R. v. Ryan, 2011 NLCA 53

Date: 20110729 Docket: 10/52 Citation: R. v. Ryan , 2011 NLCA 53 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : WILLIAM J. RYAN APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Rowe, Harrington and Hoegg, JJ.A. Court Appealed From: Provincial Court of Newfoundland and Labrador Judicial Centre of St. John’s Appeal Heard: May 4, 2011 Judgment Rendered: July 29, 2011 Reasons for Judgment by Hoegg, J.A. Concurred in by Rowe and Harrington, JJ.A. Counsel for the Appellant: Averill Baker Counsel for the Respondent: Elaine Reid

Hoegg, J.A.: INTRODUCTION [ 1 ] William Ryan appeals his convictions for dangerous driving, flight, and breaches of an undertaking, a recognizance and two probation orders. The principal issue on appeal, and the issue on which all convictions hinge, is whether Mr. Ryan was driving the car involved in the driving and flight offences. [ 2 ] At trial, a police officer identified Mr. Ryan as the driver of the car. A defence witness provided alibi evidence that he, not Mr. Ryan, had been driving the car.

There was no challenge to the Crown evidence respecting the nature of the driving supporting the dangerous driving and flight charges. Mr. Ryan did not testify. At the close of the defence case, the Crown applied to call rebuttal evidence respecting aspects of the alibi testimony. The evidence was admitted. The trial judge found Mr. Ryan guilty of the above- noted offences and subsequently sentenced him to 20.5 months incarceration. [ 3 ] Mr. Ryan’s appeal focuses on two grounds.

He argues that his conviction is unreasonable given that the eyewitness evidence identifying him as the driver of the fleeing car is weak, and that the trial judge did not sufficiently account for its inherent frailties or adequately consider the alibi evidence in deciding to convict. Mr. Ryan also argues that the trial judge erred in law in admitting the rebuttal evidence, because it related to collateral matters and not to the main issues. Mr. Ryan requests this Court to quash his convictions and enter acquittals on all charges. THE TRIAL [ 4 ] At trial, Constable Brian Marshall identified Mr.

Ryan as the driver of the subject car. Constable Marshall testified that he recognized Mr. Ryan behind the wheel when he first saw the car. His evidence on direct examination, found at pages 89-91 of the transcript, is as follows: A. … I was passing through the intersection heading east, I observed a vehicle which was of interest to me was a silver colored Hyundai. As I passed by the vehicle, I recognized the operator as Mr. Ryan, Mr. William Ryan. … Q. Now how long have you known Mr. Ryan? A. I’d say I first had dealings with Mr. Ryan seven or eight years ago, perhaps, I’ve known the name, I’ve known the face.

Personally, as recent as I believe it was probably last summer, not this summer but the summer past, I issued a number of tickets to him in Mount Pearl, spoke to him at length in there as well, probably for about a half hour, actually the vehicle was seized from Mr. Ryan. Q. That was there last year, is that what you’re saying? A. Yes it was, in Mount Pearl in relation to a traffic stop where there was no documentation for the vehicle. Mr. Ryan never had a valid license when the vehicle was seized. Q. So how long were you in Mr. Ryan’s company on that occasion? A. I’d say at least a half an hour.

By the time I did the traffic stop, speak to him, issue and prepare

summary offense tickets as well as wait for a tow truck, he was there, I believe, right up until the end because he took all his personal belongings out of the vehicle. … Constable Marshall provided additional identification details at pages 99-100: A. … He was three to four cars back from the light. I was driving east bound, he was west bound.

We passed directly beside each other, single lane both ways, give or take the space between the two cars, maybe three to four feet, and like I said, I had observed the vehicle probably from eight to ten feet away as a vehicle of interest, and then when I was actually able to get closer and see the occupants, I verified that it was Mr. Ryan.

We probably passed – less in the distance probably from me to you, three to four feet max and that would have probably been at a speed of about 15/20 kilometers an hour, because he was just starting to move off a red light in traffic, and I had just come from – I think I had turned right off of Cashin and headed east, so I would have just been going around the turn and started to accelerate a little bit again. Constable Marshall was asked if there were pedestrians around.

His answer was that he was unable to say so with any certainty. (page 101) [ 5 ] On cross-examination, Constable Marshall’s identification evidence at page 108 is as follows: Q. I’m going to suggest to you, officer, that you could only have viewed the occupants of that vehicle for a split second as you were moving through that intersection. Would you agree with that? A. I don’t know about a split second. I, you know, I’m confident in what I saw. I saw Mr. Ryan driving. Q. Okay, you knew him from more then a year previous? You had dealings with him, right? A. Yes. Q.

Would you disagree with me if I said he was about 20 or 30 pounds lighter at that time?

A. I wouldn’t be able to say. Q. So you wouldn’t disagree? A. I guess not, no. … And at pages 111 and 112: … Q. To your knowledge, did anybody else witness the driver of that vehicle? A. Not to my knowledge, no. Q. Do you recall either the driver or the passenger wearing a hat at the time? A. No. Q. Can you say with certainty that neither was wearing a hat? A. No. Q. So it’s possible that the driver was wearing a hat? A. I guess possible, yes. If I can’t say with certainty it would have to be possible. Q.

Okay, what exactly were the distinguishing features that allowed you to identify the driver as William John Ryan? A. Other than the fact that I’m familiar with Mr. Ryan, I know what Mr. Ryan looks like, and I know what I was looking for at the time, that’s what makes him familiar to me. It’s my job to know people, to know faces, to know vehicles, and on that date, I was 100% certain that Mr. Ryan was the operator of that vehicle from previous dealings with him. And at page 115: Q.

