R. v. Mullings, 2021 ONSC 4595

COURT FILE NO.: CR-20-44 AP

DATE: 20210628

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

MAURICE MULLINGS

Appellant

A. Khoorshed, for the Respondent

A. Sewrattan and C. Sewrattan, for the Appellant

HEARD: June 23, 2021

[On appeal from the judgment of Baldwin J. dated December 9, 2019 and the sentence imposed January 30, 2020]

MILLER J.

1Maurice Mullings appeals from his Criminal Code convictions for, on March 24, 2018, Failing to Stop for Police, two counts of Dangerous Driving and Failing to Stop at the Scene of a Collision and Failing to Stop at a Stop Sign in violation of the Highway Traffic Act. Mr. Mullings also appeals the sentence imposed of 18 months imprisonment, a 2-year driving prohibition, and an $85 fine.

2Counsel for Mr. Mullings submits that the trial judge rendered unreasonable verdicts, misapprehended the evidence, provided insufficient reasons, and improperly relied on the Information as evidence. They further submit that the trial judge erred in exceeding the Crown’s position on sentence without alerting counsel and providing an opportunity for further submissions.

3The Crown concedes there was a misapprehension of evidence but submits that there was no substantial wrong and the verdicts and sentences should be upheld.

Evidence

4The sole issue on the trial was identification: whether it had been proven that Maurice Mullings had been the driver of the motor vehicle at the time the offences had been committed.

5The facts as agreed between counsel for Mr. Mullings and the Crown are that:

6On March 24, 2018 at 5:14 p.m., Officer Hurley was on duty in uniform driving an unmarked police vehicle. He was travelling northbound on Post Road, in Oakville, approaching the four-way intersection at Oak Walk Drive, when he saw a black Toyota Camry drive eastbound through the stop sign at the intersection. He applied the brakes of his police cruiser to avoid colliding with the vehicle. He observed the interior of the vehicle through the passenger’s side window.

7Officer Hurley testified that he observed two black males. They were in the driver and front passenger seats. The driver was in his late twenties, had black hair in cornrows, and was wearing a black sweater and sunglasses. Officer Hurley testified that cornrows are not an uncommon hairstyle for black people. It was difficult to observe the passenger’s face because he had his right hand up as if he was on his phone. Officer Hurley noted that the passenger had black hair, which did not appear to be in cornrows or braids, and he was also wearing a black sweater or shirt. Officer Hurley observed the interior of the vehicle for 2-3 seconds from a distance of a couple of feet.

8When Officer Hurley applied his brakes the suspect vehicle slowed, continued eastbound and then made a quick right turn. The officer activated his vehicle’s emergency equipment. The suspect vehicle immediately slowed but also began swerving. Officer Hurley then activated his vehicle’s siren, which caused the suspect vehicle to slow down, almost to a complete stop.

9Officer Hurley was about to exit his vehicle when suddenly the suspect vehicle took off at a high rate of speed southbound on Oak Park Boulevard. The vehicle continued through a traffic control intersection and accelerated toward the main entrance of a Walmart as people were entering and exiting the store. Officer Hurley relayed over the police radio that the vehicle had taken off, and he and other officers began to search the area for the vehicle.

10At approximately 5:20 p.m., a head-on motor vehicle collision at Ravineview Way just west of 8th Line in Oakville was called in. The complainant in the collision provided the license plate number of the other vehicle which matched that of the suspect vehicle pursued by Officer Hurley. Officer Grant arrived on scene and found that the doors of the Toyota Camry were left open and the occupants of the vehicle had fled. He testified that travelling in the direction that the Toyota Camry travelled, the driver had an obligation to stop at a stop sign.

11Two witnesses to the collision testified at trial.

12Jing Nan Yu, the driver of the mini-van involved in the collision, stated that the driver and passenger of the Toyota Camry fled the scene on foot. She described the men as black or Middle Eastern, with dark hair, and about the same age as her, 22 years old. She further testified that one of the men grabbed a bag from the back seat of the vehicle.

