



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rawn,
    2015 ONCA 396

DATE: 20150604

DOCKET: C59940

Watt, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Rawn

Appellant

Joseph Di Luca, for the appellant

Amy Alyea, for the respondent

Heard: April 28, 2015

On appeal from the convictions entered on October 3, 2013
    and the sentences imposed on October 31, 2014 by Justice Jane Ferguson of the Superior
    Court of Justice, sitting without a jury.

Watt J.A.:

[1]

Daniel Rawn claimed it was Steve who caused the accident. Ran into a
    pick-up truck parked on the boulevard in front of a house. Right after the
    accident, Steve disappeared. Vanished into the mists of a mid-October night
    in Collingwood. Never to be seen or heard from again.

[2]

Rawn was in the car. A passenger, so he said. But a passenger whom a
    witness saw get out of the drivers door of the car immediately after the
    accident. No choice, Rawn said. The passenger door was too badly damaged to
    open.

[3]

Rawn did not say anything to the police about Steve. So the police
    charged Rawn with possession of stolen property (the car) and several driving
    offences. Some alcohol related, others not.

[4]

Rawn had a trial. He told the judge that Steve, not he, was the
    driver. The judge did not believe Rawns story about Steve. But in explaining
    the reasons for her disbelief, the judge made some mistakes. About the
    character of the defence and an adverse inference permitted by statute. What is
    left to decide is whether the evidence against Rawn was so overwhelming that no
    substantial wrong or miscarriage of justice occurred despite the errors in the
    trial judges analysis of Rawns testimony.

[5]

As I will explain, I am satisfied that the case against Rawn was so
    overwhelming that a reasonable and properly instructed trier of fact would
    inevitably have convicted him of the offences with which he was charged. I
    would dismiss the appeal.

THE BACKGROUND FACTS

[6]

The case for the Crown at trial was that Rawn was the driver of the
    vehicle. He knew it was stolen. He was impaired and disqualified from driving
    at the time of the accident.

[7]

The case for the defence relied on Rawns testimony that, although
    impaired and disqualified from driving, he was not the driver when the accident
    occurred. Steve was the driver. The appellant was a front seat passenger.

[8]

The relevant facts are brief.

The Theft

[9]

The car involved in the collision was stolen from a residential driveway
    a few blocks away from the accident site a few hours earlier.

The Collision and its Aftermath

[10]

Early
    in the morning of October 14, 2011, the stolen car crashed into a truck.  Within
    minutes, the appellant emerged from the drivers door of the car and began to
    walk away.

[11]

The
    truck owners next door neighbour heard the crash. He immediately rushed to his
    front door. He looked outside and saw that a car had struck his neighbours
    truck and pushed it away from its usual parking spot. He saw the appellant emerge
    from the drivers door of the car and leave the scene.

[12]

When
    the appellant broke into a run, the neighbour gave chase. He easily caught up
    to the appellant. The neighbour escorted the appellant back to the damaged
    vehicles. The neighbours wife called the police.

The Police
    Response

[13]

A
    police officer responded to the call. She asked those assembled, including the
    appellant, who was the driver of the vehicle? One or more of those at the
    scene pointed towards the appellant. Within seconds of the question being
    asked, the appellant raised his hand and said: Me, Dan Rawn. He was arrested.

The Appellants Condition

[14]

When
    arrested by the police, the appellant was intoxicated. He was also bound by a
    driving prohibition that disqualified him from operating a motor vehicle.

The Breath Test

[15]

At
    the police station, an officer made a breathalyzer demand of the appellant, who
    refused to supply a breath sample.

The
    Appellants Account

[16]

The
    appellant testified at trial. He said he was a passenger in the car, not the
    driver. He got out of the car by the drivers door because he could not open
    the passenger door due to the damage caused by the collision.

[17]

The
    appellant said the driver of the car was a man named Steve, a person he had
    seen around local bars about six times in the preceding five years. The
    appellant had seen Steve in a bar shortly before the accident. Steve wanted
    a tattoo, a request he had made of the appellant (a tattoo artist) on several
    previous occasions. The appellant had declined Steves earlier requests
    because Steve was always drunk. This time, however, Steve was not impaired.
    The appellant agreed to do the tattoo, even though he had consumed nearly a
    dozen beers.

