Court Information and Parties
Information No.: 10 – S0358
Ontario Court of Justice (at St. Catharines, Ontario)
Between:
Her Majesty the Queen
- and -
Kyle Smith
Counsel:
- Mr. B. Hill for the Crown
- Mr. V.J. Singh for Kyle Smith
Judge: Nadel, J.
Reasons for Judgment
Introduction
[1] Kyle Smith was charged with six indictable offences:
(i) break, enter and theft, (s. 348(1)(b));
(ii) committing that break, enter and theft while masked, (s. 351(2));
(iii) being in possession of a stolen pickup truck, (s. 355(b));
(iv) dangerous driving, (s. 249(2));
(v) failing to stop for police (s. 249.1(2)); and,
(vi) failing to stop at the scene of an accident, (s. 252(1.1)).
[2] The sole issue in the case is the correctness of an alleged identification of the accused in counts (iii) to (vi). Counts (i) and (ii) were dismissed at the conclusion of the evidence as no admissible evidence was called implicating Kyle Smith in either of those allegations.
The Facts
[3] At about 3:00 a.m. on July 6, 2010, someone smashed through the glass front door of the Beer Store at 150 Lakeport Road in St. Catharines, Ontario. Two masked men were captured on the store's surveillance camera. They took 31 cases of beer.
[4] From a source or sources not identified in the evidence, the police received timely notice of this break and enter and officers were dispatched to the Beer Store. Police Constable Ryan Diemer was dispatched at 3:21 a.m. He was told that two males in an "older style" maroon pickup truck were last seen on Lakeport Road heading toward Lake Street in St. Catharines.
[5] As Diemer travelled north on Lake Street, at 3:24 a.m., he had to stop for a red light south of the QEW overpass. Across the intersection, facing southbound, he saw a burgundy pickup truck with a lone male driver.
[6] Since that truck was travelling away from the area of the entry in a direction that Diemer had been alerted to by dispatch, and since the vehicle was both burgundy and a pickup truck, Diemer decided that he was going to stop the driver to investigate him.
[7] He activated his lights and siren and slowly drove through the intersection against the red light passing the truck's driver's side window, which was rolled down. Diemer, driving slowly at "parking lot speed", passed to the right of and within a car's width of the truck. As he did so the driver looked directly at Diemer, who looked directly back at the driver.
[8] Diemer had just seconds to look at the driver before making a U-turn to get behind the truck and commence his traffic stop. It was dark at past 3:00 a.m. but the intersection was well lit and Diemer made a concerted effort to get a good look at the driver he was about to detain. As Diemer looked at and passed the driver, a memory of a face that he could not place was triggered in his mind.
[9] There was no one else in the truck. As Diemer pulled in behind the truck he noted its licence plate number as being 479 7XX. At that point, the driver of the truck took off and led Diemer and two other police officers on a lengthy chase eastbound on the QEW at very high speeds. Without detailing the driver's actions here, there is no issue that the driver drove dangerously nor is there any issue that the driver failed to stop for the police or that the driver failed to remain at the scene of an accident. Those actions included intentionally braking suddenly, which caused one police officer to rear-end the truck. In addition, the driver intentionally drove into the sides of each of the cruisers that were trying to corral him on his left and right, which allowed the driver to escape.
The Identification Evidence of Officer Diemer
[10] Diemer was the only direct identification witness called by the Crown. Neither of the other two police pursuers was able to identify the driver nor offer any description of him.
[11] Diemer's identification evidence consisted of the following testimony and investigations:
Q. At that point, how far were you from the driver then?
A. No more than a car width apart from the driver side of his vehicle.
Q. Did you notice whether the, the driver of the truck had the window up or down?
A. The window was down.
Q. And did you notice, did you get a look at the driver?
A. I did.
Q. Which way was the driver looking?
A. As I went through the intersection with my lights and sirens and as I came directly window to window, he was looking directing (sic) at me.
Q. Did you recognize who that person was?
A. He, he bore a resemblance to — I couldn't place it at first, but I, I got a good look at his face and, at that point and time
THE COURT: He bore a resemblance to what?
