





CITATION:
R. v. Kippax, 2011
          ONCA 766



DATE: 20111207



DOCKET: C52666



COURT OF APPEAL FOR ONTARIO



Watt, Epstein and Karakatsanis JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Alan Kippax



Appellant



Christopher Hicks and Kristin Bailey, for the appellant



Joanne Stuart, for the respondent



Heard:  September 29, 2011



On appeal from convictions of dangerous driving causing death
          and two counts of dangerous driving causing bodily harm entered by Justice Deena
          F. Baltman of the Superior Court of Justice, sitting without a jury, on
          October 27, 2009 with reasons reported at 89 M.V.R. (5th) 51.



Watt J.A.:



[1]

Alan Kippax (the appellant or Alan) appeals three convictions for
    dangerous operation of a motor vehicle arising out of an accident in which one
    person died and two others were seriously hurt. The car Alan Kippax was driving
    was not a vehicle in which anyone died or was injured, or a vehicle that
    collided with any other vehicle.

[2]

Alan Kippax contends that the trial judges finding on causation was
    flawed because she failed to consider relevant evidence, engaged in speculation
    and made unwarranted findings of fact about tandem driving and foreseeability
    of harm. The appellant also says that the trial judge was wrong when she
    refused to permit him to re-open his case after the verdict to adduce evidence
    the appellant discovered after conviction but prior to sentence that would have
    impeached the credibility of a critical prosecution witness.

[3]

At the conclusion of argument, we dismissed the appeal, for reasons to
    follow. We now provide those reasons.

THE BACKGROUND FACTS

[4]

A brief description of the circumstances underpinning
    the prosecution of the appellant is sufficient at the outset. Further detail
    can await discussion of the specific grounds of appeal.

The Principals

[5]

Alan and Peter Kippax were cousins. In June 2006
    Peter had recently arrived from London, England.  He lived with Alan in
    Brampton. Alan was about 40 years old.

The Scene

[6]

On the evening of June 3, 2006, drizzle fell in
    Mississauga. The road surface around the intersection of Mavis Road and
    Eglinton Avenue West, two main thoroughfares, was wet. The intersection is
    controlled by traffic lights. The speed limit on Mavis Road, south of the
    intersection, is 60 kilometers per hour, but it increases to 70 kilometers per
    hour north of the intersection.

[7]

A clearly marked right turn lane permits
    northbound traffic on Mavis Road to proceed east on Eglinton. Westbound traffic
    on Eglinton can utilize a similar lane on Eglinton to turn right and proceed north
    on Mavis Road. A merge lane on the east side of Mavis, 120 meters long, allows
    westbound traffic from Eglinton to turn north on Mavis and merge into the more
    easterly lane for northbound traffic on Mavis.

The Accident

[8]

At about 8:30 p.m. on June 3, 2006 Alan and
    Peter were driving north on Mavis Road, returning to Alans home after dinner.
    Alan was driving a Mercedes. Peter drove a Porsche, a vehicle that he had just acquired,
    one that had been salvaged twice previously and repaired with stolen parts.

[9]

At the intersection of Mavis Road and Eglinton
    Avenue West, Alan pulled into the right turn lane on Mavis. Peter was right
    behind him. Neither intended to turn right at the intersection. Both cousins
    accelerated at the change of light. They drove through the intersection into the
    northbound merge lane on Mavis. Alan, in the lead car, cut left into a
    northbound lane. Peter followed suit, but the Porsche spun out of control,
    crossed into the southbound lanes on Mavis and struck a Pontiac Sunfire. Mark
    Radman-Livaja was driving the Sunfire with his fiancée, Alison Hickey, beside
    him in the front passenger seat.

[10]

Peter died instantly. Mark Radman-Livaja and
    Alison Hickey survived, but suffered serious injuries.

[11]

Alan left the scene of the accident. He
    continued northbound on Mavis Road, entered a side-street and viewed the
    accident scene from his car. Another motorist pointed out Alans Mercedes to
    police who responded to the accident scene.

The Investigation

[12]

The police investigation of the crash did not
    include an accident reconstruction.  The available technology could not
    determine the speed of Peters Porsche immediately prior to or on impact,
    although several witnesses gave wide-ranging estimates of the vehicles speed
    as it proceeded through the intersection into the merge lane and beyond.

[13]

No evidence was adduced at trial about the
    roadworthiness of Peters Porsche on June 3, 2006.

