Court Information

Court File No.: Not provided

Ontario Court of Justice

Between:

Her Majesty the Queen (Crown)

— And —

Beau Green (Accused)

Before: Justice Robert S. Gee

Heard on: November 13, 2013

Reasons for Judgment

Counsel:

• C. Good, for the Crown
• J. Stephenson, for the Accused

Introduction

[1] Beau Green is charged with four offences all arising out of an incident that occurred on the Six Nations Reserve on July 31, 2013. The offences are: Dangerous Operation of a Motor Vehicle, Fail to Stop for the Police, Possession of a Stolen Chevrolet Trailblazer valued Over $5,000.00 and Failure to Comply with a term of Probation, namely, to keep the peace and be of good behaviour. The Crown proceeded by Indictment on all charges and Mr. Green elected to have his trial in the Ontario Court of Justice.

[2] Two witnesses were called at trial. The Crown called Acting Sergeant Marwood White of the Six Nations Police and the Defence called Officer Raymond Johnson, also of the Six Nations Police. Mr. Green did not testify.

Facts

[3] The incident that occurred on July 31, 2013 is fairly straightforward and largely undisputed. Sergeant White and Officer Johnson were on duty on the morning of July 31, 2013. A call was received that a possible stolen Chevy Trailblazer had been spotted abandoned on the property of 2725 Fifth Line, in the Township of Tuscarora, on the Six Nations Reserve. Sergeant White and Officer Johnson left the detachment together in a marked cruiser to investigate. Officer Johnson drove, while Sergeant White was the passenger.

[4] Shortly after 11:00 am, as they were approaching the driveway to 2725 Fifth Line, a silver Chevy Trailblazer matching the description of the motor vehicle in question, was observed waiting at the end of the driveway, apparently about to turn onto Fifth Line. The police approached from the Trailblazer's left and stopped in front of the driveway, partially blocking its exit.

[5] From his position in the passenger seat of the cruiser, Sergeant White testified he was 5 to 6 metres from the Trailblazer and had an unobstructed view from the side window of the cruiser through the driver's side window of the Trailblazer at the driver. Sergeant White stated when the driver saw him he lifted his head upward towards the vehicle's ceiling and then looked back down, directly at him and smiled. He testified he had a 5 to 6 second opportunity to view the driver whom he immediately recognized and told Officer Johnson was Beau Green.

[6] Sergeant White testified he was able to recognize Mr. Green as the driver due to his prior dealings with him. He testified he has dealt with Mr. Green approximately 10 to 12 times over the course of his 14 year police career. These prior interactions were as part of his administrative duties as a police officer and lasted each time for approximately 15 to 20 minutes.

[7] At this time, the Trailblazer pulled out of the driveway and turned right onto Fifth Line. Officer Johnson followed in the cruiser and activated its lights and sirens. The Trailblazer did not stop. It accelerated and made a right turn onto Onondaga Road. The Trailblazer continued with the police in pursuit at speeds reaching 160 km/h in an 80 km/h zone. It failed to stop at the four-way stop at the intersection of Onondaga Road and Fourth Line. Officer Johnson testified that as it went through this intersection its wheels left the ground. There were other vehicles at this intersection at the time and other vehicles using the road. The Trailblazer continued to flee and Sergeant White ordered Officer Johnson to discontinue the pursuit due to the danger it was creating.

[8] After discontinuing the pursuit, the police continued to follow the Trailblazer from a distance. It continued at a high rate of speed and turned onto Third Line. Eventually it turned off Third Line into a dirt driveway entering a tobacco field. Police arrived quickly on the scene and found the Trailblazer abandoned with the driver's door open and the engine running. The police followed a set of footprints from the Trailblazer along the driveway and a track through some tall grass until it came out behind a business on Third Line called Rez Tec Automotive.

[9] Officer Johnson testified he thought the footprints on the driveway were made by someone wearing only socks on their feet. He formed this belief because the footprints did not have any type of tread pattern that would have been made by footwear. As well, there was no distinct heel or outlines made by toes one would expect if the person were barefoot.

[10] Police approached the Rez Tec building with Officer Johnson heading around the west side while Sergeant White went around the east side. As Sergeant White came around the front of the building, the accused, Mr. Green walked out of one of the automotive bays wearing only socks on his feet. With him was an older male in his mid 50's. At this point Sergeant White approached and arrested the accused. When Officer Johnson saw Mr. Green he testified he recognized him as the person he had just witnessed driving the Trailblazer.

