R v Kytwayhat, 2021 SKCA 67

Court of Appeal for Saskatchewan Docket: CACR3366 Citation: R v Kytwayhat , 2021 SKCA 67 Date: 2021-04-20 Between: Rayden Kytwayhat Appellant And Her Majesty the Queen Respondent Before: Caldwell, Schwann and Barrington-Foote JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Madam Justice Schwann The Honourable Mr. Justice Barrington-Foote On appeal from: Provincial Court, Meadow Lake Appeal heard: January 11, 2021 Counsel: Evan Strelioff for the Appellant Pouria Tabrizi-Reardigan for the Respondent Caldwell J.A. I.

INTRODUCTION [ 1 ] Rayden Kytwayhat appeals against his conviction for committing an offence under s. 320.17 of the Criminal Code —flight from peace officer. He and the Crown agree that the sole issue at trial on this charge was identity. [ 2 ] The trial proceeded jointly against Mr. Kytwayhat and his cousin on multiple weapons and vehicle related charges. A Provincial Court judge acquitted Mr. Kytwayhat of all charges except for the charge under s. 320.17. Mr. Kytwayhat appeals on the ground that his conviction is unreasonable and cannot be supported by the evidence. In his argument, Mr.

Kytwayhat asserts that the trial judge erred in two ways: (

a) by failing to properly analyse and instruct himself with respect to the frailties of eyewitness evidence; and (

b) by dismissing the possibility that someone else may have committed the offence in question. [ 3 ] I would dismiss Mr. Kytwayhat’s appeal because the verdict on the s. 320.17 charge is not unreasonable or unsupported by the evidence and, although one of his allegations of error in the trial judge’s assessment of the evidence has been made out, the error did not affect the result. II. STANDARDS OF REVIEW A. Unreasonable verdict [ 4 ] In R v R.D.A. , 2015 SKCA 100 at para 2 , 465 Sask R 313, this Court summarised the standard of appellate review under s. 686(1) (a)(

i) of the Criminal Code with respect to an allegation of unreasonable verdict: Where an accused has alleged an unreasonable verdict, an appellate court may only interfere to set aside the verdict if the appellate court is of the opinion the judge could not reasonably have concluded the accused was guilty beyond a reasonable doubt. Put another way, when asked to set aside a verdict, the appellate court looks to see whether on the whole of the evidence the verdict is one that the judge, acting judicially, could reasonably have rendered: [citations omitted].

To do this, the appellate court must re-examine and to some extent re- weigh and consider the effect of the evidence, but it must not merely substitute its view for that of the trial judge. B.

Errors of fact [ 5 ] In R v Clark , 2005 SCC 2 , [2005] 1 SCR 6, writing for a unanimous Supreme Court, Fish J. reaffirmed the principles of appellate review in circumstances where the appellant has alleged errors in a trial judge’s fact-finding: [9] …Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified.

And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well- established norm … . C. Errors of law

[ 6 ] Where an appellant has alleged an error of law, the standard of review is correctness ( Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235; R v Shepherd , 2009 SCC 35 at para 20 , [2009] 2 SCR 527). D. Errors in the assessment of eyewitness evidence [ 7 ] In R v Bigsky , 2006 SKCA 145 , 289 Sask R 179, Jackson J.A. set out the factors relevant to appellate intervention in a trial judge’s assessment of eyewitness evidence: [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. III. BACKGROUND A. The evidence of identification [ 8 ] In this case, the evidence of identification came from a member of the Royal Canadian Mounted Police [arresting officer] and may be summarised as follows. The arresting officer identified Mr. Kytwayhat as the driver of a truck that had sped away after being pulled over in a highway traffic stop.

The officer said that he had seen Mr. Kytwayhat riding as a passenger in the front seat of that truck a few minutes earlier, in Loon Lake, Saskatchewan [first sighting]. The arresting officer pulled the truck over on his second sighting of it because he was aware of Mr. Kytwayhat’s “warrant status”. Although someone else had been driving the truck when he pulled it over, the driver [Mr. LK] had exited the truck and the arresting officer identified Mr. Kytwayhat as having taken the driver’s seat just before it abruptly sped away [second sighting].