Ground #1:  The Causation Issue

[14]

The first ground of appeal relates to the trial
    judges finding on causation, and specifically on factual causation. The
    submission includes, but is not limited to, a complaint that the trial judge
    failed to consider relevant evidence, especially evidence about the
    roadworthiness of the Porsche and the role that mechanical defects may have
    played in the accident.

The Reasons of the Trial Judge

[15]

After finding that the manner in which the
    appellant and his cousin drove their vehicles amounted to dangerous operation,
    the trial judge turned her attention to the controverted issue of causation.
    She acknowledged that causation consisted of both factual and legal components
    and described accurately the essence of each.

[16]

The trial judge reviewed the position advanced
    by counsel for the appellant at trial and rejected it.  She concluded in para.
    78 of her reasons:

[78]     Similarly, it is
    immaterial here that Peter also drove dangerously through the intersection, or
    that there may have been other contributing factors such as defective parts or
    workmanship in the Porsche.  For the reasons set out above, I am satisfied
    beyond a reasonable doubt that the accuseds driving was at least a
    contributing cause of the death and injuries involved outside the
de minimis
range.  To the extent that the law, as previously explained in
Shilon
,
    also requires proof that the resulting harm was reasonably foreseeable, for the
    reasons given above I am similarly satisfied.

The Position of the Parties

[17]

For the appellant, Mr. Hicks submits that
    factual causation was a live issue at trial, one that the trial judge failed to
    adequately examine and determine. Mr. Hicks says that the trial judge failed to
    consider whether the dangerous manoeuvre by Peter was the factual cause of
    the accident. She also failed to take into account the influence of mechanical
    defects in the Porsche on the issue of whether the appellants operation of his
    motor vehicle was a significant contributing cause of the accident.

[18]

Mr. Hicks contends that the trial judge failed
    to consider whether the evidence proved beyond a reasonable doubt that the
    accident was caused by the actions of the appellant and Peter. In particular,
    the appellant says that the trial judge failed to consider whether the evidence
    about the previous accidents and repairs on the Porsche and the absence of
    evidence of accident reconstruction or of the mechanical fitness of the Porsche
    raised a reasonable doubt about factual causation. What is more, Mr. Hicks
    urges, is that the trial judge failed to appreciate the distinction between
    factual and legal causation, and thus erred in weighing the evidence of
    mechanical fitness as part of legal, rather than factual causation.

[19]

Ms. Stuart, for the respondent, disagrees. She
    says that the trial judge well understood the difference between factual and
    legal causation, applied the appropriate test and reached the correct
    conclusion. Ms. Stuart points out that the Crown need not prove that the
    appellants conduct was the most proximate, primary or exclusive cause of the
    death and injuries that resulted from the accident, only that the appellants
    manner of driving was at least a contributing cause of the consequences beyond
de
    minimis
.

[20]

The respondent submits that the trial judge, in
    her but for analysis of factual causation, considered evidence about the
    speed of the vehicles, the road conditions, the manner in which the appellant
    and his cousin drove and their close proximity to one another in concluding
    that factual causation had been established. Ms. Stuart emphasizes the absence
    of any properly admissible evidence of mechanical defects, let alone the role
    any such defects played in the operation of the Porsche.

The Governing Principles

[21]

To determine whether a person can be held
    responsible for causing a particular result, in this case death or bodily harm,
    we must determine whether the person caused that result not only in fact but
    also in law:
R. v. Nette
, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 44.

[22]

Factual causation involves an inquiry about how
    the victim died or suffered bodily harm, in a medical, mechanical or physical
    sense, and an accuseds contribution to that result:
Nette
, at para. 44.

[23]

Factual causation involves a determination of
    whether A caused B. The answer to the question of whether A caused B is
    resolved in a criminal case by the evidence of witnesses, those who testify
    about facts and others who offer relevant opinions:
R. v. Smithers
,
    [1978] 1 S.C.R. 506, at 518. The factual determination of whether A caused B
    has nothing to do with intention, foresight or risk:
Smithers
, at p.
    518.

[24]

To prove factual causation, the Crown does not
    have prove that an accuseds conduct was either the direct or predominant
    contributing cause of the prohibited consequence, whether death or bodily harm.
    It is no defence for an accused to say that the conduct of another was a
    greater or more substantial cause of the death or injuries. The Crown need only
    prove that an accuseds conduct was a significant contributing cause of the
    death or injuries or, said another way, that the accuseds conduct was at
    least a contributing causeoutside the
de minimis
range:
Smithers
,
    at p. 519;
Nette
, at paras. 70-71; and
R. v. Hughes
, 2011 BCCA
    220, 305 B.C.A.C. 112, at paras. 56 and 64.

