COURT FILE NO.: 75/16 DATE: 20170515 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN Respondent

– and –

JAMES PATRIQUIN Appellant

Melissa Mandel for the respondent Her Majesty the Queen Sonya Shikhman for the appellant

HEARD: December 13, 2016

THEN J. :

Overview

[1] The appellant was convicted of dangerous driving and over .80 operation of a motor vehicle on July 26, 2016, following a three day trial before a judge of the Ontario Court of Justice and sentenced to serve 90 days intermittently, prohibited from driving for three years and to a two year term of probation. The appellant appeals the convictions only.

[2] The sole issue at trial was the identity of the driver. The resolution of that issue, resulting in the convictions, was based upon the assessment by the trial judge of the reliability and credibility of the arresting police officer who identified the appellant as the driver and the credibility of the appellant who claimed not to be the driver in accordance with the approach outlined in the decision of the Supreme Court in R. v. W.D., [1991] 1 S.C.R. 742 as these were the only two witnesses called at trial.

[3] The police officer observed a SUV vehicle registered to the appellant driven in a dangerous manner on Danforth Avenue almost causing a collision and thereafter racing past his police vehicle. The officer engaged the vehicle in a pursuit. The officer who had a clear visual of the driver as a result of brief eye contact consisting of a “one second glance” was able to identify the appellant as the driver based on certain prominent features. The officer caught up to the appellant’s vehicle in approximately 40 seconds and observed the appellant approaching from the driver’s side of the vehicle while the driver’s door was closing. While the officer was arresting the appellant the passenger door opened and a male person who did not in any way match the features noted by the officer escaped from the scene. The appellant claimed he was not the driver.

[4] Generally, the trial judge in her reasons held that she disbelieved the evidence of the appellant, nor did his evidence raise a reasonable doubt. The trial judge indicated that she believed the evidence of the officer and that she was satisfied, based on his evidence, that the Crown had proved the essential ingredients of the offences of dangerous driving and over .80 operation of a motor vehicle beyond a reasonable doubt.

[5] The appellant contends that the trial judge did not appropriately deal with issues raised by the appellant regarding the reliability and credibility of the officer. More importantly, the appellant submits that a one second glance could not in the circumstances of this case rise to the level of proof beyond a reasonable doubt and that in finding otherwise the trial judge erred in principle and applied flawed reasoning while misapprehending the significance of the chronology of the identification process.

[6] The Crown submits that in her detailed and considered reasons the trial judge properly instructed herself on the frailties of identification evidence and correctly concluded that there was ample evidence to support her finding that the appellant was the driver of the motor vehicle. Moreover, her findings as to the reliability and credibility of the officer and the appellant are entitled to deference. The Crown contends that the trial judge did not misapprehend the material parts of the evidence dealing with identification leading to a finding of guilt but that essentially the appellant seeks to have this court retry this case.

The Background Facts

[7] On August 18, 2014, PC WANG at around 8:17 pm was driving to the hospital in relation to a different investigation when he noticed a car make a left turn in a dangerous manner. The officer observed a SUV making a left tum onto Danforth Street in Toronto cutting off a taxi and swerving on the road. The driver was then "face to face (in) oncoming traffic in front of me”.

[8] The officer activated his lights and that automatically activated the in-car camera. As the driver passed the cruiser the officer pointed his finger at the driver motioning him to pull over. That command was ignored. The officer's window was down and he believed, as confirmed by the in-car video, the driver's window was also down. The lighting conditions were good.

[9] When asked for the first time at trial what the driver looked like at the time he drove past the officer the following exchange took place:

Q. And are you able to describe or recall what the driver looked like to you at that time as he was driving past?

A. At that time , just a male. Like I thought it was like some kind of shaved head. Like darker features, like darker hair kind of thing. That what I remember. Like kind of square-ish kind of face. But- but the head, the shaved head, - very short hair is what I noticed. The most prominent feature that I noticed.

Q. … And what about his clothing? Did you make any notice at that time of his clothing?

A. That, I don't recall. I think some kind of dark jacket of some kind. But it was a very fast- like brief flash. We made momentary eye contact. And then, at that time, I was on my way- by that time, I kind of realized he wasn’t going to stop. So I was already on my way to make my three point turn.

