Her Majesty the Queen v. Knox
[Indexed as: R. v. Knox]
80 O.R. (3d) 515
Court of Appeal for Ontario,
McMurtry C.J.O., Laskin and Lang JJ.A.
May 19, 2006
Charter of Rights and Freedoms — Fundamental justice — Full answer and defence — Disclosure — Accused being convicted of offences arising out of flight from police in stolen car and crashing car into police vehicle — Identification of driver of car being central issue at trial — Police not checking stolen vehicle for fingerprints or photographing it before it was destroyed and not giving defence opportunity to examine police cruiser before it was repaired — Accused’s right to make full answer and defence being violated by police failure to preserve both cars for defence examination — Canadian Charter of Rights and Freedoms, s. 7.
Charter of Rights and Freedoms — Remedies — Stay of proceedings — Accused being convicted of offences arising out of flight from police in stolen car and crashing car into police vehicle — Identification of driver [page516] of car being central issue at trial — Accused’s right to make full answer and defence being violated by police failure to preserve both cars for defence examination — Photographs of police car showing damage entered into evidence — Defence not asking to examine cars until after first trial nearly one year after offence — Reasonable for trial judge to conclude that defence failure to exercise reasonable diligence being based on tactical considerations — Stay of proceedings not being appropriate remedy — Canadian Charter of Rights and Freedoms, ss. 7, 24(1).
Criminal law — Sentencing — Aboriginal accused with lengthy criminal record being convicted of six offences arising out of flight from police in stolen car — Trial judge sentencing accused to 31 months’ imprisonment in addition to 14 1/2 months of pre-trial custody — Appeal from sentence dismissed.
Criminal law — Trial — Charge to jury — Evidence — Identification evidence — Police officer who identified accused at trial having observed accused very briefly and under very difficult circumstances — Trial judge instructing jury appropriately on frailties of eyewitness identification but erroneously implying that officer’s certainty about his identification of accused increased reliability of that identification — Error not undermining reliability of conviction — Appeal from conviction dismissed.
The driver of a stolen Intrepid led the police on a high speed chase before crashing into police officer B’s vehicle and running away. Before the chase started, B opened the driver’s door of the Intrepid and got a brief look at the driver, but was hit by the door and then dragged along by the car as it reversed. The car ran over his leg. The accused was found near the spot where the Intrepid was abandoned. He denied being the driver of the Intrepid. He was charged with assaulting a police officer, dangerous driving, flight from police, failing to stop at the scene of an accident and possession of stolen property. Identification was the main issue at trial. B was the only witness to give identification evidence. The Intrepid was never tested for fingerprints or photographed, and at some point was destroyed. B’s police cruiser was repaired and replaced.
Neither vehicle was examined by the defence. The accused’s first trial ended with a hung jury. At the first trial the accused did not seek a stay of proceedings based on the failure to preserve the evidence. He preferred to argue to the jury that the destruction of the car he was alleged to have been driving, without having first fingerprinted it, showed that the Crown had failed to prove his identity as the driver beyond a reasonable doubt. At the beginning of his second trial, he brought a motion to stay the charges because of the lost evidence (the two cars). The motion was dismissed and the jury
found the accused guilty on all counts. The trial judge sentenced the accused to 31 months’ imprisonment, in addition to 14 1/2 months of pre-trial custody. The accused appealed his conviction and his sentence.
Held, the appeal should be dismissed.
The Crown had an obligation to disclose all relevant evidence in its possession to the defence. Where the Crown has an obligation to disclose evidence to the defence, it has an obligation to preserve that evidence. If the evidence is later lost because of the Crown’s unacceptable negligence, or the Crown cannot satisfactorily explain why the evidence was not preserved, then the Crown has breached its disclosure obligation, and has breached the accused’s right under s. 7 of the Canadian Charter of Rights and Freedoms to make full answer and defence. The lost cars, especially the Intrepid, were relevant and potentially useful to the defence. [page517] As the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police. Here, the evidence was highly relevant. The Crown failed to give a satisfactory explanation for its failure to take reasonable steps to preserve the evidence. The police officer explained that he didn’t think it was necessary to fingerprint the vehicle that crashed into the police car as he felt certain that his identification of the accused as the driver was correct. This reflects tunnel vision and a failure to appreciate the Crown’s disclosure obligations.
The accused’s s. 7 right to make full answer and defence was violated.
A stay of proceedings was not an appropriate remedy for the Charter violation. The integrity of the justice system had not been irreparably harmed. The Crown did not intentionally permit the cars to be destroyed, and nothing in the record suggested a systemic disregard for the prosecution’s obligation to preserve relevant evidence. Nor did the destruction of the evidence irreparably prejudice the accused’s ability to defend himself. The accused did not act with reasonable diligence in seeking to examine the cars. Rather, he apparently made a deliberate
decision at his first trial not to examine either car. A tactical decision not to seek disclosure will generally make a court unsympathetic to a plea that the Crown’s failure to disclose caused irreparable prejudice. Furthermore, defence counsel’s cross-examination on the lost evidence, her closing comments to the jury and the trial judge’s instruction to the jury went a long way towards offsetting any prejudice to the defence flowing from the Crown’s failure to preserve the evidence.
