COURT OF APPEAL FOR ONTARIO
Rouleau, Hoy and Trotter JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Theodore Flowers
Appellant
Theodore Flowers, in person
Zachary Kerbel, appearing as duty counsel
Jessica Smith Joy, for the respondent
Heard: December 9, 2020 by teleconference and videoconference
On appeal from the conviction entered on September 18, 2019, and the sentence imposed on November 8, 2019, by Justice Diane M. Lahaie of the Ontario Court of Justice.
REASONS FOR DECISION
Introduction
1The appellant was charged with possession of stolen property under $5,000 (Criminal Code, R.S.C. 1985, c. C-46, s. 354(1)(a)), dangerous operation of a motor vehicle (s. 249(1)(a)), and three counts of operating a motor vehicle while disqualified (then s. 259(4); now s. 320.18). He was found guilty on all but one of the counts of driving while disqualified.
2On October 18, 2017, the police were on the lookout for a stolen vehicle with a particular licence plate. That afternoon, D.C. Ben Meireles was in an unmarked police car at the side of the road when he saw a vehicle bearing this plate. The vehicle slowed down and then drove off at a high rate of speed. At the time, D.C. Meireles was on the phone with another officer who said the driver might be the appellant. D.C. Meireles decided to follow the car but noticed that it did a U-turn and was traveling back towards him, again at a high rate of speed. For his own safety, the officer backed his car into a driveway. The vehicle in question approached and slowed down. D.C. Meireles could see that there was a passenger in the vehicle. He locked eyes with the driver and recognized him as the appellant.
3By way of background, the appellant was well-known to the local police. D.C. Meireles had encountered the appellant earlier in the year during an investigation of an unrelated matter. During his examination-in-chief, he acknowledged that it was not until after the encounter that a fellow officer told him that they had just been dealing with the appellant. As D.C. Meireles explained, “And I was, oh yeah, you’re right. I didn’t recognize – I think he had longer hair. So that’s why I knew who Mr. Ted Flowers was”. D.C. Meireles had also seen a photograph of the appellant while working for the Street Crime Unit.
4Returning to the events in question, the appellant drove away and crossed an intersection in excess of 100 km/h, without braking or stopping, almost colliding with another vehicle.
5The police looked for the appellant later that day, but he could not be found. Police located him the following day. At about 5 p.m., two officers saw the appellant driving in a pickup truck bearing the same licence plate. They saw him for a brief period of time through the windshield. Both officers recognized the appellant through their work on other investigations. One officer had the appellant’s mugshot in his notebook; the other had seen his photograph on the police and MTO databases. Not wishing to engage with the appellant at the time, they lost sight of his vehicle. However, about half an hour later, these same two officers followed up on a lead and found the appellant at an auto recycling business. He was standing at the back of the truck. When the officers went to arrest him, the appellant attempted to run to the driver’s side door of the truck, which still had its engine running. The officers arrested the appellant.
6The matter proceeded to trial. The appellant did not testify.
7In her reasons for judgment, the trial judge identified the following three issues: (1) whether the Crown proved that the appellant was the driver of the truck beyond a reasonable doubt; (2) if the appellant was the driver, whether the Crown proved that he drove in a dangerous manner; and (3) whether the Crown proved that all of the three driving prohibitions previously imposed were in force at the relevant time. The trial judge answered the first two questions affirmatively, but concluded that only two of the driving prohibitions were in force at the time of the offences.
8With the assistance of duty counsel, the appellant submits that the trial judge erred in finding that the appellant was the driver, resulting in an unreasonable verdict. The appellant also submits that, if identification was properly established, the Crown failed to prove that the appellant drove in a dangerous manner. Lastly, the appellant contends that the trial judge erred in finding that the appellant knew that the licence plate was stolen.
9We would reject each of these grounds of appeal.
Identification
10With the assistance of duty counsel, the appellant submits that the identification evidence of D.C. Meireles was “worthless”. He points to a number of case-specific frailties in his evidence, including that: D.C. Meireles only had a fleeting glance through two windshields; he was concerned for his own safety at the time; he had been told by another officer that the driver might be the appellant; he gave no description of the driver; and his prior association with the appellant was minimal at best.
11The trial judge rejected many of these same submissions. She recognized that “[t]he dangers inherent in eyewitness identification evidence have been the subject of much comment in many notable cases.” Among the cases she cited, the trial judge referred to R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501 – a case concerning circumstances in which the accused person is known to the identification witness. The trial judge cautioned herself in the following way: “I have directed my mind to the principle that [it] is the reliability of the eyewitness’ identification that must be established and that there is a danger in an honest but incorrect identification.”
12Duty counsel submits that, although the trial judge expressed the need for caution, her reasons do not reflect that she approached the evidence in this manner. We disagree. The trial judge explained why she was prepared to find that the appellant had been identified beyond a reasonable doubt based solely on D.C. Meireles’ evidence. She noted that D.C. Meireles did not express any uncertainty regarding who he had seen. Additionally, she found that he would have been able to identify the appellant at a distance because he had seen him earlier that year. D.C. Meireles’ evidence permitted her to safely make this finding.
13The trial judge also pointed to what she described as “overwhelming confirmatory evidence.” This consisted of the evidence of the two officers who saw the appellant the following day driving a vehicle with the same stolen license plate. These officers were familiar with the appellant. Indeed, one of them had kept the appellant’s mugshot in his police notebook for weeks as he had been looking for him in relation to another matter. The trial judge also found the encounter at the auto recycling business to be confirmatory. As she explained:
I am convinced beyond a reasonable doubt that Mr. Flowers tried to get around the truck to get to the driver’s door to get away, behaviour which is consistent with the behaviour he exhibited the previous day when Cst. Meireles encountered him and activated his emergency equipment on a rural road. Simply put, Mr. Flowers was not going to be apprehended without trying to get away.
14In our view, based on the entirety of the evidence, it was open to the trial judge to reach this conclusion. The verdict was not unreasonable.
Dangerous driving
15Similarly, the evidence supported the trial judge’s finding that the appellant drove the pick-up truck in a dangerous manner. She properly instructed herself on the need for the Crown to prove that the appellant’s driving constituted a marked departure from the standard of care expected by a reasonable person in the circumstances, making reference to R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49.
16Duty counsel submits that the trial judge failed to sufficiently scrutinize the evidence. In particular, he submits that the trial judge failed to account for the fact that D.C. Meireles was 800 metres away when he purported to make his observations.
17We would not give effect to this submission – in effect, a challenge to the trial judge’s factual findings – which are entitled to deference on appeal. In our view, the scenario described by the officer provided more than an ample foundation for the trial judge’s conclusion.
The Licence Plate
18The appellant submits that the trial judge did not properly explain why she concluded that the appellant knew that the licence plate was stolen. However, this was not a live issue at trial. Neither counsel made submissions on the issue. The trial judge noted that it was conceded that the licence plate was stolen.
19We would dismiss this ground of appeal.
Conclusion and Disposition
20The appeal against conviction is dismissed. Although the appellant had originally appealed his sentence, he abandoned that aspect of his appeal during the oral hearing. It is dismissed as abandoned.
“Paul Rouleau J.A.”
“Alexandra Hoy J.A.”
“Gary Trotter J.A.”