Court Information

Ontario Court of Justice

Date: August 15, 2018

Court File No.: Ottawa 17-A13342

Parties

Between:

Her Majesty the Queen

— and —

Tyler Alexander Shirley

Before: Justice P.K. Doody

Heard on: June 12 and 13, 2018

Reasons for Judgment released on: August 15, 2018

Counsel

Sarah Fountain — counsel for the Crown

Jasna Drnda — counsel for the defendant

Judgment

DOODY J.:

Overview

[1] A man driving a Chrysler PT Cruiser stopped Patrick Ballard in a parking lot on November 9, 2017 as he was walking out of a Shoppers Drug Mart with his groceries and asked him for a cigarette. Mr. Ballard said that he did not have any and continued to walk toward his own car, passing in front of the PT Cruiser. The driver of the PT Cruiser then accelerated and struck Mr. Ballard, causing him to roll up and off its hood after the car had driven over 100 feet. The driver stopped and spoke with Mr. Ballard briefly and then left the scene.

[2] Tyler Shirley is charged with assault with a weapon (a Chrysler PT Cruiser), uttering a threat to cause death, dangerous driving, and failing to stop and give his name and address after having been involved in an accident with intent to escape civil or criminal liability.

[3] The main issue is identification: whether the Crown has proven beyond a reasonable doubt that Mr. Shirley was the driver. The Crown relies on both eye witness identifications and circumstantial evidence. A video shows part of the incident. Some witnesses saw the driver of the car at the time of the incident and the driver of the same car which returned a short time later. The car was located shortly thereafter parked at a house nearby. The engine was still warm. The defendant was inside that house.

[4] There is a second issue of whether the Crown has proven beyond a reasonable doubt that the driver of the car threatened to cause death to Mr. Ballard when he spoke to him after striking him.

The Evidence

(a) Patrick Ballard

[5] Mr. Ballard testified that he spoke with the driver for about 10 seconds when he asked him for a cigarette. He described him as a black male with a goatee, with a bit of an accent, wearing a grey toque. In his statement given the day of the incident, he had said that the driver had a beard. He testified that he was not sure whether he had a moustache. In cross-examination, he testified that the toque was a solid colour, with no other colours on it. He was about a foot or two from him. He described the lighting as still bright. He could not remember any clothing other than the toque. He estimated his age as "late 20s". In cross-examination, he agreed that he had not indicated anything about the driver's age in the statement he provided to police that evening.

[6] He said there was another man in the car. He did not get a good look at him, and did not notice whether he had facial hair. He said that the passenger was not wearing a hat and was younger than the driver. He testified that the passenger was also a black man, but could not say whether his skin colour was light or dark.

[7] Mr. Ballard testified that he got up after rolling off the car where it had stopped in front of a McDonald's restaurant. The driver did not get out of his car or attempt to help him. He said the driver yelled at him in an angry tone in a language which he could not identify. The driver was "quite a distance" away from him, and not as close as he had been when he asked Mr. Ballard for a cigarette. He testified that he thought the driver was going to get out of his car and attack him so he ran into McDonald's. The driver sped off. Mr. Ballard then called 911, using a witness' cell phone.

[8] After Mr. Ballard called 911, members of the fire department arrived. They were holding Mr. Ballard's neck stable while waiting for the paramedics when the PT Cruiser returned and stopped in front of them. Mr. Ballard testified that the driver was the same person who had been driving when the car struck him. There was no passenger. He told the firefighters that that was the car and driver who had hit him. He had no interaction with the driver because he was very scared and trying to move and get away from him. The driver was there less than a minute. In cross-examination, he said that the car stopped in front of him "very briefly" by which he meant "seconds". The driver was on the far side of the car as it drove from his left to his right in front of him. In re-examination, he was asked how he knew the driver of the car when it returned was the same man who had been driving it when he hit him. He responded "When it is just that – a vision in your head plus he was wearing a grey toque." When asked to expand on that, he testified, "When you are interacting with someone and you are on the hood of the car you have those characteristics stuck in your head – beard and grey hat."

[9] Two videos of the incident were played while Mr. Ballard was on the stand. He had not seen them before his testimony.

