R. v. Adeagbo, 2017 ONCJ 203
CITATION: R. v. Adeagbo, 2017 ONCJ 203
DATE: March 29, 2017
Between
Regina and Samuel Adeagbo
Ontario Court of Justice
Toronto, Ontario
P. H. Kowarsky J.P.
Heard: March 10, 2017
Judgment: March 29, 2017
Representation:
Mr. B. Stone: Provincial Prosecutor
Mr. C. Rudnicki: Defence Counsel
REASONS FOR JUDGMENT
A. THE CHARGE
- The defendant is charged with Driving While under Suspension contrary to section 53(1) of The Highway Traffic Act.
B. THE EVIDENCE OF THE PROSECUTOR’S CIVILIAN WITNESS
- The evidence of civilian witness Mr. C. Wint may be summarised as follows:
a) On January 1, 2015 he was driving a motor vehicle northbound on Highway 400, just north of Highway 401 in the City of Toronto.
b) At about 8:30 am he saw a black 4-door motor vehicle ahead of him suddenly swerve across all lanes to the right and collide with the barrier on the right hand side shoulder. It spun around and then came to a stop.
c) He pulled over to the side of the highway. His wife, who was a passenger in his motor vehicle, called 911 while he went to the scene of the collision to check on the driver who was the only person in the vehicle.
d) He testified that the defendant, who was sitting in the body of the court, was the person who had been driving the black sedan when the collision occurred.
e) The airbags had been deployed, the vehicle was badly damaged,
and he managed to help the driver exit the vehicle.
f) Fire trucks, an ambulance and an OPP Officer arrived on scene.
g) He provided a statement to the police officer.
- Defence counsel declined to cross examine the witness.
C. THE EVIDENCE OF THE INVESTIGATING OFFICER
- The prosecutor called OPP Officer Anwar Muhammad, badge number 13505. A summary of his testimony is set out below.
a) On January 1, 2015 at about 9:30 am, he received a radio call to attend the scene of this accident on highway 400 near highway 401.
b) He observed a single vehicle blocking the last lane on the right side of the northbound highway. It was a 1998 black Acura 4-door motor vehicle bearing Ontario licence plate number BRWT 025.
c) A male was standing beside that vehicle. Officer Muhammad pointed to him, and asked: “Who was driving this car?” He responded: “I was driving.”
d) The officer was concerned about that driver’s injuries but he refused any medical attention. There was extensive damage to the vehicle.
e) That driver provided the officer with a statement. Consequently, I ordered that a Voir Dire be held to determine the voluntariness of that statement.
- Defence counsel stated that there was no need for a Voir Dire, and that he conceded the statement. Accordingly the officer testified that the driver said:
a) “I was driving. Just me in the car.
b) The officer asked whether he was hurt to which he responded: “Ok. Ya man.”
c) Officer: “Do you need an ambulance? Response: “No, I’m OK.”
d) Officer: “What happened?” Response: “Don’t know. Just tired.”
e) Officer: “Are you on medication?” Response: “Yes. I’m bi-polar.”
f) The officer asked whether he had the medication on him. Response: “No.”
- The officer made a demand for his driver’s licence, ownership and proof of insurance.
Response: “I don’t have anything.”
Officer: “Where is your driver’s licence?”
Response: “At home.”
The driver verbally identified himself as Sany Pirang with a date of birth of 18 May, 1988, and an address of 88 Finch Avenue West in Toronto.
The officer testified that he went to his police cruiser, and using his on board computer, he accessed the website of the Ministry of Transportation to endeavour to verify the verbal identification which had been provided. He was unable to locate a driver’s licence in the name of Sany Pirang.
The officer again asked the driver for his identification. The driver repeated the information which he had previously given. The officer cautioned him about providing false information.
Officer Muhammad then took the driver to the police station at Keele Street and Highway 401 where he again used a computer to access the Ministry of Transportation’s website.
While doing so, Officer Cheeseman approached him and handed him what appeared to be a work-related document with a photograph which matched the driver, who had identified himself as Sany Pirang. Officer Cheeseman advised that she had located that document on the person of the driver. The name on that document was Samuel Adeagbo.
