Tripathi v HMTQ, 2019 NWTSC 23	S-1-CR-2018-000125

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

VIBHESH TRIPATHI
Appellant

- AND -

HER MAJESTY THE QUEEN
Respondent
_________________________________________________________ Transcript of the Appeal Hearing held before The Honourable Justice S.H. Smallwood, sitting in Yellowknife, in the Northwest Territories, on the 13th day of May, 2019.
_________________________________________________________

APPEARANCES:

Mr. V. Tripathi:	On His Own Behalf
Mr. K. Sulzer:	Counsel for the Respondent

(Charges under s. 102.2(1) of Highway Traffic By-law No. 4063)

1	THE	COURT CLERK:	Order.	All rise.	Court is	
2		reconvened, the Honourable Justice Smallwood	
3		presiding.	You may be seated.	
4	THE	COURT:	Okay.	Good afternoon.	So we	
5		are here for the Tripathi appeal?	
6	MR.	TRIPATHI:	Yes.	
7	THE	COURT:	So you are Mr. Tripathi?	
8	MR.	TRIPATHI:	Yes.	
9	THE	COURT:	Okay.	And you are Mr. Sulzer?	
10	MR.	SULZER:	That's correct, yes.	
11	THE	COURT:	Okay.	So, Mr. Tripathi, are	
12		you ready to -- to argue your appeal today?	
13	MR.	TRIPATHI:	Yes, I am.	
14	THE	COURT:	Okay.	And I know that in the	
15		past you had requested a translator, but then you	

had advised the clerk's office that you did not
need a translator.
MR. TRIPATHI:	That's correct.
THE COURT:	All right.	So you are
prepared to proceed today without a translator?
MR. TRIPATHI:	That's correct, yes.
THE COURT:	Okay.	All right.	So I
have -- just to let you know what I have, I have
your notice of appeal that you filled out back in
25	September indicating that your grounds of appeal
are no proof provided by the city of Yellowknife
bylaw and judgment passed over -- it says over

credibility.	So I have that.	I also have the
transcript of the trial that was filed, and I
have reviewed that, and I also have the
information from the Justice of the Peace Court.
So I have the ticket itself, as well as the DVD
that was entered at the trial of the video and
the audio of the traffic stop, and I have
reviewed that, and, as well, I have the other
exhibits which were entered, which were the --
the information from the bylaw.	And so I have
reviewed all of that.	So what I would like you
to do now is to tell me about your appeal, why --
why you -- why you think the justice of the peace
erred or made a mistake in -- in the decision.
MR. TRIPATHI:	There's a few things that I
would like to say.
THE COURT:	Okay.
MR. TRIPATHI:	Well, 'A', I was not able to
see any proof or any indismissible (sic) proof
that was provided that I was holding a cell
phone, and as I explained in the pages of my
transcript that came around, I explain that I was
not using a cell phone, my cell phone at all.	It
was in front of me, and I did not need to see
my -- physically to touch my phone or anything
along those lines in order for me to know that my
phone went off.	So Constable Rowan was next to

me, and he saw my phone go off.	The lights came
on.	It's a bright phone, bright light in the
middle of the night, you can see it, and I'm not
going to deny that, but at no point in time did I
operate my cell phone device while I was behind
the wheel.
THE COURT:	Okay.	Now, one of my
functions as an appeal court judge in this case
is to review the decision.	So that does not mean
we have a trial over again or I make a new
decision.	What I have to do is review the
decision of the justice of the peace.	So that
means usually that I look for errors that they
made, whether it is an assessment of the facts or
an error of law, and so what I would like you to
tell me is what errors you think the justice of
the peace made.
MR. TRIPATHI:	Well, the biggest error, I
would -- sorry, I'm not fully prepared for this
particular question, but the biggest error, I
would say, is not providing me with proof,
indismissable proof for the -- for the ruling
that was made.
THE COURT:	Is there anything else that
you want to say?
MR. TRIPATHI:	Nothing at this point.	I --
not to that matter that you asked.

