William George Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Ann E. Smith, 2022 NSSC 42

SUPREME COURT OF Nova Scotia Citation: R. v. George, 2022 NSSC 42 Date: 20220207 Docket: CRAT . No. 507895 Registry: Antigonish Between: William George Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Ann E. Smith Heard: October 14, 2021, in Halifax, Nova Scotia Counsel: Robert D. Jeffcock, for the Appellant Jonathan C. Gavel, for the Respondent By the Court: Introduction [ 1 ] This is a

summary conviction appeal. The appellant was convicted under

section 249.1 of the Criminal Code , of failing “without reasonable excuse and in order to evade the peace officer,” to stop a motor vehicle he was operating “while being pursued by a peace officer…”. [ 2 ] The conviction is overturned. With respect, the trial judge’s conclusions on several elements of the offence were not reasonably supportable on the evidence. The Evidence at Trial [ 3 ] RCMP Cst. Lyle Reid testified at trial that on September 11, 2018, he was on traffic patrol on Highway 16, in the Lincolnville area around 8:40 a.m. He saw a car approaching that he believed was speeding.

He initially described it as a silver or grey Honda and later confirmed from his General Report that it was a Civic. His description of his initial encounter with the Civic in his direct evidence was as follows: … The radar that I had on beeped, noticed it was registering 120 in the 90’s area. Turned on my emergency equipment to stop the vehicle. Noticed the vehicle to be that that William George had been driving earlier in the week. I had noticed him driving while in my own car around Guysborough earlier, so I was kind of looking for it, knowing that Mr. George didn’t have a license.

So, I immediately turned on my emergency vehicle [sic], the vehicle came close to me. Caught a view of the driver. The driver was Mr. George. I’ve known Mr. George for many years with my service both in Guysborough and prior to that in Antigonish. [ 4 ] He testified that the appellant was due in court that day in Port Hawkesbury. [ 5 ] Cst.

Reid said he turned on his red and blue roof lights and front flasher strobe with “advanced enough notice of the car coming, he would have seen my lights on to know I was going to conduct a traffic stop.” He said he was able to identify the appellant when the Civic “passed by driver … side by driver’s side as he went by.” Cst.

Reid then turned around in a driveway “which was wide enough for me to create a one single turn and as I was turning, he turned into Lincolnville Loop and sped away.” He testified that the Honda “accelerated to the point where I could see the car kind of dip down because the accelerator was hit so hard”. [ 6 ] Cst. Reid described the Lincolnville Loop as “a residential area and being that time of day, there could be students out waiting for a bus or people walking their dogs…”. He, therefore “decided against pursuing fully through the Lincolnville Loop…”.

He estimated the observation time as probably less than a minute, saying “[i]t’s a short distance from the driveway to where the Lincolnville Loop Road is. By the time I got spun around, he was already going and gone. He was speeding away quite quickly.” He confirmed that he ended the pursuit for “safety reasons.” [ 7 ] On cross-examination, Cst. Reid said he was driving southbound at 90 km/h when he saw the Civic approaching northbound

in the other lane of the two-lane road. He said he slowed down to make the turn when he saw the Civic approaching, and that it would have taken him “a couple of seconds” to turn around. He said, in part: Q: And you told my friend that when you visually identified Mr. … who you believed to be Mr. George, that was when you were driving … looking at each other through the passing through your driver’s seat window? A: Yeah, I had to come close to the spot where I was going to make the turn and I wasn’t moving very fast and he drove right by. I was able to identify him easily. [ 8 ] Cst.

Reid agreed that he did not get close enough to the Civic to read the license plate, although he was “trying to close the gap…”. [ 9 ] Cst. Reid testified that after returning to the Guysborough detachment, he called the Port Hawkesbury detachment. Knowing that the appellant had court that day in Port Hawkesbury, he hoped the detachment might be able to catch him crossing the causeway on his way to court. While that did not occur, he was able to obtain video from the Port Hawkesbury courthouse showing the appellant arriving in the same vehicle that he had seen earlier. [1] Cst.

Reid testified that a few days later he again saw the appellant, this time driving “his mother’s SUV”, a Ford Escape. He then arrested Mr. George for flight from police. He later confirmed that it was on September 18, and that he sighted the appellant in Boylston, near the appellant’s home on West Side Harbour Road Cst. Reid agreed on cross-examination that the appellant did not have a grey Honda registered in his name and said the Civic belonged to the appellant’s mother.

He also agreed that he did not see the appellant driving the Civic again but said on re-direct that he had seen him driving it two days prior to September 11, 2018. [ 10 ] The only issue directly argued at trial was identity. Crown counsel simply said, “he’s known him for years. He was able to identify him, and he clearly saw him on that day evading him.” The defence argued that the evidence of Cst. Reid’s identification of the appellant was insufficient given that he had “mere seconds to make the visual identity of the driver”. [ 11 ] In his decision, the trial judge summarized Cst.

Reid’s evidence respecting sighting and identifying the appellant on the road, and said: [3] The officer had seen the accused, he identifies in court today as Mr. George, operate that vehicle a couple of days previously. He was quite aware of Mr. George and he says he’s known him for many years. And as the Honda approached the police vehicle, the [driver] of the vehicle, Cst. Reid, points out was, he believes it was Mr. George who he identifies in Court today. He had known him from before and the lights had already been activated.

The operator of the Honda vehicle continued to proceed away from the scene, turned right on to the Lincolnville Loop, so-called. [4] The officer was able to turn his vehicle around in pursuit but held back because he had lost sight of the vehicle very shortly after the turn had taken place and he didn’t want to proceed beyond the legal allowable limit in pursuit because of the time of day and the possibility of young people being in the area… [5] He lost sight of the vehicle. He had no contact with Mr. George. He made inquiries about Mr. George and was not able to come in contact with Mr.

