Regina Respondent v. Colin Michael Wilson, 2003 BCSC 463

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Regina v. Wilson, 2003 BCSC 463 Date: 20030328 Docket: 21330 Registry: Vancouver Between: Regina Respondent And Colin Michael Wilson Appellant Before: The Honourable Mr. Justice Pitfield Reasons for Judgment Counsel for the Appellant: Michael Tammen Counsel for the Respondent: Adrienne Lee Date and Place of Hearing: March 21, 2003 Vancouver, B.C. [ 1 ] Mr.

Wilson appeals his conviction in the Provincial Court of British Columbia on the charges of impaired driving and driving with a blood alcohol level of more than 80 milligrams of alcohol per 100 millilitres of blood. The offences were alleged to have been committed October 14, 2001. The trial took place September 6, 2002.

The decision resulting in conviction was rendered September 12, 2002. [ 2 ] The ground of appeal is that the evidence of identification of the accused as the offender was untrustworthy so that the conviction was unreasonable and not supported by the evidence. [ 3 ] The evidence of identification of the accused as the offender was the following. Constable Kodak, one of the officers who stopped a driver in the early morning of October 14, 2001, described him as a casually dressed, white male, approximately five foot seven inches in height, of medium build.

The officer was not asked to identify whether anyone in the courtroom was the individual he described. [ 4 ] Constable Orlick, who was Constable Kodak's partner on October 14th, described his involvement with the driver of the vehicle and subsequently. At approximately 1:18 a.m. on October 14, 2001, Orlick read a breath demand and various warnings to the driver. The driver provided Orlick with the name "Colin Michael Wilson", a date of birth of July 21, 1969, and an address on West 1st Avenue, in the City of Vancouver.

Orlick confirmed the information provided by the driver through use of the computer in the police cruiser. The driver was unable to produce a driver's licence. [ 5 ] The officers transported the driver to 312 Main Street to obtain breath samples. Orlick accompanied the driver to the breath analysis room. He assisted the driver in speaking with counsel, including Legal Aid duty counsel on two occasions.

Orlick was present when breath samples were taken from the driver at 2:28 a.m. and at 2:50 a.m. on October 14, 2001. [ 6 ] Orlick was not asked in court to provide a physical description of the driver in respect of whom the activities I have described occurred on the morning of October 14, 2001. When asked if he could identify the driver in the courtroom, he promptly indicated the accused. [ 7 ] Counsel for Mr.

Wilson says that Constable Orlick's "dock" identification of the appellant as the offender was inherently frail and it was dangerous to base a conviction on such identification with nothing more, with the result that the guilty verdict was unreasonable and not supported by the evidence. At trial and on appeal, the appellant relied on the cases of R. v. Browne and Angus (1951), 1951 CanLII 393 (BC CA) , 99 C.C.C. 141 (B.C.C.A.) ; R. v. Harrison (1951), 1951 CanLII 403 (BC CA) , 100 C.C.C. 143 (B.C.C.A.) ; R. v. Edwardson (1993), 1993 CanLII 14710 (BC CA) , 79 C.C.C. (3d) 508 (B.C.C.A.) ; and Reitsma v.

The Queen (1998), 1998 CanLII 825 (SCC) , 125 C.C.C. (3d) 1 (S.C.C.) in support of his submission.

[ 8 ] The learned trial judge said the following at ¶4 in relation to the question of identification: I am conscious of the problem of eyewitness identification and dock identification that these authorities examine and of the care that must be taken with it, but I am satisfied that the evidence of identification in this case excludes any reasonable doubt. This is not a case in which the police officer had just a brief moment to see the suspect or in which the conditions under which he did so were difficult.

Constable Orlick spent nearly half an hour with the accused before he was removed from the scene during much of which his very purpose was to observe the accused's behaviour and demeanour. At the police station Constable Orlick spent approximately another hour with him. There was good artificial lighting at the curb side where he first dealt with the accused and I infer that there was adequate lighting inside the police station. Nor was Constable Orlick's in-court identification strictly a dock identification or one in which pointing out the accused was inevitable.

