R v McCarthy, 2023 ABCJ 201

In the Alberta Court of Justice Citation: R v McCarthy, 2023 ABCJ 201 Date: 20230731 Docket: 220594170P1 Registry: Medicine Hat Between: His Majesty the King Crown - and - Joshua Francis McCarthy Accused Judgment of the Honourable Justice P.G. Pharo Introduction [ 1 ] This case turns on whether the Crown has proven beyond a reasonable doubt, based on the identification or recognition evidence of a police constable, that Mr. McCarthy committed a number of offences while in the City of Medicine Hat on April 30, 2022. Mr.

McCarthy relies on alibi evidence, stating that he was in Calgary on that day, so he could not have committed those offences. [ 2 ] It was conceded by Mr. McCarthy that at the time of these alleged offences, pursuant to court order he was on 24-hour house arrest, and he was not authorized to drive a motor vehicle. [ 3 ] It was the evidence of Constable Biggar that, on the date in question, he saw Mr. McCarthy in Medicine Hat, contrary to s145(5)(

a) of the Criminal Code ( CC ), while driving a vehicle, contrary to s94(2) of the Traffic Safety Act ( TSA ). Constable Biggar also testified that in that same incident he saw Mr. McCarthy drive the vehicle in a dangerous manner, contrary to s320.13(1) of the CC , flee from police, contrary to s320.117 of the CC , and fail to remain at the scene of an accident, contrary to s69(1)(3) of the TSA . [ 4 ] The parties agreed that this whole case turns on whether it was Mr. McCarthy who was driving the vehicle on the day in question. It was agreed that if this Court does not find that it was Mr.

McCarthy who was driving the vehicle that day, then all the charges against him on the Information should be dismissed. The Identity/Recognition Evidence of Constable Biggar

[ 5 ] Constable Biggar testified that he has known Mr. McCarthy since around 2010 and had interacted with him in other investigations. Constable Biggar said he had encountered Mr. McCarthy in public and talked to him face to face. Constable Biggar testified that he had said “Hello Josh” to Mr. McCarthy in public and Mr. McCarthy had responded. Constable Biggar said that he had around 20 interactions with Mr.

McCarthy in the past, some longer and some shorter. [ 6 ] On the day of this incident, Constable Biggar said he was on patrol at about 5:15 pm, proceeding eastbound on 1 st Street SE in Medicine Hat when he came to the traffic lights at the intersection at 6 th Avenue. He said he turned left onto 6 th Avenue. As he was turning left he said there were two vehicles on 6 th Avenue going southbound at the same light, waiting to proceed through the light. As he passed the two vehicles, Constable Biggar said he glanced left at the second vehicle. This vehicle was a dark blue van or SUV (the “Van”).

Constable Biggar testified that he thought the driver of the Van was Mr. McCarthy, because he recognized him. Constable Biggar said that this driver nodded at him as if to say hello. Constable Biggar testified that he thought that Mr. McCarthy was a suspended driver at the time, so he did a U-turn and started to follow the Van. [ 7 ] Constable Biggar stated that the Van then went through the green light southbound at the intersection at 6 th Avenue and turned left on to 1 st Street SE, then merged onto South Railway Street.

When the Van came to the intersection with 2 nd Street SE, the Van turned right onto 2 nd Street SE, going westbound. Constable Biggar followed. At that point, Constable Biggar said he thought the Van was accelerating, so Constable Biggar turned on his emergency lights. Constable Biggar testified that the licence plate on the Van was BYG 1477. [ 8 ] Constable Biggar said that 2 nd Street SE at that point was one way, with two travel lanes, and one parking lane. There were two vehicles stopped at the intersection with 5 th Avenue, waiting for a red light.

Justin Collins testified that he was the driver of one of those vehicles. Mr. Collins said he could see the Van approaching him from behind at a high rate of speed, so he pulled his vehicle over to the right to try to give the Van room to get by him. The Van did go between the two vehicles stopped there, although the Van did clip Mr. Collins’ vehicle in passing, doing some minor damage. Both Constable Biggar and Mr. Collins said that the Van proceeded through the red light and carried on.

