Her Majesty the Queen - v. -, 2016 SKPC 9

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 009 Date: January 20, 2016 Information: 90008369 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Nicolas James Boa Appearing: Mr. D. Maher For the Crown Mr. J. Williams For the Accused TRIAL DECISION M. HINDS, J INTRODUCTION 1 . Nicolas James Boa is charged that on or about the 29th day of August A.D. 2014 at or near Regina, Saskatchewan, he did operate a motor vehicle on a street, road, highway or other public place in a manner that is dangerous to the public, contrary to section 249(1) (

a) of the Criminal Code . 2 . During the late evening of August 29, 2014 a young woman, Tianna Killingback drove from Regina to Kronau, Saskatchewan to pick up her boyfriend who had finished work. As Ms. Killingback was leaving the city of Regina she was driving eastbound on Arcola Avenue and encountered another motorist. At first the other motorist seemed to want to race Ms. Killingback who tried to ignore him. Soon the actions of the other motorist became more sinister. The other motorist and Ms. Killingback proceeded onto highway #33 which is an undivided highway with two way traffic.

On several occasions the other motorist pulled alongside the right hand side of Ms. Killingback’s vehicle, matched her speed and attempted to force her across the centre line into oncoming traffic. After several of these dangerous manoeuvers the other motorist left Ms. Killingback alone and proceeded back towards the city of Regina. [3] The sole issue at trial is identity. Has the Crown proved beyond a reasonable doubt that the accused was the driver of the other motor vehicle? [4] I found the eyewitness identification evidence of the Crown was unreliable.

As a result I was left in doubt by the identification evidence adduced by the Crown. Consequently, I found the defendant not guilty. FACTS [5] On August 29, 2014 Tianna Killingback was 17 years of age and living with her boyfriend, Kenan, in the city of Regina. Tianna and Kenan shared the use of his F350 truck. That morning Tianna drove Kenan to his place of work in Kronau, Saskatchewan and returned to Regina. Around 11:00 p.m. Kenan texted Tianna and asked her to pick him up in Kronau.

Tianna left her home in Regina and drove the F350 truck to Kronau. [6] Kronau is situated off highway #33 and is 19 kilometres east of Regina. Tianna proceeded from her home and a short time later was proceeding eastbound on Arcola Avenue. Arcola Avenue runs east and west. There are two east bound lanes of traffic and two west bound lanes of traffic separated by a grass ditch where Arcola Avenue intersects with University Park Drive. As one proceeds east of the intersection of University Park Drive on Arcola Avenue there are two additional sets of traffic lights.

One is at the intersection of Prince of Wales Drive. The second set of lights is at Woodlawn Drive. About one city block past the intersection of Arcola Avenue and Woodlawn Drive, Arcola Avenue becomes highway #33 which remains a divided highway for approximately two kilometres and then becomes an undivided highway with two way traffic. [7] Tianna Killingback testified in chief as follows: First Set of Traffic Lights on Arcola As she was leaving Regina she was proceeding east bound on Arcola Avenue and came to a stop in the left lane at a first set of traffic lights.

She had all of her windows down and was listening to country music. She observed a grey Infiniti sports car pull up beside her and heard the driver start revving the car engine. Initially she testified that she minded her own business, turned her music down, rolled up her windows and proceeded eastbound when the light turned green.

She later testified that she looked at the car beside her. The driver’s side window of the car was half way down. She got a quick glance (it wasn’t any longer than 30 seconds) of the male driver who was looking at her. She identified the accused who was seated in the body of the court as being the male driver she saw at the first set of traffic lights. Second Set of Traffic Lights on Arcola The two met again when they both stopped at a second set of traffic lights where the male driver started revving his engine again. Ms.

Killingback thought the male driver was in “race mode” and she recorded his license plate, 140 IZF. She did not see a passenger in the car. When the traffic lights changed, the male driver took off. Ms. Killingback proceeded at the speed limit. The two came to stop at a third set of traffic lights. Third Set of Traffic Lights on Arcola The two vehicles switched traffic lanes at the third set of traffic lights. Ms. Killingback stopped her truck in the right lane a car length behind the male driver who was stopped in the left lane. She wanted to avoid any eye contact with the male driver.

