R. v. Ishak, 2014 ONCJ 775

COURT FILE No.: Hamilton CITATION: R. v. Ishak, 2014 ONCJ 775 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — SIMOON ISHAK Before Justice J. Takach Heard on September 22 and 23, 2014 and October 16, 2014 Reasons for Judgment released on November 27th, 2014 D. Wilson ................................................................................................................... for the Crown K.

McGilly ............................................................................................................... for the accused TAKACH J.: [1] The accused is charged with Dangerous Driving, Possession of Stolen License Plates, Breach of Probation. The offences relate to the evening of January 31st, 2014. [2] The principle issue in this case is that of identification. The law reports are replete with cases involving the issue of identificationevidence.

Shortly stated, there is probably no other area of the law that potentially may be responsible for a miscarriage of justice thatthat of well-intentioned, but incorrect identification of an accused. [3] As noted in R. v. Wristen (1999) (ON CA), 141 C.C.C. (3d) 1 (Ont. C.A.) where the prosecution’s case dependssubstantially upon the accuracy of eye-witness identification as it does in this case, I must instruct myself on the need for caution whendealing with such evidence.

I must consider, not only with issues of credibility, but also with the inherent frailties of identificationevidence because of the unreliability of human observation and recollection: R.v. Sutton, (ON CA), [1970] 2 O.R. 358(C.A.); R.v. Miaponoose (ON CA), [1996], 30 O.R. (3d) 419 (C.A.); R.v. Mezzo, (SCC), [1986] 1S.C.R. 802; R.v. Turnbull [1976], 63 Cr. App. R. 132 (C.A.) have dealt with these issues.

It is important to remember the various factorsthat can affect the reliability of eye-witness identification evidence and remember that mistaken identification has been responsible formiscarriages of justice by reason of the the wrongful conviction of persons who have been mistakenly identified by one or more honestwitnesses. Long ago, it was held that a proper consideration will be similar to a charge to a jury which jury will often follow the modelcharge from The People v. Casey (No. 2), [1963] I.R. 33 (S.C.), which was approved by the Court of Appeal in R. v. Sutton supra. [4] In R. v.

Hibbert 2002 SCC 39 , [2002] 2 S.C.R. 445 at paragraph 50, the Court stated: “the danger associated with eye-witness in court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of theidentification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it”. [5] In dock identification is of particular concern particularly when that identification may have been influenced by a previously viewedphotograph.

Further complication of the issue arises where the witness has seen a photograph, but where said photograph was not pickedout of a photo line-up. It matters not whether or not the witness in question was a civilian or a police officer. [6] A number of identification cases are relevant to the consideration in the case at bar. In R. v. Muir 2013 ONCA 470 ,[2013] O.J. No. 3190, the Court of Appeal emphasized the need for caution by the trier of facts in that case particularly with respect tolighting, vantage points and brevity of observation. Those issues are live issues in the case at bar. In R. v.

MacDonald [2014] ONCA610, the court pointed out the dangers of contamination, this time between an encounter with the accused prior to the witness picking hisphoto from a photo line-up. [7] The charges in this case stem from an alleged encounter of the accused with Officers Brown and Clayton in a parking lot areabehind a bar.

Both officers observed three passengers in a motor vehicle, one of which was a young female in the front passenger seatwho appeared to be drinking from two different containers at the same time, giving rise to the belief that the young lady was consumingalcohol and using the second beverage as a chaser.

Both officers were in plain clothes and although the observation was originally madefrom the rear of the vehicle, Constable Brown testified that he ended up facing the driver’s side off the front bumper. [8] He described the vehicle as a black motor vehicle with no tint on the windows, but a spoiler on the back hatch of the two-doorvehicle. He removed his badge from under his coat which was left on a lanyard and produced it to the young male in the driver’s seat

with a view to conducting a Liquor Licence Act investigation. He observed that the driver and the passenger engaged in a hurried or excited conversation exchanging words back and forth, although he could not hear what was being said. He described the driver as a young male mulatto, between the age of 16 to 20 with a chinstrap type of beard or 5 o’clock shadow, dark brown fairly short hair and he had what could be described by the officer as a pointed jawline. The individual was wearing a black T-shirt.

