R. v. J.H., 2014 ONCJ 704

WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1, as amended;

Date: December 8, 2014

Court File No.: 13-1040Y Brampton

Parties

Between:

Her Majesty the Queen

— and —

J.H. (a Young Person)

Before the Court

Before: Justice Richard H.K. Schwarzl

Heard on: May 12, 13 and November 5, 2014

Reasons for Judgment released on: December 8, 2014

Counsel:

• Mr. Colin Henderson — counsel for the Crown
• Mr. Thomas Wiley — counsel for the Young Person

SCHWARZL, J.:

1.0: INTRODUCTION

1Before midnight on June 28, 2013 W.N. was molested by a masked male as she walked home from a friend's apartment. The Accused, J.H., stands trial on two counts: Sexual Assault, contrary to section 271 of the Criminal Code, and Wear Disguise with Intent, contrary to section 351(2) of the Criminal Code. The sole issue in this case is whether the Crown has proven beyond a reasonable doubt that the masked perpetrator was the Accused, J.H.

2.0: EVIDENCE

2.1: W.N.

2W.N. is a woman who lives in Mississauga. During the evening of June 28, 2013 she was visiting a friend who lives in an apartment building located at B[…] Road in Mississauga. According to W.N. she left the building around 11:00 p.m. and walked by herself directly to her house situated a block or two away. As she walked, W.N. occupied her time by talking to a friend on her cell phone.

3After walking for about five minutes, W.N. sensed something behind her. She turned and saw someone right behind her. The person had a dark mask over his head which did not cover his mouth. She could look at him directly in the eye. She is 5'7" tall and said the person was close to that height, too. The person was male, black, and of thin build. Beyond the mask, he was wearing a dark grey hoodie, blue jeans, running shoes, and light coloured gloves.

4W.N. quickly realized something was wrong and exclaimed, "You've got to be kidding?!" The male responded by putting his hands between her legs and saying "I want some of that". The male said nothing else but this was enough for W.N. to tell that he spoke without an accent. W.N. called out, "No you don't!" and went to the ground. The male tried to get on top of her but she pushed him away with her legs, causing him to fall down. The male then got up and ran away in the direction she had come from. W.N. noticed that when he got to the intersection with B[…], the male turned in the direction of the apartment building she had just left. That was the last she saw of him. The entire encounter was brief, lasting no more than couple of minutes.

5In a state of shock, W.N. went home. After taking some time to calm down, she called 911 at about 12:10 a.m. W.N. was very unsure about times, but was confident she called the police between fifteen and twenty minutes after the attack.

6Constable Jeff Scott was dispatched at 12:15 a.m. to attend at the complainant's house and arrived there around 12:24. Another officer, P.C. Robert Stepan, was dispatched at 12:14 and was the complainant's house by 12:20 a.m.

2.2: B.G.

7In June 2013 B.G. was a tenant on the 9th floor of B[…] Road, Mississauga. Late in the evening of June 28, 2013 he went to his parked SUV in the building's lot for a cigarette. He played a game on his cell phone and listened to a news radio station. He was in the truck for ten or fifteen minutes when he saw someone leave the apartment building most likely by the side door and walk across within twenty to thirty feet in front of him towards a nearby plaza. The person was wearing a grey hoodie, light coloured blue jeans, and running shoes with a white logo on the sides. Mr. B.G. was not sure but agreed that the person may have been wearing a ball cap, too. After refreshing his memory from his statement to the police, Mr. B.G. recalled that the person's pants were in fact dark blue jeans. Mr. B.G. recognized the person as the Accused and remarked to himself that it was odd to see him because he had never seen the Accused out that late before.

8Between 30 and 45 minutes after first seeing the Accused walking across the parking lot, Mr. B.G. saw him again. This time, the Accused was running towards the apartment building from the direction where W.N. was assaulted. The Accused glanced back over his shoulder at least twice while running. When the Accused entered the parking lot, he stopped between 10 and 30 feet from Mr. B.G.'s SUV. The Accused was wearing the same clothes as earlier but this time his hood was up and he was wearing a black mask. After he stopped, the Accused took off the mask. Mr. B.G. was able to recognize the side of his face. The Accused then ran towards the apartment building in the direction of the play area at which point Mr. B.G. lost sight of him for good.

9Mr. B.G. was between 95 and 100% sure it was the Accused he saw that night. He did not participate in any photo lineup but he recognized the Accused because over the three years that they were neighbours living two doors apart he saw the Accused almost daily both inside and outside the apartment building.