Constable Biggar also went though the red light in pursuit, but soon called off the chase when it became apparent that the Van was not going to stop. [ 9 ] In

summary, it was the evidence of Constable Biggar that he recognized Mr. McCarthy by glancing at him for about three seconds from a distance of about 12 feet as Constable Biggar was making a left-hand turn driving through the intersection of 1 st Street SE onto 6 th Avenue. Nonetheless, Constable Biggar said that he was 100% confident that the person driving the Van was Mr. McCarthy. The Alibi Evidence of Mr. McCarthy [ 10 ] Mr. McCarthy gave evidence that he was not in Medicine Hat on the day in question, which was April 30, 2022. He said he was not permitted to be in Medicine Hat by court order.

He testified that he was living and working in Calgary from April 16, 2022 to May 5, 2022. He testified that he was working there doing roofing and siding. He said he was employed and working for someone called either Kevin Robinson or Robertson. He was unclear about the last name of this person Kevin. [ 11 ] Mr. McCarthy gave evidence that he had purchased the Van for his boss, Kevin, to use, but they decided that they did not need it. He said he owned it for about two weeks. Mr. McCarthy said that his friend Jason Roberts was in Calgary to attend a funeral and needed transportation, so Mr.

McCarthy sold the Van to him for $900 on April 16, 2022. He said the sale took place in Calgary. He said Jason brought a licence plate with him and put it on the vehicle at the time of the purchase. Mr. McCarthy also testified that he gave Jason Roberts a Bill of Sale for the Van at that time. Mr. McCarthy entered an image of Jason Roberts into evidence as Exhibit 1 and suggested that it was Mr. Roberts who was driving the Van on the day in question, and that Mr. Roberts resembled him. [ 12 ] Mr. McCarthy also entered into evidence a document entitled Investigation Notes, as Exhibit 2.

The notes were made by Constable Pierce from the Medicine Hat Police Service and related to an incident which occurred on May 5, 2022. Constable Pierce noted that she came across the Van parked on the street in Medicine Hat, with the licence plate BYG 1477. She queried the plate, but found it was expired. She said she found a man standing by the driver’s door of the Van and she asked for documentation for the vehicle to see if it was properly insured, because it was not registered. The man identified himself as Jason Roberts, and provided a Bill of Sale in the name of Joshua McCarthy, dated April 16, 2022.

Roberts said that Mr. McCarthy was out of town, but there was no insurance on the vehicle, and that Roberts had driven the vehicle the night before with no insurance and a suspended license. She had the vehicle towed and left a voice message for Mr. McCarthy at the phone number on the Bill of Sale. She issued tickets for having an unregistered and uninsured motor vehicle and sent them to Mr.

McCarthy at the address listed on the Bill of Sale, which was 1171 Renfrew Drive NE in Calgary. [ 13 ] The parties agreed that Exhibit 2 was admissible for the truth of its contents, thereby avoiding the need to call Constable Pierce, except for it was not conceded that it was actually Jason Roberts she was interacting with roadside, only that the man self identified as such. [ 14 ] With respect to Exhibit 1, which is the image of Jason Roberts, I am not prepared to draw any conclusions about whether it resembles Mr. McCarthy.

I find this because there was no evidence about when the image was taken, and there is no evidence about whether either man had changed their appearance by altering their hair styles, growing facial hair or by gaining or losing weight since this incident occurred. The Concerns About Identification/Recognition Evidence [ 15 ] The frailties of identification and recognition evidence are well recognized in the case law. In the case of R v Atfield , 1983

ABCA 44 , [1983] A.J. No. 870 (Atfield), the Alberta Court of Appeal stated as follows: 3 The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comes fromwitnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonetheless mistaken.Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriages of justicethrough mistaken identity.

The accuracy of this type of evidence cannot be determined by the usual tests of credibility of witnesses, butmust be tested by a close scrutiny of other evidence.

In cases, where the criminal act is not contested and the identity of the accused asthe perpetrator the only issue, identification is determinative of guilt or innocence; its accuracy becomes the focal issue at trial and mustitself be put on trial, so to speak. 6 It goes without saying that correctness of identification must be decided by examining the whole of the evidence left on the scales atthe end of the case and not by selectively picking and accepting those items of evidence which support correctness while disregardingcontradictory evidence not specifically rejected for cause, which might leave correctness in doubt.