Officer Muhammad then compared that photograph with the driver’s licence photograph of Samuel Adeagbo on the Ministry of Transportation data base, and found the two photographs to be identical. Both photographs were a direct match to the driver, who was present at that time.
The Ministry’s data base listed the name of Samuel Adeagbo having a G2 driver’s licence number A18166887880705 with his date of birth being 5, July 1988, and a residential address of 40 Fountainhead Road, Apartment #505, Toronto. The licence was noted to be subject to certain conditions. The officer then charged Samuel Adeagbo with the offence before the court.
At the conclusion of Officer Muhammad’s testimony, defence counsel declined my invitation that he cross examine the officer.
D. MINISTRY OF TRANSPORTATION DOCUMENTS
- In support of the evidence of Officer Muhammad, the Prosecutor handed the following two documents to the court which were admitted into evidence as exhibits:
EXHIBIT #1
A Certificate dated March 10, 2015 under the signature of the Registrar of Motor Vehicles and the seal of the Ministry of Transportation certifying that driving licences and ancillary information records are required to be kept by the Ministry of Transportation under the Highway Traffic Act. This document certifies that the driver’s licence of SAMUEL OLUSEGUN ADEAGBO, a male person born the 5th day of July 1988, whose latest address is 505-40 Fountainhead Rd; North York, Ontario, was suspended effective the 25th day of July 2012 pursuant to a Court Order under the Highway Traffic Act for default of payment of a fine.
The document further certifies that a notice of this suspension, a copy of which is hereby annexed, was forwarded by mail on the 25th day of July 2012 to the aforementioned SAMUEL OLUSEGUN ADEAGBO at the aforementioned address which then was the latest address on the records of the Ministry, and that the said suspension was in effect on the 1st day of January 2015 (which is the date of the offence in this case.)
Finally, the document further certifies “that the copies of all writings, papers and documents annexed hereto constitute true copies of the said writings, papers and documents filed in the Ministry of Transportation.”
EXHIBIT #2
A Certificate dated March 10, 2015 under the signature of the Registrar of Motor Vehicles and the seal of the Ministry of Transportation certifying that driving licences and ancillary information records are required to be kept by the Ministry of Transportation under the Highway Traffic Act. This document certifies that the driver’s licence of SAMUEL OLUSEGUN ADEAGBO, a male person born the 5th day of July 1988, whose latest address is 505-40 Fountainhead Rd; North York, Ontario, was suspended effective the 12th day of November 2013 pursuant to a Court Order under the Highway Traffic Act for failure to satisfy the court judgment.
The document further certifies that a notice of this suspension, a copy of which is hereby annexed, was forwarded by mail on the 13th day of November 2013 to the aforementioned SAMUEL OLUSEGUN ADEAGBO at the aforementioned address which then was the latest address on the records of the Ministry, and that the said suspension was in effect on the 1st day of January 2015 (which is the date of the offence in this case).
Finally, the document further certifies “that the copies of all writings, papers and documents annexed hereto constitute true copies of the said writings, papers and documents filed in the Ministry of Transportation.”
- The prosecutor then closed the case for the prosecution.
E. THE EVIDENCE FOR THE DEFENCE
- Defence counsel informed the court that the defence would not be calling any evidence, and closed the case for the defence.
F. THE SUBMISSIONS OF THE PROSECUTOR
- The prosecutor made brief submissions indicating that the evidence warrants a conviction, and asked the court to do so.
G. THE SUBMISSIONS OF THE DEFENCE
The essence of defence counsel’s submissions is that the prosecution had failed to prove an essential element of the offence, namely the identification of the defendant. He stated that there was ‘no evidence’ before the court which identifies the person before the court as the defendant who is charged, and he submitted two cases to the court purporting to support his submission.
The first is R. v. Williams, [2005] O.J. No. 4429 (O.C. J.) which was a charge of False identification – Obstruct Police. The case summary reads as follows:
“Application for a directed verdict allowed – no evidence before trial judge upon which accused could be convicted – Officer charged accused Williams as a result of a mugshot of an individual named Williams – Accused had been arrested under name of Gunn – There was no evidence that correct name of person on mugshot was Williams.”