THE COURT:	Okay.	You can continue if you
have anything else that you would like to say
about the appeal.
MR. TRIPATHI:	Nothing per se regarding the
appeal.	I would kind of just state that --
stating that this is, again, my second time
coming into the court system.	I am unfamiliar
with the rules.	I am unfamiliar with
proceedings.	Credibility happening to be a big
factor when the decision was made last time, it
was very shocking to me.	With that said, I had a
few -- a list of things that I had made which I
guess should prove that I am a relatively
credible person and I'm not trying to find a way
out of the ticket or anything along those lines.
If the Court has time, I would like to mention
that to the Court.
THE COURT:	Okay.	Go ahead.
MR. TRIPATHI:	So as (INDISCERNIBLE) right
now, I am a community leader.	I am a community
member as well.	With that said, I take active
parts in volunteer service and help with a lot of
different societies, starting with -- I am a
trainer, an active member, treasurer, and a board
member of the Yellowknife search and rescue.	I
am -- I am an instructor for women's self-defence
training programs that are run in NWT, primarily

starting with Tree of Peace and training as
required in anywhere around NWT.	I also am an
instructor for youth self-defence programs
wherein we teach youth why bullying is not
acceptable and how to stand up to bullying in a
constructive way.	I am also an instructor at
Arctic Combat Fitness, a member of Kamikaze
Punishment.	That was one of the initiatives
started by an anti-bullying program that is in
place in Northwest Territories.	For my work, I
work at Brinks Canada.	On a daily basis, I am
responsible for safe handling of firearms and
comply with federal firearm regulation and safety
in place, both for work and (INDISCERNIBLE).	I
volunteer primarily also at the Falcon Road SPCA
and other locations.	And in personal life, I'm
good friends to a lot of members in this
community.	I've been -- I do life coaching for
friends, where people can turn towards me and ask
me questions during their down days, when they're
not feeling great, for their family, extended
companions.	I'm a full-time employee and a
student working towards a master's degree.	And
that's basically essentially what my entire
summary is.	This is my fifth time appearing in
the Court itself, and two have been -- has been
based on this ticket.	The past three

convictions, I have them in front of me to
discuss it if needed.
THE COURT:	Okay.	So you -- you've talked
a bit about credibility.	Now, one of the things
in my role as the reviewing court, the appellate
court, is I don't make assessments of credibility
because I am not -- we are not having the trial.
So what you have to do is point to me errors that
you think the justice of the peace made in
assessing credibility because the justice of the
peace is the person who makes the assessments.
And so what I am doing is I'm reviewing that
decision.	So what you need to do is point out
where you think the justice of the peace erred in
assessing credibility.
MR. TRIPATHI:	It kind of falls down on me,
sadly enough, because, 'A', I was not ready to
provide my level of credibility at that point in
time when this was brought up to me, and as I
explained, that this is me -- second time coming
into the court system, and this has never been
something that has been an issue.	At several
points in time, questions were asked by the
justice of the peace, but I'm -- I did not
understand the questions that he was asking.	So
I was not able to make a full appeal, I guess, at
that point in time.	And again, I would go back

to the major point, justice of the peace through
the proceeding was not able to provide me any
indismissable evidence but based on credibility
awarded the case to the City of Yellowknife.
THE COURT:	Okay.	Is there anything else
you want to say?
MR. TRIPATHI:	I -- I think that's all I
have.
THE COURT:	Okay.	I noticed that on your
notice of appeal, you've checked the box that
says you are appealing from conviction and
sentence.	Is there anything you want to say
about the sentence that was imposed?
MR. TRIPATHI:	Sentence not so much.	It's
the conviction that bothers me most.
THE COURT:	Okay.	And is there anything
else you want to say?
MR. TRIPATHI:	Nothing at this point.
THE COURT:	Okay.	All right.	Thank you.
So, Mr. Sulzer, I have reviewed your factum
and the cases that have been provided, so just so
that you know that before you start your
submissions.	So you can go ahead.
MR. SULZER:	Sure.	Thank you, Your Honour.
Understanding that you've reviewed my factum, I
don't feel the need to go through it in detail,
and you've also alluded to addressing the