A. If I couldn't think of it at first who he resembled, but it was something that, you know, I'd seen that face before, kind of thing.
MR. HILL: Q. All right. So, before you go any further with regards to your actions, on the issue of identity, have you seen that person since that occasion?
A. I have.
Q. Where?
A. He's ...
Q. Sorry?
A. ... sitting in the box to my right.
Q. Pointing to the accused.
THE COURT: Yes, but this is a dock I.D. (Page 26, line 18 to page 27, line 16)
[12] After the pursuit ended Diemer made his way back to the station. On route he retrieved the memory that had eluded him when he first saw the driver of the pickup truck.
...At 3:56 a.m. while on route on the highway back to St. Catharines I was thinking about the driver that I saw driving the stolen vehicle and it occurred to me that it was possibly Kyle Smith who I was familiar with, having a date of birth 1988, June 12th. I thought of him being the driver based on what I saw of him in the driver seat when the pursuit initiated. I did what's, a check on the computer in my cruiser and based on that information I was able to view a small—I'm not sure of the dimensions of the picture, but a recent photo or the most recent that we had on file for Kyle Smith. I noted similarities between the driver and the mug shot, small mug shot of Kyle, however I continued on my way to the station ... (Page 33, lines 6 to 18)
[13] Diemer took no further action before going off duty. When he reported for duty at 6:00 p.m. the next day another officer had a small colour picture of Kyle Smith displayed on his computer. Diemer spoke to that officer and had him maximize the screen. He immediately recognized Kyle Smith as being the driver from the pursuit of the prior night. So, he prepared a supplemental report to be forwarded to the detective branch in which he identified Kyle Smith as being the driver of the pickup truck.
[14] Diemer had never seen Kyle Smith in person prior to July 6, 2010. He had seen a photograph of him posted in the police station, on some unidentified date before July 6th.
[15] During cross-examination, Diemer explained his use of the word "resemblance" in this way: "It's like seeing someone that you, you recognize but you can't place him. ... the person driving was a face that I recognized, but I could not place." (Page 39, line 32 to page 40, line 5) However, he also agreed that his identification could be characterized as a speculation in the following passage in cross-examination:
Q. Okay. So, he, this was just some speculation on your part at the time?
A. I wouldn't call it—well, it's speculation sure. It's something that I saw him face to face, I recognized his face, couldn't place his name then the pursuit was on, ... (Page 42, lines 3 to 8)
The Balance of the Evidence
[16] The pickup truck was stolen from Hagarty's Garage located at 199 James Street in St. Catharines, Ontario some time after 5:00 p.m. on July 5, 2010. It was a 1992 red GMC Sierra vehicle bearing Ontario plate number 479 7XX and it belonged to Mark Hagarty, the owner of the garage. Mr. Hagarty left the truck unlocked but without the keys in it. When Mr. Hagarty retrieved his truck from the police the steering column had been punched. No evidence was called about when, where or how the truck was recovered.
[17] Zacharia Rouse is a 24-year-old ex-friend of Kyle Smith's. He has a criminal record that consists of one conviction for "Break Enter & Commit" (s. 348(1)(b)) imposed on July 12, 2011 at St. Catharines. He testified that he pleaded guilty to this offence and received a nine month conditional sentence and two years of probation in addition to seven days of pre-sentence custody.
[18] Rouse testified that he and Kyle Smith were friends in 2010. He denied having anything to do with the entry at the Beer Store at 150 Lakeport Road, on July 6, 2010. However, he testified that he and Smith once used a red pickup truck for a break and enter that they committed together. No other details of that crime were adduced. He testified that the red pickup truck was obtained from an auto mechanic's shop near Welland and Vine Streets in St. Catharines, Ontario, right across the street from the Armoury. I take judicial notice that that is effectively the location of Hagarty's Garage at 199 James Street in St. Catharines, Ontario.