Constable Brown testified that he tried to get the accused to roll down the driver’s side window but met with no response. He could not recall whether or not the vehicle was running, but clearly stated that he did not hear it start up and therefore, at this point assumed that it was running. The officer stated that he saw the alleged accused put one hand on the wheel and another drop to the gear shift area at which time he heard a shifting sound. He testified that he was still in front of the motor vehicle and described the vehicle as accelerating and running.

As the vehicle drove past him, he struck out at the vehicle with his flashlight trying to break the window and his view was that he hit the driver’s side rear window and that he had a sense of some materials or particles flying off. [ 9 ] The vehicle successfully made an escape since both officers were on foot. Because of Constable Brown’s undercover police assignment and work on the plain-clothes squad that he was attached to, he felt the driver might be someone who had similar characteristics as he described the driver of the suspect vehicle having.

Accordingly, he left the area and checked the police database to obtain a photo of this individual. He testified that he noticed there were differences between the individual he saw and the photograph he had picked. He, however, wanted to make sure that that was not the individual and he attended that persons residence. This individual by the name of Rezza was not at home at the time but when he arrive, Constable Brown noted that he was not wearing a black T-shirt, he was clean-shaven and wore glasses.

The officer was certain that he was not the suspect and in his own mind cleared him of any involvement. [ 10 ] A week later, Constable Brown received a photograph from Constable Clayton and it was a photograph of the accused. Constable Brown testified that he recognized the accused as being the individual responsible for the occurrence on January 31 st and concluded that he had reasonable and probable grounds to arrest the accused for dangerous driving, possession of stolen licence plates and breach of probation.

Notwithstanding this fact, nothing was done until February 14 th when after the receipt of other information about the scratch on the window, he observed the accused enter Popeyes restaurant on the corner of Fennell and Upper Wentworth in the city of Hamilton. He testified that he observed the same person to wit, the accused exit Popeyes restaurant and walk toward a black Honda motor vehicle identical in description to the one that he had seen on January 31 st .

He described it as a mid to late 90s motor vehicle, black in colour, no tint on the windows, spoiler on the back of the vehicle and more importantly, a scratch on the rear driver’s side window. He concluded that was the same vehicle and the same person, albeit, his beard was more fully grown. That individual was identified in court as the individual who answered to the charge. The accused was arrested, advised of his rights to counsel and processed.

The officer noted that there was a scratch 3 to 4 inches in length on the driver’s side passenger window, but the motor vehicle now had different licence plates on it with a temporary validation tag. [ 11 ] At the scene on January 31, 2014, the officer spent no more than five minutes total with the vehicle. He observed that from afar from a distance of about 30 feet for approximately two minutes. The total time immediately proximate to the vehicle was no more than 2 to 3 minutes.

It was dark and the only lighting that the officer was able tonote would have been lighting from the street lights for the street that bordered the parking lot. The officer’s notes as to what he observed at the scene were made after 1:00am and after he had met with the individual Rezza who was ruled out as a suspect. [ 12 ] Constable O’Hagan testified that he also was a member of the high enforcement action team, but that he was not involved in the incident on January 31 st .

However, in the early morning hours of Saturday February 8 th , 2014, he was in the vicinity of Al-Omara’s bar with Constable Clayton who had been involved in the incident on January 31 st . He observed the two-door black Honda Civic hatchback with a wing or spoiler on the rear of the car with the licence plate that had a temporary validation tag sticker on it. He observed the vehicle travel onto East 33 rd Street which bordered the bar. After conversation with Constable Clayton, they followed it to East 23 rd Street number 381 and approached the driver’s side of the motor vehicle.

The 6 to 7 inch scratch on the driver’s side window on an angle was observed. Constable O’Hagan engaged the driver and identified the accused as the lone occupant of the motor vehicle. After conversation with Constable Brown at a later point, he was satisfied that there were grounds to arrest the accused and on February 14 th observed the same vehicle leave the driveway from the aforementioned address. He lost sight of the vehicle but located it later at Popeyes restaurant on Upper Wentworth Street. He waited for other police officers and the accused was arrested at 7:12pm when he exited the restaurant.

On this date, he searched the vehicle looking for stolen plates, but did not locate same. [ 13 ] Constable Clayton testified that he had been with Constable Brown on January 31, 2014 and at 10:01 pm was on the sidewalk facing the back parking lot of Al-Omara’s bar. From the sidewalk, he observed a male and female inside a black Honda Civic motor vehicle. He observed the young female and saw her drinking two beverages at the same time. He noted that he had never seen a vehicle with the spoiler mounted above the glass.