The trial judge gave a lengthy instruction to the jury on how to assess B’s identification evidence. He cautioned the jury appropriately about the danger of honest mistake in eyewitness identification. However, he erred in inviting the jury to conclude that B’s certainty about his identification of the accused increased the reliability of that identification.
Instead, he ought to have explained the dubious relationship between the certainty of a witness’ eyewitness identification and the accuracy of that identification. However, the problematic passage was a small part of a long and otherwise correct charge on identification. The jury would have readily appreciated the main concerns about B’s identification: he saw the driver briefly and in difficult circumstances. Even if the impugned part of the charge amounted to legal error, the error occasioned no miscarriage of justice because there was considerable circumstantial evidence implicating the accused.
While certain remarks by Crown counsel in his closing address to the jury were close to the line, the Crown did not breach s. 4(6) of the Canada Evidence Act, R.S.C. 1985, c. C-5 (which precludes a Crown from commenting on an accused’s failure to testify) and did not improperly refer to the accused’s failure to give a statement to the police.
The trial judge took into account the accused’s aboriginal status when determining the appropriate sentence. The sentence was supported by the accused’s lengthy criminal record and the need to deter and denounce this kind of conduct toward the police.
Cases referred to
R. v. La, [1997] 2 S.C.R. 680, [1997] S.C.J. No. 30, 51 Alta.
L.R. (3d) 181, 148 D.L.R. (4th) 608, 213 N.R. 1, [1997] 8
W.W.R. 1, 44 C.R.R. (2d) 262, 116 C.C.C. (3d) 97, 8 C.R. (5th)
155; R. v. Stinchcombe, [1991] 3 S.C.R. 326, [1991] S.C.J. No.
83, 83 Alta. L.R. (2d) 193, 130 N.R. 277, [1992] 1 W.W.R. 97,
18 C.R.R. (2d) 210, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277, apld
R. v. Bero, [2000] O.J. No. 4199, 79 C.R.R. (2d) 83, 151 C.C.C.
(3d) 545, 39 C.R. (5th) 291, 12 M.V.R. (4th) 169 (C.A.), consd [page518]
Other cases referred to
R. v. Dixon, [1998] 1 S.C.R. 244, [1998] S.C.J. No. 17, 166
N.S.R. (2d) 241, 222 N.R. 243, 498 A.P.R. 241, 50 C.R.R. (2d)
108, 122 C.C.C. (3d) 1, 13 C.R. (5th) 217; R. v. Dulude,
[2004] O.J. No. 3576, 122 C.R.R. (2d) 165, 189 C.C.C. (3d) 18
(C.A.); R. v. Potvin, [1989] 1 S.C.R. 525, [1989] S.C.J. No.
24, 93 N.R. 42, 42 C.R.R. 44, 47 C.C.C. (3d) 289, 68 C.R. (3d) 193
Statutes referred to
Canada Evidence Act, R.S.C. 1985, c. C-5, s. 4(6) Canadian Charter of Rights and Freedoms, ss. 7, 24(1)
Criminal Code, R.S.C. 1985, c. C-46, ss. 249(1)(a), 249.1, 252,
270(1)(a), 354(1)(a), 686(1)(b)(iii)
APPEAL by the accused from a conviction entered on January 13, 2004 and a sentence imposed on January 29, 2004 by J.R. MacKinnon J. of the Superior Court of Justice.
Alison Wheeler, for respondent. Brigitte Gratl, for appellant.
The judgment of the court was delivered by LASKIN J.A.: —
A. Introduction
[1] On a Saturday night in November 2002, a man driving a stolen Chrysler Intrepid ran into a van at an Ontario Provincial Police RIDE program checkpoint in Peterborough. Constable Blackman rushed over to the Intrepid and opened the driver’s door. He was hit by the door, and then dragged along by the car as it reversed. He fell and the car drove over his leg.
[2] The Intrepid sped away from the checkpoint and led the police on a high-speed chase until they gave up. During the chase, the Intrepid hit Constable Blackman’s car, spinning it into a ditch. Soon after the chase ended, the police found the Intrepid in a ditch in a rural area. The appellant was found nearby and arrested.
[3] The police charged the appellant with six offences under the Criminal Code, R.S.C. 1985, c. C-46:
— assaulting a police officer (s. 270(1)(a));
— dangerous driving (s. 249(1)(a));
— failing to stop when pursued by police (s. 249.1);
— failing to stop at the scene of an accident involving another person (s. 252); [page519]
— failing to stop at the scene of an accident involving another vehicle (s. 252);
— possession of stolen property over $5,000 (s. 354(1)(a)).
[4] On arrest, the appellant denied being the driver of the Intrepid. Identification was the main issue at trial. Constable Blackman was the only witness to give identification evidence.
[5] The Intrepid was towed to an auto-wrecker’s and, at some point, destroyed. It was never tested for fingerprints nor photographed. Constable Blackman’s police cruiser was repaired and replaced. It was photographed but not examined by the defence.
[6] The appellant’s first trial ended with a hung jury. At the beginning of his second trial, in January 2004, he brought a motion to stay the charges because of the lost evidence (the two cars). The trial judge dismissed the motion. The jury found the appellant guilty on all six counts. The trial judge sentenced him to 31 months’ imprisonment, in addition to the 14 1/2 months of pre-trial custody that he had already served.
