



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Quinn, 2014 ONCA 650

DATE: 20140922

DOCKET: C58258

Watt, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Emmet Quinn

Appellant

John Hale, for the appellant

Hannah Freeman, for the respondent

Heard and released orally: August 28, 2014

On appeal from the convictions entered on September 17,
    2013 by Justice
D. Kent Kirkland
of the Ontario Court
    of Justice.

ENDORSEMENT

[1]

The appellant appeals his convictions on February 4, 2013 for break and
    enter with intent and dangerous driving and on February 20, 2013, for failing
    to stop a vehicle while being pursued by the police and for mischief.

[2]

The facts can be briefly summarized as follows.
On February 4, 2013, one Joshua McLaughlin received a
    text message from his girlfriend who lived but minutes away from him. She was
    concerned about someone knocking at the back door. Mr. McLaughlin arrived at
    the home almost immediately to find a man hanging through the window of the
    back door. Mr. McLaughlin saw him at this point for two to three seconds. He
    chased the intruder down the street and eventually jumped in front of his
    vehicle to stop him from leaving. The intruder was apparently saying I am
    sorry, I got the wrong house. Mr. McLaughlin testified that he got a good look
    at him. The intruders face was illuminated by a street light and by the light
    of his cars dashboard. This entire exchange lasted 10 to 20 seconds.

[3]

The intruder drove his
    car directly towards Mr. McLaughlin who jumped on the hood in order to avoid
    getting hit. He then slid off the hood damaging the side mirror and the windshield
    wipers. Mr. McLaughlin testified that he had the three seconds to memorize the
    license plate. As it turned out, he memorized accurately but for one number.

[4]

Mr. McLaughlin described
    the intruder to police in very general terms only and did not pick him out of
    the photo lineup. He said that the photos were blurry and the two and a half by
    two inch pictures were very small.

[5]

On February 20, 2013,
    police officers, who had been watching the appellant, saw him commit a break
    and enter at a different location. (The appellant pleaded guilty to this
    charge.) He left the scene driving the same car that Mr. McLaughlin had seen on
    February 3.

[6]

Four police cars then proceeded
    to box-in the appellants car. Three police cars, lights activated,
    surrounded him in a high risk take down. One police car was at the drivers
    side, one was at the passengers side and one was in front of him. The
    appellant then reversed. He ran into the fourth police car that was just
    arriving to block him in from behind.

[7]

The issue with respect
    to the February 4 events is one of identity. The appellant asserts that the
    trial judge confused credibility with reliability and had insufficient facts
    upon which to establish the identity of the intruder and driver of the car. In
    our view, the trial judge clearly addressed reliability and, on the evidence as
    a whole, it was open to him to find that identity was proven beyond a
    reasonable doubt. The trial judge referred to the frailties of in-dock
    identification and Mr. McLaughlins failure to identify the appellant in the
    photo lineup.

[8]

The trial judge
    considered the several occasions that Mr. McLaughlin saw the intruders face
    and Mr. McLaughlins excellent memory. The trial judge was satisfied that the
    intruder and the driver of the car was the appellant. This ground of appeal
    fails.

[9]

I turn to the events of
    February 20. The appellant submits that the trial judge erred in convicting him
    of failing to stop during the police pursuit. The appellant argues that the
    police were not pursuing him because they and he had stopped.

[10]

The trial judge
    determined this issue by referring to the dictionary meaning of pursue;
    namely, to follow with intent to overtake or capture. He concluded that what
    the police were doing by boxing him in was intending to overtake or capture
    him. While not deciding the outer limits of s. 249.1 of the
Criminal
    Code
, we agree with the trial judge. This
    was a fast-paced event that should not be viewed on a frame-by-frame basis. The
    police were pursuing the appellant in their vehicle. He failed without
    reasonable excuse  and in order to evade police  to stop the vehicle as soon
    as reasonable in the circumstances. This ground of appeal fails.

[11]

The mischief conviction
    arises out of the fact that the appellant put his car in reverse and hit the
    police car. The appeal of the mischief conviction is based on the submission
    that the trial judge failed to turn his mind to the
mens rea
of mischief. It was submitted that there was no
    evidence of intent. It was open to the  trial judge to infer recklessness.
    Clearly, it was reckless, in the circumstances known to the appellant, to reverse
    his vehicle while surrounded by police cars. This ground of appeal also fails.

[12]

For all of these reasons,
    the appeal is dismissed.

David Watt J.A.

M. Tulloch J.A.

M.L. Benotto J.A.


