COURT FILE NO.: 83/13

DATE: 2014 02 26

ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

B E T W E E N:

HER MAJESTY THE QUEEN

A. A. Khoorshed, for the Respondent

Respondent

• and -

BRENDAN McDONALD

P. Stunt, for the Appellant

Appellant

HEARD: February 19, 2014

REASONS FOR JUDGMENT

[on appeal from a conviction of

June 3, 2013, by Cooper J.]

HILL J.

INTRODUCTION

[1] After a trial, Mr. McDonald was found guilty of impaired operation of a motor vehicle.

[2] On agreement, the trial was conducted as a “blended” proceeding with evidence let concurrently from witnesses respecting both the issue of proof of the alleged charge and the issue of asserted breaches of the Charter. The prosecution called a civilian eyewitness to testify and three police officers. The defence presented no evidence.

[3] The trial judge, having found serious breaches of ss. 8 and 9 of the Charter in the actions of police officers who arrested the Appellant in his home, excluded evidence under s. 24(2) of the Charter.

[4] On appeal, three grounds are raised:

(1) having ruled in favour of exclusion pursuant to s. 24(2) of the Charter of all of “the evidence obtained after entering onto the property and into the home of the defendant”, the arrest of the appellant and his subsequent availability for an in-court identification should not have been considered in determining whether the charge was proven

(2) the trial judge erred in law in self-direction respecting the identification evidence and the court’s reasons for judgment further reflect the inadequacy of the treatment of this crucial issue

(3) the verdict is unreasonable and unsupported on the evidence in respect of both the issues of identity and impairment.

[5] For the following reasons, the appeal must be allowed.

THE FACTUAL BACKGROUND

The Eyewitness Evidence

[6] In March of 2012, Christopher Vardy was employed as the assistant manager of Wings Up, a fast food establishment located in a strip mall on the Guelph Line in Burlington, Ontario. On March 23, 2012, he worked the closing shift which ended at midnight.

[7] Mr. Vardy testified that on this date, between 10:30 and 10:45 p.m., a male came in to order some wings and fries. He took the customer’s food order. He had never seen the man before. In his opinion, the customer “[s]eemed intoxicated”. In his in-chief testimony, the witness testified that the man was slurring his words and put his head down and appeared to nod off while waiting for his order. In the witness’ view, he got “a good view” of the customer. In cross-examination, Mr. Vardy added for the first time that the customer “smelt like alcohol”. That fact was also not included in the witness’ statement provided to the police within a half hour of dealing with the customer.

[8] During the 10-minute wait for the cooking to finish, two other patrons were also in the restaurant to place orders. Mr. Vardy formed the view that, as the man in question was leaving with his order, he “wasn’t walking a straight line”.

The Police Are Notified

[9] Mr. Vardy asked his other customers to follow the man to his truck and to obtain the vehicle’s licence plate number. In the witness’ words:

…when they- when he left the building, I called the police to tell them to come over, and that’s when they went, and got his licence plate number.

So I was still in the restaurant calling the police while he, they had left to follow him to the truck.

The in-chief examination continued with this attempted clarification:

Q. And so are you still on the phone with police when they come back in to give you the licence plate number?

A. No, I had already hung up. They said … they were going to send an officer on the way over.

[10] Subsequently, in cross-examination, the witness gave this evidence about his 911 call:

Q. And do you know if you were speaking to a police officer or someone in the communications department?

A. I can’t remember. I don’t – the phone call, I remember just giving them a license plate. The main thing I remember is talking to Officer Jamieson when she came in to give my statement. I remember speaking to someone, just saying I had a person that was in here that I had thought was intoxicated and they got behind the wheel and started driving down Prospect.

[11] Mr. Vardy testified that he went outside the restaurant leaving his cook in the premises. He observed the customer’s truck going westbound on Prospect Street and onto Brant Street. He saw no passengers in the vehicle. He then went to examine a red mailbox in the vicinity of a nearby variety store as he had seen the man’s truck reverse back into the box. On the witness’ evidence, he saw a dent in the mailbox.

[12] At trial, after Mr. Vardy described the truck as a GMC model, light in colour with a cap on its box, he was asked this question in-chief:

So aside from the licence plate, what else do you tell the officer on the phone?

The witness responded:

I had just basically had said there’s a person that was in the restaurant that had seemed to have been drinking. They got the license plate number. And then the officer had shown up and given me, I had given them my statement. They had left and then they came back and I gave them my statement.