[10] One shows the PT Cruiser crossing from the right to the left with a man on the hood. The car enters the frame at 17:25:29 and comes to a stop at 17:25:32 after the man rolls off the hood onto the sidewalk. At 17:25:42 a man can be seen walking behind the car and looking at its licence plate. The car drives away at 17:25:50. The camera angle is high. The driver cannot be seen. It is a low quality black and white video. The licence plate cannot be read on the video.

[11] Mr. Ballard testified that he was the man looking at the licence plate, explaining that he wanted to get the licence plate number to tell authorities.

[12] The second video shows the car entering the frame at 17:25:31 and stopping at 17:25:32. It is also taken from a high angle but is closer to the car. It is poor quality and black and white. Although the driver's face can be seen as a blur, no features can be made out. It does show his mouth opening as if he was talking. He is wearing headgear which is light coloured (grey in the black and white video). When his head moves, it appears as if there are some light coloured marks on the top of the hat. The car drove off at 17:25:50, travelling at the same speed as a car in the lane beside him.

[13] The videos show that it was dark at 5:25 p.m. on Nov. 9 in Ottawa. The cars had headlights on.

[14] Mr. Ballard testified that he recognized the defendant as the man who had been driving the car. He said that he recognized him when he first walked in to the courtroom that morning. When asked why he could be sure the defendant was the driver, he testified "It is one of those faces you cannot really forget. When something like that happens it sticks with you." At the time he identified the defendant, he was the only black man in the courtroom.

(b) Steve McCagg

[15] Mr. McCagg was just leaving the McDonald's restaurant when he saw the PT Cruiser moving, with Mr. Ballard on the hood. He said the car was moving "not very fast". He checked on Mr. Ballard and spoke to him. He noted the licence plate of the PT Cruiser, which was the same number as the plate on the PT Cruiser parked at the home where the defendant was arrested.

[16] Mr. McCagg was asked to describe the driver. He said that he was more concerned with Mr. Ballard than the driver, could not see the driver very well, and could only describe him as a black male.

[17] He heard the driver saying "phone the f-ing cops, I am going to kill him." He testified that the driver was speaking English. He did not notice an accent. He was about 15 feet from the driver and could hear him clearly. In cross-examination, he testified that he could not remember the exact words and the driver could have said "I could have almost killed you." He also said that he could not remember if the word used was "you" or "him". When asked if he could be mistaken about whether the word "kill" came from the driver, he said "I feel pretty sure that it came from the car."

(c) Leo Tardoli

[18] Mr. Tardoli, a 56 year old man, testified that he had just parked his car in front of the Shoppers when he saw a man come out of the store and have a brief exchange with the driver of a PT Cruiser. He could not hear what they said. He was 5 car lengths away. He saw the man walk in front of the PT Cruiser when it accelerated, causing the man to roll up on the hood and off again in front of McDonald's. He went over to the man, who was Mr. Ballard. By the time he got there, the car had left. He was going to call 911 but found himself unable to do that. He handed Mr. Ballard his phone, and Mr. Ballard called 911. At that time, they were standing in front of McDonald's.

[19] He testified that he thought that there were two men in the PT Cruiser. He did not see them very clearly. He said they were younger than he was. He could not describe the clothes they were wearing, but he did not think they were wearing hats or a toque. He thought that the driver was bigger than the passenger.

[20] He testified that as he and Mr. Ballard were standing together about 20 minutes after the incident, after the firefighters arrived, a PT Cruiser drove through the parking lot. As the car drove past them, Mr. Ballard said "that's him". There was no passenger. He was asked by Crown counsel whether he could tell if the driver was the same person who had been driving it previously. He responded "not 100%". In cross-examination, he said that he did not see the driver's face the first time. He said that the driver did not stop when the PT Cruiser drove by 20 minutes later, but just drove by very slowly. He was asked if the driver had facial hair, and said that he thought that the driver had "a little moustache maybe a little on his chin I am not 100% sure."