10After giving a wide range of evidence regarding timing, Mr. B.G. testified he was sure he first saw the Accused not later than 10:30 p.m. and saw him again some 20 to 45 minutes after that. This would put the Accused running back into the lot and removing his mask anywhere between 10:50 and 11:15 p.m. Mr. B.G. was sure that he spoke to the police about 20 minutes after seeing the Accused run past. Based on Mr. B.G.'s recollection of times, his conversation with the officer was between 11:10 and 11:25 p.m.

11P.C. Patrick Zicari testified that he was the first police officer to speak with Mr. B.G. The officer spoke to him at 12:20 a.m., or about one hour later than Mr. B.G. recalled.

12Mr. B.G. made his observations through both his windshield and his tinted windows, which were partially open while he was in his car to permit smoke to escape. B.G. total viewing time of the Accused was well under a minute and as much as thirty seconds. His view was at all times clear and unobstructed.

2.3: Carl Zaborski

13Carl Zaborski is a K9 officer with the Peel Regional Police Services. Shortly before 12:30 a.m. on June 29, 2013 he and his dog searched behind the apartment building in question. Near the playground the officer and his dog located the following relevant items: a black toque with eyes cut out and a soiled latex glove. On examination the latex glove appeared old and unconnected with recent events.

14The items, made exhibits at the trial, were handed over to another officer and later sent to the Centre of Forensic Sciences for examination. A male profile or profiles suitable for comparison were found but the police did not seek to obtain any DNA samples from the Accused.

2.4: Andrew Garven

15Andrew Garven is an officer with the Peel Regional Police Services. Between 1:56 and 3:57 a.m. on June 29, 2013 he obtained a lawful and voluntary statement from the Accused. The prosecution adduced the statement as part of its case.

16Of relevance to the issue in dispute, the Accused stated the following:

• He went to a basketball tournament around 5:00 p.m. June 28, 2013
• He cut his foot and came home
• He went out and got pizza for his family
• He went to visit his friend, Galvin Whitby, who lives on a nearby street about a 15 minute walk away
• It was dark when he went to Whitby's and could not recall when he got there
• He visited with Whitby and a couple of other friends including some girls
• He estimated he got home "11-ish"
• Within a couple of minutes of coming home the police were at his door
• 20 – 25 minutes passed between the time he got home and the arrival of the police
• He didn't know where his grey sweater is – "probably at home in my closet"
• When asked where he was at 11:30, the Accused said, "I'm not sure. I already answered that."
• When he came home he had a knapsack
• He owns a grey sweater being a cardigan with black spots and a design
• About half-way home he ran to the apartment

17While watching the video it is clear that the Accused does not speak with any discernable accent.

18P.C. Garven had an officer run checks on Galvin Whitby, but could not find a driver's licence or any verification of the person's existence. The officer agreed that Whitby could exist. The officer also agreed that the police did not attend the purported address of Mr. Whitby nor were any other efforts made to locate him. The officer agreed that the Accused told him that his friend went to West Credit secondary but that no officer went there to try to find Whitby. P.C. Garven agreed that only minimal efforts were made regarding Galvin Whitby because the police did not believe the Accused's story.

19P.C. Garven knows the B[…] Road area well. He agreed that it is a multi-racial neighbourhood with a many teenagers who might match the general description of the Accused.

2.5: Lisa Bravo

20Lisa Bravo is the property manager for the apartment building at B[…] Road, Mississauga. In her evidence she described the extensive video surveillance at the building. Ms. Bravo also testified that not all exits are subject to video surveillance including some side and rear building doors.

2.6: Agreed Statement of Facts

21By way of agreed statements of facts, a DVD showing footage from a number of building security cameras at relevant times was made an exhibit. The camera angles depict the front vestibule of the building, the front elevator area, and outdoor views of the front entrance. Also, 19 still photos culled from the relevant video footage were entered into the evidence.