She was trying not to “egg him on” to race. No one else was on the road at this intersection. The light turned green, however, neither driver proceeded forward. After approximately 20 seconds Ms. Killingback proceeded eastbound in the right lane. As Ms. Killingback was approaching highway 33, the male driver came up behind her and pulled along side her on the right by driving onto the shoulder of the road matching her speed. Highway #33 When the male driver was to the right of Ms. Killingback’s truck, the two vehicles were both traveling eastbound at over 100 km/h on the two way traffic portion of highway #33.

At this time the male driver started moving his car to his left in the direction of Ms. Killingback’s truck. Ms. Killingback reacted by moving her vehicle to the left, crossing into the oncoming traffic lane. She then tried to speed up and slow down in order to lose the male driver and get back into her own driving lane. This was largely unsuccessful as the male driver matched her speed or repositioned his vehicle to the right of Ms. Killingback. Ms. Killingback testified that she was fearing for her life and she eventually pulled onto the shoulder of the highway and stopped the truck.

She added that “ a little ways ahead I seen him slam on his brakes and pulled into the shoulder too and just waited.” Ms. Killingback then resumed driving on the highway past the male driver. The male driver once again drove up behind and then to the right of her. Once again the male driver moved to his left. Ms. Killingback in turn moved to her left in the oncoming lane of traffic. This time she observed an oncoming semi truck. Ms. Killingback managed to pull back into her own lane and the male driver slammed on his brakes. Ms. Killingback narrowly missed the oncoming semi truck. Ms.

Killingback continued on her way to Kronau. She saw the male driver turn around at the “Viterra Road”and return to Regina. The two vehicles traveled at speeds from 110 to 160 kms/hr on highway #33. Suicide Passes Ms. Killingback testified that the male driver “suicide passed her” a total of three times. This occurred once on Arcola and twice on the highway.

She indicated that a suicide pass occurs as follows: (1) a vehicle B is initially traveling behind vehicle A (2) vehicle B accelerates and drives to the right of and past vehicle A using the shoulder portion of the roadway (3) vehicle B then moves into the driving lane in front of vehicle A. Contact with the Police Ms. Killingback believes she first made contact with the police around 11:40 p.m. when she pulled over to the side of the highway and placed a telephone call to 911. She told the 911 operator what happened to her, the licence number of the Infinity car and what the male driver looked like.

She met the police around 1:00 a.m. on August 30, 2014. She provided the police with a statement. She gave a description of the male driver. The police told her that they found the male driver when he came back to the city of Regina. [8] On cross-examination Ms. Killingback testified as follows: At the first set of traffic lights on Arcola Ms. Killingback got a good look at the driver of the Infinity. She looked over at the driver when he was revving his engine. She rolled her eyes. Ms.

Killingback agreed that there is nothing in her written statement that she provided to the police indicating that she looked at the driver of the Infinity at the first set of lights or that she rolled her eyes. After reading her written statement in court, she agreed that there is nothing in her statement indicating that she stopped once on the highway before the male driver turned around. She added that she was frightened and this may have caused her to leave out driving details. After reading her statement in court she conceded that she did not stop her truck on the side of the highway. Ms.

Killingback agreed that the man she pointed out in court as being the male driver was the only young male in the court room when she testified and that she saw him walk into the court room with Mr. Williams.

The incident occurred over 13 months ago. She never saw the driver of the Infiniti before August 29, 2014 and has never seen him since. He was a complete stranger to her. She recalls being called by someone prior to court and being asked if she could identify the male driver from a line up. She agreed that she was never asked to view a line-up of individuals or a photo line-up. She agreedthat the one and only time her recollection of the male driver was tested was in court on October 8, 2015. On October 8, 2015 Ms.

Killingback testified that she recalled making a call to the 911 operator from the side of the road. On November 12, 2015 Ms. Killingback testified that she did not call the 911 operator from theside of the highway. She agreed her boyfriend Kenan called the 911 operator from Kronau while she was at his side. She told the 911 operator that the driver of the car was a white male, probably 17 to 20 years of age and had glasses. She agreed that she testified in chief that the driver of the Infiniti “suicide passed her” (passed on her right side) once on Arcola and twice on the highway.

