ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA (P) 62/14
DATE: 20141124
B E T W E E N:
HER MAJESTY THE QUEEN
Peter Maund, for the Respondent
Respondent
- and -
NANCY TURNER
Mark Halfyard, for the Appellant
Appellant
HEARD: November 10, 2014
REASONS FOR JUDGMENT
[On appeal from the judgment of P.R. Currie J.
Dated December 9, 2013]
F. Dawson J.
[1] Nancy Turner appeals from her conviction for impaired driving by Justice P.R. Currie of the Ontario Court of Justice on December 9, 2013. The conviction followed a two day trial where the principal issues were whether the appellant was the driver of a vehicle involved in a parking lot “hit and run” accident and whether she was impaired at the time of that driving. The trial judge found against the appellant on both issues.
[2] The appellant submits that the verdict is unreasonable both with respect to her identification as the driver and as to her impairment at the time of the accident. She also submits that the trial judge erred by focusing his analysis of impairment on the time frame when the appellant had returned to the scene and was speaking to the police rather than on the time of the accident.
[3] The appellant further submits that the trial judge erred by using an out of court description of the driver which was given by a witness to the police but which the witness herself was not asked about while testifying, as substantive evidence of identification. That description was led from a police officer. The trial was conducted as a blended trial and voir dire on a s. 8 Charter application in which it was argued that the police did not have reasonable grounds to demand a breath sample from the appellant. There is no doubt the description led through the police officer was admissible on that issue. However, the appellant contends this evidence was also used improperly on the identification issue because it was not led through and adopted by the witness who gave the description.
Factual Background
[4] The appellant was a regular customer at a Keg Steakhouse in Brampton located near where the accident occurred. The restaurant manager, Charlene Trahan, testified that she had seen the appellant sitting at the bar for several hours on the evening in question. At some point one of her servers advised Ms. Trahan that the appellant had left to get her debit card so she could pay her bill. This last item of evidence was not used for a substantive purpose. Ms. Trahan testified that she could not recall whether the appellant exhibited signs of intoxication.
[5] Ms. Trahan heard there had been an accident in the parking lot and she went outside. There she encountered a customer, Stacey Lee, who provided her with a business card on which she said she had written the licence plate number of the car involved in the accident which had left the scene. Ms. Trahan went back into the restaurant, called the police to report the accident and provided the police with the licence number she had been given by Ms. Lee. By then Ms. Lee had left with her friends. Ms. Trahan testified that the appellant was not in the restaurant when she came back inside to call the police.
[6] A short time later Ms. Trahan learned that the appellant had returned to the restaurant. Ms. Trahan called the police again to advise them that the appellant had returned. She met with the appellant and obtained the appellant’s car keys. Ms. Trahan and the appellant then went to look at the appellant’s car. The car was inappropriately parked on an angle across more than one parking space. There was damage to the front bumper. The licence plate number matched the one given to Ms. Trahan by Ms. Lee.
[7] Two police officers were involved in the investigation. Cst. Dawe testified that he received a radio call at 11:07 p.m. about the accident. He drove around the area looking for the suspect vehicle. He heard a second radio call reporting that the driver had returned to the restaurant and he attended there, arriving at 11:25 p.m. By this time Cst. Sterns was already in attendance. Cst. Sterns testified she heard the first radio call at 11:09 p.m. and drove around the area. She was uncertain of the time she arrived at the restaurant.
[8] Cst. Dawe described speaking with the appellant in the foyer and outside the front of the restaurant. He described the appellant as extremely intoxicated; “hammered”. Cst. Sterns also described symptoms of impairment but less dramatically. However, the officers did not have any evidence that the appellant had been driving until Cst. Dawe spoke to Stacey Lee by telephone at approximately 11:30 p.m.
[9] Cst. Dawe testified about the details of a description of the driver involved in the “hit and run” that was given to him by Ms. Lee over the telephone. Cst. Dawe testified that the description fit the appellant “to a T”. When this information was relayed to Cst. Sterns she arrested the appellant. Cst. Dawe also testified that the licence number on the appellant’s vehicle was the same one he had received via radio. The appellant was the registered owner of the vehicle.