George until the 18 th of September, I believe. And that was around eleven o’clock in the morning in Boylston. Upon examination, it became apparent that the officer never saw Mr. George in that vehicle again after his alleged observation on September 11 th . It was not a long time that he would have had to possibly identify the driver between his approaching vehicle. But for the fact that the officer was well aware of Mr. George and what he looked like and had known him for a considerable period of time. He had seen him in that vehicle previously. [6] The Defendant did not take the stand. He’s not obligated to.

He doesn’t have to. And that should not be and will not be held against him. Its up to the Crown to prove the guilt beyond a reasonable doubt. [7] But taking the evidence into consideration, the observations which go unchallenged except for the cross-examination, I’m confident and convinced and sure that it was Mr. George behind the vehicle who pursued away. There’d of been motive as well because the officer reports that Mr. George didn’t have the licenced ability to operate a motor vehicle.

Every intention or a motive for the operator to get himself out of the area so he wouldn’t be detained by the officer. [8] Though, in fairness to Mr. George, when he was approached on the 18 th of September operating a different vehicle of his mother, that he did comply quite readily. I take that into consideration, as well. [ 12 ] The trial judge thus found the appellant guilty as charged.

Grounds of Appeal and Remedy [ 13 ] In the Notice of Appeal, the appellant alleges that the trial judge rendered an unreasonable verdict, identifying three grounds: (1) misapprehension of evidence of identification; (2) misapprehension of evidence of knowledge of pursuit; and (3) misapprehension of evidence of intention to evade pursuit. The appellant asks the

Summary Conviction Appeal Court to allow the appeal, set aside the conviction, and enter an acquittal. Appeals under section 686(1)(a)(i) [ 14 ] An accused is permitted to appeal a conviction pursuant to

section 813 (

a) of the Criminal Code . Pursuant to section 686(1)(a) (

i) the appeal court “may allow the appeal where it is of the opinion that … the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence…”. While Crown and defence counsel canvassed various cases interpreting the applicable standard, they appear to agree that the question is “whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered on the evidence as a whole”: R. v. Sinclair , 2011 SCC 40 , [2011] 3 SCR 3, at para. 84 , per Charron J.

(concurring in result). In R. v. R.H.L., 2008 NSCA 100, [2008] N.S.J. No. 468, the Court of Appeal said: 21 The standard of review that applied at the SCAC during its review of the trial judge's decision was explained by this court in R. v.Nickerson, 1999 NSCA 168 , [1999] N.S.J. No. 210 at para. 6: ... Absent an error of law or a miscarriage of justice, the test to be applied by the

Summary Conviction Appeal Court is whether thefindings of the trial judge are unreasonable or cannot be supported by the evidence. As stated by the Supreme Court of Canada in R. v.Burns (R.H.), (SCC), [1994] 1 S.C.R. 656 … at p. 657…, the appeal court is entitled to review the evidence at trial, re-examine and reweigh it, but only for the purpose of determining whether it is reasonably capable of supporting the trial judge'sconclusions. If it is, the

Summary Conviction Appeal Court is not entitled to substitute its view of the evidence for that of the trial judge.In short, a

summary conviction appeal on the record is an appeal; it is neither a simple review to determine whether there was someevidence to support the trial judge's conclusions nor a new trial on the transcript. (Underlining in original) [15] The Crown says the appellant misconstrues the standard by suggesting that the appeal court must determine whether theCrown met its burden at trial, which would mean substituting the findings of the appeal court for those of the trial judge, rather thandetermining whether the evidence was reasonably capable of supporting the trial judge’s conclusions.

In accordance with Nickerson, ofcourse, the appeal court may re-examine and re-weigh the evidence to determine whether it is reasonably capable of supporting the trialjudge’s conclusions. The Offence [16] The appellant was convicted under

section 249.1, which was soon thereafter repealed pursuant to S.C. 2018, c. 21, s. 14,effective December 18, 2018. At the time of the events for which the appellant was convicted, the

section described the offence asfollows: Flight 249.1

(1) Every one commits an offence who, operating a motor vehicle while being pursued by a peace officer operating a motorvehicle, fails, without reasonable excuse and in order to evade the peace officer, to stop the vehicle as soon as is reasonable in thecircumstances. [17] The purpose of

section 249.1 was to “to address the potentially dangerous situation that inevitably arises when a motoristattempts to evade police engaged in lawful pursuit. The offence requires proof of an intention to evade the police officer”: R. v.Kagayalingam, 2006 ONCJ 402, at para. 34. The elements were set out in R. v.

Kulchisky, 2007 ABCA 110: [4] … The essential elements are the following: · The accused must be operating a motor vehicle. · A peace officer must be pursuing the accused. · The evidence must establish that the accused knows a police officer is in pursuit. · The peace officer must be operating a motor vehicle. · The accused must fail to stop his vehicle as soon as reasonable in the circumstances. · The accused must have no reasonable excuse for his failure to stop. · The accused must fail to stop “in order to evade the peace officer.” [18] As a preliminary matter, the appellant points out that the trial judge did not expressly consider – and did not expressly invitesubmissions on – elements of the offence other than identity.

The Crown submits that the trial judge fixed on identity as the decisiveissue after counsel made admittedly brief submissions. Consequently, the Crown says, the appeal is largely concerned with arguments onthe merits that were not made at trial, contrary to the purpose of an appeal. As to the brevity of the reasons, the Crown suggests that thiswas “likely” due to a fair apprehension that elements other than identity “were not really being contested and did not warrant thoroughexamination” in the decision.

