Her Majesty the Queen - v. -, 2016 SKPC 95

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 095 Date: July 18, 2016 Information: 35706782 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jonathan Iron Appearing: Mr. T. Macnab For the Crown Ms. S. Ferre For the Accused JUDGMENT D. SCOTT , J INTRODUCTION [ 1 ] Jonathan Iron is charged that on May 8, 2015 he: 1. Operated a motor vehicle in a manner dangerous to the public, contrary to section 249(1) (

a) of the Criminal Code and; 2. Operated a motor vehicle while being pursued by a peace officer and failed to stop, in order to evade the peace officer, contrary to

section 249.1(1) of the Criminal Code . [ 2 ] The Crown alleges that Jonathan Iron was the operator of a vehicle driven in a dangerous manner and which failed to stop when pursued by the police officers on Circle Drive in Saskatoon. The officers acknowledged that they were unable to see the driver at that time, but shortly thereafter located the vehicle in Hampton Circle being driven by someone they identified as Mr. Iron. [ 3 ] Counsel for the accused submitted no argument that the driving was not dangerous and evasive. Rather, it is the position of the defence that the Crown has failed to prove Mr.

Iron was the driver of the vehicle. [ 4 ] At trial, the Crown called three witnesses, Constable Jason Kowalenko, Constable Adam Schmidt and a civilian witness, Gregory Thurlow. The Crown also tendered into evidence, two videos recorded from the officers’ patrol car, and an SGI photo and profile. The defence presented no evidence. BACKGROUND [ 5 ] Constables Kowalenko and Schmidt testified that at approximately 2:07 a.m., they were working in traffic enforcement on Attridge Drive, west of Central Avenue in Saskatoon.

Their patrol vehicle, equipped with a radar unit, was parked in a ditch, facing in an easterly direction to monitor westbound traffic. [ 6 ] At approximately 2:07 a.m., they observed two vehicles travelling westbound on Attridge Drive near the merge onto Circle Drive, both at high rates of speed. The second of the two vehicles was clocked at 106 kilometres per hour in a 60 kilometre per hour zone. [ 7 ] As the vehicles approached, Constable Kowalenko activated the emergency lights and pulled onto the left shoulder, with the intent to issue a traffic ticket.

The lead vehicle pulled over to the right immediately and stopped. The second vehicle, a grey Jeep SUV, drove past the first and pulled onto the shoulder. The Jeep did not completely stop and as the patrol vehicle pulled in immediately behind it, the Jeep accelerated quickly as it drove away. [ 8 ] Although they could not say with certainty, it appeared to both officers that only the driver occupied the Jeep.

The officers pursued the Jeep on Circle Drive and across the bridge, accelerating to a speed of 180 kilometres per hour, in order to close the gap, so that they could read the licence plate. [ 9 ] The Jeep continued to proceed westbound. It slowed to 110 kilometres per hour as did the patrol vehicle, but the officers continued their pursuit to Circle Drive and Millar Avenue, where the speed limit drops to 50 kilometres per hour. The Jeep slowed to 80 kilometres per hour and drove into the opposing eastbound lane. At the time, two vehicles were travelling eastbound in that lane.

At 2:09 a.m., the officers terminated the pursuit for public safety reasons. The Jeep continued on, westbound in the eastbound lane. [ 10 ] The officers called in the licence plate number 088 JKW and were informed by dispatch that the vehicle was a 2006 Jeep Commander registered to Jonathan Iron, whose date of birth was December 23, 1987 and address was Meadow Lake, Saskatchewan. The officers were informed by the communications sergeant that Mr. Iron was also “associated with” an address at 410-1022 Hampton Circle, Saskatoon. [ 11 ] The officers proceeded immediately to the Hampton Circle address.

They pulled into the parking lot at 2:20 a.m. The property consisted of a row of townhouses on their left and a row of detached parking garages on their right. A diagram of the configuration of townhouses and garages was presented as exhibit P2. They observed what appeared to be the Jeep they had earlier pursued pulling into garage #42. The patrol vehicle pulled up to the Jeep’s passenger’s side, stopping with a distance of approximately three to five feet between the patrol car’s front bumper and the passenger side of the Jeep.

