ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1751/14
DATE: 20140617
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOSHUA NELSON ERDODI
NICOLE STONER, for the Crown
KENNETH MARLEY, for Joshua Nelson Erdodi
HEARD: April 30, and May 1, 2014
DESOTTI, J.
A. The Facts
[1] The accused, Joshua Nelson Erdodi, was charged with three offences as follows:
That on or about the 10th, day of August, 2013, at the City of Sarnia, in the Province of Ontario, he did steal a motor vehicle, the property of Steeves & Rozema of a value exceeding five thousand dollars, contrary to s. 333.1 (1) of the Criminal Code.
That on or about the 19th, day of August, 2013, at the City of Sarnia, in the Province of Ontario, he did by verbal means knowingly utter a threat to cause death to Gary Goodhew contrary to section 264.1 (1) (a) of the Criminal Code of Canada.
That on or about the 10th, day of August, 2013, at the City of Sarnia in the Province of Ontario, he did operate a motor vehicle disqualified from doing so by reason of a legal disqualification in the Province of Ontario of his right or privilege to operate a motor vehicle in that Province, contrary to s. 259 (4) of the Criminal Code of Canada.
[2] All of the requirements of the Criminal Code with respect to the elements that constitute these offences are conceded by defence counsel as having been established by the Crown beyond a reasonable doubt, save and except the issue of identity of the perpetuator of these offences.
[3] On the evening in question at approximately 8:31 P.M., police officers attended at a crash scene approximately two minutes after they had received a call at 8:29 P.M. A pickup truck, owned by Steeves & Rozema, had crashed into a tree just adjacent to an apartment complex situated at 150 Vidal St. in the City of Sarnia.
[4] Constable Musclow indicated that a party (eyewitness, but probably Gary Goodhew) at the scene had directed him towards an individual wearing knee high jean shorts and a dark T-shirt as the driver of the vehicle and who had walked away from the crash scene down Queen St.
[5] The Officer and his partner gave chase and saw the individual so attired go in and out of certain apartments on Queen St., only to disappear again behind one apartment. Just before the individual went behind this residence, the officers observed the individual toss something from his hand by a vehicle at this location. The object that the officer retrieved from this location was a red or orange handled pair of pliers.
[6] The officer then said he heard what he believed was the rattling of a chain link fence. Before he could continue the chase, he then heard from two other officers who were travelling down Vidal St. with their cruiser and indicated that they had apprehended a suspect who fit the description of the person that officer Musclow had been chasing. The time that they arrested Mr. Erdodi was approximately 8:40 P.M.
[7] This would have been an elapsed time of approximately 9 minutes after the officers arrived at the scene and perhaps 7 or 8 minutes after the chase of the suspected driver down Queen St.
[8] The accused was placed under arrest and appeared to be injured (blood on his hands) and a call was placed to an ambulance to transport the accused, identified as one Joshua Nelson Erdodi, to the Sarnia Hospital. Constable David attended with the accused in the ambulance, and eventually, blue jeans shorts and a black T-shirt that had been placed in a hospital bag, were confiscated. At the material time of the arrest, the accused, Erdodi was not wearing anything on his feet and neither shoes nor socks had been placed in this bag.
B. Analysis and Decision
[9] At trial, and I gather at the preliminary hearing, the accused, Joshua Nelson Erdodi, was identified as the person who exited the pickup truck by two witnesses at the scene, Gary Goodhew and another eyewitness, Gary Buchanan. Officer Musclow, who attended at the hospital at 9:50 P.M., also said that he was sure that the individual that he had been chasing was the same person he saw at the hospital, the accused, Joshua Nelson Erdodi.
[10] I have been asked by counsel for the accused to discount this evidence given by the two eyewitnesses who testified at this trial that the accused sitting beside his counsel is the same person they observed as the driver of the pickup truck that crashed into the tree on Vidal St. In addition, the identification of the accused at the hospital by Officer Musclow who stated that the individual at the hospital was same person he was chasing on Queen St. is also to be discounted based on the discussion of the frailties of eyewitness evidence in the decision of R. v. Jack and R. v. Hibbert.
[11] I agree! In Jack, the generic evidence of the two prime Crown witnesses was that a black man, who committed the robbery at their rental office, was 5’ 8” or 9” and had no distinguishable features of his appearance. He had properly used one of the witnesses’ first name and they believed he had rented from them on one prior occasion, although neither of the witnesses had served the accused, but they had a copy of his health card still on hand.
[12] The two witnesses were present with the accused for only a few short minutes and all the while a gun was pointed at them. The accused, in fact had two permanent gold front teeth and a 7 inch scar on his jaw and a 3.5 cm. tattoo on his left hand.
