Court Information
Date: September 8, 2017
Ontario Court of Justice Central West Region
Her Majesty the Queen -and- Andrew Bruce Arjoon
Proceedings commenced: 23 June, 2017 Decision issued: 08 September, 2017
Appearances
Prosecution: E. Wade
Defence: R. Walker
Statutes Considered or Cited
Highway Traffic Act, R.S.O. 1990, c. H.8, as amended
Cases Considered or Cited
Decision
The Charges
[1] The defendant was charged that on or about the 18th day of March, 2017, in Norfolk County, he did operate a motor vehicle on Highway 59:
a. While his driver's licence was suspended under an Act of the Legislature or a Regulation made thereunder (two counts laid although only one count being prosecuted),
b. Without leaving number plates displayed in the prescribed manner, and
c. Being the operator of a motor vehicle, a Honda Civic, did fail or refuse to surrender for reasonable inspection upon the demand of a police officer, either an insurance card for the motor vehicle or an insurance card evidencing that the operator thereof was insured under a contract of automobile insurance.
Finding
[2] For reasons set out below, I am finding that the defence has raised a reasonable doubt with respect to the essential elements of the charges, particularly as to the identity of the operator of the motor vehicle. Accordingly, I am dismissing the charges against the defendant.
Background and Evidence
The Circumstances
[3] The primary issue in this case is the identity of the person investigated and charged by the investigating officer. The facts are otherwise not in dispute.
[4] The circumstances of this case are as follows:
a. Police received a report of a suspicious motor vehicle in a field, approximately one hundred feet off of Front Road just west of Duck's Landing, in Norfolk County. An officer was dispatched at approximately 6:54 pm to investigate and came across a motor vehicle "being dug out" of a field. He arrived at approximately 7:10 pm and approached the only individual in the vicinity of the motor vehicle who identified himself verbally in the name of the defendant.
b. The suspect gave a date of birth, which did not coincide with that eventually found on the driving record of the person whose name the officer was given. The officer then cautioned the suspect with regard to the date of birth.
c. After being satisfied as to the issue of the date of birth, the officer reviewed information which led him to be concerned that the driving privileges of that person were under suspension.
d. During cross-examination, the officer confirmed that he spoke with the individual and "reminded him that he was under suspension" which the individual acknowledged. The officer's evidence was that the individual "clearly understood why he was under suspension and he acknowledged that," by saying "I was aware of that".
e. In re-examination by the Prosecutor, the officer further advised that the suspect was able to speak knowledgeably about the circumstances of his suspension, leading the officer to be satisfied as to the identity of the suspect. In spite of the fact that under cross-examination the officer described the information acknowledged by the suspect to be that he was aware he was under suspension, the evidence in re-examination did not flesh out any additional details that might have been provided by the suspect in terms of the details regarding the suspension, but, simply, that the suspect was able to speak "knowledgeably" about the suspension.
f. The single licence plate affixed to the Honda motor vehicle was a trailer plate and clearly not meant for use on that motor vehicle. The officer seized the plate and cautioned the person with regard to operating the motor vehicle, now that it was not plated.
g. The officer left but determined to monitor any activity by the person, as the circumstances were at least suspicious and potentially improper.
h. Later the officer returned to the area and now located the motor vehicle on the shoulder of the road. The officer cautioned the person in the driver's seat (the same person he interacted with earlier) to have the motor vehicle moved, as it was not plated.
i. Some time later, the person grew concerned that if he failed to move the motor vehicle, it would be impounded and for that reason began to drive away. The officer, who had remained in the vicinity, began to follow the motor vehicle and effected a traffic stop a short distance away. After charging the operator, he took that person to a nearby parking lot to await a friend of the operator to take him home. By now, it was after 11:00 pm. There is no contest as to the fact that the suspect investigated earlier that evening by the officer was the same person driving the motor vehicle, now un-plated and with a suspended licence.
