COURT OF APPEAL FOR ONTARIO

CITATION: R. v. St. Pierre, 2016 ONCA 173

DATE: 20160301

DOCKET: C61042

MacPherson, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dani Raymond St. Pierre

Appellant

Dani Raymond St. Pierre, in person

Erika Chozik, duty counsel

Michael Fawcett, for the respondent

Heard: February 10, 2016

On appeal from the conviction entered on July 15, 2014 by Justice Alain H. Perron of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals against his conviction on two counts of failing to appear, contrary to s. 145(5) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] He argues that the trial judge erred in dismissing his motion for a directed verdict since the Crown did not lead any evidence on identity.

Background

[3] At trial, the Crown did not lead evidence from the officer who issued the promise to appear. Instead, it called the officer who received the appellant when he later turned himself in and placed him under arrest, and then relied on documentary evidence: the signed promise to appear, and two certificates addressing the appellant’s failure to appear, issued according to s. 145(9) of the Criminal Code.

[4] Following the close of the Crown’s case, defence counsel moved for a directed verdict on the basis that there was no proof of the identity of the accused as the person named in the promise to appear. Initially, it challenged whether the promise to appear had been confirmed, but later conceded that issue. The Crown argued that the promise to appear established identity. The presumption of regularity applied, the Crown contended, because it was signed by an officer and filed and confirmed before a justice.

[5] The trial judge denied the appellant’s application. He found that because there was a signature on the promise to appear before the court, there was some evidence on the identity of the accused.

Discussion

[6] While we disagree with the argument of the Crown below and the reasons of the trial judge, we dismiss the appeal. At the time of the directed verdict motion there was evidence upon which a reasonable jury properly instructed could return a verdict of guilty: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21.

[7] Section 145(5) makes it an offence when a person named in a promise to appear fails to appear at court or for fingerprinting as set out therein. The provision allows for a defence of lawful excuse, the proof of which lies on the accused. It also requires that the promise to appear must have been confirmed by a justice. The confirmation process entails accepting, approving and verifying that the promise to appear complies with s. 501(4), including the requirement of service on the accused: R. v. DeMelo (1994), 1994 CanLII 1368 (ON CA), 92 C.C.C. (3d) 52 (Ont. C.A.).

[8] Section 145(9) provides that a certificate of the clerk or judge of the court before which the accused fails to attend, or person in charge of the place the accused failed to attend for the Identification of Criminals Act, is evidence of the statements included in the certificate. For these offences, s. 145(9) sets out that those statements are that the accused was named in the promise to appear, that the promise to appear was confirmed by a justice under s. 508, and that the accused failed to appear as stated therein.

[9] The onus is on the Crown to prove (or in the case of a directed verdict, to present some evidence) that the person named in the information and before the court is the person who was the subject of the promise to appear. However, there are different ways this fact can be established. It is not essential that the original arresting officer provide in-court identification of the accused where other circumstantial evidence provides evidence on the issue. In this case, there were several different components of the evidence which, taken together, afforded some evidence that the accused was the person identified in the promise to appear.

[10] First, as this court held in R. v. Longmuir, [1982] O.J. No. 119 (C.A.) at para. 8, the identity of names provides some evidence of identity of a person. See also R. v. D.B., 2007 ONCA 368; R. v. Chandra (1975), 1975 CanLII 1294 (BC CA), 29 C.C.C. (2d) 570 (B.C.C.A.); R. v. Nicholson, 1984 ABCA 88, [1984] A.J. No. 2522 (C.A.), leave to appeal refused 1984 CarswellAlta 43 (S.C.C.). The name “Dani Raymond St. Pierre” appeared on the promise to appear. The promise to appear also contained a date of birth. The name and date of birth were identical to the information noted in the information before the court charging the two counts of failing to attend. At the very least, the similarity between the name and date of birth of the person named in the promise to appear and the name and date of birth of the person named in the information is some evidence to establish that the accused person before the court was the person named in the documents.

[11] Second, there was circumstantial evidence from Officer McNeill, who arrested the accused when he surrendered himself at the police station, that the accused was bound by a promise to appear. The uncontested evidence was that Mr. St. Pierre turned himself on his own volition and there was, in fact, a warrant on the police computer system for his arrest for failing to attend court and failing to attend for fingerprints. Mr. St. Pierre was immediately placed under arrest. A reasonable inference can be drawn that the appellant attended the police station to turn himself in because he was bound by an order requiring him to attend court as required. This inference is supported by the existence of a warrant for his arrest on the system for failing to attend as required.

[12] Finally, the appellant conceded confirmation of the promise to appear, effectively accepting that he was named in a promise to appear and that the promise to appear was served on him. Moreover, the certificates tendered state that Dani Raymond St. Pierre was named in the promise to appear, the promise to appear was confirmed by a justice, and that he failed to attend court as required.

[13] The name identification, the appellant’s concession on confirmation of the promise to appear, the uncontested evidence that the appellant surrendered himself to police and was immediately arrested on the basis of a warrant in existence for failing to attend, and the evidence contained within the certificates, taken together, provide circumstantial evidence that he was the person named in the promise to appear. The trial judge did not err in dismissing the motion for a directed verdict.

Disposition

[14] Accordingly, the appeal is dismissed.

“J.C. MacPherson J.A.”

“M. Tulloch J.A.”

“M.L. Benotto J.A.”