R. v. Wright, 2020 ONCJ 364

ONTARIO COURT OF JUSTICE CITATION: R. v. Wright , 2020 ONCJ 364 DATE: August 21, 2020 Oshawa BETWEEN: HER MAJESTY THE QUEEN — AND — TREY WRIGHT Before Justice B.M. Green Heard on August 17 th and 19 th , 2020 Reasons for Judgment released on August 21 st , 2020 Ms. S. Thompson as counsel for the Crown Ms. M. Salih as counsel for the Defendant Mr. Trey Wright Green J.: A. Introduction [ 1 ] Mr. Wright is charged that, on or about the 13 th day of March, 2019, in the city of Oshawa, he was driving a motor vehicle dangerously and failed to stop that vehicle while being pursued by the police.

He is also charged with assaulting a police officer and resisting the officer’s directions during the lawful execution of his duties. [ 2 ] The crown called two police witnesses who described a dramatic encounter with a driver of a car after he was pulled over as a result of a routine sobriety check. During the course of the trial, counsel did not challenge the legitimacy of the stop or the officers’ recollections of the events that unfolded that night.

Rather, the trial was focussed on the issue of the identity of the driver of that vehicle. [ 3 ] In every criminal case, a crown is required to prove beyond a reasonable doubt that the accused is the alleged perpetrator of the offence(s). Counsel appropriately and carefully challenged the witness’ opportunity to observe the perpetrator and explored other factors that impacted the strengths and weaknesses of the identification evidence. Counsel is not required or expected to notify the crown or the Court that they are not admitting that their client is the perpetrator.

In contrast, if counsel intends to introduce defence evidence to raise a reasonable doubt about the identity of the perpetrator because of an alibi, different legal principles apply. A defendant should provide adequate and timely notice of an alibi defence in order to allow the crown attorney sufficient time to have the alibi effectively investigated by the police. Failure to disclose an alibi in a timely or adequate manner may, but not must, impact the weight of this evidence. [ 4 ] In this case, Mr. Wright did not disclose his alibi defence before the trial.

He did not disclose it before the crown closed its case. He didn’t even disclose it during his examination in chief. The only evidence counsel elicited during Mr. Wright’s evidence in chief was that he was not present on the night of these offences. Obviously, that meant he was elsewhere. It was only when the crown asked him where he was that night that he finally provided the details of his whereabouts which could, if believed or if it raises a reasonable doubt, exonerate him of these offences. The disclosure of this alibi could not have been more untimely.

[ 5 ] The main issue to be decided in this case is whether the crown has proven beyond a reasonable doubt that Mr. Wright was the driver of the vehicle who became involved in a terrifying incident with the police on the evening of March 13 th , 2019. If I am satisfied beyond a reasonable doubt that he was the driver, I must also consider whether the uncontested description of events provided by the officers proves each of the elements of the offences beyond a reasonable doubt. B. Findings of Fact: i.

The crown’s case: [ 6 ] On March 13 th , 2019, PC Scholtes and DC Richer were in uniform and on patrol in a fully marked police vehicle. PC Scholtes was driving and DC Richer was in the passenger seat. Both of these officers are twenty year veterans with substantial experience.

Despite his many years of experience, PC Scholtes has never discharged his firearm before while on duty so the events that unfolded that night were especially memorable for him. [ 7 ] At 11:28 p.m., they were driving north bound on Simcoe Street in Oshawa when they noticed a black Acura that was parked partially on the curb facing westbound on Mill Street with its four way hazard lights on. This was not an area where a vehicle could park so PC Scholtes did a u-turn to go and check on the occupant(s).

The vehicle’s windows were heavily tinted so neither of the officers could tell how many individuals were in the vehicle or the ethnicity of the occupants. After they turned the police vehicle around, the Acura started driving so they began to follow it. The Acura was driving significantly slower than the speed limit, between 30 to 35 km/hr in a 50 km/hr zone. The Acura was also driving erratically, drifting all over the lane. They followed the vehicle onto Capreol Court. [ 8 ] Capreol Court is a dead end, residential street with homes on each side. There is a circular end at the top of the street.

PC Richer explained that the street is shaped like a hockey stick. In order to exit, a driver has to turn around in the court area and exit out the same way they entered but driving in the opposite direction. [ 9 ] At 11:33 p.m., PC Scholtes decided to conduct a traffic stop to check on the sobriety of the driver. He activated his emergency lights and the Acura pulled over on the right side of the street before the court area. Photographs of the court were introduced as exhibits during the trial. There is a light standard in the centre at the top part of the circular court.

In addition to that lighting, the police vehicle pulled up directly behind the Acura, so its running lights illuminated the exterior and interior of the Acura. PC Richer also believed that he was carrying a flashlight although he wasn’t positive. Finally, when PC Scholtes first engaged the driver, the Acura was still on so there would have been lighting within the vehicle. [ 10 ] PC Scholtes approached the driver’s side while PC Richer approached the passenger door of the car. The windows in the Acura were rolled down so they could see that there were two male occupants.

Both officers noticed the odour of freshly burnt marijuana emanating from the vehicle. [ 11 ] PC Scholtes began interacting with the driver who seemed very nervous. He advised him of the reasons for the stop and engaged him in a conversation. He requested his driver’s licence, ownership and insurance. The driver provided Mr. Trey Wright’s photo identification driver’s licence. PC Scholtes looked at the licence and looked at the driver and satisfied himself that the person in the photograph was the driver.

He stated a number of times during cross-examination that he was 100% sure that the driver was the same person in the photograph on the driver’s licence. This initial interaction was not fleeting, momentary or stressful. It was part of a routine traffic stop and the officer compared the driver to the photo for the sole purpose of ensuring that the identification provided was in fact the driver. [ 12 ] The driver related that he was not the owner of the vehicle, but he was able to produce the ownership.

The driver also showed PC Scholtes a message on his cell phone from the owner of the vehicle that had a photo of the temporary insurance for the vehicle. [ 13 ] While PC Scholtes was speaking with the driver, PC Richer was speaking with the passenger. He also noticed that the passenger was very nervous. He asked him for identification. The passenger identified himself as Joshua Griffiths using a health card that had his photograph. [ 14 ] PC Scholtes directed the driver to remain in his vehicle while he and his partner returned to the police vehicle with the driver’s licence to run computer checks.

Both he and his partner had the opportunity to look at the driver’s licence while they were in the police vehicle. Based on a constellation of factors, PC Scholtes informed his partner that he was going to ask the driver to step out of the vehicle to further the investigation and place him under arrest for driving while impaired by a drug. [ 15 ] At 11:37 p.m., PC Scholtes approached the driver’s side again and PC Richer approached the passenger side. PC Scholtes engaged in a second face to face interaction with the driver.

He asked the driver to step out of the vehicle because he believed that he was driving while impaired by a drug. The driver’s attitude changed at this point. He became very confrontational. He told the officer that he had no reason to stop him and that he was only pulling him over because he was black. He told PC Scholtes that he wanted to call his mom. [ 16 ] While PC Scholtes was engaging the agitated driver, PC Richer observed the passenger to be nervous and very deliberate in his responses. The passenger had a satchel on him and PC Richer asked him what was in the bag.

