WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES

(1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) OFFENCES – The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: November 9, 2018

Court File No.: Halton 17-29

Between:

Her Majesty the Queen

— and —

Christian Lamontagne

Before: Justice D.A. Harris

Heard on: May 28, 29, June 1, 4, 25, 26, September 6 & October 1, 2018

Reasons for Judgment released on: November 9, 2018

Counsel:

• David King, counsel for the Crown
• M. Martin, counsel for the accused Christian Lamontagne

INTRODUCTION

1Christian Lamontagne has been charged with three offences, all of which are alleged to have occurred in Milton on August 25, 2017. More particularly, he is accused of:

1. kidnapping;
2. abduction; and
3. breach of probation.

2The first two charges are indictable offences. Crown counsel elected to proceed by indictment with respect to the breach charge. Mr. Lamontagne elected trial in the Ontario Court of Justice. He pled not guilty and a trial began.

3Mr. Lamontagne had applied for an order that any evidence of him being identified by the witness KT should be excluded. I dismissed that application.

4Five witnesses were called by Crown counsel. These were KT, Marissa Tang Fong, Halton Regional Police Detectives Mike Rotsma, Matt Cunnington, Robert Todd, Dana Gray, Jody Dennis, Jason Francis and Shawn Mazzuto and Halton Regional Police Constable Nate Matthew.

5No one testified for the defence.

THE APPLICABLE LAW

6The principles in R. v. W (D) do not apply.

7Having said that I am mindful of the fact that if, after considering all of the evidence that I accept in this case, I have a reasonable doubt as to guilt, I must acquit him.

8Mr. Lamontagne, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities".

9This is a tough standard and it is so tough for very good reason. As Cory J said in R. v. Lifchus: "The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted".

10The case against Mr. Lamontagne depends on my assessment of the evidence of KT.

11In that regard I note the differences between credibility and reliability. Credibility relates to a witness's sincerity, whether she is speaking the truth as she believes it to be. Reliability relates to the actual accuracy of her testimony. In determining this, I must consider her ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.

12Finlayson J.A. stated in R. v. Stewart that:

I am not satisfied, however, that a positive finding of credibility on the part of the complainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts the complainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record.

13The distinction between credibility and reliability is very pertinent in this case where I am satisfied of the sincerity of KT. I am satisfied that she believed what she said. My concern is with the reliability of her belief. I will deal with this at greater length later in these reasons.

14At this point I will say that while my decision with respect to the credibility of KT is based, in part, on her demeanour while testifying, I am well aware that a finding of credibility should never be based on demeanour alone, especially where there are significant inconsistencies and conflicting evidence on the record. The credibility and reliability of a witness must be "tested in the light of all the other evidence presented".

15I also stress that while I am satisfied that I may rely on the demeanour of KT as a factor in assessing her credibility, I consider it to be of very little, if any, assistance in assessing the reliability of her evidence.

16Counsel for Mr. Lamontagne has pointed out inconsistencies between the evidence of KT and that of Marissa Tang Fong and certain photographs and videos.

17In assessing the credibility of a witness, it is appropriate to examine the inconsistencies between what the witness said and what other witnesses said. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies.

18Crown counsel has argued that KT had no motive to fabricate the allegations against Mr. Lamontagne.

19The absence of any motive to fabricate an allegation is a proper matter for consideration in the course of the fact finding process. It is, however, only one of the factors to be considered by me. I cannot simply conclude that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Rather, I must assess the credibility and reliability of the complainant's evidence in the light of all of the other evidence. Nor can I automatically equate a lack of evidence of motive to fabricate to the proved absence of motive to fabricate.

20Finally, both counsel agree that I should take note of the recommendations of the The Inquiry Regarding Thomas Sophonow and instruct myself as follows:

1. I note the frailties of eyewitness identification and recognize that the apparent confidence of a witness as to his or her identification is not a criteria of the accuracy of the identification.

2. I note that tragedies have occurred as a result of mistakes made by honest, right-thinking eyewitnesses and that the vast majority of the wrongful convictions of innocent persons have arisen as a result of faulty eyewitness identification.

3. I instruct and caution myself with regard to an identification which has apparently progressed from tentative to certain and consider what may have brought about that change.

4. Finally, I note that mistaken eyewitness identification has been a significant factor in wrongful convictions of accused in the United States and in Canada, including the Thomas Sophonow case.

THE EVIDENCE OF KT

21KT's evidence is critical in this case.

22She identified Mr. Lamontagne as the man who grabbed her son and tried to take him away. She ultimately identified him from a photo lineup (I will have more to say about this shortly) and in court.

23Both counsel agreed that this identification suffers from a number of frailties.

24KT had only a very short time to observe her son's abductor.

25Her attention during this short period of time was focused more on her son than on his abductor.

