ONTARIO

SUPERIOR COURT OF JUSTICE

NEWMARKET COURT FILE NO.: C.10-05852
DATE: 2012-10-17

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

CLIFTON LING
Appellant

A. Barkin, for the Crown

P. Norton, for the Appellant

HEARD: September 28, 2012 at Newmarket

On appeal of the decision of Mr. Justice J.F. Kenkel
dated November 23, 2011

QUINLAN J.:

OVERVIEW

[ 1 ] On November 23, 2011, following a two-day trial, the Honourable Mr. Justice Kenkel of the Ontario Court of Justice found Clifton Ling guilty of dangerous operation of a motor vehicle, evading police and failing to stop following an accident. The sole issue at trial was identity.

[ 2 ] The appellant appeals against his conviction alleging that the trial judge erred in his assessment of the identification evidence. The appellant argues that the trial judge failed to apply the proper burden of proof to the circumstantial evidence before him.

[ 3 ] Although other grounds of appeal were raised in the inmate appeal initially filed, those were not pursued by counsel in written or oral argument.

EVIDENCE AT TRIAL

[ 4 ] On May 19, 2010, shortly after 2:00 a.m., police attempted to stop a van being driven erratically. A pursuit ensued, that was eventually terminated for public safety reasons.

[ 5 ] P.C. Woods was involved in the initial pursuit of the van. He testified that he pulled into the oncoming lane and attempted to encourage the driver of the van to pull over. With his passenger window down, P.C. Woods was able to see inside the van and observed the driver, who he described as "male, black, short shaved head, round face, wearing a white T-shirt and facial hair". P.C. Woods mouthed the words, "pull over" and gave pointing hand gestures to the driver. In response, the driver mouthed the word "why?" and raised his arms up with his palms up. P.C. Woods observed the driver for 2 to 3 seconds.

[ 6 ] Later, P.C. Woods ran the licence plate of the van on the police computer and, after receiving information that the appellant was associated with the van and was possibly the driver, ran the appellant's name on CPIC. The officer observed a single photograph, at which point he recognized the appellant as the driver of the van. He had known the appellant from having seen a mug shot of him at some point years before.

[ 7 ] The next day the appellant, after being contacted by the police, turned himself in. P.C. Woods assisted with the arrest of the appellant. At no time did P.C. Woods participate in a photographic line-up.

[ 8 ] Ms. Landry was the mother of the appellant's son and the person to whom the van was registered. She testified that the appellant purchased the van for his roofing business a few weeks before the incident and kept his tools in the van. He registered the van in Ms. Landry's name for insurance purposes. The van was stored at the appellant's mother's house in Keswick, or, if there was no room in her driveway, at a store near her house.

[ 9 ] Ms. Landry's evidence was that one set of keys to the van was kept at the appellant’s mother’s house and another set in a magnetic spare key holder in the wheel well of the van.

[ 10 ] She testified that people that worked for the appellant sometimes drove the van. Ms. Landry had no knowledge as to who was driving the van at the time in question. The appellant had not made any complaints to her that his tools or van had been taken without his knowledge or permission.

[ 11 ] P.C. Harrison’s police cruiser was struck by the van. He testified that the driver of the van was a black male.

[ 12 ] An agreed statement of facts was filed in relation to the evidence of four other officers, three of whom were involved in the pursuit. One of the officers described the driving. One of the officers saw that there was one male black occupant in the van. Another of the officers observed a black male with a shaved head and a moustache driving the van. The fourth officer located the van the next morning and reviewed video surveillance footage of the parking lot where it was located. He saw the driver of the van, who remained in the area of the van for some time, but was unable to positively identify him.

REASONS FOR JUDGMENT

[ 13 ] The trial judge noted that the Crown's case rested on both direct and circumstantial evidence. He stated that P.C. Woods made a direct observation of the driver; the trial judge was satisfied that the description the officer provided at trial was based on the officer’s own recollection and not on information later received over the radio.

[ 14 ] The trial judge accepted that the observations of the other officers were consistent with P.C. Woods’ description but added no further detail as to the identity of the driver. The trial judge agreed with the position of the defence that as a result of P.C. Woods’ review of the single photograph of the appellant, the value of any subsequent identification procedure or testimony was lost. He placed no weight on the in-dock identification.

[ 15 ] He considered the circumstantial evidence before him, which he outlined in detail. He found that it showed that the appellant purchased the van to use in his roofing business shortly before the incident and was the true owner of the van. Its purchase, the presence of his tools and the nature of his business made it reasonable to infer that the appellant operated the van.