[ 12 ] Both officers testified they could see through the passenger side of the vehicle, which was vacant, into the driver’s side of the vehicle. They both observed the driver turn to the right and look directly at them. Constable Kowalenko said the driver looked “shocked”, “like a deer in the headlights”. Cst Schmidt testified the driver looked “startled and surprised”. [ 13 ] The Jeep backed up and fled, driving behind a house and down the street. It accelerated through the parking lot, behind a house and down the street.

The officers followed briefly but did not pursue the Jeep for public safety reasons, instead returning to the Hampton Circle property. [ 14 ] Within three or four minutes, Constable Kowalenko conducted a search on the laptop in the patrol vehicle. He was able to find a valid photo of the Jeep’s registered owner on the SGI database and believed it was the same person as the driver of the Jeep. Tendered as exhibit P1 at trial was a copy of the SGI photo.

Both officers concluded it was the same individual. [ 15 ] At trial, both officers described the driver as a Native male, approximately 20 to 25 years of age, wearing a red ball cap and black sweater or hoodie. Constable Kowalenko testified they had a clear view of the driver for a period of three seconds. Constable Schmidt testified he was able to get a “really good look” at the driver for between three and five seconds before the Jeep backed up and drove away. Based upon a comparison of their observations of the driver and the SGI photo, they concluded Mr. Iron was the driver at the time.

The officers were otherwise unfamiliar with Mr. Iron. [ 16 ] The officers knocked at the door of Unit 410, but the interior was dark and there was no answer. The officer returned to the same address the following week, spoke with a woman at that address who stated she did not know Jonathan Iron or of the vehicle in question. Neither officer had any subsequent dealings with Mr.

Iron. [ 17 ] Constable Kowalenko used a diagram exhibit P2, of the townhouse complex at Hampton Circle, to demonstrate to the Court the location of the townhouses, garages, and the vehicles’ respective paths. [ 18 ] Gregory Thurlow is the property manager at 1022 Hampton Circle. He confirmed that diagram P2 accurately represented the configuration of the area. He testified that garage #42 was assigned to Unit 410. The garage doors in that complex open by remote control door openers. [ 19 ] According to Mr.

Thurlow, on May 8, 2015, Unit 410 was owned by a non-resident owner who lives in Alberta and was being rented by Nicole Merasty. She originally had a female roommate and took another male roommate, Cody Crookshank. [ 20 ] The patrol vehicle was equipped with an in-car camera system, on which events related to these charges were recorded. Two videos were recorded, the first on Circle Drive and the second at Hampton Circle. Video Disk 1 [ 21 ] The first video confirms that at approximately 2:07 a.m. the police begin what appears to be a traffic stop of two westbound vehicles.

The police car pulls in front of the first vehicle and behind the second, which is the subject Jeep. The Jeep pulls over, slows and then accelerates and drives away. The officers pursue, with their emergency lights and siren activated. The Jeep does not stop, but continues at a high rate of speed, eventually moving into the oncoming eastbound traffic lane, where one of the officers is heard saying “Circle and Quebec”. Constable Kowalenko, in his testimony, stated their location was in fact at Circle Drive and Millar Avenue. The officers discontinue their pursuit at that time.

A voice from dispatch is heard to state a licence plate number 088 JKW and indicates the registered owner is Jonathan Iron of Meadow Lake. A voice is also heard to say that Mr. Iron is associated with an address at 1022 Hampton Circle.

Video Disk 2 [ 22 ] The second video is taken at Hampton Circle. It illustrates the following chronology: 2:19:56 The video begins with the police vehicle approaching a grey SUV pulling into a garage. It is difficult to estimate the distance, but there are approximately eight or nine vehicles angled parked between the patrol vehicle and the Jeep. The patrol vehicle accelerates as the Jeep is driving into a garage.

The driver is blocked from view by the garage and is therefore not visible at this point. 2:19:57 The Jeep stops but the driver is still obscured from view by the garage. 2:19:58 The patrol vehicle continues to advance quickly toward the Jeep, but is still some distance away when at this point a shadowy image in the driver’s seat comes into view for the first time. 2:19:59 The Jeep is backing up. 2:20:00 The Jeep stops and begins to move forward. The patrol vehicle stops perpendicular to the passenger side of the Jeep.

