ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: 2237/12
DATE: 20140428

B E T W E E N:

HER MAJESTY THE QUEEN

LIA DI GIULIO, for the Respondent/Crown

Respondent

• and -

JOHN HUMENICK

TYLER MacDONALD, for the Appellant

Appellant

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable J. Casey, dated May 25, 2012]

DURNO J.

[1] Two mini-vans were leaving the parking lot of a bar shortly after one o’clock in the morning. The second vehicle was deliberately driven into the back of the first vehicle. Both drivers got out and a verbal altercation occurred. The driver of the second vehicle got back into the driver’s seat and drove his van out of the parking lot with the assistance of other people who were pushing the mini-van. Citizens pointed out the van to an attending police constable who followed the vehicle until it stopped in a cul-de-sac surrounded by condo buildings. The driver got out of the van, looked at the officer and ran away. The officer chased the driver but lost him behind one of the buildings. The canine unit was called and a tracking dog led an officer to where the appellant was found. Three witnesses identified the appellant as the driver of the mini-van that drove into the first mini-van and left the scene.

[2] At his trial on charges of impaired operation, driving having consumed excess alcohol, dangerous operation, and two counts of uttering threats[^1], the issue was whether or not the Crown could establish beyond a reasonable doubt that the appellant was the driver of the second vehicle. That his ability to operate a motor vehicle was impaired by the consumption of alcohol and his blood alcohol level was over the legal limit at the time of the driving, as well as, that the driving was dangerous and the driver left the scene of the accident were not contested.

[3] The trial was initially estimated to take 2 days. It started on November 30, 2010. The judgment was delivered on May 25, 2012, after evidence and submissions were heard over ten days. The appellant was found guilty of impaired operation, dangerous operation, driving having consumed excess alcohol and failing to remain at the scene of an accident.

[4] He appeals contending: the trial judge misapprehended the evidence by failing to appreciate the significance of the different flight routes described by the first officer on the scene and the canine unit officer and in failing to appreciate the features of the observed driver that were inconsistent with the appellant’s appearance. He also submits that the trial judge erred in failing to factor in the frailties of identification evidence into his findings of fact. Mr. MacDonald stresses that the appeal does not allege the verdicts were unreasonable.

[5] For the following reasons the appeal is dismissed.

The Trial Evidence

[6] On October 30, Torunn Lohnes and Cindy Poff went to the Crocodile Rock bar. While there, they spent time with a number of persons including Pitor Wlochowicz and a couple of minutes with a younger man. Ms. Lohnes said that as she was in the parking lot leaving she called out, “Goodbye Mimico” to that younger man. He was not the appellant. The young man started yelling back at her, “What are you talking about, Mimico?” Ms. Lohnes got into her Chrysler van with Cindy Poff and Pitor Wlochowicz and drove out of the parking lot. As she was driving out, her van was struck in the rear by a Ford Windstar van causing significant damage to the bumper, quarter panel and trunk.

[7] Ms. Lohnes said that when she got out of her van she saw the appellant seated in the driver’s seat of the vehicle that struck her. She said she had not spent time with him in the bar. Ms. Lohnes called 9-1-1 and gave the operator the licence plate number of the vehicle that struck her. While she was on the phone, the appellant was attempting to start his vehicle and was yelling and swearing at her, asking if she was calling the police. When she said she was, he said he was going to kill her. With the assistance of others, the appellant got his vehicle going and left the parking lot. Ms. Lohnes told police the driver of the vehicle that struck her was a male, white, with a tattoo on his neck, short hair, wearing a gold necklace and white T-shirt. When testifying she identified the appellant as the driver who rammed her van, but had never been shown a photo line-up or attended an identification line-up.

[8] Pitor Wlochowicz testified he had a total of eight or nine beers before he went to the Crocodile Rock and while there. He accepted Ms. Lohnes’ offer to drive him home. Inside the bar he had seen Ms. Lohnes and Ms. Poff speaking with a male he described as having a shaved head, a tattoo on his neck, and wearing blue jeans and a white T-shirt. When Wlochowicz was offered a ride, the male the women were speaking to said to him, “Do you want to die? I’ll shoot you.”

[9] James Gaudet, an off-duty York Regional Police officer, was outside of the Crocodile Rock and saw a mini-van drive across the parking lot followed by another mini-van that started to smash into the rear of the lead vehicle. He saw both drivers get out of their vans at which point the woman driving the first van was on her phone very quickly. The driver of the vehicle that was smashing into the first van, had someone push his vehicle and rolled down the hill out of the parking lot. Shortly thereafter, the police arrived.