(d) Christopher Minor

[21] Mr. Minor is a firefighter. He and his crew arrived on scene within 2 ½ minutes of receiving the dispatch that a pedestrian had been struck by a vehicle. He spoke with Mr. Ballard, who told him that he had been hit by a silver PT Cruiser. He then saw a silver PT Cruiser driving toward them. He asked Mr. Ballard if that was the car that had hit him and he said that he thought that it was. Mr. Minor said that the car pulled up beside them. Mr. Minor gestured to him. After stopping for no more than 5 seconds, the car drove off. The car was in his field of view between 45 seconds and a minute.

[22] There was only one person in the car. Mr. Minor described him as a male with mid-colour black skin, with no distinguishing features. He could not give any description of his clothing. He was not able to note any facial hair or glasses. He was asked if the driver had a hat or toque, and said "not that I can recall".

[23] He noted the plate, which was the same number as Mr. McCagg had recorded on the vehicle which struck Mr. Ballard.

(e) Constable Paolo Crescenzi

[24] Cst. Crescenzi, a member of the Ottawa Police Services, received a dispatch at 5:34 p.m. that a 911 caller had been struck by a silver PT Cruiser, and the licence plate of the car. He queried the registration record, and learned that the car's registered owner lived at Unit 324, 1601 Prince of Wales Drive. He drove there, arriving at 5:59 p.m. He saw the car reversed into the driveway, with the rear very close to the wall of the carport and no front licence plate. The hood was still warm. He checked the rear licence plate. It matched the number he had been given.

[25] He went to the front door of the house. He saw the defendant talking to a woman he assumed to be his mother. He could not hear what they were saying. When they saw him, the defendant opened the door and began to yell and swear at him, accusing him of being racist and making other inflammatory comments. The woman was trying to calm him down.

[26] Cst. Crescenzi called for backup. Cst. Troy Forgie arrived and told him that he had grounds to arrest the defendant for dangerous driving based on the victim's statement and description of the driver. Cst. Forgie arrested the defendant. He continued to protest and resisted being handcuffed. While being searched he banged his head against the cruiser, yelling about police brutality and that he was being arrested because he was black.

[27] Cst. Crescenzi described the defendant at the time of his arrest as a black male, 6 feet tall, slim build, with facial hair, wearing a grey toque, black hoodie, and grey sweat pants. He described the facial hair as "kind of like a goatee – the start of a goatee but with sideburns." In cross-examination, he said that the defendant was unshaven beyond his chin, up to and including his cheeks. He said that he could not remember whether the toque had colours other than grey in it, or whether it was light grey or dark grey. He spoke in English. He could not remember if he had an accent.

(f) Constable Troy Forgie

[28] Cst. Forgie arrived at the scene of the incident at 5:50 p.m. After speaking with Mr. Ballard and others, he was told by dispatch to go to 324-1601 Prince of Wales. He arrived there at about 6:10 to find Cst. Crescenzi speaking with the defendant and an older female who he assumed was the defendant's mother. The defendant was speaking very aggressively and the woman was trying to calm him down. The defendant said that the police were racist and called Cst. Forgie a racist homosexual. The defendant came out of the house and was arrested at 6:21.

[29] The police did not enter the house. They do not know if anyone was in it other than the defendant and the older woman.

[30] After being arrested, the defendant became violent, slamming his head against the cruiser and kicking off his shoes. Cst. Forgie could smell alcohol on his breath. Cst. Forgie drove the defendant to the police station and turned him over to the officers to search him. He spent about an hour with him that day. He had not seen him before that time.

[31] Cst. Forgie described the defendant at the time of his arrest as a black male. He did not recall if he had facial hair. He spoke English with no detectable accent. He could not give any information about the clothes he was wearing. He did recall that he was wearing a grey toque but he could not recall what shade of grey. He said that if he was shown the toque on the day he testified he would not recognize it. The toque was not seized as evidence.

[32] Four days later, on November 13, 2017, Cst. Forgie returned to the mall where the incident had occurred. He spoke with the property manager and learned that the mall had video cameras that recorded the parking lot. These cameras were in addition to those from McDonald's which Cst. Forgie had already viewed and which have been entered as exhibits in this trial. He viewed a video of the incident.

[33] The video was recorded by a camera at least 2 stories high on the Shoppers Drug Mart building. It showed an area in front of Shoppers, including the 6 to 8 feet wide sidewalk, the lanes for traffic in front of the sidewalk, and two rows of parking in the parking lot. It captured the entire width of the store, estimated by Cst. Forgie to be 130 feet.

