



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Allen, 2019 ONCA 507

DATE: 20190617

DOCKET: C62952

Doherty, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isaac Omar Allen

Appellant

Philippe Michaud-Simard , for the appellant

Erica Whitford, for the respondent

Heard and released orally: June 14, 2019

On appeal  from the conviction entered on September 26, 2014 by Justice R. Dan Cornell of  the Superior Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of assault with a
    weapon, dangerous operation of a vehicle, possession of cocaine and two counts
    of possession of dangerous weapons following a five day trial.

[2]

He submits that the trial judge erred by failing
    to address weaknesses in the identification evidence and by misapprehending
    evidence bearing on the identification.

[3]

The appellant was alleged to have been one of
    three men who attacked Byron Trudeau with baseball bats in downtown Sudbury
    shortly after 11:00 a.m., apparently because of unpaid drug debts. The
    assailants fled in a black four door vehicle and bystanders gave police
    information about the licence number of that vehicle. A police officer,
    Constable Lanzo stopped a vehicle closely matching that description around
    11:15. Three males got out of the vehicle. The officer instructed them to get
    back into the car. The driver complied but the other two fled into a nearby
    home and locked themselves in.

[4]

The officer told the driver to turn the vehicle
    off and that he was under arrest. The driver fumbled with the gear shift to try
    to put the vehicle into motion. Constable Lanzo had no view of the drivers
    hands, drew his gun and pointed it to the right of the driver. The driver said
    dont shoot, rapidly reversed and backed down the street.

[5]

Chantal Renaud shortly saw a black vehicle stop
    in front of an address on Bloor Street. She observed a black male get out of
    the car, run to the trunk, remove a small black bag and run towards 58 Bloor
    Street. She said she recognized the individual because she had seen him on two
    or more occasions, associating with Jimmy who lived in an apartment at that
    address.

[6]

James Charlton lived in apartment 8. He was
    blind and in poor health. He had allowed the appellant to stay in his apartment
    and use his storage locker for several weeks. Police arrived at the apartment
    and the appellant told Mr. Charlton not to answer the door. Police entered the
    apartment with the help of the landlord and found the appellant within. Police
    found a black bag containing cocaine in the storage locker Mr. Charlton had
    rented to the appellant.

[7]

The appellant testified but the trial judge
    found, for good reason, that he was not a credible witness.

[8]

After the appellant was arrested, as he was
    being transported to the police station he volunteered I took off as the cop
    was pointing a gun at me and telling me to stop but I didnt want to stop even
    though he was telling me to.

[9]

Two baseball bats were found on the floor of the
    vehicle, together with a car rental agreement in the name of the appellants
    mother, referring to the appellant as an additional driver. There was blood on
    one of the baseball bats.

[10]

At trial, the victim of the assault identified
    the appellant as one of the attackers who was known to him, because they had
    resided together.

[11]

The appellant argues that the eyewitness
    identification by Mr. Trudeau, Ms. Renaud and Constable Lanzo was weak. This
    was cross-racial identification without the precaution of a photo line-up. He
    submits that the trial judge failed to properly self-instruct on the inherent
    unreliability of eyewitness identification evidence.

[12]

The trial judge noted that in-dock
    identification could be unreliable, and placed little weight on in-dock identification
    by civilian witnesses. He was however satisfied that Ms. Renaud, Mr. Trudeau
    and Constable Lanzo had accurately identified the appellant. The appellant
    argues that he conflated certainty on the part of the witness with accuracy,
    and failed to recognize that recognition evidence also required a cautious
    assessment. Both Ms. Renaud and Constable Lanzo had only a short time to
    observe the person they identified, and under stressful circumstances in the
    case of the officer.

[13]

The trial judge could have expanded upon his
    discussion of the potential frailties of the identification evidence, however
    in this case, the other evidence overwhelmingly established the appellants
    guilt.

[14]

The drug offences did not depend on eyewitness
    identification evidence.

[15]

The appellant essentially admitted that he was
    the driver of the car that fled from the officer with the gun pulled. That was
    sufficient to establish the dangerous driving count. The car was rented in the
    name of the appellants mother, and he was described as an additional driver.
    That there were baseball bats with blood on one of them on the floor of that
    vehicle within minutes of the assault, where the vehicle closely matched the
    physical description and licence plate number given by bystanders to the assault
    was strong evidence that the appellant was one of the attackers.

[16]

The trial judge did misapprehend one aspect of
    the evidence. He understood that Constable Lanzo observed the driver to be
    wearing a distinctive white and red mesh jersey with the name Brampton Medix
    written on the front, at the time he first stopped the driver.

[17]

The officers evidence about his encounter with
    the driver was detailed,

I actually had a
    chance to get a very good look at him at that point. I have a very good memory
    of what he looked like.  He was a black male, thin build, he had short black
    hair, a black goatee and moustache. He was wearing a very distinctive shirt. It
    was a white mesh shirt with small perforations in it with red sleeves.

[18]

The officer did not however see the lettering on
    the shirt until afterwards, when he saw the appellant at the police station
    after he had been arrested by other officers.

[19]

Given the overwhelming force of the evidence
    against the appellant, we are not satisfied that this misapprehension was
    substantial, material or that it played an essential role in the trial judges
    decision to convict.

[20]

Accordingly, the appeal against conviction is dismissed.

Doherty
    J.A.

David
    Watt J.A.

G.
    Pardu J.A.


