COURT FILE NO.: 141/21
DATE: 20211124
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Marol Angou
Appellant
J. Lee for the Crown
R. Sheppard for the Appellant
HEARD: November 12, 2021
mcarthur j.
[1] Mr. Angou was found guilty and convicted of three Criminal Code driving/conveyance offences after a trial. Identity was the only live issue.
[2] This appeal involves the trial judge’s misapprehension of part of the evidence of one Crown witness.
The Issue
[3] The issue is whether the error of the trial judge was a material aspect of evidence which played an essential part in the judge’s reasoning process that resulted in conviction This might otherwise be stated as whether the conviction depended on the misapprehension of evidence.
Positions of the Parties
[4] Appellant’s counsel submits that the trial judge’s finding that the appellant was operating the motor vehicle was premised on the misapprehension of evidence of Sgt. Anderson and, as such, cannot stand.
[5] Crown counsel submits the trial judge’s assessment did not amount to a reversible error as it did not result in a miscarriage of justice. The Crown submits the trial judge’s misapprehension was immaterial to his reasoning process that resulted in conviction.
[6] For reasons that will follow, the appeal will be dismissed.
Factual Background
[7] The facts are not in dispute. At trial, the Crown called a number of witnesses.
[8] About 2 weeks before the April 14, 2020 incident, the appellant had been shot and sustained injuries to his abdomen, groin and thigh.
[9] On April 14, 2020, London Police Service had the appellant under surveillance for drug trafficking, had a warrant for his arrest and were actively looking to arrest him.
[10] The central police officer looking to arrest the appellant and Crown witness at trial was Sgt. Anderson. He had attended the family home of the appellant and was told by the appellant’s mother that he was not there. He then attended the appellant’s former girlfriend’s residence and told likewise. He then went to 340 Hamilton Road where it was believed the appellant was residing and set up surveillance.
[11] On April 14, 2020, various police officers observed a person depart the residence and who was soon after the sole occupant driving a dark Ford Taurus vehicle from the parking area of the multi-unit residence parking lot at 340 Hamilton Road in the City of London.
[12] Police officers in other vehicles began to follow this motor vehicle and directed it to stop. The vehicle did not stop and was operated in a manner to evade the police and did so over a short period of time. Within about a half-hour, the vehicle was observed by two civilian witnesses driven erratically and coming abruptly to a stop after swerving to avoid collision with another vehicle, was damaged and then seen to be abandoned by a male individual walking away with a limp and carrying an object described by one witness as a cane.
[13] The civilian witness descriptors of the individual, and in particular the jacket worn by the individual, were generally consistent with those of the police officers who had recently observed the person believed to be the appellant. The appellant was arrested the following day.
[14] The police officers’ testimony, other than Sgt. Anderson, can each be briefly summarized as follows:
a. Cst. Morrison conducted surveillance on April 14, 2020 at a specific Hamilton Road residence from about 100 meters away. In the mid afternoon, he saw a black male approximately 6 feet in height and wearing a very distinct light-blue coloured jacket exit the area around Unit 5. He disappeared around Unit 2 and went to the rear of the building. A few seconds later a dark Ford vehicle exited the residence onto Hamilton Road operated by a black male as the sole occupant wearing a light-blue jacket. This officer never had previously dealt with the appellant but had viewed the appellant’s mug shot that day and received information from Sgt. Anderson that the appellant was wearing a light-blue jacket and walking with a cane. He followed the Ford vehicle and observed the roof lights activated of two other pursuing police vehicles to conduct a vehicle stop of the Ford vehicle which ended up travelling at a high rate of speed over a few minutes.
b. Cst. Wintjes was an officer operating one of the other police vehicles that had activated the lights. The Ford vehicle was driven in an evasive manner and the passenger side of the Ford sideswiped the passenger side of the officer’s vehicle before speeding off and turning onto another street. He did not make observations of the driver since the windows were tinted and vehicle operated too fast to make observations on the driver.
c. Cst. Grasman was an officer operating another police vehicle and corroborated the manner in which the Ford vehicle was operated and that its side windows were tinted. He was not able to make any observations of the driver.
[15] The trial judge observed early in his reasons that none of these witnesses were able to make a visual identification of the appellant as the driver of the motor vehicle. He found that the evidence of Sgt. Anderson was critical to the issue of identification.
[16] Sgt. Anderson had had countless dealings with the appellant’s family since 2011 as well as about two weeks before April 14, 2020 when he attended the hospital on two occasions and met with the appellant for over a 15 minute period. The appellant was being treated for gunshot wounds. Sgt. Anderson had also been to the appellant’s family home for at least 10 interactions involving the appellant over the years, was familiar with his mother and brother, Real Angou, who had passed away.