The accused was not in the dock, he was not in custody, and he was not dressed in prison garb. While Mr. Tammen cross-examined the witness, the accused was seated next to Mr. Tammen's associate, Mr. Barclay, and dressed to the same standard in a jacket and tie, although Mr. Barclay was usually taking notes while the accused was not. Both he and Mr. Barclay appear to be young, dark-haired Caucasian men, within a few years of each other in age. I do not suggest that this was the equivalent of a line-up, but the witness was faced with a choice which in a limited way enhanced the value of the identification he made.

I also weigh the fact that the accused's name is identical to the name given to Constable Orlick by the driver at the roadside, and that the driver gave 21 July 1969 as his date of birth. He would now be a man of 33, which is consistent with the accused's apparent age. Identity of name is some evidence of identity: Regina v. Chandra (1975), 1975 CanLII 1294 (BC CA) , 29 C.C.C. (2d) 570 ; Regina v. Clark , 1997 CanLII 2730 (BC CA) , [1997] B.C.J. No. 82 .

Its cogency is increased in this case by the apparent similarity of age. [ 9 ] As he did at trial, counsel for the appellant submits that the identification by Orlick in the courtroom of the accused as the offender was inherently unreliable and untrustworthy because the testimony was not accompanied by any physical description proffered by Orlick that would support the reliability of his identification. [ 10 ] Counsel cites R. v. Brown and Angus, supra; R. v. Harrison, supra, and R. v. Reitsma , supra, as authority for his submission.

With respect, I conclude that the proposition he advances is too narrowly cast in the context of this conviction and appeal. In my opinion, the verdict was reasonable and supported by the evidence. [ 11 ] In R. v.

Brown and Angus , O'Halloran J.A., with Bird J.A. concurring, said the following at 147: Unless the witness is able to testify with confidence what characteristics and what "something" has stirred and clarified his memory or recognition, then an identification confined to "that is the man", standing by itself, cannot be more than a vague general description and is untrustworthy in any sphere of life where certitude is essential. [ 12 ] Of the identification there in question, the learned judge said the following: The foregoing analysis reduces [the witness's] testimony from the status of positive identification to that of "some evidence"...which joined with other evidence in a proper case could be capable cumulatively...of establishing the participation of [the appellants] in the crime with a convincing degree of practical certainty. [ 13 ] In dissent, Robertson J.A. said the following at 151: In my opinion identification of this sort may be accepted as sufficient (see R. v.

Phillips (1924), 18 Cr. App. R. 151 ). Its weight may be very much weakened by the circumstances, such as the darkness of the night, and the inability of the witnesses to give any description of the clothes or other appearance of the persons identified. However, in this case I think the identification is clinched by the finding of the bank-book in the Ford car. [ 14 ] The same panel of Appeal Court judges heard the Harrison appeal. In that case, O'Halloran and Robertson JJ.A. combined to quash a conviction and directed that an acquittal be entered.

Bird J.A. dissented. [ 15 ] In Harrison , O'Halloran J.A. said the following at 144: It is true in some cases that surrounding inculpatory circumstances may so enmesh a criminal that his physical identification at the time of the crime may be of little importance. Even plain weaknesses or contradictions in physical description by witnesses at the scene of the crime may become secondary to surrounding circumstances that point conclusively to the accused and to him only as the criminal: R. v. Yates , 1946 CanLII 230 (BC CA) , [1946] 2 D.L.R. 521 at p. 526, 85 Can. C.C. 334 at pp. 339-40, 62 B.C.R. 307 at p. 314 .

But in this case there are no surrounding inculpatory circumstances.

For identification of the criminal the Court is forced to rely entirely upon the accuracy and conclusiveness of descriptions of physical characteristics of the criminal given by those present when the crime occurred. [ 16 ] O'Halloran J.A. repeated much of his reasoning from Brown and Angus and reiterated his view that no person should be convicted on soft evidence of identification without the existence of surrounding inculpatory circumstances. [ 17 ] The reasoning of the majority in the Brown and Angus and Harrison cases was the subject of discussion by the Court of Appeal on other occasions. In R. v.