[13] Later, in cross-examination, Mr. Vardy stated that he could not recall whether he provided a description of the truck in his 911 call:

I don’t remember, like I said, what I had said. I just remembered telling them that I had had a person in the store that I felt was intoxicated that got behind the wheel… and then I remember talking to Officer Jamieson.

[14] In cross-examination, Mr. Vardy described the truck as “[l]ike a grayish blue colour”.

[15] According to Mr. Vardy, Sergeant Jamieson of the Halton Regional Police Service arrived about 10 minutes after he phoned 911. She was the only officer to whom he spoke that evening. At 11:10 p.m., Sgt. Jamieson testified to receiving a dispatch on her radio and cruiser computer or MWS (Mobile Work Station) to attend the Wings Up location:

That there was a white GMC pick-up truck, with a cap portion on the back of it, with Ontario license plate 764 5YE. I received information that it backed up out of the parking lot, it struck something, and then it took off. The initial description of the driver was a male in his 50s and that the vehicle went westbound on Prospect Street towards Brant Street.

[16] In cross-examination as to her notes of the dispatch, made before meeting Vardy, the sergeant gave this evidence:

Q. …and you’ve got here “complainant, Chris Vardy.” You’ve blacked out his phone number. You’ve got a vehicle license, a vehicle description to some extent. Is that right?

A. Yes, sir.

Q. And then you’ve got, in terms of the person, “male, in his 50s, westbound on Prospect towards Brant?”

A. Yes, sir.

Q. So the only description that comes over to you, at least initially, is male, in his 50s?

A. Yes, sir.

[17] In examination in-chief, Mr. Vardy stated that he recalled providing a description of the suspect to Sgt. Jamieson on March 23, 2012. In cross-examination, the witness stated that he was not asked for an age or other description of the suspect during the 911 call. When it was suggested to Mr. Vardy that he may have described his customer to the 911 operator/police dispatcher as “a male in his 50s”, the witness stated that he “possibly could have”.

[18] Sgt. Jamieson arrived at Wings Up at about 11:12 p.m. and secured more information from Mr. Vardy prior to taking a written statement from the witness:

He told me about an object that it had struck in the parking lot as it was backing up, a red – it was more or less a newspaper box. I went outside to see if there was any damage to that box and I did not see any damage to that box.

I got a description of the driver from the initial complainant. He told me that it was a white male. He was approximately 60 years of age. He had white hair with a moustache and/or a goatee, he wasn’t quite certain. He told me the gentleman was wearing blue jeans, light coloured shirt and brown shoes.

[19] In cross-examination, Mr. Vardy at first stated that he did not think he told the sergeant that the suspect had some facial hair. Challenged with the officer’s notes of what he reportedly said in this regard, the witness replied: “I don’t know. I don’t know. I can’t say if I did; I can’t say if I didn’t”.

[20] Sgt. Jamieson testified that she passed this additional information along by her police radio to Const. Garst who was on route to, or at, a house on George Street, the home address of the registered owner for the vehicle with licence plate #764 5YE.

[21] On Sgt. Jamieson’s evidence, she was advised by radio by Const. Garst that an arrest had been made at the George Street address. She then took a written statement from Mr. Vardy commencing at 11:15 p.m.

[22] Mr. Vardy was questioned in cross-examination about the written statement given to Sgt. Jamieson. The witness agreed that he described his customer as in his 60s, anywhere from 5’10” to 6’ tall, wearing blue jeans, brown shoes, a light coloured button-up shirt “and maybe a dark coloured jacket”.

The Police Attend the Appellant’s Residence

[23] Const. Garst testified that he received an MWS dispatch at 10:58 p.m. about a suspected drunk driver, a male in his 60s with gray hair, and to his recall “[t]here was also a licence plate number” and description of the vehicle.

[24] In a separate cruiser, Const. Toth received the dispatch at 10:59 p.m. On her in-chief evidence, it related to a possible impaired driver in his 50s having reversed into an object with his GMC pickup, Ontario licence plate #764 5YE, as he exited the parking lot where the Wings Up restaurant was located. In cross-examination, the constable agreed that all she had in her notes of the initial dispatch, insofar as a description of the vehicle, was “GMC pick-up”. She further agreed that the physical description of the suspect was a “pretty barren description” – the “most bare” of descriptions. Const. Garst considered their information to be “the barest of descriptions”.