[18]

The
    appellant got into Steves car. Steve drove them to the appellants
    mothers house to pick up the tattoo equipment. The appellant put the equipment
    in the back of Steves car. The men headed towards Steves place in Barrie.
    Their trip was interrupted by the collision. When the appellant got his
    bearings after the collision, Steve was gone and never reappeared.

The Reasons of
    the Trial Judge

[19]

The
    trial judge gave oral reasons for judgment the day following the submissions of
    counsel. She did not believe the appellants testimony. She accepted the
    evidence of the neighbour and the investigating officer. She accepted that the
    appellant had responded to the investigating officers question about who had
    been driving the car by raising his hand and speaking his name. She found that
    this was confirmatory of the appellant being the driver. She drew an adverse
    inference from the appellants running from the scene.

THE GROUNDS OF APPEAL

[20]

The
    appellant submits that the trial judge erred in law:


i.

in characterizing the appellants defence, that Steve was the driver
    of the car, as an alibi, the late disclosure of which supported an adverse
    inference against the appellant and amounted to positive evidence of guilt;


ii.

in using the statutory adverse inference in s. 258(3) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, as an item of evidence to prove that the
    appellant was the driver of the car; and


iii.

in making impermissible use of the appellants abysmal criminal record
    in reaching her determination of guilt.

In my view, the trial judge committed all three
    errors. However, and as I mentioned before, I would dismiss the appeal. The evidence
    was so overwhelming that there was no realistic possibility that a new trial
    would have led to a different outcome.

Ground #1: The Alibi Ground

[21]

Three
    brief excerpts from the trial judges reasons fairly represent her
    characterization of the appellants defence as an alibi and her treatment of
    it:

The ridiculous made-up alibi with late disclosure and no
    details about this Steve guy who was never mentioned to the police.



With respect to what is essentially an alibi, the Steve driver
    issue, there was never any disclosure to the police at any time. Apparently it
    was only disclosed at the judicial pre-trial held, I believe, in June of 2013.
    No last name, a generic description, no known address were provided. I agree
    that the details were meaningless. An investigation wasnt possible.



Again, Ive already found that this alibi  I dont believe the
    alibi, and although its not necessary in this case, I also draw an inference
    with respect to this alibi evidence, the late disclosure, and the lack of
    detail about this Steve individual.

[22]

The
    appellant denied that he was the driver of the car. However, he admitted that
    he was in the car when the collision occurred. In the passenger seat, not the
    drivers seat. His acknowledged presence at the scene when the offence was
    committed was not an alibi. He was there. He was not elsewhere.

[23]

The
    Latin word alibi means elsewhere. It is an assertion that when the alleged
    unlawful conduct took place, the person charged with it was elsewhere, and thus
    it was impossible for him or her to have committed the offence:
R. v.
    Gottschall
(1982), 10 C.C.C. (3d) 447 (N.S. S.C. (A.D.)), at p. 455. Alibi
    evidence must be determinative of the final issue of guilt or innocence of an
    accused:
R. v. Sgambelluri
(1978), 43 C.C.C. (2d) 496 (Ont. C.A.),
    leave to appeal to S.C.C. refused (1978), 43 C.C.C. (2d) 496, at p. 500. The
    defence advanced here did not shift the factual focus from the facts alleged by
    the Crown to an entirely different factual scenario:
R. v. Wright
,
    2009 ONCA 623, 247 C.C.C. (3d) 1, at para. 19.

[24]

Mischaracterization
    of the appellants position at trial as a defence of alibi led the trial judge
    into a second error. She drew an adverse inference against the appellant from
    his failure to disclose his alibi in a timely manner. No legal basis existed
    for her to do so. No alibi. No adverse inference from failure of early
    disclosure of the alibi.

[25]

A
    final point about the misuse of the alibi. The comment the ridiculous made-up
    alibi comes uncomfortably close to converting disbelief of an alibi to proof
    of its concoction. No shortage of precedent forecloses this line of reasoning.