[19] In addition, Rouse testified that one night while he was sleeping Kyle Smith left him a number of voicemail messages. The gist of those messages along with other admissions made by Smith to Rouse over the ensuing days was that Smith wanted Rouse to pick him up because he had been chased by the police in a high speed highway chase. Rouse could not remember the times when those calls were made. He was sleeping and retrieved the calls in the morning upon awakening. Rouse could not recall the date or the month, other than to say that he thought the calls came in when the weather was nice.
[20] In-chief Rouse denied being given any promise or any offer if he testified against Kyle Smith. In cross, Rouse testified that he was in custody when he spoke to the police and that not all of his discussions with them were digitally recorded. Further, he admitted that he was not proceeded against for every count he was charged with after his arrest. The detective who handled Rouse, Detective Constable Eric Bell, also testified.
[21] Bell became involved in the July 6, 2010 Beer Store entry and police chase on February 3, 2011 when he arrested Zacharia Rouse for other offences. Bell denied that Rouse was made any "sweetheart deals or offers to cooperate" but conceded that he interviewed Rouse several times both on and off camera. Moreover, he admitted that he offered Rouse immunity from prosecution for information about any further break and enters that he was prepared to provide details about in these terms: "After the questioning, Rouse was advised that given the amount of charges current against him, his level of cooperation through his investigation, and any further break and enters that he wished to provide details on, we, the police, wouldn't lay any charges against him."
The Submissions of the Crown
[22] The Crown is mindful of the dangers of a mistaken identification and acknowledges several deficiencies that weaken Diemer's identification of Smith as the offender: viz Diemer had no prior personal contact with Smith; Diemer only had a brief period of time to make his observations; he provided no physical descriptors of the driver and he confirmed his identification using a single photograph rather than making an identification from a proper sequential photo array. Nonetheless, the Crown submits that Diemer's identification is reliable and is supported by the evidence of Rouse.
[23] In the Crown's submission the admission made by Smith to Rouse that he was involved in a high speed highway police chase must surely be a reference to one and the same event that Diemer described. Moreover, Rouse was not charged as a principal, accomplice or accessory to these driving offences or to the entry that precipitated the chase or to being in possession of the stolen pickup truck. He is not tied by any evidence to these crimes so, while he admitted to having an unrelated criminal history, in the Crown's submission no Vetrovec self-charge needs to be entertained before the Court can rely on Rouse's evidence despite Rouse's admission to having an unrelated criminal history. In making this submission the Crown points to all of the following factors: (i) there was only one male in the recently stolen vehicle and he was identified as Smith; (ii) while Rouse received some consideration for cooperating with the police, that benefit was limited to the exercise of discretion in not being proceeded against for all of the offences he was charged with; (iii) there is no evidence he was rewarded for testifying against Smith; (iv) he had already been sentenced on his own charges and did not stand to gain anything from his testimony implicating Smith ; (v) on the contrary, he ran the risk of incurring the wrath of the accused who was once his friend. Further, the Crown noted that when Rouse did testify, he was clearly a reluctant witness who did not go out of his way to assist the Crown. What is significant, in the Crown's submission, is that Rouse was a close friend of Smith's at the time Smith made these calls to Rouse and that Rouse had no motive to provide this evidence against Smith.
[24] The Crown makes two final submissions. First, it is a matter of judicial discretion as to whether a Vetrovec warning is required and such a warning is not required in all cases involving an unsavoury witness. Second, the Crown submits that, should the Court rule that Rouse was an unsavoury witness whose evidence ought to be confirmed by independent evidence before being relied upon, then Diemer's identification of Smith as the driver confirms Rouse's evidence that Smith admitted to being involved in a high speed highway police chase.
The Submissions of the Defence on the Issue of Identity
[25] The defence submits that the circumstances of Diemer's opportunity to identify the driver were hazardous since he was travelling through an intersection against a red light. Further, his opportunity to see the driver was quite brief so that he was only able to catch what the defence characterizes as merely a "glimpse" of the driver's face.
