BARRIE COURT FILE NO.: CR-21-45
DATE: 20221007
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
TYLOR LORAN
Appellant
Jennifer Armenise, for the Crown/Respondent
Andrew Domacina and Alexander Ostroff, for the Appellant
HEARD: July 18, 2022
REASONS FOR DECISION
DE SA J.:
Overview
[1] On September 19, 2019, the Appellant, Tylor Loran, was arrested and charged with impaired operation of a motor vehicle, having a blood alcohol concentration equal to or over 80 mg/100 mL within two hours of driving, and driving while prohibited.
[2] At trial, the only live issue was identity. The trial judge convicted the Appellant of having a blood alcohol concentration over 80 mg/100 mL and driving while prohibited. A conditional stay was entered on the impaired operation charge. The Appellant received concurrent six-month sentences on each count and 12 months’ probation.
[3] The Appellant appeals his convictions and takes the position that the trial judge erroneously focused on credibility concerns rather than reliability concerns with respect to the eyewitness evidence, misapprehended evidence central to his finding of identity, and failed to properly apply the burden of proof.
[4] I disagree. In this case, the identification by eyewitnesses was virtually contemporaneous with the offence and was corroborated by other facts. Nothing in the trial judge’s reasons suggests a misapprehension of the evidence. Nothing in the record gives rise to a concern of misidentification. The appeal is dismissed.
[5] The reasons for my decision are outlined below.
Summary of Facts
[6] On the evening of September 19, 2019, Christena Visser and Tanja Pearson were in a car with a couple of friends. Visser was a passenger in the driver’s side back seat. Pearson was also in the back. As it was getting dark, at 6:00 or 7:00 p.m., the women noticed a truck swerving and driving erratically. It was swerving in and out of oncoming traffic as well as between the two northbound lanes.
[7] Due to the truck’s erratic driving, Pearson called 911, provided the license plate for the vehicle, and informed the dispatcher that the vehicle was driving all over the road and in and out of the lane. The driver was identified as a man wearing a tank top and a ball cap, and the truck’s licence plate number was AX9 9635.
[8] The women continued following the truck to a gravel shoulder, where Visser and Pearson exited their car and spoke to the driver (identified as the Appellant) for about five minutes. At that time, Visser observed that the Appellant was slurring his words. She observed a black male sitting in the passenger seat, and an open beer can in the centre console cupholder. When she asked the Appellant about his driving, he said he was quite tired from his shift at work. Visser suggested that the Appellant go to a nearby McDonald’s where the women could wait for a designated driving service with him.
[9] The women updated police as to the location of the truck as they drove to the McDonald’s. In the parking lot, Visser exited the car and waited with the Appellant and passenger by the truck, where she spoke with them for 20 to 30 minutes. The Appellant called a designated driving service, whose operator could not understand him, so Visser briefly took his phone to help communicate.
[10] Visser recalled that the Appellant had a black eye, and testified that, during their conversation, he told her that he had planned to go to boxing that day, but was unable to do so because he had facial injuries that had yet to heal. Pearson testified that, at McDonald’s, she and Visser conversed with the Appellant at “greater length”, in an attempt to “distract him” until police arrived.
[11] As they were waiting, the Appellant and the passenger entered the McDonald’s to get food. Shortly thereafter, a police cruiser arrived while the males were still inside.
[12] P.C. Melanie Morris spoke with Visser and Pearson, obtaining a description of the driver’s clothes – a white tank top, work pants, boots, and a blue baseball cap.
[13] As she was speaking with PC Morris, Pearson observed the two men exit McDonald’s and pointed the Appellant out to PC Morris, identifying him as the driver.
[14] After seeing PC Morris, the Appellant appeared startled, turned around, and quickly walked back to McDonald’s. PC Morris told him to stop but he instead kept walking and re-entered McDonald’s.