The driver yelled at the passenger not to open the bag. Both officers were becoming concerned that this situation was rapidly escalating in a manner that was not consistent with simply possessing marijuana. [ 17 ] PC Scholtes directed the driver to turn off the vehicle and demanded, again, that he step outside of the car. The vehicle was not turned off prior to this second interaction.

As a result, the interior of the Acura would have had some illumination during the first interaction with the police while PC Scholtes compared the photo to the driver. [ 18 ] Since the driver was not complying with “several” demands to exit the vehicle, PC Scholtes opened the door and directed him to step outside so that he could be placed under arrest. The driver refused to cooperate and began dialing numbers on his phone. PC

Scholtes reached into the car and hung up the phone. The driver reached for the ignition and he was told not to do that. Suddenly, the driver made a “quick movement” and reached in between the driver and passenger seats into the back seat area. The back seat had a lot of stuff in it so neither officer could see what the driver was reaching for and they became very fearful for their safety. [ 19 ] The driver’s attitude changed from being very nervous but cooperative during the initial conversation to extremely confrontational once he was asked to step out of the vehicle.

Both officers feared that the driver was reaching for a weapon. PC Scholtes responded by grabbing the driver’s arm and pulling him forward. The driver then quickly reached for the ignition, turned on the car and hit the gas. PC Scholtes was between the driver’s door and the car and he was partially in the vehicle struggling with the driver. DC Richer explained that, within seconds of the vehicle being turned off, the driver turned it back on and took off.

DC Richer stepped back away from the passenger door but he pulled the satchel that was on the passenger with him. [ 20 ] PC Scholtes was caught in a very precarious position. His right leg was initially twisted under the Acura when the car suddenly accelerated forward. He grabbed the door frame with his left hand, pulled himself up and managed to get his feet on the door frame so that he was not being dragged by the car. The Acura was speeding towards the court and there was a van parked in the center of the court. PC Scholtes believed that he was going to be crushed between the van and the car.

He is left handed so he was able to grab his gun and he fired a couple of rounds into the tire area of the car hoping that it would stop the car. He related that he didn’t feel comfortable firing directly into the vehicle in these circumstances. [ 21 ] The Acura came within five feet of the van. It slowed down a bit after PC Scholtes fired the initial rounds and the car made it around the van without him being injured. At that point, he stepped or jumped off of the vehicle and discharged another round into the driver’s door as he was coming off the car to try and stop it.

He was very concerned for the safety of his partner who had run across the street and was in the path of the oncoming vehicle. [ 22 ] PC Scholtes landed on the pavement and fell backwards in the area where the van was parked. While PC Scholtes was on the pavement, he radioed for back up. DC Richer had crossed the street as the Acura sped away. He thought his partner was being dragged, he heard the shots being fired and watched as his partner tumbled from the car. He emotionally related that he had no idea if his partner was alive or dead at that moment.

The vehicle made it around the court, and it was speeding back up the street. DC Richer had already drawn his gun and he fired two shots into the driver’s door to stop the vehicle, but it sped away from the scene. [ 23 ] DC Richer radioed for assistance and ran to help his partner. Miraculously, PC Scholtes was not seriously injured during this incident. He was taken to the hospital as a precaution, but he only suffered a strained knee. Because both of the officers had discharged their firearms, they were not involved in any way in the subsequent investigation or the eventual arrest, days later, when Mr.

Wright turned himself into custody. [ 24 ] PC Scholtes made the call to dispatch at 11:42 p.m. This second interaction with the driver of the vehicle lasted for five minutes from 11:37 p.m. to 11:42 p.m. [ 25 ] The satchel that was pulled from the passenger was searched by DC Richer and it contained a small amount of marijuana. The area where this incident occurred was also searched by the police and no weapons were recovered from the scene. ii. Issues with the officer’s identification of the driver: [ 26 ] Counsel pointed out that the driver of the vehicle was black, and that PC Scholtes is white.

She suggested to him that the lighting was poor when the officer compared the photo of the licence to the driver and this comparison took place over a matter of seconds. PC Scholtes explained that there was sufficient lighting in the area to make the comparison and he had no difficulty identifying the driver as the person in the photo on the driver’s licence. The fact that the driver was black did not impact or impair his ability to compare a photo to a person and conclude that it was the same person.

As a result, he felt that counsel’s reference to the ethnicity of the driver was not “necessary”. [ 27 ] PC Scholtes agreed with counsel that there were occasions during his career when people used other people’s identification however, as an experienced officer, he took the time to ensure that the photo identification was the driver. This initial exchange with the driver was not stressful. It was a routine traffic stop. The driver was nervous but cooperative.

They also exchanged other documents during this initial period of time including taking some time to show a photo that was in his phone of the owner’s temporary insurance. The officer was able to view the ownership and the insurance without difficulty. As a result, the lighting, the ethnicity of the driver and the timing of the identification did not impact PC Scholtes’ certainty that Trey Wright was the driver of that vehicle. [ 28 ] PC Scholtes pointed out Trey Wright in the courtroom as the driver of the vehicle. Mr.

Wright was wearing glasses and a mask at the time due to Covid-19 and he was the only black man seated in the body of the courtroom. Although I accept that PC Scholtes sincerely believed that the person in the courtroom was the driver of the car, considering the inherent frailties of this type of identification, I am not relying on the evidence of the in-dock identification of Mr. Wright in these circumstances. [ 29 ] Counsel highlighted that PC Scholtes had not recorded any physical descriptors of the driver in his notes.

PC Scholtes explained that he didn’t need to since he was 100% satisfied that the photo on the licence and the driver were the same person and he retained the driver’s licence that night. There was no need to note a description when he had something even better, photo identification. He agreed that he did not participate in a line up afterwards to see if he could pick out the driver.

PC Scholtes reiterated a number of times that since he had the driver’s licence, a line up or any further steps to identify the driver was not necessary from his perspective. [ 30 ] The Acura was involved in an accident on the morning of March 14 th . At the time of the accident, it was being driven erratically by Mr. Tappin. Mr. Tappin did not have any identification when he was arrested. Mr. Wright turned himself in a couple of days later and he advised the police that he did not have any identification. iii. The defence evidence:

[ 31 ] Mr. Wright was called as a witness. His examination in chief was restricted to events in his life up to the day before March 13 th and then he skipped ahead to the day after March 13 th when he became aware that he was wanted by police. [ 32 ] Counsel introduced Mr. Wright’s driving record through him for the truth of its contents. The record indicates that he accumulated 5 infractions between March 28 th of 2018 and November 26 th of 2018. As a result of “novice violations – novice escalating suspension” his licence was suspended on December 11 th , 2018 until March 6 th of 2019.

Counsel also introduced a document, exhibit 6, for the purpose of establishing that he surrendered his licence to the Ministry of Transportation on February 9 th , 2019. There is an abbreviated notation on the application for a driver’s licence dated February 9 th , 2019, that confirms Mr. Wright surrendered his driver’s licence on that date. [ 33 ] On March 12 th , 2019, Mr. Elison Telska, the registered owner of the black Acura that was involved in this incident, picked up Mr. Wright and took him to the Ministry of Transportation to get his licence back. Mr.