13Kamil Wozinski also testified as a witness to the collision. He was driving behind the mini-van. From his point of view, it seemed that the Toyota Camry swerved into oncoming traffic and crashed into the mini-van. He observed two men exit the Toyota Camry and leave the scene running. He described one of the men as having “corn rolls” and could not recall the second man’s hair. Both men had black hair, black skin, and dark tops with light coloured pants. Mr. Wozinksi testified that the man without “corn rolls” grabbed a black backpack from the back seat of the car before fleeing.

14The police set up a perimeter around a wooded area into which the two men were believed to have run. At approximately 5:27, Officer Hurley took a position at one point in that perimeter, at the end of a dead-end street called Dellbrook. At 5:58, he observed a black male emerge from the woods on a path, and noted that the man appeared to be the driver that he had seen earlier. Officer Hurley did not approach, but alerted other officers by radio.

15Constable Jibrail was one of the officers assisting in the search for the two men. After hearing that Officer Hurley had spotted the driver near the south side of the pond at the end of Dellbrook, he drove into the area and entered the trail on foot. He then observed a male matching the description of the male suspect with cornrows. The male was black with cornrows, thinner build, approximately 6’1”, wearing black, and he was speaking on his cell phone as he was walking.

16Upon approaching the male, Officer Jibrail noticed the man was breathing heavily, sweating, with fresh mud on him and brush and leaves on his hair and clothes. The man was holding his cell phone with his right hand. Officer Jibrail said, “Police, stop”. The man’s right hand, with which he was holding his phone, went up, but his hand remained up toward his ear, and he said, “Sorry I put you guys through this.” Officer Jibrail could not say whether the phone was pressed against the man’s ear but testified that it was at his ear. He noted that the man was looking at him when the utterance was made. At trial, Officer Jibrail identified the man as Mr. Mullings.

17Officer Hurley arrived on scene. He testified that as he got closer, he was able to recognize the man with Officer Jibrail as the driver of the vehicle who he had seen approximately 45 minutes earlier. He arrested the man who was identified as Maurice Mullings, with a date of birth of 1989 March 17, by a health card on his person.¹

18The other man who had fled from the vehicle after the collision was not located by police.

19Later, Mr. Mullings’ fingerprints were found on a plastic bag and on a plastic bottle found in the trunk of the Toyota Camry, which was a rental car.

20Officer Naud testified about fingerprint evidence found in and on the vehicle. In addition to locating Mr. Mulling’s fingerprints on the plastic bag and the plastic ginger ale bottle found in the trunk of the vehicle, there was a fingerprint on the inside frame of the driver’s door that did not belong to Mr. Mullings and could not be linked to anyone else. A fingerprint on the driver’s side interior frame between the front and rear door belonged to a Harold Markus Burry. Mr. Burry’s fingerprint was also found on the passenger side window. Several other fingerprints and palm prints were found that either did not belong to Mr. Mullings or were insufficient for analysis.

Misapprehension of Evidence

21The trial judge found on the evidence that she was satisfied beyond a reasonable doubt that Mr. Mullings was the driver. In giving her Reasons for Judgment, the trial judge misstated evidence given by the independent witness Wozinski. The trial judge indicated in her Reasons for Judgment that Mr. Wozinski had testified that the driver of the vehicle had “corn rolls”. The Crown concedes that Mr. Wozinski, in describing the two men who fled from the vehicle, identified neither as the driver.

22The Crown submits that independent of this error there was sufficient evidence proving identity to render the verdict nonetheless reasonable and that there was no substantial wrong.

23It is not clear from the Reasons for Judgment to what degree the trial judge relied on her mistake with respect to Mr. Wozinski’s evidence. While I am of the view that the other evidence was capable of supporting the finding that Maurice Mullings was the driver, it was not overwhelming. Given the well-recognized frailties of eye-witness identification, I cannot find that that there was no substantial wrong. I grant the appeal on this ground and order a new trial.

24It is therefore not necessary to consider the other grounds of appeal for conviction or the appeal as to sentence.

25Maurice Mullings is remanded to appear by videoconference at Halton OCJ Courtroom1, on Monday July 5, 2021 at 9:00 a.m. to set a date for trial.

Footnotes

1. 1Officer Hurley’s testimony that he recognized Maurice Mullings as the man he had seen driving the vehicle approximately 45 minutes earlier was completely omitted from the Appellant’s summary of the facts, but counsel for the Appellant acknowledged in oral submissions that this evidence had been given.