Following a chase involving several police officers through several communities, over several hours, the truck veered off the road near Goodsoil, Saskatchewan, some time after it had struck a spike belt. Mr. Kytwayhat was in the backseat of the truck at that time. The arresting officer arrested Mr. Kytwayhat at that scene. The video recording system in another officer’s vehicle captured the arrest. [ 9 ] Prior to the day in question, the arresting officer had seen Mr.

Kytwayhat’s picture on a “high priority” notice, which had been posted at the Loon Lake RCMP detachment following the receipt by police of “multiple complaints of him with firearms”. The arresting officer also knew Mr. Kytwayhat through “multiple” prior dealings with him. Importantly, the hair on Mr. Kytwayhat’s head was distinctively red when the s. 320.17 offence occurred, and the arresting officer had been aware that Mr. Kytwayhat sometimes dyed his hair red prior to identifying him as the driver. B. Mr. Kytwayhat’s position at trial [ 10 ] Mr. Kytwayhat called no evidence at trial.

In his arguments, he said the arresting officer’s identification of him as the driver was unreliable due to the officer’s short and stressful encounter with him during the roadside traffic stop. Mr. Kytwayhat also challenged the officer’s credibility and the reliability of his testimony because, among other things: (

a) the officer had identified Mr. Kytwayhat by looking through the truck’s rear-view mirror, which Mr. Kytwayhat suggested in argument could have been angled to show another seat in the truck; (

b) the officer’s first two identifications of Mr. Kytwayhat were tainted by confirmation bias; (

c) the officer had initially given the impression of a seamless observation of the truck from his first sighting but admitted on cross-examination that he had lost sight of the truck for a time in Loon Lake; and (

d) the officer is Caucasian and Mr. Kytwayhat is Indigenous, which was said to give rise to an “increased risk of error when dealing with cross-racial identification”, referencing R v MacLellan , 2017 NSSC 307 . C. The trial judge’s decision [ 11 ] Addressing the various criminal charges against Mr. Kytwayhat in his oral reasons, the trial judge first laid out the facts that were not in dispute, the following of which are relevant to identity: At the outset, I think it is helpful to indicate what is not in dispute, and that would include the following.

That these two accused, Rayden Joe Kytwayhat and Brent Evan Kytwayhat were inside a vehicle pursued by police on November 9th, 2019 at various points. So were at least two to three other individuals at different points. There was a significant chase from the Loon Lake area to north of Dorintosh, and then back to Goodsoil. Spike belts were deployed by the police on three different occasions.

At the time, the vehicle was eventually stopped, two individuals fled from the front seat with the first individual identified on Exhibit P-8 as Timothy Crookedneck exiting the front passenger door first, followed by a second individual identified as the accused, Brent Kytwayhat. The video shows another individual, possibly female, exiting the rear passenger door. And the other accused, Rayden Kytwayhat, being pulled from the rear driver’s side door by police.

Rayden Kytwayhat has visibly red hair on the video. … [ 12 ] The trial judge then addressed the evidence relevant to the weapons, theft of motor vehicle and dangerous driving charges against Mr. Kytwayhat. He acquitted Mr. Kytwayhat of those offences, largely on the principles set out in R v Villaroman , 2016 SCC 33 , [2016] 1 SCR 1000. That is, the trial judge found the circumstantial evidence left him with a reasonable doubt as to whether Mr.

Kytwayhat had been in possession of weapons, had not had permission to take the truck, or had been driving the truck in a dangerous manner. [ 13 ] When he turned to the charge that Mr. Kytwayhat had unlawfully evaded the police contrary to s. 320.17 of the Criminal Code , the trial judge confirmed the elements of the offence and stated that “the sole issue is the identification of the driver” at the time the truck left the traffic stop. He summarised Mr.

Kytwayhat’s defence as being that the arresting officer’s identification of him as the driver was “unreliable, and therefore not capable of rising to the level of proof beyond a reasonable doubt”. The trial judge acknowledged that the “frailties of eye-witness identification evidence” was at issue in the trial.