26This was a cross-racial identification.

27The person was a complete stranger to her.

28Counsel for Mr. Lamontagne further argued that the evidence of KT identifying Mr. Lamontagne as the person who attempted to abduct her son has very little if any probative value because of flaws in the photo lineup process.

29More particularly, she argued that the process used in this case failed to comply with the recommendations flowing from the Sophonow Inquiry.

30I dealt with this issue at some length in my earlier ruling and I do not intend to repeat that in full here. I will however summarize much of what I said earlier.

31The photo lineup process did follow a number of the recommendations from the Sophonow Inquiry.

32There were 12 subjects in the photo pack in this case.

33The process was video and audio recorded from the time that the officer met KT, before the photographs were shown through until the completion of the interview. The officer who conducted the photo pack line-up was not involved in the investigation and did not know who the suspect was.

34Before the showing of the photo pack, she informed KT that she did not know who the suspect was or whether his photo was contained in the line-up. In addition, she advised KT that it was just as important to clear the innocent as it was to identify the suspect.

35The photo pack was presented sequentially and not as a package.

36In addition, there was a form provided for setting out in writing and for signature the comments of both the officer conducting the line-up and KT. All comments were noted and recorded verbatim and signed by KT.

37There were some ways in which the photo lineup did not fully live up to the recommendations of the Sophonow Inquiry.

38The Inquiry recommended that "the photos should resemble as closely as possible the eyewitnesses' description. If that is not possible, the photos should be as close as possible to the suspect".

39In the photo lineup here, several of the photos were of men with short cropped hair on the top of their head as opposed to thinning hair or baldness.

40KT told the 911 operator that the man did not have much hair. He was balding. What hair he had was dark.

41She told the police officer that, "He had black hair. It was really thin on top. He didn't have thick hair at all but it was thinning as it went down. He was bald on top and his hair started again like right above his ears".

42Since Mr. Lamontagne's hair matches the description given by KT, the above men in the photo lineup did not look like him either.

43In my earlier ruling, I rejected counsel's argument that KT had identified the offender as "East Indian" rather than "Black" whereas a significant number of the photos were of Black men and almost none were "East Indian'. I shall not repeat my reasons here.

44The Sophonow Inquiry did recommend that, "Police officers should not speak to eyewitnesses after the line-ups regarding their identification or their inability to identify anyone. This can only cast suspicion on any identification made and raise concerns that it was reinforced."

45Detectives Cunnington and Dennis both spoke to KT following the line-up. It is important to note here that KT had not identified Mr. Lamontagne's photo as being that of her son's abductor.

46I accepted Detective Cunnington's evidence that he intended only to say good-bye to her and to assure her that the police would continue their investigation.

47According to KT, he told her that she need not worry, that the photo lineup was only "one nail in the coffin". When asked to explain, he told her that it was just one part of the investigation.

48Detective Cunnington denied using the phrase "one nail in the coffin". It was not something he would say. He did tell her that it was just one part of the investigation.

49I accept his evidence on this point over hers.

50Both agreed, however, he did speak to her about her inability to identify anyone. That was how he came to learn that she was having second thoughts about her failure to pick one particular photograph.

51I accepted that the police officers were unsure of what they should do next because none of them had experienced this particular sequence of events before. They attempted to deal with the situation in what they thought was the best way available to them. However, this meant that Detective Dennis also spoke to KT about her inability to identify anyone.

52Both Detectives Cunnington and Dennis knew who the suspect was in this case and that his photograph was contained in the photo deck. However, I was satisfied that neither of them did anything to steer KT towards picking Mr. Lamontagne's photograph.

53Before she was shown the photos KT knew that a suspect was in custody and that the police were confident that they had found the right person.

54I saw no problem with her knowing that the police suspected someone. The Sophonow Inquiry's recommendations include repeated references to "the suspect" indicating an expectation that witnesses would be aware that there was a suspect. The recommendations are clearly intended to reduce the possibility that the witness might draw improper inferences from this.

55I found that the fact that she knew that the suspect was in custody might make her believe the police must have other evidence to justify the arrest.

56The fact that she was told that the police were confident that they had the right person is even more problematic in that regard.

57I noted however that KT asked beforehand what would happen if she did not pick anyone and she was told that the police would continue the investigation and during the process itself, she was told that the suspect might not be included in the photos. She was also told that it was important to clear the innocent.

58These cautions clearly had an effect on KT. She did not identify Mr. Lamontagne's photo or that of anyone else initially.

59That fact is significant.

60KT initially chose to exclude Mr. Lamontagne as the abductor.

61I agree with Crown counsel's submission that her body language and the time she spent looking at his picture suggested that she was giving serious thought to identifying him as the man.

62I also agree that she clearly exhibited signs of regret about this decision very shortly afterwards.