Wright paid $200 and retrieved his G2 photo identification driver’s licence. [ 34 ] Mr. Wright had a hard time throughout his evidence consistently recalling details. During examination in chief, he said that Mr. Telska continued to drive this vehicle after they picked up Mr. Wright’s licence. During cross-examination, he said that he drove the vehicle after they left the Ministry. He also provided inconsistent accounts of the chronology of events that took place on March 12 th . [ 35 ] Mr. Wright picked up his girlfriend at some point that afternoon and Mr. Telska either drove himself home with Mr. Wright or Mr.

Wright drove Mr. Telska home and then he borrowed the car. Mr. Wright was driving Mr. Telska’s car on the afternoon of March 12 th when he was stopped for speeding. Counsel introduced a speeding ticket that showed that Mr. Wright produced his licence to the police. The ticket had an issuance time of 3:46 p.m. for speeding 60 km/hr in a 40 km/hr zone. The crown suggested to Mr. Wright that he would have had to show that officer proof of insurance when he was stopped for speeding. Mr.

Wright eventually conceded that the officer probably asked him for proof of insurance although he thought that he had the paper slip at that time. [ 36 ] I find that this exchange of documents with the police on March 12 th would explain why the driver of the Acura had a message from the owner of the vehicle with a photo of the temporary insurance on his phone when he interacted with PC Scholtes. This is an additional piece of evidence that connects Mr. Wright to being the driver of the vehicle the following day on March 13 th . [ 37 ] During cross-examination, Mr.

Wright agreed that it was not uncommon for him to drive Mr. Telska’s vehicle. While Mr. Telska was present with him most of the time when they drove in the Acura, there were “times” that he wasn’t present. As a result, it was not unusual for Mr. Wright to borrow this car. [ 38 ] Mr. Wright returned the car and the keys to Mr. Telska some time on March 12 th although he could not recall precisely when he did so. Thereafter, he claimed that he lost track of his licence that he had just paid to retrieve that day.

It is completely unbelievable that he went through the trouble of paying for his licence to be renewed after it had been suspended for four months and returned to him and then he had absolutely no idea what happened to it that very same day nor did he realize that it was even missing. [ 39 ] Mr. Wright’s evidence in chief jumped from his activities on March 12 th to what he was doing on March 14 th . He related that on March 14 th , he received a surprising call from his mother that the police were looking for him in relation to an incident with a car. He consulted with counsel and then turned himself in.

When he turned himself in, he did not have his driver’s licence. [ 40 ] Mr. Wright spent two days in custody awaiting his bail hearing. He has no criminal record and he has never been in this kind of trouble before. During his bail hearing, he learned that Mr. Tappin, an acquaintance of his, crashed Mr. Telska’s car on March 14 th , 2019. After he was released on bail, he went to Mr. Tappin’s home to speak with him about what happened to the car. The conversation did not go well, and he was told to leave Mr. Tappin’s residence. [ 41 ] Counsel did not lead any evidence about the whereabouts of Mr.

Wright on March 13 th , 2019. Nevertheless, it was clear from Mr. Wright’s evidence that he was asserting that he was not in the Acura on the late evening of March 13 th since he returned the car to the owner on March 12 th and he had not seen his driver’s licence since then. iv. Disclosure of the alibi: [ 42 ] The crown asked Mr. Wright where he was on March 13 th . Considering the importance of the events between March 12 th to March 14 th to Mr.

Wright’s life and freedom, it is surprising that he did not have a better recollection or at least take steps to preserve his recollection of where he was and what he was doing from the evening of March 12 th to the midmorning/afternoon of March 14 th when his mother called him to advise him that the police were looking for him. [ 43 ] I agree with counsel that the expectation to provide timely and adequate disclosure of an alibi should be with respect to the time of the alleged offence not everything Mr. Wright was doing before and after that time.

Ironically, those are the only time periods that counsel asked Mr. Wright any questions about during examination in chief. However, the crown is entitled to cross-examine Mr. Wright about all of the events from March 12 th to March 13 th and whether he took any steps to preserve any evidence that could have supported his account of that crucial time period in his life. The crown put to Mr. Wright how important it was for him to preserve the details of his recollections. He initially said that it was “somewhat” important but then conceded it was actually important. [ 44 ] Apparently, Mr.

Wright’s friend Taverio Dorian picked him up on March 12 th and March 13 th to drive him around. He was specifically asked if Mr. Dorian was a friend of his and he confirmed that he was a friend. Later on during cross-examination, after the crown elicited evidence that he has known Mr. Dorian for four years and he still speaks with him, he began to downplay his relationship with Mr. Dorian. He said that Mr. Dorian was not a good friend of his rather, he was his cousin’s friend.

[ 45 ] On March 13 th , Taverio was with his girlfriend and they picked up Mr. Wright and drove to Mr. Wright’s cousin’s house. Mr. Wright’s cousin is Donovan Betty. He originally related that they arrived at Mr. Betty’s house at 11:00 a.m. on March 13 th but when asked the same question later on, he could not recall what time he arrived, and he became confused about the date that he actually arrived. He indicated that he arrived at Mr. Betty’s house on March 12 th and stayed until the 14 th but then he said he was confused, and he actually arrived on the morning of the 13 th .

He got exasperated and related that all of the days were confusing to him. [ 46 ] At some point Taverio’s girlfriend was dropped off so it was just the three men hanging out, playing video games, drinking beer and eating chicken wings. He was asked where they got the beer and he said that Mr. Betty already had it there. Once again, he contradicted himself. When the crown returned to this evidence and asked about the alcohol, he indicated that they went out to get the beer at the beer store. [ 47 ] Taverio left sometime between 12 a.m. and 1 a.m. and Mr. Wright spent the night at his cousin’s house. Mr.

Wright remained at his cousin’s house until the next day when he received the call from his mother. He left Mr. Betty’s house on March 14 th , but he could not recall when he left, and he could not recall who picked him up from Mr. Betty’s house. [ 48 ] Even though Mr. Betty resided with his mother who worked on a daily basis and his sister also lived there and it was a Wednesday night, Mr. Wright said that he didn’t see anyone else in the house during that whole time that he was there because he mostly stayed in Donovan’s room. However, as his evidence evolved, he didn’t stay mostly in Donovan’s room.

He also related that they were in and out of the house to purchase beer and they had chicken wings that they got from the kitchen of the house. [ 49 ] Mr. Wright testified that he worked full time as a safety supervisor for a roofing company during this period of time. He agreed during cross-examination that he did not attend work on Tuesday March 12 th , Wednesday March 13 th or Thursday March 14 th . He explained this inconsistency by stating that the work was sporadic depending on the weather. [ 50 ] Mr.

Wright agreed that he had a cell phone on March 13 th , 2019, which might have confirmed what he was doing on that date at the material time through reviewing text messages or social media posts or photographs of his activities or proof of whether he had a photo of the insurance. He indicated that he didn’t keep the phone or make any attempt to secure the records from the phone. He didn’t have any receipts from the beer runs.

Most importantly, it was only during cross-examination while the crown was exploring his connections to each of the people he was with on March 12 th and 13 th , that the crown asked him if he knew the passenger of the vehicle. Mr. Wright said that the passenger, Mr. Joshua Griffiths, is his half-brother. When the crown tried to press further for details about his connections to his brother, he became evasive about the nature of their relationship. [ 51 ] The crown also explored the connections between Mr. Telska, Mr. Tappin and Mr. Wright. Mr. Wright has known Mr.