[10] Stacey Lee testified that as she was leaving the restaurant she heard a collision and then looked and saw a black hatchback, which had hit an SUV, back up and drive towards her. The vehicle came within five to seven metres of her in the well-lit parking lot. She testified she recognized the driver as a woman who had been sitting at the bar in the restaurant for the 30 to 45 minutes Ms. Lee was in the restaurant. During that time Ms. Lee said she was sitting about five metres away from the appellant. After the accident people were chasing the vehicle yelling for the driver to stop.
[11] Ms. Lee testified that, although she was not asked for a written statement until approximately one month later, she spoke to the police by telephone on the night of the accident. However, no one asked her whether she provided a description of the driver during that conversation. Consequently, the only evidence of the description Ms. Lee provided came from Cst. Dawe.
Analysis
The Unreasonable Verdict Submission
[12] The test for whether a verdict is unreasonable is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. The appellate court is entitled and required to engage in a limited re-weighing of the evidence for the purpose of determining, in a judge alone trial, whether the evidence is reasonably capable of supporting the trial judge’s conclusion. If it is, the verdict stands unless there are other forms of error. See R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, 36 C.C.C. (3d) 417; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Simmons, 2001 5581 (ON CA), [2001] O.J. No. 1959, 146 O.A.C. 48, at para. 13.
[13] As acknowledged by the respondent in its factum, the Court of Appeal has stated that s. 686(1)(a)(i) of the Criminal Code (the unreasonable verdict provision) is often invoked in cases which turn on eyewitness identification evidence: R. v. Biddle, 1993 8506 (ON CA), [1993] O.J. No. 1833, 14 O.R. (3d) 756 (C.A.). At para. 14 of that case Doherty J.A. indicated this will particularly be so “where the potential probative force of the identification evidence is undermined by improper identification procedures.” Doherty J.A. also noted that “the assessment of the probative force of eyewitness evidence does not often turn on credibility assessments, but rather on consideration of the totality of the circumstances pertinent to that identification.”
The Identification Issue
[14] The only direct evidence identifying the appellant as the driver came from Stacey Lee. She made an in court identification of the appellant. The appellant submits that Ms. Lee had a relatively brief opportunity to view the driver following the accident, stresses that Ms. Lee had no reason to concentrate her attention on the appellant inside the restaurant and submits this is not a case of true recognition. As the equivalent of an “in-dock” identification the in-court identification had little weight.
[15] The appellant also relies on the fact that the trial judge said he did not need to hear from the Crown in response to one of the defence arguments at trial based on the frailties of eyewitness identification. The trial judge prefaced that determination by referring to the evidence that Ms. Lee had observed the appellant inside the bar for an extended time period. Counsel submits that the trial judge abdicated his responsibility to screen the eyewitness identification evidence due to its known frailties and the acknowledged potential for a miscarriage of justice in eyewitness identification cases.
[16] The appellant’s concerns about eyewitness identification evidence are well supported by authority. However, a review of the trial judge’s reasons reveals that he relied on a combination of many factors to reach his conclusion on identification. As mentioned in Biddle at para. 41, the reasonableness of a verdict which turns on the force of identification evidence requires an assessment of all of the circumstances which have a bearing on the identification issue.
[17] While Ms. Lee’s evidence is weakened by the fact that there were no pre-trial identification processes that would assist in evaluating her evidence, and the in-court identification must be considered as having little weight, it is of some significance that she saw the driver just a short time after she had been sitting close to the appellant for a considerable period of time. Respectfully, I think it is stretching what occurred to say the trial judge abdicated his responsibility because he did not call on the Crown in relation to one submission. There was also a body of circumstantial evidence that had to be taken into account. There was other evidence that the appellant was sitting at the bar as Ms. Lee said she was. There was no evidence the appellant was with anyone else. The appellant was not in the restaurant when Ms. Trahan re-entered the restaurant to report the collision. The vehicle involved in the accident was the appellant’s vehicle. The licence plate number was recorded at the time of the collision. The vehicle was observed by both Ms. Trahan and the police to have front end damage after the appellant returned.
[18] On the basis of all of this evidence, both direct and circumstantial, it was open to a properly instructed and reasonable trier of fact to reach the conclusion the trial judge reached notwithstanding the well-known frailties of eyewitness identification evidence. The appellant did not testify or call any evidence and the trial judge’s conclusion was reasonable and supported by a consideration of the totality of the evidence he had before him.