The accused is entitled to the benefitof the most favorable

interpretation of discrepancies in evidence which cannot otherwise be resolved. [16] The evidence of identification by Constable Biggar was not by way of a physical description of characteristics such as haircolour or facial features. It was conclusory. As such it is akin to opinion evidence. The Supreme Court of Canada, in the case of Graat vThe Queen, (SCC), [1982] 2 SCR 819 (Graat) acknowledged that some experiences, like eyewitness identifications, aredifficult to enunciate without resorting to opinion.

Therefore the Graat case set out an exception to the general bar on opinion evidenceby lay people for eyewitness identification where the opinion constitutes a witness’s compendious statement of their direct observation.While this exception was made for practical reasons, it must be remembered that an identification such as in this case is stillfundamentally opinion evidence. [17] It was argued by the Crown that recognition evidence should be given more weight than other identification evidence wherethe person is not previously known to the witness.

This issue was considered by the Ontario Court of Appeal in R v Chafe, 2019 ONCA113 , 145 OR (3d) 783 (ONCA) (Chafe). In that case, which involved a sexual assault, the complainant identified her friend’sboyfriend as the perpetrator at the trial. The trial judge instructed the jury that identification of a known person is different thanidentification of a stranger. The accused was convicted. The Ontario Court of Appeal allowed the appeal, and ordered a new trial, sayingthat statement was wrong in law. The Court stated as follows: 29 ...Recognition evidence is not "different" from identification evidence.

It is subject to the same frailties and the same risks. This issignificant where, as here, a jury may be quick to assume that, because the witness knows the person, the identification must be correct.A trier of fact could intuitively place undue reliance on the evidence of recognition without a clear instruction outlining the frailties.

Thetrier of fact, whether judge or jury, must approach the evidence of recognition with the same caution as identification evidence and theevidence must have the same level of reliability. [30] Even though the witness knows the person identified, the time to observe, the circumstances of the observation, and the conflictingevidence constitute factors which the trier of fact must grapple with in order to determine reliability. The usual dangers of eyewitnessidentification exist in a case of alleged recognition: ...

How to Assess the Credibility of the Witnesses [18] In this case, the Accused and the Crown witness testified, but their stories were very different. This calls into question thecredibility of each of them. [19] Given that there are different versions as to what took place, the credibility of the Crown witness and the Accused is pivotal tothe determination of whether the Crown has proven each allegation.

In circumstances where the assessment of credibility is essential, theissue of credibility is subject to the rule of reasonable doubt and the Crown’s onus with respect to proof beyond a reasonable doubt.Accordingly, where different versions of the events are presented, it is not a matter of the Court picking one version over the other. Tofollow that approach would mean that the accused would have the onus of proving his or her innocence by presenting a more believableversion of events. That is not the accused’s obligation.

It is not a credibility contest between the complainant and the accused as to whohas the best or the more likely version of the events. It is whether the Crown has proven the case beyond a reasonable doubt: See: R vJHS, 2008 SCC 30 at paras.8-13 (JHS); R v CLY, 2008 SCC 2 at para 6 (CLY). [20] The Supreme Court of Canada has given trial courts some direction as to how to deal with such situations, in the case of R vD(W) (1991), (SCC), 63 CCC (3d) 397 (WD), where Justice Cory proposed a model charge to a jury where the questionof the credibility of the accused was important for deciding the case.

The framework for jury instructions set out in WD is: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [21] Steps 1 and 2 must be undertaken in the context of all of the evidence, cumulatively and not in isolation: R v JJRD (2006), (ON CA), 215 CCC (3d) 252 at para 53 (ONCA); R v Hoohing, 2007 ONCA 577 at para 15. [22] The purpose of the WD approach is to ensure that the burden never shifts from the Crown to prove every element of theoffence beyond a reasonable doubt.

As already stated, when faced with competing stories, the Court must not simply prefer one over theother: CLY, at paras 6-8. In other words, if after a careful consideration of all of the evidence, the Court is unable to decide whom tobelieve, it must acquit: JHS, at para 12, citing R v HCW (1991), (BC CA), 68 CCC (3d) 146 (BCCA). If the Court is

unable to resolve conflicting material evidence, it has a reasonable doubt as to guilt and must acquit: R v Hogg, 2013 PECA 11 ,2013PECA 11, (dissent), dissent adopted in R v Hogg, 2014 SCC 18. [23] In R v Ryon, 2019 ABCA 36 at para 51 (Ryon), as further refined in R v Achuil, 2019 ABCA 299 at para 18, the Courtproposed a four-part framework to incorporate all of the above: i.

