Court File and Parties

COURT FILE NO.: 11-325AP DATE: 2013/01/29

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen (Respondent) - and – Tyson VanArkel (Appellant)

BEFORE: JUSTICE I. F. LEACH

COUNSEL: Stephanie L. Venne, for the Crown Robert Sheppard, for the Appellant

HEARD: October 2, 2012

On Appeal from the Judgment of The Honourable Madam Justice K. McKerlie on October 20, 2011

Endorsement

[1] The appellant was convicted in the court below of four offences stemming from an incident that took place in or near the Town of St Marys on April 30, 2011.

[2] It was acknowledged at trial that someone driving an all terrain vehicle (“ATV”) that day did so in a dangerous manner, failed to stop in order to evade police, assaulted a police officer, and failed to stop with the intent of escaping civil or criminal liability. In other words, apart from identity, it was conceded that the evidence was sufficient to establish all essential elements of the offences with which the appellant was charged.

[3] However, the appellant denied he was that “someone”. In the result, the sole issue at trial was identity.

[4] The trial judge found as a fact that the appellant was the operator of the ATV in question, and accordingly found him guilty on all four charges.

[5] On appeal, the appellant seeks to set aside the convictions on the basis they are “unreasonable and not supported by the evidence”. In particular, the appellant says the trial judge failed to exercise the appropriate caution required in relation to eyewitness identification, and made a finding in that regard which is not reasonably supported by the evidence in its totality.

Facts - Evidence

[6] Pursuant to the mandated approach for appellate review outlined below, I independently have reviewed all of the evidence tendered at trial.

[7] It consists of testimony from a police officer, (Constable Cookson, who gave his evidence with the assistance of an aerial photograph upon which he made markings), and the appellant’s father, (Reine Van Arkel). It includes the following:

• On April 30, 2011, Constable Clarkson and an auxiliary officer were in a marked police cruiser in the Town of St Marys, near the intersection of Trailside Court and James Street North. (The latter is a street leading north from the town, passing some residential streets but also farm fields and other undeveloped areas.) The officers were set up to do stationary radar monitoring, in response to complaints of speeding.
• At approximately 7:45pm, (at which time the light conditions, as described by Constable Cookson, where “still very, very good”), the police observed a four-wheel ATV travelling in an easterly direction, across a ploughed field, towards James Street North. It then entered on to James Street North, and continued to travel north on the wrong side of the road.
• Upon seeing the cruiser, the ATV driver dramatically accelerated and continued north, out of town, at a high rate of speed, (estimated to be at least 80kph in a 50kph zone), with the cruiser following in pursuit, (its siren and roof-mounted emergency lights having been activated). During this chase, the ATV was observed to have no rear licence plate, and its male driver was seen to look back twice without stopping.
• At the intersection of James Street North and Line 11, the ATV driver apparently tried to decelerate and turn west onto Line 11, but overshot the turn and ended up in a grass ditch, containing “no water at that time”, to the northwest of the intersection. Initially, the ATV and its driver were in the ditch facing north. However, the driver had succeeded in turning the vehicle by the time the cruiser pulled to a stop, approximately eight feet away, on the west side of James Street North.
• Constable Cookson was about to exit the cruiser when the ATV driver then drove the vehicle up out of the ditch and rammed the driver door of the cruiser, (immediately next to where Constable Cookson was sitting), before reversing into the ditch again.
• When the ATV backed up, Constable Cookson took the opportunity to exit the cruiser and enter the ditch. He was then standing one foot away from the front of the ATV, and four to six feet from the driver. Despite using his peripheral vision to detect movement of the ATV, Constable Cookson remained focused on the driver’s face, maintaining eye contact. He observed that the driver was a male wearing a dark grey “insulated type” work coat and “full helmet”, (i.e., one with a solid protective portion underneath the chin). The helmet was black, without any noticeable colours or stickers. It had a clear visor, but the visor was open and “flipped up”. The helmet prevented any view of the driver’s ears or hair. However, Constable Cookson could see, “very clearly”, the remainder of the driver’s face, including his eyebrows, eyes, nose and mouth. Constable Cookson was not sure whether or not the driver was wearing gloves.
• Constable Cookson pointed a finger at the driver as a tactical command, and was “yelling at him to get off the ATV”. The driver instead cranked the throttle of the ATV in a threatening manner, accelerating another six inches towards the officer.
• While standing in the ditch, Constable Cookson positively identified the driver as being the appellant. According to the officer, he “knew right away who it was when [he] saw the face”. The appellant was someone with whom the officer had prior familiarity, based on the following:
  • The officer’s personal residence over the previous year was located approximately 100 metres from that of the appellant, giving rise to intermittent observation, usually at least once every one or two weeks, of the appellant coming and going from his residence.
  • During a traffic stop in the early morning hours of September 18, 2010, Constable Cookson recognized the appellant and his girlfriend as passengers in a stopped vehicle. The traffic stop lasted approximately ten minutes. In describing the occasion, the officer confirmed that he knew the appellant before the driver provided the appellant’s name.
  • On two other occasions, (an “abatement” or curfew check on November 13, 2010, and another attempt to speak with the appellant as part of a police “Walk Turn” program on December 1st, 2010), Constable Cookson had been formally tasked as part of his police duties with attending at the appellant’s residence to meet with the appellant. While the appellant was not home on either occasion, Constable Cookson had prepared for each attendance by repeated study of an official police photograph of the appellant. (The photograph, last “updated” on the police computer in August of 2010, was acknowledged to be an accurate depiction of the appellant.)
• The ATV driver did not obey the command to dismount, but instead accelerated and attempted to drive past Constable Cookson, at which point the officer was able to grab the driver’s left shoulder and coat with this right hand. He managed to hold on, while being dragged for approximately 10 feet, before the ATV and its driver broke free of his grasp and accelerated west on Line 11. At this point, the officer immediately returned to the cruiser and notified dispatch that he was pursuing the appellant, (whom the officer expressly identified by name), who had failed to stop for police.
• Constable Cookson estimated that the length of his observation and identification of the driver in the ditch was “longer than a few seconds” but “not 30 seconds”. During that time, he “never took [his] eyes off the driver”. He also acknowledged that the encounter was “very frightening”.
• While obliged to use roads in his continued pursuit of the ATV, Constable Cookson kept it in sight. After observing it travel west on Line 11 past a farm, he saw it head in a southern direction across another field. In particular, as indicated on the aerial photograph and markings used by the officer to clarify his evidence, Constable Cookson observed the ATV heading in a direction pointing directly towards the appellant’s residence.
• Constable Cookson was able to keep the ATV in sight until it went behind a pile of demolition rubble, roughly 30 feet in height, located approximately 100 metres from the street on which the appellant’s residence was located. Taking the most direct route permitted by use of the available roads, Constable Cookson continued his pursuit by heading towards the appellant’s known residence. The officer estimated that approximately two minutes passed between losing sight of the ATV and his arrival at the appellant’s residence.
• The appellant’s residence is located on a property approximately 100 feet wide and 220 feet deep, and backs onto a wooded area, “overgrown with trees and shrubs and stuff”, with steep banks leading down approximately 55 feet to a nearby river. The property is not fenced or enclosed. It has one ranch style house with an adjacent two car garage, (the two separate doors of which were closed on the officers’ arrival), and a shed in the back yard. The officer and the appellant’s father disagreed on the exact proximity of neighbouring houses located on each side of the property. However, it was not disputed, and the aerial photograph confirms, that there are other houses “all the way along” the street and elsewhere in the area, (although the density of buildings is lower than that in the centre of town).
• According to Constable Cookson, the appellant’s father was observed standing outside the garage of the house when the officers arrived, and was approached by the officers. According to the appellant’s father, he was working in his garage when he heard police officers conversing outside the side window of the garage, exited, and approached them. The father added that, ten minutes before he heard the officers speaking outside, he had heard an ATV, trail bike or similar vehicle “go by”.
• Both Constable Cookson and the father agree that there then was a conversation, during which Constable Cookson described the altercation to the father, and the father was asked if the appellant was at home. The father then went into the house to locate his son, (whom he admittedly had not seen between approximately 5:00pm or 5:30pm and the time of the officers’ arrival), and the appellant came out of the house “approximately less than a minute” later. According to the officer, the appellant was wearing blue pants and a blue shirt with long sleeves. The officer noticed no dirt on the appellant, apart from dirt under the appellant’s fingernails.
• Upon emerging from his home, the appellant immediately was placed under arrest. According to the officer, the appellant then instructed his father to deny the police any permission to search the residence. The father denied that the appellant had made such a statement. In any case, the police did not obtain a warrant, and did not carry out a search.
• Constable Cookson acknowledged that he had not previously observed the appellant driving an ATV, and that he had not actually seen the ATV on the appellant’s street during the course of the pursuit. He also acknowledged that no ATV or black helmet was found on the appellant’s property, but emphasized that the police did not look for either.
• Constable Cookson also acknowledged that he had not recorded, in his notes, any observations about the driver’s physical features, clothing or appearance. He had just recorded his positive identification of the driver as being the appellant.
• The appellant’s father indicated that the appellant does not own an ATV, and that the helmet owned by the appellant, (used for snowmobiling), has a black base with coloured graphics on it.