[10] James Gaudet described the male driver as a white male with short hair. He had a tattoo on his neck, although he did not know what side it was on. It was a little bit towards the front and lower on the neck so that if he wore a high collar it might not be visible. He had baggy type pants although he did not remember if they were jeans and he did not remember the shirt exactly. He continued, “Yeah, something is telling me that it was a while --- like a t-top type thing.” He was asked what he meant by a t-top and he replied, “A tank top, like no sleeves. It was a lighter colour.” The man was also wearing removable grills, a crystal, gold or silver cap that goes over teeth.

[11] He had spoken with the man earlier outside the bar between 1:00 and 2:00 a.m. The witness concluded the driver was drunk because when he met him in the bar he had a bottle of vodka in his pocket and was sharing drinks. The bottle still had the bar nozzle on it. He offered the officer a drink while they were outside. He was fairly intoxicated. Mr. Gaudet was not asked to identify the appellant in or out of court.

[12] Derrick D’Souza, was employed as security at the Crocodile Rock and went to the parking lot after the music was shut down at 2:00 a.m. When he saw two damaged vans in the parking lot, he went over to see the damage and saw a male get out of the driver’s seat of one of the vans. He spoke with the driver whom he described as a white male, skinny, about five foot eight inches tall, with short hair and with a tattoo on his neck, and wearing a T-shirt. The man was intoxicated and had a strong odour of alcohol on his breath. He had seen him leave the bar not able to walk straight and his balance was off. He had dealt with the male earlier in the evening when he asked for bottle service. Mr. D’Souza testified the appellant got back in the van, attempted to start it and of the van being pushed. He identified the appellant as the person who was in the bar and who drove the vehicle that struck Ms. Lohnes’ van but had not been shown a photo line-up or attended an identification line-up.

[13] Constable Oliveira responded to the 2:47 a.m. radio call that included the make, model, licence plate number and colour of the van. She arrived at the tavern three minutes later and saw the van making its way down from the parking lot to Tucana Drive. There was only a male driver in the vehicle. He made eye contact with the officer as he left the parking lot in front of her.

[14] The van driver made a left turn in front of the officer and continued on Tucana for 10 to 15 car lengths at 20 to 30 kilometres an hour before pulling into the driveway at 4460 Tucana Court. The driver got out of the van, turned and looked at the officer, turned away and started running towards the front of his vehicle. The officer yelled, “Police, stop” to no avail as the driver continued running behind the building at 4470 Tucana Court. The officer chased him but lost sight of him because it was dark behind the building. She examined the van and found there were no keys inside and damage to the front bumper and both front headlights.

[15] Constable Oliveira described the driver as a male white, in his late teens with a buzz cut, wearing a white T-shirt and blue jeans. He had star shaped tattoos of different sizes and shapes on one of his forearms. The officer identified the appellant as the driver and the person she saw later that night at the station at roughly 4:20 a.m.

[16] Constable Vanderspek from the canine unit arrived at 3:04 a.m. He was given information by Constable Oliveira including the location where she last saw the driver and that she had seen no one else go in that direction or cross-over the driver’s track. P.C. Vanderspek deployed his police dog, Bosco, starting at the last known location, obtaining a good track going southbound behind the building. The dog’s signs indicted to him that it was a very fresh track that led to Kingsbridge Garden Circle. Throughout the approximately 400 metre route that took about 10 minutes to cover, they ran into no other persons. The officer was led through the front lawns on Kingsbridge Garden Circle until he saw a male, matching the description he had been given, slightly crouching between two parked cars in the driveway at 87 Kingsbridge Garden Circle. The officer felt that all the conditions were such that it was highly successful for canine tracking.

[17] Constable Bold arrived at the scene at 3:11 a.m. He had been given the following description of the driver: male, white, slim, shaved head, wearing a white T-shirt, blue jeans and with a blue bandana in his back pocket. He saw the appellant lying on the ground, sprawled out near the dog and P.C. Vanderspek. The appellant was arrested for impaired operation and taken to the cruiser. While going to the car, the officer detected a strong odour of alcohol coming from the appellant’s breath. He was unsteady on his feet and had to be assisted by the officer. The appellant provided breath samples that analyzed at 163 and 152 milligrams of alcohol in 100 milligrams of blood.