[17] On April 14, 2020, Sgt. Anderson saw the appellant at about 3:40 pm at the Hamilton Road residence address. He had observed a dark Ford Taurus arrive at that residence with a white male person and the appellant, the appellant left the vehicle parked and walked to Unit 5 of the residence. He described the appellant wearing a bright blue hoodie, had a satchel, used a cane and walked with a noticeable limp. Based on these observations that this was the appellant, he called the emergency response team to assist in an arrest of the appellant.
[18] At 4:54 pm, Sgt. Anderson observed the appellant come out of the residence wearing a light blue sweatshirt, walking with a cane and limping. He observed the appellant went to the backyard area. Very shortly after, the Ford vehicle came out from the backyard area. Sgt. Anderson obtained and used binoculars for a clearer view and identified the appellant as the driver. He then notified his police colleagues to conduct a stop and arrest of the appellant. Sgt. Anderson also made observations of the Ford vehicle as it was coming directly toward him and observed a front licence plate on an angle which corresponded to the same licence plate condition when the vehicle was located a short time later.
The Misapprehension
[19] The trial judge’s reasons pertinent to this appeal in relation to Sgt. Anderson’s evidence are as follows:
“Detective Anderson was working the dayshift on the 14th of April 2020. He was engaged in tracking Mr. Angou in order to arrest him. He had familiarity with Mr. Angou, which in my view is important evidence. He had attempted to interview Mr. Angou at the hospital on two separate occasions relating to a shooting that Mr. Angou had suffered. And the detective here testified that he had gone to see him on the 28th of March 2020. He saw him in the hospital. He wanted to get his statement but could not and that he again attended the next day in an attempt to get his statement and spent 15 minutes with him at that time. He testified that he is familiar with Mr. Angou and that he has known him, as he said, since 2011. He’s been to his family home. He testified to at least 10 interactions over the years and in circumstances that, in my view, would cause the officer to have a greater familiarity with Mr. Angou than perhaps otherwise might be assumed. And that is that Mr. Angou’s brother had been killed and that Detective Anderson had been involved in investigating that matter. He testified that he was confident that it was Mr. Angou on the 14th of April.”
and also,
“He did not lose track of the vehicle at all as it drove around the cab in the driveway. His knowledge of Mr. Angou is, in my view, significant. It’s a knowledge that goes back perhaps a decade or a little bit more involving family interaction with his mother, with his brother and himself in the aftermath of Mr. Angou’s brother’s murder. He also had Mr. Angou’s mugshot. He was looking for him for the specific reason of arresting him, and he had recent interaction with him in the hospital when he attempted to get the statement. The involvement going back to the death of Mr. Angou’s brother and the periodic visits to the home would certainly give him a reason for remembering Mr. Angou and recognizing him, even from a distance, in my view.”
[20] The misapprehension in this case involves those areas in bold as noted above.
[21] It was agreed by Crown counsel that there was neither any evidence that Real Angou was killed, murdered nor that Sgt. Anderson was involved in an investigation into Real Angou’s death.
The Law
[22] In cases where misapprehension of evidence had occurred, as established by the Ontario Court of Appeal in R. v. Morrissey 1995 CanLII 3498, the court is directed to:
a. first consider the reasonableness of the verdict. If the appellant succeeds on that ground, an acquittal will be entered. Not all misapprehensions of evidence will render the verdict unreasonable, although it will facilitate such an argument if the trial judge misapprehended significant evidence and,
b. secondly, if the verdict is not unreasonable, then the court should determine whether the misapprehension of evidence occasioned a miscarriage of justice. If so, then the conviction must be quashed.
[23] Justice Doherty, writing for the court, stated at para 93 (emphasis in bold):
When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
[24] Subsequent cases have refined when appellate intervention is warranted. A misapprehension of evidence will only warrant appellate intervention if it relates to a material aspect of evidence which played an essential part in the reasoning process that resulted in conviction. Stated otherwise, the misapprehension amounts to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on which the conviction was based on unsteady ground. See also R. v. Lohrer, 2004 SCC 80 at para. 4 and R. v. Sinclair 2011 SCC 40 at paras. 50 and 56.
Reasonableness of the verdict
[25] The court must conduct a limited review of the evidence at trial to determine the cumulative effect of the evidence to satisfy the standard of proof beyond a reasonable doubt. In submissions, counsel for the defence conceded that in these circumstances there could not have been any other operator of the motor vehicle in question.
[26] Leaving aside the materiality of the evidence for the moment, I agree with the Crown that the verdict was reasonable in view of the overall evidence. There was no alternative possibility that the person observed operating the dark Ford Fusion motor vehicle, exited and abandoned the vehicle at the St. Peter’s Seminary parking lot was different from the person observed driving from the Hamilton Road residence a short time before.