[25] Having obtained the home address of the owner of the vehicle with licence #764 5YE, Consts. Garst and Toth proceeded to the George Street address and, by 11:02 p.m., parked their cruisers on the street near the house. The residence was a detached home with a driveway to the one side leading to a carport next to the house in place of an enclosed garage. In Const. Garst’s estimate, the carport could have been as much as 60’ from the roadway with the front door about 15 to 20 metres distant. Constable Toth estimated that the front door of the residence was about 50’ from the curb and that there was a large front yard. The constables observed a vehicle pulled in frontward in the carport.

[26] Consts. Garst and Toth testified that they did not have reasonable and probable grounds to arrest the vehicle owner. They entered upon the Appellant’s property. They did not proceed to the front door to communicate with the Appellant. Instead, the officers undertook an illegal perimeter search including a warrantless search of the vehicle using flashlights followed by a non-consensual entry into the residence where they observed, and spoke to, Mr. McDonald.

[27] The trial judge’s Charter ruling included these conclusions:

It is my conclusion that the perimeter search and investigation of Mr. McDonald’s property, and then obtaining entry to his private residence without complying with the informed consent requirements of R. v. Wills [supra], constitute a breach of section 8 of the Charter. The subsequent arrest was unlawful and was a breach of section 9 of the Charter.

[28] Turning to the Grant analysis for s. 24(2) of the Charter, the court concluded that the warrantless and trespassory conduct of the police entering upon private property to gather evidence contrary to the proscription in R. v. Kokech, [1990] 3 S.C.R. 3, and the entry to a private residence without warrant or informed consent as described in R. v. Wills (1992), 7 O.R. (3d) 337 (C.A.), amounted to a “serious” breach of the Charter. The impact upon Mr. McDonald’s Charter-protected rights was significant – “the arrest and detention …had a serious impact” on the suspect’s constitutional rights. Further, society would not have an interest in adjudication of the case on its merits using the evidence illegally obtained through serious Charter breaches – the court could not be seen to condone police misconduct which for two decades had been declared to be unconstitutional. Accordingly, the balance of interests favoured an exclusionary remedy:

Balancing of all of the above mentioned factors, it is my opinion that to admit any of the evidence obtained by officers Garst and Toth after entering onto the property and into the home of the defendant, would bring the administration of justice into disrepute.

There has been a breach of sections 8 and 9 of the Charter of Rights and Freedoms and the evidence obtained after entering onto the property and into the home of the defendant will be excluded under section 24(2).

Other Police Investigation

[29] Sgt. Jamieson examined the red mailbox or newspaper box at the Wings Up location and found it to be undamaged.

[30] The sergeant testified that she received information from Mr. Vardy about video cameras in and outside the restaurant. Another officer was assigned to follow up. No video surveillance evidence was adduced at trial.

[31] At trial, no evidence was introduced that Mr. Vardy at any point participated in a photo array identification procedure.

In-Court Observations of Appellant

[32] At the outset of trial, defence counsel was granted leave for the Appellant to be seated beside him at counsel table.

[33] At the conclusion of his evidence in-chief, Mr. Vardy gave this evidence:

Q. Okay. Now, do you recognize the accused here today?

A. I do.

Q. Now, do you recognize him from that night, or do you recognize him for the fact that he’s sitting next to, to counsel?

A. I didn’t – when I arrived today, I, I’ll be honest, I didn’t think I would recognize him. But when I – when he came in the courtroom and I was looking at him, it, it clicked in my head and that’s the gentleman that I remember from that night.

[34] In cross-examination, the witness was questioned further on the circumstances leading to what the parties have described as the in-dock identification in this case:

Q. So you were here a good 35 minutes before court opened. Were you out in the corridor, the public area?

A. I was sitting – well, way over on the left hand side over here…

Q. Okay.

A. …with an officer.

Q. And I take it from what you said that when you’re out in the corridor you didn’t recognize anybody that you thought had been the man involved in this case?

A. I wasn’t really looking around. I was basically – I read the statement that I had given. I wasn’t looking around at people. I was basically just sitting beside the officer that had actually greeted me when I come in, as well as the Crown attorney because I wanted to read the statement.

Q. …So when you said to the Crown, and I’m just paraphrasing this, when I arrived today, I didn’t know that, if I – or, I didn’t think I was going to be able to recognize him, but when he came into the courtroom I did. Is that ….