22The various footages and photos was summarized as follows:

Time	Camera #	Location	Person	Action	Photo #	Other
9:49 p.m.	1 & 15	Main entrance and vestibule	Accused	Leaving building	1 & 2	Accused is wearing dark shoes with white logo, dark pants, grey hoodie, and dark cap
10:07 p.m.	1 & 15	Main entrance and vestibule	Accused	Returning to building	3 & 4	Accused is wearing his hood up. The sweater has black buttons up the front. He is carrying a pizza box.
10:10 p.m.	1 & 15	Main entrance and vestibule	W.N.	Entering building	5, 6, & 7
11:52 p.m.	1 & 15	Main entrance and vestibule	W.N.	Leaving building	8, 9, & 10
11:59 p.m.	1, 2, & 15	Main entrance, vestibule and main elevators	Accused	Entering building	11 to 19	Accused is wearing dark shoes with white logo, dark pants, and a short-sleeved dark tee shirt with image on the front. He is not wearing a sweater or a cap. He looks over his shoulder as he enters the main doors. His tee-shirt is bulged noticeably at the front above the waist. He looks over his shoulder several times as he unlocks the interior door.

23There was no video footage of the Accused leaving the building sometime between 10:07 p.m. and 11:59 p.m. because he left by an exit that was not subject to surveillance.

3.0: POSITIONS OF THE PARTIES

24The defence submits that there are a number of factors that ought to raise a reasonable doubt regarding identity in this case including but not limited to: (a) the Accused's plausible and reasonable denials outlined in his statement adduced by the prosecution; (b) the lax police investigation wherein they did not follow through with either DNA evidence from the recovered ski mask or the person whom the Accused said he spent most of the evening with; (c) the poor memory or perception of time by both W.N. and Mr. B.G.; and (d) the unreliability of Mr. B.G.'s evidence based on his poor perception of time, the partiality towards the prosecution said to have been displayed while testifying; the limited means to observe given the his vehicle's tinted windows and the late hour; the very brief time he had to make observations of the person who ran into the parking lot; and the partial view of the person's face who removed the mask.

25The Crown submits that based on the totality of the evidence the identity of the Accused as the perpetrator has been proven beyond a reasonable doubt. The Crown submits that W.N. and Mr. B.G. were unreliable regarding the hour on the clock, but otherwise reliable in all other material aspects regarding timing. They submit that the direct and circumstantial evidence proves identity. The Crown submits that the exculpatory parts of the Accused's statement ought to be rejected.

4.0: APPLICABLE LEGAL PRINCIPLES

26Eyewitness testimony is an expression of the witness's belief or impression and is subject to many frailties. Honest people make honest mistakes. Great caution must be taken in relying on eyewitness identification. When assessing the reliability of eyewitness identification, the court must consider all of the evidence including the circumstances in which the witness made his observations, the nature and quality of the description the witness gave, the circumstances of how the witness identified the person, and the presence or absence of confirmatory or corroborating evidence. While relevant, the reliability of eyewitness identification evidence is not determined by the confidence or firmness with which the witness asserts his conclusion of identity: Watt, David, Watt's Manual of Criminal Jury Instructions. Toronto: Thomson, Carswell (2005).

27Identification evidence is opinion evidence. Recognition is a type of identification evidence. A voir dire is required to determine the admissibility of lay recognition evidence. In a judge-alone trial it is reasonable to blend the trial and voir dire evidence and determine both admissibility and weight at the end of the case: R v. John, 2010 ONSC 6085 (CanLII), [2010] O.J. No. 4738 (S.C.J.) at ¶ 18 and 19.

28The existence of idiosyncratic or unique features is not required to admit eyewitness identification. However, where such features exist they tend to enhance the probative value of the identification evidence: John, supra at ¶ 22.

5.0: ANALYSIS

29B.G.'s evidence of identification is credible and reliable. Its probative value far outweighs any prejudicial effect. I accept his evidence for the following reasons.

30B.G. said he saw the Accused leave the building and enter the parking lot out a side door. This door is one of only a few which are not captured by the apartment surveillance cameras. The absence of any video footage of the Accused leaving the building after 10:07 p.m. confirms B.G.'s evidence of which door the Accused exited.

31B.G. said that when he first saw the Accused he was wearing a grey hoodie, jeans, and shoes with a white logo. His description is consistent with the evidence of W.N. and with the apartment surveillance video when the Accused left and returned around 10:00 p.m. Furthermore, the Accused admitted to the police that he has a grey hooded sweater. The Accused told the police his sweater had a black spots or buttons on the front. This is confirmed by the apartment video. Given that it was dark out, I do not find the failure by either W.N. or Mr. B.G. to describe buttons to be material.

32Mr. B.G. said that when he saw the Accused come back into the apartment lot he ran while glancing over his shoulders. This is consistent with W.N.'s evidence that her attacker ran in the direction of the apartment building and with the Accused's statement to the police that he ran home. B.G.'s evidence of glancing is corroborated by the apartment video which shows the Accused checking over his shoulders in a furtive and anxious manner while entering the building. Mr. B.G.'s description of the mask matches that given by W.N.

