R. v. White, 2013 BCSC 1553

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. White, 2013 BCSC 1553 Date: 20130731 Docket: 35034-2 Registry: Port Alberni Regina v. Mathew William White Before: The Honourable Mr. Justice Smart Oral Reasons for Judgment Counsel for the Crown: Todd G. Patola Counsel for the Accused: Dale M. Melville Place and Date of Trial: Port Alberni, B.C. July 30, 2013 Place and Date of Judgment: Port Alberni, B.C. July 31, 2013 I. INTRODUCTION [ 1 ] Mr. White is charged with dangerous driving, contrary to s. 249(1) (

a) of the Criminal Code , R.S.C. 1985, c. C-46, and with failing to stop his vehicle while being pursued by a police officer, contrary to s. 249.1(1) . [ 2 ] The central issue is identification. Was the accused, Mathew William White, the driver of the motor vehicle pursued by Cst. Fracassi on September 7, 2012? [ 3 ] Mr.

White is presumed innocent, and the Crown has the burden of proving his guilt beyond a reasonable doubt, a standard of proof much closer to absolute certainty than a balance of probabilities. [ 4 ] It is not challenged by the defence, and I am satisfied beyond a reasonable doubt, that whoever was driving the vehicle pursued by Cst. Fracassi committed both offences. The driver sped away from the constable, went through two stop signs at four-way intersections without slowing down or stopping, despite no stop signs for traffic on the intersecting streets.

The driver then continued at an excessive rate of speed, including through a school zone, and successfully evaded Cst. Fracassi's pursuit. [ 5 ] Mr. White's identification as the driver of the vehicle in question is dependent on the evidence of Cst. Fracassi. There is no other evidence linking him to the vehicle Cst. Fracassi was pursuing. II. RECOGNITION EVIDENCE [ 6 ] The frailties of eyewitness identification are well-known. Mistaken identification has been one of, if not the leading cause of wrongful convictions in Canada, the United States, and many other countries.

The reasons for mistaken identification were reviewed by the Honourable Peter Cory in his report into the wrongful conviction of Thomas Sophonow. [ 7 ] In this case, Cst. Fracassi had seen and dealt with the accused prior to September 7, 2012. As such, his identification of Mr. White is more properly described as recognition evidence. [ 8 ] Mr. Melville, counsel for Mr.

White, refers me to a number of case authorities that consider the frailties of eyewitness identification evidence and the care judges must take when scrutinizing such evidence, even when the purported identification is from a witness who knew and could recognize the suspect prior to the incident in question. In particular, he refers me to: R. v. Nicholls , 2012 BCSC 1982 ; R. v. Muncey , 2013 BCSC 689 ; R. v. Chester , BCPC, May 29, 2013, Courtenay File Number 38110; and R. v.

Pierce , 2011 BCCA 485 . [ 9 ] In Pierce , Smith, J.A., provided caution with respect to recognition evidence at paragraph 39 of her decision: While recognition evidence may be more reliable than eyewitness identification of a stranger, special caution must still be taken when using it to identify an offender, as it is still merely a statement of a witness's opinion about what he or she saw. Like all identification evidence its weight or reliability will depend on such circumstances as the nature, length and memorable features of the witness's previous contact with the accused. In R. v. Bardales . . . Mr.

Justice Wood, albeit dissenting in the result, described the character and role of recognition evidence in this helpful manner:

With respect, I am of the view that there is no legal distinction between eye-witness identification cases on the one hand, and so-called "recognition" cases on the other.

In both, the identification of the accused is based on the evidence of one or more witnesses who offer the opinion: "That is the person who I saw." Where it is a factor, recognition is a circumstance which does no more than enhance the weight to be attributed to that opinion by the trier of fact. [ 10 ] While special care must be taken when assessing eyewitness identification evidence, even one based on recognition evidence, the reliability of an identification can be significantly enhanced when it is made by a witness who knew and could readily recognize the suspect prior to the event in question.

This is a matter of common sense and is consistent with the cases provided to me by Mr. Patola on behalf of the Crown. These cases include: R. v. Bob , 2008 BCCA 485 ; R. v. Aburto , 2008 BCCA 78 ; and R. v. Ba , 2009 BCCA 400 . [ 11 ] In the circumstances of this case, I must assess Cst. Fracassi's ability to accurately recognize Mr. White prior to September 7, as well as his ability and opportunity to identify the driver of the vehicle on September 7. [ 12 ] I will first review some of Cst. Fracassi's evidence that is relevant to his purported recognition of the accused on September 7.

As is usually the case with identification or recognition evidence, it is the reliability of his evidence that is at issue, not his honesty as a witness. III. CST. FRACASSI'S ABILITY TO RECOGNIZE THE ACCUSED [ 13 ] Cst. Fracassi testified that he was first posted to the RCMP detachment in Port Alberni in 2009 and that between then and September 7, 2012, he saw and spoke at length with the accused on numerous occasions.

