Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Stephanie Smith
Judgment
Before: Justice Joseph F. Kenkel
Heard: March 22, 23; May 4, 2017
Delivered: May 4, 2017
Counsel:
- Mr. Kevin Pitt, counsel for the Crown
- Ms. Loredana Booth, counsel for the defendant
KENKEL J.:
Introduction
1A retired police officer found a car "nose first" in the ditch along Vivian Road. The car was at a 90 degree angle to the roadway. The witness spoke to two women in the car and confirmed they were not hurt. She called 911 and police attended to assist. Ms. Smith is charged with operating a motor vehicle while her ability to do so was impaired by alcohol contrary to s. 253(1)(a).
2The defence concedes that Ms. Smith had been drinking that evening to the point where she was intoxicated. The sole issue at trial is whether the Crown has proved beyond a reasonable doubt that the accused was the person who was driving the car.
Identification – The Evidence
3Ms. Quzor identified the accused Ms. Smith as the person who had been in the driver's seat of the crashed vehicle. She said Ms. Smith got out of the driver's seat and spoke with her briefly. Ms. Smith then got back into the driver's seat. Ms. Quzor said she saw a passenger in the vehicle reclined. That person had lighter coloured hair and looked younger.
4Ms. Quzor did not remember what the driver was wearing but she agreed in cross-examination that it was a Halloween costume and that it was "something short." The driver she spoke to was "scantily dressed" but she couldn't remember any details. She could not remember what the passenger was wearing. When asked about physical details related to impairment the witness explained that it was dark so she couldn't see features such as "blurry eyes etc."
5Ms. Quzor said she remembered the accused's pierced eyebrow as a distinct feature. In cross-examination the defence put to the witness a portion of the statement she provided to the police three and a half weeks after the incident. The statement was read for another purpose but it showed that Ms. Quzor mentioned the pierced eyebrow as a feature identifying the driver at the time of the statement. Ms. Quzor did not recall if the other woman in the vehicle had piercings. Ms. Quzor did not get out of her car and point out the driver to police when they arrived. By then the girls were waiting in the boyfriend's truck. She provided some description identifying the driver to the investigating officer but she didn't remember any details of that description at trial.
6Mr. Armata is the accused's boyfriend. He loaned his car to the accused and her sister that evening so that they could go out to celebrate Halloween. He gave the keys to the accused's sister as the accused's license was suspended. Later that evening he received a call from Stephanie saying that the car was in the ditch. He drove to the scene and had the two girls wait in his truck while he tried to drive the car out of the ditch. He testified that when he first arrived the accused was outside of the car and her sister was inside sleeping. He could not remember which seat the sister was in. Mr. Armata described Stephanie's costume that night as black Lululemon type leotards with a black top with colours like a monarch butterfly. Amanda was wearing blue, with a short dress. Stephanie had a pierced eyebrow at the time. He could not recall if Amanda had any piercing. He described Amanda as a heavy set girl with a different hair colour. When police arrived and asked Mr. Armata who had been driving the car in the ditch Mr. Armata lied to the officer and identified himself as the driver. Shortly afterwards he admitted he was not the driver.
7Constable Lockwood attended on scene and he'd overheard that a "large brunette with a tube top" was the driver. He didn't deal directly with the person arrested as the driver, but he spoke with the passenger who he recalled was a brunette. He made no note as to what she was wearing.
8When Constable Reid arrived he saw Mr. Armata walking around the car in the ditch. There was a large moving truck with hazard lights flashing parked at the side of the road. Two women were on the front bench seat of the truck. He asked Mr. Armata if he was the driver of the car and he said he was. Mr. Armata subsequently admitted that one of the girls in the truck had been driving. Constable Reid helped pull Ms. Smith into the police car after she refused to get in on her own. He later dealt with the tow of the car from the ditch. Constable Reid could not recall at trial what the person identified as the driver looked like.