33Mr. B.G. said that after doffing the mask the Accused ran towards the rear of the apartment building. This evidence is confirmed by the discovery by the police of a black ski mask behind the building that contained male DNA.

34Mr. B.G.'s level of confidence of 95 to 100% that the person he saw that night was the Accused is consistent with all of the independent identification evidence and his recognition of the Accused. I find his recognition evidence to be highly reliable. Mr. B.G. lived two doors away from the Accused and saw him nearly daily for almost three years both inside and outside the apartment building. He knew the Accused and knew him well enough to find it odd to see him that night because he had never seen the Accused out that late before. Mr. B.G. was therefore very well acquainted with the Accused's appearance. He saw him face-on when the Accused left the building. Later, the witness recognized the Accused by his form and clothing and was easily able to recognize his face from the side. Mr. B.G.'s description is also materially consistent with evidence of W.N. and with the apartment surveillance video.

35The evidence of Mr. B.G. that the Accused removed a mask is confirmed materially in two ways. First, a mask fitting the description given by both W.N. and B.G. was found in the area proximate to where Mr. B.G. saw the Accused run to. Second, the Accused removed the grey hoodie sweater he was seen wearing by B.G. both before and after he ran into the parking lot. Given that he is not wearing it when seen on video at midnight when entering the building, the Accused removed his sweater. This second act of removing clothing makes B.G.'s evidence that he saw the Accused remove something he was wearing both reliable and credible.

36The obvious bulge beneath the Accused's shirt as he entered the apartment around midnight as seen on the security video establishes that he was concealing something. The size of the bulge is consistent with his sweater being hidden under his shirt. The fact that the Accused concealed something under his shirt is highly probative of his state of mind as there was no reason to conceal anything other than to deliberately change his appearance.

37When assessing the evidence as a whole, I did not find Mr. B.G. to materially exaggerate, mislead, or to be inaccurate in his observations or recall of the relevant events. He impressed me as a fair, unbiased, and believable witness. His evidence is enhanced by his unobstructed and clear view as well as independence from the crime itself. B.G. had the Accused under observation for a half minute or more which, given his familiarity with Accused, was more than ample time to accurately recognize a person he knew well on sight.

38I did not find the witnesses' evidence regarding time to be significant. Both W.N. and Mr. B.G. were out by an hour or more. So was the Accused who told the police he was home around 11:00 when it was nearly midnight. It was the events and relative times between those events that they focussed on, not their watches. Each of W.N. and Mr. B.G. were substantially internally consistent and their chronologies of events conformed well within the actual times independently noted by the police and by the apartment surveillance cameras.

39W.N. was an impressive witness. She was fair, unbiased, and consistent. Despite being shocked by a brief but harrowing encounter, her description of her assailant was unimpeached and corroborated by Mr. B.G., the security footage, and the fact that a mask similar to the one worn by her attacker was found on the apartment building grounds. The Accused's appearance on the security video and in court is very similar to what W.N. described regarding build and height. W.N. testified that the man who attacked her spoke without an accent. The Accused's video statement to the police reveals that he speaks without any accent.

40The defence criticized the failure of the police to investigate the Accused's statement that he was visiting a friend the evening of the attack and their failure to obtain his DNA and compare it with that found on the mask. The absence of the evidence in no way undermines or diminishes the strength of the identification evidence that was led during this trial.

41I found all of the identification evidence led by the prosecution to be reliable, credible, and possessed a probative value far outweighing any prejudicial effect. I admit Mr. B.G.'s recognition evidence and I believe it.

42The Accused did not testify but his evidence of the events was recorded in his video statement to the police which was adduced by the Crown at trial. I did not believe the Accused's denial to the police that he was the attacker nor does it raise a reasonable doubt. He lied about bringing a knapsack home with him and his denial of being the attacker collapses under the overwhelming weight of the all the reliable evidence to the contrary. Even on the Accused's statement, he still had ample opportunity and ability to commit these crimes because this brief attack took place when he said he was in the immediate area.

6.0: CONCLUSIONS

43After carefully assessing all of the evidence and upon applying the applicable legal principles, I find that the Crown has proven beyond a reasonable doubt that the Accused was the person who sexually assaulted W.N. while wearing a mask. Verdicts of guilty will be registered on both Sexual Assault and Wearing a Disguise with Intent.