Request for rare order on technicality quashed

The Court of Appeal for British Columbia has dismissed an application asking for a rare order that a trial judge provide a report on his reasons for conviction of a man for dangerous driving causing death, just because he erred in saying “right” when it should have been “left” in his review of the evidence.

In R. v. Dhillon, the appeal was filed on the grounds the trial judge “misapprehended the evidence of the manner in which the accident occurred.” The judge was being asked to clarify whether he intended to use the word “right” (when the evidence was that the correct word would have been “left”) in a particular paragraph of his reasons.

Gurjit Singh Dhillon was convicted last November as a result of a 2009 rush-hour crash in September 2009 in which Dhillon’s black Corvette collided with another car, causing the Corvette to jump the curb and strike a bus stop bench, critically injuring 83-year-old Pritam Benning. Benning’s legs were amputated and he was unconscious in hospital for five days before passing away.

Dhillon was following a yellow Corvette on Sept. 16, 2009 when the two cars came to a stop at the intersection. When the light turned green, Dhillon accelerated, tried to change lanes and hit another car before spinning out of control and launching toward Benning.
He received a one-year jail sentence April 9. A charge of street racing was dropped.

The evidence at trial included conflicting testimony of eight eyewitnesses, and physical evidence at the scene including tire marks on the road, paint transfers, and damage to Dhillon’s vehicle. There was also some accident reconstruction evidence. The trial Judge, James Jardine, found the dangerous driving occurred when Dhillon changed lanes and accelerated in an intersection prior to colliding with a Honda.

The appeal is based on Dhillon’s claim the trial judge “misapprehended the evidence in concluding that the right rear of his vehicle, the black Corvette, struck the right front of the Honda.”

In her report, Justice Risa Levine indicated Dhillon:

“. . .  says the only way the right rear of the Corvette could have struck the right front of the Honda was if the Corvette had rotated 180 degrees as a result of the swerve and resulting spin, which contradicts the expert evidence of the collision analyst, who testified, based on paint transfer evidence, that the Corvette “struck its left rear bumper to the front right corner of the Honda” [emphasis added].”

The Crown agreed with the appellant the trial judge’s conclusion the right rear of the Corvette struck the right front of the Honda is at odds with the accident reconstruction evidence. She said: “it is clearly a situation where the judge merely misspoke himself, which is “easy to do in a busy trial court after a long trial, even when reading from written reasons.”

She suggested if the trial judge had concluded the Corvette spun 180 degrees, he would have said more in his reasons for judgment to explain that finding. The reasoning of the Crown was that “if the trial judge reports that he misspoke, that answer would greatly reduce the length and complexity of the appeal.”

In its determination the Court of Appeal relied on R. v. A.W.E., in which the majority of the Supreme Court of Canada concurred that:

“To request the report, as a general rule, is to encourage a situation fraught with the possibilities of unfairness. It is only in those rare situations where something occurred which is not reflected in the record and upon which opposing counsel cannot agree that a report from a trial judge might be requested…”

In her remarks, Levine noted: “Asking him to clarify his reasons for judgment on this issue, central to the appellant’s appeal, risks the concern identified in A.W.E., that in answering the question, the trial judge could influence, rather than assist, in the appeal process. The question, though worded to elicit a ‘yes’ or ‘no’ answer, implicitly suggests there might be a flaw in the reasoning process. It would be difficult if not impossible for the trial judge not to revisit that process in responding to the question.

For these reasons, I am of the view that this is not an appropriate circumstance to make an order under s. 682(1) of the Code.”

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