[13] In this case, both civilian eyewitnesses saw the accused only briefly and made in-dock identification of the accused and not through any photo identification process. With respect to the officer, he was running after an individual but never closed the gap between himself and this individual to any significant degree. His subsequent attendance at the hospital only reinforced his belief that the individual that was arrested by his fellow officers was the individual in the hospital and the individual that he had chased on Queen St.
[14] However, this does not end the matter, as the reliability of the in-dock identification by the two civilian witnesses, and the officer is only discounted or to be given little weight. Nevertheless, there is also significant other evidence that must be assessed that is provided by all of the witnesses that together completes this identification puzzle beyond a reasonable doubt.
[15] The witness Gary Goodhew indicated that the driver of the pickup truck had a brush cut; was wearing knee length shorts, and a light T-short (described the T-shirt at the preliminary hearing as dark); and was wearing neither socks or shoes; grabbed for a backpack in the vehicle; had blood on his arms; walked south on Queen St; was 6’ tall; a male about 24 years old; and he pointed out to an officer where the accused was walking “in and out” of houses on Queen St.
[16] Gernot Stegman indicated that the driver of the pickup truck used pliers to break the driver’s side window; he smelt alcohol in the truck; was barefoot although he thought he saw him bend down later to put on shoes; was wearing cut-off blue jeans; dark hair; 6’ tall and 25 plus year old male; went towards apartment by 150 Vidal St.; and had white skin.
[17] Gary Buchanan believed the driver had punched out the ignition; was wearing shoes; was wearing knee length blue jean shorts and a dark T-shirt; black hair; 6’ and between 20-30 years old white male; smelled alcohol on the accused; walked onto Johnson St. by apartment at 150 Vidal St.; dropped pliers; limped then walked fast.
[18] Officer Musclow was provided information by a witness at the scene that the driver of the pickup truck had fled on foot onto Queen St. Officer Musclow then observed this individual (who had been pointed out by this witness) with a dark T-shirt, knee length shorts, going in and out of residences/apartments on Queen St.
[19] At one townhouse/apartment building, he saw this individual toss something from his hand and then lost sight of this individual but heard what he believed was the clanking or rattling of a chain link fence (the inference by the officer was that the male that he was pursuing east towards the rear of this townhouse/apartment complex had jumped over the chain link fence).
[20] Before he could proceed to the fence, his fellow officer in a cruiser on the parallel street Vidal had indicated that they had apprehended a male party. The object that was retrieved was an orange pair of pliers. He thought the individual he was pursuing was wearing socks only.
[21] When officer Musclow attended at the hospital, he observed the accused, Joshua Nelson Erdodi with blood on his hands and he had a smell of alcohol. He seized at that time a pair of blue jean shorts and a black T-shirt. No socks or shoes were seized.
[22] Additionally, he indicated that when he first received the call at 8:29 P.M., he would have been only 2 minutes away from the scene. He would have begun the pursuit of the individual that he believed was the driver, shortly after arriving at the scene or at approximately 8:31 or 8:32 P.M. (my best estimate).
[23] I would also note that the individual that officer Musclow was pursuing was travelling in an eastward direction and thus if he had hopped the fence as officer Musclow inferred, he would be travelling in a direction towards Vidal St. The accused before the court was arrested on Vidal St. after officer David observed the accused, Joshua Nelson Erdodi, proceeding east from an apartment driveway onto Vidal St.
[24] Officer Soucek originally in his notebook indicated that he observed a male come out of a backyard area onto Brock St. but later corrected this street to Vidal. He also observed the accused to be wearing jean shorts, a black T-shirt, and nothing on his feet. The male party was 5’ 10” or 5’ 11” and 22-30 years of age. He observed a cut on the knee of the accused and acknowledged that the accused required medical assistance and was in some pain.
[25] This apprehension of the accused, Joshua Nelson Erdodi, occurred at approximately 8:40 P.M.
[26] Officer David, who effected the arrest and attended with the accused in the ambulance, observed that the accused was not wearing any socks or shoes, was a white male with a brush cut, had blood on his hands and a black T-shirt and shorts. He indicated that this white male was 5’ 8”, 185 lbs., in his 20’s or early 30’s, and seemed to be exhausted, excited, and actually came towards officer David. He also smelt alcohol on the accused, Erdodi.
[27] The Crown need not the establish guilt of an accused to a mathematical certainty, but beyond a reasonable doubt. I do not have a reasonable doubt for many reasons and this conclusion is arrived at absent any weight to the identification of the accused by the two civilian and one police witness.
[28] I should also add that there were some differences in what each witness and officer described from their respective observations on this evening both with respect to the description of the accused and about what they observed at the scene of the truck crash. Nevertheless, on balance their collective accounts of what occurred and what they viewed was similar, compelling, and for the most part on material points, consistent.
[29] The individual running from the collision of the truck into a tree on Vidal St. had to extricate himself from this truck by smashing out the driver’s side window with a pair of pliers. Mr. Gernot Stegman, Mr. Gary Buchanan, and officer Musclow (who sees an individual toss something that he discovers were pliers) all speak of the driver/individual, that left the accident scene, having or using pliers.