[25]

Factual causation, as the term itself would
    indicate, is a question of fact, reviewable only in accordance with a standard
    of palpable and overriding error:
Hughes
, at para. 65; and
R. v.
    Shepherd
, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 18.

[26]

Legal causation, on the other hand, has to do with
    whether an accused should be held responsible in law for a prohibited
    consequence of his or her conduct, for example, death or bodily harm:
Nette
,
    at para. 45. In legal causation, the inquiry is directed at the question of
    whether an accused should be held criminally responsible for the consequences
    that occurred:
Nette
, at para.
45;
R. v.
    Shilon
(2006), 240 C.C.C. (3d) 401 (Ont. C.A.), at para.
32. In the
    analysis of legal causation in negligence-based offences, like dangerous
    driving, reasonable foreseeability of harm is a relevant consideration:
Shilon
,
    at para. 33.

[27]

Conduct that is inherently dangerous and carries with it a reasonably
    foreseeable risk of immediate and substantial harm satisfies the standard
    required for legal causation:
Shilon
, at para. 38. Where the conduct of
    another is a reasonably foreseeable consequence of the conduct of an accused,
    the accused may be liable as a principal for the conduct of that other person:
Shilon
,
    at para. 54. A person may be liable as a principal if she or he actually does
    or contributes to the
actus reus
with the required
mens rea
:
Hughes
,
    at para. 77.

[28]

It is well-established that independent, voluntary human intervention in
    events started by an accused may break the chain of causation:
Shilon
,
    at para. 43. A new event may result in an accuseds conduct not being a
    significant contributing cause of a prohibited consequence. But legal
    responsibility for an event will remain and the chain of causation will not be
    broken where an accused intentionally produced the outcome, recklessly brought
    it about, or if the ordinarily circumspect person would have seen it as a
    likely consequence of his or her own conduct:
R. v. Maybin
, 2010 BCCA
    527, 263 C.C.C. (3d) 485, at para. 35.

The Principles Applied

[29]

This ground of appeal, which challenges the trial judges conclusion
    that the Crown had proven factual causation, does not warrant our intervention.

[30]

The appellant does not take issue with the trial judges finding that
    the manner in which he operated his motor vehicle on the evening of June 3,
    2006 amounted to dangerous driving. Further, the appellant acknowledges that
    the trial judge correctly stated the standard that applied to factual
    causation.

[31]

The trial judge was required to decide whether the appellants driving
    was a significant contributing cause of the death of Peter and the injuries to
    Mark Radman‑Livaja and Allison Hickey. She concluded that factual
    causation had been established on the basis of the cumulative force of evidence
    of excessive speed, inclement weather, compromised road conditions, inherently
    dangerous driving manoeuvres and the close physical proximity of the two speeding
    vehicles. Her determination of this issue involves a question of fact
    reviewable on the basis of palpable and overriding error, of which I can find
    none.

[32]

The appellant complains about the trial judges failure to include in
    her analysis of factual causation the absence of any evidence about accident
    reconstruction and of the mechanical condition of the Porsche. The trial judge
    had evidence from several witnesses who observed firsthand the collision and
    the events that immediately preceded it. There was no admissible evidence of
    any mechanical defect in the Porsche, let alone evidence of any defect capable
    of showing that the accident was unavoidable irrespective of the manner of
    driving.

[33]

The argument advanced on appeal does not appear to have been vigorously
    pursued at trial. It may also be debatable whether what is now advanced as a
    flaw in the analysis of factual causation is not more appropriately a
    consideration of legal causation.

[34]

This ground of appeal fails.

Ground #2: The tandem driving Finding

[35]

The appellant takes issue with the trial judges
    finding that the appellant and his cousin were driving in tandem at the time of
    the collision. Once again, it is helpful to begin with a reference to the trial
    judges reasons to site the complaint in its proper context.

The Reasons of the Trial Judge

[36]

After she had found that the Kippax cousins were
    both driving at speeds that were excessive not only for the road conditions,
    but also for the passing manoeuvre in which both vehicles were involved, the
    trial judge turned to the prosecutors assertion of in tandem driving.