On cross-examination she reviewed her statement to police datedAugust 30, 2014. She agreed that in her statement she refers to only one incident of being suicide passed on Arcola. [9] Constable Kelly Shumy testified that he and Corporal Stadel were working together in amarked police vehicle on the evening of August 29, 2014 and early morning of August 30, 2014. At 11:25 p.m. the officers received a call from the Regina City Police communications centre regarding a dangerous driverthat was eastbound on Highway 1 towards the city of Regina.

He received further information that the dangerous driver had license plate number 140 IZF and had driven northbound on the Ring Road and wasproceeding eastbound onto Arcola. Constable Shumay determined that this plate matched a 2007 Grey Infiniti G35. The officers patrolled Arcola almost to highway #33. They did not see the Grey Infiniti. [10] Constable Shumay determined that the registered owner of the Grey Infiniti was ToddNelson who lived at 3039 Donison Crescent, Regina. The officers went to this address at 11:32 p.m. The house was in darkness and there was no vehicle in the driveway.

The officers did a quick area search and did notlocate the Infinity. The officers proceeded to Wascana Park on another matter. [11] At 11: 42 a.m. Constable Shumay received another call regarding a dangerous driver. Thesame licence plate came up. The officers decided to go back to the registered owner’s home address at 3039 Donison Crescent. They arrived at 11:52 p.m. This time Constable Shumay observed a 2007 Grey G35 Infiniti,with licence plate number 140 IZF parked in the driveway. The Infiniti had its hood up. Constable Shumay noticed an extreme amount of heat coming from the engine compartment.

The engine was very hot. The tireswere warm to the touch and he could smell the asbestos from the brakes. He added that when police have driven their cars hard the asbestos smell is very prominent. [12] The officers rang the door bell of the house and the accused answered the door. The officersasked to speak to the registered owner of the Infiniti. Mr. Boa said the registered owner was not in. Constable Shumay asked for and received Mr. Boa’s driver’s licence. The officer also asked Mr. Boa if he had beendriving the Infiniti. Mr. Boa denied driving the vehicle. Mr.

Boa also declined an invitation to get into the police vehicle. [13] The officers kept Mr. Boa’s licence and returned to their vehicle. While in the policevehicle Corporal Stadel spoke to Ms. Killingback. Constable Shumay made a decision to charge Mr. Boa with dangerous driving and served an appearance notice on him at 12:35 a.m. on August 30, 2014. [14] On cross-examination Constable Shumay testified as follows: (1) he agreed that neither ofthe officers asked Ms. Killingback to view a line-up or a photo line-up (2) he met with Ms.

Killingback at her home in Regina around 12:50 a.m. on August 30, 2014 (3) he told Ms. Killingback that he had been to thehouse of the registered owner, found the car that she described and that he had charged a young man who was at the residence and (4) he obtained a statement from Ms. Killingback. [15] On cross-examination Constable Shumay was asked to take a look at Mr. Boa. He testified that he observed that Mr. Boa had a mole and two freckles on his right cheek. ISSUE The sole issue at trial is identity.

Has the Crown proved beyond a reasonable doubt that the accused was the driver of the Infinity motor vehicle? ANALYSIS [16] I am mindful of the case law which warns of the inherent frailties of eyewitness testimony and the need to closely examine its reliability. There are numerous cases in which well-intentioned and honest witnesseshave simply been wrong in identifying an accused.

This case law is set out in great detail by Madam Justice Jackson of the Saskatchewan Court of Appeal in R v Bigsky, 2006 SKCA 145, 289 Sask R 179 and by JudgeWhelan and Judge Gray of the Provincial Court of Saskatchewan in R v Friesen, 2005 SKPC 68, 265 Sask R 57 [Friesen] and R v Gamble, 2010 SKPC 171, 368 Sask R 76 [Gamble] . /ca/legal/search/runRemoteLink.do?A=0.8339543246158794&bct=A&service=citation&risb=21_T23295557352&langcountry=CA&linkInfo=F%23CA%23SJ%23ref%25801%25sel1%252006%25year%252006%25/ca/legal/search/runRemoteLink.do?A=0.5039038636139989&bct=A&service=citation&risb=21_T23295557352&langcountry=CA&linkInfo=F%23CA%23SJ%23ref%25417%25sel1%252005%25year%252005%25[17] In Friesen the Court stated asfollows at paragraphs 8 and 9:8.