Standard of Review

[8] Following her review of the evidence, (including a detailed consideration and analysis of the circumstances in which Constable Cookson made his observations), the trial judge decided that the officer’s identification of the appellant was not only credible but also reliable, and found the appellant guilty.

[9] Pursuant to s.686(1)(a)(i) of the Criminal Code, on hearing an appeal against a conviction, a court of appeal may allow the appeal where it is of the opinion that “the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence”.

[10] The applicable test and required approach for making such an appellate determination were confirmed by the Supreme Court of Canada in R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, at p.185, and again in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paragraphs 36-37. The latter reference reads, in part as follows:

The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence has been unequivocally expressed in Yebes as follows:

Curial review is invited whenever a jury goes beyond a reasonable standard... . The test is “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered. ...

That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court to determine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence. ...

The Yebes test is expressed in terms of a verdict reached by a jury. It is, however, equally applicable to the judgment of a judge sitting at trial without a jury.

[11] The Supreme Court went on to emphasize that a “vague unease, or a lingering or lurking doubt based on its own review of the evidence”, does not by itself provide a proper basis for appellate court interference with the verdict below.[^1]

[12] Rather, as previously emphasized by the Supreme Court in R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, at paragraph 4, “it is only where the Court has considered all of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that the court can invoke s.686(1)(a)(i) and overturn the trial court’s verdict”.

[13] In making such determinations, appellate courts also are to exercise appropriate restraint and caution. As emphasized by our Court of Appeal, in R. v. Quercia, 1990 2595 (ON CA), [1990] O.J. No. 2063, at paragraph 6:

The review countenanced by s.686(1)(a)(i) is not limited to a determination of whether there was any evidence to support the conviction; nor, however, is it so wide as to permit a de novo assessment of the evidence. The section is a protection against perverse or unsafe convictions, not a means of bringing trial verdicts in line with appellate courts’ estimations of the merits of individual cases. ... In deciding whether a jury has exceeded the bounds of reasonableness, the court must give due deference to the advantageous position of the jury, who actually saw and heard the witnesses.

[Emphasis added.]

Identification Evidence – Concerns and Considerations

[14] Our Court of Appeal has noted and explained, in R. v. Biddle (1993), 1993 8506 (ON CA), 84 C.C.C. (3d) 430 at pp.434-435, why the provision is often invoked in cases which turn on eyewitness identification evidence:

Resort to the jurisdiction bestowed on this court by s.686(1)(a)(i) in identification cases is a response to the well-recognized danger inherent in convictions based on eyewitness evidence. Furthermore, the assessment of the probative force of eyewitness evidence does not often turn on credibility assessments, but rather on considerations of the totality of the circumstances pertinent to that identification. As such, a verdict based on honest but potentially mistaken eyewitness identification is well suited to appellate review under s.686(1)(a)(i).

[15] The danger noted above stems from the inherent frailties of eye-witness identification evidence; frailties demonstrated and underscored by actual cases of wrongful conviction based on eye witness testimony, psychological studies revealing the inherent unreliability of this kind of evidence, and various reasons why eyewitness testimony is difficult to assess through courtroom procedures; see R. v. Miaponoose, 1996 1268 (ON CA), [1996] O.J. No. 3216 (C.A.), at paragraphs 9-12.

[16] It therefore is important, especially where a case against an accused depends largely or entirely on the correctness of his or her identification by an eyewitness, that such evidence be subjected to appropriate scrutiny.

[17] In particular, one must be careful in such cases to distinguish between matters of credibility and reliability, and not make the error of assessing the reliability of identification evidence on the basis of the honesty and conviction of the identifying witness:

The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comes from witnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonetheless mistaken. Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriages of justice through mistaken identity[^2].