Ground #2: The Adverse Inference from Refusal to Comply

[26]

The
    appellant refused to comply with a valid breathalyzer demand made of him at the
    police station after he had been taken there from the scene of the accident.

[27]

The
    trial judge referred to the provisions of s. 258(3) of the
Criminal Code
,
    which permit a court to draw an inference adverse to an accused from his or her
    failure or refusal to comply with a breathalyzer demand under s. 254. The judge
    said: Although not necessary to draw an inference as Im already satisfied
    beyond a reasonable doubt without drawing the inference, I draw this inference
    in this case.

[28]

Section
    258(3) permits, but does not require a court to draw an inference adverse to
    the accused from a failure or refusal of an accused to comply with a
    breathalyzer demand without reasonable excuse. The section applies only to
    specified alcohol-driving offences. It does not apply in prosecutions for
    driving while disqualified or prohibited or to prosecutions for possession of
    stolen property.

[29]

A
    trier of fact is entitled to draw inferences from circumstantial evidence, as
    for example from the refusal of a person accused of crime to participate in
    certain investigative procedures: John Henry Wigmore,
Evidence in Trials at
    Common Law
, Vol. II, revised by James H. Chadbourn (Toronto: Little, Brown
    and Company, 1979), at pp. 120-122. At common law, a refusal was considered to
    be evidence of consciousness of guilt:
Wigmore
, at pp. 120-121.

[30]

Section
    258(3) represents a codification of the common law principle in a defined set
    of circumstances. A breathalyzer is a device that measures blood-alcohol
    concentration by an analysis of samples of breath. A demand made under s. 254
    makes clear the purpose of the test. The results of the test establish the
    concentration, if any, of alcohol in the blood of the person who provides the
    sample. And in its turn, the blood-alcohol concentration may establish or help
    to establish an essential element of an alcohol-driving offence.

[31]

Like
    other statutory provisions that permit a court to draw an adverse inference, s.
    258(3) does not show its hand to reveal the precise adverse inference it has in
    mind. The inference, like any inference from circumstantial evidence, must be
    logical and reasonable, not illogical or speculative. On this basis, the
    adverse inference permitted by s. 258(3) must be concerned with impairment and
    an accuseds state of mind on that issue. It is not a reasonable and logical
    inference from refusal to provide a breath sample that the person who refused
    was the operator or had the care or control of a motor vehicle.

[32]

The
    only issue at trial in this case was whether Crown counsel had proven beyond a
    reasonable doubt that the appellant was the person driving the stolen vehicle
    at the time of the collision. On that issue, no reasonable and logical
    inference could arise from his refusal to comply with a breathalyzer demand.
    Refusal to provide a breath sample on demand does not make it more or less
    likely that the person who refused, in this case the appellant, had care or
    control of the stolen vehicle at the time of the collision.

[33]

The
    only issue on which the adverse inference of s. 258(3) could assist the Crown
    in its proof was not an issue at trial. Counsel acknowledged that the appellant
    was impaired. Although the trial judge did not expressly say how she used the
    adverse inference, it seems reasonable to conclude that she used it on the
    single issue that was in controversy at trial  the identity of the driver. She
    erred in doing so.

Ground #3: Misuse of the Appellants Criminal Record

[34]

In
    her reasons for judgment, the trial judge made reference to the appellants
    abysmal criminal record, which had been filed as an exhibit.

[35]

The
    appellants criminal record, whether filed as an exhibit or simply put to him
    when he testified as a witness, was admissible for a limited purpose. It was a
    factor for the trial judge to consider, one of many, in assessing the
    credibility of the appellant as a witness at trial and the weight to assign to
    his evidence.

[36]

The
    reasons of the trial judge do not disclose, either in express terms or by
    necessary implication, that she confined her use of the appellants criminal
    record, which included multiple convictions for cognate offences, to her
    assessment of the appellants credibility and the weight to be assigned to his
    evidence.