Tappin for four or five years and he knew where he resided in 2019. They met through family. Mr. Wright tried to distance himself from Mr. Tappin stating that, although he has known him for years, he was not really close to him. Mr. Wright was also friends with Mr. Telska. He met him through other friends. Mr. Wright was obviously close to Mr. Telska considering that he was comfortable lending him his car on a number of occasions and they were together in the car on other occasions. [ 52 ] Although Mr.

Wright was friends with both of these men, he had never been in the company of both of them at the same time or seen them together. I don’t know what relationship Mr. Telska and Mr. Tappin shared in 2019 or how Mr. Tappin ended up driving the Acura. However, Mr. Telska was close enough with Mr. Wright to lend him his car more than once and Mr. Wright was friends with Mr. Tappin. [ 53 ] Mr. Wright’s recollections were often internally inconsistent, and he contradicted himself. He appeared to be confused and fuzzy about the timing of events and what he did on March 12 th and March 13 th .

In addition, although he could speak clearly when he chose to, he mumbled many of his responses and had to be asked repeatedly to speak up. When the crown confronted him about his confusing responses, he pointedly stated these events happened a long time ago and he was having difficulty recalling the details. When the crown challenged him with the fact that he knew that what he did between March 12 th and March 13 th was extremely important to his future and he failed to do anything to preserve his recollections, he explained that he changed lawyers and “a lot” of time went by before he secured new counsel.

Counsel emphasized this same point during her submissions. She pointed out that her client is inexperienced in the criminal justice system and naïve. She also stressed that it took him a “long time” before he secured the services of counsel to guide him through this process. v. History of the proceeding: [ 54 ] I can take judicial notice of the history of the proceedings that are recorded on the information. Ms. Salih appeared as counsel for Mr.

Wright on May 10 th and June 5 th , 2019 within two to three months of the incident when the events would have been fresh in his mind and the minds of the various potential corroborative witnesses. A judicial pre-trial was set for August 22 nd , 2019. Ms. Salih appeared as counsel and conducted a judicial pre-trial. That pretrial took place one year ago, once again, when the events were fresher in Mr. Wright’s mind and the minds of any alibi witnesses. A second pretrial was set for October 24 th , 2019. The matter was set for trial with a confirmation hearing on May 1 st , 2020. [ 55 ] Mr.

Wright’s evidence that it took him “a lot of time” and counsel’s submission that it took him a “long time” to find a new lawyer is not consistent with the history of the proceedings. Ms. Salih was his counsel for more than a year before the scheduled trial dates. [ 56 ] This trial was set for Monday August 17 th , Wednesday August 19 th and Friday August 21 st , 2020. The crown began cross- examination of Mr. Wright on Monday afternoon. Mr. Wright related the basic details of his alibi and the names of the individuals who he was with on March 12 th and March 13 th .

This was the first time the crown heard this evidence. The crown asked to continue the cross- examination on Wednesday morning to consider this surprising disclosure. Notably, Mr. Wright had not yet disclosed that the main alibi

witness, his cousin, was dead or that the passenger in the Acura during the incident with police is his brother. Counsel indicated that shewas not opposed to the adjournment, furthermore, she would consent to an adjournment of the proceedings of any amount of time that itwould take for the crown to have the police investigate the alibi. [57] Counsel’s last minute offer to adjourn the proceedings has to be considered in context. First, it was evident that the passage oftime had detrimentally impacted Mr. Wright’s memory of one of the most important days in his young life.

It is highly unlikely that anyof the other witnesses would have a better recollection. Secondly, counsel must have known when she made this offer that Mr. Betty wasdead, and an adjournment would not change that fact. Thirdly, we are in the midst of a global pandemic and the criminal justice system isfaced with the overwhelming and almost insurmountable task of setting new trial dates for five months of collapsed courts. This matterhas already been in the system for 17 months and it would be extremely challenging to secure a continuation date any time in the nearfuture. C. Legal analysis i.

Burden of proof: [58] It is important to start from the fundamental premise that a criminal trial is not a credibility contest. I cannot choose betweencompeting accounts or evidence and decide which one is more credible or compelling. In addition, particularly in light of the defenceadvanced in this case, I must emphasise that, in order to be acquitted, Trey Wright does not have to prove anything. He does not have to prove that he was not the perpetrator of these crimes. He does not have to prove that he was somewhere else on March 13th, 2019. Theburden of proof rests solely on the Crown even in an alibi case.

The crown is always required to prove beyond a reasonable doubt theidentity of the perpetrator of the offences. [59] In order to make the determination of whether the crown has proven the identity of the driver beyond a reasonable doubt, I mustconsider the credibility and reliability of the witnesses who testified during the course of the trial. [60] When considering the evidence in a trial, it is important to distinguish between the concepts of credibility and reliabilitybecause they are different. As the Ontario Court of Appeal explained in R. v. H.C., 2009 ONCA 56 , [2009] O.J.

No. 214 atpara. 41 (Ont.C.A.): Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration ofthe witness' ability to accurately: i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point.

Credibility, onthe other hand, is not a proxy for reliability: a credible witness may give unreliable evidence [61] While a witness may not be credible or reliable with respect to certain aspects of their account that does not mean, inexorably,that I cannot accept other parts of that witness’ evidence. I am entitled to believe all, some or none of a witness’ evidence. [62] Applying these concepts within the W.D. framework to the facts in this case, I have to assess the evidence. First, regarding thedefence evidence, I have to decide whether the evidence of Mr.

Wright is believed that he was not present that night. Secondly, even ifthe evidence of Mr. Wright is not believed, I still have to consider whether or not his evidence raises a reasonable doubt. Finally, even ifMr. Wright’s evidence is not believed and it does not raise a reasonable doubt, I have to consider, based on the evidence that is accepted,whether the crown has proven beyond a reasonable doubt the identity of the driver and all of the elements of each offence. ii. Alibi evidence and adverse inferences: [63] Mr. Wright is facing very serious criminal allegations.

The conduct of that driver was unquestionably dangerous. That driverrisked the lives and safety of two police officers, the passenger and any other member of the community who happened to be on CapreolCourt that evening. [64] Mr. Wright was arrested within days of March 13th, 2019. Despite knowing that there was evidence that he purports couldcompletely exonerate him of any criminal culpability, he chose not to share that information with the police or the crown’s office for 17 months. Mr. Wright testified that he was not in the car or anywhere near Capreol Court on March 13th, 2019.

He was somewhere elsewith two people enjoying a relaxing evening. This is unquestionably an alibi defence. [65] This alibi was not disclosed when he turned himself into the police station. It was not disclosed during any pre-trial discussionsabout this case or the confirmation hearing. It was not disclosed at any point, in any way, prior to the trial. It was not disclosed duringthe trial until after the crown closed its case. Mr.

Wright did not even disclose the details of his alibi while he was testifying duringexamination in chief even though it was obvious that he was claiming that he was not present on Capreol Court that night. He onlydisclosed his alibi when the crown asked him in cross-examination. Counsel made an informed, tactical decision not to ask any questionsabout the defendant’s alibi during examination in chief, even though it was implicit in his evidence.