j. The investigating officer gave evidence that the defendant was the person he investigated on that date.
k. At some point, the investigating officer made a call for assistance, and another officer arrived and made observations of the person who had operated the motor vehicle. The assisting officer indicated that after supervising the removal of the motor vehicle from the roadside, he then attended the location where the investigating officer had gone, to further assist. There, he made observations of the suspect, while seated in his patrol car with his window next to the window of the investigating officer's car and was able to see the suspect "from the shoulders and up". The suspect was viewed through "bars in the back of the cruiser". He asked some questions of the suspect while looking directly at the suspect from a distance of less than two metres.
l. It is his evidence that the defendant in court was the person he had observed seated in the rear of the investigating officer's patrol car.
m. The assisting officer advised that he was provided a name for the suspect by the investigating officer, and, further, that he had understood that the suspect may have been "at one time untruthful" regarding his date of birth; it was with regards to the year.
n. Under cross-examination, the assisting officer was positive that the person he observed in the cruiser was the "person here today", but he later clarified by saying he "was pretty sure". He explained his confidence by noting that he and the suspect were both from Brampton, and for that reason he had paid particular attention to the suspect because he "felt he could relate". In spite of indicating that he had asked the suspect questions, under cross-examination, he advised that while the investigating officer was asking the suspect questions, he [the assisting officer] was looking straight at the accused.
o. When asked about the make and model of the motor vehicle the removal of which he had supervised, he was unable to recall any details.
Defence Evidence
[5] All of the above was not contested by the defendant. However, the defendant says he was not in Norfolk County on the date and time of the investigation. He was, he says, "probably" at home or at his dad's business, but definitively not in Norfolk County. He runs a restaurant/lounge which was being renovated and not operating on the day of the alleged offence.
[6] Under cross-examination, he was asked – without objection – about a prior conviction and whether his licence is suspended and he acknowledged that he had a prior conviction and was under driving suspension. This line of inquiry was advanced in order to "establish credibility".
[7] He explained that "Chris" (the corroborating witness) came to him before the first appearance date and advised him that he had given the officer his name, resulting in charges. He attended court in order to "sort things out", advising someone that the wrong person had been charged however, to no avail. It was indeed he who attended court on the first appearance date and received disclosure.
Corroborating Witness
[8] A corroborating witness was called by the defence, Christopher Boodoo. He gave evidence that he was the person found in the field encountered by the officer. He confirmed that he improperly identified himself as the defendant giving the defendant's name and a made up date of birth. He advised that when challenged by the officer about the date of birth he had given but which was inconsistent with MTO records, he then "confirmed" the date of birth offered by the officer as the correct date of birth.
[9] After receiving the tickets, Mr. Boodoo held on to them but later gave them to the defendant prior to the court date set out on the Part III summonses, in order that the defendant be able to attend.
[10] Mr. Boodoo gave evidence of how he came to be in the field that evening. He advised that he was out with a car "sold" to a customer of the auto shop where he works. The car had been sold "as is", "for parts". That purchaser asked Mr. Boodoo to try and fix the car in exchange for a cash payment and Mr. Boodoo drove to Norfolk County to meet that owner at a local gas station where he took possession of the car. Mr. Boodoo gave no explanation as to how he proposed to fix the car (i.e. what tools he may have had to do this) or where. Mr. Boodoo told the court that he then affixed the trailer plates to the car and drove off. He was not asked whether there were plates on it when he took it to repair, in spite of it having to have arrived there in some fashion. After driving away, he encountered steering problems and had to pull off the highway to do something to correct the problem. It was at that point in time he encountered the investigating officer and provided the information he admitted (during his evidence) to be false.
[11] Fortuitously, he was in fact able to repair the car and return the car to the side of the road, where he was waiting for a tow truck driver he knew, to come and remove the car. He was unable to give any name for the tow truck operator or company that he had called for the tow (a "friend"). While waiting for the tow truck, the officer then returned and told him he would allow some time (Mr. Boodoo said he was allowed five more minutes to get the car towed) or the officer would make efforts to have the car removed at the operator's expense.