[7] The appellant appeals both his conviction and his sentence. He raised numerous grounds of appeal against conviction, but his three main grounds were:
1.The trial judge erred in refusing to grant a stay of proceedings because of the lost evidence.
2.The trial judge erred in instructing the jury on how to evaluate Constable Blackman’s eyewitness identification.
3. The Crown’s closing jury address was improper.
The appellant also submitted that his sentence, which effectively amounted to five years’ imprisonment, was excessive. I would dismiss both the conviction appeal and the sentence appeal.
B. Overview of the Facts
a. Theft of the Chrysler Intrepid
[8] On Saturday morning, November 16, 2002, Terry Huffman, a retired teacher, left his car running outside Tim Horton’s in Peterborough. The car was stolen. Mr. Huffman reported the theft to the police.
b. The RIDE program
[9] That evening, the O.P.P. set up a RIDE (Reduce Impaired Drivers Everywhere) program on the ramp of the Peterborough [page520] bypass leading to Highway 7 eastbound. The area was well lit. The weather was cold and windy. At the RIDE stop were four unmarked police cars, each with its emergency rear lights on. One of the police cars belonged to Constable Blackman.
[10] The police were stopping all cars. Just after 10:00 p.m., a Dodge Caravan approached the RIDE stop, followed by a Chrysler Intrepid. The van stopped, and another officer went to deal with the driver.
[11] Constable Blackman went to direct the Intrepid. He was wearing an orange reflective vest with the word “Police” on its front and back. As the Intrepid approached the RIDE checkpoint, it slowed to 10 to 15 kilometres per hour. But it did not stop. Constable Blackman yelled, “Stop,” but the Intrepid drove into the back of the van.
[12] Because of the driver’s dazed appearance and his conduct, Constable Blackman thought he might be alcohol- impaired. He rushed over to the Intrepid, opened the driver’s door, and was immediately hit by the door as the car reversed. Constable Blackman tried to hang onto the door but he lost his footing. As he hit the ground, the Intrepid drove over his left leg, and he fell into the ditch. The Intrepid accelerated down the ramp, going backwards to the west on the eastbound ramp.
c. Constable Blackman’s identification of the appellant
[13] Constable Blackman estimated that the entire incident — from the time he first saw the driver until he lost his balance and fell into the ditch — took ten seconds. He testified that when the Intrepid came about five metres away from him, the overhead lighting allowed him to see into the car and he got a “good look” at the driver. He got a second look at the driver when he opened the door and the interior light came on. As the car moved backwards, he and the driver were looking directly at each other. Constable Blackman noticed that the driver was wearing jeans. When arrested later that night, the appellant was wearing faded tan green pants made of a jean material.
[14] Although Constable Blackman did not know the appellant before the incident, he testified that his memories of what occurred were very good, and that he had no doubt the appellant was the driver of the Intrepid.
d. The police chase
[15] Two other officers pursued the Intrepid right away with lights and sirens on. A few minutes later, Constable Blackman joined the chase. One of the other officers got the licence plate [page521] number of the car, which matched that of Mr. Huffman’s stolen Chrysler Intrepid. Constable Blackman radioed in a description of the driver.
[16] The cars reached speeds of 150 to 160 kilometres an hour on Highway 115. The Intrepid was being driven erratically. When the chase went south, road conditions worsened as the weather turned into a combination of snow, rain and freezing rain. The car speeds eventually dropped to about 80 kilometres an hour. Constable Blackman overtook the Intrepid to attempt a “rolling block”. However, the Intrepid drove into the left rear corner of Constable Blackman’s cruiser so powerfully that the cruiser spun around and eventually skidded into the ditch. After hitting Constable Blackman’s car, the driver of the Intrepid accelerated to 180 kilometres an hour and turned off the car lights. The police immediately terminated the chase as it had become too dangerous.
e. The appellant’s arrest
[17] Seven minutes later, near where the police stopped their chase, they found the Intrepid facing the wrong way in a ditch. No one was in or around the car.
[18] About ten minutes later, in a farm field about 300 metres away from where the Intrepid was found in a ditch, two officers saw a man, who turned out to be the appellant, peeking out from behind a garage. When one of the officers yelled “Stop, police”, the appellant started running. Within a few minutes, the two officers caught up with the appellant and arrested him. No one else was in the vicinity.
[19] The appellant was placed in a police cruiser. Constable Blackman went over to the cruiser and smelled a strong odour of marijuana. The appellant appeared to be under the influence of a drug. Constable Blackman said to him, “I’m the officer you ran over in Peterborough.” The appellant replied, “I don’t know what you’re talking about. I seen all the cop cars around so I ran because of the drugs.” The police seized eight grams of marijuana from the appellant.
f. The stolen Intrepid and Constable Blackman’s police cruiser
[20] Although the appellant was fingerprinted, the Intrepid was not tested for fingerprints. Constable Blackman testified that fingerprinting the Intrepid would have been redundant because he was satisfied that the appellant was the driver. He said that he would have fingerprinted the car had he not been 100 per cent sure of his identification. [page522]
[21] The morning after the incident, Constable Blackman was told that the Intrepid had been towed to a towing compound. He never went to look at the car. Two days later, however, Mr. Huffman went to retrieve his personal items from the car. By then, the Intrepid was at an Oshawa auto-wrecker’s yard. Mr. Huffman noticed a number of items in the car that did not belong to him or to his family. Eventually, the Intrepid was destroyed.