[26] The defence submits that the failure of Diemer to take any further action on the night of the chase or to notify anyone on the night of the chase about the identity of the driver confirms that he merely speculated that Kyle Smith was the driver. Moreover, that speculation was based upon the driver's "resemblance" to a photograph of Smith that Diemers saw on some prior occasion. Even after calling up a photograph of Kyle Smith on his computer while returning to the station Diemer did nothing further that night. His inaction demonstrates that Diemer's thoughts about the identity of the driver did not rise beyond the level of speculation.
[27] The defence notes that Diemer was not fortified in his belief that Smith was the driver until he had seen a third photograph of Smith. Worse yet, he only made his identification after seeing that third picture of Smith and then only after sharing the conjectures of another officer who was never called and whose conjectures were not substantively admissible. In the result, the defence submits that Diemer's "identification' of Smith is irreparably tainted and unreliable.
[28] Finally, the defence notes that no proper identification procedures were carried out and no further police investigation was carried out until February 3, 2011. This failure to properly investigate the identity of the driver is particularly significant because Diemer conceded that Smith had a family member who was apparently involved in criminal activity and who "certainly looked similar" to Kyle Smith.
The Defence Submissions on the Vetrovec Issue
[29] The defence submits that the proper inference to be drawn from the evidence is that Rouse implicated Smith "in consideration for dealing with potential outstanding charges against [Rouse]." At a minimum Rouse admitted that in consideration of his cooperation the police exercised their discretion and elected not to proceed against him on some allegations. That consideration was confirmed by Detective Bell. It is noteworthy that some of the discussions Bell had with Rouse were "off camera" and not documented. The extent of the consideration afforded Rouse alone makes his evidence suspect but an examination of the quality of Rouse's evidence demonstrates that it is not worthy of credit.
[30] The defence submits that his evidence respecting alleged admissions made to him by Smith about a police chase were vague. In addition he failed to provide any specific details about what vehicle was used in the chase. Nor was he able to say where he was supposed to pick up Smith. In making these submissions the defence referred to the following excerpts of Rouse's testimony:
A. I don't remember to the, to the letter what they exactly said but in just they, he was pissed off at me, irate, said that he got chased by the police and I don't remember exactly, something about he wanted me to pick him up or something like that.
Q. Did he, did he leave you any message about the vehicle that he was in?
A. Not in particular, no.
Q. Well, did he say why he wanted you to pick him up?
A. He said he got chased by the police. He was in a police chase.
Q. Do you know where you were supposed to pick him up?
A. No, I didn't – there was no details about that.
Q. No details? And why was he annoyed with you. Did you take, did you find that out? Did you ever find that out?
A. It just, I could tell in his voice he was angry.
Q. Did he tell you anything else about the chase, any other message?
A. A few days later, I think it might have been, I found out that it was on a highway. Like, he, he got into a high speed chase on a highway.
Q. Do you know how many messages you got from him?
A. I had missed calls and voice mails. No, I don't know exactly. ...
A. ... I, I was asleep at the time when they must have came into my cell phone and I received them in the morning. Like, I, I woke up to see that there was messages and call on my phone.
Q. So, did you check the time of them?
A. No, I don't remember anyway.
Q. But it was while you were asleep?
A. Yeah.
Q. Did you phone him back to, to ask him anything about it?
A. I probably did. Like, I, he was a friend at the time so I'm assuming that I called him back but it, it's been years since it happened so I don't remember exactly what we said to each other. (Page 55, line 20 to page 57, line 14)
[31] As a result of the accommodation arrived at between Rouse and the police the defence submits that it is plausible that the vagaries in Rouse's evidence are the product his lack of relevant information compounded by a lack of any further need to cooperate with the police. Conversely, the defence submits that it is equally plausible that Rouse was involved in the charges that have been brought against the accused and that Rouse chose to be unspecific in order not to be implicated in those allegations. Either scenario raises serious concerns about his credibility so that reliance upon him risks a miscarriage of justice, in the submission of the defence.
[32] Without resiling from the first alternative the defence appears to favour the second since Mr. Singh noted that Rouse, when asked for his knowledge of what may have been stolen, volunteered that he and Smith used a red pickup truck for one of the break and enters they committed.