[34] Cst. Forgie described the video as being much clearer than the video from McDonald's. He said that he watched it once. He saw Mr. Ballard leave Shoppers and walk in the direction of a silver PT Cruiser which pulled up right in front of him; Mr. Ballard speak with the driver and have "some kind of interaction" with him; Mr. Ballard proceed around the front of the car, and the car accelerate and strike Mr. Ballard, who went up on the hood of the car as it drove out of sight. He did not zoom in as he was watching it. He saw the driver's face. He testified that he was wearing the same hat the defendant was wearing when he was arrested.

[35] He testified that he could clearly see that the driver was the defendant. When asked to describe the man in the video, he testified that he was a black male in his 30s wearing a grey toque and dark clothing. He said he recognized him as the same man he had arrested 4 days earlier.

[36] The mall manager told Cst. Forgie he would send him a copy of the video. He never did so. Cst. Forgie took no steps to obtain the video, other than to leave unreturned messages for the mall manager. The video was not available to be entered into evidence.

[37] Cst. Forgie took no notes as he was watching the video. He took no notes about the video in his duty book. He did prepare an investigative action report on the computer in his cruiser when he returned to it on November 13, 2017 after viewing the video. In those notes, he did not say that the driver was the defendant. He made a second investigative action report on January 9, 2018 in which he wrote that he was not receiving any answer from the mall manager. He did not record in that report that the driver was the defendant. Instead, he wrote "the video shows suspect vehicle and the driver of the vehicle speaking with victim and victim walking in front of the vehicle and being struck by vehicle."

[38] He made no notes of the characteristics of the man seen in the video, or of the quality of the video.

[39] The first time he provided the information that he recognized the driver in the video as the defendant was on the day he testified.

[40] Although Cst. Forgie testified that the portion of the video screen occupied by the car was not very small, I conclude that that is not so. The video showed an area about 130 feet wide and as deep as a sidewalk 6 to 8 feet wide, two lanes of traffic, and two rows of parked cars. The car would not have taken up much more than 1/10 of the screen's width, and the driver's face would have taken up a much smaller proportion.

[41] No photo lineup was conducted. Cst. Forgie was assigned to the patrol division and was unsuccessful in having the investigation section take over the file. He found it difficult to take the time to do a lineup.

(g) Ministry of Transportation Records

[42] Ministry of Transportation records show that the PT Cruiser with the licence plate of the car involved in the incident was owned by Grace B. Spence, whose address is 324-1601 Prince of Wales Drive in Ottawa, the address where the defendant was arrested.

(h) Court Documents

[43] Crown counsel indicated that he was relying on the recognizance of bail attached to the information and the address on the information charging the defendant.

[44] The recognizance of bail shows that the defendant was released on November 10, 2017 on conditions which included an obligation to reside at 324-1601 Prince of Wales Drive. Barbara Spence of the same address was his surety.

[45] The back page of the information, sworn November 10, 2017, shows that the defendant's address was 324-1601 Prince of Wales Drive. It lists his date of birth as December 21, 1989, making him 27 years old at the time of the offence.

Analysis

[46] Crown counsel submitted that the following evidence, considered together, proves beyond a reasonable doubt that the defendant was the driver of the car which struck Mr. Ballard:

Direct evidence of identity:

• Courtroom identification by Mr. Ballard;
• Identification by Cst. Forgie from the Shoppers Drug Mart video;

Circumstantial evidence of identity:

• The car's registered address was 324-1601 Prince of Wales Drive, the same address as the defendant's surety;
• 324-1601 Prince of Wales Drive is 600 metres from the scene of the collision;
• The information and the recognizance establish that the defendant lives at that address;
• The information establishes that the defendant was 27 years old;
• Messrs. Ballard, McCagg, and Tardoli testified that the car which struck the defendant was a light coloured PT Cruiser;
• Messrs. Ballard, McCagg, Tardoli and Minor testified that the car was driven by a black male;
• Mr. Ballard testified that the driver wore a grey toque;
• The video evidence showed that the driver was wearing a toque and the collision occurred at 1725 hours, shortly before the 911 call was made;
• The police were despatched at 1734 hours;
• The PT Cruiser was found in the driveway of 324-1601 Prince of Wales Drive with no front plate and the hood still warm;
• Messrs. Ballard and Tardoli testified that the driver had a beard or goatee;
• Messrs. Ballard, Tardoli and Minor testified that the driver was in his 20s or early 30s;
• Mr. Ballard testified that the same driver returned after the collision;
• Mr. Minor testified that a silver PT Cruiser drove by them shortly after the fire department arrived;
• That car left the lot and proceeded south on Prince of Wales Road, toward 324-1601 Prince of Wales Drive;
• The defendant's erratic behaviour at the time of arrest was post-offence conduct consistent with erratic driving.

[47] I do not accept this submission.

[48] There is no doubt that all the evidence, including the direct evidence of witnesses, the circumstantial evidence, and the video establish that the car which struck Mr. Ballard was the PT Cruiser registered to Grace B. Spence whose registered address was 324-1601 Prince of Wales Drive, and that that car was driven from the scene of the collision to that address very shortly after the collision, backed into the carport, and left there with the front plate having been removed.

[49] That does not resolve the issue of identity. On that issue, there is the direct evidence of Mr. Ballard's courtroom identification and Cst. Forgie's evidence of having recognized the defendant on the Shoppers video, together with the circumstantial evidence of the defendant having been arrested at the address where the car was found and had been driven shortly after the collision, and the defendant's erratic behaviour when being arrested. In addition, the Crown submits that I must consider the evidence from the recognizance and the information that establishes that the defendant lived at that address, as did his surety, who shared a last name and an initial with the registered owner of the car.

[50] Direct evidence of identification is in a special category. Charron J.A. (as she then was) summarized the issue well in R. v. Miapnoose (1996), 30 O.R. (3d) 419:

The inherent frailties of identification evidence are well known to the law and have been the subject of frequent judicial consideration and comment. We must, however, never regard these principles as trite. They are fundamental. They merit repeating. One of the many useful writings on this subject can be found in the Law Reform Commission of Canada Study Paper on Pretrial Eyewitness Identification Procedures (1983). The Commission concludes in its study that "the need for comprehensive police guidelines is particularly acute in the area of pretrial eyewitness identification procedures, because eyewitness testimony is inherently unreliable" (at p. 7).

In discussing the dangers inherent in eyewitness testimony, the Commission reviews actual cases of wrongful conviction based on eyewitness testimony; psychological studies that reveal the inherent unreliability of this kind of evidence; and the reasons why eyewitness testimony is difficult to assess through courtroom procedures. The study reiterates the fact that it has long been recognized by commentators that, of all types of evidence, eyewitness identification is most likely to result in a wrongful conviction and this even in cases where multiple witnesses have identified the same accused.

Eyewitness testimony is in effect opinion evidence, the basis of which is very difficult to assess. The witness's opinion when she says "that is the man" is partly based on a host of psychological and physiological factors, many of which are not well understood by jurists. One example is pointed out by the Commission (at p. 10):

Simply by way of illustration, psychologists have shown that much of what one thinks one saw is really perpetual filling-in. Contrary to the belief of most laymen, and indeed some judges, the signals received by the sense organs and transmitted to the brain do not constitute photographic representations of reality. The work of psychologists has shown that the process whereby sensory stimuli are converted into conscious experience is prone to error, because it is impossible for the brain to receive a total picture of any event. Since perception and memory are selective processes, viewers are inclined to fill in perceived events with other details, a process which enables them to create a logical sequence. The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus the final recreation of the event in the observer's mind may be quite different from reality.

Witnesses are often completely unaware of the interpretive process whereby they fill in the necessary but missing data. They will relate their testimony in good faith, and as honestly as possible, without realizing the extent to which it has been distorted by their cognitive interpretive processes. Thus, although most eyewitnesses are not dishonest, they may nevertheless be grossly mistaken in their identification.

While the circumstances surrounding the witness's identification can be subject to scrutiny in cross-examination, many of the more subjective processes that have led to it are impossible to expose in this fashion.