A. Yeah, because I had …

Q. Just let me…

A. …a good view of him at…

Q. …finish my question, sir.

A. Sorry, sorry.

Q. Did I relay that accurately?

A. Yes, you did.

Q. All right. I’m sorry, if you could give your answer. I just wanted to finish.

A. When, when he was in Wings Up, I did get a good view of him. He was basically sitting straight ahead on the left hand side on the stool. But it’s been – it was, it was a year, and I – like I was speaking with my fiancé and my father, and everything. Before I came they said – if I couldn’t remember him, I wasn’t going to say anything. But when I did see him today, it – something clicked in my head that I remembered that was him.

[35] During his testimony, Const. Garst testified that based upon his observations of the Appellant in the trial courtroom he was wearing glasses, was aged between 50 and 60 years, and stood 5’8” to 5’9” in height.

TRIAL COURT’S REASONS FOR JUDGMENT

[36] The trial court’s Reasons for Judgment for the finding of guilt read:

Analysis

(b) - Trial Proper

[32] I find that based on the evidence of the Wings Up store operator, Mr. Vard[y], that the defendant’s ability to operate a motor vehicle was impaired by the consumption of alcohol beyond a reasonable doubt. The symptoms of impairment by alcohol were very obvious to him.

[33] Mr. Vard[y] identified Mr. McDonald in court as the person who was in his store and who drove off in his truck. Although he did not mention white hair or a goatee or moustache in his statement to the police, he must have said this to officer Jamieson. Even with this discrepancy, the truck was tracked to Mr. McDonald’s home. In my view, evidence of identity has been established beyond a reasonable doubt.

[34] In my opinion, Mr. Vard[y] was a credible witness and I accept his evidence.

Conclusion on Trial Proper

[35] The defendant is found guilty of the offence of the impaired operation of his vehicle.

Final Conclusion

[36] Because the evidence of the defendant’s blood alcohol readings was excluded, Mr. McDonald is found not guilty of that charge, and guilty only of the impaired operation charge.

ANALYSIS

Scope of Charter Ruling Exclusion

Positions of the Parties

[37] On behalf of Mr. McDonald, Mr. Stunt submitted that the trial judge, having found serious breaches of the Appellant’s s. 8 and s. 9 Charter rights, and having concluded that s. 24(2) exclusion was warranted in all the circumstances, erred in failing to exclude all evidence available to the state following the unlawful arrest. Put differently, it was argued that “[i]t was only the arrest, detention and subsequent prosecution of the Appellant that led to his identification (essentially in-dock identification) at court on February 11th, 2013”.

[38] Although Mr. Khoorshed acknowledged that the trial court seemed to have attached the scope of exclusion more to the s. 8 Charter breach, it was argued that the partial exclusion of some post-arrest evidence, i.e. the breath test results and perhaps the breathalyser test room video, satisfied the imposition of a remedy for the s. 9 Charter breach.

Review Conclusions

[39] The Crown did not appeal the Appellant’s acquittal on the “over .80” charge. Nor did the Respondent raise in support of the “impaired operation” conviction that the trial court’s Charter rulings were incorrect (see. R. v. Perka, [1984] 2 S.C.R. 232, at p. 240, and R. v. Seth (2001), 157 C.C.C. (3d) 189 (Ont. C.A.), at para. 84 as to the propriety of the Crown raising any argument advanced at trial to sustain the verdict on appeal).

[40] In its Charter exclusion ruling, the trial court did not specifically delineate what evidence was to be excluded on account of the unconstitutional actions of Consts. Garst and Toth beyond saying “any of the evidence” obtained by them “after entering onto the property and into the home of the defendant”.

[41] The parties at trial understood that the evidence obtained by the s. 8 Charter breach certainly included information derived from the warrantless search of the vehicle by sight and feel and the observations made of Mr. McDonald in his kitchen as well as relevant things in the kitchen. It was this body of evidence which provided the reasonable and probable grounds for an arrest and breathalyzer demand, grounds which did not exist without the unconstitutionally obtained evidence. The ruling was therefore viewed as excluding certain evidence derivative of the illegal entry on the property and into the dwelling, specifically the breathalyzer test results and the breathalyzer test room video.

[42] The Appellant maintains that his arrest, unlawful as founded upon grounds tainted by s. 8 Charter breaches, and found therefore to be arbitrary and a serious breach of s. 9 of the Charter, entitled him to exclusion of all evidence obtained, directly or indirectly, from his arrest. In other words, the prosecution would be limited to reliance upon evidence gathered prior to police entry onto the Appellant’s property and any evidence secured entirely independently of the constitutional transgressions on the night of March 23, 2012.

[43] In this regard, it was submitted that the in-court identification advanced in the prosecution case cannot properly be considered evidence independently available – Mr. McDonald’s presence in the courtroom was derivatively traceable to the arbitrary arrest made without reasonable and probable grounds formulated upon constitutionally obtained information.