He conceded that it was dark and that any lighting was supplied by artificial lighting from the street. He believed that the female was drinking alcohol and using the second beverages adjacent. He walked towards the vehicle on foot and knocked on the passenger window and identified himself as a police officer and showed his badge. The female’s hands lowered and he was unable to see any alcohol. He observed the male driver but could not see although he had earlier seen him outside the motor vehicle. He described him as Middle Eastern origin, between 5 foot six and 5 foot 8 inches and 150 to 160 pounds.

He had short hair gelled back. The female did not open the door or window and appeared, in the opinion of the officer, to panic and say something to the driver. The police officer heard the car go into gear and observed it speed off North. Constable Brown was on the driver’s side of the vehicle and Constable Clayton did not have a clear view of him when the vehicle left the scene at a high rate of speed. He lost sight of the vehicle as it turned westbound on to another side street. Constable Brown told him that he had left a mark on the passenger window.

It was this officer’s opinion that he only had the vehicle under observation for a minute. [ 14 ] On Saturday, February 8, 2014, the officer was southbound on East 33 rd Street proceeding towards the Al-Omara bar when a black two-door vehicle drove past in the southbound direction with the same characteristics of the motor vehicle they had previously observed on January 31 st . The officer did a u-turn and followed southbound and cought up with the vehicle on Upper Sherman. He stated that he stopped at a red light beside the vehicle and noticed licence plate BT HT. 335.

The plate had a temporary validation sticker on it. The

vehicle was being operated by a male approximately 20 years of age with the middle eastern complexion, short black hair, and a scratchon the rear driver’s side passenger window. He followed the vehicle southbound on Upper Sherman Avenue to Fennell Avenue whereanother officer, Constable O’Hagan took over as it made a U-turn and went around the block. The vehicle was stopped and there was some encounter with the accused. He considered him a suspect with respect to the January 31st incident.

This information was relayedto Constable Brown who worked in the same office. [15] Some photographs were introduced by the Crown to show the accused’s motor vehicle. Clearly there is some type of marking orscratching on the rear driver’s side passenger window. Whether the windows are tinted or not is left unanswered. The testimony fromthe police officers indicated that the windows of the vehicle were not tinted. The photographs showing the windshield in the driver’sside window tending to establish that if there was a tint, it was a tint of a light nature.

On the other hand, the mark on the rear passengerdriver’s side window may be either marks in the glass or marks on a window tint applied form the outside. Clearly, the driver’s siderear passenger window seems to be darker than the other windows. Whether this is due to the lighting for the camera itself is difficult todetermine. The testimony from the police, however, as noted above was that there was no tint.

On the other hand, the questioning ofthem in this regard was in relation to their testimony particularly that of Constable Brown, on the issue of recognition of the driver whichon the evidence would have been either through the driver’s side window or the windshield. [16] Clearly, there are some issues of identification that are of concern and I must caution myself in regard to these issues. ConstableBrown had the accused under observation for a short period of time, He testified that the vehicle in question was within their view for nomore than five minutes.

Two minutes of that time were from a distance wherein no one could be identified. At the most, the driver ofthe vehicle gets with the officer for 1 to 2 minutes in my view. Constable Clayton put the whole episode with the vehicle encompassingabout a minute. In addition, there was little or no artificial lighting in the back parking lot that could be pointed to by either officerexcept for light emenating from the street light at least 30 feet away. Ont the other hand, Constable Brown had his flashlight in hishand. The evidence is silent as to whether or not he used this for illumination.

In addition, the officer was able to give a full descriptionof the facial features of the accused. Observing the accused in the court room, I conclude that description matches the accused almostperfectly. In addition, he has the appearance of a young person somewhere around 20 years of age. Further, both police officers, on theevening of January 31, 2014, were able to describe the vehicle which in turn matched the vehicle that the accused was seen to beoperating approximately a week later albeit, with a different licence plate.

Of significance, was the model, type, colour, and the fact thatthe vehicle had a spoiler on the hatchback. In addition, there was a mark or scratch on the driver’s side rear passenger window that isconsistent with the mark that Constable Brown felt he left when he attempted to break the window with his flashlight. As noted, thelicence plate was different but the plate on the vehicle was a temporary plate.

