R.v. Lohnes, 2019 NSSC 99

Summary Conviction Appeal Charge Pursuant to s. 287(2) of the Motor Vehicle Act SUPREME COURT OF Nova Scotia Citation: R.v. Lohnes , 2019 NSSC 99 Date: 20190326 Docket: HFX 478423 Registry: Halifax Between: Her Majesty the Queen v. Matthew A. Lohnes Judge: The Honourable Justice Christa M. Brothers Heard: February 1, 2019, in Halifax, Nova Scotia Written Decision: March 26, 2019 Counsel: Rick Woodburn, for the Crown Patrick MacEwen, for the Defendant Overview [ 1 ] The respondent, Matthew A. Lohnes was charged with driving while his license was suspended.

The Honourable Justice of the Peace Deborah Bowes acquitted the respondent, concluding that the Crown had not met its burden. [ 2 ] The respondent was originally charged pursuant to section 287(2) of the Motor Vehicle Act , R.S.N.S. 1989, c.293 , which states: Operating if cancelled, suspended or revoked 287

(1) If the registration of a vehicle or the permit issued in respect of a vehicle has been cancelled, revoked or suspended in accordance with this Act it shall be an offence against this Act for a person other than the one designated by the Department to operate such motor vehicle on a highway, and if a person other than the one so designated operates such motor vehicle he shall be guilty of an offence and upon

summary conviction shall be punished as provided in

Section 295.

(2) A person shall not drive a motor vehicle while his license or privilege of obtaining a license is cancelled, revoked or suspended under this Act. [ 3 ] The Crown alleges errors were committed. In essence, the Crown is dissatisfied with the findings of fact made and the failure of Bowes, J.P., to draw inferences from certain facts. Standard of Review [ 4 ] The Crown has a right of appeal pursuant to sections 813 and 822 of the Criminal Code , which state: Appeal by defendant, informant or Attorney General 813 Except where otherwise provided by law, (

a) the defendant in proceedings under this Part may appeal to the appeal court (

i) from a conviction or order made against him, (ii) against a sentence passed on him, or (iii) against a verdict of unfit to stand trial or not criminally responsible on account of mental disorder; and (

b) the informant, the Attorney General or his agent in proceedings under this Part may appeal to the appeal court

(

i) from an order that stays proceedings on an information or dismisses an information, (ii) against a sentence passed on a defendant, or (iii) against a verdict of not criminally responsible on account of mental disorder or unfit to stand trial, and the Attorney General of Canada or his agent has the same rights of appeal in proceedings instituted at the instance of theGovernment of Canada and conducted by or on behalf of that Government as the Attorney General of a province or his agent has underthis paragraph. Certain sections applicable to appeals 822

(1) Where an appeal is taken under

section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689,with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require. [5] For the most part, counsel seem to be ad idem on the standard of review and the role of a

summary conviction appeal court. The defence submits three authorities outlining the proper standard of review. R. v. Crocker, (1986), (NS CA), 73N.S.R. (2d) 151 (S.C.A.D.), [1986] N.S.J. No. 177, R. v. Sall, (1990), (NL CA), 81 Nfld & P.E.I. R. 10, [1990] N.J.No. 56 (Nfld C.A.), and R. v. Ash, (1990) (NL CA), 81 Nfld & P.E.I. R. 1, [1990] N.J. No. 55 (Nfld C.A.) [6] The Crown relied upon the decision in R. v. Nickerson, (1999), 178 N.S.R. (2d) 189, 1999 NSCA 168, for the articulation ofthe standard of review to be applied to the decision of the Justice of the Peace. In particular, I refer to the following: [5] Unlike appeals to this Court in

summary conviction matters, appeals to the

Summary Conviction Appeal Court on the recordmay address questions of both fact and law. Hallett, J.A., for the Court, recently described the role of the

Summary Conviction AppealCourt judge in R. v. Miller (1999), 1999 NSCA 51 , 173 N.S.R. (2d) 26 (C.A.) at pp. 27-29: On an appeal to a

summary conviction appeal court (in this Province, the Supreme Court of Nova Scotia), from a

summary conviction,on the ground that the verdict is unreasonable or unsupported by the evidence, the duty of the Supreme Court judge as an appellate courtis explained in Yebes v. The Queen (1988), (SCC), 36 C.C.C. (3d) 417. McIntyre, J., for the Court, stated at p. 430: ..... The function of the Court of Appeal, under s. 613(1)(a)(

i) of the Criminal Code, goes beyond merely finding that there is evidence tosupport a conviction. The court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury,acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, inorder to apply the test the court must re-examine and to some extent reweigh and consider the effect of the evidence.