According to the Crown, the trial judge was not required to “deliver a thorough analysis on issues notaddressed by counsel.” [19] The appellant disputes the Crown’s submission that it was not necessary for the trial judge to fully analyze issues not argued bythe parties. As the appellant points out, insufficiency of reasons is not advanced as a ground of appeal; however, the appellant also citesR. v. Laing, 2017 NSCA 69, for the proposition that the “brevity” of the submissions is not relevant to the determination of whether thereasons are sufficient.

Further, there were no concessions that would have relieved the trial judge of the duty to determine whether theCrown had proven all the elements of the offence beyond a reasonable doubt. In particular, the appellant says that there is no basis in thedecision to find that the trial judge instructed himself on the element of knowledge or made a finding on that element. Identification [20] The first basis for setting aside the conviction raised by the appellant is that Cst.

Reid’s evidence identifying him as the driverof the car was “so weak that no properly instructed trier of fact … could reasonably have returned a verdict of guilt.” [21] The “frailties of eyewitness testimony and the cautious careful scrutiny which must be given to it as a consequence, have longbeen understood”: R. v. Downey, 2018 NSCA 33, at para. 56. Due to “the inherent dangers of identification evidence, especially where

the witness appears both honest and convincing … fact-finders (whether trial judges or juries) must be satisfied as to both the credibilityand the reliability of the eyewitness testimony”: Downey at para. 57. The Ontario Court of Appeal remarked, in R. v.

Gough, 2013ONCA 137: [36] The trier of fact must take into account the frailties of eyewitness identification in considering such issues as whether the suspectwas known to the witness, the circumstances of the contact during the commission of the crime (including whether the opportunity to seethe suspect was lengthy or fleeting) and whether the circumstances surrounding the opportunity to observe the suspect were stressful... [22] In R. v.

Vanarkel, 2012 ONSC 6262, the court identified various considerations that will be relevant to the weight to beaccorded to identification evidence, depending on the circumstances of the case: [20] However, suggested considerations have included the following: a. Length of observation; b. Distance; c. Light conditions; d. Obstructions to view; e.

Whether the case involves identification of a stranger, (entirely dependent on the perception and recollection of the witness on theparticular occasion in question), or purported recognition of someone known by the witness, (in which case one must consider the historyand nature of prior knowledge, familiarity and interaction providing the basis for alleged recognition); f. Lapse of time between the relevant observation and the suggested identification; g. Specificity of the eyewitness description; h. Whether the person to be identified has outstanding or special features or characteristics; i.

Material discrepancies between a witness description and appearance of the accused; j. Consistency between successive descriptions offered by the witness; k. The degree of attention and awareness of the witness at the time of the crime, and the care with which an identification observationis made; l. Whether the identification procedure was flawed or unfair, insofar as it directly or indirectly suggested to the witness that theaccused should be identified; and m.

Existence of other evidence or circumstances providing some corroboration or validation of the suggested identification; (e.g.,physical evidence, other eyewitness identification, or circumstantial evidence capable of connecting the accused to the incident). [21] For the above reasons, appellate review of whether a verdict based on eyewitness identification evidence is one “that a properlyinstructed jury acting judicially, could reasonably have rendered”, often will focus on whether the trier of fact was alert to the well-recognized dangers of identification evidence, avoided confusion between credibility/certainty and reliability, and properly apprehendedand scrutinized the nature and basis of that identification evidence, (including recognition of its weaknesses), through consideration ofapplicable reliability factors. [Emphasis added.] [23] The task of an appeal court considering an allegation that a conviction rested on an unsafe identification of the accused wasconsidered by Joyal J. in R. v.

Maytwayashing, 2007 MBQB 267, quoting the following remarks from R. v. Klyne, 2007 MBCA 100: [18] At the appellate level, courts attempt to balance the applicable standard of review with the reality that particular care must be takenwhen reviewing the reasonableness of a conviction based solely upon eyewitness testimony. The Ontario Court of Appeal, in R. v.Miaponoose (1996), (ON CA), 110 C.C.C. (3d) 445, stated the following (at p. 452): Section 686(1)(a)(

i) of the Criminal Code charges this court with the responsibility of determining whether a conviction is “unreasonableor cannot be supported by the evidence”. That statutory obligation requires an independent, albeit restrained, appellate assessment of thetotality of the evidence. If on that assessment the court concludes that a properly instructed jury acting judicially could not reasonablyhave returned a guilty verdict then the verdict must be quashed... Section 686(1)(a)(

i) is often invoked in cases which turn on eyewitness identification evidence… This is particularly so where thepotential probative force of the identification evidence is undermined by improper identification procedures. Resort to the jurisdictionbestowed on this court by s. 686(1)(a)(

i) in identification cases is a response to the well-recognized danger inherent in convictions basedon eyewitness evidence. Furthermore, the assessment of the probative force of eyewitness evidence does not often turn on credibilityassessments, but rather on considerations of the totality of the circumstances pertinent to that identification. As such, a verdict based onhonest but potentially mistaken eyewitness identification is well suited to appellate review under s. 686(1)(a)(i)… [emphasis added inKlyne] [24] The Saskatchewan Court of Appeal in R. v.