[15] When the Appellant entered McDonald’s, he turned right. The area to the right of the entrance included a little hallway that led towards the washrooms. PC Morris ran into McDonald’s towards the bathroom. As the door of the bathroom was about to close, she stopped it and pushed the door open.
[16] PC Morris grabbed the Appellant by the arm, pulled him into the hall, noted he had red glossy eyes, was unsteady and had a strong odour of alcohol, and arrested him. She handcuffed the Appellant, escorted him outside, conducted a pat-down search and put him in the back of her cruiser.
[17] At trial, both Visser and Pearson confirmed that the male they observed in the custody of PC Morris was the driver of the vehicle. At trial, Visser and Pearson also each made an in-dock identification of the Appellant as the driver of the vehicle.
The Reasons for Judgment
[18] It was admitted that the Appellant’s breath testing resulted in readings over 80 milligrams, and that he had been subject to a prohibition order.
[19] The only live issue was identity – whether the Appellant was the driver. At the outset of his analysis, the trial judge recognized that eyewitness identification evidence must be treated carefully but was satisfied beyond a reasonable doubt that the Appellant was the driver of the vehicle. The trial judge explained:
It is important that both Ms. Visser and Ms. Pearson spent significant face-to-face time with the driver of the truck. Initially, they talked to him for a few minutes when he pulled his truck over. Then they spent time, some time, about 20 minutes, standing and conversing with him in the McDonald’s parking lot. They clearly had ample opportunity to become familiar with his features and what he was wearing. They observed him going to the McDonald’s, and when he came out they pointed to him to Constable Morris, who immediately pursued him into the restaurant.
Constable Morris saw him turn right inside the door and go toward the washroom area. She continued to pursue him and got to the washroom before the door closed. The driver was the only person she saw in the washroom. She shortly thereafter arrested the driver and escorted him into the cruiser. Both Ms. Visser and Ms. Pearson were outside and saw that the person who had been arrested was the driver that they had been dealing with. There is no dispute that the person arrested was the defendant.[…]
It is also of some relevance that Ms. Visser and Ms. Pearson identified the defendant in court during their evidence as being the driver.
[20] With respect to the evidence of the black eye, he said:
Further, my determination is similarly not adversely affected by the fact that Ms. Vicer [sic] observed that the driver had a black eye, and neither Ms. Pearson nor Constable Morris mentioned such an observation in their evidence. In this regard, I note that neither Ms. Pearson or Constable Morris was specifically asked if the driver had a black eye. As well, the black eye might not have been considered an important feature by either Morris or Pearson.
[21] The trial judge thus concluded that all three offences were proven beyond a reasonable doubt.
Issues on Appeal
[22] The Appellant raises the following three issues on appeal:
The Appellant maintains that the trial judge erred in his assessment of reliability of the witnesses. It was not enough to find the witnesses were honest and lacking a tendency to exaggerate. The trial judge failed to determine whether their evidence was sufficiently reliable to support the Appellant’s conviction.
The Appellant argues that properly appreciated, this evidence made clear that PC Morris lost sight of the suspect when he re-entered McDonald’s and did not re-establish visual contact until she opened the bathroom door and saw the Appellant. The trial judge misapprehended the evidence by failing to acknowledge this gap in PC Morris’ observations.
The trial judge further erred by failing to properly apply the burden of proof with respect to the identity of the driver. The trial judge reasoned that “the black eye might not have been considered an important feature” by PC Morris. According to the Appellant, this reversed the burden of proof.
Analysis
Standard of Review
[23] The standard of review on questions of fact is one of deference. The test on appellate review is whether the factual findings made by the trial judge could have reasonably been reached based on the evidence.
[24] An appellate court is entitled to review the evidence, re-examine and re-weigh 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 have reasonably reached the conclusion it did on the evidence before it.
[25] Provided this threshold has been met, the appellate court is not to substitute its view for that of the trial judge, nor permit any doubts it may have to persuade it to order a new trial: Criminal Code of Canada, ss. 686(1)(a)(i) & 822; R. v. Burns 1994 CanLII 127 (SCC), [1994], 1 S.C.R. 656, paras. 12, 14.
