ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT (MILTON)

COURT FILE NO.: CRIMJ(P) 122/11
DATE: 20120412

B E T W E E N:

HER MAJESTY THE QUEEN

A. K. Frew, for the Respondent

Respondent

• and -

IVAN JOHN BALEN

E.J. Bhattacharya, for the Appellant

Appellant

HEARD: January 25, 2012

JUDGMENT

[On appeal from conviction by Justice L. Baldwin
on June 30, 2011]

HILL J.

INTRODUCTION

[ 1 ] Ivan Balen was convicted on the basis that while he had care or control of a vehicle that was involved in a motor vehicle accident, he, with intent to escape civil or criminal liability, failed to stop his vehicle and give his name and address.

[ 2 ] At trial, the prosecution called three civilian “eyewitnesses” to the accident and four investigating police officers. No defence evidence was called.

[ 3 ] Mr. Balen appeals his conviction. Three grounds of appeal were argued orally:

(1) it was submitted that because conduct of Halton Regional Police Service (H.R.P.S.) Constable Gina Mehlhorn amounted to an impermissible warrantless search, the trial court erred in failing to exclude observation evidence that witness was allowed to provide at trial

(2) it was further submitted that the trial judge erred in her consideration of the issue of the identification of the driver of the hit-and-run vehicle by:

(a) failing to consider conflicting evidence detracting from the appellant being the responsible driver

(b) impermissibly engaging in private research on a matter material to the identification issue

(c) misstating evidence relevant to assessment of identification

(3) it was submitted that the verdict was unreasonable and unsupported on the evidence.

FACTUAL BACKGROUND

The Hit and Run

[ 4 ] Stephen Heron, a teacher, was driving westbound on Upper Middle Road on October 17, 2009 when he observed a navy blue Jeep Cherokee ahead of him. The Jeep was swerving on the road and three times hit the gravel shoulder of the road creating a big dust cloud. When the traffic light at Bronte Road turned green, the Jeep entered the intersection and made a U-turn.

[ 5 ] The witness was unable to say with certainty whether the Jeep had tinted windows. For a second or less, he clearly saw the driver of the Jeep at a distance of about ten feet through the driver’s window. From memory, Mr. Heron described the driver as a male of apparent European descent with shorter, graying hair. The witness had no recall what the driver was wearing. At trial, Mr. Heron identified the appellant as the driver. There was only one person in the Jeep.

[ 6 ] Mr. Heron honked his horn at the driver. As he turned to head south on Bronte Road, he heard a collision behind him. Mr. Heron testified that when he stopped and got out of his vehicle, he observed that the Jeep had made contact with a Jaguar vehicle. The Jeep backed up and headed east on Upper Middle Road.

[ 7 ] In cross-examination, Mr. Heron agreed that when he gave a statement to the police on October 17, which he wrote out, and had an opportunity to review, he knew the police were investigating a hit-and-run incident and would be looking for the driver of the Jeep. He wrote what was “fresh” in his memory. The witness agreed that in his statement he made no reference to the gender or race of the Jeep driver or to that person’s age, weight, build, facial hair, clothing, European appearance, hair colour, or hair length. At trial, Mr. Heron stated that in writing his statement he was in an emotional state and focused on describing the events which had transpired.

[ 8 ] On October 17, 2009, Aleli Magpile was driving her Jaguar motor vehicle westbound on Upper Middle Road. She moved to the left hand turn lane to turn onto Bronte Road. She was then struck with a hard hit on the driver’s side of her vehicle by the driver’s side of a bluish-green Jeep Cherokee. She could not say whether the Jeep had tinted windows. In Ms. Magpile’s words, “all I saw was the front of the Jeep, like going on the side of my face”. The vehicle then sped away without stopping. Asked in-chief whether she had seen the driver, the witness stated, “Unfortunately, not”. She added, “All I saw was the passenger”.

[ 9 ] Arlette Edmunds testified that on October 17, 2009, she was a front-seat passenger in a vehicle driven by her husband. They were on their way to a wedding. As they were stopped at a traffic light at Upper Middle Road and Bronte Road, she observed a late model, dark blue Jeep Cherokee heading westbound. As the vehicle seemed to over-compensate in making a turn as the driver accelerated, it struck the side of the Magpile vehicle knocking the side mirror off of the driver’s side of that car. The Jeep did not stop but continued east on Upper Middle Road. In the witness’ words, “It all happened very quickly”

[ 10 ] The witness testified that she had a good view of the Jeep driver, from about fifteen feet away and for about five seconds, as he sat high in the Jeep vehicle. Ms. Edmunds described the driver of the Jeep as a heavy-set white male in his forties or fifties dressed in a k-way type of tracksuit. He had dark hair with a bit of gray. In describing the tracksuit at trial, the witness stated:

I do remember it was K-way, but I think it - I had identified it as a dark blue, possibly.