He said the first occasion he can now recall was in 2010, when he and another officer arrested a person who was with the accused and the accused intervened and attempted to fight the other officer and ended up also being arrested. The officer described another incident in 2011 when the accused was involved in a fight with someone else. [ 14 ] Cst. Fracassi said there were also many occasions when he attended a residence at which the accused was staying. He attended because of complaints of loud noise and partying.

He also recalled a particular investigation concerning an assault complaint between the accused and his girlfriend and he participated in the arrest of the accused. He also "booked" him into police cells, a process that took approximately a half an hour and required Cst. Fracassi to ask the accused a number of standard questions usually asked when a person is arrested and lodged in cells. [ 15 ] Cst. Fracassi said he testified at the accused's trial on March 27, 2012, and because of the position of the witness box in the courtroom, he stood across from Mr.

White and looking directly at him for approximately 20 to 25 minutes while he gave his evidence. [ 16 ] In addition to the many occasions when the officer saw and spoke with the accused prior to September 7, 2012, he also saw photographs of Mr. White. He said Mr. White had been identified by the Port Alberni RCMP as one of the eight most prolific offenders in the community and photographs of him were regularly posted on the police bulletin board that he reviewed at the start of each shift. Copies of some of these photographs were entered as an exhibit. They are consistent with Mr.

White's present appearance in court. I note that Mr. White is a person with distinctive facial features. [ 17 ] Cst. Fracassi's knowledge of and involvement with Mr. White prior to September 7, 2012, was admitted solely for the purpose of proving the officer's ability to recognize Mr. White. It is discreditable conduct that would not otherwise be admissible and must not be used by me for any other purpose; in particular, not as evidence of bad character or propensity. [ 18 ] Cst. Fracassi's evidence concerning his ability to recognize Mr. White prior to September 7 was not challenged.

In fact, counsel suggested that the accused was so well-known to the officer that he may have misidentified the driver of the vehicle because he was looking for and expecting to see the accused. [ 19 ] I accept Cst. Fracassi's evidence and find that he: had dealt with the accused face-to-face on numerous occasions; had constantly seen his photograph in the course of carrying out his police duties; and prior to September 7, 2012, could readily recognize him if and when he had sufficient opportunity to do so. IV. CST. FRACASSI'S EVIDENCE ABOUT THE DRIVER [ 20 ] Cst.

Fracassi testified that at approximately 10:00 a.m. on September 7, 2012, he made a right turn on to Redford Street shortly after leaving the RCMP detachment. He said it was a bright sunny day and he was driving a marked police vehicle. Redford Street runs east and west, and has four lanes of traffic: two lanes for eastbound traffic and two lanes for westbound traffic. Cst.

Fracassi was proceeding west in the curb lane, when he noticed a vehicle to his right slowly moving out of the intersecting alley between 6th and 7th Avenues. 6th and 7th Avenues, and the alley between them, run in a north/south direction, and the vehicle he saw moving out of the alley on his right side was facing south. [ 21 ] The officer said he was in the process of accelerating his vehicle when he noticed the vehicle. He described it as a beige or gold older model Oldsmobile. Cst.

Fracassi was travelling at approximately 40 kilometres per hour as he drove past the vehicle and looked to his right through the windshield of the Oldsmobile. He said he recognized the driver as the accused, Mathew White. In cross- examination, he said that he looked at the accused for approximately one to two seconds. [ 22 ] He agreed in cross-examination that there was a passenger in the vehicle but he could give no description of that person other than he or she was Caucasian. He said he knew that the accused had no valid driver's licence and knew there were warrants outstanding for his arrest.

He testified he could not believe what he had just seen and immediately changed lanes to the center line lane and then made a left turn southbound on 5th Avenue, with the intention of driving around the block in an effort to meet up with and pull over the Oldsmobile. [ 23 ] He traced his route on a map of the City of Port Alberni, testifying that he turned left off 5th Avenue and on to Bute Street, travelled east on Bute Street and then turned left onto 6th Avenue and proceeded north. He said as he turned on to 6th Avenue he saw

the Oldsmobile coming towards him southbound. 6th Avenue has only two lanes for traffic, one for northbound traffic and one for southbound traffic, and the Oldsmobile was in the southbound lane. [ 24 ] Cst. Fracassi said the Oldsmobile was roughly a block away from him when he first saw it. He said it was travelling at a slow rate of speed, approximately 20 kilometres per hour. Cst. Fracassi said he was travelling at approximately 40 kilometres per hour an hour as the two vehicles approached each other.

