street racing,
    his fate on the charge of criminal negligence was effectively sealed. No jury
    acting reasonably could have convicted him of a lesser offence.  Hence, even if the trial judge should have
    differentiated between the crimes of criminal negligence causing death and
    dangerous driving in his instructions on flight, the error was harmless and
    occasioned no substantial wrong or miscarriage of justice.

[29]

Accordingly,
    I would not give effect to this ground of appeal.

Ground Three - treating the two counts in the indictment
    as separate and distinct

[30]

The
    trial judge did not specifically instruct the jury to treat the two counts in
    the indictment as separate and distinct; nor did he warn the jury that a
    finding of guilt on one count could not be used as evidence of guilt on the
    other. The appellant submits that this failing created [a] risk that the jury
    would impermissibly apply evidence across counts, especially in view of the
    after-the-fact conduct instruction which effectively encouraged rather than
    cautioned the jury from using evidence on a particular count to influence its determination
    of another count.

[31]

I
    would not give effect to this ground of appeal. It was not raised at trial and
    has no practical application to the facts of this case.

[32]

The
    jury heard all of the evidence relevant to both counts. This is not a case in
    which the jury was exposed to evidence of an unrelated event involving discreditable
    conduct on the part of the appellant. Moreover, as I have explained, the
    appellants after-the-fact conduct  in this case flight  was a relevant
    consideration for the jury in assessing whether the appellants driving reached
    the level of criminal conduct.

[33]

Importantly,
    the trial judge separated the two offences in his charge and provided specific
    instructions to the jury on each. He properly explained the elements of the two
    offences and pointed the jury to the evidence they could consider in deciding
    whether those elements had been met. The trial judge also explained the
    position of the parties in relation to each of the counts and instructed the
    jury that the onus rested with the Crown to prove the appellants guilt on each
    count to the criminal standard. Finally, the trial judge made it clear that the
    jury was to return a separate verdict for each count.

[34]

In
    the circumstances, nothing more was required. An instruction along the lines
    now sought by the appellant would, in my view, have been more confusing than
    helpful to the jury.

Ground Four  the use of the appellants admission

[35]

Part
    way through the trial, Crown counsel expressed a concern, in the absence of the
    jury, that the appellant was backing away from his admission that he was the
    driver of the green Honda Civic on the day in question. As the record
    discloses, this comment generated a lively debate between Crown and defence
    counsel and some pointed remarks from the trial judge. When the dust settled,
    it seems that everyone was satisfied that the appellant was not backing away
    from his admission but merely asking that it be construed in a somewhat narrower
    fashion than the Crown had perhaps anticipated.

[36]

Be
    that as it may, in his charge to the jury, after discussing the matter with
    counsel, the trial judge provided the following instruction:

In
    effect, the admissions in Exhibit One confirm that Mr. Badhwar was the
    driver of the third vehicle. Although he testified that some driving described
    by other witnesses was not his driving, I direct that you do not take that
    statement to mean that he was not driving the third vehicle. When an admission
    is made, it is not to be changed during the trial.

However,
    Mr. Badhwar did not agree with how various Crown witnesses described the
    driving of the third vehicle. You are entitled to consider all the evidence
    describing the way the third vehicle, i.e. the green Honda Civic was driven and
    how it moved on the highway.

[37]

Defence
    counsel at trial [not Mr. Rondinelli] had only one complaint about that
    instruction. He urged the trial judge not to tell the jury that when an
    admission is made, it is not to be changed during the trial. Counsel believed
    that an instruction of that nature was unnecessary and he was concerned that
    the jury might take from it that the appellant had tried to go back on his
    admission.

[38]

On
    appeal, the appellant did not press this ground. He accepts that the trial
    judge left it to the jury to decide how the green Honda was being driven, bearing
    in mind the differing versions given by the appellant and his witnesses and the
    witnesses called by the Crown. That is
all the
appellant wanted. It was never his position that there was a second phantom
    Honda Civic that was either road racing with his friends or otherwise driving in
    a criminally negligent manner.

[39]

As
    for the concern raised by the appellants trial counsel, the wording used by
    the trial judge was general in nature and I am not persuaded that the jury
    would have taken from it that the appellant was trying to back away from his
    admission.

[40]

Accordingly,
    I would reject this ground of appeal.

SENTENCE APPEAL

[41]

The
    appellant seeks to have his sentence of 30 months (
less
5 months for time spent in pretrial custody) on the charge of criminal
    negligence causing death reduced to 23 months. At the same time, he asks that his
    sentence of 12 months consecutive for failing to stop at the scene of an
    accident be increased to 19 months (
less
5 months for
    spent in pretrial custody). In other words, the appellant does not seek a
    reduction of his global sentence of 37 months; he merely seeks to realign the
    numbers in order to circumvent the provisions of the
Immigration and Refugee Protection Act,
S.C. 2001, c. 27 that prevent
    him from appealing, as of right, the deportation order he is facing as a result
    of his conviction and sentence on the charge of criminal negligence causing
    death.

[42]

In
    support of his position, the appellant has filed fresh evidence, with the
    consent of the Crown, outlining his present circumstances, his present
    situation regarding employment and his future education plans. In seeking to
    have his sentence adjusted, the appellant does not suggest that the trial judge
    erred in imposing a penitentiary sentence on the charge of criminal negligence
    causing death  nor could he. This court imposed a 30 month sentence on Mr.
Nusrat
for the offence of criminal negligence causing death
    while street racing (2009), 239 C.C.C. (3d) 309 and upheld a 30 month sentence for
    that offence in respect of Mr.
Multani
(2010), 261
    O.A.C. 107

[43]

Significantly,
    in Multanis case, the court refused to give effect to Mr. Multanis submission
    that the sentence of 30 months should be reduced to 23 months for reasons
    relating to his immigration status. At para. 3 of the decision, the court noted
    that while the deportation consequences of the sentence may be a proper factor
    to consider in determining the appropriate sentence in certain cases,
    immigration consequences cannot take a sentence out of the appropriate range.

[44]

That
    principle applies equally to the appellant. In his case, somewhat ironically,
    he seeks to benefit from the fact that he was convicted of two offences and
    therefore can seek the adjustments he is requesting without interfering with
    the overall length of his sentence  something Mr. Multani could not do given
    that he was only convicted of the single offence of criminal negligence causing
    death.

[45]

No
    matter how one chooses to come at the issue, the bottom line remains the same.
    Courts ought not to be imposing inadequate or artificial sentences at all, let
    alone for the purpose of circumventing Parliaments will on matters of
    immigration.

[46]

The
    30-month penitentiary sentence imposed on the appellant for the offence of
    criminal negligence causing death while street racing was not unfit; indeed, if
    anything, I think it was lenient.

[47]

Accordingly,
    I would grant leave to appeal sentence but dismiss the appeal.

CONCLUSION

[48]

In
    the result, I would dismiss the appeal from both conviction and sentence.


Signed:           M. J. Moldaver J.A.


 I
agree R. G. Juriansz J.A.

I
    agree Paul Rouleau J.A.





[1]
Nusrat initially received a conditional
    sentence of 2 years less 1 day but his sentence was raised to 30 months
    imprisonment on appeal.
(
R.
    v.
Nusrat
(2009), 239 C.C.C. (3d) 309 (Ont.
    C.A.).