The Impairment Issue
[19] The appellant points out that while she was at the bar for several hours there is no evidence about what or how much she consumed at the bar. The manager did not say the appellant showed signs of impairment. There was evidence the bar staff had taken the “Smart Serve” program and would not knowingly “over serve” patrons. Ms. Trahan explained this by saying that bartenders and servers would inquire of patrons as to how they were getting home.
[20] Appellant’s counsel emphasizes that on the evidence the appellant may have been gone from the bar for up to an hour and so her condition when she returned was not necessarily indicative of her level of impairment when she left. In addition, she was seen by a server, James Scarlet, in the bar area after she returned and so there was a potential for the post-driving consumption of alcohol.
[21] I acknowledge that these were features of the case that tended to work in the appellant’s favour. However, there was other evidence the trial judge relied upon which, in combination, is reasonably capable of supporting the conclusion reached by the trial judge. The trial judge was alive to the factors that could assist the appellant. However, on his view of the evidence they did not carry the day. For example, the trial judge considered the submission that there could have been post-driving drinking. He observed that there was no direct evidence of such drinking and reviewed what evidence there was which had a circumstantial bearing on that issue. He concluded that evidence did not raise a reasonable doubt in his mind on the impairment issue. That was an entirely reasonable conclusion on this record.
[22] The trial judge acknowledged that most witnesses were uncertain about times. However, he reviewed the evidence of the various witnesses and drew certain conclusions about times that narrowed down the time frame between the accident and the return of the appellant. I am not persuaded his conclusions concerning the timing of events were unreasonable. Those conclusions were open to him on the evidence.
[23] Turning to the other aspects of the evidence which in combination support the conclusion the appellant was impaired, I note the following, all of which were referenced at one place or another in the trial judge’s reasons:
(1) The appellant was present in the bar for several hours before the accident.
(2) There was a motor vehicle collision between the appellant’s vehicle and a parked motor vehicle. The inference is the appellant caused that collision.
(3) The appellant drove away although she was being chased by people who were yelling at her to stop.
(4) When the appellant returned her vehicle was inappropriately parked diagonally taking up more than one parking spot.
(5) Shortly after returning to the restaurant the appellant was seen to be grossly impaired by alcohol. Cst. Dawe described her as “hammered”. There were numerous symptoms of impairment. The inference is that this advanced state of intoxication did not arise suddenly.
(6) There was no evidence of post-driving consumption of alcohol.
[24] Based on a consideration of these factors in combination I am of the view that the trial judge’s conclusion that the appellant was impaired is both reasonable and supported by the evidence. This branch of the unreasonable verdict ground also fails.
Did the Trial Judge Err in His Analysis of When the Appellant was Impaired?
[25] In his reasons for judgment at p. 7 the trial judge said: “On all the evidence before me, I am satisfied that at the time the officers saw and spoke with Ms. Turner, her ability to operate a motor vehicle was impaired by alcohol”. The appellant submits that this statement demonstrates that the trial judge erred by failing to focus on the time when the appellant was seen driving.
[26] I am unable to accept this submission. The comment the appellant relies upon must be read in the context of the trial judge’s entire reasons for judgment. In the third paragraph of his judgment the trial judge correctly stated the issue as “whether [the appellant’s] ability to operate a motor vehicle was impaired by alcohol at the time of driving, if she was in fact driving.” On the identification issue the trial judge was, of course, also focused on the time of driving.
[27] After the trial judge made the comment the appellant refers to he went on to deal with the issue of whether there was post-driving drinking by the appellant. The only purpose in doing so was to determine whether there was a basis for concluding that the appellant may have become impaired subsequent to the time of driving. There would have been no need for the trial judge to engage in this analysis if he had made the error the appellant submits he did.
[28] Finally, in the second last paragraph of his reasons for judgment the trial judge clearly stated that he found that the appellant’s ability to drive was impaired by alcohol “at the time she was seen operating the vehicle.”
[29] This ground of appeal fails.
Did the Trial Judge Err by Using the Description Given by Ms. Lee as Substantive Evidence of Identification?