Bigsky, 2006 SKCA 145, 217 C.C.C. (3d) 441, identified factors which, if avertedto in a trial judge’s reasons, may provide assurance for a court sitting on appeal that the trial judge was aware of how eyewitnessevidence may be strengthened or weakened. The court observed the following, at pp. 460-61: [41] In the judge-alone cases, when a court of appeal will intervene depends on a variety of factors: (

i) whether the trial judge can be

taken to have instructed himself or herself regarding the frailties of eyewitness testimony and the need to test its reliability; (ii) the extent to which the trial judge has reviewed the evidence with such an instruction in mind; (iii) the extent to which proof of the Crown's case depends on the eyewitness's testimony or, in other words, the presence or absence of other evidence that can be considered in determining whether a court of appeal should intervene; (iv) the nature of the eyewitness observation including such matters as whether the eyewitness had previously known the accused and the length and quality of the observation; and (

v) whether there is other evidence which may tend to make the evidence unreliable , i.e., the witness’s evidence has been strengthened by inappropriate police or other procedures between the time of the eyewitness observation and the time of testimony. [42] In those judge-alone cases where a conviction based on eyewitness testimony has been upheld, the court of appeal found that the trial judge has instructed himself or herself properly on the appropriate standard of proof and the frailties of eyewitness testimony and applied those standards in the analysis; the eyewitness has either known the accused; or the evidence formed a part only of evidence of guilt; and there has been no suggestion that the eyewitness identification has been contaminated or weakened by some sighting after the incident.

It is also relevant, in the appellate context, whether the accused testified. [43] Where courts of appeal have found error, the reasons have been insufficient, the eyewitness identification rests on a “fleeting glance” or some improper procedure took place after the incident which may have inappropriately strengthened the witness's testimony. [emphasis added in Maytwayashing ] [ 25 ] The appellant says it is “clear from the trial judge’s reasoning that he was not mindful of the inherent frailties and dangers of eyewitness testimony nor was he mindful of the need to scrutinize such testimony with great care and caution.” The trial judge made no assessment of reliability.

The appellant suggests he placed an improper burden on the defence to prove that he was not the driver. Specifically, the appellant points to the trial judge’s reference to “the observations which go unchallenged except for the cross- examination,” as the basis for the conclusion that the appellant was the driver. This, it is submitted, can only mean that the trial judge was requiring the defence to adduce evidence to prove that the appellant was not the driver. [ 26 ] The record indicates that the trial judge accepted Cst.

Reid’s “bare statement” (in the appellant’s phrasing) that he had previously seen the appellant driving the same vehicle. There was no description of the driver, and no reference to the license plate number. According to the appellant, the alleged previous identification should have received no weight. The Crown says Cst.

Reid’s evidence that he had previously seen the appellant driving a similar vehicle goes to his familiarity with the appellant, and his evidence that the appellant was driving without a license is further circumstantial evidence of identification, given that he said he was specifically looking for him for that reason. Finally, the Crown submits, the appellant did not object to this aspect of Cst.

Reid’s evidence at trial and must “live with” that decision. [ 27 ] The appellant further characterizes the evidence that he was driving without a license, and therefore would have been motivated to evade pursuit, as “propensity evidence.” The Crown disputes that this was “propensity evidence.” The appellant cites R. v. P.N. , 2021 NSCA 68 , [2021] N.S.J. No. 395, where the issue of propensity or bad character evidence was not raised at trial nor was it raised as a ground of appeal. It was identified by the Court of Appeal.

In reviewing the law governing propensity evidence, Farrar J.A. noted that “[i]f the Crown wants to lead evidence of an accused's disposition, it must identify the issue at trial, on which the evidence of disposition is said to relate” (para. 58). He added that “[e]ven if the Crown identifies a live issue to which the evidence may relate, the trial judge is required to weigh the probative value against the prejudicial effect of such evidence” (para. 60). He continued: [61] In Mr. N.'s trial, bad character evidence was adduced by the Crown, absent any comment from the Court or objection from defence counsel.

There was no weighing of probative value versus prejudicial effect, or any comment about what use the Court could make of this evidence. The Crown identified no live issue to which a fact may have been inferred from the evidence with respect to the improper use of Ms. Q.'s credit cards. This is similar to R. v. C.J. , 2011 NSCA 77 , where Fichaud J.A. reasoned: [42] No such process occurred here. At the trial the Crown identified no live issue to which a fact that may be inferred from the evidence would be relevant. So the defence had no opportunity to admit that fact at the heart of the live issue.

The judge did not perform the functions that the balancing test called on him to perform. At the trial there was no acknowledgement by the Crown, defence or judge that there was even a process to be followed before this evidence could be admitted. Neither did the judge's decision acknowledge the process or attempt to perform those functions that he was called upon to perform.

Yet the judge's decision used the problematic evidence in his reasoning that led to the convictions. [62] The trial judge specifically referenced and relied on the improper evidence of bad character in making his credibility assessment and in questioning Mr. N.'s truthfulness. This is not an error so harmless or minor that it could not have impacted the verdict. [63] In R. v.

Larion , 2020 ONSC 5611 , after reviewing the difficulty trial judges may have in precisely articulating their credibility assessments, the court said: [61] It is not apparent from the trial judge's reasons that she recognized that the inadmissible bad character evidence could play no

part in her assessment of the appellant's credibility. Firstly, the reasons contain no self-direction to that effect. And, critically, they also reveal that the trial judge failed to appreciate that the Crown had elicited any "bad character" evidence concerning the appellant. In these circumstances, to presume that the trial judge guarded against allowing the bad character evidence, the very nature of which escaped her recognition, from affecting her assessment of the appellant's credibility, would involve little more than wishful thinking. [64] Likewise, in the case of Mr.