I cannot imagine a less timelydisclosure of an alibi. [66] When the crown closed it’s case, it was evident that counsel’s position was that the crown was unable to prove the identity ofthe driver beyond a reasonable doubt. Counsel had very thoroughly questioned the officers about their ability to observe the driver, the

brevity of the comparison between the photo identification to the driver, this was a cross racial identification and the officers had no priorfamiliarity with Mr. Wright. [67] After the crown closed its case, counsel advised that she was calling Mr. Wright as a witness. It is my duty to preserve the fairtrial rights of the accused. I wanted to impress on counsel the difference between challenging the crown’s ability to meet theirunwavering onus of proving the identity of the perpetrator beyond a reasonable doubt and advancing an alibi defence. Mr.

Wright doesnot have to advise the crown that he was not admitting that he was the perpetrator and the crown must anticipate that identity is issueunless and until it is admitted. Counsel clearly stated at the outset of the trial that Mr. Wright was not making any admissions. Incontrast, counsel should provide adequate notice of an alibi so that it can be investigated or risk that I may draw an adverse inference andgive little, if any, weight to any alibi evidence.

This is one of the very few exceptions to the right to remain silent that is constitutionallyenshrined in the Charter. [68] Despite a clear, pointed admonition to counsel, she advised me that she did not anticipate introducing alibi evidence.Nevertheless, it became evident within a very short period of time after Mr. Wright began testifying that he was in fact raising an alibidefence. When counsel finished asking questions in examination in chief, I repeated to counsel that her client had testified that he returned the car on March 12th and he did not have his licence on March 13th, 2019.

While counsel deliberately chose not to elicit thedetails of his alibi during Mr. Wright’s evidence in chief, the only available inference from that evidence was that he was not in the carthat night so he must have been elsewhere. Counsel still maintained that this was not an alibi. [69] If a defendant testifies that s/he could not have committed the offence because s/he was somewhere else, it is an alibi even ifs/he chooses not to share the details of that alibi.

Counsel’s position was misguided, and it was contrary to decades of binding case law. [70] After counsel indicated that she completed her examination in chief, I took a recess. When we returned from the break, I gavecounsel another opportunity to ask more questions. Even after taking time to reflect on the nature of the defence, the only questionscounsel asked Mr. Wright after the recess were about the ethnicity of the owner of the vehicle and the ethnicity of the person whocrashed the vehicle the next day.

Notably, nothing else about their features or appearance were provided other than the colour of theirskin which was completely unhelpful. The mere fact that they are all black men does not mean that they all look alike. Mr. Wright didnot suggest that he has ever been confused with Mr. Telska or Mr. Tappin. It was not until re-examination, that counsel showed Mr.Wright a picture of Mr. Tappin and asked him to identify that person. Although Mr. Wright did not say that he looks like Mr. Tappin orthat he has ever been mistaken for Mr. Tappin, the similarities in the appearance of Mr. Tappin and Mr.

Wright are apparent whenlooking at these photos. [71] To be clear, this is not a factual scenario similar to R. v. Rawn, [2015] O.J. No. 2875 (Ont.C.A.). In that case, the accused wasinside the vehicle during the incident however he claimed that he was not the driver. Mr. Wright did not testify that he was present at thescene, but he was not the perpetrator. He claimed that he was somewhere else. Mr. Wright’s evidence unequivocally shifted “the factualfocus from the facts alleged by the Crown to an entirely different factual scenario”. [72] In R. v. Hill, (ON CA), [1995] O.J.

No. 2360 (Ont.C.A.), Justice Laskin provided the following oft-citeddefinition of an alibi: Alibi is the Latin word for elsewhere and, as the Nova Scotia Court of Appeal observed in R. v. Gottschall (1983), (NS CA), 10 C.C.C. (3d) 447 at p. 455, 61 N.S.R. (2d) 86, it "has through the years come to mean the plea that when the alleged acttook place one was elsewhere and therefore it was impossible for him to have committed the crime". In R. v. Sgambelluri (1978), (ON CA), 43 C.C.C. (2d) 496 at p. 500 (Ont.

C.A.), MacKinnon A.C.J.O. succinctly stated: "Alibi evidence must bedeterminative of the final issue of guilt or innocence of the accused." If Hill had an explanation of his whereabouts that would exonerate him, then he was expected to come forward and disclose it, and hisfailure to do so could properly be considered by the jury. [73] Mr. Wright’s evidence was that he was elsewhere and, therefore, it is impossible for him to have committed these crimes. Thisevidence, if believed or if it raises a reasonable doubt, could exonerate him and would be determinative of his innocence. [74] R. v.

Cleghorn, (SCC), [1995] S.C.J. No. 73 at para 3 and 4 (S.C.C.) is the seminal case with respect to thetimeliness and adequacy of the disclosure of an alibi: As outlined by my colleague, proper disclosure of an alibi has two components: adequacy and timeliness. This principle was recentlyreiterated in R. v. Letourneau (1994), (BC CA), 87 C.C.C. (3d) 481 (B.C.C.A.), where Cumming J.A. wrote for aunanimous court at p. 532: It is settled law that disclosure of a defence of alibi should meet two requirements: (

a) it should be given in sufficient time to permit the authorities to investigate (

b) it should be given with sufficient particularity to enable the authorities to meaningfully investigate. Failure to give notice of alibi does not vitiate the defence, although it may result in a lessening of the weight that the trier of fact willaccord it .... As stated above, the consequence of a failure to disclose properly an alibi is that the trier of fact may draw an adverse inference whenweighing the alibi evidence heard at trial... However, improper disclosure can only weaken alibi evidence; it cannot exclude the alibi.My colleague correctly notes that the rule governing disclosure of an alibi is a rule of expediency intended to guard against surprise

alibis fabricated in the witness box which the prosecution is almost powerless to challenge. Again as noted by my colleague, thedevelopment of the rule since its formulation in Russell shows that the rule has been adapted to conform to Charter norms. As such,disclosure is proper when it allows the prosecution and police to investigate the alibi evidence before trial. The criteria of timeliness andadequacy are thus evaluated on the basis of whether a meaningful investigation could have been undertaken as a result of disclosure.

Theflexibility of the standard is demonstrated by the fact that neither disclosure at the earliest possible moment, nor disclosure by theaccused him or herself is required in order for the criteria to be met. Third party disclosure is sufficient. [emphasis mine] [75] The law with respect to alibi evidence has been well settled since 1994. It has not changed in over 25 years. Last year, in R. v.Bushiri, [2019] O.J. No. 5045 at para. 1 (Ont.C.A.), the Court of Appeal succinctly summarized the law citing both R. v.

Hill and R. v.Cleghorn: At common law, an accused who advances an alibi defence at trial must disclose the substance of that defence to the prosecution insufficient time and with sufficient particularity to allow the authorities to investigate it before trial. When the accused does not do so, thetrier of fact may draw an adverse inference when weighing the alibi evidence. The courts have recognized this qualification of anaccused's constitutional right to silence in order "to guard against surprise alibis [being] fabricated in the witness box which theprosecution is almost powerless to challenge": R. v.

Cleghorn, (SCC), [1995] 3 S.C.R. 175, at para. 4; see also R. v.Noble, (SCC), [1997] 1 S.C.R. 874, at paras. 111-13; R. v. Wright, 2009 ONCA 623, 98 O.R. (3d) 665, at paras. 18-20;and R. v. Hill (1995), (ON CA), 25 O.R. (3d) 97 (C.A.), at pp. 477-78. And further on at paragraphs 31 to 34: The relevant legal principles are not in dispute. "Alibi" is Latin for "elsewhere". It is settled that "[w]here an accused advances an alibi defence, he claims that as he was elsewhere hecould not have committed the crime alleged.