[ 11 ] Ms. Edmunds testified that there was no one else in the car. She immediately called 9-1-1. She was unable to tell the police dispatcher the licence # of the Jeep. She related to the dispatcher that the driver was a white male in his forties with blackish hair and wearing a tracksuit. When asked by the dispatcher if she saw the colour of that clothing, Ms. Edmunds replied “No”. She can then be heard on the 9-1-1 tape asking her husband about the colour of the driver’s tracksuit jacket before informing the dispatcher, “Maybe light red/blue, blue maybe, blue with red trim. I don’t know. It happened so fast.” Under cross-examination, the witness gave this evidence:

A. But, if you ask me really quickly I might, I might be inclined to say “no” and then say, “well hold on no I did see it”.

Q. Yes.

A. So, this is what happened. She asked me if I saw it and I said, “no” and I’m like, well hold on a second, Chris did you see it? Hold on it was blue, it was red. I had to just go back and remember.

A. …my no, my no answer wasn’t, no I didn’t see the tracksuit…

Q. Yes.

A. …like, no let me talk about it with my husband because he was literally, he saw the whole thing right beside me.

Q. Sure.

A. So, it wasn’t, no I didn’t see the colour. It was more, no was it blue was it red, was it-like I remember a K-way and I remember thinking, you know, big man sitting. It was almost like a very relaxed driver pose, you know, big tracksuit, like that’s what I can remember in my head, whether or not it’s a blue and I said, no.

Q. Fair enough and then you address the dispatcher and then your answer’s, “Maybe like red/blue, blue maybe, blue with red trim. I don’t know it happened so fast.”

A. Right, but there’s no, like-so my answer may have been “no”, but I asked my husband “Did you see the colour of the tracksuit?” He in no way influenced my answer.

Q. Okay.

A. I came up with the red/blue on my own.

[ 12 ] Asked at trial whether she saw the driver of the Jeep in court, the witness stated:

I, I, I assume that’s him. I, I, it was a very, very quick - so I’m going to say that it’s that gentleman. I don’t know because I’m guessing that it’s the gentleman that was behind the wheel based on my description, heavy-set male, based on the age that I saw I will make that assumption. I don’t know if that’s fair or not.

…I can’t [be] 100 percent sure, absolutely not.

[ 13 ] At the conclusion of Ms. Edmunds’ evidence, the trial judge asked questions of the witness:

THE COURT: I, I have just one. What do you mean by K…

A. K-way?

THE COURT: …K-style tracksuit? What do you, what does that mean to you?

A. In the 80’s, I don’t know, we used to wear them. They were like this, this relaxed fit-just like a K, K-way’s the brand.

THE COURT: Oh, okay.

A. Like a polyester tracksuit.

THE COURT: Okay, anybody want to ask. I just didn’t know what it meant.

[ 14 ] Constable Sean Fennell arrived at the accident scene at 2:06 p.m. and spoke to Ms. Magpile. She stated that as a blue SUV made a left turn in front of her proceeding southbound on Bronte Road, with its acceleration, the rear end of that vehicle came around and struck the driver’s side of her Jaguar. The SUV did not slow but drove on.

[ 15 ] In his in-chief testimony, the constable stated that Ms. Magpile described the driver as a white male in a tracksuit. In cross-examination, the officer agreed that he had no reference in his notebook to a white male wearing a blue tracksuit. He could not explain the absence of a note. On his evidence, he recollected these details “from the time of the incident happened” about fifteen months earlier. Constable Fennell broadcast the information he received including that the subject vehicle would have frontend driver’s side damage.

The Police Investigation

[ 16 ] On October 17, 2009, at 1:42 p.m., Constable Shane Glenfield received a radio dispatch of a ‘fail to remain collision’ in Oakville at the intersection of Upper Middle Road and Bronte Road. He was informed that the suspect vehicle was a blue Jeep Cherokee with licence #682 RJX registered to Ivan Balen at 364 Morden Road. The suspect driver was described as a scruffy-looking male in his forties with black hair and wearing a blue sweater.