To your knowledge, is there any other evidence in relation to who the operator was, I’ve heard yours, but in relation to fingerprints on the wheel, anything of that nature, any forensic evidence identifying the driver of the vehicle? A. Not to my knowledge, no. Q. Okay. Either of the individuals in the vehicle wearing sunglasses? A. I don’t believe so but I can’t say with certainty, not 100%, Your Honour, no. … [ 6 ] Constable Lori Normore, a forensic identification officer, also gave evidence. She testified that she found partial fingerprints inside the car and on its contents, but did not have them analyzed.

Constable Normore explained that even if it could be determined that a partial print belonged to Mr. Ryan, the meaning a court could take from it being in the car would be negligible because Mr. Ryan had plenty of opportunity for access to his girlfriend’s vehicle. [ 7 ] Constable Fred Roche also testified. Mr. Ryan submits the following passage from Constable Roche’s evidence, found at pages 190 and 191, is relevant: Q. And what familiarity did Officer Marshall have with Mr. Ryan? A.

Well I guess Mr. – Constable Marshall would have to speak directly to it, Your Honour but he’s advised me that he was familiar with him. Q. Okay but you didn’t explore the basis for that? A. No, Your Honour, I felt no need based on what Constable Marshall had advised me. Q. Would you be any less certain if he had advised you that the driver may have been wearing a hat or sunglasses that he didn’t know. A.

Your Honour, again if he said -- based on what Constable Marshall told me, he was one hundred percent certain who the driver was and based on that is the reason why we’re here in Court today on his identification of the driver of the vehicle. Q. Okay so would it change your approach if he indicated that he couldn’t tell if the person was wearing sunglasses or a hat or couldn’t identify any distinguishing characteristics? A. Your Honour, I would imagine that it would change Constable Marshall’s approach. [ 8 ] Mr. Jason Marsh gave alibi evidence on behalf of Mr. Ryan. Mr. Marsh said he was driving the car.

On cross-examination, Mr. Marsh said that the car contained cigarettes stolen from a break and entry for which he had been convicted and was serving a jail

term at the time he testified. He said that a man named Brad Laing showed up with the cigarettes that morning, and that he and Mr. Laing had driven to Livingstone Street to sell them just prior to the police chase. Mr. Marsh’s evidence on his activities that morning, found at pages 210 to 212, reads as follows: Q. … What were you going down to Livingstone Street for? A. To sell the cigarettes. Q. And who-- did you sell any cigarettes? A. No, I never. Q. Who did you talk to? A. Just people I know down there. Q. What are their names, sir? A. I don’t really wanna, you know? We’re not here for them. Q.

What are their names? A. I’m not here for them. Q. What are their names, sir? A. Ahhh Q. The people that you talked to that morning to sell cigarettes to? A. I never got to talk to them, that’s why I was on my way back up to my house with the cigarettes in the trunk and I got into a high speed chase— Q. Okay and now that— A. --cause I was going up to 45 New Pennywell— Q. Whose doors did you knock on or who were you down there looking for? A. It’s irrelevant. THE COURT: You have to answer the questions Mr. Marsh. A. Why do I need to answer that question who I was going down to sell the cigarettes to?

THE COURT: Well because it’s relevant to what your activities were that morning. A. Yes, but where my high speed chase started is - - THE COURT: You have to - - A. --on the way home to my house and I’m sure the officers there can verify it that I wasn’t heading down towards New Pennywell. THE COURT: Mr. Marsh the rule is that you answer the questions that are put to you. So the question was put to you— A. Ray Alexander yes. Q. Ray Alexander? A. Yes. … At page 214, Mr. Marsh said that he had successfully evaded the police and parked the car. The cross-examination continued as follows: Q. Okay so where was Mr.

Laing at this time? A. I don’t know he was gone and I left. I left him. He went one way and I went the other. Q. So where was, so where was Mr. Laing when you were, when all this was going on? A. In the passenger seat. Q. So, Mr. Laing was with you in the car the whole time? A. Yes. Right up to we got to the courts and I was gone then. He went one way, I went the other way.

Q. Where can we find Mr. Laing now? A. I’m not sure. Later in his testimony, Mr. Marsh said he returned the car keys to Lori O’Brien, Mr. Ryan’s girlfriend. [ 9 ] At the conclusion of cross-examination, Crown counsel and Mr. Marsh had the following exchange at page 224: Q. I suggest to you sir that in fact you were the passenger in the vehicle being driven by Mr. Ryan and he’s [asked] you to come, or you volunteered to come here today and take the rap for this? A. That’s not the case, that’s not true.

Should have finger printed the car and you could have seen that I was the last one with my hands all over it, the steering wheel and everything, right. That’s it, and I don’t have much more to say to you, there’s not much more to say. [ 10 ] After Mr. Marsh completed his testimony, defence counsel advised the court that he would be calling no further evidence on behalf of Mr. Ryan, and requested a short recess. When the trial reconvened, Crown counsel applied to call rebuttal evidence respecting aspects of Mr. Marsh’s alibi testimony.

The following exchange, beginning at page 227 of the transcript, took place among counsel and the trial judge: THE COURT: Okay, so are counsel ready to proceed? MS. WAKEHAM: Yes, Your Honour, at this time now that the defence has concluded their case the Crown is making application actually to call some rebuttal evidence in respect of this matter. I have disclosed the nature of the rebuttal evidence to the defence.

It is in relation to some inquiries that the police have just made through police and publicly available sources such as phone book and police records in relation to two persons named in the testimony of Jason Marsh, that being the individuals known as Brad Laing and Ray Alexander of Livingstone Street. THE COURT: And in relation to that you wanted to call evidence— MS. WAKEHAM: The evidence of Constable Fred Roche, Your Honour. THE COURT: Okay and— MS. WAKEHAM: He’s here.