[27] The main evidence in relation to this can be summarized as follows:
a. At 3:35 p.m., Sgt. Anderson observed a dark Ford vehicle drive into 340 Hamilton Road and observed a white unknown male and appellant at the rear of the residence enter unit 5. The appellant was wearing a bright blue hooded sweatshirt, a satchel on his right side and using a cane to walk. Sgt. Anderson knew the appellant, knew he was associated with the residence address and knew the appellant was arrestable;
b. At 4:10 p.m., Sgt. Anderson observed the Ford vehicle leaving this residence. He kept his position because the appellant did not go into the car.
c. At 4:40 p.m., Det. Cst. Morrison relieved Sgt. Anderson who drove to the police station.
d. At 4:48 p.m. Det. Cst. Morrison observed a black male exit the area around unit 5 of the residence and walked towards and disappeared to the area around unit 2. This male was approximately 6 feet and wearing a blue-coloured jacket but he did not observe any facial features.
e. At 4:54 p.m., Sgt. Anderson returned to the surveillance location behind Det. Cst. Morrison’s unmarked vehicle. Sgt. Anderson observed the appellant exit the residence and walk to the rear of the building. He wore a bright blue hooded sweatshirt, walked with a limp and used a cane.
f. Shortly after, Sgt. Anderson observed the black Ford vehicle drive towards Hamilton Road with one black male occupant wearing a bright blue sweater. Sgt. Anderson used the binoculars and observed the appellant as the driver through the front windshield with the Ford vehicle directly facing him.
g. Sgt. Anderson then notified other officers the appellant was driving and to conduct a vehicle stop. Sgt. Anderson also noted the front licence plate on the Ford vehicle was missing a screw and was crooked and the lights on the back of the vehicle appeared white.
h. Immediately, Cst. Morrison attempted to follow the Ford vehicle when it left the Hamilton Road address and onto Inkermen Street. He observed a black male driving the vehicle and wearing a light blue-coloured jacket. There were no other occupants.
i. Sgt. Grasman was dispatched to assist with the arrest of the appellant. He was not provided information regarding the licence plate number for the black Ford vehicle and he also observed the front licence plate was partially hanging by one bolt.
j. Sgt. Wintjes was also dispatched to assist with the appellant’s arrest. When he and Sgt. Grasman located the Ford vehicle on Inkermen St., they attempted to stop the vehicle. It looked like the vehicle was going to pull over; however, as Sgt. Wintjes went to exit his vehicle, the Ford vehicle accelerated and the passenger side of the Ford vehicle scraped the front corner passenger side of Sgt. Wintjes’ vehicle and drove away at a high rate of speed.
k. Just after 5:00 p.m., Father Peter Keller observed a black Ford vehicle parked in the parking lot of St. Peter’s Seminary and observed a black man exit from the driver’s side wearing a light blue trainer, warmer or jacket and who quickly grabbed what looked like a long pole from the back seat and quickly hobbled away from the parked vehicle. The male was favouring his right leg. He also observed one of the tires on the vehicle was damaged.
l. At 5:11 p.m., a citizen called 911 and reported a vehicle matching the Ford driving on flat tires and pulled into and was parked at St. Peter’s Seminary.
m. Another civilian witness, Ms. Weerasooriya, while walking on a path near St. Peter’s Seminary around 5:15 p.m. to 5:30 p.m. observed a vehicle come towards her and swerved around a van. She saw the driver exit the vehicle and described him as a man who was tall, dark-skinned and wearing a light blue jacket. The man then went into the back seat and grabbed what she assumed was a cane and limping with his left leg when walking. This person was the only occupant of the vehicle that had both rims damaged. He appeared to be about 5’ 8” or 6 feet tall and was thin.
n. At 5:15 p.m., Sgt. Wintjes arrived at the St. Peter’s Seminary and observed the vehicle and both driver’s side tires were flat. There was also fresh damage to the passenger side of the vehicle.
Materiality of evidence and essential role in the reasoning process
[28] The trial judge, prior to assessing the reliability of Sgt. Anderson’s evidence, expressly instructed himself as to the inherent frailties of identification evidence and that the probative value of such evidence must be assessed on the reliability, not the credibility of the witness. He also cited and was alive to the guidelines in R. v. Turnbull [1976] 3 All E.R. 549 (Eng C.A.).
[29] The trial judge’s factual findings in relation to Sgt. Anderson were as follows:
a. He had known the appellant since 2011, had been to the family home and had at least 10 interactions with the appellant over the intervening years;
b. He attended the hospital on March 28 and March 29, 2020 to interview the appellant after he was shot. He spent about 15 minutes with the appellant;
c. He was tracking the appellant on April 14, 2020 in order to arrest him;
d. He observed the dark Ford Taurus vehicle arrive at 340 Hamilton Road. He observed a white male and the appellant and the appellant was wearing a bright blue hoodie, carried a satchel, used a cane to walk and was limping;
e. When he came back after a brief trip to the police station just after 4:54 p.m., he observed the appellant exit the residence and head toward the backyard wearing a light blue sweatshirt, walking with a cane, and limping. Shortly after, he observed the appellant go to the backyard and then the Ford vehicle came out from the backyard with the operator being a black male, wearing a bright blue top;
f. He had and used binoculars to identify the appellant as the driver of the vehicle and observed him while the Ford vehicle was coming directly toward him. The appellant was in the driver’s seat, wearing a bright blue sweatshirt as the Ford vehicle exited the residence.