[ 17 ] Constable Richard Judson was on patrol on October 17, 2009 when he received a radio call relating to a hit-and-run accident. He was dispatched to 364 Morden Road with information that he was to locate the driver of a blue Jeep with Ontario licence # 682 RJX who was believed to be a white male, approximately forty years of age, with black hair and scruffy clothes including a blue tracksuit.

[ 18 ] Constable Judson met the appellant’s father at the Morden Road address. Ivan Balen was not there. Constable Judson obtained the appellant’s cellphone number from his father. At 1:55 p.m., the officer dialled the number. The constable testified that a male with a deep voice answered. He had slurred speech and was “slow talking”. When Judson advised that it was the police calling, the speaker stated: “I didn’t do anything. Call me back. I have to converse with someone”. The speaker then terminated the call.

[ 19 ] Constable Judson informed the court that when he called back at 1:57 p.m., a different male voice, also with slurred speech, answered and stated, “Fuck you, fuck you, fuck you”. That speaker then hung up. A subsequent call to the cellphone at 2:05 p.m. led to the second speaker again answering and saying, “Fuck you, fuck you” before hanging up. The speaker’s speech seemed rushed and frantic. When the appellant’s father received a phonecall at 2:15 p.m., he handed the phone to Constable Judson. Judson announced who he was and, before hanging up, the speaker told him repeatedly, “fuck you”. The appellant’s father identified that speaker as his son-in-law.

[ 20 ] Believing that the driver who left the accident scene would seek to “dump” the vehicle nearby because of the damage it sustained in the collision, Constable Glenfield began driving the residential streets in the vicinity of the accident. At 2:16 p.m., the officer located the appellant’s Jeep parked in a driveway at 2336 Brockberry Crescent no more than a kilometre from the accident scene. The officer walked onto the driveway and inspected the vehicle. There was damage to the driver’s side window, the front bumper and the front fender. Constable Mehlhorn responded to Constable Glenfield’s call for assistance.

[ 21 ] As Constable Glenfield went to knock on the front door he believed Constable Mehlhorn was on the front lawn looking through a window. There was a fifteen-to-twenty second period when he did not know where she was. Glenfield’s objective was “[t]o investigate the fail to remain collision”.

[ 22 ] Constable Gina Mehlhorn testified that on October 17, 2009 at about 1:37 p.m., she was dispatched to the scene of the hit-and-run accident. The description of the suspect driver as radioed to her was a white male in his forties with black hair wearing scruffy clothes including a blue tracksuit.

[ 23 ] Const. Mehlhorn was subsequently advised at 2:14 p.m. that Const. Glenfield had located the Jeep involved in the collision. She drove to the Brockberry Crescent address. According to the witness, on arrival she saw a light blue Jeep in the driveway. There was observable damage to the front on the driver’s side. She saw Const. Glenfield walking up to the front steps of the residence. On her in-chief evidence, she ran to the side of the house to see if she could see anyone inside the house. It seems the officer may actually have been part way into the backyard. In her notebook, she noted her position as “rear window, patio”. In the witness’ words, “Since the accident had possibly involved alcohol I was just trying to make sure that everybody was okay.” As well, knowing that drivers travel at high speeds in the intersection where the accident occurred, and seeing the damage to the Jeep, the officer informed the court that in her view there was the prospect that “whoever was in the vehicle needed to be checked medically”. On her trial testimony, the constable stated that on looking through a window into the kitchen area of the house, she observed a female standing in the room and a male wearing a blue tracksuit seated at a table. The constable’s note was: “Saw male sitting at a table wearing a blue sweater, dark hair, 40’s, male, white”.

[ 24 ] According to Const. Glenfield, “a male matching a similar description to our driver answered the door”. When the constable asked whether the individual was Ivan, the reply was, “None of your business. Get the fuck out of here”. Constable Glendfield advised the male person that he needed to speak to Ivan as his vehicle, the one in the driveway, had been involved in a collision.

[ 25 ] On Constable Glenfield’s account, Constable Mehlhorn then joined him at the residence front door. At this point, as Glenfield stood on the front porch, the male party, subsequently identified as Ljubomir Barac (the appellant’s brother-in-law) pushed his left shoulder and chest causing the officer to take a step backward. A physical altercation ensued with the two officers entering the home to arrest him for assault. Barac continued to swear and to swing at Glenfield with overhead fists or punches. Barac stated that the police could not come into the home – “Get the fuck out of my house”.