[37]

The trial judge was not prepared to make a
    finding of in tandem driving solely on the basis of the evidence given by those
    who witnessed the collision and its immediate precursors. What clinched the
    in tandem activity for the trial judge was the evidence of John Rock. The
    trial judge concluded in para. 48 of her reasons:

[48]     In my view Mr. Rocks
    evidence establishes that the accused knew, at least at the point when he was
    approaching the intersection, that his cousin was travelling lockstep behind
    him. When combined with the evidence of the other drivers that the two men were
    travelling in close formation and executing the identical manoeuvre, I am
    satisfied they were driving in tandem when this collision occurred.

The Positions of the Parties

[38]

Mr. Hicks submits that the trial judge was not
    prepared to make a finding of in tandem driving on the basis of the testimony
    of the several witnesses who made first-hand observations of the events
    culminating in the collision. The trial judge made it clear that the evidence
    of John Rock was essential for her finding about in tandem driving.

[39]

Mr. Hicks contends that the trial judges
    finding on this issue is based on speculation, not reasonable inference.
    Speculation cannot serve as a surrogate for a reasonable inference. This
    finding, which formed the bedrock for the finding of guilt, should be set aside
    and, along with it, the finding of guilt.

[40]

On the other hand, Ms. Stuart takes issue with
    the proposition that a common intention is a condition precedent to the
    appellants liability. The trial judges conclusion was not based on common
    intention, but rather rooted in a finding that the appellant, who was himself
    driving dangerously, knew that Peter was following closely behind driving in an
    identical manner. This finding, crucial to the appellants liability, was amply
    supported by the evidence and is in no way the product of impermissible
    speculation.

The Governing Principles

[41]

Section 249(1)(a) of the
Criminal Code
sets out the essential elements of the offence of dangerous operation of a
    motor vehicle. The provision requires consideration of all the circumstances
    including, but not only, those listed. What must be determined, by a
    consideration of all the circumstances, is whether the manner in which the
    person charged was operating the vehicle was dangerous to the public.

[42]

Leaving aside street racing, which s. 2
    defines and for which s. 249.4 enacts specific provisions, the
Criminal Code
eschews categories of dangerous operation of a motor vehicle. Evidence of in
    tandem driving may assist the Crown in its proof that an accused operated a
    motor vehicle in a manner that was dangerous to the public, having regard to
    all the circumstances, but it is neither an essential element of the offence
    nor a condition precedent to a conviction of the operator as a principal
    offender:
Hughes
, at para. 78.

[43]

Our jurisprudence recognizes that an offence may
    be committed by more than one perpetrator or principal:
Shilon
, at para.
    47. Co-perpetrators under s. 21(1)(a) of the
Criminal Code
may have a
    mutual intention to pursue a common unlawful venture:
Shilon
, at para.
    53. A person may also be liable as a principal if he or she actually does or
    contributes to the conduct that constitutes the
actus reus
of an offence
    with the requisite
mens rea
:
Hughes
, at para. 77. Where the
    conduct of one driver, amounting to dangerous operation, is coupled with
    knowledge that another driver is likely to follow suit, the liability of the
    first for the consequences of the conduct of the second is as a principal or
    perpetrator:
Shilon
, at para. 54.

The Principles Applied

[44]

I would not give effect to this ground of
    appeal.

[45]

The appellants liability as a principal did not
    rest on a finding of common intention based on in tandem driving. A fair
    reading of the trial judges reasons as a whole supports the conclusion that
    the appellants guilt was based on his knowledge that his cousin was close
    behind him following the same admittedly dangerous manner of driving. This
    conclusion was amply supported by the evidence, not founded on impermissible
    speculation, and established the appellants liability as a principal.

[46]

This ground of appeal fails.

Ground # 3: Fresh Evidence and Re-opening the Defence Case

[47]

The final ground of appeal relates to evidence
    proposed for reception at the appellants sentencing by new counsel retained
    after the appellant had been found guilty of the offences charged. The evidence
    was put forward as relating to the credibility of the prosecution witness, John
    Rock, which was accepted by the trial judge and occupied a central role in her
    findings of guilt.

[48]

Some further background is necessary to
    understand the nature of the proposed evidence, the basis upon which it was tendered
    for admission and the error alleged in its rejection by the trial judge.

The Background

[49]

On the day on which the appellant was to be
    sentenced, counsel who then represented the appellant (who was neither trial
    counsel nor Mr. Hicks) applied to the trial judge for an order permitting the
    appellant to re-open the defence case or, preferably, declaring a mistrial on
    the basis of newly-discovered evidence. The appellants affidavit was filed in
    support of the application.