[44] It is unclear from the trial judge’s Charter ruling whether he considered the full extent of the evidence which might reasonably and fairly be considered derivative of the arbitrary arrest. The court had a discretion to limit the exclusion in the manner it did. In any event, the resolution of the appeal falls to be determined on a different basis.

Identification Evidence Issues

Positions of the Parties

[45] The Appellant submitted that the trial court’s “very limited” reasons for Judgment reflect legal misdirection relating to proof of the Appellant as the person who drove away from Wings Up. More specifically:

(1) the court failed to fully consider all of the discrepancies in Mr. Vardy’s description of the customer and failed to provide cogent reasoning for dismissing the one discrepancy which was noted

(2) the court failed to self-instruct respecting the lack of probative value attached to in-dock identification

(3) the court’s reliance upon its observation that the truck which left the restaurant “was tracked to Mr. McDonald’s home” is of little value in the absence of knowing who drove the vehicle there, how many occupants were at the house at the relevant time and some properly admissible evidence as to the licence number of the truck at the restaurant

(4) the above alleged errors are supported by the trial judge’s concern with the credibility, not the reliability, of Mr. Vardy’s evidence.

[46] The Crown responded that a trial court is under no obligation to discuss all of the evidence led at trial. The trial judge had the benefit of full submissions. Although the Reasons for Judgment were brief, they adequately demonstrated the court’s path of reasoning. According to the Respondent’s Factum:

The Respondent’s position is equally straightforward: the in-dock identification was only a component of a greater constellation of evidence which easily proved the accused’s identity as the driver beyond a reasonable doubt.

The Respondent accepts as correct that, if the ONLY evidence of the accused’s identity as the driver were the in-dock identification by the employee of the Wings Up store, that would be insufficient.

[47] In furtherance of the argument that the trial judge need not have included self-instruction in his reasons relating to in-dock identification, the written argument pointed to “additional evidence…available and obvious to be relied upon”:

(1) Vardy provided a description of the customer’s vehicle and its licence plate number

(2) the truck at the Appellant’s home fit Vardy’s description and was still warm

(3) Vardy’s description “generally matched” the Appellant

(4) the Appellant was found alone in the George Street residence where the truck was located “immediately after the events”

(5) the Appellant was discovered in the home eating chicken wings sold to him by Wings Up

(6) the Appellant was found by the police to be “drunk”.

[48] In oral argument, Mr. Khoorshed withdrew reliance upon most of these factors recognizing that the Charter exclusionary ruling precluded resort to them. Pressed in oral argument as to what admissible evidence existed as to the licence plate number of the customer’s truck, Crown counsel accepted that there was no direct evidence that Mr. Vardy himself obtained that information as opposed to having passed along in the 911 call a plate number reported to him by the restaurant’s other customers.

Review Conclusions

[49] The Reasons for Judgment of the trial court as to guilt essentially amount to five paragraphs as reproduced at para. 36 supra. Although it is the qualitative content of reasons which is ultimately relevant, not their length, I note that this was not an ex tempore judgment delivered at the conclusion of a busy day in the provincial court but rather a reserved judgment given two months after the trial concluded.

[50] The trial court’s reasons disclose significant legal misdirection and non-direction relating to eyewitness identification. For the sake of convenience, those paragraphs of the reasons analyzing the issue of identification are repeated here:

[33] Mr. Vard[y] identified Mr. McDonald in court as the person who was in his store and who drove off in his truck. Although he did not mention white hair or a goatee or moustache in his statement to the police, he must have said this to officer Jamieson. Even with this discrepancy, the truck was tracked to Mr. McDonald’s home. In my view, evidence of identity has been established beyond a reasonable doubt.

[34] In my opinion, Mr. Vard[y] was a credible witness and I accept his evidence.

[51] Because of "the dangers inherent in eye-witness testimony" (R. v. Miaponoose (1996), 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.), at para. 19. The "inherent frailties of eye-witness 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), 183 C.C.C. (3d) 518 (Ont. C.A.), at para. 39. "[S]pecial caution is called for when assessing eye-witness identification evidence": R. v. Hersi, [2000] O.J. No. 3995 (C.A.), at para. 14; R. v. Hay, 2013 SCC 61, at para. 40; R. v. Tat (1997), 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), 160 C.C.C. (3d) 52 (Ont. C.A.), at para. 19.

