R. v. Yeboah, 2017 ONCJ 823

ONTARIO COURT OF JUSTICE CITATION: R. v. Yeboah , 2017 ONCJ 823 DATE: 2017 11 29 COURT FILE No.: Brampton 3111 998 16 11126 BETWEEN: HER MAJESTY THE QUEEN — AND — PATRICK YEBOAH Before Justice G.P. Renwick Heard on 28 and 29 November 2017 Reasons for Judgment released on 29 November 2017 C. Hackett............................................................................................. counsel for the Crown D. Pledge......................................................... counsel for the defendant, Patrick Yeboah RENWICK J.: INTRODUCTION [ 1 ] Mr.

Yeboah is charged in a single count Information with operating a motor vehicle with an excess blood alcohol concentration (“BAC”). The charge arises from a motor vehicle collision where it is alleged that the defendant caused a chain-reaction rear-end collision involving his and three other vehicles. Fortunately, none of the other parties involved in the collision were injured. [ 2 ] The prosecution called two police officers, an expert witness, and one of the involved drivers, Mr. John Woodason, and relied upon a Certificate of a Qualified Technician to establish its case.

There were no Charter applications and no defence was called. [ 3 ] There are two issues for determination. Firstly, has the prosecution established beyond a reasonable doubt that the defendant was the driver involved in the collision? [ 4 ] There is no issue that the defendant was arrested by the police who found him in the passenger seat of a tow-truck on scene after the collision.

Further, there is no issue that the defendant failed a roadside screening device test and provided two suitable samples of his breath directly into an approved instrument and after analysis his BAC at 12:44 am was 100 mgs of alcohol in 100 mL of his blood and at 1:07am his BAC had reduced to 90 mgs of alcohol in 100 mL of blood. I have to determine whether or not the defendant was the driver involved in the collision. If I am not satisfied that the defendant was an involved driver beyond a reasonable doubt, I need not determine the other issue and the defendant must be acquitted.

[ 5 ] Secondly, and only if I am satisfied beyond a reasonable doubt that the defendant was the driver involved in the collision, I must consider whether or not it has been established beyond a reasonable doubt that the defendant’s BAC exceeded 80 mgs of alcohol in 100 mL of blood at the time of driving. I will now discuss the evidence. THE EVIDENCE [ 6 ] I do not propose to recount all of the evidence which was adduced during this brief trial. Nonetheless, I have reviewed the entirety of the evidence and the sub​missions made by both counsel.

In considering whether or not it has been proven that the defendant drove the Suberu which caused the multi-vehicle collision I recognize that there is both direct and circumstantial evidence to consider. [ 7 ] Mr. Woodason testified that a short time after the collision, after speaking with at least one other involved driver he went to the vehicle behind his and saw an older, black gentleman, in his 40’s, with medium length, greyish hair seated in the driver’s seat. The windows of that vehicle were closed and he made a comment and then went to attend to his passenger who was pregnant at the time.

Shortly after that point, Mr. Woodason returned to his car to retrieve insurance documents and the driver who had rear-ended his car was outside of that vehicle. Mr. Woodason spoke with the man to ask if he was hurt and the other driver spoke “gibberish” and Mr. Woodason could not understand a word that was said. Mr. Woodason noted that the other man was a bit shorter than he was, but due to the man’s clothing Mr. Woodason could not determine his build. Mr.

Woodason testified that he stands about 5’11 to 6’ tall. [ 8 ] Constable Leal provided some of the circumstantial evidence of identification upon which the Crown relies. The officer attended the scene at approximately 11:00 p.m. and spoke to the involved parties. He said that he was advised that one of the involved drivers was in a tow truck. The officer estimated that there were about 10 civilians on scene when he arrived, which included involved parties, both drivers and passengers, and tow truck operators. He did not include first responder personnel in that estimate. [ 9 ] Constable Leal testified that Mr.

Woodason advised him that the driver that had hit his vehicle and caused the chain reaction collision was an older, black male with a button-up shirt who was sitting in a tow truck. Constable Leal went to a tow truck and found a male who was eventually identified with an Ontario driver’s license, and that male is the defendant. Constable Leal ended up arresting the defendant and after patting down the defendant the officer found a key ring with keys, one of which he believed was associated with the vehicle which had caused the collision.