Q. and were you able to see anyone else in the vehicle as it drove past?

A. No, I don’t have time to notice much else.

(emphasis added)

[10] Following this exchange with the Crown the officer referred to his notes and testified that in addition to the description recounted, the officer noticed that the driver had a beard.

[11] It is common ground that the officer’s notes were not made until after the appellant was arrested and placed in the police cruiser and that on cross-examination the officer agreed that his observation of the driver as they passed each other was a one second glance, a one second eye contact. The driver then proceeded to speed through a busy street and made another sharp turn in an attempt to get away from the police. When the officer caught up with the vehicle approximately 40 seconds after he had seen the driver it was stopped in an alley and the appellant was outside of the vehicle on the driver’s side walking towards the police car. The officer testified as follows:

As I got down – as I got towards the end of the alleyway, I noticed that the white SUV was parked there. I noticed the driver coming – basically I noticed the driver door was on its way to closing. And the driver, that I noticed as I – he drove past me, walking towards – to the back of the SUV. By this time, towards my vehicle.

[12] It is common ground that the officer wrote in his notes that he recognized the appellant as the driver of the vehicle he had observed 40 seconds earlier.

[13] Is also common ground that his observation that the driver door was closing was not recorded in his notes and that the in-car video showed only that the appellant was approaching the police cruiser from the rear driver’s side of the SUV. The officer explained that while he had omitted referring to the closing of the driver’s door in his notes he nevertheless had a clear recollection of the event because it was unusual.

[14] The officer testified as to the times on the video relevant to his observations and explained that the in-car video had not captured his observations because of the way his cruiser was parked and the way in which the in camera was mounted as it was necessary for him to pivot his head in order to make his observations of the appellant.

[15] The appellant was the registered owner of the SUV. This fact was unknown to the officer at the time. The officer testified that around the same time as the appellant approached the officer from the driver’s side of the SUV the officer observed the passenger door to open and another person emerged and immediately started running away from the police. That person was never apprehended although an effort was made to do so. The person exiting from the passenger seat was described in the officer’s notes as follows: “male, white, stocky, blonde, buzz cut, dark blue t-shirt, light blue jeans coming out of the passenger’s seat.” consistent with the in-car video.

[16] The Crown specifically asked the officer as to whether he had any doubt whether the appropriate person had been arrested based on the officer’s observations and received the following answer:

No I didn’t have any doubt. I mean I had – we made direct eye contact, I mean him, his features, even his clothing was very different from the passenger, so wasn’t really; any, you know, hesitation on my part who the driver was. Any question.

[17] The police officer testified that when he spoke to the appellant he understood the appellant to be denying that he was the driver of the vehicle and, refusing to name the driver. The officer testified he was distracted by the appellant’s talking and that his references to Jesus, the Code, and wise guys didn’t make sense at the time. On cross-examination after reviewing the video the officer conceded that there was a significant 18 minute gap in conversation and that with the assistance of counsel he came to appreciate the references by the appellant to the Code and Jesus were meant to explain his refusal to identify the driver and the reference to “wise guys” was a reference to the third bar frequented by the appellant.

[18] The officer could not remember how he obtained the car keys to the vehicle. The keys were found by another officer in the alley.

[19] The appellant testified that he was not the driver but rather that Justin was.

[20] The appellant testified that after completing some errands he decided to go for a walk on the Danforth, maybe meet a few people and pop in for a drink or two. He claimed he wasn’t exactly sure what he was going to do. The appellant parked his vehicle at the Valu-Mart Parking lot in what he believed to be a sketchy neighbourhood. After the appellant parked his vehicle he immediately walked to a bar directly across from the parking lot and began to drink heavily.

[21] The appellant went to three bars and had at least 12-13 drinks with a few people. The appellant subsequently provided two samples of his breath which indicated, according to the toxicology report, which was not contested, that at the time of driving the appellant’s blood alcohol level would have been between 255 to 300 mgs. of alcohol in 100 mls. of blood. At trial the appellant conceded that he was too impaired to operate a motor vehicle.

