



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bhandol, 2018 ONCA 769

DATE: 20180920

DOCKET: C63696

Strathy C.J.O., Doherty and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Aman Bhandhol

Appellant

Glen Henderson, for the appellant

Justin Reid, for the respondent

Heard: September 17, 2018

On appeal from the conviction entered by Justice C. Ann
    Nelson of the Ontario Court of Justice on December 22, 2016.

REASONS FOR DECISION

[1]

The appellant appeals from his conviction for various impaired and
    dangerous driving offences. At the conclusion of the hearing of the appeal, we
    dismissed the appeal with reasons to follow. These are those reasons.

[2]

The main issue at trial was the identification of the driver of the
    motor vehicle (the Acura) that hit the victims motor vehicle and sent it
    smashing into a pole, causing the victim very serious, permanent injuries. The
    appellant admitted that he was impaired, that the driving of the Acura, which
    belonged to his father, was dangerous, and that it caused the victim bodily
    harm. For the purposes of the appeal, it is conceded as a reasonable finding by
    the trial judge that the appellant was associated with and an occupant of the
    Acura. However, the appellant maintains that the trial judge erred in finding
    that he was the driver.

[3]

The appellant submits that the verdict was unreasonable because of the
    unreliability of the four witnesses called by the Crown. Each testified about
    seeing one or two people fleeing from the Acura. The appellant says the trial
    judge erred by failing to recognize the exculpatory effect of the serious
    inconsistencies in the witnesses description of the drivers clothing,
    including the possibility that there was a third person in the Acura who may
    have been the driver. This should have left the trial judge with a reasonable
    doubt as to the identity of the driver of the Acura.

[4]

We are not persuaded by these submissions.

[5]

The present case is entirely distinguishable from the circumstances of
R.
    v. Boucher
, [2000] O.J. No. 2373 (CA), where the conviction of one of the
    appellants was founded primarily on inconsistent eye-witness testimony about
    the clothing worn by one of the parties to a robbery and there was not a
    scintilla of other evidence connecting him to the offence (paras. 19-20).
    Here, the trial judge did not base her conviction of the appellant on the
    eye-witness testimony alone nor did she consider it in isolation from the
    totality of the evidence. As she correctly noted, the Crown had amassed a
    formidable circumstantial case against the appellant, which she carefully
    reviewed in her meticulous reasons.

[6]

In addition to the appellants concessions and the portions of the
    eye-witness testimony that the trial judge accepted as credible and reliable,
    the Crowns case included the video footage from the adjacent church showing
    the appellant running through the church parking lot, away from the crash site
    while frequently looking behind him, and into the forest where he was found and
    arrested in due course by the police in company with the other occupant of the
    Acura, who was light-skinned and wearing shorts. The appellants darker skin
    colour, the fact he was wearing pants, and his movements following the crash
    were also corroborated by the eye-witness testimony accepted by the trial
    judge. There was no dispute that the appellant was the person seen in the video
    and that at the time of his arrest he was wearing the same clothing  a dark
    grey t-shirt, blue jeans and white sneakers  as also shown in the still from
    the booking video at the police station and confirmed by the arresting
    officers evidence.

[7]

The trial judge approached the eye-witness testimony with the necessary
    caution that she acknowledged was required because of its inherent frailties.
    As she was entitled to do, she accepted the evidence of two of the four
    eye-witnesses that the appellant exited from the drivers side of the Acura and
    then ran through the church parking lot and into the forest. She was clearly
    alive to the discrepancies in the eye-witness testimony and their potentially
    exculpatory nature, as is demonstrated by her examination of the evidence. She
    returned to these discrepancies several times in her reasons as she looked at
    them from the perspective of the various defence arguments, including whether
    they gave rise to the possibility of a third occupant of the Acura.

[8]

At the conclusion of her thorough analysis, the trial judge came to
    grips with the crucial question of whether these discrepancies left her with a
    reasonable doubt as to the identity of the driver:

A final point, does the issue of the
    clothing discrepancy raise a reasonable doubt that Mr. Bhandhol was the driver?
In other words, when the clothing discrepancy is considered as part of the totality
    of the evidence, as it must be, is, nevertheless, the only reasonable inference
    available one of guilt, that is, that Mr. Bhandhol was the driver of the Acura
    owned by his father at the time of the accident; that it was Mr. Bhandhol who
    departed the accident scene through the church parking lot, and that it was Mr.
    Bhandhol who was arrested by police in the clearing in the woods near the
    church parking lot? The answer, in my view, is yes.
There
    is no other reasonable explanation based on the totality of the evidence,
    notwithstanding the discrepancy in the description of the clothing
. 
    [Emphasis added.]

[9]

We see no error in the trial judges analysis and conclusions which were
    open to her on the record.

[10]

For
    these reasons, the appeal is dismissed.

G.R. Strathy C.J.O.

Doherty J.A.

L.B. Roberts J.A.


