COURT OF APPEAL FOR ONTARIO DATE: 20220408 DOCKET: C68399

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Courtney Anthony Lewis Appellant

Maija Martin and Stephanie Brown, for the appellant Sunil Mathai, for the respondent

Heard: April 1, 2022 by video conference

On appeal from the conviction entered on November 29, 2019 by Justice Vanessa V. Christie of the Superior Court of Justice.

REASONS FOR DECISION

Overview

[1] On June 25, 2012, Ryan Turcotte spent the evening at a bar in Muskoka. He returned to Barrie in the early morning hours of June 26, 2012, on a bus provided by the bar. Ryan Zaroski, a security person employed by the bar, was also on the bus with the passengers. During the ride back to Barrie, Mr. Zaroski noticed tension between Mr. Turcotte and another bus passenger, Aaron Lewis. Before the bus arrived in Barrie, Mr. Zaroski called the police to report that there was going to be a confrontation.

[2] When the bus stopped at a strip plaza in Barrie, the police had not arrived. Mr. Zaroski was still on the phone with a 911 dispatcher when he witnessed Mr. Turcotte being set upon by three people in the parking lot of the plaza. Mr. Turcotte was pushed and punched. Upon falling to the ground, he was kicked. The assault happened quickly, but it left Mr. Turcotte with a significant brain injury.

[3] The appellant and his cousin, Aaron Lewis, were tried on the offence of aggravated assault by a judge sitting without a jury. [1] The Crown alleged that the appellant had participated in the assault on Mr. Turcotte by punching him. The Crown relied on the evidence of three eyewitnesses: Mr. Zaroski; David Ribble, the bus driver; and Kiki Mukendi, a friend of Mr. Turcotte who was also on the bus. The trial judge convicted the appellant but acquitted Aaron Lewis.

[4] The appellant argues on appeal that the trial judge erred in her assessment of the eyewitness evidence. We disagree. For the reasons below, we dismiss the conviction appeal. [2]

The Identification Evidence

[5] Mr. Mukendi and Mr. Zaroski testified that the appellant participated in the assault. Mr. Ribble did not identify the appellant as having participated. When the police arrived at the scene, Mr. Mukendi told them that the individuals who were responsible for the attack lived at an address on Rose Street. He took the officers to that address. The appellant was at the residence located at that address, and he was arrested.

[6] Mr. Zaroski was an important witness for the Crown. He testified that, upon arrival in Barrie, he told Mr. Turcotte that it would be in his best interest to go home quickly. Mr. Turcotte exited the bus once it pulled into the parking lot of the strip plaza.

[7] Mr. Zaroski testified that, from his position inside the bus, he saw the appellant waiting in the parking lot alone when the bus arrived at the plaza. He described the appellant as wearing a black hoodie and black pants. He recognized the appellant as soon as the bus stopped. He said that the appellant was a casual acquaintance with whom he would have spoken a few times before, and whom he had seen around the bar scene. He said that he had seen the appellant enough times before that day that he would have been comfortable saying “hey” to him, asking him “how’s it going?”, and telling him to “have a good night”.

[8] Upon exiting the bus, Aaron Lewis walked up to the appellant. They joined some others, who all then approached Mr. Turcotte.

[9] According to Mr. Zaroski, Aaron Lewis pushed Mr. Turcotte, then the appellant punched Mr. Turcotte on the left side of his head. He testified that there were more punches that followed the first punch, but that he did not know who threw those punches. After the assault, the assailants fled the scene toward townhouses around Rose Street.

[10] A brief cellphone video was taken of the altercation by an unknown individual. However, the video was of poor quality. Mr. Zaroski testified that he could not identify the appellant in this video.

The Trial Judge’s Reasons

[11] The trial judge convicted the appellant but acquitted Aaron Lewis. The trial judge concluded that the Crown had established that the appellant had punched Mr. Turcotte on the left side of his head in the parking lot.

[12] The trial judge found Mr. Mukendi to be neither a credible nor a reliable witness. She found that Mr. Zaroski and Mr. Ribble were credible, but that significant parts of their testimonies were unreliable.