The burden of proof is on the Crown to establish the accused’s guilt beyond a reasonable doubt and that burden remains onthe Crown so that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown; ii. In that context, if the accused’s evidence denying complicity or guilt (or any other exculpatory evidence to that effect) isbelieved, or even if not believed still leaves the jury with a reasonable doubt that it may be true, then the jury is required to acquit; iii.

While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true. If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit; and iv. Even if the jury completely rejects the accused’s evidence (or where applicable, other exculpatory evidence), they may notsimply assume the Crown’s version of events must be true.

Rather, they must carefully assess the evidence they do believe and decidewhether that evidence persuades them beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused’s evidence (orwhere applicable, other exculpatory evidence) cannot be taken as proof of the accused’s guilt. [24] The Ryon Court also stated that the application of WD must always be contextual and responsive to the evidence in the case. [25] The determination of credibility of the accused is a complex task involving the Court reviewing numerous aspects of thetestimony presented. [26] The accused is entitled to some analysis of his evidence, both alone and in the context of the evidence as a whole. [27] Although this was not a jury trial, I instruct myself accordingly.

WD Credibility Analysis Step 1 -Can I accept the evidence of Mr. McCarthy? [28] As suggested by the WD case, I will consider the evidence of Mr. McCarthy first. As noted above, Mr. McCarthy is entitledto an analysis of his evidence, but not in isolation and in the context of all the evidence as a whole. Mr. McCarthy testified that he wasnot in Medicine Hat on the offence date of April 30, 2022, because he was living in Calgary and working as a roofer. Mr. McCarthytestified that he sold the Van to Jason Roberts in Calgary on April 16, 2022, and gave Mr.

Roberts a Bill of Sale for it on that day. [29] There is support of this evidence of Mr. McCarthy in Exhibit 2, the investigation notes of Constable Pierce. The evidence wasshe saw the Van parked on the side of the road in Medicine Hat on May 5, 2022. It was in the possession of a man who identified himselfas Jason Roberts. Mr. Roberts had a Bill of Sale in the name of Mr. McCarthy dated April 16, 2022, and said that Mr. McCarthy was outof town. Mr. Roberts also stated that he had driven the Van the night before with no insurance and a suspended driver’s licence.

Itappears to me that this evidence supports the evidence given by Mr. McCarthy. The Crown submitted, correctly in my view, that even ifthis evidence is accepted, it is not dispositive of the issue of whether Mr. McCarthy was the driver of the Van in Medicine Hat on April30, 2022. In other words, even if Jason Roberts was driving the Van on May 4 or 5, it does not necessarily mean that Mr. McCarthy wasnot driving it in Medicine Hat on April 30. I accept the point that the Crown makes in that regard, but I still find that this evidencecorroborates and supports the evidence of Mr.

McCarthy, and so therefore should be considered exculpatory to some degree. [30] With respect to the credibility of the testimony of Mr. McCarthy himself, it is negatively impacted to a substantial degree byhis criminal record, which can only be described as extensive. The record goes back to 2004 and has entries on a fairly regular basis rightup to 2022. The convictions themselves are serious. It appears that his record includes over 40 convictions for break and enter. There arealso multiple convictions for possession of stolen property and theft. These convictions justify an inference that Mr.

McCarthy has showncontempt for the law, which in turn permits the conclusion that he is less likely to tell the truth under oath. [31] In my view Mr. McCarthy’s credibility is also negatively impacted by the fact that he said he worked and lived with someonein Calgary named Kevin but was unable to state definitively what that person’s last name was, alternatively testifying that it wasRobinson, or Robertson. It seems to me that he should have known the name of the person who was both his landlord and employer. [32] The evidence of Constable Biggar must also be weighed in evaluating the credibility of Mr.

McCarthy’s evidence. In essence,Constable Biggar said he saw Mr. McCarthy driving the Van on April 30, 2022. However, as reviewed above, identification andrecognition evidence bring with them frailties and dangers. As stated above in the Chafe case, even though the witness knows the personidentified, the time to observe, the circumstances of the observation, and the conflicting evidence constitute factors which the trier of factmust grapple with in order to determine the reliability of that witness. As for the time to observe, Constable Biggar testified that it wasabout 3 seconds.