[ 26 ] On hearing Const. Glenfield involved in a commotion at the front of the home, Const. Mehlhorn ran back to the front. She heard a male with a strong accent cursing. She observed a pushing match between Glenfield and a male party in the doorway of the residence who was wearing a black t-shirt and a black, cotton tracksuit or black sweatpants. Although he appeared to be roughly the same age as the appellant and had dark hair, he did not fit the description of the suspect the police were seeking as his clothing was “totally different” from the information in the police broadcast. There appeared to be language barrier issues. She went to assist and ended up moving into the house along with Glenfield and Ljubomir Barac.

[ 27 ] As the struggle continued between Barac and the two officers, a second male, subsequently identified as the appellant, could be heard in the background yelling words to the effect of, “What are you doing? Don’t fight him. You’re making this worse”.

[ 28 ] During the ongoing struggle, the appellant approached and, as he bear-hugged his brother, all four moved further into the residence. When the appellant released his hold on his brother, Ljubomir Barac kicked the legs out from under Constable Mehlhorn who fell backwards to the floor striking her head on the floor. She appeared very dazed in Glenfield’s view. The appellant stayed out of the struggle. Not without difficulty, Constable Glenfield subdued and handcuffed Barac. The constable did not locate the Jeep keys.

[ 29 ] At trial, Const. Mehlhorn testified that when she was in the home she again observed the male she had seen seated in the kitchen wearing a blue, two-piece tracksuit or sweat suit. When she asked if he was Ivan, and he replied affirmatively, she directed him to come with her. At this point, the appellant arose from his chair. He was calm, polite and helpful. At trial, the officer described the appellant as “[t]he elderly, older gentleman”. The appellant accompanied Mehlhorn into the area where Const. Glenfield was struggling with the appellant’s brother-in-law. The appellant put his arm around Barac’s neck in an effort to calm him down, saying “Don’t do this, you’re making it worse”. At that point, Barac pushed Const. Mehlhorn in the chest area and used his legs to sweep her legs from underneath her causing her to fall to the floor where she struck her head on the hardwood. She felt dazed and a little sick. She sustained a mild concussion.

[ 30 ] During in-chief examination of Const. Mehlhorn, who testified after Ms. Edmunds, Crown counsel asked these questions:

Q. Are you familiar with the term K-way?

A. Yeah.

Q. K-way track-what does, what does that mean to you, the term K-way?

A. To me it’s the kind of material that they made slush-pants out of when I was a child.

Q. Okay. And was what Mr. Balen wearing, was that consistent with, with the K-way?

A. Yes sir.

[ 31 ] In cross-examination, the witness gave this evidence:

Q. And you had a choice to put [in your notes] whatever you wanted, like blue tracksuit or blue K-way tracksuit, but you chose to, to describe the male that you recollect seeing as wearing a blue sweater?

A. Yeah.

Q. Okay and today it, it’s a blue jumpsuit or blue K-way jumpsuit.

A. The way I describe it was a blue tracksuit and it was asked to me if I knew what the term K-way was and I said, “Yes”.

Q. When were you asked that term “K-way”?

A. Earlier, 10 minutes ago, 20 minutes ago.

[ 32 ] The witness also testified that “the fabric is K-way”. There was no reference in Const. Mehlhorn’s notes to a blue K-way tracksuit.

[ 33 ] Constable Glenfield described Ljubomir Barac as a very European-looking white male in his mid-forties to fifties. The officer testified that Barac had “sort of darker hair”. He also stated that his hair was short, “[n]ot dark but sort of fading” and as “salt and pepperish”. Barac was 5’9” to 5’11” in height and average to medium built. He wore a dark t-shirt and pants that fell down when he was taken from the house to a police cruiser. In the officer’s opinion, the appellant and his brother-in-law looked “quite similar” – “average body, same sort of body size, European-looking face” with similar hair length with Ljubomir Barac’s hair “a bit darker”.

[ 34 ] Constable Fennell, who also responded to Glenfield’s call, testified that the Brockberry Cres. address was about two blocks from the accident scene. He described the appellant’s clothing: “He was wearing a track, not a tracksuit but a jump suit”. The witness also stated that the garment was blue – “like a windbreaker material kind of tracksuit”. Asked at trial to describe Barac’s clothing, the officer responded that while he was not a hundred percent certain what he wore, “he was not wearing the same sort of material that the accused was wearing”.

[ 35 ] Constable Fennell described the appellant’s Jeep as having tinted windows.

[ 36 ] Constable Fennell arrested the appellant at 2:22 p.m. in the residence when Constable Mehlhorn pointed him out as the driver who had failed to remain at the scene of the accident. He had no recall of informing the appellant at that time why he was under arrest. Nor did he caution the appellant or give him options relating to calling counsel. He wanted to be sure the scene was safe. He was unable to say how much time expired after the arrest before taking the appellant from the house. Constable Fennell turned the appellant over to Constable Judson. He could not provide the time of the turn-over of the arrestee.