[12] Mr. Boodoo explained that the reason he provided the false name was because his own licence was suspended.
Voir Dire
[13] In the course of the trial, the Prosecutor requested that the court enter into a voir dire for the purpose of establishing that an utterance made by the person investigated at the scene was voluntary.
[14] It is clear that the investigating officer did not at any time caution the defendant about potential driving charges but with respect to providing accurate information about the date of birth. This is true even in the face of the decision by the officer to remove the trailer plate affixed to the motor vehicle and his belief that the person he was investigating was a suspended driver. He did caution that person not to drive because of the suspension.
[15] The defence objected to the admission of any statements that may have been made, on the basis that they were not made under caution. The court also inquired as to whether any statements made by the person being investigated at that point in time were relevant to the charges, which were only laid later. The Prosecution admitted no, noting however, that such statements might go to the credibility of the defendant. When asked if she wished to pursue this line of evidence, the Prosecutor responded "no" and the voir dire was abandoned without any finding by the court as to voluntariness.
What is the Issue?
[16] The sole issue for me is whether police charged the right person with the offences. The investigating officer and a corroborating officer gave evidence that the defendant who appeared at trial was the person they observed on the night in question.
[17] The investigating officer relies on the name provided him in the field at the start of their encounters that day. While little was admitted as evidence in trial as to what the person being investigated may have said to the officer to assist in identifying himself, the investigating officer obtained CPIC information that led him to believe that the suspect's driving privileges were under suspension.
[18] It is clear that the facial features of the defendant and his witness are different. For example, one has facial hair and the other not. Neither the investigating officer nor the assisting officer gave evidence about any features that would support in identifying the suspect.
[19] On the other hand, the defendant gave evidence that he was not in Norfolk County on the day of the alleged offences.
[20] The evidence of the corroborating witness, unchallenged by the Prosecution, was that he only agreed with a date of birth provided to him by the officer. The inference is that the officer never did obtain a date of birth from the witness but essentially "fed it" to him.
Credibility Analysis
[21] Clearly, an issue of credibility arises. If I accept the defendant's evidence as credible and it puts the Crown case in doubt, I must dismiss.
[22] In this case, I am faced with a situation in which not only do I have the defendant's evidence, I also have the evidence of a corroborating witness. Notwithstanding, the Prosecution argues I should reject both those witnesses' evidence on the basis that it is not credible, and potentially fabricated.
[23] In the case of the defendant, he actually appeared for trial, while arguing he never received the summons issued roadside. He says – supported by his witness – that the driver of the car gave him the summonses some time after they were issued so that he could actually attend court.
[24] In the case of the defence witness, it is clear that his evidence contradicts what he told the investigating officer. He gave that evidence and was unshaken under cross-examination; indeed, under cross-examination, it might be said he gave additional evidence that could be used against his own interest. Perhaps most importantly, he stated that the reason for providing false information to the investigating officer was to avoid being further charged, since he himself is a suspended driver. It would appear he had hoped that his friend was not, and he could at least avoid the issue of being charged himself.
[25] That said, his evidence is full of holes. To start, he never provided the name of the owner of the motor vehicle for whom he says he was working. Regrettably, the motor vehicle was registered to a business in Mississauga (not a person living in Norfolk County), and the Court was provided no evidence as to whether the registered owner knew of it being in Norfolk County on that or any other day.
[26] The witness' evidence that he was in possession of the car to be repaired, without knowing the name of the owner, being unable to identify the friend he was awaiting to pick him up, and, finally, failing to provide the identity of the tow truck driver he was expecting to remove the vehicle from the side of the road is highly suspect. In context, this gives little support for any finding that the defence witness' evidence is credible.
[27] However, it is clear that the person who was charged was eventually picked up by an unknown individual.