[30] There are some differences with respect to where these pliers were after their use on the window and their colour but the driver/individual walking, limping or running from the scene had at some point pliers on his person say three witnesses.
[31] Three civilian witnesses indicated that the driver/individual, who left the scene of the accident, was wearing knee length shorts, cut-off blue jeans, or blue knee length jean shorts.
[32] Officer Musclow, who was called, indicated that the person he was chasing was wearing jean shorts, knee-high and a black T-shirt. He seized a black T-shirt and jeans at the hospital, which are now filed as an Exhibit. The jean shorts are indeed blue in colour.
[33] Officer Soucek indicated that the male that he and his partner arrested was wearing a black T-shirt and knee length jeans shorts.
[34] Officer David indicated that he arrested a male who matched a description he was given and was wearing a Black T-shirt.
[35] The three civilian witnesses differed on what he was wearing by way of a shirt. With two civilian witnesses describing it as a T-shirt, one describe it a lighter, one did not know what the driver/individual was wearing and one described the shirt as dark.
[36] Three civilian witnesses described the driver’s hair as brown, dark or black. One civilian witness, Mr. Goodhew, who had directed an officer to the location where he observed the driver who had left the scene, described the hair cut as a brush-cut. Officer David described the person he arrested as having a brush cut. Officer Soucek described the hair as short. None of the officers described the colour of the hair of the individual running or the colour of the hair of the person that was arrested.
[37] The three civilian witnesses and the three officers all estimated the age of the accused between Twenty and early thirties with the three civilian witnesses’ placing this age between twenty and thirty.
[38] Two civilian witnesses smelled alcohol, one from the truck and one on the accused breathe as he walked by this witness. All three officers smelt alcohol emanating from the arrested party.
[39] Mr. Goodhew and the three officers saw blood on the individual that was arrested or the individual that fled the scene of the accident. This blood was seen on the arms, hands and even the knee of the arrested party.
[40] The three civilian witnesses all indicated the same direction for the departing or fleeing driver of the truck.
[41] Officer David described the person that he arrested as someone who appeared excited and exhausted. A fair inference from this description was that the person who he arrested had shortly before his arrest significantly exerted himself. Obviously, I infer, that had this individual that was arrested been the individual that had been pursued by officer Musclow, this might account for this description of physical exertion.
[42] The arrested party needed medical attention. Officer Soucek noted that the individual that his partner had arrested was in pain. Officer David summoned an ambulance to attend the scene as he was made aware that the arrested party needed medical attention. Officer Musclow describes the force of the impact on the truck to be severe and thus a likely inference is that the driver of the truck may have sustained some injury.
[43] Defence counsel opines that the accused, who was in obvious breach of his parole, may have ran from the police to avoid an arrest and may have hurt himself if he had tried to scale the chain link fence as officer Musclow surmised.
[44] This submission begs the more obvious question, how is it that the accused happened to find himself proximate to an accident scene and then coincidently happened to find himself in the precise same area that a witness observed a similarly dressed driver flee the scene of an accident? While I can understand why someone might seek to avoid the police to avoid an arrest for a parole violation, how is it that an officer or any officer would know this fact about the accused should he merely be going about his business on this lovely August evening?
[45] The other most significant and telling piece of evidence is that the accused and the driver were not wearing footwear or socks at the time of the arrest. Ambling about upon the streets of Sarnia in and out of apartment complexes on an August evening is not unusual; not wearing shoes and socks while on this same sojourn is certainly a most significant occurrence. The fact that two civilian witnesses observed this strange lack of footwear occasioned on the person of the driver of the truck who crashed into the tree, makes it most convincing and beyond a reasonable doubt that the arrested party and the driver were one and the same.
[46] In addition, the proximate time of the accident (mere minutes) to the chase and pursuit of a party that matched the description of the driver of the crashed pickup truck; the location of the party re-emerging from an apartment complex back onto Vidal St. mere seconds proximate to the pursuing officer’s indication to the patrol car on Vidal that the accused “went over the fence” indicating that the pursued party was travelling in an easterly direction towards Vidal St.; the exhaustion of the arrested party, his medical problems, the blood on his person, the smell of alcohol, convinces me beyond a reasonable doubt that the arrested party, Joshua Nelson Erdodi, and the driver of the truck were one and the same person who fled the scene of the accident.
[47] There will be a finding of guilt on Counts #1, #2, and #5.
“Justice J.A. Desotti”
The Honourable Mr. Justice John A. Desotti
Released: June 17, 2014
COURT FILE NO.: 1751/14
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JOSHUA NELSON ERDODI
REASONS FOR JUDGMENT
Desotti, J.
Released: June 17, 2014