In R. v. Burke (1996), (SCC), 105 C.C.C. (3d) 205/ca/legal/search/runRemoteLink.do?A=0.7269462048615536&bct=A&service=citation&risb=21_T23295557352&langcountry=CA&linkInfo=F%23CA%23CCC3%23vol%25105%25sel1%251996%25page%25205%25year%251996%25sel2%25105%25decisiondate%251996%25(S.C.C.), Lamer C.J.C. made the following comments at pp. 224-5, regarding the potential pitfalls of identification evidence:The cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made by direct visual confrontation of the accused.

By reason of the many instances in whichidentification has proven erroneous, the trier of fact must be cognizant of the inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection.Regina v. Sutton, [1970] 3 C.C.C. 3 C.C.C. 152/ca/legal/search/runRemoteLink.do?A=0.10190136938634009&bct=A&service=citation&risb=21_T23295557352&langcountry=CA&linkInfo=F%23CA%23CCC%23vol%253%25sel1%251970%25page%25152%25year%251970%25sel2%253%259. In R. v.

Spatola, (ON CA), [1970] 4 C.C.C. 241 /ca/legal/search/runRemoteLink.do?A=0.861896959155773&bct=A&service=citation&risb=21_T23295557352&langcountry=CA&linkInfo=F%23CA%23CCC%23vol%254%25sel1%251970%25page%25241%25year%251970%25sel2%254%25 (Ont.C.A.) at p. 249, Laskin J.A. (as he then was) made the following observation about identification evidence:Errors of recognition have a long documented history. Identification experiments have underlined the frailty of memory and the fallibility of powers of observation.

Studies have shown the progressive assurance that buildsupon an original identification that may be erroneous ... The very question of admissibility of identification evidence in some of its aspects has caused sufficient apprehension in some jurisdictions to give pause to uncriticalreliance on such evidence, when admitted, as the basis of conviction . . . [18] In Gamble the court stated as follows at paragraphs 67 and 68: 67. The frailties and dangers associated with eyewitness identification have

long been recognized and real caution must be exercised in convicting on that kind of evidence alone. Human observations and recollections of identity are notoriously unreliable; the most honest witness can be mistaken but yet present as very convincing and sure of their identification. 68. Counsel for the accused referred the Court to R. v. Bigsky 2006 SKCA 145 (Sask. C.A.), and R. v. Friesen 2005 SKPC 68 (Sask. P.C.) in relation to the question of eyewitness identity. I have also taken the opportunity to read and consider R. v. Hibbert 2002 SCC 39 and R. v. Hay 2009 ONCA 398 , [2009] O.J. No. 1904 (Ont. C.A.).

In Bigsky (supra), the Court of Appeal reviewed a number of authorities where convictions were based on eyewitness testimony. Although courts mustbe wary of basing convictions on eyewitness identification, it does not mean that all eyewitness identification which is challenged must be ruled out.

It is important to consider factors such as: whether there was opportunity to observe, whether the accused was known to the witness, whether there has been an out of court identification, whether a photo line-up provided a meaningful test of the witness' ability to make an identification and whether there is any supportive or corroborative evidence. Reliability of the Eyewitness Identification Opportunity of the Witness to Observe the Driver of the Infiniti [19] In the present case, Ms. Killingback testified that she had “just a quick glance” at the driver of the Infiniti at the first set of lights on Arcola.

Given that Ms. Killingback testified that she was trying to ignore thedriver and “mind her own business” I am of the view this quick glance was of a very short duration. Witness Description of the Driver of the Infiniti [20] The description of the driver of the Infiniti provided by Ms. Killingback is quite general and lacks detail. She told the dispatcher that the driver of the car was a white male with glasses between 17 to 20 years of age. She also recalled writing in her statement to the police that the driver had curly blond hair. Accused was not known to the Witness [21] Ms.