At paragraph 3: “The evidence from the primary officer in this case is that subsequent to releasing the individual before the court under the name of Melecia Gunn he viewed a mug shot on the RIKKI system labelled Tamra Williams and as a result he concluded that the individual who he had originally arrested was, indeed, Tamra Williams and therefore she was charged with the offence that is before the court.”
- Defence counsel referred me to paragraph 4 which reads as follows:
“Even if I were to conclude that the photograph that the officer viewed was of the individual before the court there is no admissible evidence before me that the correct name of the person in that photograph is Tamra Williams. The naming of the photograph is essentially hearsay evidence as the photo was obviously labelled by another individual at another time and I have not heard from that individual, nor do I have any information as to how that individual determined that this was the name of the person that was photographed. As such I do not accept that the name applied to the photo on the RIKKI system is evidence of the identification of the person in that photo, nor is it an identification of the individual that's seated before me in the court.”
The second case submitted by defence counsel is R. v. Levene, [2008] O.J. No. 5964 (Ont. S. C.). The accused was charged with obstructing a peace officer by identifying himself with a false name contrary to section 129(a) of the Criminal Code.
At paragraph 2: “The Respondent was charged following an investigation into a motor vehicle collision that led to his interaction with P.C. Howard of the Toronto Police Service on June 7, 2006. It is alleged that the Respondent falsely identified himself to P.C. Howard as Dwayne Gamble or Chris Gamble.”
At paragraph 3, the Court quoted from the decision of the Court below where Nakatsuru J. stated that “The Crown must prove the falsity of this name in order to establish that this accused has committed the offence of obstruct peace officer.”
At paragraph 10, Belobaba J. stated: “I will refer to the excerpts (from the judgment of the court below) by their paragraph number.
Paragraph 16: "In proving the false name, the Crown relies on the presence of the accused before the court in answer to the name Levene and the fact that he was arraigned in court under that name."
Paragraph 18: "The Crown argues that the fact this accused has attorned to the jurisdiction of this court should be evidence of the accused's real name from which the Crown can prove he gave the false name of Gamble."
Paragraph 20: "The fact that an accused does not dispute the jurisdiction of the court over his or her person is not equivalent to some proof of his or her true identity as an element of the offence that the Crown must prove."
Paragraph 21: "It can be presumed that the court has jurisdiction over the offender when he or she is present. This is different from proof of the identity of the accused before the court when it is an element of the offence that the Crown must prove."
Relying on those two judgments, defence counsel submitted that there is no admissible evidence that the defendant before this court is the person whose driver’s licence was under suspension at the time of the offence. He submitted that all of the identification evidence provided by Officer Muhammad, as well as that of Officer Cheeseman, and the Exhibits before the court, is hearsay evidence, and consequently inadmissible.
Defence counsel proffers that this court is bound by the two decisions of the higher courts by virtue of the principle of Stare Decisis. And since there is no proof of identification which is an essential element of the offence in this case, the court must dismiss the charge against the defendant before this court.
G. ANALYSIS AND FINDINGS
At the scene of the accident, the person standing next to the damaged vehicle informed Officer Muhammad that he was the driver. When the officer asked him to provide his driver’s licence, he said that it was at his home. When the officer asked him for verbal identification, the driver identified himself as Sany Pirang with a date of birth of 18 May, 1988, and an address of 88 Finch Avenue West in Toronto.
Naturally, the officer then used his on-board computer in an effort to confirm that identification in the Ministry of Transportation’s data base. He did not find a driver’s licence in the name of Sany Pirang.
He again asked the driver for his identification, and the driver repeated what he had previously said. Obviously, the officer was suspicious since the driver had said that his driver’s licence was at his home, which would imply that the Ministry of Transportation would have a record of a driver’s licence in the name of Sany Pirang, which it did not.
Officer Muhammad then transported the defendant to the police station, and once again endeavoured to locate the record of a driver’s licence in the name of Sany Pirang on the Ministry of Transportation’s website.
While doing so, he was approached by Officer Cheeseman who handed him a document with the name of Samuel Adeagbo on it and a photograph of the driver of the vehicle which had been involved in the accident under investigation. The photograph matched the likeness of the driver. Officer Cheeseman indicated that she had found it on the person of the driver, and that it appeared to be a work-related document.