The process will bethe same whether the case is based on circumstantial or direct evidence. (emphasis in Nickerson) On an appeal from a conviction for a criminal offence on the ground that the guilty verdict is unreasonable, the appellate court judge isrequired to review, and to some extent, reweigh the evidence to determine if the verdict is unreasonable. Assessing whether a guiltyverdict is unreasonable engages the legal concept of reasonableness (Yebes, supra at p. 427). Thus, the appellate review, on the groundsset out in s. 686(1)(a)(

i) of the Code entails more than a mere review of the facts. The appellate court has a responsibility, to someextent, to do its own assessment of the evidence and not to automatically defer to the conclusions of the trial judge which is what theappellate court judge seems to have done in this appeal. [6] The scope of review of the trial court’s findings of fact by the

Summary Conviction Appeal Court is the same as on appealagainst conviction to the Court of Appeal in indictable offences: see sections 822(1) and 686(1)(a)(

i) and R. v. Gillis (1981), (NS CA), 60 C.C.C. (2d) 169 (N.S.S.C.A.D.) per Jones, J.A. at p. 176. Absent an error of law or a miscarriage of justice,the test to be applied by the

Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot besupported by the evidence. As stated by the Supreme Court of Canada in R. v. Burns, (SCC), [1994] 1 S.C.R. 656 at657, the appeal court is entitled to review the evidence at trial, re-examine and reweigh it, but only for the purpose of determiningwhether it is reasonably capable of supporting the trial judge’s conclusions. If it is, the

Summary Conviction Appeal Court is notentitled 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 some evidence to support the trial judge’s conclusions nor a new trial on thetranscript. [7] I am not to merely substitute my view for that of the Justice of the Peace concerning the credibility and cogency of evidence,but must ask whether the findings of Bowes, J.P., are reasonable and supported by the evidence.

I can and must re-examine and re-weighthe evidence, to some extent, to determine whether the conclusions reached by the Justice of the Peace are ones that a properly instructeddecision-maker, acting judicially, could have reached. Grounds of Appeal [8] The Crown lists two grounds of appeal in its Notice of Appeal: 1. The Adjudicator erred in law. The decision was unreasonable and was not supported by the evidence. 2. Such further and other grounds as counsel may advise and this Honourable Court may allow. [9] The Crown expanded on the grounds of appeal in written submissions.

Counsel argues that errors were made by the Justice ofthe Peace on three points: 1. The Justice of the Peace erred in law by failing to consider the whole of the evidence related to identification; 2. The Justice of the Peace erred in law by failing to apply the accused’s fabricated alibi in considering whether the Crown had

proven identity of the accused as the driver of the vehicle; and, 3. The Justice of the Peace erred in law by giving insufficient reasons for the acquittal. Identification [ 10 ] The Crown argues that in failing to conclude that it had proven identity beyond a reasonable doubt, the adjudicator erroneously piecemealed the evidence and did not consider the principles of recognition evidence.

In advancing this ground of appeal, the Crown relies on several portions of the adjudicator’s analysis: • Stating that the officer only observed the accused for 20 feet when in fact the evidence was that he observed the accused for at least 100 feet. • Relying on “recognition bias” to conclude that while the officer had property identified the accused’s truck, he failed to ID the driver. The improper inference drawn is that he was mistaken about the driver because he had the correct vehicle.

There was little or no reason to draw this inference from the evidence. • Finding as fact that the officer correctly identified the accused’s vehicle but failed to use that recognition in her ultimate decision on ID. • Failing to consider the extensive amount of time the officer spent with the accused in her ultimate decision on ID. • Not using the fact that the accused fabricated his alibi in considering identification or ultimate guilt. [ 11 ] I will deal with each of these arguments in sequence.