Prosecution's Position
[28] The Prosecution laments that I did not permit – based on evidence from the voir dire – a finding that statements made by the suspect be voluntary. It is suggested that had I done so, I would have heard evidence from the investigating officer as to how he satisfied himself as to the identity of the person he was investigating. As noted above, the Prosecutor elected not to pursue the issue in the voir dire at the time that the issue was canvassed by the Court. Noting that even the defence conceded that evidence regarding statements that may have been made by the suspect might be revisited, once the relevance was established, the issue was never resurrected by the Prosecution.
[29] Notwithstanding the abandonment of the voir dire by the Prosecution earlier in the trial, once the exculpatory evidence was admitted to the record, it seems that a Prosecution motion to recall the investigating officer to flesh out the basis for establishing identity could have at least been made. I am mindful that the defence never signalled to the Prosecution or its witness that it would be calling a witness to impugn the investigating officer's evidence as to identity. Given the principles in Brown v. Dunn it is clear that a request to recall the witness on the issue of identity would have been justified.
Cross-Examination on Prior Conviction
[30] Rather, the Prosecutor sought to impugn the credibility of the defendant by cross-examining him on a prior conviction, arising out of a charge of stunt driving. Again, I am mindful that no objection was raised to this line of questioning by the Prosecutor. Given that the defendant did not put his driving record into issue, there was no basis for this line of examination. As such, I am concerned that such cross-examination was improper. Notwithstanding, it is clear that the defendant acknowledged his past driving misdeeds, made no excuse for them and acknowledged he accepted responsibility by way of a guilty plea.
Quality of Identification Evidence
[31] I find that the evidence of the assisting officer is of little help. He only saw the person charged, late at night and dark, although in a lighted parking lot. He looked from his position in his cruiser and through the window of the cruiser operated by the investigating officer, into the rear passenger area of that car and through the bars separating the front and rear parts of the car. Such identification, without details as to its basis, no matter how confidently expressed, is suspect and does not assist me in being satisfied who he saw that night. In particular, I note again that the officer did not, at any time, independently obtain a name for the suspect but relied on information provided by the investigating officer.
[32] I am mindful of the cases, including one recently decided by the Ontario Court of Appeal, as to identification evidence of suspects. In this case, the assisting officer asserted that he paid attention to the suspect because they were both from Brampton, but did not articulate the particular features or idiosyncrasies that underlie the recognition. Thus, my conclusion that any evidence as to identity that he provided does not assist.
Outcome
[33] To say that this case is muddled is understatement. The officer's evidence is clearly challenged by the defence evidence. While I find the corroborating defence evidence highly suspect, it does, as a minimum, raise serious concerns about the Prosecution case, particularly in the context of the evidence of the defendant himself.
[34] I have also recently had the opportunity to review the decision of the Ontario Court of Appeal in R. v. Wright, in which the Court found:
It is well established that our law distinguishes between an exculpatory statement which is disbelieved and one that is found to have been fabricated or concocted to avoid culpability. A statement which is merely disbelieved is not evidence that strengthens the Crown's case. However, if the Crown can establish, through extrinsic or independent evidence, that an exculpatory statement was fabricated or concocted to conceal involvement in the offence, the statement evidence can be capable of supporting an inference of guilt: O'Connor; R. v. B.(P.), 2015 ONCA 738, 127 O.R. (3d) 721.
[35] In this case, while the Court and the Prosecution clearly are both of the view that the defence evidence is suspect, there is no extrinsic or independent evidence of fabrication. As such, being merely suspect or disbelieved cannot serve to strengthen the Crown case, as the Prosecution would invite me to do.
[36] That said, I am convinced that the evidence gives rise to at least a reasonable doubt as to the Crown case, and, on the basis of the second leg of the analysis in W.D., I find I am compelled to dismiss the charges.
Issued at Norfolk County, Ontario, September 08, 2017
His Worship Donald Dudar Justice of the Peace