[22] Numerous photographs of Constable Blackman’s police cruiser were entered into evidence. Some of the photographs showed damage to the cruiser. However, the cruiser itself was never forensically examined and, by the time of trial, it had been repaired and replaced.
C. Conviction Appeal
First Issue: Did the trial judge err in refusing to grant a stay of proceedings because of lost evidence?
[23] The appellant submits that the trial judge should have stayed the charges against him because two pieces of evidence, potentially useful to the defence, were destroyed or lost. One piece of evidence was the stolen Intrepid, which was destroyed by the auto-wreckers before it was forensically tested for fingerprints or other evidence that may have pointed to the identity of the driver. The other piece of evidence was Constable Blackman’s police cruiser, which was repaired and replaced before being examined for damage. The trial record is silent on when the Intrepid was destroyed, and on when the police cruiser was replaced.
[24] The appellant brought a motion for a stay at the beginning of the trial, and the trial judge ruled on the motion immediately. He dismissed it. He concluded that the defence had not diligently pursued disclosure of the evidence concerning the cars; indeed, it had not sought to examine either car until after the first trial ended. The trial judge also concluded that the missing evidence did not prejudice the accused and therefore did not impair his right to make full answer and defence:
In my view, in this case, the police did not destroy or lose the applicant’s vehicle [See Note 1 below]. Mr. Knox was in a position from day one, in November of 2002, to have the inspection performed. This is his Application and his onus.
Only now, at the start of the second trial, assisted with the same counsel as at trial number one does he first bring an Application for a stay. Only now, after trial number one is completed and a hung jury resulted on the same issue of identification, that I am told by defence counsel that it is asserted by a [page523] defence at this trial was this Application be brought. There is no admissible evidence, I hold, as to what happened to the Chrysler Intrepid vehicle and no evidence as to when it was dismantled. The police and the Crown are not entitled to guess at which evidence may be relevant to the defence. The Crown must err on the side of inclusion but need not produce clearly irrelevant evidence. Here, counsel remained passive on the issue for tactical reasons and did not, I find, exercise reasonable diligence in pursuing disclosure. At no time until almost one year later after the hung jury trial ended did Mr. Knox first seek the disclosure and bring the potential relevance of this evidence to the attention of, first the Crown, and now the court.
No prejudice to the accused, I find, has been established. There is no air of reality to the assertion now made by counsel for the accused that the missing evidence would, in fact, assist the accused or that it would result in the impairment of his right to make full answer and defence. The absence of the evidence has not deprived the accused of any fair trial. There is no Charter breach found on a balance of probabilities and no remedy is ordered.
[25] In her able and candid submissions on behalf of the Crown, Ms. Wheeler acknowledged two problems with the trial judge’s ruling: one its timing, the other its substance.
[26] First, timing. The inappropriateness of a stay was not obvious. Thus, the trial judge should not have ruled on it at the beginning of the trial. Instead, he should have reserved on the motion and heard the evidence so that he could better evaluate the prejudice to the defence caused by the lost evidence. See R. v. Bero, [2000] O.J. No. 4199, 151 C.C.C. (3d) 545 (C.A.), at para. 18.
[27] Second, substance. The Crown has fairly conceded that the police’s failure to preserve the cars for the defence’s examination breached the appellant’s constitutional right to make full answer and defence. I accept that concession. Thus, the trial judge erred in holding that the accused’s right to make full answer and defence was not impaired.
[28] The relevant principles come from Sopinka J.’s judgment in R. v. La, [1997] 2 S.C.R. 680, [1997] S.C.J. No. 30, 116 C.C.C. (3d) 97, at p. 691 S.C.R., p. 107 C.C.C. The Crown had an obligation to disclose all relevant evidence in its possession to the defence. Where the Crown has an obligation to disclose evidence to the defence, it has an obligation to preserve that evidence. If the evidence is later lost because of the Crown’s “unacceptable negligence”, or the Crown cannot satisfactorily explain why the evidence was not preserved, then the Crown has breached its disclosure obligation; and correspondingly, it has breached the accused’s constitutional right under s. 7 of the Canadian Charter of Rights and Freedoms to make full answer and defence.
[29] Admittedly, cases may arise where, to paraphrase the words of Doherty J.A. in Bero, supra, at para. 29, the defence’s failure to pursue disclosure with reasonable diligence may weigh against a claim that the Crown’s failure to preserve evidence [page524] resulted in a breach of an accused’s Charter rights. In this case, however, as I have said, the Crown has conceded a s. 7 breach. The lost cars, especially the Intrepid, were relevant and potentially useful to the defence. Sopinka J. commented in La, supra, at p. 691 S.C.R., p. 107 C.C.C., that, “as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police”. Here, the evidence was highly relevant
[30] The Crown and its agents, therefore, were obliged to take reasonable steps to preserve the cars for a reasonable time and to make them available for the defence’s examination. At a minimum, before permitting the Intrepid to be destroyed and the police cruiser to be repaired, the Crown had an obligation to so notify the defence. The Crown breached these obligations and its explanation for doing so was unsatisfactory. Constable Blackman did not try to preserve the evidence because he was “one hundred percent” certain that the appellant was the driver. In his mind, testing the Intrepid was unnecessary. The Constable’s explanation, unfortunately, not only reflects tunnel vision, but as well, a failure to appreciate the Crown’s disclosure obligation under R. v. Stinchcombe (No. 1), [1991] 3 S.C.R. 326, [1991] S.C.J. No. 83.