[51] Identification evidence is inherently unreliable and subject to inherent frailties regardless of the credibility of the witness. The difficulties are exacerbated where 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; R. v. M.B., 2017 ONCA 653 at paragraph 29)

[52] Even where, as here with Cst. Forgie, the witness testifies that the person identified is known to him by previous acquaintance ("recognition evidence"), the same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence. (R. v. Olliffe, 2015 ONCA 242)

[53] Identification evidence is strengthened where the identifying witness can point to unique identifiable features of the person being identified. That principle is also true for recognition evidence. The importance of unique identifiable features varies with how well the witness knows the person he or she identifies. (M.B., para. 46)

[54] Both Mr. Ballard's courtroom identification of the defendant and Cst. Forgie's identification on the Shoppers Drug Mart video are so weak as to be of almost no value.

[55] Mr. Ballard had not seen the defendant before Nov. 9, 2017. He saw the driver of the car which struck him for only about 10 seconds before being struck, and again during the 10 second period between the time when he was thrown to the ground and he ran to the back of the car to check the licence plate. At that time, he was quite a distance from the driver. It was dark out, as indicated by the video. He was not given a chance to participate in a photo lineup and did not see the defendant again after the day of the incident (if, indeed, the defendant was the driver of the car) until June 12, 2018 when he testified. He could give no description of the driver other than that he was a black man in his late 20's with a goatee wearing a grey toque, with no other colouring on the toque. He also said that he spoke with a bit of an accent.

[56] He could not describe his facial features or his build. He was not sure whether he had a moustache.

[57] His courtroom identification was particularly problematic. The defendant was the only black man in the courtroom. Cross-racial identification is particularly difficult. The weakness of such an identification was exacerbated by the fact that Mr. Ballard could not give any reason why he was sure that it was the defendant other than that he was, indeed, sure.

[58] Mr. Ballard's testimony that the driver spoke English "with a bit of an accent" to ask for a cigarette is contrary to the evidence of Cst. Forgie that the defendant spoke English with no detectable accent. This would support an inference that the defendant is not the driver.

[59] Furthermore, there are significant discrepancies between Mr. Ballard's evidence and other evidence which lead me to question his reliability – something that is not surprising, given how quickly the events unfolded:

• he testified that the driver yelled at him after the collision in a foreign language he could not identify; Mr. McCagg said the driver yelled at Mr. Ballard in English;
• he testified that when the driver spoke English to ask for a cigarette, he had a bit of an accent; Mr. McCagg testified that the driver spoke English with no noticeable accent;
• he testified that immediately after the collision, he ran into McDonald's because he was frightened of the driver and that he then called 911 on a witness' cellphone; the video shows that ten seconds after he rolled off the car, he ran behind the car to check the licence plate; Mr. Tardoli testified that he and Mr. Ballard were in front of McDonald's when he gave him his cellphone to call 911;
• he testified that the car "sped off"; the video shows that the car drove off at the same speed as the car beside it; and
• he testified that it was still bright out at the time of the collision; the video shows that it was dark and the cars had their headlights on.

[60] I place no weight on Mr. Ballard's courtroom identification.

[61] Cst. Forgie's identification of the defendant as the person in the video is also very problematic. While he was in the defendant's presence for about an hour just 4 days before seeing the video, for about half that time the defendant was in the back seat while Cst. Forgie was driving him to the station. He saw the video only once. Given Mr. Ballard's estimate that he was speaking to the man for only ten seconds when he asked for a cigarette, and the length of time it took the car to travel in front of McDonald's, two doors down, the driver of the car could have been visible on the video for only fifteen or twenty seconds. The driver's face must have occupied a very small portion of the screen, yet Cst. Forgie did not zoom in or replay the video. When asked to describe the driver in the video, he said he was a black man in his 30's wearing a toque – the same description as Mr. Ballard gave, except for the age, which was off by a decade. He took no notes setting out why he concluded that the driver was the defendant. Although he wrote two reports describing the video's contents, he did not write in either report that the driver was the defendant. He did not provide that information until the day he testified.

[62] The combination of Mr. Ballard's very weak courtroom identification and Cst. Forgie's very weak identification does not make the sum of the evidence stronger. As the Court of Appeal held in M.B. at paragraphs 66-67, independent flawed identification evidence from three witnesses (or, as in this case, two) is no more persuasive than if from one.

