R. v. Williamson, 2015 MBCA 16

Citation: R. v. Williamson, 2015 MBCA 16 Date: 20150204 Docket: AR 14-30-08203 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett BETWEEN : HER MAJESTY THE QUEEN ) K. J. Advent ) for the Appellant Respondent ) ) N. P. Steen ) for the Respondent - and - ) ) ) Appeal heard and KYLE NICHOLAS WILLIAMSON ) Decision pronounced: ) February 2, 2015 (Accused) Appellant ) HAMILTON J.A. (for the Court): [ 1 ] The accused appealed his convictions on two counts of drive while disqualified and one count of flight from the police.

At the appeal hearing, we dismissed his appeal and indicated that brief reasons would follow.

These are those reasons. [ 2 ] The accused’s grounds of appeal were that the verdicts are unreasonable with respect to the identification of the accused as the driver, that the trial judge failed to consider the frailties of identification evidence and that the trial judge’s reasons were inadequate. [ 3 ] The primary issue at trial was whether the Crown had proved beyond a reasonable doubt that the accused, who was prohibited from driving, was the driver of a 1991 black Ford Mustang, who fled from the police after being stopped by two officers patrolling in a police car on what is called “cruise night” in Winnipeg. [ 4 ] At the time of the stop, and just before the car accelerated, one of the officers had a chance to see the male driver when he poked his head out of the driver’s window and asked why he had been stopped.

The officer, at the trial, described the driver as white, clean-shaven, in his mid-twenties and with short, brown hair. The trial judge noted that the officer described his view of the driver as a “fleeting glance.” The other officer saw two people in the Mustang. [ 5 ] Shortly after the driver fled from the stop, the Mustang crashed. When the officers arrived at the scene, the driver’s side door was open, the driver’s seat was empty, and a male was sitting in the passenger seat.

He was described as being a white male with dark hair and brownish facial hair. [ 6 ] Two other officers, who had received the call for assistance, arrested the accused a few blocks from the crash scene. The officer who saw the driver identified the accused as the driver who poked his head out of the Mustang.

At the time of the identification, the accused was sitting in the backseat of a cruiser car. [ 7 ] The time between the initial stop and the identification was about ten minutes. [ 8 ] The accused’s father testified that he owned the Mustang and had given permission to family and friends to drive it, but not the accused. [ 9 ] The accused did not testify.

J.A. J.A. J.A. [ 10 ] The trial judge’s oral reasons are, at times, difficult to follow and are not well organized. However, when they are read in conjunction with the record of the evidence and the submissions of counsel, the foundations of the trial judge’s decision are clearly discernible. See for example R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3; and R. v. Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869. [ 11 ] The trial judge’s numerous references to R. v.

Klyne (C.L.G.) , 2007 MBCA 100 , 220 Man.R. (2d) 35, a case that addresses the dangers in convicting arising from the frailties of identification evidence, demonstrate that he was alive to those dangers and the need to look at the totality of the evidence for support before convicting an accused person on the basis of a “fleeting glance.” In doing so, the trial judge considered the difficulties with the identification raised by counsel for the accused in her submission, including when and how the officers made their notes and how the accused was identified without a photo lineup. [ 12 ] After reviewing all of the evidence, the trial judge found support for the officer’s identification of the accused as the driver from the accused’s nexus to the Mustang through his father, the opportunity of the officer to see the driver during the initial stop, the short time frame between the initial observation and the identification, the close proximity of the place of arrest to the crash site, and the fact that the description of the passenger was different from the description of the driver.

As a result, he was satisfied beyond a reasonable doubt that the accused was the driver. [ 13 ] The trial judge properly instructed himself with respect to the frailties of identification evidence and the accused has not demonstrated that the verdicts are unreasonable because the evidence did not support the trial judge’s finding that the Crown had proved beyond a reasonable doubt that the accused was the driver. As well, the trial judge’s reasons meet the test of adequacy. [ 14 ] For these reasons, we dismissed the accused’s appeal.