



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Flowers, 2020 ONCA 821

DATE: 20201221

DOCKET:
C67727

Rouleau,
    Hoy and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Theodore Flowers

Appellant

Theodore Flowers, in person

Zachary Kerbel, appearing as duty counsel

Jessica Smith Joy, for the respondent

Heard: December 9, 2020 by
    teleconference and videoconference

On appeal from
    the conviction entered on September 18, 2019, and the sentence imposed on
    November 8, 2019, by Justice Diane M. Lahaie of the Ontario Court of Justice.

REASONS FOR DECISION

Introduction

[1]

The appellant was charged with possession of
    stolen property under $5,000 (
Criminal Code
, R.S.C. 1985, c. C-46, s.
    354(1)(a)), dangerous operation of a motor vehicle (s. 249(1)(a)), and three
    counts of operating a motor vehicle while disqualified (then s. 259(4); now s.
    320.18). He was found guilty on all but one of the counts of driving while
    disqualified.

[2]

On October 18, 2017, the police were on the
    lookout for a stolen vehicle with a particular licence plate. That afternoon,
    D.C. Ben Meireles was in an unmarked police car at the side of the road when he
    saw a vehicle bearing this plate. The vehicle slowed down and then drove off at
    a high rate of speed. At the time, D.C. Meireles was on the phone with another
    officer who said the driver might be the appellant. D.C. Meireles decided to
    follow the car but noticed that it did a U-turn and was traveling back towards
    him, again at a high rate of speed. For his own safety, the officer backed his
    car into a driveway. The vehicle in question approached and slowed down. D.C.
    Meireles could see that there was a passenger in the vehicle. He locked eyes
    with the driver and recognized him as the appellant.

[3]

By way of background, the appellant was
    well-known to the local police. D.C. Meireles had encountered the appellant
    earlier in the year during an investigation of an unrelated matter. During his
    examination-in-chief, he acknowledged that it was not until after the encounter
    that a fellow officer told him that they had just been dealing with the
    appellant. As D.C. Meireles explained, And I was, oh yeah, youre right. I
    didnt recognize  I think he had longer hair. So thats why I knew who Mr. Ted
    Flowers was. D.C. Meireles had also seen a photograph of the appellant while working
    for the Street Crime Unit.

[4]

Returning to the events in question, the
    appellant drove away and crossed an intersection in excess of 100 km/h, without
    braking or stopping, almost colliding with another vehicle.

[5]

The police looked for the appellant later that
    day, but he could not be found. Police located him the following day. At about
    5 p.m., two officers saw the appellant driving in a pickup truck bearing the
    same licence plate. They saw him for a brief period of time through the
    windshield. Both officers recognized the appellant through their work on other
    investigations. One officer had the appellants mugshot in his notebook; the
    other had seen his photograph on the police and MTO databases. Not wishing to
    engage with the appellant at the time, they lost sight of his vehicle. However,
    about half an hour later, these same two officers followed up on a lead and found
    the appellant at an auto recycling business. He was standing at the back of the
    truck. When the officers went to arrest him, the appellant attempted to run to
    the drivers side door of the truck, which still had its engine running. The officers
    arrested the appellant.

[6]

The matter proceeded to trial. The appellant did
    not testify.

[7]

In her reasons for judgment, the trial judge
    identified the following three issues: (1) whether the Crown proved that the appellant
    was the driver of the truck beyond a reasonable doubt; (2) if the appellant was
    the driver, whether the Crown proved that he drove in a dangerous manner; and
    (3) whether the Crown proved that all of the three driving prohibitions previously
    imposed were in force at the relevant time. The trial judge answered the first
    two questions affirmatively, but concluded that only two of the driving
    prohibitions were in force at the time of the offences.

[8]

With the assistance of duty counsel, the
    appellant submits that the trial judge erred in finding that the appellant was
    the driver, resulting in an unreasonable verdict. The appellant also submits
    that, if identification was properly established, the Crown failed to prove
    that the appellant drove in a dangerous manner. Lastly, the appellant contends
    that the trial judge erred in finding that the appellant knew that the licence plate
    was stolen.