[31] The appellant did not argue that the Crown’s breach of its disclosure obligation was an abuse of process. Quite properly, the appellant has not suggested that the Crown deliberately permitted the destruction of the evidence. However, the Crown has not given a satisfactory explanation for its failure to take reasonable steps to preserve the evidence. Contrary to the ruling of the trial judge, the appellant has established a breach of his s. 7 right to make full answer and defence.
[32] Thus, on this ground of appeal, the crucial question is the appropriate remedy under s. 24(1) of the Charter. The appellant does not ask for a new trial; he asks for a stay. A stay, of course, is rarely granted because of the societal interest in a verdict on the merits. To warrant a stay, the appellant must meet the “clearest of cases” standard. Ordinarily a stay because of the Crown’s failure to disclose relevant evidence is justified only if the non-disclosure either irreparably prejudiced the accused’s ability to make full answer and defence or irreparably harmed the integrity of the administration of justice. See R. v. Dulude, [2004] O.J. No. 3576, 189 C.C.C. (3d) 18 (C.A.), at para. 36; and Bero, at para. 42.
[33] In this case, the integrity of the justice system has not been irreparably harmed. The Crown did not intentionally permit the cars to be destroyed, and nothing in the record suggests that Constable Blackman’s explanation reflected a “systemic disregard for the prosecution’s obligation to preserve relevant evidence”. See Bero, supra, at para. 45. [page525]
[34] Nor, in my view, did the destruction of the evidence irreparably prejudice the appellant’s ability to defend himself. I say that for two reasons. First, as the trial judge pointed out, the appellant did not act with reasonable diligence in seeking to examine the cars. Quite the opposite. He appears to have made a deliberate decision at his first trial not to examine either car. Second, defence counsel’s cross-examination on the lost evidence, her closing comments to the jury and the trial judge’s instruction to the jury went a long way towards offsetting any prejudice to the defence flowing from the Crown’s failure to preserve the evidence.
[35] The appellant did not ask to examine either of the lost cars until nearly a year after the incident leading to his arrest. Yet the appellant retained counsel the night of the incident, November 16, 2002, and that counsel has acted for him throughout both trials. Thus, the appellant knew from the beginning that forensic testing of the Intrepid might shed light on the identity of the driver on the night in question. But he did not ask to examine the car until after the first trial had ended in a hung jury. Instead, during the first trial, the appellant apparently decided not to raise the issue of the lost evidence. In her submission on the stay application, the appellant’s counsel seemed to concede that the decision was deliberate:
MS. GRATL: The defence up until the first trial was awaiting what would be revealed throughout the trial and made no issue with respect to the vehicle up until then. However, during . . . .
[36] One might reasonably infer that the appellant did not really want to examine the Intrepid. He preferred to be able to say to the jury that, because it was missing and had not been tested for fingerprints, the Crown could not prove the identity of the driver beyond a reasonable doubt.
[37] The defence then changed strategy. In October 2003, after the first trial had ended, and 11 months after the incident, the appellant asked to examine the cars. By then, the Intrepid had been destroyed, although, as I have said, the date that happened is not disclosed in the record. By then, as well, Blackman’s police cruiser had been repaired and replaced.
[38] It seems to me that the trial judge was correct in finding that the defence had not exercised reasonable diligence and had not done so for tactical reasons. A tactical decision not to seek disclosure will generally make a court unsympathetic to a plea that the Crown’s failure to disclose caused irreparable prejudice. Here, the defence’s lack of diligence and its tactics refute any notion that the Crown’s failure to preserve the evidence irreparably [page526] prejudiced the accused. See R. v. Dixon, [1998] 1 S.C.R. 244, [1998] S.C.J. No. 17, 122 C.C.C. (3d) 1, at paras. 37-39. The appellant must shoulder the consequences of his own conduct. As Ms. Wheeler fairly pointed out, to grant a stay would reward the appellant for lying in wait.
[39] This case may usefully be compared with Bero, supra. The facts in Bero were similar to the facts in this case, and the argument for a stay far more compelling than the argument in this case. Yet, in Bero, this court refused to stay the proceedings.
[40] In Bero, the accused was charged with dangerous driving. Soon after the accident, the Crown decided it no longer needed the car involved in the incident for its purposes and allowed it to be destroyed. As in this case, the principal issue at trial was the identity of the driver. The lost car had been photographed but never tested for fingerprints. Unlike this case, in Bero the defence had pursued disclosure with reasonable diligence and the Crown’s conduct amounted to an abuse of process. Nonetheless, this court refused a stay. Doherty J.A., writing for the panel, concluded that a new trial at which the defence could raise the effect of the lost evidence was an adequate remedy. If a stay was not an appropriate remedy in Bero, I cannot see how it could be an appropriate remedy in this case.