[18] Constable Beaulieu also responded to the scene and later saw the appellant at the station. He described him as male, white, five-eight, slim build, brown eyes, a tattoo on his neck that said, “Bibo” and a star tattoo on his forearm.

[19] The appellant called no evidence.

The Reasons for Judgment

[20] The trial judge reviewed the evidence and the positions of the parties, the reasonable doubt standard, the factors he considered in assessing the witness and continued:

I believe that all of the witnesses who testified in this matter were genuinely attempting to assist the court with as accurate a recollection of the matter as possible. It is however, important to recall that the witnesses were testifying to events that were more than two years earlier and as such I believe that some loss of recollection would inevitably occur. I also appreciate that human memory is not the same as video or photograph, as has been noted by Justice Charron, speaking to the Court of Appeal in R. v. Miaponoose, [1996] 0.J. No. 3216. [quotation omitted]

[21] His Honour noted that the witnesses who were present and able to make the same observations have testified to different recollections. For example, Constable Otrin said the appellant was walking westbound on Kingsbridge Garden Circle when he called out to him, while Constable Vanderspek had the appellant crouching down between two cars at that time. While His Honour believed each witness was genuinely attempting to assist the court with their best recollection, in light of the passage of time, care had to be taken in assessing the evidence of the various witnesses.

[22] In dealing with the Charter application, which is not the subject of a ground of appeal, His Honour noted his concerns with the reliability of Constable Otrin’s evidence. In significant aspects it was inconsistent with the evidence of other officers whose evidence His Honour accepted.

[23] With respect to the trial, His Honour acknowledged the appellant’s arguments including the divergence with respect to the routes Constable Oliveira testified to including that the driver ran “into a bush” and the tracking dog’s route that did not go through bushes. It was, however, important to recall the evidence of Officer Oliveira regarding what she observed when she saw the van exiting the Rabba parking lot. She saw the van at the top of the exit coming down the hill. There were a few people running and pointing at the van although she did not recall what they looked like or where they went. They did not come to her location. There was no evidence that those persons or anyone else ever went along Tucana Court to where the van came to rest or that prior to other police officers arriving, anyone came to the area where Officer Oliveira was or where the van came to rest.

[24] His Honour later referenced Mr. MacDonald’s submissions regarding the differences in the routes indicated on exhibits 8 and 10 and reviewed Constable Vanderspek’s evidence on that issue from the transcript. P.C. Oliveira told him she saw the driver take off northbound behind the high rises and pointed him to the last location that she saw him, “a dark shady area, not shady dark because of the night.” He set out the approximate route he was pointed to by Constable Oliveira on the Google map exhibit, having commenced the dog’s track on the east side of the building, although he was not one hundred percent certain which building he was near on the Google map.

[25] Constable Oliveira told him the last location he was seen and that he had left the vehicle so he “cut the track,” meaning he brought the dog somewhere between the van and the last spot the driver was seen running and cut him into the track.

[26] His Honour addressed the appellant’s submission regarding the divergence between Constables Oliveira and Vanderspek regarding whether the driver ran into the bush using the transcript. Constable Oliveira testified she chased the driver for probably half a kilometer, from one building to another building and then she lost sight of him when he went behind one of the buildings. As she went around the back, he went into a bush area. It was really dark there and she lost sight of him. When he disappeared into the bushes he was probably three to four car lengths from her. It was total darkness. When asked if he went into bushes or trees, the officer said there were bushes and trees in that area. She did not know whether he went into the bush or just went among the trees. By the time she turned on her flashlight, she could not see him or his movements as he moved through the bush. All she saw when she shone her flashlight was both trees and bushes “in that area.” The bush was “pretty big” and did not move at all when she shone her flashlight. While she initially said she did not know the size of the bush, she then said it was maybe a car length wide. The driver pretty much vanished.

[27] His Honour noted from the exhibits that there appeared to be a substantial bush or tree growth in the area behind the buildings, concluding that he was not satisfied that there was any significant inconsistency between the officers on that issue. While Constable Oliveira did not see any tattoo on the driver’s neck, she made her observations when she saw the driver run from the van. He referenced the description she provided to dispatch, Constable Bold’s evidence whether the appellant matched the description and concluded he was satisfied and found the appellant was the driver who left the van and fled.

