Trial judge relied on evidence which was not admissible

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Trial judge relied on evidence which was not admissible

Accused appealed conviction for “over 80”. After hearing screeching sounds of tires and sound of car hitting something, officer arrived at scene 30 to 60 seconds later and saw that vehicle had hit pole. Officer saw woman and two males standing around outside of vehicle. Males told officer that they had arrived after accident and had not seen who was driving vehicle. Officer overheard accused tell two males that she was “okay”. Accused testified on Charter application that, prior to being advised of her rights and being provided caution, she was asked by officer whether she was driving and that she admitted to driving because she felt compelled to do so. Accused was arrested for impaired driving. During Charter submissions, Crown conceded that officer breached accused’s Charter rights and that her statements were inadmissible at trial. At trial, only evidence available to trial judge as to whether Crown had proven charges beyond reasonable doubt was officer’s evidence. Trial judge concluded that when someone was asked whether they were okay, not being driver was very unusual phenomenon. Trial judge stated that accused admitted to officer that she was driver and further relied on her statements to officer as to where she had been and that she “may have hit something”. Appeal allowed, conviction quashed, acquittal entered. Trial judge should not have considered and relied on any evidence of accused, as it was only admissible evidence on Charter application. Trial judge’s comment that accused did not deny that vehicle was hers was either inadmissible evidence from accused’s evidence on Charter application or adverse finding based on her right to silence, either of which was improper at law. Trial judge relied on evidence which was not admissible in determining whether Crown established beyond reasonable doubt that accused was driver of vehicle. Trial judge relied on circumstantial evidence that accused was driver of vehicle when, in absence of any direct evidence, it could not be said that only reasonable inference of circumstantial evidence was that accused was driver. Errors were central to reasoning process and disposition by trial judge. When evidence was thoroughly reviewed, there was not sufficient evidence at trial capable of supporting finding beyond reasonable doubt that accused was driver. Verdict was unreasonable.
R. v. Unelli (May. 28, 2014, Ont. S.C.J., Ricchetti J., File No. SCA(P) 335/13) 113 W.C.B. (2d) 737.