[41] Moreover, a stay was not needed in this case because the trial judge’s conduct of the trial remedied any prejudice arising from the lost evidence. What forensic testing of the Intrepid might have shown is not known. Fingerprinting may well have been inculpatory, not exculpatory. This much the defence conceded. Therefore, this was not a case where one could say that forensic testing would likely have led to an acquittal. We simply do not know where, if anywhere, it would have led.
[42] In these circumstances, the appellant was given a fair opportunity to put before the jury as favourable a gloss as he could on the missing evidence. His counsel was permitted to cross-examine the police officers on their failure to preserve the evidence. In her closing jury address, she encouraged the jury to conclude that the police’s failure to test the Intrepid for fingerprints raised a reasonable doubt on the issue of identification.
[43] Then the trial judge instructed the jury that in weighing the evidence, and deciding whether the Crown had proved its case, the jury was entitled to consider the effect of the lost evidence and Constable Blackman’s explanation for not preserving that evidence:
If you find that the defence’s inability to fingerprint the car has, in fact, been lost or the defence ability has been lost and that the explanation for that unavailability is inadequate, you may find that this evidence would not support [page527] the case for the Crown. The effect of the unavailability of this evidence may have on the obligation of Crown counsel to prove the case against Mr. Knox beyond a reasonable doubt will be for the 11 of you to say. Officer Blackman told the court emphatically that he was a hundred percent sure that Kevin Knox was the driver of the Intrepid vehicle throughout and that it would have been redundant to subject the vehicle to a full fingerprint examination. He saw no reason to photograph.
[44] This instruction was adequate, especially in the light of the defence’s failure to act diligently. Admittedly, the instruction does not model the instruction recommended by Doherty J.A. in Bero, at para. 67:
Where the failure to preserve evidence results in a breach of an accused’s s. 7 rights and where the defence has exercised reasonable diligence in attempting to preserve the evidence. I think the trial judge should also instruct the jury that the Crown was under an obligation to preserve the evidence, and failed to do so, and that the defence cannot be faulted for not gaining access to the evidence before it was destroyed.
[45] However, as I have said, in Bero the defence had acted with reasonable diligence. Therefore, Doherty J.A.’s recommended instruction included both reference to the Crown’s obligation to preserve the evidence and the caution “the defence cannot be faulted for not gaining access to the evidence before it was destroyed”. Here, the trial judge could not tell the jury that the defence could not be faulted for failing to examine the cars. And if he had told the jury about the Crown’s obligation to preserve the evidence, he also would have been obliged to tell the jury about the defence’s failure to act diligently in seeking to examine this evidence. Not surprisingly, the defence did not object to the trial judge’s charge on the lost evidence. I expect the defence, like myself, considered that a reasonably intelligent jury could properly assess for itself the police officer’s self-serving explanation for destroying the car.
[46] The appellant has failed to meet the clearest of cases standard for a stay. I would not give effect to his request for a stay of proceedings based on the lost evidence.
Second Issue: Did the trial judge err in instructing the jury on how to evaluate Constable Blackman’s eyewitness identification?
[47] The only direct evidence that the appellant was the driver of the Intrepid when the incident at the RIDE checkpoint occurred came from Constable Blackman. The Constable was, therefore, an important witness for the prosecution.
[48] However, the context in which Blackman identified the appellant raised these concerns:
— He did not know the appellant before the incident. [page528]
— He saw the appellant only briefly. Blackman testified that the entire incident during which he observed the appellant lasted only ten seconds.
— Blackman made his identification in difficult circumstances. The car door of the Intrepid hit him; he was
dragged along when the car reversed, and then his leg was run over. He acknowledged that his life had never been more in danger.
[49] Nonetheless, Blackman testified that when the Intrepid first came into view, he got a “good look” at the driver, and then got a second look when he opened the car door. He claimed that his memory of the incident was very good, that he had no doubt the appellant was the driver, and that the appellant’s face was “[one] hundred percent burnt into [his] memory.”
[50] The frailties of identification evidence are well established, especially in the kind of context in which Blackman identified the appellant. Equally well established is the trial judge’s duty to alert a jury to the dangers of too readily accepting eyewitness identification testimony, especially of too readily equating the certainty of an eyewitness’s identification evidence with its reliability.
[51] The trial judge did give a lengthy instruction to the jury on how to assess Blackman’s identification evidence. The appellant submits that his instruction was wrong because it invited the jury to conclude that Blackman’s certainty about his identification of the appellant increased the reliability of that identification. I agree that in part of his charge on identification, the trial judge erred as the appellant has contended. However, I am not persuaded that the error undermined the reliability of the conviction or the fairness of the appellant’s trial. If necessary, I would invoke the proviso in s. 686(1)(b)(iii) of the Criminal Code.
[52] In his charge, the trial judge cautioned the jury appropriately about the danger of honest mistake in eyewitness identification, when he told them:
You must be very cautious about relying on eye witness testimony to find an accused person guilty of any criminal offence. In the past, there have been miscarriages of justice. Persons have been wrongly convicted because eye witnesses have made mistakes in identifying the person who they saw committing a crime. Eye witness testimony is an expression by a witness of his or her belief or impression. It is quite possible for an honest witness to make a mistake in identification. Honest people do make mistakes. An apparently convincing witness can be mistaken. So can a number of apparently convincing witnesses.