N., the trial judge's reasons reflect no self instruction on the law relating to bad character, and no realization that the Crown had elicited the bad character evidence concerning Mr. N.. For me to conclude that the trial judge did not allow this bad character evidence to influence his decision to convict Mr. N. (as suggested by the Crown), would be contrary to the record. The trial judge's reasons reveal he relied on that very evidence in his credibility assessment. [ 28 ] The trial judge’s use of this improper evidence was sufficient reason to allow the appeal and order a new trial ( P.N. at paras. 65-66 ).

Similarly, in this case, the trial judge did not self-direct on the use that could be made of Cst. Reid’s evidence that he had previously seen the appellant driving a similar vehicle and that he was looking for the appellant because he had been driving without a license. There was no evidence that the Civic Cst. Reid saw on September 11, 2018, was the same vehicle he believed he had seen the

appellant driving earlier, and the Crown did not elicit any details about the circumstances of the alleged prior identification or why Cst.Reid thought it was the same vehicle. In

summary, the appellant submits: 31. With respect to the issue of propensity, the Trial Judge reasoned that because Mr. George was alleged to have been seen operating asimilar motor vehicle days prior without a valid driver’s license, it must have been him operating the silver Honda on September 11,2018 and that he must have known that the police would be looking for him, and therefore intended to evade the police … as he musthave known he was committing an offence. 32.

At the conclusion of the trial, it was up to the trial judge to self-instruct on what use he could made of the information relating to Cst.Reid’s alleged first observation of the Appellant, which he did not. Therefore, as was the case in P.N., a conclusion that the Trial Judgedid not allow propensity evidence to influence his decision would be contrary to the record. 33. It is clear from his decision, that the fact that Mr. George did not have a valid driver’s license on September 11, 2018, played asignificant role in the Trial Judge’s decision to convict.

At paragraph 7 of his decision, the Trial Judge states: “… There’d be of beenmotive as well because the officer reports that Mr. George didn’t have the licensed ability to operate a motor vehicle. Every intention or amotive for the operator to get himself out of the area so he wouldn’t be detained by the officer.” The status of Mr. George’s license wasnot at issue and should not have formed part of the evidence or the decision, and as there is no self-instruction by the trial judge, it isunclear what other use may have been made by this fact.

As such, on this issue alone, Appellate intervention is warranted. [29] The Crown disputes that this was “propensity evidence” but argues that even if it is, it could be admitted for limited purposes.In my view, however, this submission ignores the fact that there is no indication in the decision that the trial judge considered this issue,and the point was not raised in evidence or in submissions. The trial judge did, however, expressly rely on this evidence as establishingmotive to evade pursuit.

In my view the appellant’s position is well-founded. [30] The appellant denies that the evidence could support the reliability of Cst. Reid’s identification of the vehicle on September 11,2018. There is no way to distinguish the Civic he described from any other Honda Civic, and no way to connect the Civic he reported asthe speeding vehicle to the appellant. This further undermines the reliability of the evidence of the prior identification for recognition orcorroboration. The Crown argues, simply, that Cst. Reid recognized the vehicle he saw on 11 September as the one he had seen earlierthat week.

Once again, there was no evidence beyond the officer’s bare assertion that the two vehicles were the same, or that the driverswere the same. The vehicles were described by make and model – and Cst. Reid did not appear to be certain as to the colour, describing a“silver or grey” Honda on September 11 – and there was no description of the driver in either case, beyond a claim of recognition. [31] The appellant further says Cst. Reid’s visual identification of him as the driver of the Civic on September 11 was unreliable.

Asdescribed earlier, he testified that he identified the driver as the appellant while meeting the Civic on the road, at a radar-clocked speedof 120 km/h, while he was slowing his own vehicle from 90. Appellant’s counsel suggests that the identification would have been“impossible”, beyond a “fleeting glance”, at the resulting closing speed. [2] [32] The Crown points to Cst. Reid’s evidence that he had known the appellant for years and that he had seen someone he identifiedas the appellant driving a similar vehicle earlier that week. The Crown also says the evidence indicated that Cst.

Reid had been lookingfor the appellant, who he believed to be driving without a license. The Crown also notes Cst. Reid’s evidence that he knew the appellantwas due in court in Port Hawkesbury that day, and the Civic was travelling in that direction. He also testified that he knew that theappellant’s mother had a grey Civic registered in her name, and that he located the appellant again several days later, driving a differentvehicle, also registered to his mother. [33] The appellant cites several authorities for the proposition that a “fleeting” look is insufficient to convict.

For instance, in R. v.Carpenter, [1998] O.J. No. 1819 (Ont. C.A.), the court quashed a conviction where the identification evidence “amounted to no morethan in dock identification by one witness who had a fleeting glance at the offender and another who could not in any way describe anyof the three persons she had seen and who conceded that she would not be able to recognize the other two…” (para. 1). InMaytwayashing, Joyal J remarked that a “one- to two-second observation … cannot be categorized as other than prima facie frail” (para.36).

That said, however, the law distinguishes situations where the witness recognizes the accused from those where the individual isotherwise a stranger. As the Crown points out, reliability concerns may be lessened in cases of recognition-based identification: R. v.Vanarkel, 2012 ONSC 6262, [2013] O.J. No. 403, at paras. 33-34. Nevertheless, “[a]ll eyewitness identification evidence is subject toreliability assessment, although reliability may be easier to achieve in recognition cases.

A court must always consider the circumstancessurrounding a witness’ identification of an accused, which in recognition cases would indicate the nature and degree of past interactionbetween the witness and the accused”: R v. Ryan, 2011 NLCA 53, at para. 28. In R. v. Downey, 2018 NSCA 33, the court cited thefollowing remarks about recognition evidence from R. v.