[ 37 ] Constable Judson testified that when he arrived at the Brockberry Crescent address he met Constable Fennell who informed him that the appellant “was the suspect for the collision” and that he had arrested him “for failure to remain”. In Judson’s opinion, the appellant matched the suspect’s description. He was wearing a blue jumpsuit or tracksuit.

[ 38 ] At 2:25 p.m., with the appellant secured in his cruiser, Constable Judson read the appellant his rights to counsel. The officer was unaware whether the arrestee had previously been advised of those rights or had been cautioned. On being asked whether he understood, the appellant responded, “I guess”. When directly asked whether he wanted to consult counsel, the answer was, “Yup”. At 2:26 p.m., the constable read the usual cautions to the appellant which he confirmed he understood. At that point, Judson left his cruiser to check on Constable Mehlhorn’s condition and to see if she needed anything. At 2:36 p.m., the officer returned to the cruiser. There was a smell of alcohol in the car. During general conversation, the officer asked the appellant why he left the scene of the accident. During this conversation, on the constable’s evidence, he came to the opinion that the appellant was the first speaker he had spoken to during the earlier cellphone calls. At 2:42 p.m., Constable Judson left the scene arriving at H.R.P.S. 20 Division at 2:55 p.m. Duty counsel was called on behalf of the appellant at 4:03 p.m. Constable Judson testified that he did not find the Jeep keys on the person of the appellant.

[ 39 ] To his recall, when he observed Barac Ljubomir at the police station, Constable Judson saw him wearing shorts and a white t-shirt. The prisoner was in a belligerent mood. Judson informed the court that that arrestee was born in 1957. He had thin, greyish, balding hair cut very short. In the officer’s view, he did not look similar to the appellant – “[h]is build was a little heavier and he was short”.

REASONS OF THE TRIAL JUDGE

[ 40 ] In her reasons for judgment, the trial judge reviewed the identification evidence led at trial. The court disclosed this self-direction:

Eyewitness identification must always be approached with caution. Honest witnesses can be mistaken and innocent persons can face findings of guilt for crimes they did not commit.

[ 41 ] In addressing the clothing of the suspect driver and that worn by the appellant on the date of his arrest, the court stated:

Both Ms. Edmunds and Officer Mehlhorn were very precise in the description of the tracksuit worn by the driver at the accident scene and the accused upon his arrest shortly thereafter.

She [Ms. Edmunds] recalled the driver as being a heavy set white male, forties or fifties, dark hair with a bit of grey, dressed in a tracksuit. (Transcript p. 22)

“I do remember it was a tracksuit. I do remember it was K-way, but I think it, I had identified it as a dark blue, possibly. (p. 23)

Ms. Edmunds testified, “I clearly describe it there in the (911 call) transcript that I saw a blue tracksuit with possibly red trim, more of a… K-way type tracksuit…” (p. 29)

Ms. Edmunds testified that by K-way style she means a relaxed fit polyester tracksuit. She testified that “in the ‘80’s we used to wear them.” (p. 33)

She [Const. Mehlhorn] looked through a window of the house and saw a man sitting in the kitchen area wearing a tracksuit.

Once inside the house, she approached the male wearing the tracksuit. It was a two piece blue track/sweat suit with a K-way type of fabric.

The critical piece of identification evidence in this case is the blue K-way type tracksuit.

K-way manufactures tracksuits. (Note: Google search June 15, 2011)

The item of clothing was not described as, for example, a sweatshirt or T-shirt, which many men could potentially be wearing that day.

This piece of distinctive clothing in all the circumstances establishes the identity of the driver beyond a reasonable doubt.

Accordingly, a finding of guilt is registered.

POSITIONS OF THE PARTIES

The Appellant

[ 42 ] Mr. Bhattacharya argued that the actions of Const. Mehlhorn in going to the rear of the Brockberry Cres. residence and peering in the window, a warrantless search, amounted to an infringement of section 8 of the Charter . The officer’s conduct was not authorized by law. In light of the pattern of violation of the appellant’s constitutional rights, including breaches of his s. 10(a) and s. 10(b) Charter rights, the evidence of Const. Mehlhorn’s observations ought to have been excluded.

