DATE: 20031031

DOCKET:C36664

COURT OF APPEAL FOR ONTARIO

CARTHY, MACPHERSON AND SIMMONS JJ.A

B E T W E E N:

HER MAJESTY THE QUEEN

Jonathan Dawe for the appellant

Respondent

• and -

THIEN KY CHONG

Beverly J. Wilton for the respondent

Appellant

Heard: August 28, 2003

On appeal from the conviction by Justice Arthur Whealy of the Superior Court of Justice dated February 9, 2001, reported at [2001] O.J. No. 1979.

CARTHY J.A.:

[1] The focus of this appeal is upon the evidence identifying the appellant as the driver of a vehicle known to have been used in drug transactions between the passenger and an undercover officer. The trial was by a judge without a jury and the principal complaint of the appellant is that the trial judge found him to have no access to the vehicle but nonetheless to be the driver of the vehicle on the basis of what was largely in dock identification evidence. A sentence appeal has been abandoned.

[2] I will recount the salient facts necessary for an understanding of the issues.

[3] The appellant’s arrest arose out of a general investigation of the heroin trafficking activities of Bao Huynh (known as “Danny”) in the Broadview and Gerrard area of Toronto. Undercover agent D.C. Childs had made purchases from “Danny” prior to any suggestion of the appellant’s involvement. On October 29, 1997 “Danny” was spotted in a donut shop on Gerrard Street together with four or five other males. Two uniformed officers, P.C. Martin and P.C. Nicolaou, were sent into the shop to seek the identities of these men. One of them verbally identified himself as Thien Ky Chong, gave a date of birth and gave an address of 230 Oak Street. Martin’s notes indicate that he was a “male Asian with black hair, black eyes, 5 feet 5 inches, 125 pounds”. P.C. Martin gave evidence at trial but did not make an in dock identification of the appellant as the man in the donut shop. P.C. Nicolaou did not testify at trial. D.C. Clendinning, D.C. Robinson and D.C. Wilson, who were observing from outside the donut shop, did testify but did not purport to identify the appellant as one of the individuals in the shop. Nor was there evidence at trial that the appellant’s birth date and address matched that given by the person identifying himself as Chong in the donut shop.

[4] On this same occasion D.C. Clendinning noticed a silver Honda Civic hatchback, bearing licence plate ABPD 236, in the parking lot of the donut shop. This vehicle plays a prominent part in events to follow.

[5] P.C. Martin and Nicoloau gave the identification cards they had filled out to the drug investigators who had them processed by D.C. Gray. He did a “routine inquiry”, came up with further information respecting Chong’s name and a photo which he attached to a “profile sheet”. The profile sheets were shown to the other investigators at a briefing meeting on October 30 in anticipation of a planned drug purchase later that day. There was no evidence that P.C. Martin and P.C. Nicoloau were shown the photo of Chong. The profile sheets were among documents lost by the investigators prior to trial (this was the subject of a second ground of appeal).

[6] Early in the afternoon of October 30, D.C. Clendinning was doing surveillance at the Gerrard Street donut shop and noted the arrival of the Honda with licence plate ABPD 236. Two men went into the shop and returned and drove away 10 minutes later.

[7] At 5:30 p.m., at the donut shop on Broadview, undercover agent D.C. Childs met “Danny”, requested a purchase of heroin and arranged to meet at a second donut shop at 7:00 p.m. “Danny” drove away in a Buick and was followed for a few blocks where he was observed leaving the Buick and getting into the passenger seat of the Honda with licence plate ABPD 236. D.C. Wilson followed the Honda until it pulled over and the driver alighted and went to a pay phone. Wilson described the driver as a person 5 feet 6 inches tall in his 20’s who appeared to be Vietnamese. The description was broadcast to the rest of the surveillance team together with an outline of the clothing he was wearing. At trial D.C. Wilson was specifically asked if he could identify anyone in the courtroom as the driver. He could not.