Campbell, 2017 ONCA 65: [10] This court has confirmed that "recognition evidence is merely a form of identification evidence" and, as such, "[t]he sameconcerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence": R.v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39.

This court also noted in that paragraph, however, that "[t]he level offamiliarity between the accused and the witness may serve to enhance the reliability of the evidence." Unlike cases involving theidentification of a stranger, the reliability of recognition evidence depends heavily on the extent of the previous acquaintanceship and theopportunity for observation during the incident: R. v. Miaponoose [(1996), (MB CA), 87 C.C.C. 175], at p. 177.Recently, in R. v.

Charles, 2016 ONCA 892, at paras. 50-51, this court noted the "critical difference" between recognition cases andcases involving identification by a witness of a complete stranger, and referred to the relevance of the "timeline of the identificationnarrative"... [34] “Bare recognition unsupported by reference to distinguishing marks” has been called “a risky foundation for conviction, evenwhen made by a witness who has seen or met the accused before”: R. v. Spatola, (ON CA), [1970] 4 C.C.C. 241 (Ont.C.A.), at para. 23.

Further caution about reliance on “bare recognition” rather than identifying details appears in Downey, whereSaunders JA said: [69] To summarize then, the importance of articulating identifiable features or idiosyncrasies will vary depending upon the level of

familiarity the witness has with the person to be identified. In some cases a witness may be sufficiently familiar with the person, so as to render the identification by the witness of any unique identifiable feature unnecessary, in order for a court to properly assign substantial value to that evidence. Common sense and one’s life experience reminds us that people have vastly different abilities when it comes to identifying or expressing the particular features of people they know and recognize, through their contact with one another.

Where contact is fleeting, a person’s recognition evidence may be of little value unless the witness can explain its basis in some detail. On the other hand, a simple conclusory recognition without additional elaboration of any points of distinctiveness, may still be highly probative in the case of a person who is closely familiar with the accused… [ 35 ] In R. v.

M.B. , 2017 ONCA 653 , the court remarked that where a witness does not have a “long and closely familiar” relationship with the person being identified, the witness should be expected to “articulate the particular features or idiosyncrasies that underlie the recognition” (para. 47, citing R. v. Panghali , 2010 BCSC 1710 , at para. 42 ). [ 36 ] The trial judge did not expressly instruct himself on the potential frailties of the identification evidence in this context. His reasons suggest that no such scrutiny was required due to Cst. Reid’s recognition of the accused. The only evidence of Cst.

Reid’s previous knowledge of the appellant was his statement that he had known him “for many years” in Guysborough and, before that, in Antigonish. As the appellant submits, the evidence contained no further details that would allow the trial judge to assess “how well did they “know” each other; had they crossed paths once in 2010 and once in 2018?” Cst. Reid did not describe the appellant and did not describe the individual he saw driving the Civic on either occasion.

He did not provide details such as “the sex, the age, the race, the weight, or any distinguishing features that would allow the court to assess his reliability”. The appellant suggests that the trial judge took Cst. Reid’s confidence in his identification as an indicator of reliability. It is difficult to reach any other conclusion on a review of the record. [ 37 ] The appellant raises a further issue regarding the duration of Cst. Reid’s observation of the driver of the Civic on September 11. It was put to Cst.

Reid in cross-examination that he identified the appellant while “looking at each other through the passing through your driver’s seat window?” He agreed with this characterization: “Yeah, I had to come close to the spot where I was going to make the turn and I wasn’t moving very fast and he drove right by. I was able to identify him easily.” On direct he had testified that “the vehicle came close to me, Caught a view of the driver.” The trial judge, however, implies that the identification occurred “as the Honda approached the police vehicle”.

The only specific evidence as to where the vehicles were located, however, appears to be Cst. Reid’s agreement on cross-examination that he identified the appellant “through your driver’s seat window.” [ 38 ] The appellant says the evidence does not permit an inference that Cst. Reid saw the driver through his own and the Civic’s windshields as they approached – and Cst. Reid did not say this directly. His testimony was not that he saw the appellant through the windshield, but as the vehicles passed one another.

The appellant says the variables that could affect the ability to see through a windshield are too numerous – such as transparency, glare, reflection, moisture, fog, tint, and cleanliness – to allow such an inference on the evidence that was before the trial judge. Further, the appellant submits, this reasoning does not address the reliability of the identification. It would be unsafe, the appellant submits, to accept the suggestion that the trial judge could infer a greater duration of observation than the evidence indicated.

The appellant points to the distinction between permissible and impermissible inferences, as described in Watt's Manual of Criminal Evidence at §9.01: Where evidence is circumstantial, it is critical to distinguish between inference and speculation. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. There can be no inference without objective facts from which to infer the facts that a party seeks to establish.

If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissible speculation and conjecture. [Emphasis in original.] [ 39 ] The Crown challenges the characterization of Cst. Reid’s opportunity to see the appellant as “fleeting”, arguing that “it does not appear that Cst. Reid was testifying that his only opportunity to see the driver was while the cars were passing side-by-side…” The Crown says the trial judge was entitled to “infer that Cst.

Reid’s observations of the driver likely included observations made through the front windshields as the two vehicles approached each other.” (Crown brief at paras. 19-20). [ 40 ] In my view, it amounts to speculation for the trial judge to find that Cst. Reid was able to identify the driver of the Civic through his front windshield. This factor might weigh less heavily had there been any indication that the trial judge had considered the reliability of the identification beyond accepting the officer’s own confidence in his recognition of the appellant.

But combined with the other frailties described above, the result is that the trial judge gave no apparent scrutiny to the reliability of an identification resting only on the witness’s confident declaration of recognition, despite the lack of an evidentiary record from which such reliability can be inferred.