[22] At the third bar, Wise Guys, the appellant met Justin and had a few shots with him. They left this bar and arrived at a bar where the appellant had been drinking earlier. The plan was to get the SUV as the appellant did not want to leave it in the area for fear of a break-in. The appellant asked Justin to drive, as he was in no condition to drive, and Justin did not appear to be drinking too much. The appellant acknowledged that notwithstanding his own home was nearby, his plan was to have Justin drive to the appellant’s mother’s house in Scarborough as there was a fire pit in the background and to continue drinking there.

[23] When they got into the appellant’s vehicle, Justin drove the vehicle out of the parking lot too quickly and cut off a taxi. The appellant noticed that the police responded and instructed Justin to pull over but Justin ignored his request and sought to evade the police. The appellant became furious with Justin’s dangerous driving and when Justin stopped the vehicle in the alley the appellant testified he walked around to the driver’s side with a view to pulling Justin out of the car, but the door was locked. At this point the appellant observed the police cruiser pulling up from behind and he started to walk toward the police to let them deal with Justin.

[24] The appellant testified that it was bad judgment on his part to trust Justin with his car. When asked how Justin was to get home from his mother’s place, he replied that it is typical of maritime hospitality to allow persons to spend the night even if he doesn’t know them well or to take a taxi.

[25] The appellant testified that while he was at the driver’s door Justin may have been making his way out of the vehicle by exiting on the passenger’s side. The appellant explained that while he was furious with Justin his calm demeanour in immediately approaching the police officer is a good thing to do based on past experience and in particular given his criminal record it is good to be polite when he comes in contact with the police.

[26] The appellant has a criminal record commencing with a youth record in 1996 for offences including possession over $5,000, break and enters, possession of break-in instruments, failing to comply with probation and assault. The appellant’s adult record began in 2002 and includes convictions for numerous assaults, fraud under $5,000, mischief under $5,000, uttering threats, numerous convictions for failing to comply with recognizances and undertakings and two prior convictions for dangerous driving in 2002 and 2010 respectively. The appellant’s driving license was reinstated in January, 2013, as a result of the suspension for the dangerous driving conviction in 2010.

[27] The appellant testified that he always pleads guilty but did not do so on this occasion because he was not the driver notwithstanding that he was offered a reasonable plea deal.

Issues

[28] The appellant raises the following issues:

1. Did the trial judge err in law in concluding that she did not believe the appellant’s evidence and that it did not raise a reasonable doubt?
2. Did the trial judge err in law in failing to find that the evidence of the police officer identifying the appellant as driver was unreliable and in failing to appropriately assess the appellant’s credibility and accordingly, in failing to find the Crown had not proved the offences beyond a reasonable doubt?

Analysis

Issue 1 - Did the trial judge err in law in rejecting the appellant’s evidence?

[29] In accordance with the approach of the Supreme Court in R. v. W.D., supra, the trial judge extensively reviewed the evidence of the appellant in order to determine whether to acquit the appellant if she believed his evidence or if his evidence raised a reasonable doubt.

[30] The trial judge fairly found that at trial the appellant answered questions directly and that he admitted his consumption of a large quantify of alcohol as confirmed by the very high breathalyzer readings. The trial judge also found that notwithstanding his consumption of alcohol, his recollection of events appeared to be unaffected as his interactions with police were recorded by video. Further, he appeared steady on his feet and answered most of the questions asked by the officers, although some of his answers on the video did not make sense. However, in court there were no obvious inconsistencies between examination in chief and cross-examination and the appellant was consistent throughout in denying that he was the driver.

[31] Nevertheless, the trial judge examined the implausibility of the appellant’s version of events and gave extensive reasons for not accepting the evidence of the appellant as follows:

[40] However, the major weakness in Mr. Patriquin's testimony is that in order to accept his version of events it requires the Court to believe or accept several premises that do not make sense. First, Mr. Patriquin says his plan was to park his truck, drink at local bars and hang out with acquaintances he might meet. He said he knew that his truck was not safe parked overnight in that particular parking lot. Yet, Mr. Patriquin did not have a plan, even when he was sober, on how he was going to get his truck home. This for someone, who agreed, highly valued his ability to drive and hence, work, and who knew the grave consequences of incurring another driving related offence. Even before running into Justin, Mr. Patriquin by his own tally had been to two separate bars and had had a lot to drink. Assuming he did not know he was going to run into Justin at the next bar, how was Mr. Patriquin planning to get his truck home? Yet he did not stop drinking. Instead, Mr. Patriquin went to a third bar, kept drinking and then returned to the previous bar and continued to drink. So the first question the Court struggles for an answer is how was he going to get his truck home, but for meeting Justin?