[8] In the meantime D.C. Robinson drove by the payphone and caught a glimpse of the driver, describing him in the same terms as had Wilson. Robinson did make an in dock identification at trial based on this “drive by” and one further observation.

[9] D.C. Gray also observed the driver get out of the Honda and go to the pay phone. His notes describe the driver in almost the same words as Robinson and Clendinning.

[10] We now turn to the meeting to close the purchase at the second donut shop. The silver Honda and its driver delivered “Danny” who gave a package to undercover agent D.C. Childs in return for cash which he put in his left front shirt pocket. “Danny” was then observed by D.C. Robinson to pass what appeared to be money to the driver. D.C. Robinson recognized the driver as the same person he had seen earlier in the afternoon at the payphone.

[11] “Danny” and the driver then went into the first donut shop. They were followed by D.C. Gray, who sought a closer look at the two. He testified that he recognized the driver as the man in the photo of the appellant he had seen earlier that day.

[12] This was the first positive identification of the appellant as the driver. When D.C. Clendinning heard of D.C. Gray’s identification he then realized that the man he had seen twice that day was the man in the photo. At trial D.C. Clendinning and D.C. Robinson made in dock identifications.

[13] To this point in the narrative there are two concerns relating to the issue of identification: (a) the strength of the in dock identifications and (b) the missing link between the original interview and the photo; that is, were they the same person? The silver Honda further complicated the issue of identification at trial. D.C. Gray checked the registration and remembered only that it was owned by a female and had never been reported stolen. He did not contact her. The owner Trinh Le Tran and her son Justin La were called by the defence as witnesses. They testified that the car was purchased from the dealer and registered in the mother’s name on October 3, 1997, was delivered toward the end of the month, was used by the son primarily for transport to and from his day job, that he had never been to the donut shop, that it had never been loaned to anyone, and that they did not know any of the accused persons in the courtroom. (This was a joint trial with others in a series of trafficking charges).

[14] That is a summary of the evidence on the identification issue and it clearly raises some vexing questions to be answered. Was the appellant the man interviewed in the donut shop? The silver Honda was undoubtedly involved in the drug transaction and events leading to it, but how did it come into the possession of the appellant? Was the appellant the driver?

[15] In my view the reasons of the trial judge reveal misapprehensions of the evidence which together render the verdict unsustainable.

[16] The reasons commence with an analysis of the evidence of Trinh and La:

It is probable the testimony of Tran Le Trinh is true that she is the registered owner of the silver grey two door ’97 Honda, bearing plates ABPD 236, which she paid for on October 3, 1997. It is probable that she bought the car for her son who is really the only user. Further it is probably true that Justin La her son used the brand new car to go to and from work and that he never loaned it to anyone. That does not, however, establish that the vehicle was not the very same one observed by the police on 29 and 30 October 1997. Justin La testified that while it was paid for on 3 October 1997, he only “picked it up at the end of the month”. That was all that was said about its use on those two dates by them.

As the vehicle and its licence plates were seen several times on 29 and 30 October by at least four police observers, looking for just such clues, I also accept that unknown to the owner and her son, the vehicle was employed in the events that concern this court on those two days.

[17] The appellant submits that on this finding alone a verdict of acquittal should follow because an acceptance of La’s evidence must at least raise a reasonable doubt as to who was the driver of the vehicle on October 29 and 30. It is argued that it is pure speculation to assume that the Honda was surreptitiously taken from the possession of La on parts of two days and replaced without a trace. And even more unlikely that it was taken from a dealer’s lot (if delivery had not yet been made to the owner), complete with the owner’s plate, and returned without a theft report.