At this point, Officer Muhammad located the record of a driver’s licence in the name of Samuel Adeagbo in the data base of the Ministry of Transportation, and he was satisfied that the driver was in fact Samuel Adeagbo, and not Sany Pirang for whom there was no evidence of a driver’s licence in the data base of the Ministry of Transportation.
The officer then charged the driver with the offence before the court by serving him with a Part III summons under the Provincial Offences Act.
Defence counsel proffers that the only evidence of identification is hearsay, and therefore inadmissible. I am satisfied that the investigating officer’s testimony that Officer Cheeseman had actually given him the document, and that he had it with him in court is not hearsay. However, since Officer Cheeseman did not testify regarding that document, her evidence of having located the document in question on the person of the defendant is likely hearsay.
Is that evidence per se inadmissible? It would be inadmissible unless it is deemed not to be hearsay by the trier of fact or is covered by exceptions to the hearsay rule.
In “The Law of Evidence in Canada” by Sopinka, Lederman and Bryant at page 161, the learned authors, quoting Dickson J. in R. v. O’Brien, 1977 CanLII 168 (SCC), [1978] 1 S.C.R. 591 state as follows:
“It is settled law that evidence of a statement made to a witness by a person who is not himself called as a witness is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement; it is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.”
- And at page 162, the learned authors, citing R. v. Babcock, 1984 ABCA 291, 16 C.C.C. (3d) 26, state the following:
“It should be pointed out that the determination of whether evidence constitutes hearsay or not is a question of law for the trial judge …..”
- And citing R. v. Baltzer, 1974 CanLII 1668 (NS CA), 27 C.C.C. (2d) 118:
“Again, the purpose for which the statement is tendered is determinative of whether the statement is hearsay.”
Let me set out the circumstances of this case in relation to whether or not the evidence in relation to Officer Cheeseman is admissible. The evidence of the investigating officer is that he received a document from Officer Cheeseman, which she said she located on the person of the driver. I find that the issue of where she found it and whether it represents the identity of the defendant is not an issue. It was the right of the investigating officer, when he saw that document, to use it to try and locate a driver’s licence in the name that was on that document. He did so, and located the driver’s licence of Samuel Adeagbo, and then charged him accordingly.
It is extremely helpful when reviewing the circumstances surrounding this case to note that the address of Samuel Adeagbo in the records of the Ministry of Transportation is listed as 505- 40 Fountainhead Road, Toronto, which is the precise address provided to the court by the defendant in his Notice of Motion dated August 29, 2016, requesting a change to the trial date of November 29, 2016.
I find that the investigating officer had every right in all the circumstances to investigate the identity of the driver after he was unable to locate a driver’s licence record in the data base of the Ministry in the name which the driver had provided to the officer at the scene. This is so particularly in light of the fact that the evidence is that the driver told the officer that his driver’s licence was “at home,” the purport of which is that he does have a driver’s licence in the name of Sany Pirang at his home located at the address which he provided, being 88 Finch Avenue West, Toronto.
The identification document which Officer Cheeseman gave to the investigating officer in itself enabled the officer to locate the actual driver’s licence in the name of the defendant.
Corroboration of the evidence that the defendant’s licence was under suspension at the time of the offence, is found in the two Exhibits submitted by the prosecutor and accepted into evidence.
Under the Highway Traffic Act : “A copy of any document filed in the Ministry under this Act, or any statement containing information from records required to be kept under this Act, that purports to be certified by the Registrar under the seal of the Ministry as being a true copy of the original shall be received in evidence in all courts without proof of the seal, the Registrar’s signature or the manner of preparing the copy or statement, and is proof, in the absence of evidence to the contrary, of the facts contained in the copy or statement.” 2008, c. 17, s. 46.
Furthermore, the legislation regarding the admissibility of public or official documents and copies of public books or documents is set out in sections 29 and 32 of the Ontario Evidence Act.
I find that both cases submitted by defence counsel are distinguishable from the case at bar in that the identification evidence being relied upon by the prosecution in this case is not that the accused entered a plea nor that the testifying officer identified him in court as the driver nor that he attorned to the jurisdiction of this court.