THE COURT: To meet the test of rebuttal, of course, the, well I guess the first basis would be met in the sense that it’s obviously evidence of that nature was not anticipated in the sense that I don’t know if Mr. Mahoney, did you disclose this evidence to counsel for the Crown before it was called? MR. MAHONEY: The evidence of Mr. Marsh I disclosed the general nature of that evidence. My own conversations with Mr. Marsh were extremely brief and so I didn’t pass these names along. THE COURT: Okay, no that’s why I was asking— MR. MAHONEY: Yeah.

THE COURT: - because of course one of the issues would be whether or not it could have been anticipated and if you had passed the names along earlier then clearly it would have been anticipated but if it’s just disclosed the first time here then obviously it would meet the initial threshold. … THE COURT: Okay, Did you need some time to discuss the matter with your client, Mr. Mahoney? MR. MAHONEY: No, I think we’re on the same page. MR. RYAN: Yeah. MR. MAHONEY: I think we’ll just proceed. Thank you.

THE COURT: Alright, well on that basis then I guess I’ll allow the rebuttal so you can - - Did you want to make submissions on that? MR. MAHONEY: Just based on what I’ve been told about Officer Roche’s anticipated evidence here now and this is the gist of what Mr. Ryan, I think was just saying to me. It really the issue goes to the probative value of this information in relation to whether or not there’s a house or phone number registered to Ray Alexander on Livingstone Street.

So our issues go to the weight or the relevance of it more so and I think and similarly with the inquisition about Brad Laing - - THE COURT: Okay, well perhaps we could do it, perhaps if you wanted to we could do it this way, as this is a judge alone trial, probably the appropriate steps to take then would be we’ll have the evidence led in a voir dire— MR. MAHONEY: Yes. THE COURT: --on terms of deciding its admissibility then save the admissibility arguments for later when you’ve had an opportunity to hear it and an opportunity to respond. …

… MS. WAKEHAM: And the Crown moves for voir dire then obviously and calls Constable Roche, Your Honour. [ 11 ] Constable Roche’s entire rebuttal evidence follows beginning at page 230: CONSTABLE FRED ROCHE (Sworn) Examination-in-Chief by Ms. Wakeham A. My name is Constable Fred Roche. I’m a member of the Royal Newfoundland Constabulary and I’ve been a member of the Constabulary since November of 1990. I am currently assigned to the Criminal Investigation Division and the

section itself is the General Investigation Unit. Q. And Constable Roche were you present during the testimony of one Jason Marsh? A. Yes, Your Honour, I was. Q. And did you obviously [hear] his evidence or most of his evidence? A. He was testifying, Your Honour, when I walked in, I didn’t get that first part of it but I did sit through the evidence where he mentioned some names. Q. And at the end of his evidence did you have occasion to make some inquiries about two individuals, one person by the name of Brad Laing and the other person by the name of Ray Alexander of Livingstone Street? A.

Yes, Your Honour, I did. Q. And what inquiries did you make in respect to a person named Brad Laing? A. You Honour I checked our local ICAN, which is our local police computer system which captures any names of any individuals that would be involved with the police for any reason whether it’s being involved in an accident or a witness or a person charged or whatever the case may be and there was not any, there were not any – zero hits for a Brad Laing. Q. And is this ICAN system record kept in the normal course of the business records of the Royal Newfoundland Constabulary? A. Yes, Your Honour, it is. Q.

And you checked it how? A. … it was checked by our communications technician up at the police headquarters. I called up there over the phone and made those inquiries over the phone to— Q. And would this be a normal way of making inquiries on the ICAN system? A. Yes, Your Honour. Q. And you’ve indicated that it just captures any name that the police come across, is that correct? A. Yes, any names where you’d be involved in a police file number if you spoke to somebody as a witness or a suspect or an accused or a victim or a full (unintelligible) of stuff that would be captured in an ICAN system Q.

And did you obtain any hits for a Brad Laing? A. No, Your Honour. Q. And is the ICAN system spelling sensitive? A. You Honour, on that I’m not sure. I do believe that it is. Q. What spellings did you give the ICAN operator? A. L-A-N-G. Q. Any other spellings? A. No, Your Honour, not the operator for the ICAN check. Q. Now did you make any other checks? A. Yes, Your Honour, I checked with the phone directory for Laing, Brad Laing and there was a B. Laing came up and I called that number but it said you’ve reached the Laings, Brian, somebody else and somebody else, so it wasn’t a Brad Laing at that residence. Q.

And did you check anything else for Brad Laing? A. CPIC.

Q. And did you obtain any hits for a Brad Laing on CPIC? A. Yes, Your Honour. Two hits on Brad Laing for CPIC.

One was a Brad Laing who was in a wanted status in Alberta for possession of marijuana where the offence date was February of 2009 and I also queried the main, the surname Laing also came up L-A-I-N-G and a hit came back for a 21 year old Brad Douglas Laing who was on the system as charged with shoplifting in Waterloo, Ontario and I contacted Waterloo Police and hope to try to contact that person however, at that time restraints would, not enough time to confirm whether or not he’s ever been in Newfoundland or anything. He hasn’t been interviewed by police. There’s no phone number for him on that system. Q.

I take it the date of birth on that is— A. He’s 21 years old on that one. Q. Now did you also make any inquiries as to associates of Jason Marsh? A. Yes, Your Honour, the same CPIC operator up at the police station did that and that name did not come back as an associate, Brad Laing. Q. Now did you check out a Ray Alexander of Livingstone Street? A.