[33] The defence submits that Rouse occupies a central position in the determination of guilt and that he is disreputable or untrustworthy and therefore suspect as a witness. Hence, the court ought to be alert to and warn itself clearly and sharply about the risks of adopting his evidence "without more".
[34] The defence submits that Rouse's evidence is essential to any finding of guilt. But, it is suspect and needs to be corroborated before it can be relied upon. The alleged corroboration pointed to by the Crown is Diemer's identification evidence. Since that evidence is weak and unconvincing relying upon it to corroborate Rouse's evidence merely propels a circularity that compounds one piece of unreliable evidence with another. The evidence offered fails to prove the identity of the driver beyond a reasonable doubt.
Discussion
[35] This is an identification case. These types of prosecutions risk the "well-recognized potential for injustice" that result from the unreliability of eyewitness testimony. That potential is "particularly high where the person identified is a stranger to the witness, the circumstances of the identification are not conducive to an accurate identification, pre-trial identification processes are flawed and where there is [no] other evidence tending to confirm or support the identification evidence." (R. v. Goran, 2008 ONCA 195 at [20])
[36] Many of these concerns have some application to the facts before me and I intend to comment on them later in these reasons. In addition, however, there is also the issue of an "in-dock" identification made by Diemer of Smith. The Crown did not avert to or purport to rely upon that form of identification. Subject to the defence applying to exclude in-dock identification as a component of trial evidence, that form of identification remains admissible. Such identification has been found to be sufficient to support a committal to stand trial and sufficient to withstand a motion for a directed verdict of acquittal. (R. v. Mezzo, [1986] 1 S.C.R. 802; R. v. Ward, [2001] O.J. No. 2191)
[37] The Court of Appeal in R. v. Mooney, [1999] O.J. No. 2793 ruled that a "verdict based exclusively on dock identification cannot be maintained." There, the very learned trial judge "did not instruct himself that dock identification was undesirable and unsatisfactory. The probative force of the dock identification was undermined by the total absence of proper identification procedures." While the Court implied that in-dock identification can be relied upon in the presence of other confirmatory evidence, Janet Leiper, in Dock Identification and Other Tenuous Forms of Identification Evidence[1], has argued that that should no longer be the case. As well, reference can be had to R. v. Izzard, 54 C.C.C. (3d) 252 at 256 a to c).
[38] In-dock identification evidence is of minimal weight. Diemer's in-dock identification of Smith adds very little to the Crown's case. That said, appellate authorities permit the inclusion of in-dock identification as part of the evidence found sufficient to achieve a reasonable verdict. (see for example R. v. Goudreault and R. v. Anglin)
[39] Returning to the concerns identified in Goran, I believe and accept the evidence of Officer Diemer. He gave his evidence credibly and consistently. However, the issue before me is not Diemer's credibility but rather the reliability of his observations and the reliability of his powers of recollection and recognition. Accordingly, I propose to deal with his evidence in some detail.
[40] The first reliability issue is that Smith was a stranger to Diemer. That is always a concern but that concern is attenuated somewhat because Diemer had previously seen a photograph of the accused. That fact imports an element of recognition into the identification evidence of this case. That said, the evidence did not disclose when Diemer saw that photograph, nor was that picture entered into evidence.
[41] The circumstances under which an identification is made can also generate unreliable evidence. In my view, this is not a case where the circumstances were not conducive to an accurate identification. The officer was not under threat. Moreover, he was an officer with more than 17 years of experience. He purposefully drove slowly to get a good look at the person he intended to pull over before initiating that traffic stop. However, while the intersection was well lit and while Diemer was driving slowly, he had only a few seconds to look at the face of the driver. Additionally, he offered no description of any of the facial features of the driver that could be objectively compared to the accused. The best that Diemer could say was that he got a good look at the driver's face and that he bore a resemblance to someone but that he could not locate the memory of whom he resembled at that point in time. Diemer felt that he had seen the driver's face before but he could not recall the circumstance of having done so.
