R. v. W., 2018 QCCQ 4085

R. c. Peace 2018 QCCQ 4085 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU “Criminal Division” No.: 550-01-101727-172 DATE: June 1, 2018 ______________________________________________________________________ PRESIDING: THE HONOURABLE RICHARD LAFLAMME, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. ADAM J. PEACE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Peace is standing trial on a

summary charge of driving a motor vehicle while prohibited. [ 2 ] The prosecution claims that the vehicle the peace officer followed and then passed from the opposite direction was driven by the defendant. [ 3 ] The defendant maintains that the driver was a friend to whom he had lent his car and that the friend entered his home immediately after parking on the side of the street. The defendant went outside right away to inspect his vehicle. That was when the police officer arrived and approached him while he was sitting behind the wheel.

He admits that he was subject to an order prohibiting him from driving. [ 4 ] The issue is whether the Crown has proved beyond a reasonable doubt that the defendant is the driver that the police officer observed shortly before he stopped him. To answer it, the Court must apply the test developed by the Supreme Court in R. v. W.(D) [1] , since credibility is at the heart of the dispute. I. CONTEXT (

a) Officer Philippe Boucher’s version [ 5 ] While patrolling the Aylmer sector of the city of Gatineau, Officer Philippe Boucher noticed a Honda Accord in front of him. He ran a check of the car’s Ontario licence plate with the Centre de renseignements policiers and learned that the owner was subject to an order prohibiting him from operating a motor vehicle. [ 6 ] The patrol car was 20 to 40 metres behind the Honda , and the vehicles were driving slowly. The Honda, which was on Lucerne Boulevard, turned left on Royal Street.

This is a low-traffic, residential neighbourhood, to which access is largely limited by municipal by-law. The officer continued following the vehicle and activated his flashing lights. The Honda did a U-turn around 30 to 40 metres past the intersection , and the vehicles passed each other from opposite directions. The officer says that he identified the defendant as the driver and the only person in the Honda. The vehicle stopped about five metres from the intersection with Lucerne Boulevard. [ 7 ] The officer also did a U-turn and parked behind the Honda.

He went to the door of the vehicle, which still had its engine running. The officer stated that he never lost sight of the vehicle and adds that there was no one else in the vicinity. [ 8 ] He informed the driver why he had stopped him. The defendant replied that he did not have his driver’s licence with him. He nevertheless gave the officer the necessary information to properly identify him. [ 9 ] The officer asked him to stop the engine and exit the vehicle. He arrested him and read him his rights. The defendant explained that he thought that the prohibition order had expired six months prior.

He was released on a promise to appear. (

b) Defendant’s version [ 10 ] The defendant was sleeping at the home of his then-girlfriend, who lived on Royal Street. He got up at 7:00 a.m. Because he no longer had a driver’s licence, he checked the weather to determine whether he would cycle to work or ride with Ryan Lediett, a friend to whom he had lent his car. [ 11 ] He opted to carpool with his friend, who regularly picked him up and drove him to work about ten kilometres away.

[ 12 ] He had been carpooling with his friend since his conviction on October 3, 2016. [2] [ 13 ] He states that his friend arrived with his car and parked it on Royal Street. He met him outside and invited him to finish his coffee inside the home, where his girlfriend also was. The friend then gave him the keys. That allowed him to inspect the vehicle and get a bag that was in the car. That was why he sat in the driver’s seat.

He estimates that the time elapsed between his friend’s arrival and when he went to the car was about 10 seconds. [ 14 ] Shortly thereafter, he saw a patrol car arrive from Lucerne Boulevard with its lights flashing . As the police officer passed beside him, he lowered his window and asked him if he owned the car. After the defendant answered in the affirmative, the officer parked behind him. The defendant says that the street is not wide enough for the manoeuvre the police officer claims to have performed. [ 15 ] The police officer did not inform him that he had committed any offence.

He exited the vehicle when the officer asked him to. Because of his shock at being stopped, he did not want to say anything that might incriminate his friend, who was still inside the house. He did not want his friend to get in trouble or to alert his girlfriend. [ 16 ] He was arrested, read his rights, and placed in handcuffs. He testified that the incident lasted ten minutes, or perhaps longer. [ 17 ] Neither Mr. Lediett nor the defendant’s ex-girlfriend testified. II. ANALYSIS [ 18 ] Identification is an important issue. A recent judgment of the Court of Appeal provides a good

summary of what is involved in such questions: [3] [ translation ] [32] The analysis of eyewitness identification evidence requires care and caution. A witness’s sincerity and the reliability of his or her comments pertaining to identification do not necessarily go hand in hand: honest witnesses whose comments appear reliable may be mistaken and their memory may be playing tricks on them. 6 [33] Assessing the reliability to be assigned identification by a witness requires examining all the surrounding circumstances.