[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 and the unconscious filling in of gaps with erroneous characteristics.

[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. 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 particularly 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.

[54] In most instances, including the present case, a trial judge is expected in his or her narrated path of reasoning to exhibit self-instruction respecting the inherent dangers of the eyewitness identification evidence at trial. This point is exemplified by the observations in Goran at paras. 25-6:

The central problem with the convictions, in my view, is the trial judge's failure to instruct himself properly about the eyewitness testimony and to direct his mind to its inherent frailties. In reasons that are barely four pages long, his sole reference to the law on this point is the following:

I have heard a lot of evidence in this matter in dealing with the identification issue. The Court must address itself as to the dangers of the identification evidence of witnesses to a crime. I have tried to direct myself to that point, and consequently I have listened to the evidence particularly closely in respect to identification.

If I were able to ascertain from the trial judge's reasons that he did in fact "address [himself] as to the dangers of the identification evidence of witnesses to a crime", there would be no substance in this ground of appeal. Respectfully, however, I cannot do so, and I am not confident that the trial judge truly addressed his mind to the frailties in the eyewitness identification testimony of Mr. Philipose and Mr. James. Specifically, in this case, the trial judge failed to instruct himself properly about the fallacy of mistaking certainty for accuracy…

[55] Similarly, in R. v. Gough, 2013 ONCA 137, at paras. 14-5, 34-9, the appellate court found that the trial court erred in failing “not only to self-instruct properly on the inherent unreliability of identification evidence, but also to advert to and adequately scrutinize the specific frailties disclosed by the evidence”.

[56] Mr. Vardy’s identification of the Appellant at the trial was important evidence for the Crown and, in light of the subsequent Charter ruling, it became central to the prosecution case.

[57] Although the trial judge noted the discrepancy of Mr. Vardy having variously informed the police on the night of March 23, 2012 that his customer had gray hair, and, white hair and a moustache and/or a goatee, the court dismissed the inconsistency without clearly explaining why it did not further devalue any probative value which might be attached to the purported in-court identification of the Appellant. This feature of the reasons is all the more significant in light of the following:

(1) Mr. Vardy apparently provided differing estimates of his customer’s age – either in his 50s or in his 60s

(2) the witness’ description was skimpy, bordering on general or generic, an opinion shared by Consts. Garst and Toth, without description of the customer’s build or body weight

(3) Mr. Vardy described his customer as 5’10” to 6’ tall whereas Const. Garst described the Appellant as 5’8” to 9” in height

(4) the Appellant was wearing eyeglasses at trial – no reference was made by Mr. Vardy to eyeglasses on March 23, 2012

(5) it appears that Mr. Vardy variously described the customer’s truck as light, white, or grayish-blue

(6) Sgt. Jamieson did not locate any dent in the red mail/newspaper box at the plaza which Mr. Vardy claimed to have seen

(7) with the exclusion of evidence obtained from the George Street address, and no other relevant testimony at trial, there was no evidence as to the Appellant’s actual appearance on the date of his arrest for comparison to any of Mr. Vardy’s descriptions – did the arrestee have gray hair or white hair or black hair or was he bald? was he clean-shaven or did he have facial hair? was he wearing the clothing Vardy described to Sgt. Jamieson? were there other significant appearance descriptors unreported by Vardy?

[58] The evidence raised very real concerns as to the reliability of Mr. Vardy as an eyewitness. Unfortunately, as is evident from para. 34 of the trial court’s reasons, the trial court considered credibility as the focus of the required analysis. At trial, no real issue was taken with Mr. Vardy as an eyewitness honestly attempting to recall, describe, and identify his customer. However, as consistently emphasized in the relevant jurisprudence, including R. v. Quercia (1990), 60 C.C.C. (3d) 380 (Ont. C.A.), at p. 383: “The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law”.

[59] The trial court commenced its reasons for concluding that identification of the Appellant as the driver of the vehicle at Wings Up had been proven by relying on Mr. Vardy’s in-court identification of the Appellant.