[42] At first blush the facts before me seemed to implicate the next reliability concern that Goran cautions against namely: flawed pre-trial identification procedures. It is possible to argue that once Diemer found the name Kyle Smith in his memory, rather than looking up a mug shot on his car's computer, while driving back to the station, he ought to have had someone prepare a proper photo line-up for him to view in an approved sequential fashion, with the usual caution that Smith might or might not be in the array. By searching out and looking at only one photograph of Kyle Smith Diemer arguably fell into the error made in R. v. Minaponoose, 30 O.R. (3d) 419. On reflection, I am satisfied Diemer was entitled to act as he did. This was simply a case of finally recalling and putting a name to a face. However, as noted by the Court of Appeal in R. v. Liebhardt, [2006] O.J. No. 1239, the fact that the officer identified the accused from a single photograph rather than a line-up is a factor to be weighed but that form of identification procedure does not render that evidence incapable of supporting a conviction.
[43] Finally, while Diemer accepted defence counsel's suggestion that his identification of Smith was "just some speculation on your part at the time" he implicitly qualified that characterization by immediately adding that he saw the driver face to face and he recognized him but could not find his name in his memory before the pursuit started. Accordingly, Diemer was wrong to adopt the word "speculation".
[44] The last item in the Goran analysis is whether or not there is other evidence tending to confirm or support the identification evidence. In my view, Hagarty's evidence and Rouse's evidence provide confirmation of the correctness of Diemer's identification of Smith as the driver.
[45] The fact that Rouse and Smith once had possession of a red pickup truck that was obtained from an auto mechanic's shop near Welland and Vine Streets in St. Catharines was potentially very cogent evidence that Kyle Smith was the driver of that truck. It is noteworthy that the truck was stolen mere hours before the police chase involving that vehicle. There are, however, two issues that arise from that piece of Rouse's testimony. First, the Crown did not seek to lead how Rouse knew that the red pickup truck was "obtained" from Hagarty's Garage. It is not patently clear whether Rouse's knowledge was obtained firsthand or by way of an admission from Smith or was purely hearsay. That lacuna is a weakness which lessens the corroborating effect of that testimony. Second, Rouse's testimony that he and Smith once used a red pickup truck for a break and enter that they committed together is clearly evidence of bad character outside the ambit of the current allegations. No objection was made to the admissibility of that evidence and it may be that none could be made. (see R. v. S.G.G., 116 C.C.C. (3d) 193 at [63])[2] Nonetheless, I am obliged to and do caution myself against fallacious reasoning prejudice and fallacious moral prejudice as a result of that evidence. (see R. v. Handy, 2002 SCC 56 at [32] and [144]) Reasoning prejudice denotes becoming confused or distracted by the bad character evidence and over-emphasising it while moral prejudice is the risk of convicting based upon bad personhood. The forbidden chain of reasoning is to infer guilt from disposition or propensity. (see Handy at [139])
[46] In my view, a Vetrovec self-charge is not strictly necessary for a number of reasons including the ones identified by the Crown above at paragraph [22]. Moreover, Rouse does not have a long criminal record nor was any evidence called to demonstrate or even suggest that he had any history let alone a long history of lying to the police. His testimony was not lengthy and did not contain frequent inconsistencies. Nonetheless, out of an abundance of caution, I have charged myself to be wary of Rouse's testimony and to scrutinize it to the extent that I am able to given the nature and the extent of the examinations to which he was subjected. Further, I am cognizant that an abiding and repeated contempt for laws which one is legally and morally bound to obey evinces a lack of trustworthiness. (see Corbett v. The Queen, 41 C.C.C. (3d) 385 at 396)
[47] Nonetheless, I accept the submissions of the Crown that:
(i) there was only one male in the recently stolen vehicle and he was identified as Smith;
(ii) while Rouse received some consideration for cooperating with the police, that benefit was limited to the exercise of discretion in not being proceeded against for all of the offences he was charged with;
(iii) there is no evidence he was rewarded for testifying against Smith;
(iv) he had already been sentenced on his own charges and did not stand to gain anything from his testimony implicating Smith;
(v) on the contrary he ran the risk of incurring the wrath of the accused who was once his friend; and,
(vi) finally, I accept that Rouse was a friend of Smith's at the time of these driving offences and that there is no proven, as opposed to speculative, basis on the evidence to find that Rouse had any motive to provide this evidence against Smith.[3]
[48] In sum, I accept the evidence of Zacharia Rouse that Kyle Smith admitted to him that he had been involved in a high speed highway police chase. I accept that Smith made more than one admission to Rouse about being involved in a police chase and that he made those admissions during a period of the year when the weather was "nice". I note that the events charged occurred in early July of 2010.