[28] The trial judge noted that while there was no photo line-up that Ms. Lohnes and Derek D’Souza identified the appellant in court. His Honour also noted the concern and caution regarding eyewitness identification, including that it should be accorded little weight, that there was a very weak link between the confidence level of the witness and their accuracy. However, there was other evidence that supported the identification. Two witnesses said the driver at the time of the collision jumped back into the van and continued to steer it. Those observations coupled with being satisfied the appellant was the person who fled from the van when the police arrived, led significant support to the eyewitness identification.

Grounds of Appeal

Misapprehension of Evidence

[29] A misapprehension of evidence includes: 1) a failure to consider evidence relevant to a material issue; 2) a mistake as to the substance of the evidence; or 3) a failure to give proper effect to evidence. R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (Ont. C.A) at para. 83. Here, the appellant alleges the Reasons for Judgment reflect misapprehensions in each of the noted areas.

[30] The misapprehension of evidence must go to the substance of the reasons, rather than the detail. It must be material rather than peripheral to the trial judge’s reasoning and relate to material parts of the evidence. The errors must play an essential part in the reasoning process resulting in a conviction. R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732; R. v. Sinclair 2011 SCC 40, [2011] 3 S.C.R. 3.

Did the trial judge misapprehend the evidence by failing to give proper effect to evidence: in relation to the path taken by the driver and the appellant’s path as determined by the police dog?

[31] The trial judge found that there was no significant discrepancy between the path the canine dog tracked the appellant and the path Constable Oliveira said the driver took. The appellant submits there was a significant discrepancy, the driver went “into the bush” behind the building while the track the dog followed never went into the bush. The routes the two witnesses marked out on exhibits 8 and 9 were also different. Accordingly, the paths are different and the appellant could not have been the driver. This misapprehension of the evidence infected the balance of the judgment because His Honour noted the inherent weaknesses of the in-court identification were supported by the dog tracking and Constable Oliveira’s evidence.

[32] In addition to the transcript excerpts referenced in the Reasons, the appellant notes other areas where Constable Oliveira addressed these issues. For example, she said, “… after he gets into those bushes I lose sight of him,” and it was a treed bush area with trees going up high and bushes along the ground. In relation to Constable Vanderspek, he said that P.C. Oliveira pointed out to him where the driver disappeared into the darkness, that based exclusively on what the dog was telling him, he could not tell if the track was recent although it was a strong track, the track went through a ravine area, they did not go through any forest, they were on the edge of the forest part of the ravine, there was a bit of a green area in between and that was the way they went, the dog did not go through “a huge bush or anything,” he went behind the high rise, and around the ravine area. The officer did not remember going through any thick forested area, and there were no obstacles.

[33] The Crown contends there was no discrepancy. The one time P.C. Oliveira was directly asked if the driver ran “into the bush,” she said she did not know. While at times she was vague in regards to details, there was evidence from which it could be concluded there was no inconsistency. Neither the driver nor the appellant’s paths went “into the bush".

Analysis

[34] This ground of appeal requires a brief outline of the Reasons and the evidence of Constable Oliviera and Constable Vanderspek.

[35] His Honour correctly identified the issues with respect to whether or not the driver disappeared into a large bush as Constable Oliveira said at parts of her evidence, P.C. Vanderspek’s evidence the dog did not go through or into a bush and whether one of the other people who were running by the van could have been the appellant that the dog tracked. The officer did not know where those people went (p. 17). The trial judge returned to address the argument and repeated it (pp. 28 and 35). He outlined the submission including the absence of any mention by Constable Vanderspek of the track going through the type of bush described by Constable Oliveira. It is the appellant’s submission that this is a clear misapprehension of the evidence because Constable Vanderspek said the track did not go through a large bush.

[36] The trial judge found there was no evidence that any of the persons running beside the van as it left the parking lot ever went along Tucana Court where the van came to rest or to the area where it came to rest. Accordingly, there was no evidence any of those persons fled behind the buildings.

[37] When addressing the different routes issue, His Honour referred to the transcript for about four pages in quoting what both officers said. Constable Vanderspek said P.C. Oliveira told him she last saw the driver in a dark shady area, he had run on the left side of the building and behind it, that no one else had crossed the area, he was last seen running to that green space and that he was directed to “green space on the left side.” He said his marking of the route on the exhibit was “just approximate” and that he was not one hundred percent sure he had the vehicle in front of the right building. Bosco had started the track from the van and went right to where Constable Oliveira last saw him running.

