Court of Appeal for Ontario

Citation: R. v. Nishida, 2015 ONCA 154

Date: 20150310

Docket: C57428

Sharpe, Gillese and Benotto JJ.A.

Between

Her Majesty the Queen

Respondent

and

Justin Nishida

Appellant

Counsel:

Joseph Di Luca and Erin Dann, for the appellant

Gavin MacDonald, for the respondent

Heard: March 6, 2015

On appeal from the convictions entered on May 28, 2013 and the sentence imposed on July 30, 2013 by Justice Frank J.C. Newbould of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] A police officer pulled over an SUV at the corner of Eglinton and Duplex in Toronto at approximately 3:17 p.m. one April afternoon, after it made an illegal left-hand turn. The driver handed the police officer a driver’s licence, which the officer noticed was expired. The name on the driver’s licence was Sherwin Maloney and the photo on the expired driver’s licence was not that of the driver. When the officer stepped onto the sidewalk to call the police station, the driver of the SUV sped off. In the notes that the officer made contemporaneous with the event, he described the driver as an Asian male with pale skin and noticeably bad teeth, wearing a plaid shirt.

[2] Shortly after the incident, the police officer contacted Sherwin Maloney who stated that he had lent the appellant his expired licence some time ago and he showed the police officer a photo of the appellant taken from the appellant’s Facebook page.

[3] The central issue at trial was identification: was the appellant the individual driving the SUV? The police officer testified, as did the appellant, who swore that he was at home watching television at the relevant time.

[4] The trial judge gave extensive reasons for rejecting the defence evidence, including his alibi evidence, and accepting that called by the Crown. He convicted the appellant of personation and obstructing a peace officer. The appellant was sentenced to twelve months in prison and received an 18-month driving prohibition.

[5] The appellant appeals both conviction and sentence.

THE CONVICTION APPEAL

[6] The appellant submits that the trial judge:

• failed to subject the police officer’s identification evidence to a sufficient degree of scrutiny; and

• applied a stricter standard of scrutiny to the defence evidence, with the result that he improperly shifted the onus onto the appellant to disprove his guilt.

[7] We do not accept these submissions. Ultimately, this case rests upon the trial judge’s factual findings of credibility and reliability and we see no basis for interference with them.

[8] The appellant acknowledges that the trial judge correctly instructed himself on the dangers of eyewitness identification but says that the trial judge did not apply a suitably high standard of caution when analyzing the police officer’s testimony. In our view, the trial judge’s reasons show that he was suitably cautious and that he gave sufficient reasons for accepting that evidence, including that:

• the police officer was acting in the execution of his duties at the time he observed the driver – it was not a casual observation by a disinterested person;

• the interaction took place in daylight when the officer was only a few feet away from the driver – it was neither fleeting nor a split-second observation;

• the officer had a good look at the driver, as evidenced by the contemporaneous description which he made in his notebook;

• the officer’s notes remarked on the appellant’s bad teeth, a distinctive feature on which all of the Crown witnesses commented, and

• the appellant’s admitted possession of an expired driver’s licence given to him by Sherwin Maloney supported the officer’s eye witness identification.

[9] We see nothing in the submission that the trial judge shifted the burden of proof. The defence evidence raised a number of issues that the trial judge was obliged to deal with. He also spent considerable time in his reasons explaining why he disbelieved the appellant and rejected the other defence evidence to the point that it did not raise a reasonable doubt. The trial judge’s detailed assessment of the defence evidence does not equate to a higher standard of scrutiny or a shifting of the burden of proof.

[10] Nor do we agree that the cross-examination of the police officer raised a credibility issue that the trial judge failed to resolve. Mr. Di Luca contends that certain questions and answers from the officer’s cross-examination can be read as indicating that it was not until the officer met with Sherwin Maloney that he realised that the photo on the licence was not that of the driver of the SUV and that the trial judge failed to resolve the contradiction.

[11] We disagree. The police officer was clear in his evidence that he realized as the driver fled that the photo on the licence was not that of the driver whereas his evidence on cross-examination was, at best, equivocal.

THE SENTENCE APPEAL

[12] The appellant submits that the trial judge erred in principle by imposing a one-year jail sentence. He says that the trial judge overemphasized the need for denunciation and deterrence and failed to properly consider the principle of restraint and the objective of rehabilitation.

[13] We do not agree.

[14] The appellant concedes that he has an “unenviable” criminal record. While many of his prior convictions relate to drugs, his record also includes two prior convictions for obstructing a peace officer. The second of those convictions predates the current offences by only three months. The appellant’s record also includes convictions showing a long disregard for court orders: failing to comply with a recognizance, failing to comply with an undertaking, and convictions under the Highway Traffic Act, R.S.O. 1990, c. H.8, for driving without a permit, driving with a suspended license, and using a license plate not authorized for the vehicle. Moreover, the appellant was serving a conditional sentence (for a drug-related offence) at the time he committed the offences in question.

[15] The trial judge considered the range established by the authorities and concluded that, given the deliberate nature of the offences and the appellant’s prior related convictions, deterrence and denunciation played a significant role. While the sentence is at the high end of the range, we cannot say that it is outside the range or otherwise unfit, for these offences and this offender.

DISPOSITION

[16] Accordingly, the conviction appeal is dismissed, leave to appeal sentence is granted and the sentence appeal is dismissed.

“Robert J. Sharpe J.A.”

“E.E. Gillese J.A.”

“M.L. Benotto J.A.”