Yes, Your Honour, the same ICAN computer check was done for Raymond Alexander and there was numerous hits for Raymond Alexander on our system as a person who’s been involved with the law and but all his hits were for in the CBS area and there was no hits for a Raymond Alexander on Livingstone Street and I subsequently checked the telephone directory the most recent phone book and there’s no families of Alexander listed on Livingstone Street either. Q. Now the person Raymond Alexander, do you know what name he normally goes by? A.

I do know a Raymond Alexander, Your Honour, who goes by RJ, as he’s known, as his street name is RJ Alexander. That’s the same individual I referred to as the person who … resides in CBS. Q. So his name is Raymond— A. He’s a known criminal to police. Q. But he’s called RJ is that— A. That’s correct, Your Honour. Q. Do you know of him being called Ray? A. No, Your Honour. MS. WAKEHAM: These are my questions of Constable Roche, Your Honour. THE COURT: Do you wish to ask some questions Mr. Mahoney? Cross-Examination by Mr. Mahoney Q. I do. Thank you, Your Honour. Ray Alexander, he is known to the police.

RJ, as you refer? A. Yes, Your Honour. Q. But his full name is Ray Alexander, is that right? A. Yes, Your Honour, Raymond Alexander. Q. Okay, you said his street name is RJ, is he known to the police in St. John’s? A. Yes, Your Honour, through the Royal Newfoundland Constabulary, yes. Q. Okay. Based on your inquiries here are you saying he doesn’t or hasn’t lived in St. John’s or on Livingstone Street? A.

All the local addresses which the terminal operator gave me over the phone, Your Honour, were all for CBS area, Lockland Heights in CBS and they said there was no addresses for a Raymond Alexander on Livingstone Street. Q. I’m sorry what system did you say for that? A. ICAN. Q. Okay, so does that just go by what’s in the phone book or what exists in the police databases? A. Police databases. Q. So clearly it would be possible that Ray Alexander lives with girlfriend, friend, cousin, any relative who might live on Livingstone Street?

A. Well, Your Honour, I can only say with the checks I did. Those are the checks I did. Q. Okay. With respect to Mr. Laing, there is, you did get a hit for a Brad Laing from Ontario? A. Yes, Your Honour. Q. Who has had trouble with the police. A. Who’s charged with shoplifting and is 21 years old. Q. Okay. And so the other inquiries you made simply confirm that the police here haven’t had dealings with a Brad Laing? A. That’s correct, Your Honour, and no phone listing for the individual. Q. And no - - A. No telephone listing for a Brad Laing. Q. Right. Thank you. Those are my questions.

THE COURT: Thank you very much officer, you can step down. [ 12 ] After Constable Roche’s evidence was given, Crown counsel argued that the rebuttal evidence ought to be admitted for its probative value in relation to the credibility of Mr. Marsh’s alibi evidence, in that it called into question whether Mr.

Marsh’s front-seat passenger, Brad Laing, and their prospective cigarettes buyer, Ray Alexander, existed or lived in the area. [ 13 ] In response to the Crown’s submission, the trial judge made the following comment: THE COURT: One aspect of it I guess is that when you have the police presenting evidence, and I realize we did this in short form, but when the police officer presents evidence of searching a particular database like ICAN of course that was not objected to in the circumstances but we don’t have any of the usual indicia that you would have about when a database is presented like the nature of the database, its reliability, how [the data is] gathered, then typically under The Canada Evidence Act you’d have to disclose that prior to reading it, so I just want to, you know, so you have to be alive to these difficulties.

I know that this was something that was done in the interest of time, I suppose. [ 14 ] Crown counsel conceded the trial judge’s point. The exchange between the court and both counsel continued: THE COURT: But, there are those issues with it. And don’t you think it’s fair to say that really what the police evidence is in rebuttal is that they couldn’t find an address for anyone named Livingstone on the, of Alexander on Livingstone Street and that they really have no record of a Brad Laing. MS.

WAKEHAM: Yeah, and that’s all there really is. … [ 15 ] Defense counsel and the trial judge then discussed the evidence after which defence counsel did not object to its admission: MR. MAHONEY: I don’t know what the exact test is on rebuttal other than I realize that the names were not disclosed prior, previously to the Crown but – THE COURT: Well that was only in relation to the threshold you have to meet with rebuttal of course is before it’s admissible it has to be something that couldn’t have been anticipated by the Crown prosecutor as the first part then the second

part it has to be relevant and probative to some issue that arose in the defence that didn’t form part of the Crown’s case proper as such and as a result of that the I suppose that’s the way of looking at I think that it’s probably more an issue of as you pointed out earlier, it’s probably more an issue of weight than it is to admissibility.

It’s, I don’t think there’s anything to prevent that evidence from being led although there are the issues of notice and the frailties that haven’t been addressed in it in the sense of the nature of the databases and so forth which you haven’t taken an objection to but I take it that that was in the interest of simply having the matter dealt with. MR. MAHONEY: True. And as long as there’s an acknowledgement, as there has been, that this was a cursory check, without those indicia of I would say the reliability of the system, nature of the system. I mean, we want to proceed to closing summations.

I will direct my arguments to the weight this evidence which we think is— THE COURT: Okay. MR. MAHONEY: - minimal, at best. THE COURT: Alright. Alright well the evidence then on that basis then I’ll admit the rebuttal evidence and you’ll bore it as an issue of weight. (pages 238-240 of the transcript) [ 16 ] In closing submissions, Crown counsel made no reference to the rebuttal evidence, and defence counsel argued it was of minimal weight.