Given that the trial judge was required to be convinced of the driver’s identity beyond a reasonable doubt, in my view the cumulative result is that the finding is not reasonably supported by the evidence. [ 41 ] In the alternative, or in addition to, error on the element of identification, the appellant says the trial judge misapprehended the evidence, or the absence of evidence, with respect to several other elements of the offence, specifically, pursuit, knowledge of the pursuit, and intention to evade pursuit. Pursuit [ 42 ] The trial judge recounted Cst.

Reid’s description of his pursuit of the Civic in the following terms: [3] … The operator of the Honda vehicle continued to proceed away from the scene, turned right on to the Lincolnville Loop, so-called. [4] The officer was able to turn his vehicle around in pursuit but held back because he had lost sight of the vehicle very shortly after the turn had taken place and he didn’t want to proceed beyond the legal allowable limit in pursuit because of the time of day and the possibility of young people being in the area.

The incident took place according to the officer at 8:40 o’clock in the morning and not eleven o’clock as I stated earlier, and that’s why he thought there might be children in the area. …

[5] He lost sight of the vehicle. He had no contact with Mr. George… [ 43 ] It is an element of the offence that a “peace officer must be pursuing the accused”: R. v. Kulchisky , 2007 ABCA 110 , at para. 4 . To pursue has been interpreted to mean to “follow with intent to overtake or capture”: R. v. Quinn , 2014 ONCA 650 , at para. 10 , leave to appeal denied, [2014] S.C.C.A. No. 456. In R. v. Kagayalingam , 2006 ONCJ 402 , the accused admitted that he fled the scene of an accident in order to avoid the police.

Officers in a marked police car subsequently saw his damaged vehicle at a traffic light and turned on their sirens and lights. The accused continued driving for about a kilometre before stopping but was acquitted under s 249.1. The court said: [36] There is no question the police were following the accused with a view to pulling him over for investigation. The issue becomes whether the police were engaged in a “pursuit” within the meaning of the section? The facts here certainly do not fit into the classic “police chase” scenario. First, the entire distance covered by Mr.

Kagayalingam before he stopped his car was only .9 kilometres. The accused was also travelling well below the speed limit. P.C. Angus estimated that his speed was between 40-50 km. per hour. When one views the photographs entered into evidence of the damage to the accused’s vehicle’s front end, it is not difficult to infer that the accused could not have accelerated any faster. For his part, P.C. Angus chose to remain well back of the accused’s car throughout. The officer had ample opportunity to catch up to Mr. Kagayalingam if he so desired. It would appear that P.C.

Angus did not determine that a pursuit was necessary. In fact, he even stopped his police car and waited for a red light at Mason Road before continuing to follow Mr. Kagayalingam. [37] A revealing glimpse into the mindset of at least one of the investigating officers is disclosed during the booking procedure, which was videotaped. The booking sergeant asked P.C. Rauch whether it would be prudent to remove Mr. Kagayalingam’s handcuffs. Rauch then advised the sergeant there had been a pursuit. The booking sergeant then asked Rauch “Pursuit?” P.C.

Rauch hesitated for a moment and then answered “Somewhat of a pursuit, a following, an active following.” [38] Counsel were unable to find any judicial

interpretation of the term “pursuit” as it used in the section. The Canadian Oxford Dictionary defines the verb “pursue” as “to follow with intent to overtake”. Upon consideration of all of the evidence, it seems to me that at the time the police car was following Mr. Kagayalingam, a genuine pursuit within the meaning and purpose of the

section was not yet taking place. I do not equate an “active following”, to use the words of P.C. Rauch, as synonymous with “pursuit”. I have a reasonable doubt as to whether the officers were engaged in a pursuit in this case. [ 44 ] The appellant says the trial judge could not reasonably have found that there was a pursuit in this case. Cst. Reid’s evidence was that after he saw the vehicle turn on to the Lincolnville Loop and accelerate, he “decided against pursuing fully” because the Loop was a residential area there might be people walking.

He also testified that by the time he had turned his own vehicle around, the Civic was already “speeding away quite quickly.” He added on cross-examination that he was “quite far back” but was “trying to close the gap…”. [ 45 ] The Crown submits that the evidence of Cst. Reid turning on his lights, slowing down and making a U-turn, turning on his siren, and briefly trying to close the gap with the Civic provide sufficient evidence of pursuit. While brief, the Crown says, Cst.

Reid did intend to close the gap, which is sufficient. [ 46 ] In my view, the evidence could reasonably support the trial judge’s finding that, if only briefly, Cst. Reid engaged in a “pursuit” of the Civic on September 11, 2018. Knowledge of Pursuit [ 47 ] The appellant says the evidence did not permit a finding that the driver of the Civic seen by Cst. Reid knew that he was being pursued. The driver would only have seen a police cruiser travelling in the opposite direction and turning on its lights. The trial judge made no specific finding respecting knowledge.

As such, the appellant submits, it is not clear what inferences the trial judge drew, or whether they were reasonable. [ 48 ] The Crown submits that several items of circumstantial evidence support an inference that the appellant knew he was being pursued: the vehicles were approaching one another when Cst. Reid turned his lights on, so that he would have seen them; the lights were on when Cst. Reid made his U-turn, so they would have been visible in his rear-view mirror; Cst. Reid could still see the appellant speeding away when he turned his siren on, and the appellant would have been able to hear it (Cst.

Reid described it as a “short distance” between his U-turn and the Lincolnville Loop); and the appellant’s acceleration into the Loop was sufficient to make the front of the Civic dip. Based on this circumstantial evidence, the Crown says, a properly instructed jury could find that the appellant knew he was being pursued.