appellant, some of the questions that you may
need to address in make a decision here.	Unless
you have any questions on the -- on the -- those,
I just point to -- I -- I did -- at the
beginning, I'll say the -- I -- I requested a
dismissal for want of prosecution based on the
appellant's failing to provide a factum.	Having
heard what the appellant has said today, I am
comfortable that what he has said is fairly in
line with what's on the notice of appeal.	If
anything more comes to light through our
proceedings today, I do think that those
questions of prejudice, in terms of the City
being able to address what is raised, could be
raised, but I'm satisfied that the notice of
appeal essentially touches on the main things, so
I'm not too concerned about that; however, I'll
leave that to the Court's discretion regarding
the dismissal for want of prosecution.
So you touched on it -- and sorry, Your
Honour, you touched on the -- the question before
us, and I just want to reiterate at paragraph 32
of my factum the relevant law can be summarized
as follows.	So as is mentioned, it's -- it is
the Court's position to review if there are any
errors in the justice of the peace decision.	So
in deciding whether to allow an appeal, a Court

must assess whether the verdict was one that a
properly instructed jury or judge could
reasonably have rendered, so as you pointed out,
not reassessing the situation.	If assessments of
credibility are made by the trier of fact, an
appeal court cannot interfere with those
assessments unless it is established that they
cannot be supported on any reasonable view of the
evidence.	This is the key point at issue today.
And third, limited details on why a trier of fact
accepted particular evidence despite
contradictions is not in itself a basis for
allowing an appeal.	So, in essence, just because
it was briefly mentioned does not mean that the
trier of fact did not actually assess
credibility.
So in this case, the question is -- I
presume what the appellant is relying on is
Section 686 of the Criminal Code, that the
verdict should be set aside on the ground that it
is unreasonable or cannot be supported by
evidence.	If this Court were to make a decision,
I submit that that would be the -- the section of
the Criminal Code to do so under.	And the City
submits that if there is reasonable evidence on
which to support the -- the Justice of the Peace
Wharton's decision, as mentioned, it's not -- the

Court's role is not to substitute itself, and
when we are discussing credibility, we must bear
in mind the advantageous position that in this
case the justice of the peace had in assessing
that credibility of both witnesses.	So in order
to overturn that -- a verdict based on
credibility, it would need to be -- the decision
would need to be not supported on any reasonable
view of the evidence, and the City submits that
that is not the case in this situation.
Primarily, we have testimony from Constable
Rowan (phonetic) that he observed the appellant
using his cell phone while driving, and there is
also the -- the video evidence, and the -- the
justice of the peace does make mention that it is
of limited value, but it is -- that the justice
of the peace did consider it.
So based on the constable's clear and
unequivocal testimony, the City submits that
there is plenty of evidence on which to support a
conclusion of guilty in this case.	Subject to
any questions, those are my submissions.
THE COURT:	All right.	Thank you.
Mr. Tripathi, having heard Mr. Sulzer, is
there anything that you want to say in reply?
Anything you want to add at this point?
MR. TRIPATHI:	I would like to reply by

saying that the video submitted by the City has
no proof whatsoever of me holding a cell phone.
Constable Rowan did mention -- on the transcript,
basically, Constable Rowan and the Crown, between
pages 20 and 29, it was discussed that there was
about eight to ten seconds of time that Constable
Rowan had while he said -- while he was next to
me, while he observed the phone.	I would like to
point out that at no point in time did Constable
Rowan make any effort to turn the camera to
capture me on my cell phone.	Again, I would like
to see indismissable proof of me holding a cell
phone, and eight to ten seconds being a fairly
large amount of time to just turn a camera.
THE COURT:	Okay.	Is there anything else
you want to add?
MR. TRIPATHI:	No, that should be all for
that.
THE COURT:	Okay.	Thank you.	I'm going
to take a few minutes.	So we will adjourn for
20 minutes, and I will give you a decision.
THE COURT CLERK:	All rise.	Court is adjourned
for 20 minutes.
(ADJOURNMENT)
THE COURT CLERK:	Order.	All rise.	Court is
reconvened.	You may be seated.
THE COURT:	This is a summary conviction