The matter was set over to the following week for decision. [ 17 ] The relevant parts of the trial judge’s oral decision, found at pages 260 to 266 of the transcript, read as follows:

In relation to the events of the 28th of October, the accused is charged with dangerous driving and also evading police officer along withpossession of stolen goods and breach of undertaking. Two breaches of probation and a fourth count--or seventh count in terms ofbreach of undertaking. The evidence was that Mr. Ryan was seen by Constable Marshall at about 8:58 a.m. at the corner of Pennywelland Cashin Avenue. Constable Marshall stated that he was at the time aware of the vehicle that Mr.

Ryan was driving, in that it had beenidentified to him and that he had information that it was connected to some criminal offences. Mr. Ryan was a person known toConstable Marshall, as he had dealt with him personally. Most recently in a traffic stop the previous year when he had ordered thevehicle Mr. Ryan was operating impounded and towed. He testified that at that time, he interacted with Mr. Ryan rather extensively overa period of approximately half an hour.

Constable Marshall said that the vehicle passed by quite slowly, from his vantage point as it wasin a line of traffic and the officer indicated that he had a clear view of the driver, Mr. Ryan, who he identified. He stated that he turnedhis vehicle around to pursue the vehicle which accelerated away from the scene passing cars on the left. Constable Marshall indicatedthe vehicle proceeded down Stamp’s Lane in the direction of Empire Avenue. He stated it traveled at high rates of speed and wentthrough one red light and two stop signs.

He stopped pursing the vehicle as there was traffic and a number of pedestrians in the area. Thevehicle was located a short time later abandoned and in the trunk of the vehicle was located a large number of cigarettes in two garbagebags. The cigarettes were not specifically identified other than the [manner] in which [they] were in the trunk in the garbage bags as therewere no markings upon them. Jason Marsh was called as a Defence witness. Mr. Marsh testified that it was he, not Mr. Ryan, who wasoperating the vehicle. He testified that that morning a Mr.

Brad Laing had come to his girlfriend’s home at 45 Pennywell Road shortlyafter Mr. Ryan had arrived. Mr. Marsh testified that Mr. Laing had asked him to “shake”, was the term he used, the cigarettes. He statedthat Mr. Ryan knew nothing of this. Mr. Marsh said that Mr. Ryan was half asleep talking to his girlfriend downstairs. Mr. Marshindicated that the reason he had come forward at this point to testify at the trial was because he didn’t think it was right that someoneelse was charged with this offence.

He said he didn’t come forward earlier—this is, of course, not accurate as the information was laidalmost contemporaneous with the offence. In assessing credibility, one has to look at all the witnesses in evidence. In this case I did notfind Mr. Marsh’s story believable. The evidence he provided makes little sense. Mr. Marsh is currently serving a sentence in thepenitentiary and has a lengthy criminal record which includes current convictions for crimes of dishonesty. His description as to whatoccurred is highly unlikely as he has testified that Mr. Ryan arrived at his home in his car shortly before Mr.

Laing arrived with thestolen cigarettes. Despite having just arrived, Mr. Ryan was described as already being half asleep downstairs when Mr. Laing arrived.Mr. Marsh testified that he apparently knew that the key to the car was under the mat. He did not state how he knew this and stated thathe went out trying to apparently sell the stolen cigarettes immediately. This is a very unlikely chain of events which I don’t accept anddon’t believe. Apart from the evidence of the identification by Constable Marshall, the evidence connecting Mr.

Ryan to the car was theevidence of Lawrence O’Brien as the owner of the vehicle. He stated that the vehicle was on that date in the possession of his daughter,Lori O’Brien. He said that Lori O’Brien had use of the vehicle. He said that Mr. William Ryan had not been permitted to operate thevehicle. Lori O’Brien testified that Mr. William Ryan did, in fact, drive the car. She said that she had it parked at their home on KilkennyStreet and that’s where it was, or at least that is where it was located on the day of October the 28th. Also located inside the car wassome property belonging to Mr. Ryan.

A letter and a health card along with other items. I’m satisfied as a result of all the evidence, thatMr. Ryan was, in fact, operating the vehicle in question on that day. In relation to the other offence, the possession of the stolen property;the property of the Atlantic Gas Bar, Commonwealth Avenue, there was no direct elements—there was no direct evidence connecting theparticular cigarettes directly to that establishment. The most that could be said is that there was a large quantity of cigarettes and that theywere of a similar brand to that covered by the store.

In any event looking at the evidence; the evidence accepting that Mr. Ryan was, infact, the operator of the vehicle establishes that the cigarettes were located in the trunk of the vehicle. Later in his oral judgment, the trial judge concluded: Consequently, I’m satisfied that the Crown has established beyond a reasonable doubt that Mr. Ryan is guilty of the offence of dangerousdriving and, in fact, that he attempted to evade a police officer under

Section 249.1 of the Criminal Code. APPELLATE JURISDICTION AND STANDARD OF REVIEW [18] An appellate court’s powers to allow an appeal from conviction are set out in section 686(1)(

a) of the Criminal Code: 686.

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; [19] In R. v.

Mooney, 2005 NLCA 49, Roberts J.A. of this Court stated the test to be applied on consideration of section 686(1)(a)(i)is whether the verdict is one which could reasonably be found by the trier of fact based on the evidence presented. [20] The standard of appellate review on questions of law is correctness and on findings of fact is palpable and overriding error. (Housen v. Nicholaison, 2002 SCC 33). In R. v.

Clarke, 2005 SCC 2 , [2005] 1 S.C.R. 6 (SCC), Fish J., succinctly expressedthe latter standard in the context of a criminal case at paragraph 9: Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they areclearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And itmust be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm: …. DISCUSSION AND ANALYSIS

Is Mr. Ryan’s conviction unreasonable? [21] Mr. Ryan alleges that the trial judge made a factual error in stating that there were pedestrians around during the car chase. Mr. Ryan is correct; there is no evidence that there were pedestrians around during the car chase. Constable Marshall was askedwhether there were, and his answer was that he was uncertain. Nevertheless, Mr. Ryan has not shown that this minor mischaracterizationof the evidence had any bearing on the trial judge’s decision. In fact, the presence of pedestrians relates to the nature of the dangerousdriving, which Mr. Ryan did not challenge.