[50]

The appellant testified on the hearing of the
    application. He said that Ray Damhj was a top distributor in a business of
    which the appellant was the global sales director, Business in Motion. During
    the week before March 5, 2010, Damhj told the appellant that John Rock had
    started up his own competing network marketing company and had tried to recruit
    Damhj to join him (Rock) in this new venture. The appellant gave evidence that
    had he known about the new company and the attempted recruitment of Damhj, he
    would have told his trial lawyer about it so that the lawyer could enquire in
    depth in regards to it.

[51]

John Rock testified at the appellants trial on
    August 12, 2009, and again at the sentencing hearing on January 28, 2010. Prior
    to Rocks trial testimony, the appellant had received full disclosure of Rocks
    videotaped statement to police and was aware of the circumstances in which Rock
    had come to police attention, on the basis of information provided by Leanne
    Dalton.

[52]

The appellant and John Rock had been involved in
    a corporate predecessor to Business in Motion, but had parted on bad terms
    because, according to the appellant,  the appellant refused to offer Rock a
    position at Business in Motion. John Rock vehemently denied that this was the
    reason he left the company. The trial judge made no finding on this conflict. Further,
    the appellants relationship with Leanne Dalton had also soured over her
    failure to repay monies the appellant had advanced to her so that she could
    become involved in Business in Motion. The appellant acknowledged having
    provided information about his relationships with Rock and Dalton to his trial
    counsel before Rock testified at trial.

The Positions of Counsel at Trial

[53]

On the application before the trial judge,
    counsel for the appellant acknowledged that Rocks evidence, and the
    circumstances under which police learned that Rock had material evidence to
    give at trial, had been disclosed to the appellant months in advance of Rocks
    trial testimony. But the appellant was unaware that Rock had set up a competing
    business and had tried to recruit Damhj until shortly before the sentencing
    date. This new information, according to trial counsel, provided a motive for
    Rock to incriminate the appellant, and may well have made a difference in the
    trial judges conclusion on a material issue at trial.

[54]

Counsel for the Crown at trial resisted the
    appellants application. He pointed out that long before Rock testified, the
    appellant was aware of the circumstances in which Rock provided his statement
    to police, the substance of the statement and the circumstances in which both
    Rock and Dalton parted company with the appellant. The manner in which trial
    counsel for the appellant, a very experienced criminal lawyer, used or did not
    use this information in cross-examination reflected a tactical decision on
    counsels part that ought not be reversed on appeal. The Crown at trial pointed
    out that the appellant knew about Rocks involvement with a new company when
    Rock testified but elected not to pursue the matter in cross-examination. As
    for the alleged attempt to recruit Damhj, the appellant proffered no admissible
    evidence to support the claim.

The Reasons of the Trial Judge

[55]

The trial judge accepted the position advanced
    by counsel on both sides at trial that her decision to permit re-opening or to
    declare a mistrial was governed by the principles laid down in
R. v. Palmer,
[1980] 1 S.C.R. 759 at p. 775. She rejected the application on the basis that
    the applicant had satisfied none of the
Palmer
requirements.

[56]

The trial judge acknowledged that the due
    diligence requirement of
Palmer
should be applied less stringently in a
    criminal case. She concluded, however, that the proposed evidence could have
    been obtained easily through even a modicum of due diligence at trial. The
    trial judge considered that the proposed evidence was relevant to Rocks
    credibility, and thus the weight to be assigned to his evidence about in
    tandem driving, but she pointed out that there was no admissible evidence of
    the alleged recruitment of Damhj. She viewed the proposed evidence as neither
    credible nor capable of affecting the decision rendered at trial.

The Positions of the Parties on
    Appeal

[57]

Mr. Hicks contends that the trial judge erred in
    failing to admit the proposed evidence and grant the consequential relief
    requested.

[58]

Mr. Hicks reminds us that, in a criminal case,
    the due diligence requirement in
Palmer
does not trump the other
    criteria. In any event, although Rock came forward in early 2009, the appellant
    did not learn about his competing business until shortly before sentencing and
    could not reasonably have found out about it prior to verdict. The due
    diligence criterion should not foreclose the reception of evidence that shows a
    financial motive on the part of a crucial prosecution witness whose evidence
    was critical to the trial judges decision. At the very least, the fresh
    evidence could have constituted a good faith basis upon which trial counsel
    could have cross-examined Rock, even if evidence of the attempted recruitment
    of Damhj would have been barred by the hearsay rule.