Distance for Observation [ 12 ] First, the adjudicator concluded in her oral decision, rendered on June 13, 2018: Constable Brewer saw the driver commencing at a distance of approximately 20 feet. [ 13 ] The Crown argues this conclusion was an error, and the evidence was that the Constable saw the driver 100 feet away. I do not accept this argument. In reviewing the evidence, Cst. Corey Brewer testified as follows: Q. Okay. And how certain would you be that it was the same person? A. It appeared to be the same person. Q. Okay. And what was your opportunity to see this individual? A.

Probably a hundred feet because as you go underneath the MacKay Bridge there is a straight stretch. The vehicle was coming at me and I noticed right away, it’s a very distinctive vehicle, that I had just issued that that driver, four days prior, a suspension so I looked and I observed in the driver’s seat a male appearing to be the same, Mr. Matthew Lohnes. Q. And what could you see of him, how far … how far up, from where to where did you see him? A. Approximately from here to where he’s sitting right now until he passed me. Q. Okay. And how close is that, for the record about 20 … A.

Just probably about 20 feet then I looked as … as he as passing me as well, the side face. Q. And how’d that match up with the person that you saw on the 26 th of … of June 2016? A. It appeared to be the same person. [ 14 ] There is evidence which supports the Justice of the Peace’s conclusion that Cst. Corey Brewer was able to observe the respondent when the two men were 20 feet away from each other, as well as observing the respondent’s distinctive truck when it was 100 feet away. Given the evidence of Cst. Brewer, it was reasonable for the Justice of the Peace to conclude that Cst.

Brewer could observe the person 20 feet away. There was evidence to support this finding. There is no basis for me to interfere with this finding of fact. Recognition Bias [ 15 ] The Justice of the Peace commented on the potential of “confirmation bias” in relation to Cst. Brewer’s confidence in the identification of the unique truck, but lower confidence in identification of the respondent.

The Justice of the Peace stated: Constable Brewer himself was not 100 percent certain but I must also consider the confirmation bias potential in this particular case given that it was clearly the defendant’s vehicle and I find it was that he saw on June 30th. I find that Constable Brewer’s evidence, where he testified that it appeared to be somebody similar to the driver and that he was almost certain, although credible, was simply not

reliable given the fleeting opportunity to view the driver. [16] There was evidence upon which the Justice of the Peace could conclude that the identification of the vehicle had an impact onthe Constable’s belief that the respondent was the driver. She considered the fleeting opportunity the Constable had to view the driverand she was entitled to do so. Recognition of Vehicle used in Ultimate ID [17] The Crown argues the accused was known to the Constable and therefore this is a recognition case, which is a subset ofidentification. The Crown relies on R. v.

Downey, 2018 NSCA 3,3 and argues that the Justice of the Peace erred in not assessing thiscase as one of recognition. [18] In R.v. Downey, supra the sole issue was the identity of a shooter who entered a residence, along with three others. All fourwere masked at the time. Within a few minutes of entrance, one of the masked intruders shot three of the home’s occupants, including afemale complainant who was left partially paralyzed by the gunshot wound. The Crown’s case rested mainly on the female complainant,who testified that she recognized the person who shot her.

She testified that, despite the mask, she recognized the accused as soon as shesaw him, and that she recognized his voice. [19] R.v. Downey, supra, reviews the difference between identification and recognition. Identification evidence relates to evidenceprovided by eyewitnesses who are strangers to an accused. Recognition evidence is evidence offered by witnesses who are familiar withan accused. Such witnesses verify their identification through visual and/or voice recognition. This is based on familiarity with anaccused. [20] The Court in R. v.

Bob, 2008 BCCA 485, provides an instructive explanation as follows: [13]…this was a case of recognition, rather than identification. There is a significant difference between cases in which a witness isasked to identify a stranger never seen by him before the offence, and cases in which a witness recognizes a person previously known toher. While caution must still be taken to ensure that the evidence is sufficient to prove identity, recognition evidence is generallyconsidered to be more reliable and to carry more weight than identification evidence: R.v. Aburto, 2008 BCCA 78; R.v.