[49] I note that the police chase occurred after 3:24 a.m. and went on for roughly half of an hour. I note that Smith made several calls to Rouse during the night seeking to be picked up because he had been chased by the police. Those late night calls are consistent with the late night chase described by Diemer.
[50] I note that the vehicle being pursued was identified by the police by plate number, style and colour. The evidence establishes that this pickup truck was stolen sometime after 5:00 p.m. on July 5, 2010 and that it was used in the chase on July 6, 2010. The evidence establishes that it was stolen from Hagarty's Garage located at 199 James Street in St. Catharines, Ontario. I note and accept Rouse's testimony that he and Smith were once jointly in possession of a red pickup that stolen from an auto mechanic's shop near Welland and Vine Streets in St. Catharines, Ontario, right across the street from the Armoury. As noted earlier, I take judicial notice that that description is the location of Hagarty's Garage at 199 James Street, St. Catharines, Ontario.
[51] Diemer's evidence standing alone would be an insufficient and unsafe basis upon which to ground a finding of guilt. However, Diemer's identification of Kyle Smith as the driver is confirmed and corroborated by the admissions Smith made to Rouse that he was involved in a high speed highway police chase. In addition, Rouse's testimony that Smith was in possession of a red pickup truck identifiably obtained from Hagarty's Garage is a further piece of evidence that is corroborated by Mr. Hagarty's testimony about the theft of his truck, which was undeniably used in the chase.
[52] Taken cumulatively, the evidence satisfies to the exclusion of any reasonable doubt that Kyle Smith is guilty on counts (iii) to (vi).
Dated at St. Catharines this 20th day of June 2012.
J.S. Nadel (O.C.J.)
Footnotes
[1] This was a paper written by Ms. Leiper for a February 5, 2005 Ontario Bar Association program called Sex, Drugs and the Latest in Evidence.
[2] [63] It is trite law that "character evidence which shows only that the accused is the type of person likely to have commited the offence in question is inadmissible" (emphasis in original): see for example Morris v. The Queen, [1983] 2 S.C.R. 190 at pp. 201-2, 7 C.C.C. (3d) 97, 1 D.L.R. (4th) 385; R. v. B.(F.F.), [1993] 1 S.C.R. 697 at p. 730, 79 C.C.C. (3d) 112. However, there are three general exceptions under which evidence of bad character of the accused can be adduced:
(1) where the evidence is relevant to an issue in the case: see, for example, Morris, supra, at p. 202; B.(F.F.), supra, at p. 731. See also R. v. Lepage, [1995] 1 S.C.R. 654 at pp. 672-74, 95 C.C.C. (3d) 385; R. v. Hinchey, [1996] 3 S.C.R. 1128 at para. 135, 111 C.C.C. (3d) 353, 142 D.L.R. (4th) 50, per Cory J. (emphasis added)
(2) where the accused puts her character in issue: see, for example, R. v. McNamara (No. 1), 56 C.C.C. (2d) 193 (Ont. C.A.) at p. 352; leave to appeal granted on other grounds (1981), 56 C.C.C. (2d) 576 n (S.C.C.);
(3) where the evidence is adduced incidentally to proper cross-examination of the accused on her credibility: see, for example Lucas v. The Queen, [1963] 1 C.C.C. 1 (S.C.C.); R. v. Chambers, [1990] 2 S.C.R. 1293, 59 C.C.C. (3d) 321 …
[3] See R. v. L.L., 2009 ONCA 413, [2009] O.J. No. 2029 at [19] and at [53] (Ont. C.A.) and see R. v. M.B., 2011 ONCA 76, at [30] to [32].