The alibi defence moves the factual focus from the facts alleged by the Crown to an entirelydifferent factual scenario. But for the alibi defence, the factual scenario introduced by the alibi has no relevance to the Crown'sallegation": Wright, at para. 19. Put another way, "[a]libi evidence, by its very nature, takes the focus right away from the area of the main facts, and gives the defence afresh and untrammeled start. It is easy to prepare perjured evidence to support it in advance": Cleghorn, at para. 22, citing R.N.Gooderson, Alibi (London: Heinemann Educational Books, 1977), at p. 30; Wright, at para. 19.

Where there is not timely disclosure of an alibi defence, the adverse inference when weighing alibi evidence that is permitted, but notrequired, is said to be a rule of expediency, given "the risk of fabrication and the Crown's inability to effectively challenge alibi defencesrevealed long after the relevant events occurred": Wright, at paras. 19-20. But the adverse inference "can be justified only where therationale for that qualification [of the right to silence] actually operates.

Thus, if the alibi defence is disclosed in time to permitmeaningful investigation of the defence, there are can be no justification for the [adverse inference]": Wright, at para. 20, citing R. v.Hogan (1982), (ON CA), 2 C.C.C. (3d) 557 (Ont.

C.A.), at p. 566, leave to appeal to S.C.C. refused, 51 N.R. 154(note), and Cleghorn, at paras. 3-5. … The operative question is thus: did the Crown require disclosure of the appellant's alibi defence sooner, in order to effectively investigateand respond to the defence actually advanced? [76] Counsel repetitively asserted that the reason for the requirement to provide timely notice of an alibi is only about “expediency”.That is a misstatement of the law.

It is also about preserving the fairness of a trial and avoiding a surprise last minute defence that thecrown is not able to effectively challenge long after the events have occurred. [77] This alibi has been disclosed 17 months after the relevant events occurred and after the crown closed its case. Mr. Wright can’t even remember the details of what he did on March 13th, 2019. Moreover, one of the most important alibi witnesses, Mr. Wright’scousin, is dead. Counsel’s offer to adjourn the case indefinitely to investigate the alibi was meaningless at this late stage in theproceedings.

Moreover, I note that counsel made this offer midway through the crown’s cross-examination before the evidence aboutMr. Betty’s death had been elicited from Mr. Wright. Counsel must have known that the one person who was with Mr. Wright on the 13th through to the 14th of March was deceased and obviously unavailable when she made this offer.

Counsel referred to this untimelyoffer to adjourn the case during her submissions and argued that I should not make any adverse inference from the untimely disclosure ofthe alibi because the crown did not take her up on this opportunity and the crown could have adjourned the proceedings to allow thepolice time to investigate the alibi. [78] Counsel’s offer to adjourn the proceeding to investigate an alibi, especially when she did not elicit any details of the alibi duringexamination in chief and she must have known that the most important witness was dead, was strategic.

It seemed tactically craftedspecifically for the purpose of detrimentally impacting the crown’s ability to seek an adverse inference as opposed to a genuine offer.Counsel must fearlessly and forcefully advocate on behalf of their clients. However, this conduct teetered on the brink, if not toppledover, into sharp practice. [79] Counsel also made submissions that the crown and the police were obliged to fully investigate this matter. The police knew thatMr. Telska was the owner of the vehicle and Mr.

Tappin was driving it the next day so their failure to fully investigate this incidentshould also be considered when I decide whether or not to draw an adverse inference. First, the police had Mr. Wright’s identification in

their possession, so they had no reason to investigate whether it was someone else in the driver’s seat on March 13th. Secondly, PCScholtes and PC Richer were NOT the investigating officers. The Criminal Investigations Bureau responsibly and properly took over theinvestigation to avoid these involved officers, whose lives were put in jeopardy and who shot at a suspect, from being involved in thearrest or gathering of evidence. There is no evidence about what, if any, steps that C.I.B. took to investigate Mr. Telska and Mr. Tappin.That does not mean those steps were not taken by the police.

Rather, the crown had no reason to lead any evidence about any follow upinvestigation excluding possible alternate suspects during her case because she was not aware that this was an alibi case. It was apparentthat the crown’s understanding before the trial commenced was that the defence was going to focus on the legitimacy andconstitutionality of the actions of the two officers on that night. [80] Finally, counsel made a number of submissions that one of the reasons for the delayed disclosure of the alibi was that it tookMr. Wright a “long time” to secure the services of counsel. Mr.

Wright is young and inexperienced with the criminal justice system, socounsel argued that he was in no position to make an informed decision about whether or not to provide timely notice of this alibi. Asnoted, when I reviewed the history of the proceeding, Ms. Salih in not inexperienced and she has been appearing as Mr. Wright’s counselsince May of 2019. [81] Mr. Wright spent two days in pretrial custody, and he has been bound by restrictive bail terms with a curfew and a drivingprohibition for 17 months for offences that he claims that he did not commit. While Mr.

Wright has the right to silence, it is mindboggling that he chose not to share this vital exculpatory information with the police or the crown’s office. It is unquestionable that thecrown required disclosure of this evidence sooner for the police to effectively investigate it and for the crown to be able to respond to it.To say that they were surprised by this evidence would be an understatement. An adjournment of these proceedings would not haveremedied this issue. I am not faulting Mr.

Wright in any way for counsel’s choices about how to approach this issue during the trial.Nevertheless, in light of the inability to properly investigate the alibi, I am drawing an adverse inference about the credibility of thisevidence as a result of Mr. Wright’s failure to disclose it prior to the trial. [82] I find that the timing of the disclosure of this alibi has undermined the credibility of Mr.

Wright’s evidence that he was at hiscousin’s house during the incident with the police on Capreol Court. [83] In addition to the untimely disclosure of the alibi, the defence did not call any other witnesses or present any other evidence.There are many people who could have substantiated or raised a reasonable doubt about Mr. Wright’s whereabouts at 11:30 p.m. on March 13th or whether he still had the Acura on that date. He could have called corroborative evidence that he returned the vehicle to the owner on March 12th and did not have access to it thereafter.

He could have called his ex-girlfriend or the owner of the vehicle. He could have called his friend Mr. Dorian who he was with until after just after midnight on the 13th into the morning of the 14th of March to confirm that he was with him. He could have called his brother, who was the passenger in the vehicle on the 13th of March, to confirmthat Mr. Wright wasn’t there that night. Whether or not Mr.

Wright had conditions prohibiting him from communicating with certainwitnesses, counsel was not bound by that same prohibition and subpoenas could have been issued for any of these people or for hisphone records if his phone was missing. [84] I am cognizant that I must be very careful not reverse the burden of proof or suggest in any way that Mr. Wright is required toprove his alibi or call any witness to corroborate his account. Nevertheless, as a matter of logic and common experience, consideringhow many different ways Mr.

Wright could have bolstered his testimony, there is no plausible explanation for not presenting anycorroborative evidence. [85] In R. v. Degraw, [2018] O.J. No. 585 at paragraphs 29 to 32 (Ont.C.A.) the Court of Appeal explained that: In some limited circumstances, a trier of fact may draw an adverse inference from the accused's failure to call a witness. The adverseinference principle is "derived from ordinary logic and experience". It is not intended to punish the accused for failing to call a witness:R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 24.