[53] The trial judge also listed numerous factors the jury should consider when evaluating Blackman’s evidence. These factors included: “the circumstances in which the officer made his observation”; “the officer did not know Mr. Knox before”; “how [page529] long did Officer Blackman watch the person he says is Mr. Knox”; and “how good or bad was the visibility?”
[54] However, in the following part of his instruction, the trial judge seemed to suggest that in their assessment of the reliability of Blackman’s identification, the jury could consider Blackman’s own certainty about his identification of the appellant:
What did Officer Blackman say when he identified the defendant? Did Officer Blackman ever fail to identify the defendant as the person whom he saw driving the Intrepid? Has Officer Blackman ever changed his mind about the identification? Has Officer Blackman ever expressed uncertainty about or questioned his own identification?
[55] Although defence counsel objected to this aspect of the charge, the trial judge declined to re-charge the jury. I agree with the appellant that the passage is problematic. The trial judge should not have suggested to the jury that they could infer reliability from certainty. Instead, he ought to have explained the dubious relationship between the certainty of a witness’s eyewitness identification and the accuracy of that identification.
[56] Still, this passage was but a small part of a long and otherwise correct charge on identification. I expect the jury would have readily appreciated the main concerns about Blackman’s identification: he saw the driver briefly and in difficult circumstances.
[57] Even if the impugned part of the trial judge’s charge amounted to legal error, this error occasioned no miscarriage of justice because there was considerable circumstantial evidence implicating the appellant. The circumstantial evidence included the following:
— The appellant was arrested close to where the Intrepid was found in the ditch.
— The appellant was found on a cold and snowy night in a rural area, 50 kilometres away from his residence in Peterborough.
— No one else was in the area.
— When arrested, the appellant’s clothing matched the description given by Blackman.
[58] I would not give effect to this ground of appeal.
Third Issue: Was the Crown’s closing jury address improper?
[59] The appellant argues that he is entitled to a new trial because of the Crown’s closing jury address. This argument has two branches: the Crown breached s. 4(6) of the Canada Evidence Act, R.S.C. 1985, c. C-5; and the Crown improperly referred to [page530] the appellant’s failure to give a statement to the police. I do not agree with either branch of the appellant’s argument.
[60] The appellant did not testify. Section 4(6) of the Canada Evidence Act precludes a Crown from commenting on an accused’s failure to testify. Crown counsel appeared to run afoul of this statutory prohibition. In the course of telling the jurors that even if they rejected Constable Blackman’s identification evidence they could still convict on the circumstantial evidence of the appellant’s arrest, he said:
The first question is why is Kevin Knox in this field at eleven o’clock at night on this lousy November evening alone? Ladies and gentlemen, this is where the issue of inferences versus wild speculation has to come into play. Well, let’s look at the evidence first and we’ll talk about that. Kevin Knox told Gary Blackman that at that time he was living at the Brock Mission on Brock Street, just right here in this neighbourhood, okay, yet here he is, eleven o’clock at night, he’s in this field by himself and not only is he in this field, but he just happens to be there at the same time within a few hundred metres of the place where this car is ditched. What a coincidence. Now, you might be thinking, “well, gee, how do I know somebody wasn’t around or how do I know a bus didn’t stop and pick up the real driver or how do I know this.” Ladies and gentlemen, any reasonable doubt you have has to be based on the evidence. You’re not allowed to wonder about buses or helicopters or whether he had a house down there. There’s no evidence on it.
Obviously, Mr. Knox has a constitutional right not to testify. He has to prove nothing here. The onus is on the Crown the whole time, but having said that, if he chooses not to testify, then the Crown’s case stands or falls on its own two feet. That is to say, you’re not entitled to speculate.
You’re not entitled to speculate on things which would help convict Mr. Knox, but you’re also not allowed to speculate about things that would help acquit him. A reasonable doubt has to be based on the evidence, so what I mean by that is if we took an example of where somebody — let’s say someone hit a pedestrian in a car and they call evidence and they end the case and the defence were to pop up and say, “well, Your Honour, you can’t convict because we don’t know. Maybe, a deer ran out in front of the driver and maybe that’s what caused the accident.” The law is clear that you can’t do that. The Crown is not — see it’s impossible for the Crown to disprove negatives. I don’t have to disprove beyond a reasonable doubt every possibility that could have happened because while the defence doesn’t have to call evidence, it’s entitled to.
(Emphasis added)
[61] The trial judge ruled that the Crown’s remarks did not breach s. 4(6):
It was strictly and exclusively a comment dealing with the Crown’s urging the jury to deal not with speculation, but with evidence. It did not seek to turn the accused’s silence against him, nor did it breach the real purpose of s. 4(6) which I articulated earlier from Potvin and the Queen. That is that it “was enacted for the protection of an accused against the danger of having his right to testify presented to the jury in such a fashion as to suggest his silence is being used as a cloak for his guilt.” There was no such suggestion made by the Crown in the context that the Crown made the utterance that it did. [page531]
The trial judge did not instruct the jury on the Crown’s comments about the appellant’s right not to testify.