[38] As regards Constable Oliveira’s evidence, she testified that the driver went around the back of the building and into the bush area where it was really dark and she lost sight of him. When asked if she saw him go into the bushes she said, “Into the bushes.” It was total darkness behind the building, there were bushes and trees in that area. She was asked:

Q: Okay, do you know what he did? Do you know whether he went right into the bush or just among the trees?

A: I don’t know.

[39] When the officer shone her flashlight at the location where she last saw him she saw a tree and a pretty big bush that was maybe one car length long. When she turned it on she did not see the bush move nor anything that indicated the driver went into the bush. She heard nothing. The driver pretty much vanished. She later said in cross-examination that she did not run after him after she lost sight of him because she was not sure what way to go. In addition, she did not think it was safe to continue, she did not know what he had done at that point, whether he had hid or something, she could not hear anything.

[40] I am not persuaded the trial judge erred for the following reasons. First, while His Honour did not quote from each and every time “into the bush” was mentioned in the transcript, he was not required to do so. The excerpts the trial judge quoted from set out the discrepancies. The Reasons make it abundantly clear that the trial judge was alive to the issue.

[41] Second, it is readily apparent that Constable Oliveira was less than a model of consistency in her evidence. She repeatedly said he went into the bush, but also said he went into the bush area, that he just vanished, and when asked directly she said that she did not know whether he went into the bush.

[42] The appellant contends that her evidence is clear that the driver ran into the bush. One could only reach that conclusion by rejecting or discounting her answer that she did not know whether he went into the bush. His Honour was required to consider all of her evidence and determine whether there was a discrepancy between the routes, including whether, as the appellant argued, that discrepancy eliminated him as the driver. It is implicit in the Reasons that the trial judge recognized the argument, considered all the evidence yet did not reach the conclusion the appellant sought.

[43] Third, the appellant relies upon the sixth answer the officer gave after she said she did not know if he went “right into a bush or just went among trees” as qualifying or clarifying her answer that she did not know if the driver ran into the bush. The officer said that when she turned her flashlight on “the spot where he disappeared into” she saw “both trees and bushes in that area.” She was then asked, “Okay. But what did you see when you shone your flashlight onto the spot that he disappeared into?” The officer replied, “… both. A tree and a bush.” Given the lack of precision in the officer’s evidence and perhaps in the questions asked at that point, I am not persuaded that “the spot that he disappeared into” should be read as qualifying her earlier answer that she did not see him go into the bush.

[44] While another judge might have assessed her evidence differently, that is not the test in relation to an alleged misapprehension of evidence. That the trial judge did not give her answers about him going into the bush the weight the appellant sought, does not establish a misapprehension of evidence based on the failure to give those answers the proper effect. It was clearly open to the trial judge to conclude that Constable Oliveira simply lost site of the driver behind the buildings when he ran into the area of the bush and trees and that he vanished behind there. Despite shining her flashlight into the bush and trees area, there was no indication he had gone into the bush.

[45] As regards the submission that His Honour misapprehended the evidence when he noted the absence of any mention be Constable Vanderspek of the track going through the bush when the officer said the track did not go through a large bush, I am not persuaded there was a misapprehension. The effect of His Honour’s comment was Vanderspek did not say the track went into the bush. I am not persuaded that the effect of “he said nothing about the track going through the bush” and “he said the track did not go through the bush” is significant.

[46] Returning to misapprehension of evidence noted earlier, this evidence is not about details. It is about the substance of the reasons. Without this analysis, the judgment would be on unsteady ground. However, the trial judge set out the inconsistencies. It cannot be said that he failed to consider evidence relevant to a material issue, or that he made a mistake as to the substance of the evidence. He acknowledged and quoted the discrepancies from the transcript. The effect of the appellant’s submission is that the trial judge failed to give proper effect to the evidence. I am not persuaded that is so. No doubt, P.C. Oliveira’s evidence was inconsistent within itself. His Honour was well aware of everything that both witnesses said. Her evidence included that she did not know if the driver ran into the bush. I am not persuaded the trial judge’s conclusion that there was not any significant inconsistency reflects a misapprehension of the evidence.

Did the trial judge misapprehend the evidence by failing to consider relevant evidence: in relation to the features of the observed driver and those of the appellant?

[47] The appellant submits there were significant inconsistencies between the driver and the appellant, such that the identification evidence was exculpatory. There was evidence that the driver’s white shirt was either a tank top or sleeveless while the appellant wore a T-shirt. In addition, the appellant wore black jeans and the witnesses described the driver as having blue jeans. Finally, Constable Oliveira did not see anything like a