R. v. Eric Boulanger, 2019 ONSC 5669

COURT FILE NO.: CR 11-19

DATE: 2019/10/03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Appellant

M. Wlodarczyk, for the Appellant

• and -

ERIC BOULANGER

Respondent

G. Laplante, for the Respondent

HEARD: September 25, 2019

ellies R.S.j.

REASONS FOR DECISION

OVERVIEW

1The Crown appeals the dismissal of a charge of impaired driving against Mr. Boulanger that resulted when the trial judge ruled that the Crown had failed to prove the identity of the offender.

2In my respectful view, the dismissal should be set aside because the trial judge committed one of two legal errors in reaching that verdict. Regrettably, the trial judge’s reasons do not allow me to determine which of these two errors were committed. However, the result is the same: the matter must be remitted to another judge for a new trial.

FACTS

3Ontario Provincial Police (“OPP”) Constable Marc Lapierre grew up in Mattawa. On October 10, 2017, he was on day shift in his hometown. At some point during his shift, Constable Lapierre spoke with members of Mr. Boulanger’s family, who expressed their concerns that Mr. Boulanger was abusing substances and driving with no insurance. Later that day, at about 3:30 p.m., Constable Lapierre stopped Mr. Boulanger in his truck and engaged him in a discussion at the roadside.

4Importantly, Constable Lapierre had known Mr. Boulanger all of Mr. Boulanger’s life. As he was speaking with Mr. Boulanger, Constable Lapierre noticed that Mr. Boulanger was not speaking normally and his pupils were “very constricted”. These observations, together with the seizure of methamphetamines from Mr. Boulanger’s truck, ultimately led Constable Lapierre to arrest Mr. Boulanger for impaired driving, contrary to s. 253(1)(a) of the Criminal Code.

5Constable Lapierre then brought Mr. Boulanger to the Mattawa OPP detachment, where he was assessed by Constable Rob Laaper, a Drug Recognition Expert. Based on tests he conducted and observations he made, Constable Laaper concluded that Mr. Boulanger was possibly under the influence of a narcotic analgesic. Therefore, he demanded that Mr. Boulanger provide a sample of his urine. After Mr. Boulanger provided the sample, he was returned to the custody of Constable Lapierre by Constable Laaper. Constable Lapierre released Mr. Boulanger from the OPP detachment into the custody of his parents, after Mr. Boulanger signed a Promise to Appear and an Officer in Charge (“OIC”) Undertaking.

6In addition to being charged with impaired driving, Mr. Boulanger was also charged with failing to have insurance under the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.24.

7The trial began in Mattawa in January 2019. The only witnesses who testified were the officers, both of whom were called by the Crown. Counsel for Mr. Boulanger asked no questions in cross-examination of either officer. At the conclusion of the evidence, Mr. Boulanger’s counsel argued that the Crown had failed to prove identification because neither officer was asked to identify the accused in the courtroom during the trial. The Crown asked for and was granted an adjournment in order to respond.

8When the trial resumed, the Crown argued that direct, in-court identification was unnecessary, relying mainly on the decision in R. v. Nicholson, 1984 ABCA 88, 12 C.C.C. (3d) 228. Crown counsel submitted that there was sufficient circumstantial evidence of identity, including the Promise to Appear contained in the court file. In response, counsel for Mr. Boulanger contended that the circumstantial evidence of identity relied upon by the Crown was insufficient. He argued that the Crown had failed to prove identification because Constable Lapierre had not been asked to identify the Promise to Appear, had not been asked if he examined Mr. Boulanger’s name on his driver’s licence to confirm his identity, and because there were differences in the way Mr. Boulanger was named in the Promise to Appear and in the Information which was laid after Mr. Boulanger was released on October 10.

9In brief oral reasons delivered immediately following counsels’ submissions, the trial judge held:

This is a matter where both parties agree that there was no dock identification by either officer who testified on behalf of the Crown’s case.

The evidence regarding the promise to appear and the driver’s licence, in this case, is too deficient to be relied upon for proof of identity.