McKay and Bruner (1966), 1966 CanLII 676 (BC CA) , 61 W.W.R. 528 at 530 (B.C.C.A.) , Bird C.J.B.C. said the following of those cases:

At the opening of his reasons for judgment the learned magistrate has considered two decisions of this court referred to by him as Reg. v. Angus and Reg. v. Harrison (1951) 1951 CanLII 403 (BC CA) , 2 WWR (NS 318 , 12 CR 314 , 100 CCC 143 . I have no doubt that the reference to Reg. v. Angus is a misdescription of Reg. v. Browne and Angus (1951) 1951 CanLII 393 (BC CA) , 1 WWR (NS) 449 , 11 CR 297 , 99 CCC 141 , a decision of our late brother O'Halloran, J.A. The Harrison case is also a decision of the same learned judge.

In his note the magistrate has said of this case, having reference to the reasoning of O'Halloran, J.A. "It is not sufficient for a witness to get up and say 'I am positive that is the man'. That evidence is valueless." It is true that O'Halloran, J.A. did use such or similar language in his judgment in each of those decisions. It is my view that his conclusions as so expressed were not approved by other members of the court and that consequently the language quoted by the learned magistrate expressed the view of a single judge but does not represent the views of the court.

In my respectful opinion there was ample evidence from which the learned magistrate could properly find each of the accused men guilty of the offences charged. Consequently, in my judgment, the convictions entered below must be sustained and the appeals from conviction dismissed. [ 18 ] In R. v. Nagy (1967), 1967 CanLII 783 (BC CA) , 61 W.W.R. 634 at 636 (B.C.C.A.) , Bull J.A., in reasons concurred in by McFarlane and Branca JJ.A., said the following of the Harrison decision: I think it only right to say in view of the fact that the appellant is relying on the language of our late brother O'Halloran in Rex v.

Harrison that on several occasions in the past few years this court has found it necessary to note that O'Halloran, J.A.'s language in that case is not considered to be the decision of this court and that he was there speaking only for himself.

Robertson, J.A. agreed in that case that the identification was unsatisfactory and the appeal should be allowed, but he did not agree or accept the language of O'Halloran, J.A. which in the opinion of this court, as we have expressed on other occasions, went too far. [ 19 ] I am satisfied that the state of the law is that an acquittal need not result just because a witness identifies a person in court as the accused without first testifying to a description of the offender.

Evidence of identification must be subjected to careful scrutiny in order to assess its credibility, not in the sense of the honesty or trustworthiness of a witness's utterances, but in the sense of assessing the reliability of the identification. The circumstances of a witness's encounter with an alleged offender may have been so brief or may have occurred in such circumstances, and other evidence be so lacking, that a conviction resulting from reliance upon an assertion that the accused was the person in the prisoner's dock or elsewhere in a court room in which few were present, would be improper.

In other instances, the circumstances in which the witness had an opportunity to observe and familiarize himself with the alleged offender may be of such a nature, when coupled with other objective indicia of identification, as to provide a sufficient basis for conviction so that any physical description is unnecessary. [ 20 ] This is a case which falls into the latter category. Constable Orlick did not catch only a fleeting glimpse of an offender. He questioned him at roadside. He asked him to undergo tests in relation to sobriety. He accompanied the driver to the police station.

He was with the driver when the breath demands were read and the samples taken, as well as at the time at which the driver spoke to counsel. The driver volunteered his full name, date of birth and his address. The person charged with the offence was an individual of the same name, and by the trial judge's observation, appeared quite likely to be of an age similar to that provided by the driver to Constable Orlick. [ 21 ] The learned trial judge was very much aware of the dangers inherent in the identification of the accused person as the offender.

In the present circumstances, the factors described by the learned trial judge provided the objective indicia that confirm Constable Orlick's subjective statement that the accused was the person he had detained on October 14, 2001. Nothing more was required. [ 22 ] In all of the circumstances, the learned trial judge's finding of guilt was one that a properly instructed jury acting judicially could reasonably have rendered. [ 23 ] The appeal from conviction is dismissed. “I.H. Pitfield, J.” The Honourable Mr. Justice I.H. Pitfield