He also instructed himself to “be wary of holding each individual piece of evidence to [the beyond a reasonable doubt] threshold, but rather determine whether on all of the evidence I accept, does the proof rise to the standard [of] beyond a reasonable doubt”. [ 14 ] In assessing the issue of identification in the context of the first sighting, the trial judge considered the arresting officer’s credibility, saying: Here, all of the relevant evidence comes from Constable Fenton. It is possible for a witness, even a police officer, to be credible without being reliable, they are two different things.

Having had an opportunity to assess Constable Fenton’s credibility, I have no concerns in that regard. He was thoughtful in his responses and did not overstate his evidence. The question is whether his evidence is reliable. To answer that question, one must take a closer look at his evidence. [ 15 ] The trial judge then recounted the arresting officer’s testimony in some detail, discussing Mr.

Kytwayhat’s concerns about its reliability, and remarking why he found the officer’s evidence was reliable at each turn. [ 16 ] When examining whether the context of the identification had affected its reliability, the trial judge said: Unlike some of the cases submitted by defence, Constable Fenton had two separate occasions in fairly short order to view the accused. On the first occasion, he was stationary in his vehicle and the accused passed in front of him.

According to the evidence, the speed limit was 40 kilometres per hour, and there is no indication in the evidence that the vehicle was exceeding that speed limit. This was a low stress encounter, as it was a random encounter, unexpected by the officer. Constable Fenton had to look past the driver to see the accused in the passenger seat, and the accused was identified by Fenton in-part by his distinctive red hair he was sporting at that time. It was approximately 5 PM, daylight, and there were no obstructions to the officer’s view.

There is no indication there was any other traffic at the time of this observation. The officer identified both the driver, [Mr. LK], and the accused in the front passenger seat. This initial identification must be assessed in context. The accused, Rayden Kytwayhat, was previously known to the officer. The officer had dealt with the accused before in Loon Lake, and had been stationed in Loon Lake since February of 2018.

The inference being that any previous contacts occurred in the preceding 21 months prior to the offence. [ 17 ] The trial judge also considered it material to the reliability of the arresting officer’s identifications of Mr. Kytwayhat that the officer had “dealt with him” before, both when he had black hair and distinctively dyed red hair, writing: Additionally, the officer testified that he had processed the accused into police custody previously. According to his evidence, he had also dealt with him, on different files, and the accused was a high priority for the detachment.

His face had been put on a poster at the detachment, and police were actively looking for him in connection with an outstanding warrant. The officer testified that Rayden had distinctive red hair at the time, which was dyed, not natural. And that is independently corroborated by the video in Exhibit P-8. The officer had dealt with him when he had both black hair and red hair, according to his evidence. [ 18 ] As to the identification of Mr.

Kytwayhat during the arresting officer’s second encounter with the truck, the trial judge found that the context in which that identification had occurred did not render it unreliable: Against that backdrop, I assess the second encounter, which occurred a very short time later. The officer was able to correctly identify the number of individuals in the vehicle, five, prior to [Mr. LK] being left at the roadside. The video P-8 shows the truck in question had a rear window covering the entirety of the back of the truck, providing a reasonable opportunity to view the interior of the vehicle in daylight conditions.

I am also mindful that this encounter was stationary, with the target vehicle pulled over to the side of the road, creating a better opportunity for viewing. Cross-exam by Mr. Strelioff attempted to elicit that this was a stressful situation for Constable Fenton. But he was clear in his testimony that he had been in this situation before, despite his level of service. On the second encounter, the officer testified that he parked in such a fashion as to create a pocket for safety, and was parked closer to the driving lane than the target vehicle was. It was approximately two car lengths behind the target vehicle.

The driver’s window was down, and the driver’s door was wide open, according to the cross-examination. Constable Fenton could see the rear view mirror. From the angle of observation described by the officer, it is difficult to imagine the reflection would be of the front seat passenger. The officer’s testimony on this point was that Rayden Kytwayhat, “Looked at me, I could clearly see his face, saw his red hair, and with the poster at the detachment, I recognized him from that, as well.” The officer then instructed Rayden to turn off the engine, at which point the accused put it in drive and sped off.