[41] Even if I were to presuppose Mr. Patriquin had a Plan B to get his truck home, Mr. Patriquin's position is that he trusted Justin to drive his truck, despite not knowing Justin very well or knowing how much Justin had been drinking. Mr. Patriquin says on the one hand, he knew enough that he could not drive, but on the other hand, says his drinking contributed to making, in hindsight, a poor decision to let Justin drive.

[42] I suppose it is possible for both positions to be true. However, Mr. Patriquin agrees he knew the situation was grave when he heard the police sirens. He knew his license had been recently re-instated; he knew from experience that being in this situation would be terrible. So assuming, as he would have this Court believe, that he was in the passenger seat, then it makes little sense for him to leave the sanctity of that position. The video shows, Wang's cruiser's sirens were on as he turned the corner on Patricia Avenue. Knowing the police were at least close, if not directly behind him, it makes no sense for Mr. Patriquin to have left the passenger seat.

[43] Mr. Patriquin said he was angry at Justin and wanted to drag him from the car. So the next unresolved question is why not yell at, scream or punch Justin from inside the car?

[44] Mr. Patriquin’s position is that he was intoxicated and making poor choices. But the video shows that despite Mr. Patriquin's high blood alcohol readings, he walked normally, responded to questions and asked questions. Some of the first words out of his mouth to P.C. Wang was "I wasn't driving, I didn't drive", and later “You didn’t see me driving”. He said those words calmly and dispassionately even though he asks to [sic] court to accept that he was so angry at Justin that he unclipped his seat belt, tore out of the passenger side of the truck, and ran to drag Justin from the driver seat only to find driver's door locked. Yet as the video shows, at the same time as presumably Mr. Patriquin found the door locked, P.C Wang was on scene. Instantly, Mr. Patriquin was calm. He testified that he walked calmly to the officer because he was going to let the police "deal with the other guy". The video shows P.C. Wang telling the 2nd man to get back in the truck , and Mr. Patriquin turning around and calmly watching Justin flee. His "defence" so to speak, just ran away, yet nothing changed in Mr. Patriquin's steady and calm demeanour.

[45] Mr. Patriquin's version of events would have the court believe that Justin crawled or climbed over .to the passenger side of the vehicle. In view of the other difficulties in Mr. Patriquin's version of events, this too seems highly unlikely.

[46] P.C. Wang challenged Mr. Patriquin to tell him that if he wasn't the driver, who was? Mr. Patriquin did not exercise his right to remain silent and defence counsel does not challenge his voluntariness of his utterances to P.C. Wang or advance the Charter argument. Mr. Patriquin initially said he could not tell P.C. Wang the name of the other man, but did say the name "Justin Parker", which the officer repeated. Later he invoked "Jesus” and referred to a "code" and "wise guys"; perhaps some reference to the code of silence, it is not clear.

[47] Lastly, to accept the defence's version of events, the court would also have to find that Justin took the car keys with him and dropped them as he ran. It makes little sense that Justin or whoever the individual was, would take the keys out of the ignition from a truck that did not belong to him, and later dispose of them.

[48] For those reasons, I do not find Mr. Patriquin's version of events makes a lot of sense. I do not accept Mr. Patriquin's testimony on either the first or second prong of the W.D. test to the extent that it raises a reasonable doubt.

[49] As such, I will review the crown's evidence to determine if I am left with a reasonable doubt.

[32] It is axiomatic that an appellate court must show a very high degree of deference to the credibility findings of the trial judge as the determination of credibility is uniquely the province of the trial court given the special position of the trier of fact who has the advantage of seeing and hearing the witnesses testify (See R. v. Aird, 2013 ONCA 447 at para. 39; R. v. Burns, [1994] 1 S.C.R. 656 at paras. 12-15); Regina v. P.C., [2001] O.J. No. 342 (C.A.) at para. 12; R. v. W.Y. (1996) at p.5).

