Her Majesty the Queen v. Michael Robert Conrod Before The Honourable Judge Castor H.F. Williams Date, 2013 NSPC 70

IN THE PROVINCIAL COURT OF NOVA SCOTIA Cite as: R. v. Conrod, 2013 NSPC 70 Docket: 2360304 2360305 2360306 Date: August 16, 2013 Registry: Dartmouth BETWEEN: Her Majesty the Queen v. Michael Robert Conrod Before The Honourable Judge Castor H.F. Williams Date Heard: May 31, July 8, 2013 Decision Read: August 16, 2013 Cases: 129(1); 249(1)(a); 249.1(1) Criminal Code Counsel: Cheryl Byard for the Crown Geoff Newton for the Defendant Introduction (

a) The charges: [ 1 ] The accused is charged that on August 1, 2011 he did unlawfully and wilfully obstruct Cst. Christopher Tracey, a Peace Officer while engaged in the lawful execution of his duty, contrary to the Criminal Code , s.129 (a). Additionally, he is charged that he did operate a motor vehicle in a manner that was dangerous to the public, contrary to the Criminal Code , s.249(1)(a).

Likewise, he is charged that while operating a motor vehicle, being pursued by a Peace Officer operating a motor vehicle, fail without reasonable excuse and in order to evade the Peace Office, to stop the vehicle as soon as it is reasonable in the circumstances, contrary to the Criminal Code s. 249.1 (1). (

b) Synopsis: [ 2 ] On August 1, 2011, Cst. Christopher Tracey was on foot patrol on the Irish Town Road in the Halifax Regional Municipality when he saw a motor vehicle proceeding on the highway in the wrong direction. It reversed and in doing so struck another vehicle. The officer observed two white male persons in the vehicle and motioned for the driver to stop. The driver responded with a gesture as if he would stop but, however, did not do so and sped away from the scene.

[ 3 ] In addition to seeing who the vehicle’s driver was the officer also noted its licence plate number. After confirming its ownership through registered governmental documentation and, subsequently viewing a photograph in the police system, the officer concluded that the accused was the driver of the vehicle at the time in question. [ 4 ] The accused entered pleas of not guilty to all three charges and raises the issue of correct identification in a criminal case. This case is therefore a consideration of whether the Crown, on the evidence presented, has proved beyond a reasonable doubt the identity of the vehicle’s driver, at the time in question, as the accused.

Summary of the Proceedings [ 5 ] At trial, the Crown called six witnesses. They included Constables David Picot and Gregory Stevens who responded to Constable Tracey’s call concerning a hit and run accident. They located the described offending vehicle, a green 1999 Nissan Maxima bearing license plate EVT 127 (NS), at approximately 1755 hrs. on Thompson Street. The canine unit was called to assist. [ 6 ] Another witness, Robert Redmond, confirmed that he knew the accused and that in July, 2011 had sold him a 1999 Green Nissan Maxima.

Nathalie Brun was on a pathway on Prince Albert Road when she heard a loud screech and saw the same identified vehicle approaching her at a high rate of speed, moving erratically, going through two sets of red traffic lights and sped away. She also saw, albeit briefly, the driver of the vehicle and gave a statement to the police. [ 7 ] Kelly Black was a resident on Thompson Street which was also a dead end street. She saw the identified vehicle screeched to a stop on her street and two young white males leaving it.

Likewise, she observed them for five minutes from a distance of 20 to 10 feet and indicated that she had a good look at them. She called the police and gave them a statement of her observations. [ 8 ] Cst. Christopher Tracey was on foot patrol, on the Irish Town Road, when he saw a vehicle proceeding the wrong way. The driver tried to reverse and in doing so struck another vehicle. The officer motioned him to stop but the driver, whom he saw for about twenty seconds, did not comply with his motion to stop and sped away. The officer also saw the vehicle’s license plate number.