The officer was unable to say why he had made the connection between the motor vehicle key in the defendant’s possession and the maroon Suberu SUV which was involved in the motor vehicle accident. [ 10 ] Mr. Woodason also testified that there were no other motorists or pedestrians who were present on scene when the police arrived. Today, Mr. Woodason testified that he recognized the defendant as the man he had spoken to who was involved in colliding with his car.

He says he recognized the defendant from an earlier trial date, when he had seen the defendant outside the courtroom where there were about 40 other people. Mr. Woodason struck me as an honest, concerned witness with no apparent bias or interest in the outcome of this proceeding. His description of the involved driver is not without limitations because of its generality. [ 11 ] I am mindful that identification evidence must be subjected to close scrutiny and I must be cautious in my approach to it, because honest but mistaken identifications can easily lead to wrongful convictions.

There are a number of factors I must consider in this type of case. In no particular order they are: -The time between the event and the trial; -Prior knowledge of the suspect; -The opportunity to observe the suspect; -Any distinctive features of the suspect; -The emotional state of the witness at the time of the event; -Collusion with other witnesses; -Cross-racial identification; -The amount and detail of descriptors; and -Corroborative evidence. [ 12 ] Mr. Woodason was not asked during the trial whether he had pointed out the other driver to the police. Rather, he testified that

the other driver returned to his own car after their brief interaction and remained there until the police came, and at some point he saw the police take that driver away to the police vehicle. [ 13 ] There is little weight that can be given to Mr. Woodason’s in-court identification of the defendant as the other involved driver for the following reasons: Mr. Woodason’s descriptions of the other driver were brief, general, without much detail, and involving someone of a different race. [ 14 ] Mr. Woodason was not asked, but it appeared that he is Caucasian.

He did not provide any evidence that might allay the court’s concerns about a cross-racial identification. Moreover, the witness’ description causes me specific concerns because he testified that the other driver was in his 40’s. This is problematic, because I would estimate that the defendant is in his 50’s. I note that the defendant has very pronounced facial lines, a rather square face and haircut, a small face, and noticeable cheeks or jowls. These are distinctive features that were apparently not noticed by Mr. Woodason, if in fact, he had seen the defendant at the scene of the vehicle collision.

Unfortunately, I have no idea of the height of the defendant and whether or not this part of Mr. Woodason’s description is probative. [ 15 ] The issue isn’t whether or not Mr. Woodason recognizes the defendant from the prior trial date, but whether or not the defendant, who was on an earlier date likely seen by the witness in the courthouse, was the driver of the Suberu. Mr. Woodason was not asked why he believed he recognized the defendant on the prior trial date as the other involved driver. [ 16 ] I cannot use the hearsay information from Constable Leal that on the night in question Mr.

Woodason told him where to find the other driver, because that statement is inadmissible as proof of its contents. The fact that it was said may be a small piece of circumstantial evidence, but without more context of what was asked and any detail about the utterance, the mere fact of that statement adds little to the circumstantial evidence already in place. [ 17 ] Constable Leal was asked in cross-examination whether or not he could say that he was certain that the key in the defendant’s possession was associated to the Suberu vehicle that caused the collision. The officer was not certain.

It was a belief he had at the time and for which he has no current memory or explanation. This was a piece of evidence that may have assisted in proving that the defendant was the driver of the Suberu. [ 18 ] I am left with the defendant’s presence at a multi-vehicle collision with approxi​mately 9 other civilians by the time the police investigated the matter.

There is reason to believe that the defendant is the involved driver because he is identified in court, and recognized from his appearance at the courthouse on a prior occasion, as the male sitting in the driver’s seat of the Suberu moments after the collision.

Unfortunately, even if I accept all of this as accurate, I am still left in some doubt about whether or not the defendant was the driver of the Suberu at the relevant time. [ 19 ] The defendant’s presence in the driver’s seat at some indeterminate time after the collision, even his possession of a key to that vehicle, if I were to accept the belief of the constable with nothing to substantiate that belief, does not necessarily prove that he was the driver in the absence of an incriminating statement, or an observation of the driver at or just after the collision, or some other circumstantial evidence.

CONCLUSION [ 20 ] I am not satisfied that the defendant was the driver of the Suberu he owned, which was involved in the collision, to the requisite degree of certainty. I have considered all of the evidence and it falls short of convincing me of his involvement as an involved driver beyond a reasonable doubt. [ 21 ] Given my decision on the first issue, I do not need to address the second issue. [ 22 ] Accordingly, Patrick Yeboah is acquitted of this charge.

Released: 29 November 2017 Justice G. Paul Renwick