Constable Fenton then got into his patrol car and pursued the accused, before being instructed to discontinue the pursuit. Unlike some of the cases submitted for consideration, for example, R. v. Amofa (phonetic), there was not a span of days between the observation and the identification. Here, everything happened within some two to two and a half hours. Nor is there any discrepancy between Crown witnesses regarding the description of the accused. I am left with the uncontroverted evidence of the officer. [ 19 ] The trial judge did not end his reliability analysis at this point.

Consistent with R v Bigsky , he addressed Mr. Kytwayhat’s specific concerns about reliability by asking himself whether there was any “evidence that casts doubt on the identification”, working

through each of the points raised: Defence suggests the fact that Timothy Crookedneck, some two hours later, exiting the front passenger side of the truck wearing a redtoque should raise a reasonable doubt about what the officer saw during the initial encounter near Loon Lake. First, the[re] is no evidenceTimothy Crookedneck was in the vehicle when first detained by Constable Fenton. Second, the evidence shows there was only two people in the front seat, [Mr. LK] and Rayden Kytwayhat, at both the initial encounter andthe initial detention. All other individuals were in the backseat of the truck.

Third, the video in Exhibit P-8 shows a marked contrast between the red of Crookedneck’s toque, and the distinctive colour and style ofRayden Kytwayhat’s hair. Regarding the defence suggestion that cross-racial profiling should be considered problematic in this case. It is clear from ConstableFenton’s evidence that he had been policing in the Loon Lake area for some 21 months at the time of this event. Additionally, whenconsidering the appearance of both accused in court, and in Exhibit P-8 [i.e., the arrest video], it is clear they do not look anything similarto one another.

Defence also suggested the Court could consider the fact Constable Fenton had failed to mention Rayden Kytwayhat’sfacial tattoo that was evidence in court. Even if I take judicial notice of the accused’s appearance in court at trial, it tells me nothing abouthis appearance on the date of the offence. I have reviewed Exhibit P-8, and—and am unable to clearly discern any facial tattoo in thevideo. Accordingly, I attach little weight to Fenton’s lack of mention of a facial tattoo, as I don’t know when the accused had it applied tohis face.

Argument was also made that Constable Fenton hadn’t made notes about his description of the encounter. Fenton conceded under cross-examination, that he had not made notes at the time, though was equally clear that he had created an occurrence report regarding thematter. It is reasonable to conclude that if the description of Rayden had not been included in the officer’s occurrence report, that line ofquestioning would have been pursued, it was not. Accordingly, this point doesn’t move the needle much one way or the other.

Based on the totality of the evidence, and after careful consideration, I accept the evidence of Constable Fenton regarding theidentification of Rayden Kytwayhat as the operator of the motor vehicle and the salient point in time. Given that all other elements of theoffence are made out on the evidence, I find Rayden Kytwayhat guilty as charged with respect to count 3. IV. ISSUES AND ANALYSIS [20] In his factum, Mr. Kytwayhat says his conviction is unreasonable and cannot be supported by the evidence and then points totwo alleged errors:

i) The trial judge erred by failing to properly analyze and instruct himself with respect to the frailties of the eyewitness evidence ofCst. Fenton. ii) The trial judge erred in fact in dismissing the possibility that an alternate suspect may have driven the red Ford away from thetraffic stop[.] [21] Under the Argument part of his factum, Mr. Kytwayhat expands on the number and detail of the errors allegedly committed bythe trial judge in his handling of the arresting officer’s evidence.

However, at bottom, the issue that underpins this appeal is whether thetrial judge erred in his approach to and reliance on the officer’s evidence of identification. [22] As to his approach, while the trial judge does not cite R v Bigsky in his oral reasons, it is evident that he closely followed thisCourt’s guidance on how a trier of fact should handle eyewitness evidence. For this reason, I find no merit to Mr. Kytwayhat’s assertionthat the trial judge “did not specifically recognize the danger of convicting based on eyewitness evidence alone”.

The transcript of the trialjudge’s oral reasons shows that his entire focus was on addressing the “frailties of eyewitness testimony” and the specific frailty issuesthat Mr. Kytwayhat had raised relating to the reliability of the identification evidence. [23] Moreover, this was not the “fleeting glance” type of circumstance addressed in R v Bigsky, where an eyewitness has brieflyglimpsed an individual previously unknown to them. The arresting officer’s evidence established that he had had previous opportunity toobserve Mr.