[13] Although the Crown relied on eyewitness identification from all three individuals to prove its case against the appellant and Aaron Lewis, the trial judge noted that the circumstances of the case against the appellant were different. She comprehensively reviewed the law on identification evidence and then discussed the specific frailties with respect to the eyewitness evidence against each accused. Although she found the identification evidence regarding Aaron Lewis to be “replete with problems”, she found the identification evidence of the appellant to be “very strong”. Ultimately, largely relying on Mr. Zaroski’s evidence, the trial judge was satisfied beyond a reasonable doubt that the appellant was in the parking lot waiting for the bus to arrive, that he approached Mr. Turcotte, that another individual pushed Mr. Turcotte, and that the appellant then punched Mr. Turcotte in the head. She further concluded that other people were also involved in punching Mr. Turcotte, and that he went down to the ground and was not moving. [3]

Discussion

[14] The appellant takes issue with the trial judge’s approach to the identification evidence in this case. He makes four main submissions.

[15] First, the appellant argues that the trial judge erred by treating Mr. Zaroski’s evidence as recognition evidence. According to the appellant, the nature of Mr. Zaroski’s observations fell short of being recognition evidence, and the trial judge should have subjected Mr. Zaroski’s purported identification to a more stringent analysis. We disagree.

[16] It is not disputed that triers of fact are entitled to take into account whether a witness is acquainted with an accused when assessing the reliability of that witness’s identification evidence: R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d) 783, at para. 31, citing R. v. Olliffe, 2015 ONCA 242, 331 O.A.C. 12, at para. 38. In her reasons, the trial judge correctly noted that recognition evidence, as a subcategory of identification evidence, has the same frailties and risks as identification evidence, demands the same cautious approach as identification evidence, and requires the same level of reliability as identification evidence: Chafe, at paras. 29, 30, and 32; Olliffe, at paras. 39-40.

[17] We are not persuaded by the appellant’s submission that the trial judge erred in her approach to Mr. Zaroski’s evidence. The trial judge succinctly explained why she accepted Mr. Zaroski’s testimony as powerful evidence of recognition:

Mr. Zaroski provided a detailed account of the assault, one that appears to me to be corroborated by the video evidence. In my view, Ryan Zaroski, having had previous interactions with [the appellant], had ample opportunity to observe him on June 26th, 2012. Mr. Zaroski recognized [the appellant] from the moment they parked in the parking lot. While this was a fast-moving event without a lot of light, Mr. Zaroski clearly saw [the appellant] punch Mr. Turcotte, sending him to the ground. Mr. Zaroski saw who he believed to be [the appellant] going toward the townhouses. He gave the name of [the appellant] to police at the scene, however, he wanted to verify with a photo. That very morning he was able to find a picture of [the appellant], who he already believed the person to be, and confirmed it was him. There was no suggestion that Mr. Zaroski colluded or worked with anyone when coming up with that photo. [The appellant] was arrested in the area of … Rose Street, having been associated with that address.

[18] It was open to the trial judge to find that Mr. Zaroski’s evidence was recognition evidence. As described earlier, Mr. Zaroski testified that the appellant was a casual acquaintance, that he saw him around the bar scene, and that he had spoken with him enough times prior to the assault that he would have felt comfortable making small talk with him.

[19] The trial judge’s finding that Mr. Zaroski was a recognition witness was firmly rooted in the evidence. It was for the trial judge to assign weight to this evidence, and we see no error in her approach.

[20] Nor do we agree with the appellant’s argument that the trial judge erred in relying on Mr. Zaroski’s evidence because she failed to comment upon what the appellant submits is his “distinctive … lazy eye”. Counsel on appeal acknowledge that this was never put to Mr. Zaroski, and that it was only raised during closing submissions. The respondent points out that the trial judge observed that “one of the eyes of [the appellant] opens larger than the other”, yet there was no evidence on this point, and the pictures of the appellant filed as exhibits at the trial did not demonstrate that the appellant did, in fact, have a “lazy eye”.