[ 43 ] Appellant’s counsel frankly acknowledged that the stronger grounds of appeal related to identification. Mr. Bhattacharya raised a number of points in this regard including the trial court’s failure to consider relevant evidence that the appellant’s brother-in-law may have been the driver, as well as failure to consider the brief and stressful opportunity for eyewitnesses to make their observations, the countervailing weaknesses in the evidence relating to identification of the appellant, the evolving nature of witnesses’ descriptions, and the issue as to whether Ms. Edmunds’ description of the Jeep driver was in fact a description originating from her husband. The appellant further submitted that the trial judge’s internet research effort at confirmation relating to a K-way tracksuit amounted to impermissible judicial notice. In these circumstances, it was argued that the verdict cannot safely stand.

[ 44 ] In a broader context, it was submitted that in light of the totality of the evidence, a verdict, effectively based on a piece of clothing, is unreasonable and unsupportable.

The Prosecution

[ 45 ] On behalf of the Crown, Ms. Frew was not asked to respond to the Charter argument.

[ 46 ] Crown counsel conceded that while the trial judge erred in undertaking her own internet research, that error did not result in any substantial wrong or miscarriage of justice having regard to the whole of the evidence.

[ 47 ] The respondent submitted that the trial judge did not err in her reliance upon the identification evidence of Ms. Edmunds and Const. Mehlhorn as being “very precise”. Their testimony was supported by the evidence of other police officers who made observations of the appellant under an hour after the hit-and-run incident. The trial court did not fail to consider the totality of the evidence. The verdict cannot be said to be unreasonable or unsupported on the evidence in particular considering the discovery of the appellant shortly after the accident in a residence not far from the accident scene, where a Jeep was located in the driveway with damage corresponding to events in the collision, wearing a garment described by the eyewitnesses.

ANALYSIS

[ 48 ] Mr. Bhattacharya, who was not counsel for the appellant at trial, was unable to confirm that the constitutional arguments relating to Const. Mehlhorn’s actions in the backyard of the Brockberry Cres. residence was advanced at trial. The reasons of the trial judge suggest that it was not. The record of Charter filings before the Ontario Court of Justice has not been produced. Nor has a transcript of the Charter arguments before Baldwin J.

[ 49 ] Appellant’s counsel did not press the Charter argument. He was right not to have done so. Apart from the impropriety of this court considering a matter of constitutional exclusion of evidence not raised at trial, it is far from clear that the appellant has standing as a visitor in the residence to assert a personal breach of constitutional rights. It cannot be convincingly stated that the constable’s actions were, in the circumstances, including a measure of urgency, unconstitutional. In any event, a minute later, the officer was lawfully positioned when she made observations of the same individual she had viewed through the window. Accordingly, there is no merit in the Charter argument.

[ 50 ] Because of “the dangers inherent in eyewitness testimony” ( R. v. Miaponoose (1996), 1996 1268 (ON CA) , 30 O.R. (3d) 419 (C.A.), at p. 421), eyewitness identification evidence “is inherently unreliable”: R. v. Goran , 2008 ONCA 195 () , [2008] O.J. No. 1069 (C.A.) (QL), at para. 19 . The “inherent frailties of eyewitness identification evidence are well-established” and can “lead to wrongful convictions, even in cases where multiple witnesses have identified the same accused”: R. v. F.A (2004), 2004 10491 (ON CA) , 183 C.C.C. (3d) 518 (Ont. C.A.), at para. 39 . “[S]pecial caution is called for when assessing eyewitness identification evidence”: R. v. Hersi , [2000] O.J. No. 3995 (C.A.) (QL), at para. 14 ; R. v. Tat (1997), 1997 2234 (ON CA) , 117 C.C.C. (3d) 481 (Ont. C.A.), at pp. 515-16. Accordingly, “although identification is a matter of fact, appellate courts will subject such findings to closer scrutiny than is generally the case with findings of fact”: Goran , at para. 20 ; R. v. Harvey (2001), 2001 24137 (ON CA) , 160 C.C.C. (3d) 52 (Ont. C.A.), at para. 19 .

[ 51 ] In-dock identification is unsatisfactory and adds little weight: F.A. , at para. 47 ; R. v. Izzard (1990), 1990 11055 (ON CA) , 54 C.C.C. (3d) 252 (Ont. C.A.), at pp. 255-6.

[ 52 ] Judicial experience with eyewitness identification evidence has established that all too often it has been the cause of wrongful convictions. The underlying causes have been many and various including reliance upon an honest and convincing witness who is mistaken, suggestive and improper police techniques, witness contamination, poor opportunity to view a stranger suspect, the distorting effect of stressful circumstances (i.e. weapon focus), unconscious filling in of gaps with erroneous characteristics, etc.