Constable Lapierre did testify during the trial that he knew the driver, that he had interactions with him in the past, and also knew his family. However, at no time did Constable Lapierre or Constable Laaper provide any evidence to indicate that the person who was arrested on the day in question was indeed the same individual facing trial. There was also no evidence with respect to whether or not – I should say any direct evidence, in determining whether or not Mr. Boulanger had proof of insurance.

As a result, I find the accused not guilty of all charges.

ISSUES

10The central issue in this appeal is whether the trial judge erred in concluding that the identification evidence was insufficient. The Crown also argues that the trial judge’s reasons are so deficient as to constitute an error in law and require that the case be remitted for a new trial.

ANALYSIS

11Identity is an issue in every criminal case. The Crown must prove that the accused is the person who committed the crime alleged. In Nicholson, the Alberta Court of Appeal identified four different contexts in which the issue of identification might arise in a criminal case. Speaking for the court, Kerans J.A. wrote (para. 6):

One can speak of identification in several contexts. One question, for example, which seemed in argument here to be confused with others in (sic) this: precisely which member of the human race is charged with the offence? Another is in terms of a judge being satisfied that the accused is actually before the Court for the purposes of a trial. Yet another arises when the Crown or defence seek to introduce certain documents which purport to relate to the accused. And, lastly, the Crown must, as I have said, prove beyond a reasonable doubt that it was the accused, and no other, who committed the crime charged. These four are quite separate questions although often closely related. Problems which arise in one context cannot be permitted to cause confusion in another. [Emphasis added.]

12Regrettably, in his submissions to the trial judge, Crown counsel appeared to treat the decision in Nicholson as though it set out a four-stage test to be applied in every case in which identity is an issue. Counsel for Mr. Boulanger also appeared to treat the decision this way. With respect, this was a misinterpretation of the majority ruling in that case.

13In Nicholson, the majority held that what is required to prove identity in any particular case will depend upon the context in which the issue arises. In the context of this case, the issue of identity involved proving two facts, namely:

(1) that the person who was arrested was the person who committed the offence; and

(2) that the person before the court was the person who was arrested.

14Based on the evidence, there could have been absolutely no doubt that the person who was arrested was the person who committed the offence. Constable Lapierre was an eyewitness to the crime.

15With respect to whether the person before the court was the person who was arrested, Constable Lapierre’s uncontroverted evidence was that he had known the person he arrested at the roadside all of that person’s life, that he brought that person to the OPP station, that he turned that person over to Constable Laaper, that he again assumed control over that person once Constable Laaper was finished with him, and that he released that person into the custody of his family afterwards on a Promise to Appear and an OIC Undertaking. No one other than the person Constable Lapierre arrested promised to come to court and answer to the charges.

16Contrary to the submission of counsel for Mr. Boulanger, there was no question of the weight to be assigned to this evidence by the trial judge. The evidence was unchallenged. The only inference available from the evidence of Constable Lapierre is that the person he arrested was the same person who was compelled ultimately to be in court that day. There were no competing inferences. With respect, it was not open to the trial judge on the evidence to reach any conclusion other than that the person before the court was the person who was arrested.

17As the court held in Nicholson, identification of the person before the court as the person who was charged is established if it is proven that the offender was given the documents compelling his attendance before the court (para. 30).

18Unfortunately, I am unable to determine from the trial judge’s reasons whether he ruled the way he did because he was of the view that only direct evidence of identification was sufficient, or whether he agreed with defence counsel’s submission that the Crown had failed to adduce enough circumstantial evidence to prove that fact. In either case, however, again with respect, it was an error of law.

19Regarding the need for direct evidence, as the Court of Appeal held in Nicholson, circumstantial evidence is sufficient to prove identity. With respect to the sufficiency of the circumstantial evidence, it would only have been necessary for the Crown to identify the Promise to Appear if Mr. Boulanger failed to appear or if the evidence called into question whether the person who signed the Promise to Appear was the same person who was arrested for the offence. That issue did not arise here.

CONCLUSION

20For these reasons, the appeal must be allowed.

21Although s. 686(4) of the Criminal Code permits the court to enter a verdict of guilty in these circumstances, the Crown has requested, instead, that the matter be sent back for a new trial. The matter will, therefore, be remitted to a different trial judge for a new trial, pursuant to s. 822(2) of the Criminal Code.

Ellies R.S.J.