Issues

[11] It has been admitted that the Trailblazer involved was stolen two days before on July 29, 2013 and was valued at $12,000.00. The Defence as well has conceded that the Trailblazer was being operated in a manner dangerous to the public and that the operator failed to stop when being pursued by the police. The Defence has also admitted that Mr. Green was on probation with a term requiring him to keep the peace and be of good behaviour.

[12] The issue to be decided in this case is whether the Crown has proven that Mr. Green was the driver of the Trailblazer.

The Law

[13] The inherent frailties and dangers associated with eyewitness identification are well known and have been repeatedly articulated by our courts.

[14] Eyewitness identification testimony has been described as a form of opinion evidence that is based on a host of little understood psychological and physiological factors (See: R. v. Miaponoose, [1996] O.J. No. 3216). The testimony of eyewitnesses is often very convincing. It is convincing because the witnesses are honestly convinced that they are identifying the correct person. As well, this belief that they have identified the right person tends to grow over time, so when testifying they come across as honest, truthful and credible witnesses. That is why courts have to be wary of not confusing reliability with credibility. As has been shown in many cases in the past, witnesses who are convinced they are identifying the correct person, too often are mistaken.

[15] As such it is of particular importance for courts to be cognizant of the circumstances under which the witness observed the suspect at the time of the event and the procedures used subsequently to identify that suspect.

[16] Factors such as whether the suspect was known to the witness, the circumstances under which the witness observed the suspect including; whether the opportunity to see the suspect was lengthy or fleeting, whether the observation occurred in stressful circumstances, the state of the lighting available at the time and whether the witness can describe any distinguishing features of the suspect amongst others. As well, courts must be alive to circumstances that could be said to taint the witness's identification such as observing the suspect alone or in police custody and whether proper photo lineup procedures were followed. (See: R. v. Nikolovski, [1996] 1 S.C.R. 1197, R. v. Burke, [1996] 1 S.C.R. 474, R. v. Alphonso, 2008 ONCA 238, [2008] O.J. 1248 and R. v. Gough, 2013 ONCA 137, [2013] O.J. No. 973)

[17] It is of particular importance to scrutinize the circumstances under which the observation was made and any post observation identification procedures utilized when the suspect is unknown to the witness. In circumstances where the witness claims to be familiar with the suspect, the circumstances of the observation and the identification procedures followed can still be important but may be less so based on the extent of the witness's previous dealings with the suspect. (See: R. v. Spatola, [1970] O.J. No. 1502 and R. v. Johnson, [1994] O.J. No. 1042)

[18] Obviously, where a witness purports to be identifying a relative or close friend, the lack of mention of distinguishing features will be of lesser consequence. (See: R. v. Bardales (1995), 101 C.C.C. (3d) 289, (B.C.C.A.) aff'd, [1996] 2 S.C.R. 461) However, where the witness has only had a single or very few, brief prior interactions with the suspect, then the lack of any mention of distinguishing features or other evidence supportive of the identification can be problematic. Such was the case as found by the court in R. v. Jack, [2013] ONCA 80.

Analysis

[19] It is the position of the Defence in this case that I ought to have a reasonable doubt that Mr. Green was the driver of the Trailblazer. The Defence contends I should not accept as reliable the evidence of Sergeant White when he identifies Mr. Green as the driver. I am reminded Sergeant White did not testify to, nor did he make note at the time of any distinguishing features of the person he observed driving the Trailblazer that would assist in identifying that person as Mr. Green. As well, the Defence described the time that Sergeant White had to observe the driver as short, more akin to a fleeting glance, which also affects the reliability of the observation.

[20] As Justice Laskin, as he then was, noted in the Spatola case, and the British Columbia Court of Appeal noted in the Bardales case, this may or may not be problematic, depending on the circumstances. The prior familiarity between Sergeant White and Mr. Green falls somewhere between the examples given earlier, that being the identification of a close friend or relative at one end of the continuum and the identification of someone the witness has dealt with only once or few times briefly, on the other end.

[21] In this case Sergeant White testified he had dealt with Mr. Green 10 to 12 times over the course of his career as a police officer. That is a significant number of opportunities to observe Mr. Green. Also, he testified that he would have been with Mr. Green for 15 to 20 minutes each time. Each of these dealings was more than brief and cumulatively added to a significant period of observation. I would note as well, the prior dealings where Sergeant White was able to observe Mr. Green were administrative in nature and not conducted in stressful or other circumstances that might call into question his ability to observe and recall Mr. Green.