The error is one that did not affect the verdict, and therefore is not palpable and overriding. [22] The thrust of Mr. Ryan’s legal argument is that Constable Marshall’s evidence identifying him as the driver is so weak thatcombined with the alibi evidence, his conviction is unreasonable. It goes without saying that courts must always take great care whenrelying on eyewitness testimony to identify an accused.

This is especially so when the identification is made by a stranger, theobservation is fleeting, and when there is no corroborative or other evidence supporting positive identification. [23] The circumstances in which any eyewitness identification is made are always important. In R. v.

Nikolovski, (SCC), [1996] 3 S.C.R. 1197, a case involving the use of videotaped evidence, Cory J. stated the concern and listed factors to beconsidered in evaluating eyewitness evidence at paragraph 19: … The courts have long recognized the frailties of identification evidence given by independent, honest and well-meaningeyewitnesses. This recognized frailty served to emphasize the essential need to cross-examine eyewitnesses. So many factors come intoplay with the human identification witness.

As a minimum it must be determined whether the witness was physically in a position to seethe accused and, if so, whether that witness had sound vision, good hearing, intelligence and the ability to communicate what was seenand heard. Did the witness have the ability to understand and recount what had been perceived? Did the witness have a sound memory? What was the effect of fear or excitement on the ability of the witness to perceive clearly and to later recount the events accurately? Didthe witness have a bias or at least a biased perception of the event or the parties involved?

This foreshortened list of the frailties ofeyewitness identification may serve as a basis for considering the comparative strengths of videotape evidence. [24] The Supreme Court of Canada reiterated caution concerning the frailties of identification evidence in R. v. Hibbert, 2002 SCC39 , [2002] 2 S.C.R. 445. This Court voiced the same concerns in its comprehensive review of the law respecting identificationevidence in R. v. Russell, 2010 NLCA 23. [25] In this case, Constable Marshall’s identification of Mr. Ryan was based on recognition.

Recognition is defined in the OxfordDictionary as “identification of a thing or person from previous encounters or knowledge”. It is an instinctual or human reaction to acircumstance. The case law recognizes a distinction between identifications based on recognition and those made by a stranger to theperson being identified. (See R. v. Aburto, 2008 BCCA 78; R. v. Bardales (1995), (BC CA), 101 C.C.C. (3d) 289(BCCA), aff’d, (SCC), [1996] 2 S.C.R. 461; and R. v. Pitt (1996), (NB CA), 109 C.C.C. (3d) 488 at500 (NBCA).) [26] Another British Columbia case, R. v. Bob, 2008 BCCA 485, illustrates the point.

In Bob, an accused bicycle thief wasconvicted on the strength of a police officer recognizing him from several previous dealings. Mr. Bob appealed, arguing the trial judgeerred in finding that the police officer’s identification of him was reliable given the particular circumstances and the well known frailtiesof eyewitness identifications. In dismissing the appeal, Huddart J.A. commented on the difference between recognition eyewitnessidentifications and stranger eyewitness identifications at paragraph 13: The difficulty he [Mr.

Bob] faces, however, is that this was a case of recognition, rather than identification. There is a significantdifference between cases in which a witness is asked to identify a stranger never seen by him before the offence, and cases in which awitness recognizes a person previously known to her.

While caution must still be taken to ensure that the evidence is sufficient to proveidentity, recognition evidence is generally considered to be more reliable and to carry more weight than identification evidence: … [27] In Aburto, the same court described the distinction at paragraphs 21 and 23: In this case, however, the witness was not being asked to identify a person who was a complete stranger to her prior to thecommission of the offence …. …. The issue is therefore not really one of identification. The issue is whether the circumstances at the time of the offence were suchthat Ms.

Neville could reliably recognize the appellant. The distinction between cases of eyewitness identification of a person seen forthe first time and cases where the witness recognizes someone previously known to them is well-discussed in the case authorities: … [28] All eyewitness identification evidence is subject to reliability assessment, although reliability may be easier to achieve inrecognition cases.

A court must always consider the circumstances surrounding a witness’ identification of an accused, which inrecognition cases would indicate the nature and degree of past interaction between the witness and the accused. In this regard, thecomment of Rowe J.A. at paragraph 71 of Russell is apt: In many cases, such [eyewitness] identification is entirely reliable, in others, it is not. Like much else, it is specific to the facts of eachcase. [29] In this case Constable Marshall explained the basis for his recognition of Mr. Ryan, saying that he had known Mr.

Ryan forseveral years, and that he had had extensive personal dealings with him the previous year. The officer also described the time andopportunity he had to see Mr. Ryan driving, saying that he had a clear view of Mr. Ryan driving the car as it passed by him slowly goingin the opposite direction. He said he was 100% sure Mr. Ryan was the driver. His evidence was firm, and he did not equivocate oncross-examination. There is no suggestion that he was not a credible witness. [30] Mr. Ryan emphasizes that when cross-examined, Constable Marshall was unable to say with certainty whether the driver was

wearing sunglasses or a hat or whether Mr. Ryan had gained 20 to 30 pounds since their encounter the previous year. Mr. Ryan suggeststhat the officer’s failure to be able to answer these questions makes his evidence weak and unreliable. The fact that Constable Marshallwas unable to answer these generic questions with certainty does not affect the reliability of his evidence. There was no evidence that thedriver of the car wore, or did not wear, a hat or sunglasses. Neither was there any evidence of the size of the driver, or of Mr.