[63] Nor am I satisfied that the evidence establishes that the driver of the PT Cruiser when it returned to the mall was the same man who had driven it at the time of the collision. Mr. Ballard testified that he was the same man. But his evidence was that the car drove through the parking lot for less than a minute, and that it stopped in front of him "very briefly", only "seconds". The driver was on the far side of the car from Mr. Ballard. He could give no description of the man other than that he was wearing a toque and he had a beard. His ability to see the driver of the car that hit him was limited, as I have discussed. And there are issues with the reliability of his evidence.

[64] Mr. Tardoli testified that he did not see the first driver's face. He could not give evidence that it was the same man. He did testify, however, when asked if the driver of the returning car had facial hair, that he had "a little moustache maybe on his chin – I am not 100% sure." Mr. Minor testified that the car was there between 45 seconds and a minute and his only description of the driver was that he was a black male. He did not note whether he had facial hair. Cst. Crescenzi described the defendant's facial hair when he was arrested as "the start of a goatee but with sideburns" and later that he was unshaven beyond his chin, up to and including his cheeks. Cst. Forgie did not recall if the defendant had facial hair when he was arrested. And no photo of the defendant at the time of his arrest was entered into evidence. If that had been done, I would have known what facial hair the defendant had on the day of the offence.

[65] The Crown submits that the defendant's date of birth and address on the court information, the surety's name and address on the recognizance, and the defendant's address on the recognizance can all be admitted for the truth of those facts. Crown counsel relies on the Court of Appeal's decision in R. v. Caesar, 2016 ONCA 599. That case stands for the proposition that the evidence of a person's guilty plea, as recorded on the back of the original indictment, is admissible. The court held at paragraph 38 that documents or records are admissible if made by a public official in the discharge of a public duty or function, with the intention that it serve as a permanent record, and be available for public inspection. There is one further requirement: that it be the recorder's duty to validate the truth of the contents of the documents. If it is not within the scope of the recorder's duty to do so, the documents will not be admitted for the truth of the contents. (paragraph 39)

[66] I am not at all sure that the person who records the defendant's date of birth and address on the court information, the surety's name and address on the recognizance, or the defendant's address on the recognizance is under a duty to validate the truth of those things. I heard no evidence that that is so. I would have thought that the person preparing the documents – a police officer for the information, and a court clerk for the recognizance – would simply write down what they were told by someone else, without engaging in any enquiry to validate that they were being told the truth.

[67] In any event, I do not believe that this evidence, even if admissible, assists in establishing beyond a reasonable doubt that the defendant was driving the PT Cruiser when it struck the defendant. If the defendant lived at that address, he had a reason to be there when the police arrived. It may have been different if he was in a house in which he did not live to which the car had been driven shortly after the collision.

[68] Nor, in my view, does his erratic behaviour give rise to an inference that he was guilty of the offence. Post-offence conduct can be used where it relates to a live issue in the case, and the circumstances surrounding the evidence make it sufficiently unambiguous to demonstrate reasonably and clearly the relevant emotional state of the defendant at the time. It is not relevant to a material issue where the evidence supports competing inferences that are equally as persuasive as the inference the evidence is being presented to establish.

[69] The Crown submits that the defendant's screaming and yelling at the officers supports an inference that he was acting unreasonably that day. Since the evidence is that the driver of the PT Cruiser acted unreasonably, the Crown submits that an inference arises that the defendant is the driver.

[70] I do not accept that submission. The evidence would equally support an inference that the accused was suffering from mental health issues at the time, or that he felt strongly about being arrested on the sole basis, as he saw it, that he was a black man. The inference that someone who behaves unreasonably when arrested is likely to have committed a crime shortly before in which the offender acted unreasonably – but in different ways – is one which could be very problematic. I appreciate that Crown counsel is not submitting that his behaviour when arrested, on its own, could support a conviction, but rather that it is one piece of evidence which, taken together with the rest of the evidence, leads to the conclusion that the defendant is guilty. Nevertheless, in my view the inference on the evidence in this case is not sufficiently unambiguous to be used for that purpose.

