How I won R v Silva 2010 ONCJ 121
“He had to lose sight! No way he maintained it!” I said to Mr. Silva on the day of trial. “I think we can get him on that. By the way, you were an M1. How long had you had it?” Thus begun the case which would follow me. I’ve had to answer questions about this case more than any other; and I’ve done fatalities. This is the story of what happened and how we won R v Silva 2010 ONCJ 121. This was a Stunt Driving charge where it was alleged that Silva raised the front wheel of his motorcycle.
Silva wasn’t my client to start out with. He was a subcontracted case. Someone else’s client for which I had to do the trial. I was armed with the disclosure and the client’s version of events which were, according to the file, admitting the commission of the offence. The disclosure was much more promising. The police officer HAD to lose sight. Wasn’t humanly possible to see what he says he saw from where he was and catch up to Silva that quickly. He either fibbed or was mistaken. I thought he was mistaken because the version from the client confirmed some of the observations. Still, how could the prosecution prove that the same motorcycle which did the wheelie was the same the officer saw when he HAD to have lost sight for enough time to question it.
This was, at the time anyway, the only thing I had to work with. Losing sight.
I did notice however that Silva was an M1 license holder. That meant that at the time of the alleged offence, he still had a motorcycle version of a learner’s permit. This meant it may have been an accident. I knew it was a mens rea offence because of the wording of that particular section of the regulation. I’d keep this in my back pocket. I would know how this would play out once I could ask Silva some questions.
When I got to court, I learned it was Justice of the Peace Dechert. An excellent judicial officer but he had a reputation for taking a long time and being pedantically thorough. This of course was a great draw. We had a fighting chance. His decisions all made it to CANLII and generally speaking, his decisions were Appeal proof. Mostly because he did it right every time. He may have taken a long time but he usually came up with the right analysis. We were definitely lucky to have him as the trial Justice.
Claude Gelbard was prosecuting. He is an excellent prosecutor. Him and I went back years to when he was a defence paralegal. He maintains a reputation for being a very capable and fair prosecutor. It is hard to find a prosecutor as even keeled and as fair as him. Regardless of the outcome, I knew Silva would face a formidable but fair advocate for the opposite side. Claude and I also loved doing trials together. We had fun. Some of my favourite fond memories of trials with prosecutors have Claude in them.
I met Silva at court and explained what had already been explained. I think the officer lost sight and I think I can get him on cross. He understood. I asked him how long he had his M1 before this happened and he said about a week. I explained how while what he told me was confidential, I could not let him say anything in the witness box which was a lie. I asked him to carefully consider this and told him I thought we could also win on him being inexperienced and not meaning to do the wheelie. I asked him in great detail what happened and took the role of prosecutor and cross examined him to make sure he was a) telling the truth and b) assessing him as a witness. By the time I was done, I knew we had a winning case.
I knew Dechert would apply the law correctly. I knew Claude would do his job and go after Silva which from my experience would only strengthen his evidence. He would be believed. Everything fit perfectly. Unless something went incredibly sideways during the trial, we had this one.
The trial started uneventfully. The police officer gave his evidence. Nothing unexpected. Then it was time for cross. He said he didn’t lose sight but after a few questions this was in issue. Was it in issue enough to carry the day. Wasn’t sure so I kept going. I would ask about where he was when he first saw the motorcycle doing the wheelie, then go to Silva’s license class and experience and back to what he saw. His answers were changing slightly. This told me that he wasn’t remembering how he answered earlier. Now I just needed to make sure Claude didn’t notice. Not likely. He would soon be objecting as asked and answered. Still, had to see how far I could go with this officer.
To make things tough, Dechert would stop the officer and ask the clerk to play the recording back. He was taking a verbatim account of the evidence. While this was a thorough approach, it ruined any rhythm I could build up giving the officer time to think. It became clear where I was going after about the 4th break in my cross. It was just before I could do some damage, the magic would stop and we all had to wait. This forced us to regroup.
When we were done with the officer, I carefully considered the evidence of the officer. Silva and I had to decide if he would testify. I thought we might have it but if Silva took the stand, he would be testifying that he did the wheelie and the lost sight argument would go out the window. We had to decide which was the better choice.
We would change gears. Silva decided to testify. He explained how he had just had his M1 for a week (officer confirmed this) and he only had a limited number of kilometres on the motorcycle. He had little experience. He mis-shifted from 1 to 2 and the gear stopped in neutral. When he released the clutch, the engine revved up, he got nervous and shifted to 2nd gear. The front wheel came up and it scared the heck out of him.He released the throttle and the front wheel came down. He then accelerated with his adrenaline pumping. The officer stopped him shortly after that.
Claude began his cross examination of Silva, As expected, Silva held up. The harder Claude pushed, the more believable Silva was. It was going well. We would win this trial regardless of whether or not we could no longer argue the officer lost sight.
When Silva was done, it was time for closing arguments. Our respective pitches were simple:
I argued that Silva lacked the intention to raise the front wheel and as the offence was one classified as mens rea and as such, the prosecution failed to prove the charge beyond a reasonable doubt.
Claude argued that the offence was one of strict liability and as such Silva had not proven he took all reasonable steps to avoid committing the offence.
Whirlwind trial and the Justice of the Peace adjourned for sentence. We would have to wait. UGH!
What did the Justice of the Peace do? Well… You know we won and you can readR v Silva 2010 ONCJ 121 to see the reasons.
This case was fun to try and Claude and I to this day still talk about it. In a side note. I taught an advocacy course and we used this case as one of the cases for the students to argue. We posed it as a prosecution Appeal. Claude argued the defence side. My student who argued for the prosecution did a great job and I was proud to watch but it was a lot more interesting to see Claude argue the opposite side of a case he prosecuted. It is a testament to how good of a litigator he is.
Another side note. That’s me as a teenager in the picture above. This was before there was stunt driving legislation. If I ever defend you on any traffic offence, remember I’ve probably been there. Maybe that’s why I fight so hard.
Till next time – Drive Fast! Take Chances! And Call me.
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