appeal by the appellant, Vibhesh Tripathi,
following a trial in justice of the peace court
before a justice of the peace -- Mr. Tripathi?
MR. TRIPATHI:	Oh --
THE COURT:	Oh, no.	You do not have to
stand.	You can remain seated.
Before a justice of the peace on August
15th, 2018.	The appellant was charged with using
a restricted electronic device, contrary to
Section 102.2(1) of the City of Yellowknife's
Highway Traffic By-law Number 4063.	The
appellant pleaded not guilty, and a trial was
held.	The City of Yellowknife called the officer
who stopped the appellant and introduced a video
and audio recording of the traffic stop.	The
appellant testified on his own behalf.	Following
the trial, the justice of the peace found the
appellant guilty and imposed a fine of $140.
The appellant appeals from his conviction
and sentence on the following grounds as stated
in his notice of appeal:	no proof provided by
City of Yellowknife bylaw, judgment passed over
credibility.
With respect to the facts, it is undisputed
that the appellant was operating a motor vehicle
at approximately 8:54 p.m. on March 15th, 2018,
in Yellowknife.	Constable Roland, a municipal

enforcement officer employed by the City of
Yellowknife, was on duty and was on patrol
travelling northbound when he stopped at a red
light at the intersection of Old Airport Road and
Borden Drive.	The appellant was operating a
vehicle going in the same direction and stopped
in the left turn lane beside the officer.
Constable Roland testified that he observed
the appellant holding a rectangular device in his
lap and saw him manipulating it with both hands.
He testified that the appellant was using both
hands to operate the device, and he could see
text or chat bubbles appearing on the device
screen.	When the light turned green, the officer
initiated a traffic stop and issued a ticket to
the appellant.	The City also presented dash cam
evidence from the officer's vehicle which
captured the audio of the traffic stop but
because of the angle of the video camera was not
able to provide evidence of the actions of the
appellant while stopped at the red light.
The appellant testified in the trial and
disputed that he was using his cell phone.	The
appellant testified that he did not have his cell
phone in his hand while stopped and that he did
not use his cell phone.	He testified that his
cell phone was in a cup holder in the centre

console of the vehicle and that he had looked
over at the screen as he received a message from
his friend and never held or operated or
manipulated the device.
The appellant argues that the decision of
the justice of the peace does not provide
sufficient proof that he is guilty of the
offence.	He disputes the factual findings made
by the justice of the peace.
Essentially, the issue, the legal issue, on
this appeal is whether the verdict was
unreasonable, not supported by the evidence, or
such that it constituted a miscarriage of
justice.
This is a summary conviction appeal, which,
pursuant to Section 2 of the Summary Convictions
Procedures Act, R.S.N.W.T. 1988, c.S-15, states
that the provisions of the Criminal Code relating
to summary conviction offences apply to municipal
bylaws.
The standard of review on a summary
conviction appeal is the same as stated in
Section 686(1) of the Criminal Code, which
states:
On the hearing of an appeal against a
conviction[...] the court of appeal
(a) may allow the appeal where it

is of the opinion that
(i) the verdict should be set
aside on the ground that it is
unreasonable or cannot be
supported by the evidence,
(ii) the judgment of the trial
court should be set aside on
the ground of a wrong decision
on a question of law, or
(iii) on any ground there was a
miscarriage of justice.
The standard of review has been stated in
the case of R. v. Okpatauyak, 1997 CanLII 4497
(NWTSC), that it is
[...] whether the verdict is
unreasonable, not whether it is
unjustified.	The function of the
Court is not to substitute itself for
the jury but to decide whether the
verdict is one that a properly
instructed jury acting judicially
could reasonably have rendered.
When it comes to assessments of credibility,
deference is shown to the trial judge because of
their ability to observe the witnesses and to
assess their credibility.	The assessment of the
credibility of witnesses is a question of fact in

which deference is shown, and the assessments of
credibility will not be interfered with
[...] unless it is established that
they "cannot be supported on any
reasonable view of the evidence."
Okpatauyak, supra; R. v. Wetzel, 2013 SKCA
7	143 at para. 21.
In assessing a trial court's decision, the
appellate court should not substitute their own
view for that of the trial judge.	The appellate
court is entitled to review, re-examine, and
reweigh the evidence, but only for the purpose of
determining if the evidence was reasonably
capable of supporting the trial judge's
conclusion.	R. v. Bobyn, 2010 SKQB 240 at para.
16	9.
In this case, the appellant was charged with
using a restricted electronic device.	The
officer testified that he saw the appellant using
a rectangular device with both hands while the
appellant was stopped at a traffic light.	The
officer was in a vehicle beside the appellant's
vehicle, and the officer testified that he saw
the appellant manipulating the device with both
hands and observed text or chat bubbles appearing
on the device screen.
The appellant testified that he did not have