Kytwayhat and to become acquainted with his appearance before the offence, including that he sometimes had distinctive redhair. This evidence made the officer’s recognition of Mr. Kytwayhat inherently more reliable than an eyewitness’ identification ofsomeone with whom the witness was previously unacquainted.

When addressing a similar argument from the appellant in R v Bob, 2008BCCA 485, 263 BCAC 42, Neilson J.A. said: [12] The appellant’s argument is based on the well-known frailties of eyewitness identification. [13] The difficulty he faces, however, is that this was a case of recognition, rather than identification. There is a significant differencebetween cases in which a witness is asked to identify a stranger never seen by him before the offence, and cases in which a witnessrecognizes a person previously known to her.

While caution must still be taken to ensure that the evidence is sufficient to prove identity,recognition evidence is generally considered to be more reliable and to carry more weight than identification evidence: R. v. Aburto, 2008BCCA 78; R. v. Bardales (1995), (BC CA), 101 C.C.C. (3d) 289 (B.C.C.A.), aff’d (SCC), [1996] 2S.C.R 461, 107 C.C.C. (3d) 194. See also R v Kulba, 2021 ABCA 11 at para 12; R v Williams, 2019 MBCA 55 at para 4; R v Letendre, 2019 ABCA 179 at para 48, 43MVR (7th) 185; R v Geary, 2010 MBCA 33 at paras 17-18, 251 Man R (2d) 258. [24] Mr.

Kytwayhat also asserts that the trial judge overlooked the “most important” factors in his assessment of the reliability ofthe arresting officer’s evidence of identification. In particular, Mr. Kytwayhat describes the officer’s observation of the driver as being of“a very short duration” or a “fleeting glance” in a “small reflective surface” from a “significant distance” away when the officer’s

“adrenaline was pumping”. [ 25 ] With respect, the trial judge was fully aware of the temporal and physical circumstances of the traffic stop and of the intensity of the situation in which the identification had been made. He found the arresting officer had parked closer to the driving lane and about two car-lengths behind where the truck had stopped, to create a pocket for safety. The trial judge remarked that the driver’s window had been lowered and the driver’s door was wide open and the officer “could see the rear-view mirror”.

The trial judge concluded that the officer had correctly identified the number of individuals in the truck. He observed that the arrest video shows that the truck “had a rear window covering the entirety of the back of the truck, providing a reasonable opportunity to view the interior of the vehicle in daylight conditions”. He was also mindful that the truck was stationary and had been “pulled over to the side of the road, creating a better opportunity for viewing”.

Furthermore, although the arresting officer admitted that it had been a stressful situation, the officer “was clear in his testimony that he had been in this situation before”. In relation to the point when the individual who drove off took the driver’s seat, the trial judge noted the officer had testified that Mr. Kytwayhat had looked at him and that the officer “could clearly see [Mr.

Kytwayhat’s] face” and “his red hair”. [ 26 ] On the whole of it, the trial judge was satisfied that the arresting officer had been in sufficient proximity to the truck and had the knowledge, time, line-of-sight and mental wherewithal necessary to reliably identify the driver who had left the roadside stop. Given the evidence, this conclusion was certainly open to the trial judge. Importantly, his findings in that regard give rise to questions of fact on appeal. [ 27 ] What Mr.

Kytwayhat truly seeks in this Court is a fresh evaluation of the arresting officer’s testimony, hoping that we will arrive at different findings of fact than those made by the trial judge. This is not something we are entitled to do unless and until Mr. Kytwayhat has established that the trial judge made a palpable and overriding error in his assessment of the evidence, i.e., a “plainly identified” error that “affected the result” where the finding of fact is “clearly wrong, unsupported by the evidence or otherwise unreasonable” ( R v Clark at para 9 ). The flaw in Mr.

Kytwayhat’s argument is that he has not pointed to anything that suggests the trial judge’s findings were clearly wrong, unsupported by the evidence or otherwise unreasonable in the circumstances. As such, his argument on this ground cannot be sustained. [ 28 ] Next, Mr. Kytwayhat pivots from the evidence to assert that the trial judge failed to adequately address the risk of confirmation bias and the risk of error in a cross-racial identification. The law recognises that the eyewitness identification of an accused should be treated with caution where it may be the product of confirmation bias.