[18] In cases where there is no question about the honesty and sincerity of an eyewitness, an assessment of the reliability of his or her identification evidence therefore depends upon a consideration of the basis for the eyewitness conclusion.

[19] In that regard, courts repeatedly have emphasized that the weight assigned to identification evidence varies with the very case-specific circumstances and conditions under which a witness makes his or her observations. In particular, the “infinite particularity of possible fact situations” inherently prevents adoption of any “mechanical test” or “rigid tabulation” of factors that affect the quality of eyewitness evidence.[^3]

[20] However, suggested considerations have included the following[^4]:

a. Length of observation; b. Distance; c. Light conditions; d. Obstructions to view; e. Whether the case involves identification of a stranger, (entirely dependent on the perception and recollection of the witness on the particular occasion in question), or purported recognition of someone known by the witness, (in which case one must consider the history and nature of prior knowledge, familiarity and interaction providing the basis for alleged recognition); f. Lapse of time between the relevant observation and the suggested identification; g. Specificity of the eyewitness description; h. Whether the person to be identified has outstanding or special features or characteristics; i. Material discrepancies between a witness description and appearance of the accused; j. Consistency between successive descriptions offered by the witness; k. The degree of attention and awareness of the witness at the time of the crime, and the care with which an identification observation is made; l. Whether the identification procedure was flawed or unfair, insofar as it directly or indirectly suggested to the witness that the accused should be identified; and m. Existence of other evidence or circumstances providing some corroboration or validation of the suggested identification; (e.g., physical evidence, other eyewitness identification, or circumstantial evidence capable of connecting the accused to the incident).

[21] For the above reasons, appellate review of whether a verdict based on eyewitness identification evidence is one “that a properly instructed jury acting judicially, could reasonably have rendered”, often will focus on whether the trier of fact was alert to the well-recognized dangers of identification evidence, avoided confusion between credibility/certainty and reliability, and properly apprehended and scrutinized the nature and basis of that identification evidence, (including recognition of its weaknesses), through consideration of applicable reliability factors.

Analysis

[22] In this case, the trial judge expressly noted that she was “mindful of the inherent frailties and dangers of eyewitness testimony and the need to scrutinize such testimony with great care and caution”, and made reference to appellate authority explaining the concerns.

[23] Her comments also indicate that she was keenly aware of the important distinction between the credibility of Constable Cookson’s identification evidence and its reliability. In particular, immediately after noting that Constable Cookson was “a clear and straightforward whose testimony was unshaken in cross-examination”, the trial judge nevertheless emphasized that it was “not his credibility that is in issue, but rather the reliability of his identification of Tyson Van Arkel as the ATV driver”. She then proceeded to outline the particular circumstances of Constable Cookson’s observations that were considered by the trial judge “in assessing his reliability”.

[24] Her stated analysis in that regard demonstrates no apparent deviation from these recognized concerns and distinctions.

[25] To the contrary, the trial judge focused at length on numerous reliability considerations often addressed by the courts in assessing the reliability of eyewitness identification evidence; e.g., extent of obstruction, proximity, length of observation, the extent to which Constable Cookson was focused and concentrating on making important and accurate observations, (underscored by the capacity in which he was making them), the immediacy of his identification, the fact that this was a case of purported recognition, (the basis of which was explored and noted), and other circumstantial evidence, (including the “very short time period” between the officer losing sight of the ATV and his arrival at the Van Arkel residence, and the absence of any follow-up investigation respecting the whereabouts of the ATV or the helmet).

[26] In doing so, the trial judge expressly mentioned and considered not only factors that might strengthen the reliability of the identification, but possible weaknesses as well; e.g., the fact that the ATV driver’s hair, forehead, ears, sides of his face and chin were covered by the helmet, (thereby obstructing Constable Cookson’s view of those facial areas), the fact that the officer’s view of the driver’s face lasted less than 30 seconds, the fact that Constable Cookson’s identification did not mention or document any distinguishing physical or facial characteristics of the driver or provide any description of the driver’s clothing apart from reference to a “black helmet” and a “grey work coat”, and the circumstantial evidence (noted above) relied upon by the defence.

[27] On balance, she nevertheless was satisfied that the officer’s identification was not only credible but also reliable:

This was not the testimony of an eyewitness who had a fleeting glimpse of a stranger in unexpected circumstances. It was the testimony of a police officer engaged in the execution of his duties, who was alert to the need to identify the driver and who recognized the driver, with whom he was face to face, based on prior familiarity with Mr Van Arkel and prior examination of his photograph.