[60] As a general rule, in-dock identifications, by an individual previously unacquainted with a suspect prior to the relevant event, are generally almost valueless in terms of reliable positive identification. Not only has time passed since the alleged crime, some 11 months in this case, but also the physical set-up of the courtroom recognizably presents the accused as the individual on trial and therefore as the suspect toward whom the finger of accusation has pointed: see R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 49; R. v. Lawrence, [2014] UKPC 2, at paras. 9, 11; R. v. Yigzaw, 2013 ONCA 547, at paras. 25, 71; R. v. Jack, 2013 ONCA 80, at paras. 17, 21, 38; R. v. Muir, 2013 ONCA 470, at paras. 9, 11; R. v. Cranham, 2012 ONCA 457, at para. 11; R. v. Manley, 2011 ONCA 128, at paras. 20-2; R. v. Brown, 2009 ONCA 563, at para. 23; R. v. Hasson, 2008 ONCA 615, at para. 7; F.A., at para. 47; R. v. Izzard (1990), 54 C.C.C. (3d) 252 (Ont. C.A.), at pp. 255-6.

[61] At paras. 50-1 of Hibbert, the court observed that:

It is important to remember that the danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere.

The danger of wrongful conviction arising from faulty but apparently persuasive eyewitness identification has been well documented.

[62] An in-dock identification refers to an in-court identification for the first time by a witness who has had no previous acquaintance with the person identified: R. v. France and Vassell, [2012] UKPC 28, at paras. 28, 33.

[63] While an in-dock identification, strictly interpreted, is limited to identification of an accused person in the prisoner’s dock or box, its scope is not infrequently extended to other in-court situations, for example where the accused person identified by the eyewitness is seated at counsel table or is otherwise in the courtroom and inferentially obvious to be the accused.

[64] In the present case, both parties considered that Mr. Vardy made an in-dock identification at trial, about 11 months after March 23, 2012. This position was expressed in oral submissions in the summary conviction trial court and again orally and in the written facta before this court. It is a fair treatment of the evidence given the circumstances of the Appellant seated at counsel table beside his lawyer when the in-trial identification was made minutes after he was first seen by the eyewitness in the courtroom. With an absence of evidence as to the number of persons in the courtroom at the earlier point, whether or not Mr. McDonald was then in the company of his lawyer, etc., the parties were properly concerned that the Appellant was, on both occasions, recognizable as a one-person show-up.

[65] An aspect of the prejudice of an in-dock identification is that the eyewitness “did not make a pre-trial identification” of the accused person in the form of an objectively controlled identification process: R. v. Yigzaw, 2013 ONCA 547, at para. 71. In other words, the safeguards inherent in a properly conducted pre-trial identification procedure are absent: R. v. Neilly, [2014] UKPC 12, at para. 29. Indeed, the Privy Council has taken the position that:

(1) “the normal and proper practice should be to hold an identification parade”: Neilly, at para. 31, and

(2) a trier of fact should be directed in considering a dock identification in circumstances where no pre-trial identification procedure was undertaken, to take into account the possibility that the accused has been deprived of the “possibility of an inconclusive result” in such a procedure: Neilly, at para. 35; France and Vassell, at paras. 17, 21, 26-7; R. v. Tido, [2011] UKPC 16, at paras. 17, 21.

[66] In addition, a trier of fact, in any case including an in-dock situation, will be expected to “scrutinize the [eye]witnesses’ description” of the suspect given previously – “Was it generic and vague, or was it a detailed description that includes reference to distinctive features of the suspect?” (Jack, at para. 16). In this regard, it was essential in the present case that the trial court recognize the very real limitations of the eyewitness’ description of his customer on March 23, 2012.

[67] And lastly, the trial judge made specific reference to “the truck [being] tracked to Mr. McDonald’s home”. There was no fresh pursuit as erroneously described by Const. Toth. The reference, in my view, does not relate to the make of the truck as of GMC manufacture. Without taking judicial notice that GM has manufactured Sierras, Silverados, Colorados and Canyons, it can nevertheless be said that GM pick-up trucks are popular, not unique, vehicles. In this case, there was no description of the model, size (full-size, mid-size) or age of the GMC vehicle.

[68] Accordingly, the court’s reference must relate to a discovered vehicle at the home where the Appellant resided with the same licence plate number as a truck at Wings Up. However, reliance on this feature of the evidence is problematic in three respects:

(1) there was no admissible evidence as to the licence plate number of the pick-up truck outside the restaurant

(2) it cannot be determined from the testimony of Consts. Garst and Toth as to whether their observation of the licence plate number of the truck at the George Street address was made from the public roadway or during their illegal perimeter search

(3) there was no admissible evidence as to the number of adult males residing in the George Street home capable of having driven a pick-up truck.

[69] Mr. Vardy did not testify as to the contents of the licence plate of the pick-up truck outside Wings Up. He at no point testified to directly observing the plate number. He had only one phonecall with the police. He variously testified to not providing the number during the 911 call and then to giving the plate number in the call. Given that Sgt. Jamieson had the plate number before speaking to Vardy, it appears that Vardy did provide the information in the phonecall.