The Effect of the Errors

[37]

Not
    every error in a criminal trial warrants appellate intervention. Some do.
    Others do not. Errors of law are not always fatal. Under s. 686(1)(b)(iii) of
    the
Criminal Code
, convictions can be upheld despite errors of law
    provided the error has not resulted in a substantial wrong or miscarriage of
    justice:
R. v. Van
, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34.

[38]

The
    burden of showing an appellate court that the proviso of s. 686(1)(b)(iii)
    should be applied and the conviction sustained despite the error rests on the
    Crown:
Van
, at para. 34. Two categories of error may be saved by the
    proviso. An error may be so minor or harmless that it could not have had any
    impact on the verdict. A second category consists of serious errors, which
    would otherwise justify a new trial or acquittal, except that the evidence
    against the appellant is so overwhelming that any other verdict would have been
    impossible to obtain:
Van
, at para. 34. Where the evidence against an
    accused is so powerful and no realistic possibility exists that a new trial
    would yield a different result, the proviso should be applied to avoid the cost
    and delay of further proceedings:
Van
, at para. 36; and
R. v.
    Jolivet
, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 46.

[39]

This
    was a simple case. The only issue was whether Crown counsel had proven beyond a
    reasonable doubt that the appellant was the driver of the stolen car that
    struck the parked truck. Defence counsel acknowledged at trial that convictions
    should follow on all counts upon proof beyond a reasonable doubt that the
    appellant was the driver of the car.

[40]

The
    evidence that the appellant was the driver of the car was overwhelming. He
    emerged from the drivers side within at most a couple of minutes of the
    collision. There was no evidence of anyone else in the immediate vicinity of
    the vehicle. He attempted to flee the scene, but was stopped by a neighbour. The
    circumstances of the accident were suggestive of a driver with compromised
    abilities: the car struck a pick-up truck parked on the boulevard off the
    travelled portion of the roadway. The appellant was impaired. When a police
    officer asked who had been the driver of the car, the appellant put up his hand
    and said Me, Dan Rawn.

[41]

The
    trial judge described the requirements of
R. v. W.(D.)
, [1991] 1 S.C.R.
    742, and proceeded to consider whether she believed or had a reasonable doubt
    about the appellants denial of liability. She did not believe the appellant. His
    evidence raised no reasonable doubt about his guilt. She relied upon the
    testimony of the neighbour who saw the appellant get out of the car, the truck
    owner and the investigating police officer. It was only after these findings
    that the trial judge referred to:


i.

the alibi and its late disclosure;


ii.

the adverse inference in s. 258(3) of the
Criminal Code
; and


iii.

the appellants abysmal criminal record.

[42]

The
    trial judges reasons reveal the errors of law advanced by the appellant. That
    said, the reasons make it clear that she was satisfied beyond a reasonable
    doubt about the appellants guilt without drawing the adverse inference for
    which s. 258(3) provides. She also made it clear that she had already rejected
    the appellants alibi and that drawing an adverse inference from late
    disclosure was not necessary in this case. The statement about the
    appellants abysmal criminal record must also be read in light of her
    apparently correct use of the criminal record of a Crown witness.

[43]

On
    any objective analysis, the Steve as driver story would not give pause to
    even the most gullible assessor. The appellant, a drunken tattooist, happens
    upon Steve, sober for the first time in the appellants experience. Steve
    wants a tattoo. They decide to drive to Barrie to do the tattoo. Steve has a
    car, which he crashes into a pick-up truck parked on the boulevard in front of
    a house. Then Steve disappears so quickly that a witness with an unobstructed
    view of the accident scene within seconds sees only the appellant emerging from
    the drivers door of the vehicle.

CONCLUSION

[44]

Despite
    several errors in the trial judges reasons, I am satisfied that the
    appellants convictions should be affirmed. The evidence against him was so overwhelming
    that there is no realistic possibility that a new trial would produce a
    different result.

[45]

For
    these reasons, I would dismiss the appeal from conviction. The appeal from
    sentence is dismissed as abandoned.

Released: June 4, 2015 (D.W.)

David
    Watt J.A.

I
    agree S.E. Pepall J.A.

I
    agree M.L. Benotto J.A.


