CITATION: R. v. Liboiron, 2015 ONSC 1706

COURT FILE NO.: 12-A11128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

KRISTINE LIBOIRON Appellant

Moiz M. Karimjee, for the Respondent Crown

David Anber, for the Appellant

HEARD: March 4, 2015

SUMMARY CONVICTION APPEAL

On Appeal from the decision of the Honourable Justice J.D. Nadelle of the Ontario Court of Justice on January 27, 2014, at Ottawa, Ontario

MARANGER J.

Introduction:

[1] Kristine Liboiron appeals her conviction for dangerous operation of a motor vehicle registered by Justice J.D. Nadelle on January 27, 2014.

[2] The conviction followed a trial that lasted less than a full day.

[3] Two civilian witnesses and the arresting officer, provided testimony at the trial. The trial Judge rendered his decision on the same day and provided succinct oral reasons for finding the Appellant guilty of the offence charged.

Background:

[4] The case presented by the prosecution can be summarized as follows:

• A woman was observed by two civilian witnesses driving dangerously in a black SUV.
• The two civilian witnesses found the woman’s driving so abnormal that they followed her to 9 College Circle, a Townhouse project in the city of Ottawa.
• The witnesses watched the woman enter the driveway of 9 College Circle, hit the garage door and then back into a vehicle behind hers.
• They then observed her try to lift the garage door open and remove a child from the passenger side of the vehicle.
• While this was taking place, the witnesses contacted the police to report what they believed to be dangerous driving.
• They made the following observations concerning the woman’s appearance: she was a tall slender woman wearing lulu lemon sports clothing, she had dark hair in a ponytail, she was wearing glasses, and that she walked with a limp.
• A police officer arrived approximately one hour after the abnormal driving was reported by the civilians.
• The officer knocked on the door of the residence and a woman matching the description provided by the civilian witnesses answered the door. She was arrested and charged with dangerous driving.
• At the trial the civilian witnesses testified that they recognized the Appellant. One of the witnesses noticed that the Appellant walked with a limp outside the courtroom, as the woman driving the SUV had.

Grounds of Appeal:

[5] The grounds argued on appeal are the following:

I. The trial Judge erred in law by not properly instructing himself on the frailties of eye-witness evidence, and if he did properly instruct himself, he gave insufficient reasons explaining why he found the evidence to be sufficiently reliable;

II. The verdict was unreasonable in that the trier of fact should have had a reasonable doubt about who was driving the vehicle that day; and;

III. The trial Judge gave insufficient reasons.

Standard of Review:

[6] The approach to be used by a court sitting in appeal of a trial judge’s decision was described by the Supreme Court of Canada in R v. Burns [1994] S.C.R. 656, at para. 14, in the following terms:

In a proceeding under s.686(1)(a)(i), the court of appeal is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it: provided this test is met, the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial.

[7] A trial judge should be afforded considerable deference as to whether or not the allegations before the court have been made out beyond a reasonable doubt. In R v. Biniaris, [2000] S.C.R. 381 at para 24, Justice Arbour indicated:

Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and in the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown’s case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier fact, except unreasonable ones embodied in a legally binding conviction.

Sufficiency of Reasons:

[8] In R v. Sheppard 2002 SCC 26, [2002] 1 SCR 869, the Supreme Court of Canada set out the governing principals relating to the sufficiency of reasons and appellate review. The following excerpts authored by Justice Binnie in Sheppard are applicable to the case at hand:

24 In my opinion, the requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to the grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.

46 These cases make it clear, I think, that the duty to give reasons, where it exists, arises out of the circumstances of a particular case. Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which could clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function.

Analysis and Conclusion

[9] After reviewing the record of evidence before the trial Judge, including the transcripts, factums and arguments presented; I find that this appeal should be dismissed for the following reasons:

• The trial Judge in this case was very experienced. While his reasons did not expressly stipulate the need to recognize the frailties of eyewitness evidence, his decision certainly disclosed that he was alert to the issue and that it was one of the hurdles that the Crown had in proving the Appellant’s guilt beyond a reasonable doubt.
• The reasons disclose an analysis of the evidence that is fair and balanced. Any weaknesses in the identification evidence were pointed out by the trial Judge.
• The decision, while succinct, was nonetheless clear, logical, and left little doubt as to why the trial judge reached the conclusion that he did. Furthermore, this was a half- day trial involving three witnesses; in the circumstances the judgment provided was more than sufficient.
• The strength or weakness of the identification evidence in this case had to be considered in context. The two civilian witnesses provided fairly distinct information about the physical characteristics of the woman they saw driving an SUV. She drove so out of the ordinary that, as concerned citizens, they decided to follow her to her place of residence. They saw the woman hit the garage door and another vehicle prior to exiting. They saw her attempt to open the garage and take a baby out of the vehicle.
• The arresting officer arrived within an hour of the call and a woman matching the description given by the two witnesses answered the door of the residence.
• The fact that the woman they identified limped when she exited the car and the Appellant was seen to have a limp by one of the civilian witness on the day of the trial served to buttress the identification evidence.

[10] Based upon the evidence presented before Justice Nadelle it was certainly open to him to conclude beyond a reasonable doubt that the person who answered the door and the person who drove the SUV were one and the same. The appeal is therefore dismissed.

Maranger J.

Released: April 8, 2015

CITATION: R. v. Liboiron, 2015 ONSC 1706

COURT FILE NO.: 12-A11128

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

– and –

KRISTINE LIBOIRON Appellant

summary conviction appeal

Maranger J.

Released: April 8, 2015