I am satisfied that the combination of Constable Cookson’s prior general familiarity with Mr Van Arkel, his prior examination of Mr Van Arkel’s photograph and his unobstructed, focused and up close face-to-face encounter with the driver of the ATV makes his recognition of Mr Van Arkel as the driver not only certain, but safe and reliable.

[28] After stating her conclusion, the trial judge again emphasized that she had reached it “not because of the firmness or confidence with which the officer asserted his conclusion, but because of the officer’s focused, direct, face-to-face observation of the driver in circumstances where he was close enough to reach out and grab the driver by the shoulder and his prior general familiarity” with the appellant.

[29] All of this suggests a proper judicial and balanced approach to assessing the reliability of the relevant eyewitness identification, to ensure that the resulting verdict was reasonably supported by the evidence.

[30] On appeal, in addition to the relatively short length of time for Constable Cookson’s identification observation, the partial obstruction caused by the driver’s helmet and Constable Cookson’s failure to mention or document any particular facial features or clothing as part of his identification, counsel for the appellant relied primarily on:

i. alleged deficiencies in the basis for purported recognition, (particularly insofar as Constable Cookson relied on prior study of the appellant’s photograph); and ii. circumstantial evidence, (which was alleged to negate any reasonable conclusion that the appellant had been the ATV driver).

[31] As for the first of these two concerns, the authorities express understandable concern about eyewitness identification reliability where photographs are put to the witness between the time of an incident and the making of a later identification.

[32] However, the concern in that regard does not relate to reliance on prior review of photographs per se, but to the possibility that a later identification was based primarily on intervening and inappropriate suggestion, (i.e., by the witness being asked to focus on photographs that effectively presented an inherently narrowed subset of people for possible identification), rather than on what the witness observed at the time of the relevant incident. See, for example, R. v. Armstrong (1959), 1959 580 (BC CA), 29 W.W.R. 141 (B.C.C.A.), at paragraphs 12-13, and R. v. Richards, 1963 678 (BC CA), [1964] 2 C.C.C. 19 (B.C.C.A.).

[33] There is a fundamental distinction between such cases and those where a witness purports to immediately recognize a person, based on prior knowledge and familiarity.

[34] In particular, when a person is immediately “recognized” by a witness, (by literal definition, “known again”), the recognition will always be based on some degree of past knowledge, observation and familiarity suggesting a present conclusion. However, a witness purporting to make an immediate identification based on recognition inherently is drawing independently upon his or her memory of all persons in respect of whom he or she has previous knowledge and familiarity, (which may include familiarity based on prior review of photographs). The same concern regarding inordinate and inappropriate suggestion, (e.g., by a third party’s presentation of a photographic depiction of one particular individual or a selected subset of individuals after the relevant witness observation but prior to identification of a suspect), therefore is not present.

[35] Moreover, in this case, any concern about Constable Cookson’s reliance on previous study of a photograph is further diluted by evidence that his prior familiarity with the appellant was not based on that repeated photographic study alone. By the time of the relevant incident, his prior familiarity with the appellant was also based on personal observations of the appellant during a prior traffic stop, and by additional intermittent but regular observations stemming from the officer having a personal residence located less than 100 metres from that of the accused, in the same neighbourhood, in a relatively small town.

[36] As for circumstantial evidence:

a. I disagree with the suggestion, (made by defence counsel at trial and again by counsel for the appellant during the course of argument), that there was “nothing to corroborate” Constable Cookson’s identification of the appellant as the ATV driver. In particular, I think it not unimportant that, of all the directions in which the ATV driver might have travelled in his efforts to escape, the directional compass of his observed final flight pointed squarely towards the residence of the person whom Constable Cookson previously and immediately had identified as the driver, and the driver and vehicle were last seen a short distance from the appellant’s home. The ATV driver apparently made a deliberate choice to head in that direction, notwithstanding its location in an area of town which, (according to the aerial photograph and witness evidence), has a lower density of homes and is bounded to a significant degree by a river with steep banks, (which inherently would have limited avenues of escape if the driver could not attain some other form of sanctuary). I note that, according to the officer’s evidence and diagram, when the ATV was first observed, it also was coming from the general direction of the appellant’s residence. b. Although the appellant relied on the fact that Constable Cookson saw no noticeable dirt on the appellant or his clothing at the time of arrest, (apart from dirt under his fingernails), it seems to me that this evidence is equivocal and not compelling. The officer was not sure whether or not the driver had been wearing gloves, but more generally, there really was little or no evidence to indicate that the ATV driver necessarily or even probably would have had noticeable dirt on him because of his activities. In that regard, one of the fields crossed by the ATV was described as “ploughed”, but there is nothing to indicate whether or not it was freshly ploughed, the drainage ditch in which the officer and ATV was located was “dry”, (suggesting local conditions were not wet or muddy), and the officer was clear that the driver had no dirt on his face despite having operated the ATV across the ploughed field with the helmet visor raised. c. The time between the officer losing sight of the ATV and his arrival at the appellant’s residence unquestionably was limited to a matter of minutes. However, as noted by counsel for the Crown, the officer’s time estimates in that regard actually were contradicted to some extent by evidence from the appellant’s father. In particular, the father indicated that 10 minutes actually went by between his hearing the sound of an ATV or similar vehicle near the appellant’s house, and arrival of the police. Moreover, although the officer suggested that he spoke with the father immediately on arrival and the appellant emerged from the house approximately a minute later, the father testified that the first attending officers had approached the residence and were talking outside the garage before the father emerged, and that this was then followed by a conversation before the father went to look for his son. The trial judge does not make an express finding of the precise time lapses involved, except to note in her reasons that it was a “very short time period” between the officer losing sight of the ATV and his arrival at the appellant’s residence. For the purposes of appellate review, the important point is that, where the appropriate weight to be given circumstantial evidence such as the passage of time depends on conflicting witness testimony, the trial judge was in a superior position, because she had an opportunity to view the witnesses and form her opinions and conclusions as to significance accordingly. d. Although no ATV or helmet were observed by the police at the time of the arrest, I agree with the observation of the trial judge, (made during the course of defence submissions), that there is an important distinction between the inferences to be drawn from execution of a search of an area that reveals nothing, and evidence that an area simply was not searched. In particular, while it would be an error to assume that the ATV and helmet had been placed out of sight somewhere in the area of the appellant’s residence or removed from the area by others, it similarly should not be assumed that the opposite necessarily was true. The reality is that this circumstantial evidence, while lending some support to the defence, also is somewhat equivocal, and not as strong or decisive as suggested by the appellant.

[37] Reliability of the eyewitness identification in this particular case was supported by the numerous factors identified by the trial judge, and not substantially undermined by the considerations relied upon by the defence. Having regard to the totality of the evidence and the manner in which the trial judge proceeded, I am unable to find that the trial verdict was one “that a properly instructed jury, acting judicially, could not reasonably have rendered”.

[38] The appeal therefore is dismissed.

Justice I.F. Leach

Justice I. F. Leach

Date: January 29, 2012

[^1]: See R. v. Biniaris, supra, at paragraphs 38 and 41. [^2]: R. v. Atfield (1983), 1983 ABCA 44, 25 Alta L.R. (2d) 97 (C.A.), at pp. 98-99, quoted with approval by our Court of Appeal in R. v. Izzard, 1990 13295 (ON CA), [1990] O.J. No. 189 (C.A.), at p.255. [^3]: See in particular R. v. Mezzo, 1986 16 (SCC), [1986] 1 S.C.R. 802, at para. 24. However, see also R. v. Smierciak (1946), 1946 331 (ON CA), 87 C.C.C. 175 (Ont.C.A.), R. v. Miaponoose (1996), 1996 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont.C.A.) at p.452; R. v. Brown, 2009 ONCA 563, [2009] O.J. No. 2908 (C.A.), at paragraph 16. [^4]: See for example: R. v. Smierciak, supra, at p.177; R. v. Turnbull and others (1976), 63 Cr.App.R. 132 at p.137; R. v. Mezzo, supra, at paragraphs 20-22, 24-26, and 31-32; R. v. Izzard, supra, at p.256; R. v. Quercia, supra, at paragraphs 9-16, 25 and 29; R. v. Biddle, supra, at paragraphs 11-12, 17-18, 26, 29-32, and 38; R. v. Miaponoose, supra, at paragraphs 16-18, 25 and 33; R. v. Robinson, [1998] O.J. No. 2081 (C.A.) at paragraph 4; R. v. Brown, supra, at paragraphs 17, 23 and 24;