An adverse inference may only be drawn where there is no plausible reason for not calling the witness: R. v. Lapensee, 2009 ONCA 646,99 O.R. (3d) 501, at para. 42. Even where it is appropriate to draw an adverse inference, it should not be "given undue prominence and acomment should only be made where the witness is of some importance in the case": R. v. Koffman (1985), (ONCA), 20 C.C.C. (3d) 232 (Ont. C.A.), at p. 237. Commenting upon the failure of the defence to call a witness runs the clear risk of reversing the burden of proof: R. v.

Ellis, 2013 ONCA9, 113 O.R. (3d) 641, at para. 49; and Lapensee, at para. 45. As well, trial counsel will frequently make choices about not callingpotential witnesses, the reasons for which are often entirely unrelated to the truth of any evidence a witness may give. For instance, anhonest person may have a poor demeanour, resulting in a strategic choice not to have the individual testify. Or, the evidentiary point tobe made by a person may already have been adequately covered by others: Jolivet, at para. 28.

Allowing an adverse inference to be takenfrom the failure to call a potential witness runs the risk of visiting strategic litigation choices upon the accused. Accordingly, an adverseinference should only be drawn with great caution… Where comment is appropriate, the "only inference that can be drawn" is not one of guilt, but an inference that, had the witness testified,his or her evidence would have been unfavourable to the accused: Koffman, at p. 238; and R. v. Marshall (2005), (ON CA), 200 C.C.C. (3d) 179 (Ont. C.A.), at para. 47.

This inference can impact on an assessment of the accused's credibility:Koffman, at p. 238; Charrette, at p. 359; R. v. Dupuis (1995), (ON CA), 98 C.C.C. (3d) 496 (Ont. C.A.), at p. 508;and Marshall, at paras. 44, 47-48. [86] A defendant is under absolutely no obligation to call corroborative evidence. To suggest otherwise would erroneously shift theburden of proof. As a result, it is a very rare case that a Court will draw an adverse inference of any kind from the failure of a defendantto call additional evidence. This is one of those rare cases. I am not drawing an inference that Mr.

Wright was the driver of the carbecause he did not call additional evidence. Instead, the failure to call any corroborative evidence, in addition to the untimely disclosureof his alibi, has further undermined the credibility of Mr. Wright’s evidence.

[87] I accept that Mr. Wright went to the Ministry of Transportation to get his licence back on March 12th, 2019 after the drivingsuspension ended. I accept that his friend brought him to the Ministry in the Acura. After Mr. Wright picked up his licence, he dropped his friend off and took the Acura that was involved in the incident with police on March 13th. On the exact same date that he regainedhis driving privileges, he was pulled over by police that afternoon and given a speeding ticket.

The speeding ticket was issued during theafternoon and he agreed that he had to show the police proof of insurance. [88] This evidence assisted the crown’s case in a number of ways. It proves that Mr. Wright had access to this vehicle, permission to drive it and he was driving it on March 12th. It provides a logical explanation for why, the following day, the driver of the Acura had amessage from the owner of the car with a photograph of his temporary insurance.

It provided an explanation and context for the driver’sinitial nervousness and then his sudden change in attitude to frustration and fury when he realized that he was about to be arrested forimpaired driving. Mr. Wright just paid to regain his driving privileges after a four month suspension and he only got his licence back theday before. He already racked up a speeding ticket and he was about to be arrested for an even more serious matter. [89] Mr. Wright’s evidence that he carelessly lost track of his licence the same day that he retrieved it without noticing that it was missing was incredulous.

His account of the details of his whereabouts and activities on March 12th and 13th was confusing andcontradictory at points. He was not a reliable historian nor a credible witness. I do not believe his evidence that he returned the Acura tohis friend and coincidentally misplaced his licence. I do not believe his alibi evidence that he was with his cousin and his friend between 11:30 p.m. to just before midnight on March 13th, 2019. In addition, Mr. Wright’s evidence does not raise a reasonable doubt. Eventhough I reject Mr.

Wright’s evidence about losing his licence and where he was that night, I must still go on to consider whether thecrown has proven beyond a reasonable doubt that he was the driver. iii. The identification evidence: [90] Counsel referenced two decisions that highlighted the inherent frailties of eye witness identification particularly when the eyewitness and the suspect are different races. The Ontario Court of Appeal recently addressed the pitfalls of this type of evidence in R. v.Bao, 2019 ONCA 458 , [2019] O.J.

No. 2899 at paras 13 and 14: This case provides another example of an honest witness purporting to make an accurate eyewitness identification. However, given thatP.C. Storozuk only made a fleeting observation, and in light of how events transpired that evening, his identification of Mr. Bao wasrendered worthless. Accordingly, the appellant's conviction is unreasonable and cannot be supported by the evidence: see CriminalCode, R.S.C. 1985, c. C-46, s. 686(1)(a)(i); R. v. Quercia (1990), (ON CA), 75 O.R. (2d) 463 (C.A.), at pp. 465-466;R. v. Malcolm (1993), (ON CA), 13 O.R. (3d) 165 (C.A.), at pp. 173-174; R. v.

Miaponoose (1996), (ON CA), 30 O.R. (3d) 419 (C.A.), at p. 423. In his reasons, the trial judge identified some of the inherent frailties generally associated with eyewitness identification evidence. Theyare well known and have been discussed by the courts on countless occasions: see e.g. R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445,at para. 50; Peter deC. Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration ofEntitlement to Compensation (Winnipeg: Manitoba Justice, 2001), at pp. 31-34.

Although these frailties are easily identified, problemssometimes arise in the failure to focus on the specific frailties presented in individual cases: see R. v. Lewis, 2018 ONCA 351, at para. 16;R. v. Baltovich (2004), (ON CA), 73 O.R. (3d) 481 (C.A.), at para. 79; R. v. Gough, 2013 ONCA 137, at paras. 34,38-39; and R. v. Pimentel (1995), (ON CA), 85 O.A.C. 395 (C.A.), at para. 11 And further at paragraphs 19 to 23: I start with the fact, which is common to many identification cases, that this was a case of stranger identification. P.C. Storozuk and theappellant did not know each other.

As this court cautioned in R. v. Tat (1997), (ON CA), 117 C.C.C. (3d) 481, at para.100, concerns about eyewitness identification "are particularly high where the person identified is a stranger to the witness": see also R.v. Goran, 2008 ONCA 195, 234 O.A.C. 283, at para. 32. Perhaps most importantly, P.C. Storozuk had the opportunity to observe the driver for mere seconds, from a distance of 15 feet, whilethe vehicle passed at a speed of 50 km/h. As the trial judge noted in his reasons, the vehicle would have been traveling at 14 meters persecond.

By any measure, this was nothing more than a fleeting glance: Mezzo v. The Queen, (SCC), [1986] 1 S.C.R. 802;R. v. Virgo, 2016 ONCA 792, at para. 12; R. v. Boast, 2019 ONCA 19, at para. 15. P.C. Storozuk's description of the driver was also bereft of any detail -- "Asian male, dark hair." As defence counsel at trial (not Ms.Caterina) submitted, this could describe any Asian male. It may even have been an apt description of the men who were found hiding inthe bushes near the crashed minivan. Importantly, this description was not relayed to the dispatcher by P.C.