[ 16 ] The trial judge placed no weight on Ms. Landry's evidence that others operated the van given her lack of control over or knowledge of the operation of the van. He also found that while it was possible that others might have operated the van during business hours, there was no evidence before him that anyone had permission to operate the van at night. He accepted as a fact that a key for the van was kept in a magnetic box in the wheel well, but determined that if someone had stolen the van from its location:

... it's not plain why after an extended police chase, the thief would return some 50 kilometres to that same area of the theft in Keswick... it does not make sense if the car had been driven by anyone else other than the accused, but it is consistent with Mr. Ling as driver returning home to his area and parking the van in a lot away from his home but within walking distance.

[ 17 ] In addition, the trial judge found that the driver's actions upon exiting the van were inconsistent with the notion that the van was stolen by a co-worker or an unknown party. Any other party would want to distance themselves from the van. Only the appellant would have a reason not to immediately return home. The route taken by the driver of the van after leaving the parking lot, in the direction of the original location of the van, was an unlikely route for a thief but would be the route the appellant would have to take to return home.

[ 18 ] The trial judge concluded his reasons by stating that, "[c]onsidering all of the evidence as a whole, I find that the evidence reasonably identifies only one person as the driver of the blue van at the time of the offences. I can find no evidence that reasonably could leave a doubt in this point. I find that the Crown has proved the charges alleged beyond a reasonable doubt.”

ANALYSIS

Did the trial judge fail to apply the correct standard and burden of proof to the evidence?

[ 19 ] The parties agreed that, in order to convict in a case of circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin, 2009 SCC 28, [2009] S.C.J. No. 28 at para. 33.

[ 20 ] The trial judge noted that the Crown’s case rested on both direct and circumstantial evidence. I am satisfied that the trial judge considered the evidence of identification, other than P.C. Woods’ description of the driver (evidence confirmed in part by two other officers), to be circumstantial, requiring an inference to be drawn that the appellant was the driver of the van. This is shown through his detailed review of the circumstantial evidence as to identification, including his finding that the description of the driver by police witnesses was consistent with that of the appellant, but also consistent with many other persons.

[ 21 ] The trial judge was alive to the inherent frailties of eyewitness identification evidence. He correctly determined that the value of any subsequent identification procedure or testimony was lost after P.C. Woods viewed a single photograph of the appellant. He accorded no weight to the in-dock identification made by P.C. Woods.

[ 22 ] While being cognizant of the frailties of eyewitness evidence, it was the obligation of the trial judge to consider the evidence in its entirety in deciding whether the appellant’s guilt had been proven beyond a reasonable doubt. I find that the trial judge did so. He approached the evidence with the caution required, concisely reviewed it, considered the position of the defence that there were reasonable alternatives to the appellant being the driver and determined that position to be speculative. He reasonably considered the ultimate location of the van and the actions of the driver in remaining near the van after it was stopped.

[ 23 ] He determined that the evidence reasonably identified only one person as the driver of the van at the time of the offences [emphasis added].

[ 24 ] I accept that the trial judge, in finding that the evidence demonstrated the reasonable identification of only one person, was satisfied beyond a reasonable doubt that the only rational inference that could be drawn from the circumstantial evidence was that the appellant was the driver.

[ 25 ] A finding that there is no other rational explanation for the circumstantial evidence but that the appellant committed the crime is a "factual matter arising from an evaluation of the evidence": R. v. Charemski, 1998 819 (SCC), [1998] 1 S.C.R. 679 at para. 13.

[ 26 ] As noted in R. v. Pelletier, 2012 ONCA 566, [2012] O.J. No. 4061 (C.A.), at para. 101, “[T]he weight to be assigned to individual items of evidence and the persuasive force of the evidence as a whole are pre-eminently questions for the trial judge."

[ 27 ] As in Pelletier, I find that “the trial judge did not misapprehend the evidence, reach his conclusion illogically, or fail to appreciate the value and effect of the evidence adduced at trial”: supra, at para. 101.

[ 28 ] Although the reasonableness of the verdict was raised in the Notice of Appeal, this ground was not pursued in written or oral argument. The appellant conceded the applicability of R. v. Noble, 1997 388 (SCC), [1997] 1 S.C.R. 874. Accordingly, I need not deal with the effect of the failure of the appellant to testify on the reasonableness of the verdict.

[ 29 ] For the foregoing reasons, the appeal is dismissed.

QUINLAN J.

Released: October 17, 2012