Court File and Parties

Court File No.: Brockville 1911-998-17 1444 Date: 2018-03-22 Ontario Court of Justice

Between: Her Majesty the Queen — and — Joshua K. Serson

Before: Justice A. Wheeler

Heard on: January 12, 2018 and February 23, 2018

Reasons for Judgment released on: March 22, 2018

Counsel:

• John O'Halloran, counsel for the Crown
• François Dulude, counsel for the defendant Joshua K. Serson

Judgment

WHEELER, J.:

Charges and Jurisdiction

1Joshua Serson is charged with assault with a weapon (s. 267(a)), carrying a weapon for the purpose of committing an offence (s. 88), possession of a prohibited weapon (s. 91(2)) breach of four different court-ordered weapons prohibitions (s. 117.01(1)), driving while disqualified (s. 259(4)), and failing to comply with a probation order to keep the peace and be of good behaviour (s. 733.1), all alleged to have occurred on October 1, 2017. The Crown proceeded summarily on all counts. (The information also contained a charge under s. 92(2) which is straight indictable. In the absence of Mr. Serson having been put to his election and electing to be tried in this court, I have no jurisdiction to try that count.)

The Incident

2All of these charges arose out of an incident in which Kyle Byers, an American visitor, was pepper sprayed in the face in Gananoque by a man who got out of a small black car.

3There were admissions that Mr. Serson was bound by the relevant court orders and prohibitions on the date of the incident. Counsel were agreed that the only issue to be decided at trial was whether the Crown has proved beyond a reasonable doubt that Mr. Serson was the man who pepper-sprayed Kyle Brown, and who was driving the small black car on October 1, 2017.

4Kyle and two other high school students, Zachary Turner and Elliot Staples, were staying on an island in the Thousand Islands area of the St. Lawrence River, and had come into town for an excursion on October 1, 2017. In the late afternoon, at about 4:45 p.m., the teenagers were walking along the waterfront, a short distance from the marina, near some boulders. Zachary and Elliot were in front. Kyle was a few feet behind them. A car drove past them, very close and inappropriately fast. As it did, Zachary said "brap", which he explained was a slang term, commenting on how fast the car was going. He did not intend for the driver to hear, but apparently the driver did hear. The car stopped, and the driver got out, as did another man from the front passenger seat.

5The driver was closest to Kyle. The other two boys were further away. The driver said something along the lines of "what did you say, punk?" or "what the fuck did you just say?" Zachary protested that he had not meant to cause any offence. The driver took a canister from behind his back, held it at arm's length and pepper-sprayed Kyle in the face at close range.

Crown's Circumstantial Case

6The Crown put forward a circumstantial case based on the following:

• Eyewitness evidence from the three teenagers.
• Video footage from the marina showing a car driving past.
• Photographs of a car and evidence that it was associated with Mr. Serson
• A receipt seized from the car, showing a purchase of bear spray on September 25, 2017 (six days before the attack on Kyle Byers) from the local Canadian Tire store.
• Video footage from the Canadian Tire store that showed Elizabeth Lacelle-Renshaw purchasing the can of bear spray, and, some minutes after the bear spray purchase, showed Mr. Serson in the company of Ms. Lacelle-Renshaw, and two others, and later showed a small dark car leaving the parking lot.

Defence Position

7The defence relied on a police report relating to Ms. Lacelle-Renshaw arguably being in possession of a can of bear spray on another occasion, and also argued that there were frailties in the identification evidence. No other defence evidence was called.

Eyewitness Evidence

8I am alive to the concerns that Mr. Dulude raised about the reliability of the evidence of the three young men, arising out of the fact that they discussed the incident amongst themselves before any of them gave a really detailed account to the police, and that they continued to discuss it after giving their statements and before testifying.

9This raises the danger that they have heard details from each other, and incorporated them into their own memories. It also raises the danger that they have become more certain or definite in their recollections by virtue of having them confirmed by their friends when they might not otherwise have been as certain about what they recalled individually.

10However, their evidence still has value with respect to the identity of the perpetrator. There was no suggestion that the young men were exposed to any external information about the perpetrator or the defendant that could have contaminated their recollections. For example, there is no reason to believe that the boys got their information about the height of the perpetrator from some external source, rather than from their own recollections.

11That said, I do caution myself about placing too much weight on their evidence, precisely because they may have come across as more certain than they would have if they had not reinforced one another in their recollections. Furthermore, I must be careful not to place extra weight on any aspect of the description because it was given consistently by all three of the young men, since this could simply be one person's recollection that has been inadvertently incorporated into the others' recollections. As well, this was a very brief and stressful interaction, and the usual dangers of eyewitness evidence are present.