63Finally, I agree that this could have been the result of either a lack of certainty or a desire to be thoughtful. She certainly took the latter position in explaining why she initially said "no".

64In making my assessment of her evidence however, I have also taken into consideration other pieces of evidence. Some of these can be seen to corroborate her identification of Mr. Lamontagne. Some are neutral. Some are inconsistent with that identification. I will review those categories of evidence in that order.

CORROBORATING EVIDENCE

65Mr. Lamontagne lived nearby, and he had access to a black car that did not have a rear licence plate.

66Counsel for Mr. Lamontagne argued that I cannot know how much weight to give his access to the car in the absence of evidence as to the number of vehicles that might match that description. She stressed that this sample of vehicles should include those in driveways nearby plus those which might be unseen in garages within that same area as well as vehicles which might have left the area.

67I disagree.

68I find that this is evidence that could corroborate KT's identification of Mr. Lamontagne. It is significant that she identified someone who lived nearby and had access to a black car that did not have a rear licence plate. That established opportunity for him to be the abductor.

69Early on she described the man as having darker skin like an East Indian. That applies to Mr. Lamontagne.

70She also described him as having a strong jaw. That also applies to Mr. Lamontagne.

71I will deal with descriptors she gave that do not apply to him shortly.

NEUTRAL EVIDENCE

72There is no DNA evidence.

73There are no video recordings or photographs of the perpetrator.

74There are no texts or emails implicating Mr. Lamontagne.

75There is no evidence of any motive for him to abduct the child.

76None of this absolves Mr. Lamontagne. I am simply noting the absence of factors that could have served to corroborate the identification had any of them existed.

77I am not satisfied that I can treat his cleaning of the hard drive on his computers as evidence of consciousness of guilt and I am not doing so.

78With respect to the evidence that Mr. Lamontagne moved the car after the police first came by, I note that Constable Matthew took no photographs of the initial location of the car and made no notes in that regard. He was trying to identify every possible suspect vehicle within a particular area and did not have much time to concentrate on any one particular car. Further his evidence is contradicted by that of Ms. Tang Fong. I recognize that her evidence suffers from the same frailties as that of the police officer, but in the end I am not satisfied that the evidence on this point assists the Crown's case to a significant degree.

INCONSISTENT EVIDENCE

79KT testified that the abductor entered the car on the passenger side and it drove away immediately. It may have been possible for the man to have somehow crossed over to the driver's side quickly but it strikes me as more likely that a second person was driving.

80Crown counsel argued that this would not absolve Mr. Lamontagne. It was also possible that he had an accomplice working with him. I agree that this was possible but it certainly complicates the Crown's theory about the suspect vehicle being the one parked at Mr. Lamontagne's house nearby. Who was the accomplice? Where had he disappeared to so quickly? The Crown is not required to answer those questions by any means but the Crown's theory becomes less neat and tidy if we inject an accomplice into the picture.

81There were a number of aspects of KT's initial description of the suspect that did not match up with Mr. Lamontagne. In that regard I have noted the evidence of Ms. Tang Fong and the videos and photographs which were entered into evidence.

82Mr. Lamontagne was clean shaven. KT said that the man's facial hair was scruffy like he had not shaved in 4 or 5 days.

83Mr. Lamontagne did not have bushy eyebrows. KT said the man had bushy eyebrows.

84His head was completely shaved. There was not any hair growing in the areas near his ears, let alone thicker hair. KT said there was.

85He did not own a purple shirt or bluish green jeans like those described by KT.

86When Ms. Tang Fong arrived home he was wearing the same green T-shirt that he was wearing earlier in the day. At that time he was wearing boxers. Earlier in the day he was wearing shorts.

87KT did not notice any tattoos. Mr. Lamontagne had a tattoo on his one arm.

88Crown counsel argued correctly that Mr. Lamontagne had time to change his clothes and dispose of those that he had been wearing and to shave and that his tattoo might have been covered by his shirt. These explanations further strain the Crown's case however. So would the fact that he would likely have needed to have obtained the clothes beforehand without his wife knowing about them, presumably for the express purpose of committing this offence.

89Finally, the timing of Mr. Lamontagne running the program cleaning his computer hard-drive might have been inconsistent with KT's approximation as to the time when her child was grabbed.

CONCLUSION

90Both counsel agreed that the facts presented here could support either a finding that someone attempted to abduct the child but ultimately failed to do that, or that the person successfully abducted the child, albeit only momentarily.

91I agree that the facts support a finding that someone abducted the child.

92As I stated earlier, I am satisfied that KT honestly believes that Mr. Lamontagne was that someone.

93After considering all of the evidence however, I am not satisfied beyond a reasonable doubt that Mr. Lamontagne was that man.

94The charges against him are dismissed.