He said there were no other vehicles on 6th Avenue at that location at the time, and he slowed down and attempted to position his vehicle as close to the centre of the road as possible to get the best view of the driver. [ 25 ] He said when the two vehicles were about 10 feet apart he was able to look into the driver's seat area of the Oldsmobile through the windshield and make eye contact with the driver. He said he again recognized the driver as Mr. White.

He said at that point the accused saw him, grabbed a cigarette from his mouth and threw it out of the window, and accelerated away in his vehicle south on 6th Avenue at a high rate of speed. [ 26 ] Cst. Fracassi said as the accused drove past him, his view of the driver only got better and the driver was only about five feet away from him as the vehicles passed on the street. The officer said that he saw the accused's face for about two seconds as they passed each other in their vehicles on 6th Avenue. He said he was positive the driver was the accused.

He said it was after they made eye contact that the accused accelerated the Oldsmobile and sped away, and that he then activated his emergency lights, did a U-turn, and gave chase. He described the Oldsmobile speeding through the two stop signs at the next two intersections and how he eventually abandoned his pursuit as he entered into a school zone on Argyle Street, out of concern that an innocent third person might be seriously injured or killed. [ 27 ] Mr. White was not located and not arrested until some months later. V. POSITIONS OF COUNSEL [ 28 ] Mr.

Melville argues that the officer's opportunity to recognize the driver was too brief to provide a reliable identification that proves Mr. White's guilt beyond a reasonable doubt. He stresses the inherent frailties of eyewitness identification evidence, even when based on evidence from someone who knew a suspect and says that here the officer only saw the driver for approximately three seconds in total. He submits that because of the officer's past involvement with the accused and his knowledge that there were warrants out for his arrest, he was looking for and expecting to see Mr.

White and this fact undermines the reliability of the officer's identification of the driver. [ 29 ] Mr. Melville submits that the reliability of the officer's identification is further undermined by the officer's failure to obtain the vehicle licence number or any description of the passenger. [ 30 ] He also emphasizes the absence of any confirmatory evidence and the high burden of proof and the presumption of innocence. [ 31 ] Mr. Patola emphasizes the fact that this is recognition evidence and that the officer had two opportunities to identify and recognize Mr. White as the driver. VI.

ANALYSIS [ 32 ] I accept the officer's description of what occurred during his two opportunities to see the driver of the Oldsmobile. The officer estimates he was looking at the face of the driver for one to two seconds as he drove past the Oldsmobile on Redford Street and looked at the face of the driver for approximately two seconds as he drove towards the Oldsmobile on 6th Avenue. [ 33 ] While the length of time available to identify someone or recognize them is important, so is the quality of that opportunity.

Further, time estimates concerning events that occur quickly are often inaccurate. [ 34 ] I accept the officer's evidence that as he drove past the Oldsmobile on Redford Street he was a matter of feet from the vehicle and had a clear, unobstructed view of the driver's face through the windshield. The driver was facing Redford Street and his face was not disguised in any way. The fact the officer cannot provide a licence plate number or a description of the passenger does not detract from his identification of the driver. It is consistent with the focus of his attention being on the driver. [ 35 ] Cst.

Fracassi testified he recognized the accused as the driver and could not believe what he had just seen. However, his opportunity to observe the driver was brief, as he drove past him at approximately 40 kilometres per hour. [ 36 ] What significantly enhances the reliability of Cst. Fracassi's evidence that it was accused who was driving the Oldsmobile, is that he had a second and better opportunity to see the driver again on 6th Avenue. While both vehicles were moving on 6 th Avenue and moving in opposite directions, they were travelling at relatively slow rates of speed. Further, Cst.

Fracassi deliberately positioned his vehicle to pass as close to the Oldsmobile as he safely could, and the driver's side of each vehicle passed within a few feet of each other. [ 37 ] I accept the officer's evidence that when the vehicles were approximately 10 feet apart, he again looked directly at the driver through the windshield and had a clear, unobstructed view of the driver, who was again facing forward.

There was no other traffic to obstruct or distract the officer, and the driver's face was not disguised in any way. [ 38 ] I accept the officer's evidence that from a distance of approximately 10 feet, he and the driver of the Oldsmobile made eye contact and he saw the driver remove a cigarette from his mouth and toss it out the window. [ 39 ] While the time for observing the driver's face may have been relatively brief, the officer had the opportunity to clearly see who the driver was.

He was even able to observe the driver remove the cigarette from his mouth. [ 40 ] The reaction of the driver to the eye contact suggests that the driver either recognized the officer or at least recognized that the officer had recognized him.

[ 41 ] It was after the eye contact was made that the driver reacted by attempting to flee in his vehicle and the officer activated his emergency equipment and gave chase VII. CONCLUSION [ 42 ] For the reasons stated, I am satisfied beyond a reasonable doubt that the driver was the accused and I accordingly find him guilty on both counts. "SMART J."