[18] There is some force to this argument but in my view the more critical issue arose from the trial judge’s treatment of the identification evidence. If mystery attaches to the involvement of the vehicle, there is even more than the usual reason to scrutinize the identification evidence with care. There have been frequent judicial warnings as to the frailties of eye-witness evidence and also as to the lack of weight to be accorded in court identifications that are not supported by some form of line-up procedure. See R. v. Reitsma (1998), 125 C.C.C. (3d) 1 (S.C.C.). The trial judge’s analysis of this evidence was cursory at best and, even at that level, his analysis reveals errors which undermine his conclusion.

[19] The trial judge’s reasons concerning identification commence with:

That reduces the defence to the possibility that the police observers were mistaken in their identification of Chong as the driver. I accept that the driver was not specifically identified in every fleeting sight of the vehicle.

[20] The last sentence implies that the trial judge thought the appellant was identified in some sightings of the vehicle. He was not. The only purported recognition of the appellant was by D.C. Gray when he entered the donut shop on October 30 and recalled the photo he had seen earlier. He passed on this information to the other detectives who had theretofore not recognized the driver.

[21] The trial judge then continued:

The first identification of Chong took place on 29 October, 1997, when Detective Gray ordered the two men, one already known as Danny, to be identified inside a donut shop by uniformed officers. P.C. Martin in uniform and with a uniformed partner, entered the shop and asked six men sitting around a table to orally identify themselves.

[22] This was clearly not an identification of the appellant that could be used against him as substantive fact. No identification papers were checked and P.C. Martin was unable to identify the appellant at trial as the person he had interviewed.

[23] After recounting the details of the interviews in the donut shop on October 29 the trial judge continued:

It was the next day, 30 October 1997 when Chong became associated as the constant driver of the Honda ABPD 236. Danny, who has been proven to be Bao Huynh and who has been established as the “front man” in several trafficking incidents in the course of this investigation was chauffeured and met at critical points of time during the course of the day. No one can catalogue the sightings and timings of events, in relationship with the act of trafficking, without concluding Chong in the Honda made possible the meeting and offence. Most critically, he was observed leaving the Baker’s Dozen with Danny for a minute or two at 19:39 hours that evening and splitting what appeared to be paper cash with Danny. Within minutes he departed on his own.

[24] This segment addresses the issue of whether the appellant is a party to the offence and appears to assume identification. There is no other analysis of the identification issue. Thus, once the October 29 interview is set aside, since it does not qualify as evidence that Chong was identified on that date, there is no analysis of the identification issue to support the verdict.

[25] D.C. Gray’s evidence could support a guilty verdict if it was analyzed critically and given appropriate weight in light of its inherent frailties. It relies upon his recollection of a single photo that is now missing. The evidence of D.C. Clendinning and D.C. Robinson corroborating that of D.C. Gray is compromised by the fact that they first heard the suggested identification from D.C. Gray after they had made their own observations from which they did not independently identify the appellant.

[26] The reasons of the trial judge suggest that he apprehended that the appellant was identified on October 29 in the donut shop and on repeated occasions on October 30 as he drove the Honda from one point of surveillance to another. This is a misapprehension of the actual evidence and justifies a new trial. I do not accede to the appellant urging a finding of unreasonable verdict. The evidence of D.C. Gray could support a verdict of guilt if that evidence was properly analyzed and weighed and set against the other evidence. It cannot be said that the errors of the trial judge led him to the wrong verdict. It can only be said that the verdict cannot be sustained by the reasons that the trial judge delivered.

[27] I reject the appellant’s argument that there was no evidence to support a finding of party liability. The conduct of the driver of the Honda was consistent with no other conclusion. I also reject the argument that the Crown’s loss of the profiles and other notes was sufficient to justify a remedy for breach of the appellant’s right to disclosure under s. 7 of the Charter. However, the loss of those documents did justify critical scrutiny of areas of evidence where they may have been relevant: for example, the photo of Chong attached to the profile sheet.

[28] I would therefore set aside the verdict and direct a new trial.

Released: October 31, 2003 “JJC”

“J.J. Carthy J.A.”

“I agree J.C. MacPherson J.A.”

“I agree Janet Simmons J.A.”