The lights of the patrol vehicle shine directly on the panels of the Jeep’s passenger side doors, not into the cab of the vehicle. On the video, it appears dark in the Jeep. 2:20:01 The Jeep moves forward and turns left, in the opposite direction of the police vehicle and drives away.

The patrol vehicle follows without emergency lights activated. 2:21:10 The patrol vehicle discontinues pursuit and returns to the garage; one of the officers comments that the garage door is left open. [ 23 ] The opportunity for the officers to view the driver appears to have been between 2:19:58 and 2:20:01, or approximately two to three seconds. ISSUE [ 24 ] The only issue to be decided is whether the Crown has proven beyond a reasonable doubt Jonathan Iron was the driver of the grey Jeep.

ANALYSIS [ 25 ] The Crown’s case depends in large part upon the reliability of the officers’ eyewitness identification of Mr. Iron as the driver of the Jeep at Hampton Circle and the inference that the driver was one and the same as the individual driving the Jeep in a dangerous manner on Circle Drive.

[26] The Court, when faced with the task of assessing the reliability of eyewitness identification, must consider the inherent frailties arising from the unreliability of human observation and recollection: R v Sutton, (ON CA), [1970] 3 CCC 152 (Ont CA). [27] As stated by Gray J. in R v Gamble, 2010 SKPC 171: 67. The frailties and dangers associated with eyewitness identification have long been recognized and real caution must be exercised inconvicting on that kind of evidence alone.

Human observations and recollections of identity are notoriously unreliable; the most honestwitness can be mistaken but yet present as very convincing and sure of their identification. 68. ...Although courts must be wary of basing convictions on eyewitness identification, it does not mean that all eyewitnessidentification which is challenged must be ruled out.

It is important to consider factors such as: whether there was opportunity toobserve, whether the accused was known to the witness, whether there has been an out of court identification, whether a photo line-upprovided a meaningful test of the witness’ ability to make an identification and whether there is any supportive or corroborativeevidence. [28] I have also had the benefit of reviewing R v Bigsky, 2006 SKCA 145, an extensive survey of the authorities by Jackson J.A.regarding eyewitness identification and relied upon by the defence in this case. [29] While eyewitness identification must be carefully tested, where it is accompanied by a substantial body of circumstantial evidence, that circumstantial evidence may serve to confirm the reliability of the eyewitnesstestimony: R v Davenport (1996), (ON CA), 94 OAC 63 (Ont CA) (QL) at para14, referenced in Bigsky at para 16. [30] Therefore, I am required to carefully review the evidence with these principles in mind.

Identification at the scene of the dangerous driving. [31] The driver was unidentifiable at the scene of the dangerous driving on Circle Drive. The officers could not say with certainty whether anyone other than the driver occupied the vehicle at that time. The only evidence of thedriver’s identification is at Hampton Circle. The Court must therefore be satisfied beyond a reasonable doubt that the driver of the Jeepat Hampton Circle was the same as on Circle Drive and that the driver was Mr. Iron. Reliability of the officer’s identification of Mr.

Iron as the driver at Hampton Circle [32] The officers’ observation of the driver at Hampton Circle was for brief seconds. Constable Kowalenko testified he observed thedriver’s face for approximately three seconds and Constable Schmidt testified he observed the driver’s face for three to five seconds.

However, it is apparent from video #2 that the driver’s seat in the Jeep was obscured by the garage and visible for only approximatelytwo to three seconds at best. [33] The officers’ observations were initially from some distance away, and their closest point was from a distance that included the length of the front of the police vehicle, three to five feet between the vehicles and the width of thefront seat of the Jeep. Some of Constable Kowalenko’s attention would have been directed at accelerating the patrol vehicle as he drove

toward the Jeep. Other than for a brief moment, both vehicles were moving. The officers viewed the driver through windows of twovehicles. It was dark outside, though the parking lot was lit. [34] The officers were able to provide only a general description that the driver was a Native male, approximately 20 to 25 years of age, wearing a red ball cap and a black sweater or hoodie. No other distinguishing features werenoted by the officers, other than Constable Schmidt who, when asked, said the driver had no facial hair.