[ 53 ] The notorious risk associated with eyewitness identification prosecutions tends to be accentuated where there is an absence of confirmation by forensic or other evidence.

[ 54 ] In the instance of the purported identification of a stranger, as opposed to reported recognition of a person previously known or encountered by the witness, the court must proceed cautiously in assessing the evidence of an eyewitness claiming that the person observed at a crime scene is, in his or her opinion, the person subsequently identified.

[ 55 ] While the trial judge instructed herself as to the caution necessary in evaluating eyewitness identification evidence, the witness-by-witness summary of the witnesses’ testimony, followed by less than one page of analysis (paras. 31-42 of trial court reasons), did not adequately come to grips with the totality of the evidence including that evidence which formed the foundation of the defence attack on the prosecution case identifying the appellant.

[ 56 ] Put differently, given the ever-present concerns regarding identification evidence, while a trier of fact could place weight on such factors as the presence of the appellant wearing a blue tracksuit at a residence near the accident scene, with a blue Jeep with front-end damage in the driveway, closer scrutiny of the totality of the evidence was clearly warranted given other evidence at trial.

[ 57 ] The contextual background to any proven resolution of the identification issue in this case includes consideration and analysis of the following facts, none of which were analyzed by the trial court:

(1) the “eyewitnesses” were purporting to identify a stranger but had little opportunity to do so - Ms. Magpile could not describe the Jeep driver at all; Mr. Heron had a second or less to see the driver; and Ms. Edmunds recalled events happening very quickly

(2) there is no connecting evidence of the licence plate # to the appellant’s Jeep in the sense that none of the three eyewitnesses who testified made reference to giving a vehicle licence plate # to the police

(3) it is not entirely clear whether the dispatch broadcast to the patrol officers emanated from Ms. Edmunds’ call or from multiple sources of information - the broadcast tape was not played at the trial - Const. Judson searched for a suspect about aged 40 years with scruffy clothes including a blue tracksuit; Const. Glenfield believed he was looking for a scruffy looking male in his 40’s wearing a blue sweater; while Const. Mehlhorn heard that she was to look for a male in his 40’s with scruffy clothes including a blue tracksuit

(4) while these three officers were looking for a male person with black hair, the colour of the suspect’s hair described by Ms. Edmunds in her 9-1-1 call, various descriptions of the colour of the appellant’s hair on October 17, 2009 were given by the witnesses at trial including short and graying (Heron), dark with a bit of gray (Edmunds), dark hair (Mehlhorn)

(5) the witnesses variously described the Jeep as navy blue (Heron), bluish-green (Magpile), dark blue (Edmunds), blue (Fennell) or lighter blue (Mehlhorn)

(6) Ms. Edmunds described the Jeep driver as heavy set while Const. Glenfield, who considered that the male who answered the door at the Brockberry Crescent home matched the suspect he was seeking, testified that the appellant and his brother were both average to medium build; Const. Judson’s view was that Barac was a little heavier than the appellant

(7) Ms. Magpile observed two male parties in the Jeep at the time of the collision

(8) two witnesses did not testify - the police cadet accompanying Const. Glenfield and the female party at the Brockberry Cres. residence

(9) the Crown did not prove the appellant’s age - Barac was about aged 52 given the evidence that he was born in 1957 - Ms. Edmunds testified at trial that the Jeep driver was in his 40’s or 50’s - Const. Mehlhorn provided varying accounts of the appellant’s apparent age: in his 40’s, roughly the same age as his brother-in-law, and, as “the elderly, older gentleman”

(10) none of the eyewitnesses participated in a sequential photo line-up

(11) the appellant’s brother-in-law’s hair was variously described as dark (Mehlhorn), darker than the appellant’s with some salt and pepperish colouring (Glenfield), and thin greyish hair on a balding scalp (Judson)

(12) no photos were produced of the Jeep - Const. Fennell testified that the Jeep had tinted windows

(13) there was no evidence of a paint transfer between the Jeep and Ms. Magpile’s Jaguar forensically linking the vehicles to involvement in the same accident

(14) the Jeep keys were not found on the appellant at the time of his arrest.

[ 58 ] While a trial judge is not obliged to refer to all the evidence led at trial, the trial court’s witness-by-witness summary of some of the evidence failed to analytically address most of these factors against the backdrop of systemic concerns about the reliability of identification evidence verdicts.

[ 59 ] With many of the above described factors raising very real questions as to the accuracy of the conclusion that the appellant was the person responsible for the hit and run, the court’s treatment of the clothing issue was properly deserving of discriminating scrutiny - treatment which it did not receive.