[22] The circumstances under which Sergeant White made his observations in this case were, I find sufficient to allow him to make a reliable identification of the driver. It was during the day and well lit. It was through untinted windows and although not for a lengthy time it was more than a fleeting glance and long enough for Sergeant White to observe and relate the driver's reaction to seeing him. The observation also was not made in stressful circumstances, the two vehicles were stopped at the road prior to the pursuit commencing. As well, I am mindful that Sergeant White indicated immediately to Officer Johnson that he recognized the driver as Mr. Green. As such, there is no fear or suggestion that his belief in that regard was tainted or influenced by his observation of Mr. Green at Rez Tec within moments of locating the abandoned Trailblazer. It may have been better if Sergeant White had taken the time to record some features of Mr. Green but, I find that in the circumstances of this case, that lack of recording is not of significant consequence.

[23] Given the number of prior dealings, the amount of time involved in each and the circumstances under which they occurred, I am satisfied that Sergeant White had a level of familiarity with Mr. Green which allowed him to recognize him as the driver of the Trailblazer when he saw him at the end of the driveway on July 31, 2013.

[24] However, in addition to Sergeant White's identification of Mr. Green as the driver, there is other evidence capable of corroborating his identification.

[25] The first and most obvious is that Mr. Green was located in close proximity to and only moments after the Trailblazer was located abandoned.

[26] As well, the track followed by the officers led directly to Rez Tec Automotive where Mr. Green was located.

[27] Then there is the track itself. Officer Johnson for the reasons noted above indicated he thought the track in the dirt was made by someone in socks and when Mr. Green came out of Rez Tec, he was wearing only socks on his feet.

[28] Furthermore, when Officer Johnson saw Mr. Green at Rez Tec he indicated it was the same person he saw driving the Trailblazer.

[29] It was argued by the Defence that the lack of other investigative steps taken by the police ought to leave me in a state of doubt. The Defence theory is that the police acted too quickly in arresting Mr. Green at Rez Tec based on Sergeant White's belief it was him driving and they should have been more open to the idea that it might have been someone else. As such, if they did not take other steps to eliminate the possibility that there was some other person in or about Rez Tec that could have also been the driver then, I ought to have a reasonable doubt about Mr. Green in this regard.

[30] The investigative steps that the Defence argues should have been undertaken and were not, are the fact the Trailblazer apparently was never analyzed for fingerprints, the inside of Rez Tec was never checked by the police for other persons and neither officer could recall the colour of the shirt worn by the driver so it was not possible to compare that to what Mr. Green was wearing.

[31] All cases must be decided on the totality of the evidence presented. This case is no different. As noted earlier, the frailties associated with eyewitness identification can be particularly problematic for courts. Keeping those frailties in mind, depending on the court's assessment of the reliability of the eyewitness identification evidence, in some cases the lack of other corroborating evidence may leave the court in a state of doubt concerning the reliability of the witness's identification. In other cases, even knowing the frailties involved, the reliability of the witness may be sufficient to convince the court beyond a reasonable doubt.

[32] This case falls into that latter category. Based on the evidence of Sergeant White and the circumstances noted earlier, I am satisfied as to the reliability of his identification of Mr. Green as the driver. That, as noted though was not all the evidence presented. Other evidence that corroborated Sergeant White's identification that being Mr. Green being located close to the Trailblazer both physically and in time after it was abandoned, the track leading from the Trailblazer to where Mr. Green was located, the fact Mr. Green was wearing socks only which was consistent with the track observed and that Officer Johnson also indicated he was the person he saw driving the Trailblazer leave me convinced beyond a reasonable doubt that Mr. Green was the driver of the Trailblazer.

Conclusion

[33] Given this finding, and given the concessions of the Defence noted earlier, Mr. Green will be found guilty of the charges of Dangerous Operation of a Motor Vehicle and Failing to Stop for the Police.

[34] No concession was made by the Defence relating to the Possession of Stolen Property over $5,000.00 charge. In order to be convicted of this charge the Crown must prove that Mr. Green had control of the Trailblazer at a time he knew it to be stolen. As I have found he was the driver of the Trailblazer, he obviously had control of it. Based on the fact it was stolen only two days earlier, he fled from police upon seeing them and that he abandoned it with the door open and engine running in a tobacco field, I conclude that Mr. Green knew at that time the Trailblazer was stolen. As such a finding of guilt will be made in relation to this charge as well.

[35] The last charge is the failing to comply with probation by not keeping the peace. As a result of his commission of the three above noted offences, Mr. Green was not complying with this term of his probation and a finding of guilt will be made on it as well.

Dated at Brantford, Ontario

This 3rd day of December 2013.

The Honourable Mr. Justice R.S. Gee