[30] The appellant submits that because Ms. Lee did not give in-court testimony about the description Cst. Dawe testified he received from her via telephone, the evidence of that description could not be used in any way to support Ms. Lee’s in-court identification of the appellant. In her factum the appellant characterizes this evidence as hearsay and points out that there was no application to admit this evidence for its truth pursuant to the principled exception to the hearsay rule. Nor was there any effort by the Crown at trial to have Ms. Lee adopt the description.
[31] I will say more about my thoughts on the correctness of these submissions by the appellant below. However, quite apart from those thoughts, I am of the view that this ground of appeal fails because the trial judge did not use the evidence to reach his conclusion on identification. Rather, I accept the respondent’s submission that a reading of the trial judge’s reasons as a whole, against the background of the manner in which the trial was conducted, supports the conclusion that the trial judge used this evidence only to decide that the police had reason to arrest the appellant and demand a breath sample from her and to explain why there was some delay in making the arrest. Trial counsel brought a s. 8 Charter application related to that issue. It was agreed that the trial would be conducted as a blended Charter voir dire and trial.
[32] A review of the trial judge’s reasons demonstrates that he dealt with the issue of identification in a discrete fashion. He does not mention the description given by Ms. Lee at any time during that analysis. His only mention of that evidence came in relation to explaining why Cst. Sterns held off in arresting the appellant despite having formed the opinion that the appellant’s ability to operate a motor vehicle was impaired by alcohol. At p. 7 of his reasons the trial judge mentioned in this context that Cst. Sterns was not in a position to arrest the appellant until she received information from Cst. Dawe that there was a witness, Ms. Lee, who had seen the appellant driving.
[33] Based on my review of the entirety of the trial judge’s reasons I am not persuaded he took the description provided by Ms. Lee to Cst. Dawe into account on the issue of identification.
[34] However, it seems to me that the trial judge would have been entitled to take Cst. Dawe’s evidence about the description of the driver provided by Ms. Lee into account as part of the overall circumstances of Ms. Lee’s identification of the appellant. More specifically, the trial judge would have been entitled to consider that evidence in evaluating the credibility and reliability of Ms. Lee’s in-court identification of the appellant as the driver involved in the accident. This follows from the application of R. v. Tat (1997), 1997 2234 (ON CA), 35 O.R. (3d) 641, 117 C.C.C. (3d) 481 (C.A.).
[35] In Tat, at para. 35, Doherty J.A. held that there are two situations where out of court statements of identification are admissible. The first is the situation we are dealing with here, “where the identifying witness identifies the witness at trial.” As Justice Doherty explains, in such a situation the out of court statement of the witness does not have a hearsay purpose (para. 38). It is the fact the prior description was given that is relevant. Evidence of prior descriptions given by the witness are “admissible to allow the trier of fact to make an informed determination of the probative value of the purported [in-court] identification” (para. 37). Both the witness and others who heard the witness give the description may testify as to the description given (para. 35).
[36] In addition, I see nothing in Tat that restricts a person hearing a description from testifying about the description in the absence of testimony about the description from the identifying witness. While it would be preferable to have the evidence from both witnesses because it would provide more information to the trier of fact, I have not been referred to any authority which makes it a requirement.
[37] It is instructive to consider the primary basis on which the evidence of the description given by Ms. Lee was led from Cst. Dawe. There was a blended proceeding. One of the issues was whether the police had reasonable grounds to demand a sample of the appellant’s breath. Due to the materiality of that issue the relevance of Ms. Lee’s description lay not in its truthfulness or ultimate accuracy, but in the fact that it was conveyed to the police and permitted the police officers to form grounds to arrest the appellant and make a breath demand. In the circumstances, it was the fact that the statement was made that was relevant not its truth. No one suggests that it was necessary to lead the evidence from Ms. Lee as well as from Cst. Dawe insofar as its non-hearsay use assisted on the Charter issue. I see no reason why the situation is any different when the statement is used in a non-hearsay fashion to assist the trier of fact in evaluating Ms. Lee’s in-court identification of the appellant.
Conclusion
[38] For all of the foregoing reasons the appeal is dismissed.
F. Dawson J.
Released: November 24, 2014
COURT FILE NO.: SCA (P) 62/14
DATE: 20141124
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
NANCY TURNER
Appellant
REASONS FOR JUDGMENT
F. Dawson J.
Released: November 24, 2014