According to the Crown, it is “unreasonable” to suggest that a driver in this situation would not be “very aware” of the police vehicle, and “[m]ore likely than not” they would “form the suspicion that they are about to be stopped.” Further, accelerating in the way the appellant did, the Crown says, amounts to “abnormal driving behaviour”, further pointing to “awareness of a police officer in pursuit.” [ 49 ] The appellant submits that the Crown’s position amounts to speculation about the evidence going to the element of knowledge.

Given the lack of direct evidence, the trial judge could only find knowledge was established if that was the only reasonable inference from the evidence. The appellant cites Jacquard , where Duncan J. said: [29] Further, the learned trial judge's conclusion that "the Constable activated the emergency equipment on the police cruiser as the truck passed ..." is not consistent with the evidence that the officer gave in adopting his General Occurrence Report. He testified that he activated his emergency lights after the truck passed. He further testified that he activated his siren after he completed his U-turn.

If, as the learned trial judge believed, the emergency equipment, being the lights and siren, were activated as the appellant's vehicle passed, then it may have been reasonable to conclude that he knew or ought to have known that the officer was intending to initiate a traffic stop of either his vehicle or the one following him.

However, since the evidence is that the police emergency lights were activated after the appellant had passed, and the siren was only activated after both the appellant and the following vehicle had passed the police car, it is not possible to assess whether the appellant was in a position to know that the police initiated a pursuit of his vehicle. Even if one were to speculate that he saw the emergency lights and/or heard the siren, it would be unsafe to conclude that he knew that it was intended for

him, as opposed to another vehicle or an unrelated matter . [Italics in original; underlining by appellant.] [ 50 ] The appellant submits that this indicates that it would be unsafe to find knowledge on the basis that the driver saw the lights or heard the siren alone. It is the case, however, that the source of the error in Jacquard was a literal misapprehension of the evidence in the sense that the trial judge’s conclusion rested on a misstatement of the actual evidence. Duncan J accepted that had the lights and siren been activated as the vehicles passed, it may have been reasonable to infer knowledge.

Even if there were a basis to find that the appellant had seen the lights or heard the siren, however, Duncan J held that it would be unsafe to conclude that the appellant knew they were directed at him. [ 51 ] As to inferring knowledge from the fact that the Civic turned from the main road onto another public road, the appellant submits that this is equally consistent with a pre-existing intention to turn onto the Lincolnville Loop as with an intention to evade pursuit. Further, the alleged “dip” of the front of the Civic is equally consistent with resuming the high speed that Cst.

Reid said the Civic was previously travelling. Cst. Reid’s evidence was that he then lost sight of the Civic. As such, the appellant says, the Civic driver’s only opportunity to be aware of a pursuit would have been on the highway, before the turn into the Loop. [ 52 ] In my view, it would be permissible to infer that the driver of the Civic saw Cst. Reid’s lights as the vehicles approached one another on the road. Anything beyond that, however, is speculation. Further, in my view, it would be speculative to infer from the evidence that the driver of the Civic saw Cst.

Reid turn around or heard the siren after the two cars passed. This is particularly the case given the brief period of contact between the two vehicles as described by Cst. Reid. Nor would it be reasonable to draw such an inference from the mere fact that the Civic turned off the road, even at an increasing speed. [ 53 ] The whole of the evidence is too sparse on the entire circumstances (such as the presence or absence of other traffic) to permit such an inference. In my view, the inference of knowledge is not reasonably supported by the evidence.

Intention to Evade [ 54 ] The trial judge made no express reference to this element, but as noted earlier, he did consider Cst. Reid’s evidence that the appellant was driving without a license. The appellant says this is irrelevant evidence of motive and propensity, namely, that having allegedly been seen previously by Cst. Reid, and allegedly being without a license, the appellant would be more likely than other Civic drivers to try to evade the police. Counsel cites R. v.

Kulchisky , 2007 ABCA 110 , where the court held that the “motive for evasion, assuming the absence of a reasonable excuse, is of no moment” (para. 10). There is no assertion of a reasonable excuse in this case. [ 55 ] The Crown says that the evidence of intention to evade includes his continuing to drive at high speed after Cst. Reid turned on his emergency lights and siren, and his abrupt turn and acceleration into the Lincolnville Loop. The Crown submits that this “abnormal” driving behaviour establishes intent to evade, as well as knowledge of the pursuit.

The Crown adds that “in traveling at a high rate of speed while passing a police vehicle with emergency equipment activated”, the appellant “drove in a manner that was in itself contrary to Provincial legislation” and thus indicates an intention to evade. Crown counsel does not specify the provincial legislation in question. [ 56 ] For essentially the reasons going to the issue of knowledge, I find that an intention to evade pursuit is not a reasonable inference from the evidence respecting the encounter between Cst. Reid and the Civic on September 11, 2018.

Additionally, I find that the appellant is correct that the trial judge essentially substituted the irrelevant and speculative evidence of an alleged motive for evidence of intention to evade. As such, I find that the evidence does not reasonably support a finding of intention to evade pursuit. Conclusion [ 57 ] The appeal is allowed. The conviction is set aside and an acquittal is entered. The trial judge’s conclusions on several elements of the offence were not reasonably supported by the evidence. Smith, J. [1] The Crown concedes that Cst.

Reid’s evidence respecting the video taken at the Port Hawkesbury courthouse was hearsay, but argues that the trial judge made no reference to it in his reasons and so “it does not appear to have factored into” his identity finding and should not factor into the appeal court’s consideration of whether the test for an unreasonable verdict is met. (Crown brief at para 16).