[33] In R. v. Cresswell, 2009 ONCA 95, the Ontario Court of Appeal stated the approach that appellate courts are to take in assessing the reasons for the credibility findings of the trial judge at para. 14:

[14] Moreover, credibility findings are often difficult to explain and are the paradigm case for deference. The Supreme Court of Canada has directed that intervention by appellate courts will be "rare" and that reasons for credibility - findings need not consider or answer each and every argument or each and every piece of evidence: R. v. R.E.M., 2008 SCC 51.

[34] As I understand the argument of the appellant, it is conceded that the credibility findings of the trial judge are owed great deference, nor is it contended that the findings of credibility which the trial judge made were unavailable on the evidence but rather, it is contended that if the Crown or the court had specific concerns regarding the version of events proffered by the appellant that were to undermine the credibility of the applicant those questions should have been posed to the appellant pursuant to Browne v. Dunn.

[35] I am in full agreement with the respondent that in the circumstances of this case the ruling of the Supreme Court of Canada in R. v. Palmer, [1990] 1 S.C.R. 759 that it is unnecessary to cross-examine a witness on every aspect of his story in order to impeach his credit is dispositive of this ground of appeal.

[36] In Palmer McIntyre J. adopted the following passage from the judgment of the British Columbia Court of Appeal at pp.781-2:

The second ground of appeal argued was that the trial Judge should have found that the evidence of Douglas Palmer raised at least a reasonable doubt of his guilt. With particular reference to the three occasions to which I have just referred, it was said that Palmer's evidence was not shaken in cross-examination and it is suggested he was not specifically questioned about one or two of them. Reference was made to Browne v. Dunn (1894) The Reports 67 and to Rex v. Hart (1932) 23 C.A.R. 202. I respectfully agree with the observation of Lord Morris in the former case at page 79:

I therefore wish it to be understood that I would not concur in ruling that it was necessary in order to impeach a witnesses' credit, that you should take him through the story which he had told, giving him notice by questions that you impeached his credit.

In my opinion the effect to be given to the absence or brevity of cross-examination depends upon the circumstances of each case. There can be no general or absolute rule. It is a matter of weight to be decided by the tribunal of fact, vide: Sam v. Canadian Pacific Limited (1976), 63 D.L.R. (3d) 294 and cases cited there by Robertson, J.A. at 315-7. In the present case Douglas Palmer was cross-examined extensively. It seems to me the circumstances are such that it must have been foreseen his credit would be attacked if he testified to his innocence. In any event, this was made plain when he was cross-examined. The trial Judge gave a careful explanation for his acceptance of the story of Ford and rejecting that of Douglas Palmer. I cannot give effect to this ground of appeal.

[37] In this case, as in Palmer, the appellant was cross-examined extensively by the Crown with respect to his assertion that he was not the driver in the face of the evidence of the police officer’s identification of him as the driver. It would have been foreseen that he would be cross-examined with respect to his credibility in asserting he was not the driver. The appellant was cross-examined by the Crown as to his plans for the evening, his location and actions in the alley as well as the role of Justin and his actions in the alley, as those matters were pertinent to the issue of who was the driver. In my view, it was inappropriate for the trial judge to cross-examine the appellant, nor was it necessary for the trial judge to take the appellant through his story and to posit her precise concerns with the credibility of his story to the appellant. The trial judge gave a careful explanation for the rejection of the evidence of the appellant and her acceptance of the evidence of the police officer based on the evidence. In my view there was no breach of the rule in Browne v. Dunn. The appellant was not unfairly denied an opportunity to explain a contrary version of events but rather the trial judge was entitled to find, based on all the evidence, that the version of events proffered by the appellant was implausible. I would not give effect to this ground of appeal.

[38] It should be noted that on the issue of the credibility of the appellant the trial judge in her reasons outlined the lengthy criminal record of the appellant but did not refer to it in assessing the credibility of the appellant, notwithstanding convictions for crimes of dishonesty and crimes involving disdain for the administration of justice. The trial judge was entitled to use the criminal record to assess the credibility of the appellant. That she did not do so inures to the benefit of the appellant.