The presence of the ball capwould have obscured to some extent the color and length of the driver’s hair and possibly the face. “Bare recognition unsupported byreference to distinguishing marks and standing alone, is a risky foundation for conviction even when made by a witness who has seen ormet the accused before: R v Spatola, (ON CA), [1970] 4 CCC 241 (Ont CA), referenced in Bigsky at para 23. [35] Both officers testified the driver looked surprised. Although indicative of the officers’ ability to see the driver’s facial expression,this would not have served to assist in identification. [36] Mr.

Iron was previously unknown to the officers. Their ability to identify the driver as Mr. Iron was the result of theircomparison with the SGI photo of the Jeep’s registered owner, acquired approximately three to four minutes after observing the driver. No evidence was presented that they viewed any other photos, once they had acquired the photo of the vehicle’s registered owner. [37] There is a danger that the officers’ recollection of the driver was influenced by the SGI photo. Upon viewing the SGI photo, there is a possibility they were predisposed to conclude that Mr.

Iron, as the registered owner, wasthe driver they had witnessed. [38] The officers had no further contact with Mr. Iron or opportunity to verify the identity of Mr. Iron as the driver. [39] The videos do not assist in identifying the driver at either location or corroborating the officers’ evidence. On the contrary, theinterior of the Jeep is dark and the driver is not visible in either video.

The officers explain their view of the driver was clear, in spite ofthe lack of clarity on the video. [40] In Bigsky the eyewitness identification was from a single witness, based upon a fleeting glance of a previously unknown individual, made from a moving vehicle of an individual in a moving vehicle, and possibly weakened byseeing a single person in custody rather than being properly tested by a line-up or other means: para 80. [41] In R v Boa, 2016 SKPC 9, Hinds J. acquitted the accused of dangerous driving, where the observation by the eyewitness involved a quick glance, the description provided was general and lacked detail, the accused wasunknown to the witness and no meaningful test of the witness’ ability to identify the driver occurred during the thirteen months betweenthe time of the incident and trial. [42] In the present case, the officers’ identification of the driver was the result of a brief glance of a previously unknown individual,while both vehicles were moving, allowing for only a general description and possibly influenced by an SGI photo of the registeredowner. [43] That is not to say the officers are not honestly convinced of their ability to identify Mr.

Iron as the driver. Although the officers are certain of their identification of the accused as the driver, they may be honest butmistaken: Gamble, supra para 67. As stated in R v Reitsma, (1997) (BC CA), 97 BCAC 303, “…the honesty andintegrity of the eyewitness is often not in issue...[T]esting the reliability of the evidence of identity goes beyond a determination ofwhether an eyewitness is being honest”: para 30.

[44] In R v Atfield (1983), 1983 ABCA 44 , 25 Alta LR (2d) 97 (CA) Belzil, J.A. noted the danger of mistaken visual identification from honest and convinced witnesses, certain of their identification, but nonetheless mistaken, stating: The accuracy of this type of evidence cannot be determined by the usual assessments of credibility...[C]orrectness of identification mustbe found from evidence of circumstances in which it has been made or in other supporting evidence.

If the accuracy of the identificationis left in doubt because the circumstances surrounding the identification are unfavorable, or supporting evidence is lacking or weak,honesty of the witnesses will not suffice to raise the case to the requisite standard of proof, and a conviction so founded is unsatisfactoryand unsafe: at p. 102. Reliability of the officer’s identification in Court [45] Both officers identified Jonathan Iron in the courtroom.

He was the only person present, other than court personnel, two lawyers and this judge. [46] Constable Kowalenko initially testified he recognized Jonathan Iron from the SGI photo, but clarified in cross-examination thathe also recognized Mr. Iron in Court from his observation of the driver. [47] Both officers testified that following their brief observation of the driver at Hampton Circle on May 8, 2015, they had no subsequent contact with Mr. Iron. [48] This in-court identification is similar to in-dock identification.