Ryan’sweight or size at the time of trial or the previous year. [31] In addition to his eyewitness evidence, Constable Marshall testified that his attention was drawn to the car Mr. Ryan wasdriving because it was thought to be involved in criminal activity, which was confirmed when two garbage bags of stolen cigarettes werefound in it. Both Lori and Lawrence O’Brien gave evidence connecting Mr. Ryan to the car on the relevant date. As well, Mr. Ryan didnot support Mr. Marsh’s alibi evidence with his own evidence. Although Mr.

Ryan’s failure to testify is not a factor for the trial judge’sconsideration, it is relevant in the appellate context. (See R. v. Corbett, (SCC), [1975] 2 S.C.R. 275 at page 280 and R.v. Russell, at paragraph 45). [32] In the result, there is no basis upon which to conclude that Constable Marshall’s eyewitness identification evidence isunreliable. The trial judge’s reasons explain why he accepted Constable Marshall’s identification evidence and why he rejected Mr.Marsh’s alibi evidence.

It is clear from his decision, as well as from his remarks during the trial, that he was alive to the well-knownfrailties of eyewitness identification evidence and that he gave reasoned consideration to the alibi evidence. The identity of Mr. Ryan asthe driver is well supported by the evidentiary record. Accordingly, Mr. Ryan has not shown that the trial judge’s convictions of himcould not reasonably be found on the evidence presented. His appeal on this ground fails.

Was the Rebuttal Evidence Properly Admitted? [33] A trial judge has a discretion to admit rebuttal evidence provided that the Crown demonstrates that it did not know of theevidence or could not have anticipated the need to call it during its case in chief, and provided that it relates to an issue which arose in thedefence. (R. v. Krause, (SCC), [1986] 2 S.C.R. 466; R. v. Aalders, (SCC), [1993] 2 S.C.R. 482; and R.v. Lawes, (SCC), [1997] 3 S.C.R. 694). These threshold criteria address trial fairness, in that an accused is entitled toknow the case against him so as to fully answer it and defend himself.

This fundamental right would be meaningless if the Crown werepermitted to split its case so as to have the advantage of the last word. On the other hand, if an accused adduces evidence of which theCrown was unaware or for which the Crown did not reasonably foresee the need, the rules of fair play governing the search for truth attrial dictate that the Crown ought to have the opportunity to reply to it. Both the accused and the Crown must have the opportunity tohear and respond to the submissions of the other. (R. v. Krause, [1986] 2 S.C.R 466, at paragraph 16).

If the Crown meets the thresholdcriteria, then the court must address other admissibility considerations. It is at this stage that the collateral evidence rule could operate toprevent proposed rebuttal evidence from being admitted. [34] An early expression of the rule against rebuttal on collateral matters is found in A.G. v. Hitchcock (1847), 154 E.R. 38 (Ex.Ch.). Hitchcock says that evidence which connects to an issue before the court is not collateral. The case also suggests that evidencewhich depends for its relevance entirely on the fact that it contradicts the testimony of a witness, is collateral.

In practice, the ruleagainst collateral evidence stipulates that answers given by a witness to questions put to him or her on cross-examination concerningcollateral matters are treated as final and cannot be contradicted by extrinsic evidence (A. Byrant, S. Lederman, and M. Fuerst, The Lawof Evidence in Canada, 3d ed. (Markham: LexisNexis, 2009)). [35] The reason for the collateral evidence rule is to avoid unduly prolonging litigation by proving and disproving facts which donot really matter to the substance of the litigation.

In other words, the collateral evidence rule is a rule of trial efficiency. [36] The interplay between the rebuttal evidence rule and the collateral evidence rule was addressed by the Supreme Court ofCanada in Krause.

In Krause, McIntyre J. referenced collateral evidence in setting out the general rule relating to admissibility ofrebuttal evidence at page 474: The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raisedsome new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could notreasonably have anticipated.

But rebuttal will not be permitted regarding matters which merely confirm or reinforce earlier evidenceadduced in the Crown's case which could have been brought before the defence was made.

It will be permitted only when it is necessaryto insure that at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of the other. …Where something new emerges in cross-examination, which is new in the sense that the Crown had no chance to deal with it in itscase-in-chief (i.e., there was no reason for the Crown to anticipate that the matter would arise), and where the matter is concerned withthe merits of the case (i.e. it concerns an issue essential for the determination of the case) then the Crown may be allowed to callevidence in rebuttal.

Where, however, the new matter is collateral, that is, not determinative of an issue arising in the pleadings orindictment or not relevant to matters which must be proved for the determination of the case, no rebuttal will be allowed. (Emphasis added.) [37] A few years later, in R. v.

Aalders, (SCC), [1993] 2 S.C.R. 482 Cory J. spoke about collateral evidence indescribing the test for admissibility of rebuttal evidence at page 498: In my view, the crucial question with regard to the admission of rebuttal evidence is not whether the evidence which the Crown seeks toadduce is determinative of an essential issue, but rather whether it is related to an essential issue which may be determinative of the case. If the reply evidence goes to an essential element of the case and the Crown could not have foreseen that such evidence would benecessary, then it is generally admissible.