Witness Descriptions

12The witnesses gave the following descriptions of the man who sprayed Kyle in the face:

Feature	Kyle Byers	Zachary Turner	Elliot Staples
Height	Very tall. Taller than me by a couple of inches – I am 6'.	Taller than me by a few inches, like 3 or 4 inches – I am 6' or 6'1".	Very tall. Taller than me – I am 6'1" and he was taller than me by 2-3 inches.
Build/posture	Almost as skinny as me – I am 145 lbs.	Skinnier than me – I am 200 lbs; the driver was in between me and Kyle in terms of build.	Skinny but not as skinny as Kyle. Carried himself slouched or hunched over, not standing up straight.
Race	White	White	White
Hair	Short on sides, ears visible.	Quite short, could see ears.
Neck	Could not make out his neck.	Did not see any tattoo on neck.	Did not recall any markings on neck.
Facial hair	Chin strap beard from sideburns down around chin but no moustache.	Scruffy beard, moustache; shorter than the defendant's beard as he appeared in court.	Some facial hair, not a lot, some scruff on chin and jaw; did not recall whether it extended up to sideburns. No moustache that he recalled.
Tattoos	Tattoos on both arms, tattoo sleeves – full tattoo from elbow down to the wrist.	Tattoos on both arms. This was something Kyle told him but claims he also has an independent memory. Did not recall any tattoo on neck.	Tattoos on wrists that looked like they would have gone up arms. Agreed he got this information from Kyle and that he did not really recall it.
Jewellery	Necklace, shiny silver, it was smaller, went to edge of collarbones.	No jewellery.	More than one necklace, silver and gold colour. However, agreed he got this information from Kyle and that he himself did not specifically recall it.
Watch	Silver watch on right wrist.	I don't think so.	Did not recall seeing watch.
Hat	Flat brimmed cap, brim to back. White.	Flat brimmed cap. Dark colour. Thinks brim was to back. This was something Kyle told him but claims he also has independent memory of it.	Flat brimmed cap. Can't recall whether brim to front or back.
Glasses	Sunglasses.	Black sunglasses.	No glasses or sunglasses.
Shirt	Short sleeved t-shirt, white with black sleeves, relatively fitted.	Dark coloured t-shirt, thinks it was grey, baggy.	T-shirt with some kind of graphic. Dark colour. Did not recall if long or short-sleeved.
Pants	White jeans; vivid recollection.	Blue jeans, medium colour.	Baggy jeans not pulled all the way up, Light blue.
Other	Cigarette in mouth
Distance away from witness	About 5 feet.	About 15 feet.	About 15 feet.
In dock ID	Identified defendant.	Identified defendant. As seen in court, defendant is now wearing reading glasses and has a more full beard than on day of incident.	Identified defendant. Today he has much bigger beard and is wearing glasses. Hair on head looks about the same.

13The three witnesses gave the following evidence about the man who got out of the front passenger side of the car, and the passengers who remained in the rear of the car:

Feature	Kyle Byers	Zachary Turner	Elliot Staples
Front passenger	Male.	Male.	Male. Shorter than me. Fairly skinny but not as skinny as driver, about same build or maybe a little bigger than me. Red hat and red shirt or sweatshirt, long sleeved. Shorts.
Others	Two people in back of car with long hair a little past shoulders.	Two females in back of car, with longer hair.	Did not see anyone in back of car

14The three witnesses gave the following descriptions of the car:

Feature	Kyle Byers	Zachary Turner	Elliot Staples
Colour	Black	Black; friends helped him confirm this, but has independent recollection of it.	Black
Size	Small.
Make/model	Honda Civic	Honda Civic 4 door Late 90's early 00's model.	Boxy, old Honda Civic
Windows	Tinted	Lightly tinted	Tinted.
Licence plate	Tinted
Exhaust		Loud, but this was information from his friends; sounded like exhaust had a hole or an after-market muffler tip.
Wheels			Chrome after-market rims

Assessment of Eyewitness Evidence

15The teenagers' descriptions of the perpetrator would not justify a finding that the Crown has proved identity beyond a reasonable doubt. It would be unsafe to convict on their evidence alone given the reliability issues with eyewitness accounts, particularly when arising out of a very brief and stressful interaction with a complete stranger. In this case, those dangers are compounded by additional concerns arising from the fact that the witnesses discussed their recollections and at least in some measure contaminated each other's recollections in ways that it is now impossible to untangle. As well, the police did not conduct a photo lineup.