Bardales (1995), (BC CA), 101 C.C.C. (3d) 289 (B.C.C.A.), aff’d (SCC), [1996] 2 S.C.R. 461, 107 C.C.C. (3d) 194. [21] In this case, the Constable’s evidence was that he was off duty on the evening of June 26, 2016. He saw the respondent, whowas pulled off the road on Lower Water Street, standing at the open passenger side door of his vehicle, and urinating outside the vehicle. The officer administered an ASD (approved screening device). The respondent blew an alert and was promptly administered a seven-daylicense suspension to begin that day.

On that evening, the Constable took steps to confirm the identity of the driver, issued a drivinglicense suspension, took the respondent’s license, and having his vehicle towed. The officer testified this was a 20 to 30-minute process.This involved completing paperwork and explaining both the suspension and resultant paperwork to the respondent. [22] It was June 30, 2016, four days later, that the Constable says he observed the same vehicle as he saw on June 26, 2016. Thisvehicle is described as distinctive.

It is described as a large Dodge Ram Big Horn edition, all black with the license plate “Big Boss”. [23] The Crown maintains that the Justice of the Peace erred because she characterized this as an identification case and did notconsider the fact that the officer and respondent were in contact for 20 to 30 minutes four days earlier. [24] I am unable to agree with this submission. [25] This circumstance is much different than the circumstances present in R. v. Downey, supra. The evening of June 26, 2016,was the first time the Constable and the respondent met.

They met in the evening, an alert was administered, paperwork was completed,and an explanation of the suspension given to the respondent. In total, the interaction or time spent by the Constable in the presence of,and interacting with, the respondent was between 20 and 30 minutes. This is in contrast to R. v. Downey, supra, where the familiarity ofthe female complainant with the accused was described as follows: 14 While on intruder identified later as ES rifled through the drawers in the bedroom, Ms. MacLean tried to convince the intruders toleave. She told them they would all be caught.

The gunman said something to the effect: “Who’s going to snitch on us?” He then said noone would snitch on them because they were all going to die. Ms. MacLean began “freaking out”. The gunman then told Z and DB toturn off the lights. Ms. MacLean freaked out even more, and they turned the lights back on whereupon the gunman fired nine shots froma .22 calibre snub-nosed revolver. All three of the occupants were struck by bullets. Ms. MacLean’s spine was severed by one bullet andshe was paralyzed. 16 Logan Starr raced to the phone to call 9-1-1. The police and medical assistance arrived promptly.

Paramedics were able tostabilize Ms. MacLean and rush her to hospital. It was undisputed that without this treatment she may have died. A police officeraccompanied her in the ambulance. When asked by the officer if she knew who shot her, Ms. MacLean at first said she did not know.After a few minutes she told the police offer it was “Baby Jason”. When the officer asked her if she knew his real name, Ms. MacLeanreplied: “Jason Downey. It’s Z’s……..”.

Later, she repeated this to the officer, saying “Jason Downey is the one who shot me.” Theofficer immediately relayed this information to other police units at the scene. 17 At trial Ms. MacLean indicated that there is a “no snitching” mentality in her generation, but that she ultimately chose to tell theofficer in the ambulance who the shooter was so her Mom would know. Despite the fact that part of their faces were covered, Ms.MacLean said she knew the four assailants having once gone to school with them all.

She said she recognized the respondent as soon asshe saw him come into the bedroom. 26 Ashley MacLean testified she had known Markel Jason Downey since they were in Grade 10. They were familiar enough thatshe knew him as “Baby Jason” and he called her his “Home Girl”. She described them as acquaintances – they saw each other regularlyat school, had small talk under the stairwell, and often saw each other when they lived ____ from one another, some five months before

the home invasion (exact location omitted for statutory reasons). She said she knew the respondent well enough that he would often take off his hat and put it on her head when they were at school. 27 In Grade 11 they shared Phys-Ed class together. Ms. MacLean said she dropped out of that class because of a “heated” dispute she had had with the respondent. They were “at each other’s throats” all the time. She explained that they reconciled once she became friendly with the respondent’s ____, Z, and that they began to talk more as friends.