In the analysis, factors such as the length of time the witness observed the person being identified, the distance from which the observation was made, lighting, relative movement, the presence of obstructions, the eyesight of the witness, his or her psychological state while observing the person being identified, his or her prior knowledge of that person, and the accuracy of the first description and its resemblance to the accused. … 7 [ 19 ] Since these versions are contradictory in this respect, credibility is an additional, important issue. Therefore, the test developed by the Supreme Court in R. v.

W.(D.) [4] should be applied. First, the Court must consider whether it believes the defendant’s testimony. If it does, it must acquit . If the Court does not believe the defendant’s testimony but has a reasonable doubt, it must also acquit.

Finally, if the Court does not have a reasonable doubt as to the defendant’s testimony and his defence, it must still consider whether it is satisfied beyond a reasonable doubt that the defendant is guilty, in light of the rest of the evidence accepted. [ 20 ] The credibility of a witness, like that of a defendant, must be assessed in light of the evidence as a whole and not on the basis of the witness’s testimony alone.

Evidence cannot be assessed in a vacuum. [5] In the analysis leading up to the judgment, the judge must consider all the evidence, including any that corroborates the defendant’s version. [6] [ 21 ] Of course, the Court aims to assess the honesty of the witnesses, the accuracy of their observations, their ability to report events, the reliability of their memory based on the contents of their testimonies, the behaviour of each witness, and any overlaps or discrepancies that can be observed in the evidence as a whole.

It is important to determine whether witnesses are trying to tell the truth in good faith, whether they are being sincere and frank, whether they are biased, or whether they are being reticent and evasive. It is helpful to recall that the Court must not choose between two versions.

What is more, it may accept one part of a witness’s testimony while rejecting other parts of it. [7] When the Court does not accept a testimony, whether in whole or in part, the defendant’s lack of credibility is not tantamount to proof of guilt beyond a reasonable doubt. [ 22 ] Does the Court believe the defendant’s version? [ 23 ] The Court does not believe the defendant. His version is not credible. Indeed, it is quite simply unlikely, if not altogether odd. [ 24 ] First, the quickness of the defendant’s friend’s arrival and the defendant’s exit from the residence is perplexing.

He estimates that 10 seconds elapsed from the moment his friend arrived and he invited him inside to finish his coffee, to his own arrival at the vehicle. The police officer arrived only once he was fully seated in the driver’s seat. It was not until his cross-examination that the defendant added that his friend had told him he had to use the bathroom, which suggests that he had to enter the house even more quickly.

The least that can be said is that this portion of the testimony has evolved. [ 25 ] The police officer’s testimony regarding his observation on Lucerne Boulevard and the distance between himself and the Honda was not contradicted or undermined. The defendant’s version of the time required for his friend to park the vehicle facing the direction he had come from, exit the vehicle, be invited to finish his coffee inside the house, and say that he had to urinate, and for the defendant to take a seat inside the vehicle, is simply not consistent with the credible and undisputed testimony of the police officer.

The speed alleged by the defendant is improbable, if not impossible. [ 26 ] It is quite surprising that he would lend his vehicle to a friend who drove it to work from time to time and then suddenly decide to inspect the vehicle. To justify his behaviour, he alleged that he is meticulous and that he wanted to be sure that his car was clean and in good condition. But could he not have inspected it as he was riding to work just a few minutes later? Why did he not do so with his friend, just before leaving for work? What is more, he apparently trusted him enough to lend him his vehicle after he was convicted in

October 2016, but nevertheless, seven months later, he decided to inspect the vehicle at that precise moment, which, as it happens, was nearly simultaneous with the police interception. [ 27 ] It is also very surprising that neither Mr. Lediett nor the defendant’s then-girlfriend came outside during the ten-minute long intervention. [ 28 ] His girlfriend was getting ready for work, but the defendant testified that he did not know what time she started work, even though he had been living with her for some time. [ 29 ] At no time did he protest during the police intervention.

The Court cannot fault him for exercising his right to silence. During his examination-in-chief, he voluntarily chose to explain why he did not say anything to the police officer. His justification is incoherent and not credible. First, he says that he was not informed of any offence whatsoever, but he wanted to avoid getting his friend in trouble. But how could his friend be in trouble when the police came, if he was not told of any offence?

Why would his girlfriend have been alarmed or worried if he was not the driver, his friend was the one at the wheel, and he had not committed an offence? [ 30 ] During his testimony, the defendant dwelled at length on the steps he had taken with the Ontario Ministry of Transportation to reclaim his right to drive. He is somewhat vague as to when he might have been able to get his licence back.

