



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nishida, 2015 ONCA 154

DATE: 20150310

DOCKET: C57428

Sharpe, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Justin Nishida

Appellant

Joseph Di Luca and Erin Dann, for the appellant

Gavin MacDonald, for the respondent

Heard: March 6, 2015

On appeal from the convictions entered on May 28, 2013
    and the sentence imposed on July 30, 2013 by Justice Frank J.C. Newbould of the
    Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

A police officer pulled over an SUV at the corner of Eglinton and Duplex
    in Toronto at approximately 3:17 p.m. one April afternoon, after it made an
    illegal left-hand turn.  The driver handed the police officer a drivers
    licence, which the officer noticed was expired.  The name on the drivers
    licence was Sherwin Maloney and the photo on the expired drivers licence was
    not that of the driver.  When the officer stepped onto the sidewalk to call the
    police station, the driver of the SUV sped off.  In the notes that the officer
    made contemporaneous with the event, he described the driver as an Asian male
    with pale skin and noticeably bad teeth, wearing a plaid shirt.

[2]

Shortly after the incident, the police officer contacted Sherwin Maloney
    who stated that he had lent the appellant his expired licence some time ago and
    he showed the police officer a photo of the appellant taken from the
    appellants Facebook page.

[3]

The central issue at trial was identification: was the appellant the
    individual driving the SUV?  The police officer testified, as did the
    appellant, who swore that he was at home watching television at the relevant
    time.

[4]

The trial judge gave extensive reasons for rejecting the defence
    evidence, including his alibi evidence, and accepting that called by the
    Crown.  He convicted the appellant of personation and obstructing a peace
    officer.  The appellant was sentenced to twelve months in prison and received an
    18-month driving prohibition.

[5]

The appellant appeals both conviction and sentence.

THE CONVICTION APPEAL

[6]

The appellant submits that the trial judge:

·

failed to subject the police officers identification evidence to
    a sufficient degree of scrutiny; and

·

applied a stricter standard of scrutiny to the defence evidence,
    with the result that he improperly shifted the onus onto the appellant to
    disprove his guilt.

[7]

We do not accept these submissions.  Ultimately, this case rests upon
    the trial judges factual findings of credibility and reliability and we see no
    basis for interference with them.

[8]

The appellant acknowledges that the trial judge correctly instructed
    himself on the dangers of eyewitness identification but says that the trial
    judge did not apply a suitably high standard of caution when analyzing the
    police officers testimony.  In our view, the trial judges reasons show that
    he was suitably cautious and that he gave sufficient reasons for accepting that
    evidence, including that:

·

the police officer was acting in the execution of his duties at
    the time he observed the driver   it was not a casual observation by a
    disinterested person;

·

the interaction took place in daylight when the officer was only
    a few feet away from the driver  it was neither fleeting nor a split-second
    observation;

·

the officer had a good look at the driver, as evidenced by the
    contemporaneous description which he made in his notebook;

·

the officers notes remarked on the appellants bad teeth, a
    distinctive feature on which all of the Crown witnesses commented, and

·

the appellants admitted possession of an expired drivers
    licence given to him by Sherwin Maloney supported the officers eye witness
    identification.

[9]

We see nothing in the submission that the trial judge shifted the burden
    of proof.  The defence evidence raised a number of issues that the trial judge
    was obliged to deal with.  He also spent considerable time in his reasons
    explaining why he disbelieved the appellant and rejected the other defence
    evidence to the point that it did not raise a reasonable doubt.  The trial
    judges detailed assessment of the defence evidence does not equate to a higher
    standard of scrutiny or a shifting of the burden of proof.

[10]

Nor
    do we agree that the cross-examination of the police officer raised a
    credibility issue that the trial judge failed to resolve. Mr. Di Luca contends
    that certain questions and answers from the officers cross-examination can be
    read as indicating that it was not until the officer met with Sherwin Maloney
    that he realised that the photo on the licence was not that of the driver of
    the SUV and that the trial judge failed to resolve the contradiction.

[11]

We
    disagree. The police officer was clear in his evidence that he realized as the
    driver fled that the photo on the licence was not that of the driver whereas his
    evidence on cross-examination was, at best, equivocal.

THE SENTENCE APPEAL

[12]

The
    appellant submits that the trial judge erred in principle by imposing a
    one-year jail sentence.  He says that the trial judge overemphasized the need
    for denunciation and deterrence and failed to properly consider the principle
    of restraint and the objective of rehabilitation.

[13]

We
    do not agree.

[14]

The
    appellant concedes that he has an unenviable criminal record.  While many of
    his prior convictions relate to drugs, his record also includes two prior
    convictions for obstructing a peace officer.  The second of those convictions
    predates the current offences by only three months.  The appellants record
    also includes convictions showing a long disregard for court orders: failing to
    comply with a recognizance, failing to comply with an undertaking, and
    convictions under the
Highway Traffic Act
, R.S.O. 1990, c. H.8,
for driving without a permit,
    driving with a suspended license, and using a license plate not authorized for the
    vehicle.  Moreover, the appellant was serving a conditional sentence (for a
    drug-related offence) at the time he committed the offences in question.

[15]

The
    trial judge considered the range established by the authorities and concluded that,
    given the deliberate nature of the offences and the appellants prior related
    convictions, deterrence and denunciation played a significant role.  While the
    sentence is at the high end of the range, we cannot say that it is outside the
    range or otherwise unfit, for these offences and this offender.

DISPOSITION

[16]

Accordingly,
    the conviction appeal is dismissed, leave to appeal sentence is granted and the
    sentence appeal is dismissed.

Robert J. Sharpe J.A.

E.E.
    Gillese J.A.

M.L. Benotto J.A.