The law also recognises that cross-racial identification may give rise to a greater risk of error in an identification. However, Mr. Kytwayhat’s contention that these risks were present in this case, and were improperly given short shrift by the trial judge, lacks persuasiveness. [ 29 ] Although Mr. Kytwayhat notes that the arresting officer received after-the-fact information from the original driver of the truck —which verified the officer’s recognition of Mr. Kytwayhat—it was still open to the trial judge to conclude that the officer’s roadside identification was accurate.

A confirmation, on its own, does not merit a finding of confirmation bias. As the trial judge explained, the reliability of the identification rested on the fact the officer had known Mr. Kytwayhat, that Mr. Kytwayhat had a distinctive look about him due to his dyed-red hair, and the contextual circumstances that allowed the officer to observe the individual who had driven away. This, and other evidence the trial judge accepted, was sufficient to support his finding on reliability. [ 30 ] At core, Mr.

Kytwayhat is attempting to plant seeds of doubt about the reasonableness of the conviction through his arguments on confirmation bias and the risk of cross-racial identification, and his proposition that someone else could have been driving the truck. He basically asserts that the trial judge should have, on the whole, held a reasonable doubt about the accuracy of the officer’s identification of him. However, he has failed to establish that the trial judge committed an error of law or made a palpable and overriding error of fact in his assessment of that issue. [ 31 ] Under his argument, Mr.

Kytwayhat says the whole of the officer’s interactions with the truck and its occupants supports the existence of confirmation bias and, because it is possible someone else could have been driving, the trial judge should have had a reasonable doubt about his identification as the driver. This argument is rooted in the first sighting, when the officer thought he saw Mr. Kytwayhat in the truck in Loon Lake. Following this, Mr. Kytwayhat says the officer was predisposed to confirm this first identification of him in all subsequent encounters with the truck.

As such, so the argument goes, when the officer came across the truck a second time, he thought he saw Mr. Kytwayhat in it because he was predisposed to that conclusion by the root identification. Then, after the officer had followed and stopped the truck, he thought he saw Mr. Kytwayhat drive it away because the officer was now further predisposed to that conclusion. Thereafter, the officer received hearsay information, confirming that Mr.

Kytwayhat had been driving the truck when it left the traffic stop—thereby reinforcing his already alleged bias and incorrect identification of him as the driver. [ 32 ] To enhance the allegation of confirmation bias, Mr. Kytwayhat draws in his theory that someone else might have been driving the truck. At trial, Mr. Kytwayhat had attempted to raise doubt about the identity of the driver on the basis that the arresting officer might have confused him with his co-accused cousin or with Timothy Crookedneck, both of whom were in the truck when it came to a stop near Goodsoil.

Important to the second thread of this theory was the fact that Mr. Crookedneck had been wearing a red toque at that time. However, the trial judge adequately addressed both prongs of this theory in his oral reasons. Moreover, Mr. Kytwayhat does not impugn the trial judge’s rejection of his contention that his cousin might have been the driver who left the roadside traffic stop. He does, however, allege error with respect to the rejection of the second prong, i.e., that Mr. Crookedneck might have been the driver. [ 33 ] Mr.

Kytwayhat asserts that the trial judge erred by finding that he had been in the front passenger seat of the truck when the arresting officer stopped it on the highway. This finding came when the trial judge was asking himself whether there was any “evidence that casts doubt on the identification”, under the framework in R v Bigsky , where he gave three reasons for dispelling the reasonableness of the contention that Mr. Crookedneck might have been the driver.

The alleged error of fact arises under the second of these reasons, where the trial judge said: “Second, the evidence shows there was only two people in the front seat, [Mr. LK, i.e., the original driver] and Rayden Kytwayhat, at both the initial encounter and the initial detention ” (emphasis added). [ 34 ] As Mr. Kytwayhat correctly points out, the arresting officer never testified about where the individual who later drove the truck away from the traffic stop had been sitting when the officer initially pulled the truck over, nor was he cross-examined on that point. He did testify, however, that Mr.