Issue 2 – Did the trial judge err in law in failing to find that the evidence of the police officer identifying the appellant as the driver was either unreliable or not credible and accordingly erred in law in failing to find the Crown had not proved the offences beyond a reasonable doubt?

[39] Initially it is convenient to outline the reasons of the trial judge for accepting both the reliability and credibility of the police officer and her consequent finding that the offences had been proved beyond a reasonable doubt. On the issue of reliability she stated the following:

[51] According to P.C. Wang, he saw the driver for no more than one second as he quickly sped past him. He took mental notes of the driver's appearance and then began the chase. Based on the time stamp of the in-car video (SUV sped by at 20:17:07 and Mr. Patriquin is seen walking from the driver side at 20:17:47), 40 seconds later, P.C. Wang says he saw the same person walking from the driver side of the car. Based on seeing the same face less a minute later and, in particular, seeing the same dark coloured clothing and the bald/shaved head of Mr. Patriquin, P.C. Wang said he had no doubts Patriquin was the driver of the SUV.

[521] Counsel for Mr. Patriquin correctly notes the frailties of identification evidence and that police are not endowed with any enhanced powers of recollection than the ordinary layperson (R. v. Cranham, 2012 ONCA 457). However, in this case, the time between Wang's initial observations and then seeing Mr. Patriquin outside the driver side, was 40 seconds. P.C. Wang recorded the descriptions of Mr. Patriquin and the other male, which I have already summarized. The video confirms that the two men looked very different.

[53] I agree that had the circumstances been different, for example, P.C. Wang identifying the driver hours or days later, then I would agree a one second glance would not be enough to establish a foundation for a later identification. But in this case P.C. Wang followed the SUV and 40 seconds later saw the same truck and saw Mr. Patriquin walking from the driver side of the vehicle with a distinct shaved head, beard and dark clothing.

[54] The conditions of P.C. Wang making this momentary observations [sic] were reasonably good: both his window and the driver side window of the SUV were both rolled down. As the video shows, it was still light outside. Moreover, P.C. Wang having seen the SUV barely avoid a collision with a taxi was already alert when the truck headed his way and he made eye contact with the driver.

[55] Defence counsel submits P.C. Wang may honestly have believed that Mr. Patriquin was the driver, but she argues the court should question the reliability of his evidence. In court P.C. Wang testified he saw "the driver's door partially open, on its way to being closed", but the officer did not record that in his notebook; he merely wrote that the male was walking to the rear of the vehicle from the driver side. P.C. Wang disagreed with counsel who suggested that he added this important detail in court. The officer said he has a memory of the event and is not required to note every detail in his notes, which I accept. In this case, P.C. Wang appeared to have no difficulty remembering the incident and where he was unsure, he said so. For example, P.C. Wang could not remember the details about the missing car keys and recalled something about Mr. Patriquin calling the next day; asking for them.

[56] As well, there is the in-car camera audio and video recording: P.C. Wang responsibly turned on the in-car camera system as soon as he saw the white SUV driving erratically, which activated the recording and recaptured the previous 30 seconds or so. The video and audio equipment remained on during all of his interaction with Mr. Patriquin. P.C. Wang testified he saw the door closing even though the in-car camera only captured Mr. Patriquin standing outside on the driver's side door because unlike the dash-mounted camera unit, he could turn his head.

[57] P.C. Wang seemed like an intelligent. And thoughtful witness: he said that his adrenalin was running and he needed time to calm down and gather his thoughts once he had Mr. Patriquin safely handcuffed and detained in the back of his police cruiser. In watching the in-car video I accept P.C. Wang's heightened emotional state was consistent with being the only officer on scene in a dynamic and potentially dangerous situation taking place in an alleyway. It is obvious when re-watching the DVD video that P.C. Wang was on high alert when was outside of the cruiser and waiting for back-up.

[40] On the issue of credibility the trial judge stated:

[58] Defence counsel submits P.C. Wang exaggerated his testimony when he often described Mr. Patriquin as talking non-stop and his words were "disjointed" and hard to understand. For example, counsel pointed out that between 8:31:25 to approximately 8:36 pm, Mr. Patriquin does not speak. As well, counsel noted there was silence for 18 minutes between 8:44 pm and 9:02 pm. In listening to the DVD, as stated, I found the audio very poor and the only person who is heard clearly is P.C. Wang. In listening to the DVD, frankly I could not tell if P.C. Wang was still inside the car during the above noted times. Other officers came by and spoke to Mr. Patriquin and P.C. Wang was in and out of the car.