After determining, from a vehicle search, that the accused was the registered owner of the vehicle, the officer viewed, in isolation, a photograph in the police “versadex system” that corresponded to the name of his vehicle search result. As a result, the officer concluded from that photograph, with no other supporting evidence, that the accused was indeed the driver of the vehicle on the day in question.

Position of the Parties [ 9 ] Essentially, defence counsel has submitted that the relevant provisions of the Motor Vehicle Act , R.S.N.S, 1989, c.293 (as amended) are, in a criminal trial, merely an investigative tool. Basically, under that Act it is possible to determine the identification of the owner of a motor vehicle. Likewise, under that Act , the owner of a motor vehicle that is involved in any violations of the said Act is deemed statutorily to be liable, under specified circumstances, for those violations. However, those provisions under the said Act created only strict liability offences.

Therefore, inferentially, they ought not to be used to establish, in a criminal trial, as proof beyond a reasonable doubt, in an issue of identification, that the owner of a motor vehicle was, without more, also the driver of the said motor vehicle and therefore, without more, guilty of offences charged under the Criminal Code . [ 10 ] Furthermore, he continues, as the accused was charged under provisions of the Criminal Code , when the police investigator, who was on the scene and who also was an eye-witness, retrieved the accused photograph from the police system, and was satisfied, he ought to have prepared, in accordance with case authorities, a forensic photographic line-up for the other eye witnesses, who were presented by the Crown, to view and to make comment, if any.

As this was not done it raises reasonable doubt on the issue of identification. [ 11 ] On the other hand, the Crown responded that police officers are trained observers. The officer had sufficient time and an unobstructed view of the driver of the vehicle. The photograph that he viewed confirmed, in his mind, that the person whom he saw matched the image depicted. Additionally, the other witnesses who saw the accused could not, at trial, identify him as the operator. Therefore, showing them a photographic line-up presumably would have yielded the same result.

Therefore the officer’s opinion of the identification of the driver aided by the photograph that he viewed, in isolation, was sufficient proof of identification. Analysis

[12] I think that, as a first step, it should be clear that a distinction ought to be made between establishing the responsibility and liabilityof the owner of a motor vehicle on the procedures set out in the provisions of the Motor Vehicle Act, supra., (ss. 248(1)(a), 258(1),(2),259(1)) and the establishing of the identity of the driver of a motor vehicle on evidence of proof beyond a reasonable doubt in a criminaltrial.

The two modes of identification protocols, in my view, can neither be merged nor blurred to the extent that having established proofof ownership under the lesser burden of proof that such a result can be transferred to the higher burden of proof, concerning identificationin a criminal trial, without following the required and establish identification protocols. [13] Without doubt the outcome of these charges and the case turns on the correct identification of the driver of the vehicle on the dayin question.

We are constantly reminded that the cases are filled with instances of honest but mistaken eyewitness accounts ofidentification. As a result, I instruct myself on the issue of identification from such authorities as R. v. Nikolovski (1996), (SCC), 111 C.C.C. (3d) 403 (S.C.C.), R. v. Sophonow, (MB CA), [1985] M.J. No.10 (Man. C.A.), R. v.Shermetta, [1995] N.S.J. No. 195 (C.A.), and R. v. Brown and Angus (1951), (BC CA), 99 C.C.C. 141 (B.C. C.A.). [14] Here, on the evidence presented, the critical question is, how reliable is Cst.

Tracey’s identification evidence? [15] First, I find that the officer, for twenty seconds, and, from a distance of two to three metres, did see the operator of the vehicle.Further, his view was unobstructed and it was a clear sunny day. [16] Second, I find that in testimony, he gave no details of any facial characteristics of the person whom he then saw as he had neverseen that person before.

Nevertheless, he also described, in testimony, only that the driver was a white male with brown hair and wearinga white T-shirt. [17] Third, when he viewed, in isolation, the photograph in the police “versadex system” I find that there is no evidence that he had inhis mind, from a prior recorded observed description, or at all, an image of the person whom he saw driving the vehicle, besides being awhite male, to compare with who was depicted in the viewed photograph.

