Court Information

Court: Ontario Court of Justice Date: June 18, 2019 Location: Toronto

Between: Her Majesty the Queen

— And —

Damian Hudson

Before: Justice L. Feldman

Heard: April 23, 26, 29, 30, May 2, 14, 2019

Reasons for Judgment Released: June 18, 2019

Counsel

For the Crown: A. Penny

For the Accused Damian Hudson: C. Bottomley

FELDMAN J.:

Introduction

[1] Damian Hudson entered not guilty pleas to charges of attempt murder, aggravated assault and weapons dangerous. It is alleged that on April 30, 2018, in the course of an altercation with Narooshan Jude on Kennedy Rd. in Scarborough, the defendant stabbed Mr. Jude in the chest with a sharp object, possibly a knife, causing him grievous, life threatening, injury.

[2] The blow caused a rupture to the lower chamber of the victim's heart that led to a full cardiac arrest and an "anoxic brain injury". Mr. Jude is now cognitively and functionally impaired for life.

[3] The Crown called four civilian witnesses. One, Malaak Hamedeh, a 13-year old, was walking close by at the time of the incident and made certain observations. Chelsea Haywood-Alexander, Narooshan's girlfriend, was also called to give evidence. She arrived on scene, just prior to the stabbing, and attempted to separate the antagonists. Jacov Papadopoulos lives at 16 Saguenay Rd. That home is behind a fence at the eastern end of the parking lot between the apartment buildings at 709 and 711 Kennedy Rd. It is alleged the stabbing took place at 3:34 p.m. close to the parking lot down which it is said the accused ran, climbing over the fence and walking briskly through Mr. Papadopoulos's driveway that he shares with his neighbour. Mr. Papadopoulos says he saw a man walking past his basement window at about 3:35-40 p.m. He was called to provide a description of the man he saw.

[4] The prosecution also called two police officers, Det. Glen Cecile and Det. Const. Michael Reeves, to give evidence of their investigation of this incident. Ms. Penny also applies to have their identification of the accused from the surveillance videos at the scene and its environs admitted as recognition evidence, based on purported 'prior acquaintance' with the accused.

[5] The Crown asks, as well, that the court review the surveillance videos and decide whether it is satisfied to the requisite standard that the person captured on them is Mr. Hudson, in addition to asking the court to circumstantially infer that he was the one who stabbed the victim.

[6] Ms. Penny has also tendered evidence of a prior incident three days earlier that allegedly involves conflict between Narooshan and the accused that permits an inference of animus that she says enhances the circumstantial inference of the identity of the stabber on April 30. Narooshan's friend, Shane Fernandez was with him at the time. He testified about the event. The defence concedes the admissibility of certain hearsay statements in this regard.

The Stabbing Incident

[7] Malaak Hamedeh was passing by the scene near Saint Maria Goretti Church at the time Narooshan was stabbed. She told the court that the victim was cursing at the man who ultimately stabbed him. Malaak described the assailant as a tall, light black male wearing a blue windbreaker with the hood up and carrying something long and black in his hand. She said he wore blue jeans. He had light facial hair and she thought him to be about 20. She did not pay attention to his face.

[8] After Narooshan fell to the ground, she saw the other man run in an easterly direction through the parking lot between the apartment buildings at 709 and 711 Kennedy Rd. She heard a woman at the scene screaming.

[9] Chelsea Haywood-Alexander was more directly involved. As she said in her police statement, she had been with Narooshan earlier in the afternoon. They were in her car when they began to argue. He got out at Warden and Eglinton and headed east towards Kennedy Rd. Chelsea went to look for him.

[10] They were on the phone while she was driving. Narooshan told her he saw the guy with whom he had a confrontation a few days before when he was with his friend, Shane. She then saw him talking to someone near the Saint Maria Goretti Church. She parked her car at 711 Kennedy Rd and walked over to them.

[11] In her statement, she said she heard Narooshan yelling, "you were calling me a pussy last week", after which he pushed the man. She then saw Narooshan throw down his sunglasses, pull up his sleeves and push the man additional times, she believes, as if to instigate a fight.

[12] Chelsea went on to tell the police that as she ran over, the suspect's back was to her. She saw him reach into his jacket while Narooshan continued to yell at him. Chelsea first picked up the sunglasses and then, according to her statement, placed herself between the men, telling the suspect to leave while pushing her boyfriend away. She reported that at one point she saw a curved silver handle of some object come around her from behind and strike a blow at Narooshan, causing a deep puncture wound in his chest. She had the impression that the suspect was turned sideways and slightly ahead of her.

[13] Chelsea told the interviewing officer that she tried to look at the assailant when getting the sunglasses, but said, "honestly, I can't remember much. It was just a quick glimpse. I was too busy getting Narooshan out of the situation".