[62] I agree with the trial judge’s ruling. Although stated in absolute terms, the prohibition in s. 4(6) has been interpreted in the light of its purpose — to preclude a Crown from suggesting to the jury that an accused’s silence can be used as evidence of guilt. Although close to the line, the Crown’s remarks did not go so far as to suggest this impermissible use. These remarks certainly would have been better left unsaid, but they did not encourage the jury to use the accused’s failure to testify as a “cloak for his guilt”. See R. v. Potvin, [1989] 1 S.C.R. 525, [1989] S.C.J. No. 24, 47 C.C.C. (3d) 289, at pp. 557-59 S.C.R., p. 312-13 C.C.C.
[63] In her closing, defence counsel argued that the police’s failure to show what had happened to the Intrepid between the time it was stolen in the morning and crashed into the RIDE program in the evening, should raise a reasonable doubt about the appellant’s guilt on the charge of possession of stolen property. The Crown responded to this argument by referring to the appellant’s failure to give a statement to the police:
Count number six, possession of property obtained by crime. As I said, Mr. Knox was not charged with stealing this car and, obviously, Mr. Knox had a constitutional right not to give a statement so, obviously, even if the police had been interested in finding who actually stole it, they had no basis to go on. They couldn’t force Mr. Knox to cooperate.
[64] Again, these remarks would have been better left unsaid. However, the trial judge eliminated any concern that the jury might improperly rely on the accused’s silence by his instruction to the jury. He cautioned them:
You are not, in any way, to infer any guilt for Mr. Knox’s electing not to speak further to police than that, that he did, in the Durham police car that evening and again to Officer Blackman on Blackman’s evidence back at the Peterborough Police Station. There was no onus or duty on Mr. Knox to do so and you will not infer guilt or draw any adverse inference against Mr. Knox as a result of anything which he did not say to police on being questioned by Officer Blackman.
[65] I would not give effect to this ground of appeal.
Other grounds of appeal
[66] The appellant raised other grounds of appeal. In the panel’s view, none had enough merit to warrant calling on the Crown. I will, however, deal with them very briefly.
(i) Denial of bail and change of venue
[67] At trial, the appellant sought bail for the purpose of bringing a change of venue motion. The trial judge denied bail. No [page532] change of venue motion was ever filed. On appeal, the appellant challenged the trial judge’s bail ruling.
[68] The record amply supported the denial of bail. Flight from the police was at the heart of the appellant’s alleged conduct. Moreover, the appellant has a lengthy criminal record, including several convictions for failing to comply with a recognizance. He was on probation at the time the offences occurred, and in the past had violated the terms of a statutory release. He simply did not meet the criteria for bail.
(ii) Instruction on specific offences
[69] In our view, the trial judge fairly instructed the jury on the elements of the various charges.
(iii) Instruction on specific aspects of the evidence
[70] In our view, the trial judge did not materially misstate any aspects of the evidence.
(iv) Fresh evidence
[71] The appellant sought to file as fresh evidence a newspaper article that appeared in the local paper on the morning the trial judge completed his charge and the case went to the jury. The Crown consented to the admission of the fresh evidence because it was potentially relevant to the validity of the trial process.
[72] The article did not affect the fairness of the appellant’s trial. It was a fair summary of the evidence that was before the jury. The trial judge had already instructed the jury to ignore media reports. And, most telling of all, the defence did not even raise before the trial judge the article’s potential to affect the fairness of the trial.
D. The Sentence Appeal
[73] The appellant had served 14 1/2 pre-trial custody. At trial, the Crown submitted that the appellant should serve an additional two to four years, but argued for the upper end of that range. The defence argued for a sentence of time served, or for a very short period in addition to time served. The trial judge held that a sentence of five years was appropriate. He gave the appellant two for one credit for the 14 1/2 he had spent in pre-trial custody (29 months). He therefore sentenced the appellant to 31 months’ imprisonment.
[74] The appellant contends that the sentence is excessive. On the record before the trial judge, in my view, the sentence seems entirely fit. [page533]
[75] The appellant is an Aboriginal, and had lived on a Blackfoot reserve for a considerable period of time. Although, unfortunately, no pre-sentence report was filed, and thus no material on the appellant’s upbringing was before the court, the trial judge did take into account the appellant’s aboriginal status.
[76] What mainly supports the sentence is the appellant’s lengthy criminal record and the need to deter and denounce this kind of conduct toward the police. The appellant had over 30 previous convictions. He was 42 years of age when he was sentenced, and apart from a gap between 1980 and 1986, he had continuously been in trouble with the law. Nothing on the record explains his persistent criminality.
[77] His driving conduct was serious. That Constable Blackman was not killed or badly injured, and that no one died or was injured in the ensuing high-speed police chase, were matters of good fortune.
[78] I am not persuaded that the trial judge either erred in principle or imposed an unreasonable sentence. Although I would grant leave to appeal sentence, I would dismiss the sentence appeal.
E. Conclusion
[79] I would dismiss both the conviction appeal and the sentence appeal.
Appeal dismissed.
Notes
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Note 1: The trial judge was in error in saying that the Intrepid was the appellant’s car. The car was stolen.
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