She said Z called her his “wifey”. 28 In the year leading up to the home invasion Ms. MacLean was working regularly and not often attending school. However, she said that when she was at school visiting friends she would still see the respondent and they would engage in small talk. She would often see the respondent and his friends playing basketball at a neighbour’s house. 29 Ms. MacLean testified that she was able to identify all four intruders the “exact second they walked into the bedroom”.

With regards to the respondent, Jason Downey, she said he was standing about six feet away, right in front of the bed and holding a gun in his right hand. She said she knew it was him before he even started speaking. She told him there wasn’t any reason to shoot, that they didn’t have anything in the house, but that they could take whatever they wanted and just leave them alone. She said the respondent was the only one who spoke.

She testified he said: Who’s this white girl trying to tell me to leave? and that when she shouted there was no reason to shoot them, and they could get caught for it, the respondent replied: How am I going to get caught … Nobody’s going to get caught because none of you guys are going to make it out of here alive. 32 Ms. MacLean said she was “100 percent positive” in identifying ES, Z, DB and Markel Jason Downey as the four intruders and Markel Downey as being the man who shot her. When asked whether there was anything distinct about the respondent’s voice, Ms.

MacLean said: It's not really distinct, it's just I'm so used to hearing -- like, hearing his voice, that I just knew it by sound. Kind of like anybody else's voice. Nobody sounds the exact same, everybody has a different kind of voice, so I can't really tell you the distinction. I would just say that I know his voice from my recollection of all the times that I have talked to him, so it wasn't hard to know it was him the second he started speaking. 33 Later, in her direct examination, Ms. MacLean was asked by Crown counsel: Q.

Was there anything about the content of the conversation you had with the shooter that made you think – led you to know or think you know who you’re talking to? A. It wasn’t really about what we were talking about, it was just more I recognized his voice from all the other times I talked to him, so it’s like I don’t really see anybody else sounding exactly like him. So when I was talking to him, I did recognize his voice from previous conversations I’ve had with him in the past. 34 When asked whether there was anything distinguishing about the respondent’s eyes, Ms. MacLean testified: A.

He kind of reminds me of a pit bull, so I don't know, just kind of like, when I look at him and stuff, it's just he, like -- it's kind of hard to explain, but he kind of reminds me of a pit bull when I look at him. So that was a weird, like, explanation, but that's -- that's... Q. That's okay. This is your chance to explain what you mean by that, that's all. A. That's what I mean is, like, that's how I could distinguish him, which is -- that's how I see him, so... [ 26 ] The above is contrasted to the limited and quick opportunity Cst.

Brewer had to interact with the respondent. [ 27 ] In this matter, the Justice of the Peace found the Constable may have identified the distinctive vehicle, but the Crown did not prove the accused’s identity beyond a reasonable doubt. Given the evidence, I am not persuaded that the Justice of the Peace erred. [ 28 ] The circumstances before me are not akin to the circumstances in R. v. Downey , supra . Cst. Brewer did not know the accused in a meaningful way.

He only met the accused on one occasion for a brief period of time. [ 29 ] Also, the Justice of the Peace considered the evidence of the circumstances of the observation of the respondent by Cst. Brewer on June 30, 2016. The observation was for a short period of time, while the vehicles were travelling towards each other. Cst Brewer never said he was certain of the accused’s identification. His evidence was equivocal in this respect. Cst. Brewer testified that the driver of the truck appeared to be the same person. [ 30 ] Cst. Brewer could describe the vehicle with great detail.

When describing the accused he said he had a “darker goatee, like a very thick, dark goatee.” “The driver had dark hair, larger build, dark goatee, appeared to be the same person I had dealt with just previously that week”. The Justice of the Peace found that this, and all the other evidence in relation to identification, did not meet the burden of proof beyond a reasonable doubt. This was a decision based on, and reasonably supported by, the evidence and should not be disturbed. [ 31 ] In addition, there was evidence from the officer that supported the reasonable doubt the Justice of the Peace said she had.