[14] Twice, Det. Cecille asked Chelsea if she had seen the suspect's face. Twice, she said no. She was also unable to provide an age, estimated the man's height as between 5'7" to 6 ft, said his colour was darker than her own, which is very light, and described him as tall and lanky, wearing blue jeans and a navy blue windbreaker with the hood up.

[15] By contrast, in her testimony, she added to her evidence, telling the court that she faced the suspect briefly, asking him to hold on because Narooshan was not in his right mind. She claims to have seen his face "pretty clearly" for a couple of seconds and said it was more than a glimpse. She says that her memory has improved over the year. She testified that Mr. Hudson "doesn't look like the guy".

[16] Chelsea now says that the defendant's skin colour is different, his eyes narrower, his nose does not match her remembrance, he is shorter, not lanky and he does not have the distinctive jaw line she believes she observed at the time. It is common ground that Mr. Hudson is presently heavier and has a fuller head of hair.

[17] It is troubling that Chelsea says she did not tell the police that she did not see the suspect's face. She explains that she did not provide a facial description at the time because she felt she could not identify the assailant. That rings hollow. She was asked for a description by the police. Given the frailties of identification evidence and the passage of time, it is doubtful her memory of the details have improved over the year.

[18] Jacov Papadopoulos was in his basement on April 30 when he estimated that at about 3:35-40 p.m. he saw a man walk "a bit hurried" by his window for a few seconds heading southbound in the direction of the Eppleworth apartment complex. The man, as had others regularly, hopped the fence separating his property from the aforementioned parking lot.

[19] Mr. Papadopoulos described the person as tall, about 5'10" – 6 ft. and skinny. He could not see his face because he was wearing a dark blue hoodie. The hood was taken down when the man was past the window. The witness said that from behind it appeared to be the back of a black man's head. He was holding an article of clothing in his hand.

[20] This witness thought the defendant did not look like the guy he saw whom he believed was skinnier. Back then, he was.

The April 27 Confrontation

[21] Another element of circumstantial evidence of identification, involving hearsay evidence, admitted by the defence, arises in an incident that occurred on Friday, April 27. Then, Narooshan was with Shane Fernandez, when he was confronted by someone purported to be the defendant. After the event, Narooshan texted Chelsea about it.

[22] Mr. Fernandez gave evidence about the April 27 incident. He said he and Narooshan were walking along Kennedy Rd. It was dark outside. It was sometime between 7-8 p.m. He recalls that a black man approached, called them "pussies" and then walked away. He says Narooshan mocked the man for leaving and the two of them began talking at each other as if each wanted to start something.

[23] Mr. Fernandez told the court that the man put his hand in his pocket, which he took as a threat. In fact, the man said, "do you want to start something". There was continued taunting by both parties, but it ended and the man left.

[24] Mr. Fernandez described the man as dark-skinned, mid-20s, 6-6'1", 160 lbs., not skinny, not heavy but having a wide build, wearing blue jeans hanging low and a black puffy jacket with a hood. He testified that, "it was hard to see his face". In a photo lineup, he picked out the wrong person twice.

[25] The following hearsay evidence was admitted by the defence. Narooshan told Shane that he had seen the man before in the area. Narooshan also told his brother that when he and this man see each other, they stare at one another weirdly.

[26] As noted earlier, Chelsea received texts from Narooshan about the April 27 incident. They include the following: "almost got into a scrap with this tall black dude"; the man was "talking shit"; "went into his pocket as if he had a Glock or knife"; "Shane with me"; "he's around the ends" (meaning, in the area); "man's just have something against me".

[27] Of significance in this regard, as Chelsea was driving around looking for Narooshan on April 30, he told her over the phone that, "I see the guy from Friday". All of this evidence permits the inference that the protagonist on April 27 is the same person who engaged with Narooshan, tragically, on April 30. It allows, as well, for an inference of animus that has relevance for the question of motive with regard to the stabbing.

The Question of Identification

[28] In weighing the identification evidence in this case, I am mindful, as was my colleague, Justice Crosbie, in R. v. Khannis, unreported, Oct. 28/18 (Ont. C.J.), that the court need start with an appreciation of the frailties of identification evidence and must caution itself that mistaken eye-witness identification is considered one of the main factors leading to wrongful convictions.

[29] As well, in R. v. Oliffe, 2015 ONCA 242, at para. 37, the court noted that the concern with identification evidence is not the credibility of the witness, but rather the reliability of the evidence and the potential it be given undue weight. Identification evidence is often deceptively reliable. The courts must vigilantly guard against convicting on the basis of honest, but mistaken eyewitness identification.

[30] Importantly, in R. v. Jack, 2013 ONCA 80, at para. 16, Epstein J.A. pointed out that generic or vague descriptions were of little value. Rather, it was important that descriptions be detailed and include reference to distinctive features.