Killingback had never seen the driver of the Infiniti before or since August 29, 2014.He was and is a complete stranger to her. Out of Court Identification[22] Ms. Killingback did not take

part in an out of court identification of the accused. Despite police involvement in the investigation within two hours of the incident, Ms. Killingback has never had an opportunity to view a line-up or photo line-up. In my view no meaningful test of Ms. Killingback’s ability tomake an identification has occurred out of court in the thirteen months between the time of the incident and trial. This is surprising given the serious nature of the charge before the court. In Court Identification[23] Ms. Killingback identified the accused as being the driver of the Infinity in court on October 8, 2015.

She testified that the accused had a little less hair and was not wearing glasses. Overall Ms. Killingback presented as a sincere and honest witness. Her honesty was apparent when she candidly agreed on cross-examination that the man she pointed out in court as being the driver of the Infiniti was the only young male in the court room when she testified and that prior to court she saw him walk into the court room with defencecounsel.

I am of the view that little weight can be attached to such identification evidence. [24] In many respects this identification evidence before the court is akin to dock identification, which is of little value. In R v Reitsma (SCC), [1998] 1 S.C.R. 769, [1998] S.C.J. No 38 the Supreme Court was in agreement with the minority reasons given by Madam Justice Rowles in the BritishColumbia Court of Appeal. In R v Reitsma (1997) 97 BCAC 30 at para 59 , B.C.J.

No. 2314, Justice Rowles commented on the issue of dock identification as follows: The identification of an accused person for the first time "in the dock"is generally regarded as having little weight. In a dock identification the witness is obviously not required to pick out the person whom heclaims to have seen from among a number of other persons of similarage and size and general physical appearance. In a courtroomidentification there is also the danger of the witness anticipating thatthe offender will be present.

That danger is accentuated when anaccused is readily identifiable in the courtroom as the person accusedof the crime. Identification of an accused for the first time in the dockis analogous to a police "show up" in which the only person shown tothe identifying witness is the suspect, and for that reason it is open tothe same criticism. Generally, anything which tends to convey to awitness that a person is suspected by the police or is charged with theoffence has the effect of reducing or destroying the value of theidentification evidence. Supportive or Corroborative Evidence of Identity

[25] The evidence reveals that the police found the Infinity bearing licence plate number 140 IZF at 11:52 a.m. in the driveway of the residence of the registered owner, Todd Nelson. The Infiniti’s hood was up, the engine was very hot, the tires were warm and the smell of asbestos was coming from the brakes. All of this evidence is consistent with the vehicle having being recently driven at high speeds and using it’s brakes. The evidence also reveals that the accused, Mr. Boa answered the door to the home. He told the police that Mr. Nelson wasn’t in. He denied driving the vehicle.

I am of the view this evidence establishes that the Infiniti in the driveway was involved in the dangerous driving as described by Ms. Killingback. However, I cannot conclude that this evidence is supportive or corroborates the identification of Mr. Boa as being the driver of the Infiniti. General Reliability of Ms. Killingback’s Evidence [26] While Ms. Killingback presented as a sincere and honest witness I find there are problems with the general reliability of her evidence. There are a number of examples where Ms. Killingback testified in chief to certain events she later corrected on cross-examination.

For instance, when Ms. Killingback testified in chief on October 8, 2015 that she recalled making a call to the 911 operator from the side of the highway. On November 12, 2015 Ms. Killingback testified on cross- examination that she did not call the 911 operator from the side of the highway. She agreed her boyfriend Kenan called the 911 operator from Kronau while she was at his side. Another example involves her evidence regarding being passed by the Infiniti. Ms. Killingback agreed that she testified in chief that the driver of the Infiniti “suicide passed her” once on Arcola and twice on the highway.

On cross-examination she reviewed her statement to police dated August 30, 2014. She agreed that in her statement she refers to only one incident of being suicide passed on Arcola. There is no doubt that Ms. Killingback was scared and shaken from this incident. Her fear was well founded and may well have affected her recollection of events. Conclusion [27 ] I am of the view that the eyewitness identification evidence of the accused by Ms. Killingback is not reliable. While I found the evidence of Ms.

Killingback to be honest and sincere, I was unable to find that her identification of the accused in Court was reliable, having regard to the criminal burden of proof and the frailties in the identification process that I have commented upon. As a result I find the accused not guilty. M. Hinds, J