Both R. v. Williams and R. v Levene are cases in which the accused was charged under the Criminal Code with giving false identification to the police. In Williams, the only means of identification was a “mugshot” that the police had taken, and filed under the RICI system, which is a police data base that stands for “Repository for Integrated Criminalistic Imaging.”
The case at bar is a matter prosecuted under Part III of the Provincial Offences Act. The identification evidence was from a driver’s licence record legally required to be kept by the Ministry of Transportation, and, having received the document which had allegedly been found on the person of the defendant at the police station, Officer Muhammad located a driver’s licence in the name of the defendant.
That licence includes the photograph of the defendant which is required to be taken of all drivers upon being granted licences, and therefore voluntarily provided. The photograph on the licence clearly matched the defendant who was present at the time that the investigating officer located the licence on the Ministry data base. Also, the address on the licence was identical to that which had been provided to the court on a Notice of Motion which the defendant had previously filed in relation to the change of a trial date. Such surrounding circumstances, while not evidence per se, cumulatively with the direct evidence, point to the defendant in the case before me. As many courts including the highest court in the land have indicated on more occasions than can reasonably be counted: Common sense should be the bedrock in determining evidence at all trials. This concept applies to the case at bar in all the circumstances.
By way of example I cite the case of R. v. Chehil, 2013 SCC 49, which is a unanimous judgment of the Supreme Court of Canada. In upholding the legality of a warrantless sniffer dog search for prohibited drugs, Karakatsanis J., speaking for the entire court, made the following cogent comment:
“Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience.”
- It behoves me to make some reference to the philosophy behind the Provincial Offences Act, and in doing so, I refer to the case of R. v. Golden, [1985] O.J. No. 2006, a decision of Montgomery J. of the Ontario Provincial Court, as it then was. At paragraph 8, the learned judge makes the following comments:
“Now another case that I’m aware of is Regina vs. Jamieson. I again don’t have the citation in front of me. It’s an Ontario Court of Appeal decision. It was heard also in November 1981. In that case the Court of Appeal of Ontario commented upon the philosophy behind the Provincial Offences Act. The philosophy that was pointed out by that court was to the effect that the Provincial Offences Act was intended to establish a speedy, an efficient, and convenient method of dealing with offences under acts of the legislature or under regulations made pursuant to acts of the legislature, and they pointed out that the courts, in hearing the Provincial Offences matters, were given a wide discretion as to how they were to be proceeded with. They also pointed out that the Provincial Offences Act was not intended as a trap for anybody, whether it’s the Crown or whether it’s the individual or the civilian who is served with notices.”
In Levene, the Crown was required to prove the falsity of the name which the accused had provided to the police. For identification, the Crown relied on the presence of the accused in court at the trial, the fact that he answered to the name under which he had been charged, and entered a plea after being arraigned. In my view, there is no comparison between the identification evidence in that case and that in the case at bar.
I find that in this matter before me, the identification evidence is probative and fully supports the case for the prosecution. There is no evidence contradicting the evidence of the investigating officer. The circumstantial evidence outlined herein is unexplained nor is it contradicted. The defendant simply chose not to testify, which of course, is his right. Nordheimer J. stated in R. v. S.B., 2013 ONSC 3139, [2013] O.J. NO. 2462 (Ont.S.C.):
“I am fully aware of the right of each of the accused to remain silent. I am also fully aware that no inference can be drawn from the failure of an accused to give evidence. That said, there is nevertheless a recognized principle, referred to in many cases, that where circumstantial evidence, if unexplained or uncontradicted, establishes the guilt of a person, then, absent some explanation being offered, the accused person must expect that a conviction will follow.”
- Finally, pursuant to section 37 (6.1) of the Canada Evidence Act –
“The court may receive into evidence anything that, in the opinion of the court, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base its decision on that evidence.”
H. CONCLUSION
- For all of these reasons, I am satisfied that the prosecution has proven the charge of Driving While under Suspension against the defendant, Samuel Adeagbo, beyond a reasonable doubt, and there will be a finding of guilt.
P. H. Kowarsky J.P.