[30] The trial judge found Sgt. Anderson’s recognition evidence was reliable for the following reasons:
a. He clearly knew what the appellant looked like since he was familiar with the appellant over the years and most recently in the aftermath of the appellant having been shot and injured;
b. On April 12, 2020, he had sufficient time to observe the appellant during the course of a targeted surveillance and had also obtained binoculars to get a clearer view of the appellant. He identified the appellant as the man he had earlier identified as Mr. Angou;
c. He made his observations from a relatively short distance, they were not compromised by any issues with visibility and were made during daylight in the afternoon hours;
d. There were minor-to-nonexistent obstructions in his observations throughout;
e. He had significant knowledge of the appellant from prior various interactions with the appellant’s mother and brother and included periodic visits to the family’s home;
f. He was looking specifically to arrest the appellant with whom he had recently interacted with at the hospital seeking to get a statement from the appellant who had been shot and injured;
g. There was little temporal time-lapse between the observations and his identifications of the appellant;
h. There existed few, if any, material discrepancies between his description of the appellant that included the same ethnicity, a notable limp, the use of a cane, the blue apparel top and the operation of the Ford motor vehicle.
[31] The key to identifying the appellate as the driver rested upon the evidence of Sgt. Anderson. In this case, it is essentially the past familiarity that is largely the basis for the identification evidence.
[32] In this case, the familiarity of Sgt. Anderson in relation to the appellant has both recent and past features that are not in dispute: recent in that the officer attended the hospital and specifically spoke to the appellant for some not inconsequential period of time and for the specific reason in the investigation of the shooting and injuries to the appellant; past in that his past contacts involved the appellant in relation to the appellant’s other specific family members, countless attendances at the family’s home and a number of incidents over the intervening years. These features provide a context to properly assess the misapprehensions of evidence.
[33] The appellant’s counsel submits Sgt. Anderson’s recognition was premised on the misapprehension of his trial evidence and as such an affirmative finding of identification cannot stand. However, in R. v. Morrissey, R. v. Lohrer and R. v. Sinclair as cited earlier, all cases require the material aspect of evidence to play an essential part in the reasoning process that resulted in conviction to be successful on appeal.
[34] Here, the aspect of the misapprehended evidence goes to the familiarity of Sgt. Anderson with the appellant. There can be no doubt there was some past involvement that arose in relation to the appellant’s brother. However, the appellant’s brother was in no way involved with this incident nor was the appellant’s brother alive at the time of this incident. He was in fact deceased by the time of this incident.
[35] Significant to the issue in this appeal, the familiarity of Sgt. Anderson to the appellant was not exclusively nor substantially based on the brother of the appellant. His familiarity extended to the appellant, the appellant’s mother and countless attendances at the family’s residence on various occasions over a number of years. I find that in the context of the overall evidence, this misapprehension of evidence is not a material aspect nor a material feature of the evidence.
[36] Even if the evidence was regarded in a material manner, I find that this evidence did not play an essential part in the reasoning process in this case. Here, the officer’s past involvement with the appellant was significant, of long duration, associated with other family members and the family home. The attendance of the officer on the date of the incident was at the family home and other locations the appellant was reasonably expected to be. In addition, the officer made substantial, non-obstructed and clear observations throughput of the person being sought to be arrested, who was the appellant.
[37] Here, the misapprehension of evidence of the trial judge played a peripheral part in the reasoning process and was limited to the feature of familiarity of the appellant. This involved a minor aspect of the evidence in relation to reliability. The trial judge’s reasoning most adequately addressed and considered the much larger and more significant body of evidence as it related to familiarity and the overall reliability in relation to the identification issue.
[38] Put another way, I find that if the misapprehended evidence was struck in the trial judge’s judgment, the trial judge’s reasoning on which the conviction was based remains on steady ground.
Conclusion
[39] For reasons stated above, the misapprehension of the evidence in this case was neither material nor did it play an essential part in the reasoning process.
[40] The appeal is dismissed.
“Justice M.D. McArthur”
Justice M.D. McArthur
Released: November 24, 2021
COURT FILE NO.: 141/21
DATE: 20211124
ONTARIO
SUPERIOR COURT OF JUSTICE
Her Majesty the Queen
– and –
Marol Angou
REASONS FOR JUDGMENT
McArthur J.
Released: November 24, 2021