Recognition Evidence

[31] Recognition evidence is one aspect of identification. It presumes that a witness is familiar with the suspect because of prior association or experience with that person that renders him or her better positioned than the trier of fact to identify the target in a manner that is of assistance to the trier in the weighing of evidence.

[32] It is helpful to review how the authorities have articulated the principles that attach to this area of evidence. In R. v. Brown (2006), 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 39, Rosenberg J.A. explained that, "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". This is sometimes referred to as the Leaney Test, or the prior acquaintance/better position test: see R. v. Leaney (1989), 50 C.C.C. (3d) 289 (S.C.C.).

[33] Blair J.A., in R. v. Behre, 2012 ONCA 716, at para. 20, discussed the advantage of the Leaney test as being flexible, while at the same time providing sufficient criteria – familiarity with the person identified and being in a 'better position' than the court to make the identification – "to enable the court to perform its gate-keeping function for the purpose of determining threshold admissibility". He explains further, that "what weight is to be given to the evidence ultimately is a different consideration".

[34] Justice Blair goes on to provide a practical approach to the weighing of the evidence. He says, at para. 21, that the 'prior acquaintance' branch of the Leaney / Brown test enables the trial judge on a voir dire to "sort out whether the potential witness is sufficiently familiar with the person sought to be identified to have 'some basis' for the opinion…". As well, the 'better position' branch "ensures that the evidence will only be admitted if it is helpful to the trier of fact because the potential witness has some advantage that can shed light on the evidence in question".

[35] In relation to the weight of the evidence in a particular case, the court in R. v. Campbell, 2017 ONCA 65, observes that, "the level of familiarity between the accused and witness may serve to enhance the reliability of the evidence".

[36] Finally, Justice Juriansz in R. v. M.B., 2017 ONCA 653, explains that in terms of assessing ultimate reliability of the evidence, "the ability of the recognition witness to articulate specific idiosyncracies of physical appearance that their identification is founded on is of considerable importance".

[37] With regard to this case, prior to April 30, both Det. Cecile and D. C. Reeves had brief prior investigative dealings with the accused. One officer observed him subsequently in the community a few times. They also looked at his pictures in previous police bulletins, viewed intellibook photos and studied the surveillance videos that gave them an opportunity to observe his gait and build. This process made apparent the defendant's unique tattoos captured in photos in the arrest data sheet, and in the intellibook that appeared as similarly placed discoloration in the videos.

[38] In particular, D.C. Reeves had interaction with Mr. Hudson in 2015 regarding allegations of drug dealing. Prior to seeking him out at his then Glenmorgan residence, the officer reviewed intellibook photos to have a detailed sense of his appearance.

[39] As it happened, D.C. Reeves confronted the defendant in the stairwell of his apartment building. He was face to face with him for a few seconds before the accused ran off and was chased unsuccessfully. The officer told the court that he has since seen Mr. Hudson in the 30 Eppleworth/675 Kennedy Rd area about 3 times as part of his responsibilities as a member of the community response unit of his Division. He also knows the defendant as a victim of a shooting.

[40] The officer's description then of the accused's physical characteristics include: a long face, a chin strap beard, finely trimmed facial hair on his cheeks, short hair on his head, thin build and being over 6 ft. These are physical attributes apparent in the photos and surveillance videos.

[41] D.C. Reeve's contact and experience with Mr. Hudson is not extensive, but is not insignificant. There is some common and accurate detail in his physical description of the accused. On this evidence, there is 'some basis' for the officer's opinion and, as well, his prior contact with the accused, coupled with his study of the latter's consistent images over time, give him an advantage on the question of identity that is helpful to the court.

[42] This conclusion is reinforced by the evidence of Det. Cecille. In 2014, he was the officer-in-charge of a case in this courthouse involving the defendant. He reviewed surveillance videos in preparation for that case. He testified that he was in the courtroom the entire day with Mr. Hudson who was in custody. He could not say how much attention he paid to him during the proceedings.

[43] What he can say is that he reviewed videos of the defendant that day from the cells because of allegations that Mr. Hudson assaulted a fellow prisoner. Ultimately, Det. Cecille did not lay any charges.

[44] Det. Cecile told the court that the accused carried the same physical features in 2018 as he observed 4 years earlier. These include common characteristics with regard to height, weight, build and facial hairs.

[45] It is troubling that D.C. Reeves chose to suggest to his colleague, prior to the latter's viewing of the surveillance videos that he thought the suspect was Mr. Hudson. It raises concern that Det. Cecille's ability to be objective in his assessment is compromised.

[46] Det. Cecile has long experience in the field. I observed that he gave his evidence in a fair and unembellished manner. I accept his evidence that his colleague's inappropriate suggestion was not a factor in his review of the materials. Nonetheless, I will weigh his evidence and opinion cautiously.