At least one of the police officer’s testified that the vehicle on the night of January 31st was a Honda Civic motor vehicle which in fact was the vehicle the accused was apprehended in. [17] Constable Brown had a photograph of the accused sent to him via the police system. He did not pick out the photo from a photoline-up. I must consider the possibility of contamination.

I must be aware of the fact that the individual being identified in thecourtroom was only identified on the basis of a photograph given to Constable Brown by another police officer. [18] If the identification of the accused in this case depended only on the testimony of Constable Brown, it would not be sufficient, inmy view, to establish beyond a reasonable doubt, that the accused was the driver of the offending motor vehicle on the night in question. There is, however, in my view, supporting evidence of Constable Brown’s identification.

The vehicle being driven by the accused on February 8th and February 14th, 2014 was identical to the vehicle being described by Brown and Clayton on January 31, 2014. Thelicence plate was different but the fact that it had a temporary tag on the plate points in the direction of that plate recently being affixed. In addition, the accused was seen in the same area on two separate occasions after January 31st. More telling, however, is the fact thatthere was a mark on the driver’s side rear passenger window that is consistent with the mark said to be left by Constable Brown.

While a conclusion that the vehicle January 31st and the vehicle being operated by the accused on February 8th and February 14th, does not lead automatically to the conclusion that he was the operator on January 31st, the totality of the evidence including the identification does soestablish beyond a reasonable doubt. [19] In R. v. Ferguson 2014 ONCA 673 , [2014] O.J. No. 4608 the Court of Appeal in dismissing the accused’s appeal fromconviction briefly reviewed recent law with respect to dangerous driving and stated at paragraphs 6-8: 6. There is no issue over the actus reus.

Viewed objectively, the appellant’s failure to confine his car to his ownlane was dangerous to other users of the road. 7. The trial judge reviewed the leading cases of R. v. Roy, 2012 SCC 26 , [2012] 2 S.C.R. 60 and R. v.Beatty, 2008 SCC 5 , [2008] 1 S.C.R. 49, in which the Supreme Court considered the mens rea element of theoffence of dangerous driving. In accordance with the guidance provided in these decisions, the trial judge instructedhimself that a finding that the nature of the driving was dangerous was not sufficient to ground aconviction.

The Crown had to prove that the degree of care excercised by the accused was a marked departure from thestandard of care that a reason able person would observe in the accused’s circumstances: Beatty, at para. 43. The trial Judge found that the Crown had met this burden. This finding was open to the trial Judge on the evidence. 8. According to Beatty at paras. 47 and 48, and Roy at paras. 34-40, all of the cir cumstances must be consideredin determining whether the accused had the nec essary mens rea for the offenc.

If the evidence establishes that the drivingconsti tuted a marked departure from the norm, the trier of fact must consider evidence about the accused’sactual state of mind. If any, to determine whether it raises a reasonable doubt about whether a reasonable person in theaccused’s position would have been aware of the risk his conduct created: Beatty at para. 49. [20] I am not persuaded that the conduct of the accused objectively viewed constitutes the actus reus of the offence of dangerousdriving.

Clearly, if I were satisfied that the officer was directly in front of the motor vehicle when the accused accelerated it wouldfollow that degree of care excercised by the offender was a marked departure from the standard of care that a reasonable person wouldobserve. While there is no doubt that Constable Brown was in close proximity of the vehicle in question, I am left in doubt as to hisprecise location at the time the vehicle was put in motion and as to the sequence of events as between the vehicle being placed in motion

in relation to the officer moving out of the way. It is clear that at one point, the officer testified that he was off the front driver’s bumper. It is unclear as to what position on the bumper the officer was—the end of the bumper or somewhere along the front portion. In addition, Constable Brown testified that he told the offender to roll down his window. Because of the officer’s actions, the car drove by and because of his request, it seems more likely that at this point the officer was to the side of the car rather than directly in front of iit.

As noted in cross-examination, Constable Brown’s notes seemed somewhat equivocal in this regard. Constable Clayton was unable to assist as to the exact location of his partner when the vehicle accelerated away. [ 21 ] Accordingly, since neither the fact that the accused was on probation at the relevant time or the fact that the plates were stolen were contested, I find the accused guilty of the offences of Possession of Stolen Plates and Breach of Probation and not guilty of the offence of Dangerous Driving. Released: November 27 th , 2014 Signed: “Justice J. Takach”