In Reitsma, at para 59, Rowles J.A. stated of in-court dockidentification (reasoning adopted by the Supreme Court of Canada on appeal): The identification of an accused person for the first time “in the dock” is generally regarded as having little weight. In a dockidentification the witness is obviously not required to pick out the person whom he claims to have seen from among a number of otherpersons of similar age and size and general physical appearance. In a courtroom identification there is also the danger of the witnessanticipating that the offender will be present.

That danger is accentuated when an accused is readily identifiable in the courtroom as theperson accused of the crime. Identification of an accused for the first time in the dock is analogous to a police “show up” in which theonly person shown to the identifying witness is the suspect, and for that reason it is open to the same criticism. Generally, anythingwhich tends to convey to a witness that a person is suspected by the police or is charged with the offence has the effect of reducing ordestroying the value of the identification evidence.

See also R v Miller 2003 BCSC 118 (QL), at para 21: “in-court dock identification is always considered to be very unreliable evidence”. [49] Accordingly, little weight can be attributed to the officers’ in-court identification of Mr. Iron. Corroborating evidence of identity [50] The Court must consider other evidence to determine whether there is substantial circumstantial evidence which may serve tosupport the officers’ identification of Mr. Iron. [51] On May 8, 2015, Jonathan Iron was the registered owner of the Jeep which was driven in

a dangerous manner. Constable Kowalenko says the Jeep at Hampton Circle matched the vehicle they followed on Circle Drive and possessed the same licence plate number. The driver was the lone occupant of the Jeep at Hampton Circle. [ 52 ] The communications sergeant informed the officers that Jonathan Iron was “associated with” the address at Hampton Circle and Mr. Iron’s Jeep was at Hampton Circle within approximately 10 to 11 minutes after the incident on Circle Drive. There was no evidence as to the nature of Mr. Iron’s connection with that address.

On the contrary, the vehicle registration showed his address to be Meadow Lake. Mr. Thurlow, the manager, was able to identify a number of people associated with Unit 401 – 1022 Hampton Circle, but none of those individuals was the accused. And, when the officers returned to that address at a later date, the occupant claimed not to know Jonathan Iron nor of his vehicle. [ 53 ] Mr. Thurlow’s testimony that the garage door opened by remote control does not necessarily implicate Mr. Iron as the driver; others named by Mr.

Thurlow as individuals associated with the Hampton Circle property, with access to the garage door opener, were potential drivers. [ 54 ] The Circle Drive and Hampton Circle incidents occurred within minutes of each other. The defence argues the time was sufficient within which a change of drivers could have occurred. However, the driver on Circle Drive and Hampton Circle engaged in similar evasive driving behavior. I am satisfied that the driver at both locations was one and the same person. [ 55 ] The eyewitness identification of each officer corroborates the testimony of the other.

However, both observations are subject to the same weaknesses. [ 56 ] In

summary, the corroborating evidence is essentially that Mr. Iron was the registered owner of the Jeep and that he had an association with Hampton Circle, where the vehicle was located shortly after the first incident. The circumstantial evidence is not of such a substantial nature so as to confirm the reliability of the eyewitness testimony of the officers. CONCLUSION [ 57 ] I am satisfied that the driving on Circle Drive at high rates of speed and in the oncoming lane was dangerous.

I am further satisfied that the operator drove the Jeep in an attempt to evade police at both locations. [ 58 ] Nonetheless, I am left with a reasonable doubt whether the driver at both locations was Mr. Iron, given the tenuous nature of the identification evidence, the general nature of the driver’s description, and the less than substantial corroborating evidence to support the identification. A rational explanation, consistent with the evidence, is that another individual associated with the Hampton Circle address, matching what is a very general description, was driving Mr.

Iron’s vehicle on the night in question. [ 59 ] Taking into account all of the evidence, I find the Crown has failed to prove beyond a reasonable doubt that Jonathan Iron was the driver of the Jeep Commander SUV being driven dangerously and in an attempt to evade police. I therefore find Mr. Iron not guilty. ________________________ D.C. Scott, J