Court of Appeal for Ontario

CITATION: R. v. Quinn, 2014 ONCA 650

DATE: 20140922

DOCKET: C58258

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Emmet Quinn

Appellant

John Hale, for the appellant

Hannah Freeman, for the respondent

Heard and released orally: August 28, 2014

On appeal from the convictions entered on September 17, 2013 by Justice D. Kent Kirkland of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals his convictions on February 4, 2013 for break and enter with intent and dangerous driving and on February 20, 2013, for failing to stop a vehicle while being pursued by the police and for mischief.

[2] The facts can be briefly summarized as follows. On February 4, 2013, one Joshua McLaughlin received a text message from his girlfriend who lived but minutes away from him. She was concerned about someone knocking at the back door. Mr. McLaughlin arrived at the home almost immediately to find a man hanging through the window of the back door. Mr. McLaughlin saw him at this point for two to three seconds. He chased the intruder down the street and eventually jumped in front of his vehicle to stop him from leaving. The intruder was apparently saying “I am sorry, I got the wrong house”. Mr. McLaughlin testified that he got a good look at him. The intruder’s face was illuminated by a street light and by the light of his car’s dashboard. This entire exchange lasted 10 to 20 seconds.

[3] The intruder drove his car directly towards Mr. McLaughlin who jumped on the hood in order to avoid getting hit. He then slid off the hood damaging the side mirror and the windshield wipers. Mr. McLaughlin testified that he had the three seconds to memorize the license plate. As it turned out, he memorized accurately but for one number.

[4] Mr. McLaughlin described the intruder to police in very general terms only and did not pick him out of the photo lineup. He said that the photos were blurry and the two and a half by two inch pictures were very small.

[5] On February 20, 2013, police officers, who had been watching the appellant, saw him commit a break and enter at a different location. (The appellant pleaded guilty to this charge.) He left the scene driving the same car that Mr. McLaughlin had seen on February 3.

[6] Four police cars then proceeded to “box-in” the appellant’s car. Three police cars, lights activated, surrounded him in a high risk take down. One police car was at the driver’s side, one was at the passenger’s side and one was in front of him. The appellant then reversed. He ran into the fourth police car that was just arriving to block him in from behind.

[7] The issue with respect to the February 4 events is one of identity. The appellant asserts that the trial judge confused credibility with reliability and had insufficient facts upon which to establish the identity of the intruder and driver of the car. In our view, the trial judge clearly addressed reliability and, on the evidence as a whole, it was open to him to find that identity was proven beyond a reasonable doubt. The trial judge referred to the frailties of in-dock identification and Mr. McLaughlin’s failure to identify the appellant in the photo lineup.

[8] The trial judge considered the several occasions that Mr. McLaughlin saw the intruder’s face and Mr. McLaughlin’s excellent memory. The trial judge was satisfied that the intruder and the driver of the car was the appellant. This ground of appeal fails.

[9] I turn to the events of February 20. The appellant submits that the trial judge erred in convicting him of failing to stop during the police pursuit. The appellant argues that the police were not “pursuing” him because they and he had stopped.

[10] The trial judge determined this issue by referring to the dictionary meaning of “pursue”; namely, to “follow with intent to overtake or capture.” He concluded that what the police were doing by boxing him in was intending to overtake or capture him. While not deciding the outer limits of s. 249.1 of the Criminal Code, we agree with the trial judge. This was a fast-paced event that should not be viewed on a frame-by-frame basis. The police were pursuing the appellant in their vehicle. He failed without reasonable excuse – and in order to evade police – to stop the vehicle as soon as reasonable in the circumstances. This ground of appeal fails.

[11] The mischief conviction arises out of the fact that the appellant put his car in reverse and hit the police car. The appeal of the mischief conviction is based on the submission that the trial judge failed to turn his mind to the mens rea of mischief. It was submitted that there was no evidence of intent. It was open to the trial judge to infer recklessness. Clearly, it was reckless, in the circumstances known to the appellant, to reverse his vehicle while surrounded by police cars. This ground of appeal also fails.

[12] For all of these reasons, the appeal is dismissed.

“David Watt J.A.”

“M. Tulloch J.A.”

“M.L. Benotto J.A.”