[21] In our view, the trial judge dealt with this purported omission. In any event, the absence of extensive commentary on this single feature, about which no evidence was filed at the trial, does not demonstrate that the trial judge fell into error.

[22] Second, the appellant submits that the trial judge erred by failing to consider that Mr. Zaroski’s identification evidence was tainted two times: first, when he apparently heard someone say the name “Lewis” at the scene; and again, later that morning after the assault, when he retrieved a photograph of the appellant from a Facebook page and gave that picture to the police. The appellant argues that the trial judge did not consider the possibility that the utterance at the scene and the retrieval of the photograph did not strengthen Mr. Zaroski’s identification of the appellant, but rather served as confirmation of Mr. Zaroski’s inaccurate belief that the appellant participated in the assault.

[23] We do not accept this submission. We see no error in how the trial judge treated these pieces of evidence. Mr. Zaroski confirmed that, at the time of the assault, the appellant’s name “was on the tip of [his] tongue already” and that hearing the name “Lewis” simply “connected the dots” in his mind about the appellant’s identity. Significantly, the trial judge reviewed this testimony and noted that she had to be extremely cautious about relying on it. Moreover, the trial judge noted that it was unclear whether the word “Lewis” was uttered before or after Mr. Zaroski spoke to the police at the scene. This was important because it was not disputed that the appellant had told the police that the appellant was possibly involved in the assault, and hearing the name “Lewis” after making this report would rebut the allegation of tainting.

[24] With respect to the Facebook photograph, we do not share the concern urged upon us by the appellant. Mr. Zaroski immediately recognized the appellant from the moment the bus entered the parking lot, and then gave the name of the appellant to the police at the scene following the assault. Only after all of that did Mr. Zaroski decide to retrieve a Facebook picture to verify what he already believed to be true. Importantly, we note that the trial judge concluded that there was no suggestion that Mr. Zaroski colluded or worked with anyone to find the Facebook page on which he viewed the photograph of the appellant. As a result, the only way the Facebook photograph could have “tainted” Mr. Zaroski’s identification of the appellant is if it bolstered his confidence in a false identification, such that the trial judge was unable to meaningfully rely on the identification evidence.

[25] The trial judge’s reasons demonstrate that she did not commit this error as alleged by the appellant. To begin, the trial judge reviewed jurisprudence in which viewing Facebook photographs formed part of the identification process: R. v. T.A.H., 2012 BCCA 427; R. v. Mohamed, 2014 ABCA 398, 588 A.R. 89, leave to appeal to S.C.C. refused, 37404 (April 13, 2017). In addition, she provided herself with an extensive self-instruction against using confidence as a proxy for correctness, as this court has repeatedly endorsed: see e.g., R. v. Deakin, 2021 ONCA 823, at paras. 16, 18; Olliffe, at para. 43; R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283, at para. 27. Taken together, we are confident that the relevance and impact of the Facebook photograph was properly assessed and addressed in the trial judge’s reasons. This ground of appeal is therefore dismissed.

[26] Third, the appellant contends that the trial judge erred by failing to consider the cross-racial nature of Mr. Zaroski’s identification because Mr. Zaroski is white and the appellant is black. According to the appellant, Mr. Zaroski’s description of the appellant was so generic that the trial judge was required to self-instruct on the frailties inherent in cross-racial identification: see e.g., R. v. Bao, 2019 ONCA 458, 146 O.R. (3d) 225, at para. 23; R. v. Richards (2004), 70 O.R. (3d) 737 (C.A.), at para. 32. We reject this submission.

[27] Trial counsel for the appellant did not provide any meaningful submissions on this issue before the trial judge. Trial counsel focused on what he perceived to be a tainted identification that was replete with confirmation bias. At one point during his closing submissions, trial counsel simply said:

An additional complicating factor for Mr. Zaroski is that it’s a cross racial identification, and … that’s a notorious additional complicating factor that I ask Your Honour to instruct yourself about. He’s only able to say that … [the appellant] was wearing dark pants and a dark top, nothing else. So that’s … another problem.