As to the circumstances of the observation, Constable Biggar was navigating a left hand turn as he drove his vehiclepast the Van. He said he was about 12 feet away, in a moving vehicle. However, he also had to pay attention to the traffic andpedestrians around him as he made the left turn. He could not see more of the person in the Van than was visible through the windows,namely the head and torso.

It seems to me that the time he had to observe was quite short, and that the circumstances, namely a glancewhile navigating a moving vehicle through an intersection with other vehicles, would necessarily cause Constable Biggar’s attention tobe diverted, if only to make sure he was driving safely. [33] In

summary on the Step 1 of the WD analysis, because of the credibility concerns imported by his criminal record, and theinconsistencies set out above in his testimony itself, and the contradictory recognition evidence of Constable Biggar, even with the

somewhat exculpatory evidence of Constable Pierce’s investigation notes in Exhibit 2, I find cannot accept Mr. McCarthy’s evidence. Step 2 – Does the Evidence of Mr. McCarthy, and other Exculpatory Evidence, leave Me With a Reasonable Doubt? [ 34 ] I find I am left with a reasonable doubt by this evidence, for the following reasons: 1. Although I found I could not accept the testimony of Mr. McCarthy for the reasons set out above, I find that Exhibit 2 does give some support to his testimony.

As already noted, the person found with the Van on May 5 self identified as Jason Roberts, but there is no way this Court can know the identity of this person for sure. As stated in the Atfield case quoted above, the accused is entitled to the benefit of the most favorable

interpretation of discrepancies in evidence which cannot otherwise be resolved. It seems to me that for the purpose of this analysis I should find that it was indeed Jason Roberts in possession of the Van on the side of the road that day. This then corroborates Mr. McCarthy’s evidence that Jason Roberts was the driver of the Van on that day. This gives support for Mr. McCarthy’s evidence that he was not in Medicine Hat at the date of these offences. 2. I am very mindful of the frailties of recognition evidence in this case, as set out in the case law quoted above.

I acknowledge that Constable Biggar testified that he was 100% confident that Mr. McCarthy was the driver of the Van on that day. I accept that Constable Biggar honestly believes that. But therein lies the danger of recognition evidence. Constable Biggar was a very convincing and credible witness. Nonetheless, as set out above, I am concerned that he had a short period to observe the driver of the Van. I am also concerned about the circumstances of such observation, namely that Constable Biggar glanced over at the Van while he was driving a vehicle and making a left turn through a downtown intersection.

In the end, I must consider that his evidence is really his opinion. 3. The Crown argues that it must have been Mr. McCarthy driving the Van on April 30, 2022, because he had a motive to flee the police, because he was breaching the conditions of the court order to be in his residence in Calgary and not to drive.

However, it seems to me that if it was Jason Roberts, or anyone else for that matter, who was driving the Van that day, they would also be motivated to avoid being pulled over by police while they were driving an unregistered and uninsured van with what appeared to be a stolen licence plate. [ 35 ] After weighing all this evidence, in Step 2 of the WD analysis, I find I am left with a reasonable doubt. Conclusion [ 36 ] This case turns on whether the Crown has proven beyond a reasonable doubt that Mr. McCarthy was driving the Van on the day in question.

I accept that Constable Biggar genuinely believed that he saw Mr. McCarthy driving the Van that day. However, this Court is concerned about his evidence, in that he only had a chance to observe Mr. McCarthy for a very short period of time, namely three seconds. This Court must also consider the circumstances of this observation, namely when he was driving by through an intersection. The case law warns trial judges about the frailties of recognition evidence, even when it is given by confident and credible witnesses. In this case, although I had concerns about the credibility of Mr.

McCarthy, there was other exculpatory evidence, namely in the police investigation notes of Constable Pierce in Exhibit 2. For the reasons set out above, and after a WD analysis of all the evidence, I find I am left with a reasonable doubt. As such, all the charges on this Information must be dismissed. Heard on the 7 th day of July, 2023. Dated at the City of Medicine Hat, Alberta this 31 st day of July, 2023. P.G. Pharo A Justice of the Alberta Court of Justice Appearances: C. Doyle

for the Crown G. White for the Accused