[ 60 ] The trial court’s conclusion that the witnesses Edmunds and Mehlhorn “were very precise in the description” of the tracksuit worn by the suspect and the appellant respectively, either misapprehends or unreasonably oversimplifies the evidence at trial. In this regard, these factors were critical to the use of clothing as an identifying feature of signal importance:

(1) when the police dispatcher asked Ms. Edmunds whether she had seen the colour of the Jeep driver’s clothing she replied, “no”

(2) the 9-1-1 call tape then reveals Ms. Edmunds asking her husband about the colour of the driver’s jacket

(3) the trial court simply stated that Ms. Edmunds described the blue K-way type tracksuit without reference to the above facts or considerations as to whether the description was in fact that of Ms. Edmunds’ husband or a composite opinion of the two of them

(4) to the extent that the description was that of Ms. Edmunds, her descriptor of red colouring in the clothing was observed by none of the police officers to be a characteristic of the appellant’s clothing

(5) Const. Mehlhorn’s note of what the appellant was wearing when she saw him through the rear window of the house was a “blue sweater”

(6) the officer, quite improperly, was asked a leading question by the prosecutor (not Ms. Frew) as summarized at para. 30 supra resulting in the injection of the K-way descriptor into that witness’ testimony - an event materially affecting the weight attributed to the constable’s description.

[ 61 ] Apparently, feeling the need for further clarification and evidence, the trial judge conducted a Google search to confirm whether K-way manufactured tracksuits. In limited circumstances, a trier of fact may take judicial notice of an adjudicative fact “capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy”: R. v. Find (2001), 2001 SCC 32 () , 154 C.C.C. (3d) 97 (S.C.C.), at pp. 115, 119; R. v. Williams (1998), 1998 782 (SCC) , 124 C.C.C. (3d) 481 (S.C.C.), at p. 489. Internet Google search engine access to a Wikipedia or similar site, for example, may or may not contain accurate information. While a court may utilize the internet to access Google maps ( R. v. Calvert , 2011 ONCA 379, at paras. 2-8 ), resort to the internet by the trier of fact regarding commercial information, conduct outside the courtroom not disclosed at trial, is inappropriate: see generally, United States of America v. Saad (2004), 2004 9931 (ON CA) , 183 C.C.C. (3d) 97 (Ont. C.A.), at p. 110 (leave to appeal refused, [2004] S.C.C.A. No. 232); Ardoch Algonquin First Nation v. Canada (Attorney General) (2003), 2003 FCA 370 () , 311 N.R. 180 (F.C.A.), at para. 16 ; AstraZeneca Canada Ltd. v. Apotex Inc. (2003), 2003 FCA 487 () , 30 C.P.R. (4 th ) 431 (F.C.A.), at paras. 6-14 ; R. v. Whittaker (2001), 2001 ABQB 873 () , 301 A.R. 136 (Q.B.), at para. 25 .

[ 62 ] The issue of the style and type of fabric of the tracksuit was critical to the trial court’s path of reasoning. It is unknown whether the court’s independent internet search included information about the colours available, distribution and sale in Canada, and the type of fabric. The defence had no opportunity to see the extra-curial evidence, to cross-examine upon it or to lead other evidence relevant to it.

[ 63 ] It cannot safely be said that but for these errors on the part of the trial court the verdict would necessarily have been the same. The appellant was entitled to reasoned assessment of the evidence free of these errors.

[ 64 ] To conclude that a verdict is unreasonable, an appellate court must be satisfied that the verdict is one that a properly instructed trier of fact, acting judicially, could not have rendered. Necessarily, the limited review of the reasonableness of a verdict is through the lens of judicial experience with the type of evidence and circumstances disclosed at trial.

[ 65 ] One the whole of the properly admissible evidence, and while this is perhaps a close case, it cannot be said that there is not a basis upon which a reasonable trier of fact acting judicially could convict upon proper self-instruction on the whole of the evidence. Nevertheless, while it cannot be said that the verdict was unreasonable, the errors require a new trial: R. v. Smaggus , 2011 ONCA 4387, at para. 1 .

CONCLUSION

[ 66 ] The appeal is allowed. The conviction is set aside and a new trial is ordered before a differently constituted summary conviction appeal court. If the parties are unable, on consent, to arrange a court date to set a new date for trial if the prosecution is so advised, then the Crown may apply for the issuance of compulsory process.

HILL J.

Released: April 12, 2012