



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Semple, 2018 ONCA 630

DATE: 20180710

DOCKET: C61791

Doherty, MacPherson and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Andrew Semple

Appellant

K.Y. Tina Yuen and Cate Martell, for the appellant

Mabel Lai, for the respondent

Heard: July 5, 2018

On appeal from the conviction entered on December 4, 2015,
    by Justice Robert F. Scott of the Superior Court of Justice.

REASONS FOR DECISION

[1]

At the conclusion of the hearing, the court advised that the appeal was
    dismissed with reasons to follow. These are those reasons.

[2]

The appellant and his older cousin Aaron Knapman attended a party after
    a day of drinking. They left the party in Aarons van with Aaron driving and
    the appellant in the passenger seat. Both were intoxicated.

[3]

About 30 minutes later, the van spun off the highway and collided with
    an exit sign. The appellant was able to escape the van. He flagged down passing
    cars in an attempt to obtain help. To one of the drivers who pulled over, he
    yelled help me, help me Adams [
sic
] in the car in the passenger
    side. The driver attempted to help the appellant break a window to get into
    the van, but they were unsuccessful. The van caught fire and Aaron ultimately died
    in the flames.

[4]

The appellant made several false statements to bystanders and, later, to
    police. He denied any involvement in the accident and he asked several
    bystanders to drive him away from the scene. When the police approached him as
    he was sitting in a bystanders vehicle, the appellant said to the driver Im
    with you right? The driver had to clarify that that was not the case.

[5]

The appellant told another police officer on the scene that he had
    witnessed the accident from a cornfield beside the highway. Having observed
    that the appellant was injured and had no shoes on, the officer determined that
    the appellant had been in the vehicle at the time of the accident and arrested
    him. The appellant then maintained that he had seen the accident from the
    overpass, but when the officer asked him if his identification was still in the
    van, the appellant responded yes and then froze. It was at this point that the
    appellant admitted to being in the van, but maintained that he was not the
    driver.

[6]

A few hours after the accident, the appellant told a breathalyzer
    technician that he had only known Aaron for two months. Several hours after
    that, in a formal police interview, the appellant said that Aaron had been
    driving because he had not been drinking that night.

[7]

Aarons body was found in the wreckage in a seated position in the
    passenger seat. His cause of death was determined to be smoke inhalation.

[8]

The appellant was charged with impaired driving causing death and over
    80 causing death. The issue at trial was whether Aaron or the appellant was
    driving at the time of the accident. The Crowns theory was that sometime after
    leaving the party, Aaron and the appellant had changed places and at the time
    of the accident, the appellant was the driver.

[9]

At trial, an expert in accident reconstruction testified that, based on
    the position of Aarons body and his head being trapped in a fold in the roof
    line and door frame that had occurred on impact, Aaron was likely the passenger
    at the time of the accident. The expert could not, however, exclude the
    possibility that Aaron had either fallen or moved from the drivers seat to the
    passenger seat after the impact.

[10]

The
    appellant testified and offered a number of explanations for his false
    statements: that he did not want to face his family or Aarons family and he
    felt guilty that he could not save Aaron; that he was scared and in shock; that
    he did not know if Aaron was alive; and that he was only 18 years old. The
    defence relied principally on this first explanation for the appellants false
    statements.

[11]

After
    instructing himself on
R. v. W.(D)
, [1991] 1 S.C.R. 742, 63 C.C.C.
    (3d) 397 and acknowledging the appellants young age, intoxicated state and the
    physical and psychological trauma of the accident, the trial judge rejected the
    appellants denial that he was driving. The trial judge also rejected the appellants
    various explanations for the false and misleading statements he made to
    bystanders and the police following the accident.

[12]

The
    judge made clear that the evidence of the accident reconstructionist, on its
    own, was not sufficient to discharge the Crowns burden to prove its case
    beyond a reasonable doubt. Something more was required.

[13]

Later
    in his reasons, the trial judge noted that [s]ometimes an accused by a
    combination of his actions and his exculpatory statements also assist greatly
    the court in determining that the case has been proven by the Crown beyond a
    reasonable doubt. In the trial judges view, the appellants post-offence
    conduct supported an inference of guilt.

[14]

As
    a result, having rejected the appellants evidence and in reliance on the
    evidence that he did accept, the trial judge concluded that the only reasonable
    inference was that the appellant was the driver at the time of the accident. As
    a result, he was convinced beyond a reasonable doubt of the guilt of the
    accused.

[15]

The
    appellant raises three grounds of appeal.

[16]

First,
    he argues that the trial judge erred in inferring guilt from his disbelief of
    the appellant. In support of this submission, he points to comments made by the
    trial judge in his exchanges with counsel during the defence submissions at
    trial, which he says demonstrate the trial judges misunderstanding of the
    limited use he could make of his rejection of the appellants evidence.

[17]

In
    our view, these statements by the trial judge, when read in context, do not
    support the assertion that the trial judge inferred guilt from disbelief. In
    his reasons, the trial judge made clear that he understood that in order to
    convict, he not only had to reject the appellants testimony, but he had to
    find, on the evidence he did accept, that the Crown had proven beyond a
    reasonable doubt that the appellant was the driver. As a result, we reject this
    ground of appeal.

[18]

The
    second ground of appeal is that the trial judge erred in treating the appellants
    falsehoods as fabricated statements from which an inference of guilt could be
    drawn.

[19]

We
    disagree. The trial judge was alive to the requirement that there be
    independent evidence, apart from the evidence showing that the statements were
    false, that the appellant deliberately fabricated the statements.

[20]

The
    trial judge emphasized that the appellant continued to make false statements
    for many hours after the accident, including in his formal statement to police.
    It is clear from his reasons, read in the context of the record as a whole, that
    the trial judges finding of fabrication flowed from the evolution, timing and
    duration of the statements as well as the nature of the appellants deception. The
    record provides ample support for finding that the statements were not merely
    false, but fabricated for the purpose of escaping criminal liability. The
    appellants falsehoods evolved rapidly in lockstep with the shifting
    circumstances, they were inherently implausible, and their timing and duration
    evinced a deliberate effort to deceive.

[21]

As
    explained by this court in
R. v. McLellan
, 2018 ONCA 510, [2018] O.J.
    No. 2941, at paras. 47-49, the probative value of post-offence conduct must be
    determined by viewing the conduct as a whole and not in isolation. Viewed in
    this way, the appellants fabrications were capable of supporting the inference
    that the appellant was the driver of the vehicle at the time of the accident.
    The trial judge properly treated the fabrications as circumstantial evidence of
    guilt.

[22]

The
    final ground of appeal is that the verdict was unreasonable. In support of this
    submission, the appellant, in effect, repeats his submission that the post-offence
    conduct had little or no probative value. He also submits that the appellants
    guilt was not the only reasonable inference to be drawn from the evidence in this
    circumstantial case.

[23]

We
    disagree. The evidence of the accident reconstructionist combined with the
    appellants post-offence conduct, viewed in the context of the evidence as a
    whole, is such that a properly instructed trier of fact, acting judicially, could
    reasonably have concluded that the appellants guilt was the only rational
    inference that could be drawn. We see no basis to interfere.

[24]

In
    conclusion, therefore, the appeal is dismissed.

Doherty J.A.

J.C. MacPherson J.A.

Paul Rouleau J.A.