Storozuk as the eventsunfolded; it was recorded in his notebook after he had viewed the appellant's OHIP card. The lack of any meaningful description of thedriver seriously undermined P.C. Storozuk's identification evidence. As this court noted in Gough, at para. 37, generic descriptions are oflittle assistance: see also R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at para. 16; R. v. Ellis, 2008 ONCA 77, at paras. 5, 8. P.C.

Storozuk was also unable to identify any clothing that might have been visible from his vantage point, not even the colour of theclothing that the driver was wearing on the upper part of his body. There was another need for caution on the part of the trial judge -- this was a case of cross-racial identification: see R. v. McIntosh(1997), (ON CA), 35 O.R. (3d) 97 (C.A.), at p. 105, leave to appeal refused, [1997] S.C.C.A. No. 610; R. v. Richards(2004), (ON CA), 70 O.R. (3d) 737 (C.A.), at para. 32; and R. v.

Mey, 2011 ONCA 288, 280 O.A.C. 319, at para. 35.The trial judge included this feature in his reference to the inherent frailties of identification evidence generally. However, he never really

grappled with this feature in the context of this case. This was a serious issue, especially in light of P.C. Storozuk's generic description. This was further compounded by the fact that three Asian men that were found hiding nearby, who along with the woman found with them, were presumably occupants of the minivan -- a vehicle with seats for four. [ 91 ] Unlike the facts in Bao , I find that the PC Scholte’s opportunity to view Mr. Wright was not fleeting.

Quite the contrary, he took the time to look at the photo on the licence and compare it to the driver to specifically satisfy himself that it was the same person. [ 92 ] Although counsel highlighted the discussion in R. v. Bao , supra , about the difficulties with relying on this evidence, the Court of Appeal made additional comments that are very pertinent to this case.

At paragraph 26, the Court referred to the trial judge’s comparison of the facts to “ situations in which police officers verify the identification of drivers at roadside (i.e., by comparing a presented photo-bearing driver's licence with the seated driver).” The Court specifically found that “analogy” was not “sound”. The Court of Appeal went on to observe at paragraphs 34 and 35 that: As noted above, the trial judge likened P.C. Storozuk's use of the OHIP card to the typical traffic stop scenario where police officers compare the driver with the photo identification presented.

This identification process is not unique to traffic stops. It is used in other contexts -- e.g., airport check-in; customs clearance; proof of age at public houses; professional or educational testing -- occasions when it is necessary to verify the identity of individuals presenting themselves for a particular purpose. This comparison is not helpful. The traffic stop scenario entails a process of simultaneous comparison between the person and the photograph. The officer and the driver will be in close proximity. Questions may be asked.

Within legal limits, the length of the encounter is controlled by the officer. During a traffic stop, the driver will be anxious for the officer to accept the licence photograph as authentic. [ 93 ] PC Scholtes, a very experienced police officer, engaged in a process of “simultaneous comparison” between the driver and the photograph. He had the opportunity to look directly at the photo and directly at the driver when he was right beside him, when the situation was calm, when he had a clear view and ample time to be certain about the comparison.

There was sufficient ambient lighting to make the comparison and review the ownership documents and the insurance. The comparison took seconds but this initial face to face interaction took place over a minute. In addition, PC Scholtes spent five very memorable minutes in an up close encounter with the driver after this initial comparison and he retained the driver’s licence afterwards. [ 94 ] PC Scholtes did not work backwards from a photo that he recovered after the fact to record a description of the driver.

Since he already compared the driver to the photo in the licence and he still had that licence, he felt that retaining and referring to the photo was far better evidence than jotting down notes of the description of that person. Of course, the photo of the male and the driver were both black men and PC Scholtes is white. That does not necessarily mean that he could not discern whether they were different individuals or the same person when looking at the photo compared to the driver. [ 95 ] PC Scholtes was completely unshaken in his belief that Mr. Wright was the driver of that Acura.

I found him to be a very credible witness and a reliable historian. Considering the manner of the identification, independently of any consideration of Mr. Wright’s evidence, I find that PC Scholtes provided compelling and persuasive evidence of the identification of the driver. [ 96 ] In addition to the crown’s evidence, I accept that Mr. Wright had access to this vehicle, the owner’s permission to drive it and he had driven it a number of times. I find that he had the temporary insurance documents for the vehicle on his phone. In addition, the passenger of the vehicle, Mr. Griffiths, is Mr.

Wright’s half brother. Mr. Wright was connected to the vehicle proximate in time to the incident and he was connected to the passenger. [ 97 ] Counsel highlighted the following facts: the Acura was being driven erratically by Mr. Tappin, like the driver on March 13 th ; Mr. Tappin had recent possession of the Acura hours after the incident on Capreol Court; he did not have any identification and the police were in possession of Mr. Wright’s licence; and the picture of Mr. Tappin looks remarkably similar to the picture on Mr. Wright’s driver’s licence.

At the very least, counsel urged me to find that this evidence should raise a reasonable doubt about the identification of the driver. [ 98 ] I agree with counsel that Mr. Tappin looks quite similar to Mr. Wright in the photographs that were tendered in evidence. However, their hair styles, the widths of their mouths and the shape of their nostrils and other features are different. They are similar looking but distinguishable young men. [ 99 ] I accept that Mr. Tappin also had access to the vehicle, and he was driving it erratically hours afterwards.

Nevertheless, I do not know what the nature of the relationship was, if any, between Mr. Tappin and Mr. Griffiths, who was the passenger, or Mr. Tappin and the owner of the vehicle, Mr. Telska. In contrast, Mr. Wright had the owner’s permission to drive the car and he is related to the passenger. He also knew Mr.

Tappin for at least four years, and he knew where he lived in March of 2019. [ 100 ] Based on a review of the evidence that I do accept as a whole, the evidence of a similar looking male driving the vehicle erratically within hours of the occurrence, in all of the circumstances, does not raise a reasonable doubt about the identity of the driver. The only reasonable inference from all of the evidence, particularly in light of the manner of the road side identification and the strength of PC Scholtes’ evidence, is that Mr. Wright was the driver of the vehicle on Capreol Court on March 13 th , 2019.

The crown has proven beyond a reasonable doubt that Mr. Wright was the driver who became involved in this altercation with the police. D. Conclusion: [ 101 ] Counsel did not dispute that, if I find that Mr. Wright was the driver, the crown has proven the essential elements of all of the offences except the flight from police. Mr. Wright resisted the directions of PC Scholtes and assaulted him while he was engaged in the lawful execution of his duties. Mr. Wright’s driving was incredibly dangerous. He could have killed PC Scholtes. It is miraculous that no one was killed or seriously injured that night.

As a result, he is found guilty of counts 1, 2 and 4 on the information.

[ 102 ] While Mr. Wright fled the scene to avoid being arrested, there was no evidence that he was pursued by the police in a vehicle or on foot. PC Scholtes testified that he chose not to pursue Mr. Wright because he was concerned for the safety of any other users of the roadway. PC Richer was worried about the condition of his partner so he ran to his partner’s aid instead of following the fleeing vehicle. Accordingly, the crown has not proven the essential elements of count 3 on the information and he is acquitted of that count.