Kytwayhat had been in the front passenger-seat when he had first observed the truck in Loon Lake. Since

the trial judge thought this testimony related to both sightings, I agree he erred when finding that Mr. Kytwayhat had been one of two individuals in the front seat of the truck at the roadside traffic stop. [ 35 ] However, I am not persuaded this error affects the result. The trial judge rejected this defence theory for other reasons. He found there was no evidence that Mr. Crookedneck had been in the truck when it was first detained. He noted the marked contrast between the colour of Mr. Crookedneck’s toque and the distinctive color and style of Mr. Kytwayhat’s hair.

Further, and for the reasons explained above, the trial judge concluded that the arresting officer had recognised Mr. Kytwayhat as the driver because he knew him. The contextual evidence, which was unchallenged at trial, satisfied the trial judge that the arresting officer had been in sufficient proximity, had the time, the line-of-sight, the knowledge and mental wherewithal necessary to reliably recognise Mr. Kytwayhat as being the driver of the truck—none of which depends on where he had been sitting. [ 36 ] On the whole of it, I conclude that the error as to where Mr. Kytwayhat had been sitting was immaterial.

There is no reasonable basis to suppose that, if he had not so erred, the trial judge would have found that Mr. Kytwayhat’s theory cast doubt on the officer’s identification of him. [ 37 ] Mr. Kytwayhat now suggests, newly in this appeal, that someone other than Mr. Crookedneck or his cousin, someone who had red hair like himself and who also might have been in the truck, might have taken the driver’s seat at the relevant time. To be clear, this third thread to the alternative-driver theory is not supported by the evidence and it was not put to the trial judge for consideration. Neither Mr.

Kytwayhat nor his cousin testified at trial and neither of them suggested in argument that someone else, regardless of hair colour, might have been in the truck at any relevant point of time. While it was suggested in this appeal that it was possible someone could have gotten out before the truck came to a stop near Goodsoil, that line of reasoning is not supported by the evidence. In fact, trial counsel for Mr.

Kytwayhat’s co-accused characterised the circumstances in her closing submissions in these terms: “upon commencement of the second chase, no passenger in that vehicle would have had a reasonable opportunity to exit.” [ 38 ] While there is a brief gap in the evidentiary timeline, spanning from the time when the arresting officer first saw the truck in Loon Lake to when he picked it up again on the highway outside Loon Lake prior to the roadside stop, I am hard-pressed to assess Mr. Kytwayhat’s newly postulated theory as plausible given the evidence in this case.

Even if someone else could have entered and exited the truck unseen by the police, I am not persuaded that such speculation based on a mere possibility could have raised a reasonable doubt as to Mr. Kytwayhat’s guilt on the s. 320.17 offence. [ 39 ] I say that because, as noted, identification was the only issue at trial.

A theory that it was someone else, for which there is no evidentiary foundation, cannot be expected, when assessed logically and in light of human experience and common sense, to undermine an identification by a witness who has personal knowledge of a distinctively-looking accused in contextual circumstances that allowed the witness to observe and reliably identify the accused at the relevant time. Moreover, what is truly fatal to Mr. Kytwayhat’s appeal is that neither he nor his cousin had advanced at trial the possibility that someone had entered the truck during the interval when it was unobserved by police.

As a consequence, the trial judge did not err by failing to address a theory that had not been put to him and that, in any event, was not supported by the evidence. [ 40 ] In short, Mr. Kytwayhat’s argument on confirmation bias, the general risk of cross-racial identification, and the three conjectures that someone else could have been driving the truck, do not individually or in the aggregate give rise to a reasonable doubt about the accuracy of the officer’s identification of him. I find Mr.

Kytwayhat has failed to establish that the trial judge committed an error of law or made a palpable and overriding error of fact in his handling of the evidence of identification in this case. V. CONCLUSION [ 41 ] The trial judge did not reach an unreasonable verdict or one that is unsupported by the evidence. He was entitled to arrive at the conclusion he did on the evidence before him and, on that footing, it was not unreasonable for him to have found that Mr.

Kytwayhat was the driver of the truck at the relevant time. [ 42 ] As there is no basis upon which to intervene in this matter, I would dismiss the appeal. “Caldwell J.A.” Caldwell J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.