16However, the teenagers' descriptions of the perpetrator do have probative value.

17I find that Kyle Byers' description of the perpetrator as being taller than he was, but not quite as slim are reliable, as is his recollection that the perpetrator wore jewellery around his neck. Kyle was in close quarters with the perpetrator when the perpetrator approached, raised his arm and sprayed Kyle in the face. Kyle was well situated to perceive the perpetrator's height and build in relation to his own. Kyle himself was 6 feet tall at the time. He was also best situated to observe jewellery.

18I also find that Elliot Staples' description of the perpetrator as having a slouched posture is a reliable description. Neither of the others described this, so I have some confidence that this is in fact Elliot's own recollection.

19Furthermore, I find that it is appropriate to place some weight on the three witnesses' various recollections about the following features of the perpetrator: he was slender, although not as slim as Kyle, who was really very slim; he wore a flat-brimmed cap; he had tattoos on both arms; and he had some facial hair short of a really full beard.

20The fact that the three witnesses discussed these points and may have contaminated or added certainty to one another's recollections does not, in my view, mean that these aspects of their descriptions have to be completely removed from the evidentiary mix. What it does mean is that I do not give additional weight to these aspects of the descriptions by virtue of the fact that the three witnesses were consistent or at least somewhat consistent on these points. (On the question of "somewhat consistent", I note for example that all three witnesses testified that the perpetrator had facial hair, although they differed in their precise descriptions.) As well, I acknowledge the danger that they might have been uncertain about some details, and became more certain through discussion with one another. This diminishes the weight that I place on their descriptions, but does not make them totally unworthy of being given any weight. Importantly, there was no suggestion that the witnesses had any external source of information to incorporate into their accounts.

Video Evidence from Gananoque Marina

21The police obtained video footage from a camera mounted at the Gananoque Marina. This was entered as an exhibit. The camera shows a view that faces away from the St. Lawrence River, and towards Clarence Street, which comes come more or less directly towards the camera.

22In the video, a small, black car can be seen driving towards the marina on Clarence Street, and making a right turn onto Bay Road towards the area where Kyle Byers was attacked. The video recorded the time as 16:44.

23It is possible to pause and zoom in on this video during playback. The Crown had the police officer do this at two points during playback of the video, and screenshots of those zoomed-in views were entered on a thumb drive as Exhibit 9. The car seen in the video is a small black, boxy four door sedan. It has after-market (non-factory) wheels. The front passenger is wearing a red shirt.

24The intersection of Clarence Street and Bay Road is about 200 meters away from the spot where Kyle Byers was attacked. The car in the video makes a right turn to go west towards that location.

25Given the timing and location of the video, and the similarities between the car seen in the video, the eyewitnesses' descriptions of the car and the detail about the red shirt, I find that the car in the video is the same car as the one driven by the person who assaulted Kyle Byers.

Mr. Serson's Connection to an Older Black Honda

26The police seized a 1998 four-door black Honda CXE from the residence of Joe Campbell in Gananoque. The car was registered to a Ryan Krohn, but when contacted by police, Mr. Krohn indicated that he had sold the car some months previously.

27On consent of the defence, the Crown filed the witness statement of Joseph Campbell. It was agreed that I could treat the statement as though it was Mr. Campbell's testimony in court. Mr. Campbell was clearly reluctant to get involved in a police investigation, but did acknowledge that he had given Mr. Serson permission to park the car there, because Mr. Serson's mother lived on the property and because he thought Mr. Serson was a nice guy. However, Mr. Campbell was vague about whether Mr. Serson had exclusive use or access to the car. He told the police: "I told him to go right ahead if you want like I don't care like it's an empty parking lot so… if he wanted to like him and his buddies want to park it there and do their stuff with it and work on it sure."

28A Gatorade bottle was seized from the car. Mr. Serson's DNA was on the bottle, as was that of another man, Andrew Ubdegrove. As well, the police seized a receipt from inside the car, for bear spray purchased at the Canadian Tire store in Gananoque on September 25, 2017.

29The Crown entered a series of photographs of the car.

30I find that the car seized from Mr. Campbell's driveway is the car driven by the man who attacked Kyle Byers. I base this finding on the following. (1) The consistencies between the car and what the teenagers described: it was a four-door, boxy, older model Honda with after-market wheel rims, tinted windows and smoked plastic covers on the licence plates (this last detail is not apparent from the photos, but was included in the narrative that the Crown read in from the identification officer, on consent of the defence). (2) The car seen in the video from the marina camera looks just like the car seized from Mr. Campbell's driveway.