[59]

For the respondent, Ms. Stuart submits that the
    trial judge was correct in refusing to permit re-opening or to declare a
    mistrial on the basis of the proposed fresh evidence.

[60]

Ms. Stuart does not quarrel with the principle
    that the due diligence requirement is applied less stringently in criminal
    cases. That said, it remains a relevant consideration on an application such as
    the one advanced here. The appellant had ample time and information to explore
    the relationship among himself, Rock, and Dalton, but made a tactical decision
    not to do so, a decision that ought not to be reversed on appeal.

[61]

Ms. Stuart acknowledges that Rocks evidence
    related to a potentially decisive issue at trial. She takes issue, however,
    with any suggestion that the proposed evidence is credible or could affect the
    conclusion of guilt reached by the trial judge. Inadmissible hearsay cannot
    establish a motive to fabricate and the disclosure history belied any such
    suggestion. The proposed evidence could not have affected the outcome at trial.

The Governing Principles

[62]

A trial judge is not
functus

officio
in
    a trial without a jury until she or he has imposed sentence or otherwise
    finally disposed of the case:
R. v. Lessard
(1976), 30 C.C.C. (2d) 70,
    (Ont. C.A.), at p. 73.  It follows that a trial judge who has made a finding of
    guilt on disputed facts has the authority to vacate the adjudication of guilt
    at any time before the imposition of sentence or other final disposition:
Lessard
,
    at p. 73. This authority, to vacate an adjudication of guilt, should be
    exercised only in exceptional circumstances and in the clearest of cases:
Lessard
,
    at p. 73.

[63]

The test for re-opening the defence case when
    the application is made after a finding of guilt is more rigorous than that
    which governs a similar application prior to an adjudication of guilt:
R. v.
    Kowall
, (1996), 108 C.C.C. (3d) 481 (Ont. C.A.), at p. 493.  The
Palmer
criteria
    provide helpful guidance to a trial judge faced with an application to re-open
    after a finding of guilt has been recorded. But a trial judge must also
    consider whether the application to re-open is, in essence, an attempt to
    reverse a tactical decision made at trial:
Kowall
, at pp. 493-494. See
    also,
R. v. Arabia
, 2008 ONCA 565, 235 C.C.C. (3d) 354 (Ont. C.A.), at
    para. 46.

[64]

A trial judges decision about whether to permit
    re-opening of the defence case after an adjudication of guilt has been made
    involves an exercise of judicial discretion.  Where that discretion has been
    exercised in accordance with the governing legal principles, its exercise
    should not be lightly overturned:
R. v. Scott
, [1990] 3 S.C.R. 979, at pp.
    1002-1003.

The Principles Applied

[65]

I would not interfere with the trial judges
    exercise of her discretion to refuse the application to re-open the defence
    case. The trial judge stated and applied the governing legal principles and
    made no palpable and overriding error in doing so.

[66]

The appellant and John Rock had a history. They
    parted ways on less than amicable terms when the appellant did not hire Rock
    for his new venture, Business in Motion. The appellant knew the substance of
    Rocks evidence and that Dalton had alerted police to Rock as a prospective
    source of information in the prosecution of the appellant. This information was
    provided to the appellant as part of prosecutorial disclosure well in advance
    of trial. Rock gave evidence that he had his own marketing company.

[67]

At trial, the appellant had the wherewithal to
    challenge Rocks credibility on the basis that Rock bore some
animus
towards the appellant because of their inamicable parting, or had a financial
    motive to give incriminating evidence. Whether or to what extent he would do so
    was a tactical decision that should not be reversed with the wisdom of
    hindsight.

[68]

It is worth observation that, at the time he
    provided his videotaped statement to the police, Rock had not yet incorporated
    his network marketing business or attempted to recruit Damhj. His testimony at
    trial, after he had incorporated his business and allegedly attempted to
    recruit Damhj, was consistent with his prior videotaped statement. Further,
    Rocks evidence about the appellants admission concerning the proximity of
    Peters car to the appellants Mercedes was consistent with the testimony of
    many of the other motorists first-hand observations.

[69]

I would not give effect to this ground of
    appeal.

CONCLUSION

[70]

These are our reasons for dismissing the appeal
    at the conclusion of argument.

RELEASED:  December 7, 2011  DW

David
    Watt J.A.

I
    agree J.J. Esptein J.A.

I
    agree Karakatsanis J.A.