[28] The trial judge can hardly be faulted for failing to mention cross-racial identification in her reasons given that trial counsel almost exclusively focused on other matters. Trial counsel specifically argued that Mr. Zaroski’s identification of the appellant suffered from the following frailties: (1) Mr. Zaroski did not identify the appellant during his call to the police; (2) Mr. Zaroski heard the name “Lewis” at the scene and then searched Facebook for the identity of the person; (3) Mr. Zaroski was not certain that the appellant was involved, advising police that it was “possibly” the appellant; (4) no witness identified the appellant from the cellphone video; and (5) Mr. Zaroski and Mr. Mukendi did not identify the appellant’s “lazy eye”. Yet all of these issues were covered by the trial judge in her reasons.

[29] Considered in light of the way the matter was argued and the trial judge’s reasons as a whole, the absence of this self-instruction is not fatal.

[30] The reasons reveal that the trial judge quite properly took an extremely cautious approach to Mr. Zaroski’s identification evidence. She clearly noted the frailties in his evidence and commented that his description of the appellant as wearing dark pants and a dark hoodie was not particularly helpful.

[31] This was not a case such as Bao, on which the appellant relies, where the Crown purported to rely on the description of a suspect by a police officer who only had a few seconds to observe who he described as an “Asian male” with “dark hair”. The trial judge in this case specifically found that Mr. Zaroski recognized the appellant as the bus pulled into the plaza; knew the appellant by name; and told the police that name. She found it would make sense that Mr. Zaroski would tell the police that it was “possibly” the appellant as opposed to providing physical characteristics, since he had some familiarity with the appellant. The trial judge also noted that the appellant was standing ahead of the bus and not among a crowd of people, giving Mr. Zaroski a clear view of the appellant. Although the assault was a fast-moving event, Mr. Zaroski described the appellant punching Mr. Turcotte on the side of his head in an area which was consistent with the photographs tendered at trial depicting the injuries that Mr. Turcotte suffered.

[32] To summarize, there was no suggestion in this case that Mr. Zaroski had any difficulty identifying the appellant because of race. He knew him from around the bar scene and the trial judge accepted that this was sufficient recognition evidence. Trial counsel only briefly raised the issue of cross-racial recognition challenges in passing. In our view, absent specific evidence of cross-racial identification concerns, the absence of that self instruction was not an error: R. v. Hird, 2021 ONCA 881, at para. 21. This ground of appeal therefore fails.

[33] Finally, the appellant argues that the trial judge’s reasons were insufficient and do not permit meaningful appellate review. We reject this submission, which appears to be a repackaging of the previous grounds of appeal. The trial judge’s reasons are thorough, comprehensive, and more than sufficient for appellate review. She clearly grappled with the live issues at trial as presented to her by counsel. The trial judge admirably reviewed the law, set out the strengths and weaknesses of each witness, and provided cogent reasons explaining why she was satisfied beyond a reasonable doubt of the appellant’s guilt. Indeed, it was this same thorough and cautious approach that led her to acquit Aaron Lewis. The evidence with regard to the appellant was different, largely due to Mr. Zaroski’s recognition evidence. The trial judge was entitled to treat the appellant’s situation differently as a result, and her reasons do not demonstrate any insufficiency. This ground of appeal is dismissed.

Disposition

[34] For these reasons, the conviction appeal is dismissed. The sentence appeal is dismissed as abandoned.

“E.E. Gillese J.A.”

“David Brown J.A.”

“S. Coroza J.A.”

[1] Both accused had originally been tried and convicted of the offence by a judge sitting with a jury, but that conviction was set aside on appeal because of deficiencies in the trial judge’s charge to the jury: R. v. Lewis, 2018 ONCA 351. A new trial was conducted by a judge alone.

[2] The appellant has abandoned his sentence appeal by filing a notice dated October 1, 2021.

[3] The trial judge found that the punch was a contributing cause of Mr. Turcotte’s injuries. The appellant has not taken issue with this finding on appeal.