[9]

We would reject each of these grounds of appeal.

Identification

[10]

With the assistance of duty counsel, the
    appellant submits that the identification evidence of D.C. Meireles was
    worthless. He points to a number of case-specific frailties in his evidence,
    including that: D.C. Meireles only had a fleeting glance through two
    windshields; he was concerned for his own safety at the time; he had been told
    by another officer that the driver might be the appellant; he gave no
    description of the driver; and his prior association with the appellant was
    minimal at best.

[11]

The trial judge rejected many of these same
    submissions. She recognized that [t]he dangers inherent in eyewitness
    identification evidence have been the subject of much comment in many notable
    cases. Among the cases she cited, the trial judge referred to
R. v. Olliffe
,
    2015 ONCA 242, 322 C.C.C. (3d) 501  a case concerning circumstances in which
    the accused person is known to the identification witness. The trial judge
    cautioned herself in the following way: I have directed my mind to the
    principle that [it] is the reliability of the eyewitness identification that
    must be established and that there is a danger in an honest but incorrect
    identification.

[12]

Duty counsel submits that, although the trial
    judge expressed the need for caution, her reasons do not reflect that she
    approached the evidence in this manner. We disagree. The trial judge explained
    why she was prepared to find that the appellant had been identified beyond a
    reasonable doubt based solely on D.C. Meireles evidence. She noted that D.C.
    Meireles did not express any uncertainty regarding who he had seen.
    Additionally, she found that he would have been able to identify the appellant
    at a distance because he had seen him earlier that year. D.C. Meireles evidence
    permitted her to safely make this finding.

[13]

The trial judge also pointed to what she
    described as overwhelming confirmatory evidence. This consisted of the
    evidence of the two officers who saw the appellant the following day driving a
    vehicle with the same stolen license plate. These officers were familiar with
    the appellant. Indeed, one of them had kept the appellants mugshot in his
    police notebook for weeks as he had been looking for him in relation to another
    matter. The trial judge also found the encounter at the auto recycling business
    to be confirmatory. As she explained:

I am convinced beyond a reasonable doubt that
    Mr. Flowers tried to get around the truck to get to the drivers door to get
    away, behaviour which is consistent with the behaviour he exhibited the
    previous day when Cst. Meireles encountered him and activated his emergency
    equipment on a rural road. Simply put, Mr. Flowers was not going to be
    apprehended without trying to get away.

[14]

In our view, based on the entirety of the
    evidence, it was open to the trial judge to reach this conclusion. The verdict
    was not unreasonable.

Dangerous driving

[15]

Similarly, the evidence supported the trial
    judges finding that the appellant drove the pick-up truck in a dangerous
    manner. She properly instructed herself on the need for the Crown to prove that
    the appellants driving constituted a marked departure from the standard of
    care expected by a reasonable person in the circumstances, making reference to
R.
    v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49.

[16]

Duty counsel submits that the trial judge failed
    to sufficiently scrutinize the evidence. In particular, he submits that the trial
    judge failed to account for the fact that D.C. Meireles was 800 metres away
    when he purported to make his observations.

[17]

We would not give effect to this submission  in
    effect, a challenge to the trial judges factual findings  which are entitled
    to deference on appeal. In our view, the scenario described by the officer
    provided more than an ample foundation for the trial judges conclusion.

The Licence Plate

[18]

The appellant submits that the trial judge did
    not properly explain why she concluded that the appellant knew that the licence
    plate was stolen. However, this was not a live issue at trial. Neither counsel
    made submissions on the issue. The trial judge noted that it was conceded that
    the licence plate was stolen.

[19]

We would dismiss this ground of appeal.

Conclusion and Disposition

[20]

The appeal against conviction is dismissed.
    Although the appellant had originally appealed his sentence, he abandoned that
    aspect of his appeal during the oral hearing. It is dismissed as abandoned.

Paul Rouleau J.A.

Alexandra Hoy J.A.

Gary Trotter J.A.