[59] What I can say is that there was a lot of verbal back and forth between P.C. Wang and Mr. Patriquin with Mr. Patriquin insisting that he was not the driver; that he does do things like that; asking why he was detained and could not be released; why he could not say who the driver was although earlier giving the name “Justin Parker”, and more. P.C. Wang kept the conversation going and would challenge Mr. Patriquin to tell him who was driving, giving him a recap of what he saw and lecturing Mr. Patriquin on why his driving was dangerous. When the two men were in the car together, they continually bickered. Whether P.C. Wang found Mr. Patriquin “distracting” was all Mr. Patriquin’s doing or the officer was part of the problem, is impossible to reconcile. I do, however, agree with P.C. Wang who said Mr. Patriquin’s references to “Jesus” and a “code” were without context and, as he put it, “hard to understand”.

[41] The trial judge stated her conclusions on both issues and found that the Crown had proved the offences beyond a reasonable doubt:

[60] Overall, while P.C. Wang may have overstated Mr. Patriquin’s incessant taking and he did not write down that he saw the driver door closing I accept P.C. Wang’s testimony, which was in large measure was [sic] confirmed by the in-car DVD. I accept his evidence that he made eye contact with the driver and got a momentary glimpse of the driver; enough time to see that the driver had a shaved or bald head, which were features that stood out to him. I also accept that 40 seconds is close enough in time for that memory to be fresh and reliable, so that when P.C. Wang saw Mr. Patriquin walking away from the driver side door, his testimony is truthful and reliable that this was the same man. It also turns out that the SUV was Mr. Patriquin's truck, which the officer did not know when he arrested him for dangerous driving. Finally, I have already discussed and given reasons why I reject Mr. Patriquin's version of events.

[61] Based on all of the evidence, I am satisfied beyond a reasonable doubt the crown has established James Patriquin was the driver of the SUV and he shall be found guilty. …

[42] The appellant submits that in assessing the adequacy of the findings of the trial judge as to the reliability of the eye witness identification of the appellant by the police officers this court should be guided by the observations of Hill J. in R. v. Gordon, [2002] O.J. No. 932 at para. 63:

Our experience with eye-witness identification evidence has taught us to use discriminating scrutiny for badges of unreliability. Judicially created checklists, based on long experience with the inherent dangers of eye-witness identification evidence, assist in assessment of the circumstances of a specific identification: The Queen v. Nikolovski, [1996] 3 S.C.R. 1190 at 409, 412; Mezzo v. The Queen, [1986] 1 S.C.R. 802 at 129-132 per Wilson J. Was the suspect a complete stranger or known to the witness? Was the opportunity to see the suspect a fleeting glimpse or something more substantial? Was the setting in the darkness of night or in well-illuminated conditions? Did the witness commit the description to writing or report the description to the police in a timely way? Is the witness' description general and vague or is there a description of detail including distinct features of the suspect and his or her clothing? Were there intervening circumstances, capable of tainting or contaminating the independence of the identification, between the witness' initial sighting of the suspect and the rendering of the descriptive account to the police or the court? Has the witness described a distinguishing feature of the suspect not shared by the accused or conversely has the witness' description of the suspect failed to include mention of a distinctive feature of the accused? Is the eye-witness identification unconfirmed? At least some of these concerns are deserving of further discussion.

[43] The appellant emphasizes that the initial observation of the officer was a fleeting one and while the officer apprehended the appellant 40 seconds later, the description of the appellant and the other person in the car were not recorded 40 seconds later but sometime after the appellant had been charged with the offences. The appellant submits that the identification of the appellant as the driver by the police officer must necessarily been influenced by the intervening dealings between the police officer and the appellant.

