Court of Appeal for Ontario

Date: 2019-06-17 Docket: C62952

Judges: Doherty, Watt and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Isaac Omar Allen Appellant

Counsel

Philippe Michaud-Simard, for the appellant

Erica Whitford, for the respondent

Heard and released orally: June 14, 2019

On appeal from the conviction entered on September 26, 2014 by Justice R. Dan Cornell of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of assault with a weapon, dangerous operation of a vehicle, possession of cocaine and two counts of possession of dangerous weapons following a five day trial.

[2] He submits that the trial judge erred by failing to address weaknesses in the identification evidence and by misapprehending evidence bearing on the identification.

[3] The appellant was alleged to have been one of three men who attacked Byron Trudeau with baseball bats in downtown Sudbury shortly after 11:00 a.m., apparently because of unpaid drug debts. The assailants fled in a black four door vehicle and bystanders gave police information about the licence number of that vehicle. A police officer, Constable Lanzo stopped a vehicle closely matching that description around 11:15. Three males got out of the vehicle. The officer instructed them to get back into the car. The driver complied but the other two fled into a nearby home and locked themselves in.

[4] The officer told the driver to turn the vehicle off and that he was under arrest. The driver fumbled with the gear shift to try to put the vehicle into motion. Constable Lanzo had no view of the driver's hands, drew his gun and pointed it to the right of the driver. The driver said "don't shoot", rapidly reversed and backed down the street.

[5] Chantal Renaud shortly saw a black vehicle stop in front of an address on Bloor Street. She observed a black male get out of the car, run to the trunk, remove a small black bag and run towards 58 Bloor Street. She said she recognized the individual because she had seen him on two or more occasions, associating with "Jimmy" who lived in an apartment at that address.

[6] James Charlton lived in apartment 8. He was blind and in poor health. He had allowed the appellant to stay in his apartment and use his storage locker for several weeks. Police arrived at the apartment and the appellant told Mr. Charlton not to answer the door. Police entered the apartment with the help of the landlord and found the appellant within. Police found a black bag containing cocaine in the storage locker Mr. Charlton had rented to the appellant.

[7] The appellant testified but the trial judge found, for good reason, that he was not a credible witness.

[8] After the appellant was arrested, as he was being transported to the police station he volunteered "I took off as the cop was pointing a gun at me and telling me to stop but I didn't want to stop even though he was telling me to."

[9] Two baseball bats were found on the floor of the vehicle, together with a car rental agreement in the name of the appellant's mother, referring to the appellant as an additional driver. There was blood on one of the baseball bats.

[10] At trial, the victim of the assault identified the appellant as one of the attackers who was known to him, because they had resided together.

[11] The appellant argues that the eyewitness identification by Mr. Trudeau, Ms. Renaud and Constable Lanzo was weak. This was cross-racial identification without the precaution of a photo line-up. He submits that the trial judge failed to properly self-instruct on the inherent unreliability of eyewitness identification evidence.

[12] The trial judge noted that in-dock identification could be unreliable, and placed little weight on in-dock identification by civilian witnesses. He was however satisfied that Ms. Renaud, Mr. Trudeau and Constable Lanzo had accurately identified the appellant. The appellant argues that he conflated certainty on the part of the witness with accuracy, and failed to recognize that recognition evidence also required a cautious assessment. Both Ms. Renaud and Constable Lanzo had only a short time to observe the person they identified, and under stressful circumstances in the case of the officer.

[13] The trial judge could have expanded upon his discussion of the potential frailties of the identification evidence, however in this case, the other evidence overwhelmingly established the appellant's guilt.

[14] The drug offences did not depend on eyewitness identification evidence.

[15] The appellant essentially admitted that he was the driver of the car that fled from the officer with the gun pulled. That was sufficient to establish the dangerous driving count. The car was rented in the name of the appellant's mother, and he was described as an additional driver. That there were baseball bats with blood on one of them on the floor of that vehicle within minutes of the assault, where the vehicle closely matched the physical description and licence plate number given by bystanders to the assault was strong evidence that the appellant was one of the attackers.

[16] The trial judge did misapprehend one aspect of the evidence. He understood that Constable Lanzo observed the driver to be wearing a distinctive white and red mesh jersey with the name "Brampton Medix" written on the front, at the time he first stopped the driver.

[17] The officer's evidence about his encounter with the driver was detailed:

"I actually had a chance to get a very good look at him at that point. I have a very good memory of what he looked like. He was a black male, thin build, he had short black hair, a black goatee and moustache. He was wearing a very distinctive shirt. It was a white mesh shirt with small perforations in it with red sleeves."

[18] The officer did not however see the lettering on the shirt until afterwards, when he saw the appellant at the police station after he had been arrested by other officers.

[19] Given the overwhelming force of the evidence against the appellant, we are not satisfied that this misapprehension was substantial, material or that it played an essential role in the trial judge's decision to convict.

[20] Accordingly, the appeal against conviction is dismissed.

"Doherty J.A."

"David Watt J.A."

"G. Pardu J.A."