ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA(P) 1792/12
DATE: 20120622
BETWEEN:
HER MAJESTY THE QUEEN – and – JASON MARCHE
G. Hendry, for the Respondent
R. Timol, for the Appellant
HEARD: June 18, 2012
[On appeal from the judgment of Khoorshed, J.
dated February15, 2012]
MILLER, J.
[1] Jason Marche was, on February 15, 2012, found guilty of Impaired Driving on January 29, 2011.
[2] The sole issue at trial was whether there had been evidence sufficient to identify, beyond a reasonable doubt, the person who was driving. There was no issue that Mr. Marche had been the person arrested by police, or that his ability to operate a motor vehicle was impaired by alcohol at that time.
[3] The trial judge found that he was satisfied beyond a reasonable doubt that it was Mr. Marche who had been driving the motor vehicle shortly before his arrest.
[4] Mr. Marche appeals the finding of guilt on the basis that the verdict cannot be supported by the evidence. In particular Mr. Marche argues that the learned trial judge misdirected himself with respect to the appropriate weight to be given to in-court identification.
The Evidence
[5] The evidence as to the identity of the driver came from Matti Aleve and from the arresting officer, Shirley.
[6] Mr. Aleve, in his own motor vehicle, had followed a car with licence plate 317 VRK, into the parking lot of a Pizza Pizza restaurant. Mr. Aleve had followed the vehicle for half to one kilometre and because he had observed erratic driving, had called 911.
[7] After the vehicle pulled into the parking lot, it stopped and Mr. Aleve observed the lone occupant exit the driver’s door and go into the Pizza Pizza restaurant. Mr. Aleve could see into the restaurant because it was “completely glass all the way around. It’s night-time, it’s lit inside.” Mr. Aleve testified that he saw the same man walk out of the restaurant and interact with police. He testified that he saw police arrest the man. Mr. Aleve testified the man was wearing green jacket with a white stripe down the sleeve and that it was very noticeable compared to everyone else in that area that night. He testified that the man was wearing that jacket when he went into the restaurant and when he came out into the parking lot.
[8] Mr. Aleve identified the individual as the accused who was in the courtroom as he was testifying. I note that although this occurred during examination-in-chief, defence counsel interrupted and suggested that the witness identify his client in court.
[9] Mr. Aleve agreed in cross-examination that he had told police that night that “I only got a good description of the driver once he was in the Pizza Pizza”. Mr. Aleve agreed in cross-examination that he was “pretty sure” that the driver of the vehicle was the accused. When it was suggested to him that he was “not a hundred percent sure” he replied, “no, I mean, there wasn’t really much – when he pulled into the parking lot, I was shortly thereafter. And so I mean, as I was pulling into the parking lot, he was getting out of his car and heading in, so.” He later testified, “I could see him going in, I could see him coming out. And he approached the car – the same car that I saw, that he was in before.”
[10] P.C. Shirley testified that he responded to a radio call about an impaired driver. Information he received, in addition to a description of erratic driving, was that the vehicle had pulled into a parking lot in front of the Pizza Pizza restaurant in question. P.C. Shirley received a partial licence plate number and was told that the driver, described as male, white, late 30’s, wearing a baseball cap and a green jacket with grey sleeves, had gone into the Pizza Pizza.
[11] P.C. Shirley attended the location and spoke to Mr. Aleve who pointed out the vehicle and also pointed out the man walking from the Pizza Pizza to the vehicle as the driver. P.C. Shirley, at the time he testified, had no recollection of what the man was actually wearing, but he watched as the man tried to put his key into the driver’s door of the vehicle with licence plate 317 VRK. At that point P.C. Shirley approached the man and after making some observations placed him under arrest.
[12] In cross-examination of P.C. Shirley defence counsel indicated “ the individual that you dealt with which we know certainly was Mr. Marche,…he did not have white sleeves or white stripes on his jacket”. P.C. Shirley could only recall that the man had on a jacket. He had no recollection of its colouring
The Law
[13] The dangers of eyewitness in-court identification were highlighted by the Supreme Court of Canada in R. v. Hibbert, 2002 SCC 39 , [2002] S.C.J. No. 40. The Court indicated at paragraph 53 that the instruction as to what weight to appropriately give eyewitness identification will vary with the facts of individual cases, but it is clear that in-court identification, standing alone, is of virtually no value.
[14] Mr. Marche argues that although the trial judge did not explicitly rely on the in-court identification of Mr. Aleve, he must have done so because the other identification evidence could not reasonably support a finding that Mr. Marche was the driver of the vehicle observed by Mr. Aleve. I disagree.
[15] A trier of fact must consider the totality of the evidence. The evidence of Mr. Aleve with respect to his observations on January 29, 2011, and leaving out altogether his in-court identification of Mr. Marche, provides a reasonable basis upon which to conclude, beyond a reasonable doubt, that Mr. Marche was the driver of the vehicle he had observed being driven erratically, when considered together with the evidence of P.C. Shirley.
[16] Further, the suggestion that the trial judge placed undue weight on Mr. Aleve’s in-court identification is not borne out by a review of the trial judge’s Reasons for Judgment. While the trial judge, in his summary of the evidence, did mention that Mr. Aleve had identified, “without hesitation in the court”, Mr. Marche as the driver and sole occupant of the vehicle, the trial judge went on, in his analysis to indicate that “what is significant” was the evidence of the licence plate number that Mr. Aleve had provided to police, and that police had observed Mr. Marche walking toward that vehicle. The trial judge also mentioned Mr. Aleve’s description of the individual and his distinctive clothing and Mr. Aleve’s own certainty that the man was the same person he saw going in to and coming out of the Pizza Pizza.
[17] I do not find that the trial judge placed undue weight on the in-court identification of the accused, introduced by defence counsel, and I am satisfied there was ample evidence, independent of the in-court identification, upon which the trial judge could reasonably conclude, beyond a reasonable doubt, that Mr. Marche had been the driver of the vehicle in question.
[18] The appeal is dismissed.
MILLER, J.
Released: June 22, 1012
R. v. Marche, 2012 ONSC 3587
COURT FILE NO.: SCA(P) 1792/12
DATE: 20120622
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT HER MAJESTY THE QUEEN – and – JASON MARCHE REASONS FOR JUDGMENT MILLER, J.
Released: June 22, 2012