Even so, he declares that when he saw the accused, ninedays after the incident that the photograph which he saw earlier confirmed, at least in his mind, that the accused was indeed the personwhom he saw driving the vehicle on the day in question. [18] Fourth, without having access to the official registration details of the vehicle’s owner, the officer, in my view, is in the sametestimonial position as any other ordinary witness. In my opinion, in the situation that presented, the correct and proper identification ofthe driver was critical.

The “versadex system” photograph or “mugshot,” in my opinion, was material and had significant relevance inestablishing the identification of the driver. Therefore, in my opinion, it was incumbent upon the officer, as the prime investigator, andalso as a witness, to corroborate his held opinion on identification. [19] Although I agree that police investigations “should not be impeded by submitting every lead or name to multiple photograph line-ups” (per Gabrielson J, in R v.

Tarcisyo, 2010 SKQB 234 (Can LII), at para. 20) I think that in this case, where the viewed in isolationphotograph is critical, relevant and material to the issue of identification of the driver, that there ought to be independent evidence insome material particular to support Cst. Tracey’s singular identification of the accused as the driver of the vehicle. See, for example: R.v. Vetrovec, (SCC), [1982] S.C.J. No. 40. Otherwise, it seems to me, that all that I have is his unsupported opinion.

The viewed in isolation photograph, which was never tendered as an exhibit, can be considered as being merely strongly suggestiverather than conclusive evidence as, officially, it only linked the registered owner of the vehicle to a name in the police files with anassociated photograph, which the officer subjectively, on viewing accepted, without more, to be the driver of the vehicle on the day inquestion. [20] In addition, Nathalie Brun saw the vehicle approaching her at a fast rate of speed and saw that its driver was a white male.

She alsonoted that he was “young, early twenties with dark brownish white hair.” However, in her opinion, the vehicle was going too fast forher to recognize him. She gave a statement to the police. [21] Likewise, Kelly Black saw the same vehicle come to a squealing stop on Thompson Street. She saw two white males leaving it anddescribed the driver as a white male who was taking on and off a tank top shirt. She described it as such a shirt because she could see hismuscles.

Additionally, she described him as between eighteen and twenty years old “young, athletic built, white, over five feet oneinches with spiky hair, not Mohawk.” The passenger was shorter than the driver, “same age, young, athletic, white with blonde spikyhair.” However, she also testified that she could not remember their hair style, only that they both had short hair and that she could notremember what they were wearing. Similarly, she stated that she would not recognize them if she saw them again. Nonetheless, she

emphasized that she did get a good look at them, for about five minutes and from a distance of between 20 and 10 feet as they walkedtoward and past her. She called and informed the police of her observations. [22] Be as it may, on the evidence, when these two civilian eyewitnesses’ memories were fresh they were never requested to identify,through any photograph, as did the police, whom they saw and given the opportunity to make comments, if at all. It therefore seems tome that having in his possession a photograph of a suspect, which he viewed in isolation, Cst.

Tracey, as the investigator and aneyewitness, was obligated, if not only for reasons of transparency and neutrality but also for procedural fairness and correctness, to showthe same photograph, which he viewed, to the other eyewitnesses in a photographic line-up. [23] The Crown’s view was that it would have made no difference as now, at trial, those witnesses cannot give a positiveidentification.

With respect, in my opinion, no potential identification eyewitness should be denied the opportunity, where it is materialand relevant as here, to identify a suspect merely because the police unilaterally and subjectively believe that, despite well-establishedidentification protocols that they are correct, I in their sole identification of a suspect. [24] Even if the police, for acceptable reasons, did not prepare or show a photographic line-up to the witnesses, they neither, at trial,tendered that photograph as an exhibit nor did they give to the accused, as the registered owner of the vehicle, a notice to produce thename of the driver or be deemed liable, as is allowed and permitted under the Motor Vehicle Act, supra., s.258 (1), (2).