[44] As I understand the appellant’s position, he does not contest that the trial judge properly appreciated the frailties of identification evidence nor that given the officer’s encounter with the appellant 40 seconds later, the caution required to accept an identification based on a fleeting glance may be attenuated. However, the appellant contends that because the appellant’s description was not recorded in the officer’s notes immediately after his observation of the driver but only after the officer’s observation of the appellant coming from the rear of the SUV on the driver’s side, it is entirely possible, even if the officer honestly believed he had seen the appellant driving the SUV, that the description of the driver in the notes was tainted or contaminated by the intervening dealings between the appellant and the police officer. It is submitted under these circumstances it was unsafe to convict the appellant.

[45] In my view, the submission now made to this court for the first time was not made to the trial judge, nor was it suggested to the police officer that his identification of the appellant as the driver and his description of the driver were tainted by his subsequent dealing with the appellant. In any event, his submission that the convictions are unsafe must be rejected as it is not available to this court to retry this case.

[46] The reasons of the trial judge make it crystal clear that the conviction is based on the judge’s finding that she accepted beyond a reasonable doubt that the person who the officer observed driving the SUV was the same person who 40 seconds later he observed advancing toward him from the driver’s side of the SUV. There was ample evidence to support this finding. The officer passed directly by the driver of the SUV as the officer drove west and the SUV drove east. The windows of both vehicles were down as corroborated by the in-car video camera and the lighting conditions were good. The officer made momentary eye contact with the driver pointing his finger at him to pull over. The officer was in a state of alertness, having observed a near collision, and noted the driver had a distinctive shaved head, squarish face and a dark jacket. There is no question that 40 seconds later the officer caught up to the same SUV. He testified, and the trial judge accepted his evidence that he instantly recognized the person outside the SUV as the person driving the SUV based on the distinctive feature of a shaved head, squarish face and beard. The officer testified and the trial judge accepted that his identification of the appellant was fortified by the fact that when he arrived at the SUV, the appellant was advancing from the driver’s side of the SUV in circumstances where the driver’s door was in the process of closing and that the person who emerged from the passenger door had none of the distinctive features of the appellant. The trial judge was entitled to consider that the SUV was registered to the appellant, a fact unknown to the officer, as confirmatory of the identification made by the officer.

[47] In my view it is clear that the trial judge accepted the evidence of the police officer that the person who he saw driving the SUV was the appellant beyond a reasonable doubt. There was abundant evidence to support that finding. It was not incumbent upon the trial judge to weigh frailties that were not advanced, as the basis of his acceptance of the identification evidence of the police officer is clear and is supportable on all of the evidence (See R. v. Braich, [2002] 1 S.C.R. 909 at para. 38).

[48] In my view, the reasons of the trial judge do not betray any deficiencies with respect to his treatment of the reliability of the officer’s identification that would constitute an error in law or render the verdict unsafe.

[49] Finally, the appellant submits that while the trial judge in his reasons noted that the officer may have overstated the extent of the appellant’s incessant and incoherent talking and while the trial judge acknowledged that the officer’s notes contain no reference to the evidence he gave at trial as to the closing of the driver’s door as the appellant stood on the driver’s side of the SUV, the failure to make specific findings of credibility and to articulate the effect of those findings with respect to the officer’s evidence identifying the appellant as the driver constitutes an error of law.

[50] With respect to the omission in the officer’s notes of the evidence of the officer that he observed the driver’s door closing as the appellant walked toward him from the driver’s side of the SUV, it is apparent from the reasons of the trial judge that the trial judge accepted the evidence of the officer that he had a specific memory of this event and that he was not required to note every detail in his notes. In my view, given this finding, the trial judge was not required to do more.

[51] Further, it is apparent from the reasons for judgment that while the trial judge accepted that the officer may have overstated the incessant nature of the conversation with the appellant, the trial judge properly weighed both the overstatement and the absence of the closing of the door in the officer’s notes in determining that the evidence of the officer that the appellant who was walking towards him from the driver’s side of the SUV was the same man he had seen 40 seconds earlier driving the SUV on the Danforth. I would not give effect to this ground of appeal.

[52] For all these reasons, the appeal is dismissed.

THEN J.

RELEASED: May 15, 2017

COURT FILE NO.: 75/16 DATE: 20170515 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN Respondent

– and –

JAMES PATRIQUIN Appellant

REASONS FOR JUDGMENT THEN J.

RELEASED: May 15, 2017