31I also find that Mr. Serson had access to this car. I base this finding on Mr. Campbell's statement, and on the fact that Mr. Serson's DNA was found on the Gatorade bottle in the car.

32In addition, I find that Mr. Serson was likely the primary person associated with this car. Mr. Campbell allowed the car to be parked there because Mr. Serson's mother lived on the property. This increases the likelihood that Mr. Serson was, if perhaps not the sole person associated with the car, probably the primary person associated with it.

Video Evidence Regarding the Purchase of Bear Spray at Canadian Tire on September 25, 2017

33The police seized a receipt from the black Honda, showing a purchase of bear spray at 6:18:16 p.m., on September 25, 2017, paid for with cash, and marked as transaction number 245, from the Canadian Tire store in Gananoque.

34In-store video from the Canadian Tire store from that day showed the transaction where the bear spray was purchased. This was entered as Exhibit 5. A young woman can be seen interacting with the cashier, providing identification and completing the "Notice to Purchaser" paperwork associated with the purchase of bear spray. On the Notice to Purchaser, the young woman identified herself as Elizabeth Lacelle-Renshaw. The store clerk can be seen printing a duplicate receipt and stapling it to the Notice to Purchaser kept by the store. The Notice to Purchaser and the duplicate receipt were filed together as exhibit 3. The duplicate receipt is identical to the one seized from the car, except for being printed one minute later.

35After completing the transaction, Ms. Lacelle-Renshaw is seen leaving the cash area, presumably headed towards the exit doors, but shortly afterwards can be seen re-entering the store past the same cash area.

36More than 10 minutes later, Ms. Lacelle-Renshaw approached the same cashier station, in the company of three others: another young woman, and two young men. The taller of the two young men paid for a purchase, and the four left together. In video from a camera mounted outside the store, the four can be seen together, with the two young men walking slightly in front of the two young women.

37The four walked off camera to the left of the viewed area, and less than two minutes later, a small dark sedan can be seen driving across the viewed area, coming in from the left, and then leaving the parking lot. There were very few other cars in the parking lot, at least as seen in the viewed area.

38A Gananoque police officer testified that she recognized Mr. Serson as the taller young man who is seen making a purchase, that she recognized the other young man as Andrew Ubdegrove, and that she recognized the two young women as Elizabeth Lacelle-Renshaw and Brittany Hughes. The officer testified that she had had prior professional dealings with all four. After discussion about whether that evidence was subject to a requirement for a voir dire (see R. v. Leaney, [1989] 2 S.C.R. 393; R. v. Berhe, 2012 ONCA 716), the defence conceded that the officer was in a position to identify Mr. Serson as the taller young man in the video, and in any event did not challenge the officer's ability to recognize the people in the video, or the accuracy of her identification/recognition evidence in relation to any of the people seen.

39As seen in the Canadian Tire video, Mr. Serson is very tall, he has visible tattoos on both arms, and on at least the right side of his neck. He was wearing a flat-brimmed cap. He had a very short beard, less full than the beard he had during the trial, and his hair was short. He was wearing a chain that went part way down his chest, although it is hard to say what colour the chain was from the video. He can be seen putting on sunglasses as he left the cash area. His posture was slouchy. He is taller than the other man, identified by the officer as Andrew Ubdegrove, who was wearing a red shirt.

40Given the receipt for bear spray found in the black Honda and the fact that the black Honda was driven by the person who attacked Kyle Byers, it is a fair inference that the can of bear spray Ms. Lacelle-Renshaw purchased at Canadian Tire on September 25, 2017 was the can of bear spray that the perpetrator used to spray Kyle Byers.

41The quality of the video from the Canadian Tire parking lot is not sufficient to make a positive determination as to whether the small dark sedan seen at 18:39:29 is the car that was seized from Joe Campbell's driveway. However, it is a small, very dark, boxy sedan, and there is nothing about it that is noticeably inconsistent with the car seized from Mr. Campbell's property.

Other Evidence About Ms. Lacelle-Renshaw and Bear Spray

42On consent of the Crown, the defence relied on an unrelated police occurrence report for the truth of its contents. According to that report, on October 6, 2017, the Gananoque police stopped a 2004 Toyota van. Ms. Lacelle-Renshaw was in the driver's seat, and a male known as Howie Murray was in the rear on the driver's side. The police saw that there were potential dangerous weapons in the vehicle, and that there was a can of bear spray in the driver's door. The Crown filed a photograph of the can of bear spray seized from the Toyota van. It was red, whereas the can of bear spray that Ms. Lacelle-Renshaw purchased at the Canadian Tire on September 25, 2017 looks to be green, although both cans are black at the top and bottom.