In my opinion,if that were done, in these set of circumstances, the accused’s failure to produce the name of the driver, upon statutory demand, wouldhave been a piece of cogent and credible evidence, when weighed with the total evidence, reasonably and circumstantially, could havebeen considered as post offence conduct or his consciousness of guilt. See also: R. v. White, 2011 SCC 13 , [2011] S.C.J. No.13. [25] In R.v. Miaponoose, (ON CA), [1996] O.J.

No. 3216 (C.A.), Charron J.A., (as she then was) stated at para.16: 16 The weight of eyewitness identification will obviously vary greatly depending on the circumstances. In an often quoted passage fromthe decision of R. v. Smierciak, (1946), (ON CA), 87 C.C.C. 175 Laidlaw J.A., in writing for the Ontario Court ofAppeal, succinctly set out a number of relevant factors to be considered in the assessment of identification evidence. His words areparticularly useful to the review of this case (at p. 177): · The weight of evidence of identification of an accused person varies according to many circumstances.

A witness called upon to identifyanother person may have been so well acquainted with him or her as to make the identification certain and safe. The person to beidentified may possess such outstanding features or characteristics as to make identification comparatively free from doubt. Theconditions under which an observation is made, the care with which it is made, and the ability of the observer, affect the weight of theevidence.

In addition to such matters, and of the utmost importance, is the method used to recall or refresh the recollections of a witnesswho is to be relied upon to identify a person suspected of wrongdoing or who is under arrest. If a witness has no previous knowledge ofthe accused person, so as to make him familiar with that person's appearance, the greatest care ought to be used to ensure the absoluteindependence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias, createddirectly or indirectly.

Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonablyprejudice the accused, the value of the evidence may be partially or wholly destroyed. Anything which tends to convey to a witness that aperson is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful. Submitting a prisoner alonefor scrutiny after arrest is unfair and unjust.

Likewise, permitting a witness to see a single photograph of a suspected person or of aprisoner, after arrest and before scrutiny, can have no other effect, in my opinion, than one of prejudice to such a person. [26] Accordingly, in my opinion, in this case, I find that the police’s approach to the identification procedure and process to beprejudicial and wrongful. I say so because Cst. Tracey gave no detailed description of the person whom he saw in order to compare thatdescription with the photograph that he saw in isolation.

Nathalie Brun and Kelly Black also did see the driver and, in testimony, did givesome description, faded by memory, of whom they saw. However, soon after the event when their memories were fresh, they were nevershown, in an array, the same photograph as was seen in isolation by Cst. Tracey.

Also, the subject photograph was never tendered, attrial, as an exhibit. [27] Thus, upon a close examination of the total evidence and bearing in mind the principles expressed in the above cited authorities, Iconclude and find that the Crown did not adduce sufficient cogent and reliable evidence of identification of the driver of the motorvehicle. In my opinion, ostensible discrepancies were not satisfactorily resolved. Although the accused did not testify and his counselcalled no evidence on his behalf, the authorities are clear that no adverse inference can be drawn from his silence. See for example, R. v.

Noble, (SCC), [1997] 1 S.C.R. 874. [28] Additionally, in my opinion, given the absence of any cogent, reliable and credible supporting relevant and material evidence onthe issue of identification of the driver, it cannot be said that, in these circumstances, the accused’s failure to testify justifies an inferenceof guilt as it provides no other basis than to conclude otherwise. See, for example: R. v. Lepage, (SCC), [1995]1S.C.R. 654. In any event, the accused is entitled to remain silent and the onus always remains upon the Crown to prove its case beyonda reasonable doubt.

Conclusion [29] For the above reasons, I find that the Crown has not proved beyond a reasonable doubt that the accused was the driver of thevehicle on the day in question and therefore committed the offences as charged. Accordingly, I find him not guilty, as charged, of allthree offences listed in the Information and tried before me.