9PC King spoke with the witness Ms. Quzor after he arrived at the scene. He said she identified the person who had been sitting in the driver's seat and Constable King was 100% satisfied as to which woman had been identified. He did not note nor did he recall at trial precisely how the witness identified the driver. She didn't get out of her vehicle to point the person out. Constable King agreed in cross-examination that it was dark and it would have been "very difficult" to see inside the truck where the two women were sitting from the car the witness was in. The video shows Constable King's conversation with the witness was less than two minutes. Constable King did not note nor did he recall at trial how the witness described the driver and whether the witness provided any description of the passenger.
10His notes indicated that Ms. Quzor told him, "she had witnessed a car veer off the road and end up in the ditch." As that note was contradicted by the report of the witness filed three weeks later and her evidence at trial, Constable King agreed in cross-examination that the limited notes of that conversation he did make could have been mistaken. In a report he filed that day he noted that the witness told him the driver was a female with "brown hair and heavy build". Constable King was unable to say whether one of the women appeared heavier than the other. His in-car video shows that the passenger was wearing a short skirt, appeared to have lighter hair and perhaps a somewhat fuller build than the accused, but neither woman could reasonably be described as having a "heavy build".
11After arrest, the in-car video recorded several utterances made by the accused. She told the officer, "I am not part of your jurisdiction … and you are going to realize that and you will know that …." in a rambling, slurred monologue consistent with the intoxication described by the officer. While rights to counsel and cautions were read the accused responded several times "I wasn't driving." Later the accused said, "Can you drive me home I made a mistake." Eight minutes later she said, "…. It's wet and slippery out and I ended up in the ditch and couldn't get out. You came and arrested me for no reason you didn't even ask me nothing."
12The complainant testified that she went out for Halloween with her sister. Her sister drove as the complainant was not licensed at the time. They got lost on dark rural roads later that night and while they checked a phone GPS the car moved into the ditch. The complainant said she wasn't driving and she didn't know exactly how or why the car ended up in the ditch. Her sister got out and spoke briefly with Ms. Quzor when she first arrived. Later the accused got out of the car to smoke and her sister stayed in the car. The accused spoke with Ms. Quzor when she walked over to the vehicle and Ms. Smith agrees that by that time her sister was in the passenger's seat reclined. When her boyfriend arrived the two women went to his truck to wait and he tried to move the car but couldn't. She told the police she wasn't driving several times when she was arrested. She said her later reference to making a mistake referred to drinking to the point of intoxication. That's why she mentioned getting, "back on track" which referred to her intention to drink less in the future. She hadn't committed an offence and she wanted the officer simply to take her home. She said that her sister knocked on PC King's window to speak with him but he ignored her. She described her sister as a little bit heavier with piercings in her nose.
Identification – Analysis
13Eyewitness identification evidence must be approached with caution given the frailties inherent in human observation and recollection. Mistaken identifications by honest witnesses have led to wrongful convictions in the past. R v Candir 2009 ONCA 915 at para 109. Material discrepancies between the description provided by an eyewitness and the appearance of the accused may be exculpatory – Candir at para 112.
14The Crown's case rests upon the dock identification of the accused by Ms. Quzor, the circumstantial evidence and the utterances that the Crown says contain an admission of driving. Considering the evidence as a whole I find I can place little weight on the dock identification evidence for the following reasons:
The identification was not tested by any independent procedure such as a photo lineup prior to trial.
The initial observation where the witness identified one person as the driver coming from the driver's seat was very brief, on a dark roadway with no street lighting, in the rain. Those circumstances detract from the reliability of the identification.
The witness was inside her vehicle and had only a brief initial conversation with the person she saw exit the driver's seat. She didn't provide a description of the driver to the 911 operator but she recalled telling the operator that the driver was impaired. Ms. Quzor's evidence on that point was mistaken. The 911 call showed that when asked about impairment in the first 911 call she told the operator, "It's raining so who knows". Even in the second call to 911 the witness was not certain whether the person she thought was the driver was impaired or just had an unusual personality. This error in recollection is important as it shows the limited observation of the driver at the time and the lack of accurate recollection on that central point.