43I find that the October 6, 2017 occurrence report has little to no probative value as regards the identification issue on these charges. It shows, at most, that Ms. Lacelle-Renshaw had access to bear spray on another occasion, and that she was not with Mr. Serson on that occasion, but rather was with a different man, Howie Murray. There was no evidence about the appearance of Howie Murray, and whether he would meet the descriptions of the man who attacked Kyle Byers. There was no suggestion that Howie Murray had any access to the black Honda.

Conclusion on Identity of the Perpetrator

44I find that the Crown has proved Mr. Serson's identity as the person who attacked Kyle Byers beyond a reasonable doubt. In making this finding, I rely on the following constellation of facts:

a) Mr. Serson had access to the Honda that was driven by the perpetrator.

b) Mr. Serson was not immediately with Ms. Lacelle-Renshaw when she purchased a can of bear spray a few days earlier, on September 25, 2017. However, Mr. Serson was clearly with her at the Canadian Tire that day, and they left the store together.

c) At the Canadian Tire store on September 25, 2017, Mr. Serson was in company with another young man in a red shirt who was shorter than him, and with two young women who had long hair. On October 1, 2017, the perpetrator was in the company of another man who was shorter than he was and wore a red shirt, and the passengers in the back seat of the Honda had long hair.

d) A receipt for the can of bear spray purchased by Ms. Lacelle-Renshaw on September 25, 2017 was found in the Honda, and no can of bear spray was found in the Honda.

e) As seen in the Canadian Tire video Mr. Serson appears to be very tall. In this regard, he matches Kyle Byers' description of the perpetrator.

f) As seen in the Canadian Tire video, Mr. Serson does not have an entirely upright posture. He slouches. In this regard, he matches Elliot Staples' description of the perpetrator.

g) As seen in the video from the Canadian Tire store, Mr. Serson substantially matches many other aspects of the teenagers' descriptions of the perpetrator, even allowing for the areas where their descriptions differed between one another or differed somewhat from Mr. Serson's actual appearance. For instance: slender build, some facial hair but not a full or substantial beard, short hair with ears visible below hat, tattoos that substantially covered both forearms, flat-brimmed cap and jewellery. I have considered the fact that Mr. Serson has a noticeable tattoo on at least the right side of his neck, which none of the witnesses described and that the witnesses gave different descriptions of his jewellery, none of which precisely matched the chain Mr. Serson was wearing on September 25, 2017. I find that in the circumstances of a brief interaction where the perpetrator was facing them, a neck tattoo would not have stood out, nor would the details as opposed to the fact of his jewellery, as noticed by Kyle Byers.

h) Andrew Ubdegrove, the other man whose DNA was found on the Gatorade bottle in the car, and who was with Mr. Serson at the Canadian Tire along with Ms. Lacelle-Renshaw and another young woman on the day of the bear spray purchase, does not match the eyewitnesses' descriptions nearly as well. As seen in the Canadian Tire video he too does have a slouchy posture. He had tattoos on his right arm, but not on his left arm. He might have a very small amount of facial hair towards the back of his jaw line or this could be shadow in the video. He was not wearing any hat and was not wearing any visible jewellery. He did not appear to be of above-average height.

45It is important to note that this is a circumstantial case.

46The eyewitness accounts would not suffice to discharge the Crown's burden of proof on identity standing alone. The eyewitness identification evidence has frailties that arise from the fact that this was a brief and stressful interaction with a stranger, there was no photo lineup conducted and the witnesses discussed their recollections before giving any statement to the police and again afterwards. However, there is also no suggestion of external influence or tainting.

47The circumstantial evidence – about the car and the bear spray – would also not ground a finding of guilt beyond a reasonable doubt without more. However, it does narrow the group of potential perpetrators to what has to be a very small number.

48When the eyewitness descriptions are set against the evidence about the car, Mr. Serson's connection to it, Ms. Lacelle-Renshaw's purchase of bear spray, Mr. Serson's association with Ms. Lacelle-Renshaw on that day, and the fact that the receipt was found in the car, I do find that the only reasonable conclusion is that Mr. Serson is the person who sprayed Kyle Byers in the face. I find it is unlikely to the point of eliminating any reasonable doubt that the eyewitnesses' descriptions would be so aptly consistent with Mr. Serson if he were not in fact the person who drove the car, and who sprayed Kyle Byers in the face.

49Given counsel's concession that identity is the only issue, I find Mr. Serson guilty on all counts, with the exception of count 4, which is dismissed for lack of jurisdiction.