[26] As stated in R. v. Tat, from the Ontario Court of Appeal,
The review directed by s. 686(1)(a)(i) is a limited one for very good reasons. The appellate process is not well suited to the assessment of the cogency of evidence led at trial. Appellate courts can claim no particular expertise in the second-hand evaluation of evidence. Appellate assessment of the factual merits of a case is not likely to be more reliable or accurate than the judgment made at first instance. Consequently, it is only in the clearest cases where the result at trial can be said to be unreasonable that appellate intervention is warranted. [Emphasis added.]
R. v. Tat, 1997 CanLII 2234 (ON CA), [1997] OJ No. 3579 (OCA), at p. 20 of 30.
[27] That said, when there is a misapprehension of evidence on a material issue, the matter must be remitted back for trial. As explained by Doherty J.A. in R. v. Morrissey, 1995 CanLII 3498 (ON CA):
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.
Did the Trial Judge Misapprehend the Evidence Establishing identity?
[28] In this case, the witnesses saw the Appellant, spoke to the Appellant for 20 to 30 minutes, witnessed the Appellant go into the McDonald’s and come out with the arresting officer shortly after speaking with him. This was a fluid set of facts; these things happened within minutes of each other. The eyewitness identification evidence was also substantiated by the circumstantial evidence of impairment at the time of the Appellant’s arrest. R. v. Quercia 1990 CanLII 2595 (ON CA), [1990] OJ No. 2063 at p. 6 of 7.
[29] The reliability of the identification evidence must be assessed in the circumstances in which that identification is made. In this case, the evidence of the witnesses together with the other surrounding facts provided ample reason for the trial judge to be satisfied beyond a reasonable doubt about the Appellant being the driver of the vehicle.
[30] Unlike much of the jurisprudence on “eyewitness identification” the identification here was contemporaneous to the time of the arrest: R. v. Gonsalves, 2008 CanLII 17559 (ON SC), [2008] OJ No. 2711 (SCJ), at para. 38; Powell, 2007 CanLII 45918 (ON SC), [2007] OJ No. 4196 (SCJ).
[31] It is clear that the trial judge considered the specific nature of the witnesses’ interactions with the Appellant, including the length of time they spoke to him and the surrounding circumstances. Contrary to the Appellant’s position, the trial judge was not merely focused on the candid nature of their evidence.
[32] I also disagree with the Appellant that the trial judge misapprehended the observations made by PC Morris. Nothing in the trial judge’s reasons suggests that the trial judge believed PC Morris had continuous observations on the Appellant. Rather, PC Morris’ observations and arrest were properly considered by the trial judge in the context of other evidence supporting the Appellant’s identification.
[33] While PC Morris may have momentarily lost sight of the Appellant, the Appellant matched the description of the suspect she had been chasing just moments before. The Appellant was intoxicated and wearing the same clothing she had observed him wearing as he entered the McDonald’s.
[34] Both Ms. Visser and Ms. Pearson were outside and confirmed that the person who had been arrested (the Appellant) was the driver that they had been dealing with.
[35] Indeed, the gap in observations is hardly significant when considering the evidence in its entirety.
[36] Finally, I also disagree that the trial judge’s comment that “the black eye might not have been considered an important feature” by PC Morris reversed the burden of proof. Again, in the context of the other identification evidence and the circumstances of arrest, PC Morris’ failure to reference the Appellant’s black eye was considered by the trial judge to be immaterial. Indeed, Pearson also did not notice the Appellant’s black eye.
[37] I have no concern that the trial judge’s remarks suggest a reversal of the burden of proof.
[38] The appeal is dismissed.
Justice C.F. de Sa
Released: October 7, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
TYLOR LORAN
Appellant
REASONS FOR DECISION
Justice C.F. de Sa
Released: October 7, 2022