The video evidence and Ms. Smith's evidence show that Ms. Quzor's description of the driver wearing "something short" or "scantily dressed" identifies the sister only and not the accused who was wearing long leggings.
The witness was able to give few details in support of her identification of the accused as driver. She did not record nor did she recall details of the accused's impairment despite now saying she had that concern. She did not note or recall details of the driver's clothing or appearance. In cross-examination she did identify one feature – the accused's pierced eyebrow – as distinctive. The lack of detail overall provides little support for the courtroom identification of the accused with that one exception. The pierced eyebrow was apparently mentioned by the witness in her statement to police three weeks after the event. Even though the sister also has piercings, Ms. Quzor's recollection on that point does have some weight.
The fact that Ms. Quzor made some contemporaneous identification of a person at the scene loses all force where neither the witness nor PC King could recall even one detail of that identification or the manner in which it was conveyed. The video shows their conversation was very brief. Constable King agreed it would have been, "very difficult" for the witness to have seen the two women inside the truck a distance away. Ms. Quzor did not get out of her vehicle to point out the person she believed was the driver.
That brief discussion led Constable King to record in his memo book that the witness Ms. Quzor had seen the car drive off the road into the ditch. The fact that the officer misunderstood a central point from the brief conversation in which the identification of the driver was conveyed detracts from the reliability of his evidence on this point.
In a report filed the day of arrest Constable King noted that the witness told him the driver had, "brown hair and a heavy build." The video evidence and direct evidence at trial reasonably identifies the accused as having darker hair than her sister, but to the extent that there's a difference the same evidence shows that the accused has a slightly lighter build. Constable King explained that "heavy build" to him means overweight. Neither the accused nor her sister appeared overweight.
The submission that the accused's utterances to the police contain an apparent admission of driving has some force, but that must be read in context. Those utterances contain several clear statements from the accused that she was not the driver followed much later by a vague statement that might indicate she was the driver, but that was then followed by an assertion that there was no reason for her to be charged. I don't find that the accused's utterances provide much support for Ms. Quzor's evidence.
15I approach Mr. Armata's evidence with caution given that he initially lied to the officer and tried to say he was driving. I accept his evidence that he gave the car keys to the accused's sister and that she drove from the house. His testimony on that point is logical given the accused's lack of a license and consistent with the accused's credible testimony on this point. I also accept his evidence as to the description of the two women including clothing on the night in question. His testimony on these points is generally consistent with the testimony of the accused and with the in-car video evidence.
16I approach the accused's evidence with some caution as she was intoxicated on the night in question. The confusion shown in some of her utterances on arrest reflects some deficiencies in her ability to reliably perceive events at the time although she does appear to have a reasonable present recollection of the central points. The accused's testimony that her sister drove from the house that evening is logical and credible in the circumstances.
17In the context of all of the evidence, I find I cannot accept the accused's evidence that she was not the driver for the following reasons:
All parties agree that the sister was in the passenger seat reclined and asleep when the witness Ms. Quzor went to their vehicle and was there later when Mr. Armata arrived. The evidence of the complainant does not reasonably explain how the sister could have been in that position asleep such a short time after driving.
The accused could not explain how the car came to be in the ditch where the circumstances she described indicate she was awake and would have been well aware of what happened. Her evidence that it happened just after they stopped on the side of the road to check a GPS appears inconsistent with the "nose in" position of the vehicle in the ditch.
18Although I'm unable to accept the evidence of the accused as true to the exclusion of other evidence, on the whole of the evidence I find the lack of details in the evidence of the witness and the officers on the central point and the conflicts in the evidence overall reasonably leaves a doubt as to who was driving the vehicle.
Conclusion
19The Crown has not proved the charge alleged beyond a reasonable doubt. The charge is dismissed.
Released: May 4, 2017
Justice Joseph F. Kenkel