Thus, if a statement is made during the course of a witness's testimony at trial which conflictswith other evidence relating to an essential issue in the case, reply evidence will be permitted to resolve the conflict. [38] Justice Cory went on to distinguish collateral evidence from evidence going to an integral element of that case at page 500: The reason for permitting evidence to be led in reply in this case is not simply that the reply will affect the credibility of Aalders for all

testimony in a case will, to some extent, be subject to testing for its credibility. Rather, it is the fact that the evidence goes to an integralelement of the case coupled with the recognition that the Crown could not have foreseen the accused would testify in this way whichmakes the evidence admissible in reply. … (Emphasis added.) [39] Three years later in R. v. Lawes, (SCC), [1997] 3 S.C.R. 694, the Supreme Court considered whether rebuttalevidence was relevant to an alibi defence or whether it was merely going to the accused’s general credibility, in which case it would becollateral.

In endorsing the decision of the Alberta Court of Appeal to admit the rebuttal evidence, Cory J. described how the impugnedevidence was relevant at paragraph 2: The rebuttal evidence introduced by the Crown relating to O. H. was properly admitted. It went to the context and the essential fabric ofthe alibi defence… The rebuttal evidence was clearly relevant to an issue raised in the defence. (Emphasis added.) [40] Questioning on collateral matters, especially during cross-examination, is often helpful to triers of fact who must decide thecredibility of witnesses and the reliability of their evidence.

Few would dispute that questioning a witness about his or her previouslytold lies is admissible for the purpose of helping the court determine whether to believe the witness this time, or that context evidencegiven in the narration of a witness’ testimony may be collateral, but nevertheless admissible because it facilitates the court’sunderstanding of that witness’ evidence.

As well, several common law exceptions to the strict rule have developed over time in order topermit the receipt of collateral evidence when circumstances dictate. [41] In addition to requiring that the threshold criteria be met, the law limits the calling of rebuttal evidence by stipulating that itcannot be collateral; it must relate to a main issue in the case. Proposed rebuttal evidence relating to the general credibility of an accusedor a witness is not sufficient to justify admission.

If the proposed rebuttal evidence is relevant to a main issue, then the collateralevidence rule should not prevent its admissibility for such rebuttal evidence can assist the trier of fact in determining the main issue. If itrelates to a main issue it is not collateral. This does not mean that all proposed rebuttal evidence that is not collateral must be admitted. Even if admissible, a trial judge may decide not to admit rebuttal evidence if the time, effort and expense involved in its admissionwould unduly delay the trial or involve the parties in proving and disproving matters of marginal importance.

There are degrees ofrelevance. The more important the proposed evidence can be to a main issue in a case, the more likely a trial judge will exercise his orher discretion in favour of admissibility even if it takes time. It depends. [42] In Lawes, the Supreme Court of Canada determined that because the rebuttal evidence “went to the context and the essentialfabric of the alibi defence” it was admissible.

In other words, it mattered enough and was relevant to the task of the fact finding court,which had to decide whether the alibi defence raised a reasonable doubt about the accused’s guilt (by any account a main issue) to justifyits admission. [43] In this case, the Crown did not know how Mr. Marsh came to be driving the subject car, or the names of other people involvedwith him that morning, until he testified. In these circumstances, it cannot be said that the Crown was splitting its case by callingrebuttal evidence.

Constable Roche’s rebuttal evidence was heard in voir dire in very short order, and its hearing did not cause unduedelay or cause the trial to go sideways. [44] After discussion, the trial judge admitted the rebuttal evidence with defence counsel’s consent. Defence counsel reserved theright, which is always his prerogative, to address how much weight the rebuttal evidence ought to be accorded in closing submissions. [45] The main issue in this case was whether Mr. Ryan was driving the car. Mr.

Marsh said he was the driver, and in saying so,testified to why he was in the subject car that morning, who was with him in the front seat, where they were going, what they intended todo, and with whom they intended to do it. Thus, Mr. Marsh’s evidence related to the main issue of alibi, for if it were accepted, it woulddetermine the outcome of the case. The rebuttal evidence specifically addressed the existence and/or whereabouts of the front-seatpassenger who Mr. Marsh said provided the cigarettes and was with him in the fleeing car, and the person to whom Mr.

Marsh and hispassenger were hoping to sell the cigarettes. This rebuttal evidence is directly related to the credibility of the alibi defence, and is distinctfrom Mr. Marsh’s general credibility. It is not evidence that depends on its contradiction for its relevance. It relates directly to “thecontext and essential fabric of” Mr.

Marsh’s alibi evidence (Lawes), to the details of the alibi evidence which “concern[s] an issueessential for the determination of the case” (Krause), and to “an essential issue (alibi) which may be determinative of the case” (Aalders).Accordingly, it is not collateral and is therefore admissible. [46] The record reveals that the trial judge was not impressed with the quality of the rebuttal evidence. He did not refer to it at all inhis decision.

He noted at page 238 of the transcript that the rebuttal evidence lacked the usual indicia of reliability and he summed upthe evidence by remarking that all the rebuttal evidence was, was that the police couldn’t find an address for anyone named Alexanderliving on Livingstone Street and they have no record of a Brad Laing. I agree. However, the poor quality of the rebuttal evidence doesnot make it irrelevant to the main issue of alibi, or inadmissible. (see R. v. Lawes (1996), 1996 ABCA 417 , 44 Alta. L.R. (3d)25 (CA)).

Also, the impromptu manner in which the evidence came before the court raises hearsay issues, noted as reliability concernsby the trial judge. Defence counsel did not object to admissibility of the evidence, and no hearsay issue was raised on appeal. In anyevent, even if some of the evidence was hearsay, it obviously had no impact on the trial judge’s decision. [47] Accordingly, the trial judge made no error in admitting the rebuttal evidence. This ground of appeal also fails. [48] In the result, Mr. Ryan’s appeal is dismissed. _________________________________

L. R. Hoegg, J.A. I Concur: ____________________________ M. H. Rowe, J.A. I Concur: ____________________________ M. F. Harrington, J.A.