



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cook, 2016 ONCA 794

DATE: 20161026

DOCKET: C58355

Watt, Lauwers and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Cook

Appellant

Boris Bytensky, for the appellant

Craig Harper, for the respondent

Heard and released orally: October 21, 2016

On appeal from the conviction entered on February 9, 2011
    by Justice J.S. ONeill of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

After a 45 day trial before a judge sitting without a jury, the
    appellant was found guilty of three offences. The trial judge entered
    convictions on counts of impaired operation of a motor vehicle causing death
    and driving while disqualified and a stay on the count of causing death by operating
    a motor vehicle when his blood alcohol concentration exceeded the prohibited
    limit.

[2]

The single issue litigated at trial was the identity of the driver of
    the snowmobile involved in the accident that killed the deceased, a fifteen
    year old boy. The Crown alleged that the appellant, who was 27 years old at the
    time of the incident, and had only purchased the snowmobile days earlier, was
    the driver. The defence position, unsupported by the testimony of the
    appellant, was that the 15 year old deceased was the driver.

[3]

The appellant advances four grounds of appeal against conviction. He
    submits that the trial judge erred in law:

i.

in
    failing to consider the exculpatory portions of statements made by the appellant;

ii.

in
    misapplying the burden of proof, in particular, the principles enunciated in
R.
    v. W.(D.)
, [1991] 1 S.C.R. 742;

iii.

in permitting the
    Crown to split its case by calling a witness in reply; and

iv.

by reaching an unreasonable
    conclusion of guilt on the count of driving while disqualified.

[4]

We would not give effect to any of these grounds.

[5]

To take first the ground of appeal relating to the failure to consider
    the exculpatory parts of the appellants 911 call and his statement to Sergeant
    Alexander at the hospital. As I have said, the single issue before the trial
    judge was the identity of the driver. These utterances were relevant evidence
    on that issue. Like any item of evidence in a criminal trial, the trial judge
    was entitled to accept or reject this evidence in whole or in part. He did so.
    We are not persuaded that in accepting an inculpatory portion of the 911 call,
    it can reasonably be said that he ignored or failed to consider exculpatory
    aspects of that call or those in the statement made to Sgt. Alexander at the
    hospital. Indeed, he recited these exculpatory parts in paragraphs 9; 17; 44;
    53 and 379-382 of his reasons.

[6]

Second, in reading the reasons as a whole, we are not persuaded that the
    trial judge founded his conviction on some lesser standard than proof beyond a
    reasonable doubt. That burden applies to the evidence as a whole, which is
    often greater than the sum of its individual parts. The trial judge proceeded
    to consider the many strands of circumstantial evidence and then assessed their
    cumulative effect. These individual strands are not subject to the criminal
    standard of proof, and the piecemeal analysis invited by the appellant is
    inconsistent with the approach to circumstantial evidence required by the
    authorities.

[7]

Third, the complaint about reply evidence is equally unavailing. The
    evidence did not exceed what the law permits. It is also significant that this
    was a judge alone trial, not a jury trial where reply evidence, as the last
    evidence heard by the trier of fact, is thought to have a greater impact on the
    ultimate verdict. Further, it was open to the appellant to seek to call surrebuttal
    evidence, but no such application was advanced.

[8]

The appellant concedes that if the convictions on impaired operation are
    sustained, the conviction of driving while disqualified cannot be impeached as
    unreasonable. We agree.

[9]

The appeal from conviction is dismissed. The appeal from sentence is
    dismissed as an abandoned appeal.

David Watt J.A.

P. Lauwers J.A.

M.L. Benotto J.A.