First, on June 30, four days after ordering the driver’s suspension, the officer saw the vehicle, but then said: I observed the same vehicle and appeared to be Mr. Lohnes in the driver’s seat travelling against me and it was the same vehicle, same plate.

[32] Further the Constable stated: A. At that time I called in the non -emergency dispatch to have a member try and locate the vehicle. I could not … the vehicle that datewas not stopped and that person was not identified by a driver’s license but the driver appeared to be the same person that I dealt with theprevious nights. Q. Okay. And how certain would you be that it was the same person? A. I would say almost a hundred percent. [33] The Justice of the Peace was entitled to acquit the respondent based on the evidence and her conclusions.

Time Spent with the Respondent [34] The Crown argues that the Justice of the Peace failed to consider the time the Constable spent with the accused four days priorto the offence in her analysis of identification. [35] I do not accept there is an error found on the record or found in Bowes, J.P’s analysis. In her oral decision, the Justice of thePeace did refer to the fact that the officer had issued a suspension “only four days before”.

Furthermore, she noted, “Constable Brewerstated that he appeared to be the same person that he dealt with days before”. [36] The Justice of the Peace did not fail to take this into account, she concluded that she was left with a reasonable doubt as to theaccused’s identity. Bowes, J.P. stated: Constable Brewer’s evidence, where he testified that it appeared to be somebody similar to the driver and that he was almost certain,although credible, was simply not reliable given the fleeting opportunity to view the driver. [37] The Justice of the Peace’s decision was rooted in the evidence.

The findings of fact were made on the evidence presented attrial and consequently, I will not disturb those findings, which are reasonably supported by the evidence. Fabricated Alibi [38] Lastly, the Crown argues that the Justice of the Peace did not use the fact that the accused fabricated an alibi to consideridentification or ultimate guilt. [39] The law is clear that a court can infer the guilt of an accused when there is a finding that an accused fabricated an alibi. (see R.v. O’Conner, (2002), (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.)). However, such an inference is not mandatory.

TheJustice of the Peace in this case did not do so. The Justice of the Peace concluded that the alleged alibi evidence was “smoke and mirrorsat best”. The Justice of the Peace found the documents entered did not support the accused’s assertion that he was out to sea on the dateof the offence.

The Justice of the Peace also referred to the Crown’s rebuttal evidence of Captain Hann that, at the relevant times, theship was docked in the harbour and not at sea. [40] The Court rejected the accused’s evidence and stated as follows: Hann testified that his ship was dockside during the period surrounding the offence, contrary to what the defendant had asserted. I reject the defendant’s evidence. He was clearly trying to mislead the Court as to his whereabouts on June 30th. Simply put, he was not credible. [41] The Crown went on to comment on the failure of the Crown to prove identity.

The Justice of the Peace could have decidedthat she would infer guilt, but did not do so, concluding that she had a reasonable doubt. I would not interfere with her decision given itwas her choice to make. Insufficiency of Reasons [42] The last reference in the Crown’s brief, insufficiency of reasons, was not a ground of appeal articulated in the Notice ofAppeal. The defence did not oppose the argument being advanced at the hearing and responded to it. [43] This is a matter held before a Justice of the Peace.

The matter took place during several evenings, on October 12, 2017, andApril 18, 2018, with an oral decision rendered June 13, 2018. There were only three witnesses and the transcript for the evidence of allthree witnesses is approximately 69 pages in length. The decision was three pages and gave a succinct overview of the evidence andissues. [44] If this Court required lengthy detailed reasons it would amount to an onerous burden placed upon Justices of the Peace, whoare called upon to deal with several matters a night.

It is unrealistic to require a Justice of the Peace to issue the type of reasonssuggested by the Crown. Here, the Justice of the Peace captured the issues, undertook a W(

D) analysis (R.v. W(D)), (SCC), [1991] 1 S.C.R. 742) and made findings of fact. Her reasons were sufficient in that she articulated clearly why she was reachingthe decision she did. No more is required. Conclusion [45] The Justice of the Peace did not commit a reversable error. For the above reasons, I dismiss the appeal. Brothers, J.