Whatever the case may be, these elements are of no help to him since the evidence of the driving prohibition order and his knowledge of it is proved beyond a reasonable doubt. [ 31 ] The lack of credibility of his version is all the more apparent when he explains that he was not able to reach Mr. Lediett until two or three days before the trial. The trial had been scheduled for several months. The witness, who lives in the area of Blind River, Ontario, had apparently told him that he would come testify. He did not appear.

The Court granted an adjournment until the next day so that the defendant or his counsel could verify the reasons for his absence. The following day, the defendant explained that he was [ translation ] “under the impression that his friend would come testify in his defence” but that his friend had not contacted him. No requests for additional delays were made to the Court. This situation justifies doubt about the defendant’s truthfulness regarding the steps he took and even any contact he claims to have had with this witness.

Nevertheless, it must be recalled that the defendant is under no obligation to prove anything. [ 32 ] Also, he was not able to reach his ex-girlfriend, even though he telephoned her. She never called back. He remains quite vague about his attempts to reach her. [ 33 ] In short, the Court rejects the defendant’s version. [ 34 ] Does his defence raise a reasonable doubt? [ 35 ] Again, the Court does not think so. [ 36 ] By arguing that he was not the driver because he was in the house, his defence is an alibi or at least very similar to one.

Although there is no legal requirement to disclose an alibi, the Supreme Court has nevertheless approved the practice whereby an alibi should be disclosed adequately and in a timely fashion. [8] Timeliness and adequacy must be assessed in light of whether the police could have undertaken meaningful investigation as a result of the disclosure. The consequence of a failure to properly disclose an alibi is that the trier of fact may draw an adverse inference when weighing the alibi evidence. Untimely disclosure can only weaken alibi evidence; it cannot exclude the alibi.

Here, no disclosure was reported to the Court. [ 37 ] The defendant is not required to prove his alibi; his alibi defence need only raise a reasonable doubt, in which case he should be acquitted. However, if the trier of fact does not believe the alibi or rejects it, the burden on the prosecution is not lessened. It must prove beyond a reasonable doubt, through identification evidence in particular, that the defendant is the one who committed the offence. [9] [ 38 ] The defendant’s lack of credibility and the fact that his version is not believed leads the Court to find that his defence does not raise a doubt.

In addition, the defendant does not have any distinctive physical features that might raise a doubt as to the driver’s identity. [ 39 ] That being said, has the Crown proved that it was indeed the defendant at the wheel when the police officer followed him from Lucerne Boulevard? [ 40 ] The Court finds that the Crown has discharged its burden. Officer Boucher’s testimony is credible and was not really undermined.

Counsel for the defence’s criticism that the officer had no notes in his notebook is not accepted because the officer wrote his report immediately after the event. [ 41 ] While he was driving on Lucerne Boulevard, the officer checked the licence plate of a vehicle that was 30 to 40 metres ahead of him. He learned that the owner was subject to a driving prohibition. The prohibition order is in effect and has been proved beyond a reasonable doubt. [ 42 ] The fact that the police officer turned on Royal Street to intercept the Honda is directly related to the information he had just obtained. The street is narrow.

The defendant’s vehicle did a U-turn further down the street so that it could park in front of the defendant’s residence. This manoeuvre allowed the police officer to pass the vehicle from the other direction. No one testified that the vehicles were moving quickly. On the contrary, if they were moving slowly on Lucerne Boulevard, it is logical to infer that in a residential sector – and on a small street – they were moving more slowly or at least at the same speed. The police officer’s observational ability was optimal, especially since he suspected that the driver was committing an offence.

The time it took for the vehicles to pass each other was sufficient for him to state that the person he stopped is the one he had crossed paths with a few seconds earlier. [ 43 ] The defendant alleges that it is impossible for the police officer to have done a U-turn at the spot he claims. That is of little consequence. The way it was done is secondary. It is established that the police officer quickly found himself behind the defendant’s vehicle.

[ 44 ] There was no one else nearby when the police officer turned onto Royal Street. [ 45 ] The defendant’s position in the driver’s seat confirmed the officer’s observation from a few seconds earlier. It should also be mentioned that the defendant has a distinctive physical feature, as he is 6 feet 7 inches tall. At no time did the defendant refer to his friend Lediett’s height or allege any confusion as to the driver’s physical characteristics. FOR THESE REASONS, THE COURT: FINDS the defendant guilty. __________________________________ RICHARD LAFLAMME, J.C.Q.

Mtre Marie-Claude Daoust Criminal and penal prosecutor Mtre Jean-Philippe Brochu Counsel for the defendant Date of hearing: March 16 and March 21, 2018