[71] Nor can I conclude that the driver of the car that struck Mr. Ballard had a beard. Mr. Ballard testified that he had a goatee, and was not sure if he had a moustache. In the statement he gave to police the day of the offence, he said that the driver had a beard. None of the other witnesses could give any evidence as to whether the driver of the car that struck Mr. Ballard had a beard. The video is of such poor quality that it cannot be discerned whether the driver had facial hair. Given the issues with Mr. Ballard's reliability, I cannot find that the driver had a beard.

[72] We are left, then with the following facts:

(a) the driver of the car that struck Mr. Ballard was a black man wearing a grey toque;

(b) there was a passenger, a black male, in the car that struck Mr. Ballard;

(c) the same car that struck Mr. Ballard returned a short time after the offence, driven by a black man wearing a grey toque with no passenger;

(d) the car was discovered very shortly thereafter, with its hood still warm, parked at the home of its registered owner which was the same address that is shown as the defendant's address on the information and his recognizance of bail;

(e) the registered owner of the car was the defendant's surety;

(f) the defendant was in that house at the time and was wearing a grey toque; and

(g) the defendant is a black man.

[73] This is all circumstantial evidence. Circumstantial evidence can be used as the sole or primary basis for concluding that the Crown has proven an element of an offence beyond a reasonable doubt. Care must be taken when doing so, however. Because triers of fact may be inclined to "fill in the blanks" or "jump to conclusions" when applying circumstantial evidence, they should be aware that they should not draw inferences of guilt too readily. Circumstantial evidence should only be used as the primary basis for a finding of guilt where the defendant's guilt is the only reasonable inference to be drawn from the evidence or the absence of evidence. (R. v. Villaroman, 2016 SCC 33 at paras. 26 to 37)

[74] When assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt to determine whether "the circumstantial evidence, viewed logically and in the light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty." (Villaroman, at para. 38)

[75] It is not necessary, however, that the trier of fact negative every possible conjecture, no matter how irrational, fanciful, or speculative, which might be consistent with the innocence of the accused. The following language summarizes this principle:

In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot be reasonably supposed.

(Martin v. Osborne (1936), 55 C.L.R. 367 (H.C.), at p. 375, cited with approval by Cromwell J. in Villaroman, at para. 40)

[76] I am not satisfied that the evidence in this case, taken together, proves beyond a reasonable doubt that the defendant was the driver of the car that struck Mr. Ballard. While that is one inference that can be drawn from the evidence, there are other possible inferences.

[77] There was another black man in the car. That could have been the defendant. Or the defendant may not have been in the car at all.

[78] I have heard no evidence as to whether any other person was in the house at the time the defendant was arrested. It is a reasonable inference that there might well have been at least one other black male in the house, since there were 2 black males in the car a short time before. Nor did I hear any evidence as to who else lives in that house.

[79] The fact that the defendant was wearing a grey toque, as was the driver, does not suffice to eliminate an inference that the driver could have been someone else. It is not unusual to wear a toque in Ottawa in November. Many toques are grey.

[80] I must note that the doubts I have as to whether the defendant was the driver may have been able to be resolved (one way or the other) had proper investigative steps been taken. If a proper photo lineup had been done with Mr. Ballard, he may well have identified the defendant as the driver, or failed to point him out, supporting an inference that he was not the driver. If the toque the defendant was wearing at the time of the arrest had been seized as evidence, I could tell if it had the lighter marks near the top that can be seen in the video. If the video from Shoppers Drug Mart had been obtained, I would be able to see for myself how clearly the driver could be seen and more properly assess the evidence of Cst. Forgie that the driver was the defendant. I may have been able to determine whether the driver was the defendant by viewing the video myself, as the Supreme Court of Canada held in R. v. Nikolovski, [1996] 3 S.C.R. 1197. That would have been facilitated by seeing a photograph of the defendant on the day of his arrest. But none of these things were done.

[81] I have a reasonable doubt as to whether the defendant was the driver. The charges are dismissed.

[82] It is not necessary for me to determine whether the Crown has proven beyond a reasonable doubt that the driver threatened to kill Mr. Ballard.

Released: August 15, 2018

Signed: Justice P.K. Doody