his cell phone in his hand and did not use his
cell phone, and he testified that his phone was
in the cup holder, and he looked over at the
screen but never held, operated, or manipulated
the device.
The audio recording of the traffic stop
indicated that the officer said to the appellant
that the reason for the stop was that "when you
were beside me there, you were on your cell
phone, using it with both hands."	The appellant
responded, "Well, I was at a stop sign.	I just
wanted to -- I was asking my friend if they
wanted a coffee."	The appellant then went on to
say to the officer that he did not know that he
could not use his cell phone while stopped at a
red light or a stop sign.
When the appellant testified, he explained
that he had asked his friend if he wanted coffee
and that as he was parked at or stopped at the
traffic light, the friend had responded to say
that they did want coffee and that he had looked
over to the device in the cup holder to see the
response, but he had not been holding the device.
The justice of the peace had evidence before
him from the officer and the audio recording.
The officer was clear in his evidence about his
observations, and his evidence was not undermined

in cross-examination.	The justice of the peace
concluded that the City of Yellowknife had proven
its case and found the appellant guilty.
While the appellant in his arguments today
refers to not seeing indisputable proof that he
was guilty of the offence, it is the justice of
the peace who must be satisfied that the Crown --
in this case, the City of Yellowknife -- has
proven the guilt of the appellant beyond a
reasonable doubt.	It is not to the standard of
absolute certainty.	In this case, it is clear
that the justice of the peace felt the City had
met its burden.
While the justice of the peace initially
stated that he found both witnesses to be
credible, it is apparent from the rest of the
decision that the justice of the peace accepted
the evidence of the officer in conjunction with
the statements made by the appellant at the
traffic stop, which led him to reject the
appellant's evidence and find the appellant
guilty.
While the reasons of the justice of the
peace are not extensive, it is apparent that the
justice of the peace analyzed the evidence of the
officer, of the appellant, and of the audio
recording of the traffic stop in coming to his

decision.	In reviewing the decision, it is clear
that the evidence of the officer, along with the
audio recording of the stop, were sufficient to
satisfy the justice of the peace beyond a
reasonable doubt that the appellant was guilty of
the offence charged.	In my view, there was
sufficient evidence to support the justice of the
peace's conclusion, and I keep in mind that it is
not my role to retry the case or to decide what
decision I would have made, but it is to assess
the justice of the peace's decision.
It was open to the justice of the peace to
assess the officer's and the appellant's
credibility.	My function is not to reweigh the
evidence or to determine the issues anew but to
determine whether the justice of the peace's
assessment can be reasonably supported by the
evidence.	In my view, the justice of the peace's
assessment accepting the officer's credibility,
in conjunction with the audio evidence presented,
is reasonably supported by the evidence.	In
order to come to a different conclusion, the
decision would have to be unreasonable,
unsupported by the evidence, or amount to a
miscarriage of justice.	I am not satisfied that
any of those circumstances exist; therefore, I am
dismissing the appeal from conviction.

In addition, I have not heard any arguments
against the sentence.	The appellant stated that
his real issue is with the conviction; therefore,
having not heard any arguments against the
sentence, I also dismiss the appeal from
sentence.
All right.	Thank you.
THE COURT CLERK:	All rise.	Supreme Court is
now closed.
10	-----------------------------------------------------
11	CERTIFICATE OF TRANSCRIPT
12
I, the undersigned, hereby certify that the
foregoing transcribed pages are a complete and
accurate transcript of the digitally recorded
proceedings taken herein to the best of my skill and
ability.
Dated at the City of Edmonton, Province of
Alberta, this 3rd day of June, 2019.
20
Certified Pursuant to Rule 723
of the Rules of Court
23

25	__________________________
Joanne Lawrence
Court Transcriber