[70] What is clear on the evidence is that Mr. Vardy assigned the task of securing the licence plate number to two of his other customers. The only reasonable inference is that one or both of Mr. Vardy’s designates obtained the number, told him what it was, and that he in turn passed the number to the 911/police dispatcher who passed it further to the road officers.

[71] It is unclear whether the prosecution’s proof omission was the result of a blended trial being conducted. Hearsay evidence as to the licence plate number was of course admissible as part of police grounds for search, detention, a breath demand and the like but not to prove the truth of the plate identification relating to the truck which drove away from the restaurant. Defence counsel clearly made this point at trial when, prior to the first testimonial reference to the licence plate number, he stated: “I don’t have any objection to her [Sgt. Jamieson] giving us information, but in my view it’s simply for the purpose of establishing grounds”. Crown counsel, not Mr. Khoorshed, responded: “Yeah, that’s fine”. Defence counsel then re-emphasized the point saying: “My point is it can’t be accepted for the truth of the content, just…to put it into context”. Crown counsel again responded, “[T]hat’s fine”.

[72] Crown counsel on appeal quite properly agreed that the prosecution could not establish, through the hearsay chain, admissible evidence of the licence number of the plate of the truck at Wings Up. In the circumstances of this trial record, this is an appropriate concession: R. v. Pannu, [2000] O.J. No. 2660 (S.C.J.).

[73] Quite apart from this difficulty of proof, on the evidence it is unclear as to precisely when the officers were in a position to see the colour or licence plate number of the truck parked in the carport at the George Street address – from the roadway or during their illegal search. It was night time, after 11:00 p.m., in a residential area. The pick-up truck was in an enclosure at the end of what the trial judge described as a “long” driveway. The only references in the police testimony to lighting were the police use of flashlights in the carport and the light from the kitchen at the rear of the home as the only illumination coming from the residence. Given these circumstances, and the impact of the Charter ruling, it cannot reasonably be said that there was admissible evidence of the truck from the restaurant being “tracked” to the home where the Appellant resided.

[74] Further, with exclusion of the police observations after entry to the George Street property, there is no evidence of the number of male persons in their 50s or 60s resident at the George Street address who may have driven the pick-up truck on March 23, 2012.

Whether the Verdict is Unreasonable

Positions of the Parties

[75] Mr. Stunt submitted that the verdict is unreasonable and unsupported on the evidence. Real caution is necessary in eyewitness identification cases. It was further argued that given that “there is no evidence other than the bare in-dock identification confirming that the party arrested matched the description in any way reported and broadcast on the date in question”, it could not be safely concluded that the Appellant was the person served by Mr. Vardy.

[76] It was alternatively submitted that in any event on the whole of the trial record it could not reasonably be said that the court properly assessed the issue of impairment to drive or that a conclusion of impairment to drive was a reasonable verdict.

[77] It was submitted by the Respondent that the properly admissible evidence reasonably supported the trial court’s findings that the Appellant was the driver of the truck which left Wings Up and that his ability to operate that vehicle was impaired by alcohol consumption. These were available and reasonable factual findings to the trial court.

Review Conclusions

[78] In light of this court’s conclusions respecting the identification evidence, it is unnecessary to consider the Appellant’s submission that the trial court’s finding of impairment to drive was unreasonable and unsupported on the evidence.

[79] Based upon the inconsistent descriptions of Mr. Vardy as to his customer’s appearance provided on March 23, 2012, the absence of evidence as to how the Respondent’s appearance on that date compared to any of those descriptions, the lack of a pre-trial identification procedure, the negligible probative value of the in-court identification, and the absence of cogent corroborative evidence, no properly instructed trier of fact acting with the necessary caution essential to eyewitness identification cases, could reasonably be satisfied beyond a reasonable doubt that the Appellant was the Wings Up customer encountered by Mr. Vardy.

CONCLUSION

[80] The appeal is allowed. The conviction is quashed and a verdict of acquittal entered.

Hill J.

DATE: February 26, 2014

COURT FILE NO.: 83/13

DATE: 2014 02 26

ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

RE: R. v. BRENDAN McDONALD

COUNSEL: A. Khoorshed, for the Respondent

P. Stunt, for the Appellant

HEARD: February 19, 2014

REASONS FOR JUDGMENT

[on appeal from a conviction of

June 3, 2013, by Cooper J]

Hill J.

DATE: February 26, 2014