Court File and Parties

Court File No.: Toronto Region Date: January 3, 2018 Ontario Court of Justice

Between: Her Majesty the Queen — and — Derrick Wickens

Before: Justice L. Feldman

Heard on: December 28, 29, 2017

Reasons for Judgment released on: January 3, 2018

Counsel:

• L. Vandersteen for the Crown
• M. Rieger for the accused Derrick Wickens

FELDMAN J.:

Introduction

[1] Derrick Wickens entered not guilty pleas to two counts of Break & Enter with Intent, three counts of Mischief under $5000, three counts of Theft under $5000 and two counts of Fail to Comply with Probation. It is alleged that the defendant unlawfully gained access to 30 Burnhill Rd, an apartment building in Scarborough, and entered the underground parking lot where he broke into three motor vehicles and stole property.

[2] The determinative issue is the identity of the perpetrator. Mr. Wickens was identified on a surveillance video by two police officers, both of whom had prior contact with the defendant. The Crown submits that this recognition evidence, called on a voir dire, is admissible in the trial portion and serves to buttress the surveillance identification.

The Recognition Evidence

[3] Det. Wes Neal testified that he has known Mr. Wickens and his family for about 5 years. He identified the defendant from a Jan. 2 surveillance video in which the individual looks directly at the camera. He said he has seen the accused in the area in the course of other investigations.

[4] On July 8, 2016, Det. Neal, together with other officers, responded to information about a break and enter in progress at apt. 901, 1 Fir Valley Rd. On his arrival at the 9th floor, he saw that Mr. Wickens had been arrested. He was crying and appeared high on drugs. The defendant's brother, Darren, was also present. Det. Neal said he spent about 10 minutes with the accused before he was transported to the police station.

[5] On October 5, 2016, Det. Neal and his team executed a CSDA search warrant at apt. 902 in the same building. As he was waiting to leave the 9th floor, the elevator door opened and he observed two men. One was Mr. Wickens who, the officer said, attempted to conceal his face. Det. Neal had information that the defendant was then on release, one term of which was not to be in that building. Det. Neal saw the accused arrested when he left the elevator.

[6] Det. Const. Anthony Pece also identified the accused from the Jan 2 video. He first had contact with Mr. Wickens during the July 8 incident at 1 Fir Valley Rd. The officer got off at the 9th floor and saw the defendant with the door knob to apt. 901 in his hand. He was with his brother, Darren. D.C. Pece assisted his partner, P.C. Graham, in arresting the accused, who was crying and had to be restrained. The police sat the brothers on the floor where they remained for about 40 minutes. In addition, D.C. Pece was with the defendant in the lobby of the building for about 5 minutes.

[7] On Oct. 5, D.C. Pece also observed the defendant attempting to conceal himself in the elevator that opened on the 9th floor. The officer knew that he was wanted on an arrest warrant. When Mr. Wickens left the elevator, D.C. Pece called for him to stop. P.C. Preibe arrested the accused.

[8] On Nov. 3, 2017, D.C. Pece recognized the defendant in the hallway of this courthouse. He says Mr. Wickens has unique facial features, including a pointed nose, chin strap beard and a pony tail that was visible in the video. He has seen him in the area from time to time in the course of his duties.

Positions of the Parties

[9] Mr. Vandersteen, for the prosecution, submits that the recognition evidence meets the test for its threshold admissibility, that is, the officers were sufficiently familiar with accused and, given their prior acquaintance, were in a better position than the court to assess identity on the video.

[10] Mr. Rieger, for the accused, submits that Det. Neal's lack of contemporaneous notetaking and specificity raises questions about the reliability of his evidence. He says, in addition, that the officers are in no better position than the court to identify the suspect in the video.

Recognition Evidence – The Authorities

[11] In R. v. Brown (2006), 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 39, Rosenberg J.A. described the test for admissibility of recognition evidence, as follows: "this type of non-expert opinion evidence is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator". In this, he was relying on the decision in R. v. Leaney, [1989] 2 S.C.R. 393 (S.C.C.), at p. 413.

[12] At this stage, the Crown need only establish a basis for threshold admissibility. The standard is low. In R. v. Dirie, [2013] ONCA 261, the recognition officer had dealings with the accused on the night of his arrest. He took photos of him and paid attention to his features. That earlier acquaintance enabled him to later identify the suspect on the store video taken 2 hours prior to the arrest. The duration of that acquaintance was held to be sufficient and a question of weight, not admissibility.

[13] In R. v. Mawick, 2017 ONCJ 583, the officer had dealt with the accused on several occasions over 3 years. Renwick J. held, at para. 10, that he was not in as good a position as the officer to view the video and assess identity. He took note that he had never met the defendant, been face to face with him, considered his height, nor observed his gait.

Conclusion

[14] I am persuaded by the evidence that both officers were sufficiently familiar with the accused by the nature and duration of their prior acquaintance with him. Det. Neal has come to know the Wickens family in the course of his work in the community during the past 5 years. He was a participant in the investigations and arrests of the accused on July 8 and Oct 5. D.C. Pece was directly involved in the arrest of the defendant in July and facilitated his arrest in Oct. Both officers, in the course of other investigations, observed the accused in the area. It is part of their professional responsibilities to make note of identifying features of those with whom they have face to face contact.

[15] On this evidence, I draw the common sense inference that the nature and duration of this prior acquaintance and opportunity to observe Mr. Wickens' features in close quarters on several occasions places the officers in a better position than the court to identify the accused in the video.

[16] The officers will be permitted to provide recognition evidence at trial.

Released: January 3, 2018

Signed: "Justice L. Feldman"