[47] Det. Cecile testified that he viewed the videos with care, comparing them with intellibook photos taken in 2016. He noted, in particular, the defendant's distinctive tattoos and their placement compared with the discoloration and art imagery on the suspect's right wrist visible on one of the videos at a time he can be seen attempting to open a locked door to 30 Eppleworth, minutes after the stabbing. It is conceded that Mr. Hudson lives there.

[48] The unique tattoos include: stars on the defendant's upper right forearm, a black dragon on his right wrist and up his forearm and a crown between the left index finger and thumb.

[49] On this evidence, as with that of D.C. Reeves, I am satisfied that the Crown has met the Behre standard for threshold admissibility. As noted earlier, there are common facial and other features, including clothing, that add to the collective reliability of the officers' opinion. I conclude that the officers are in a more advantageous position to be helpful to the court in its own weighing of the identification evidence.

[50] The Crown concedes that standing alone, this evidence is insufficient to meet its burden of proof on identification.

The Judicial Role in the Weighing of Identification Evidence

[51] The court has a role in an assessment of this evidence. Like most judges, I undertake this responsibility with caution, even reluctance, mindful of its importance and in light of the consequences of error.

[52] The court is drawn into this weighing process by the rule in R. v. Nikolovski (1996), 111 C.C.C. (3d) 403 (S.C.C.). Nikolovski allows triers of fact to examine and cross-reference surveillance videos and still images and draw their own conclusion on whether the Crown has proven that it is the defendant who is seen as the perpetrator on the video. Of course, the court need exercise "due care" in its assessment. It should also consider the clarity and quality in the videos and the length of time the suspect appears on the tape. It is suggested that the viewing judge consider stopping the tape and study "pertinent features" of the suspect. This, I have done.

[53] I have carefully reviewed the surveillance videos. These include clips in the various exhibit videos that have a suspected individual leaving 30 Eppleworth on April 30 at 1:56 p.m., returning at 3:38 p.m. and then leaving again 5 minutes later. In the course of this time frame, a man can be seen running eastbound in the earlier mentioned parking lot just after being involved in an altercation at 3:34 p.m. At 3:37 p.m. the suspect walks down the driveway at 27 Merrian Rd. heading in the direction of the Eppleworth complex that is close by. He can be seen running along the back of Eppleworth at 3:38 p.m. before entering the building.

[54] I have at the same time studied the still photos from some of the videos and from the arrest and booking of the defendant. Some of these photos are contained in exhibit 7 and include close-up images of the suspect outside a locked door at Eppleworth and inside the building, both of which provide a clear view of his face. The exhibit also contains a still image of the defendant at his booking. I have also considered still photos in exhibit 17 that show Mr. Hudson's face and full body at arrest on May 2.

[55] On this evidence, I am not left in reasonable doubt that the defendant and suspect are one and the same. The faces share common features, including similar shape, a near-shaved head, moustache, chin-strap goatee, similar nose and ears. I infer that the discoloration seen on the suspect's left wrist matches a tattoo similarly located on the defendant, as discoloration on the inner and outer elbow of the right arm seen in a clip is consistent with placement of tattoos evident in Mr. Hudson's arrest photos of 2014, 2016 and 2018.

[56] As well, there are common articles of clothing, such as a blue windbreaker, faded blue jeans, black running shoes and a black tee-shirt with a distinctive pattern on its front that can be seen at the Merrian address and on the defendant's return to his residence. On the hurried return to Eppleworth, the suspect has a blue garment of clothing wrapped around his hand following the incident minutes before. Both Malaak and Chelsea observed the assailant to wear a hooded blue windbreaker.

[57] Of particular significance, I am assisted in arriving at this conclusion by the recognition evidence of the two investigative officers, both of whom had a prior acquaintance with the accused.

[58] There is in these circumstances, a very strong circumstantial case of identification of the defendant as the person who inflicted grievous harm on Narooshan with a sharp object. The stabbing occurred at 3:34 p.m. Malaak saw the assailant run eastbound through the Kennedy parking lot at 3:35 p.m., hop a fence and move briskly past Mr. Papodopoulos's window within that minute, moving quickly down the Merrian driveway at 3:37 p.m., arriving at Eppleworth within a minute.

[59] The route taken by the defendant over the fence at the eastern end of the parking lot and down the Saguenay driveway towards the Eppleworth complex having wrapped his arm in an article of clothing, the brief timeline, the common physical descriptors and indication of prior animus as between the accused and victim in the context of identification by the court and the officers are compelling circumstantial factors pointing to Mr. Hudson as the assailant. In combination, they lead this court to the conclusion that the only reasonable inference on the evidence is that it was Mr. Hudson who inflicted the wound and then ran off down the parking lot. There is no evidentiary basis, beyond speculation, to permit the inference that the defendant was in the wrong place at the wrong time.

[60] With regard to identification of the assailant, in the context of an extremely strong circumstantial case of identification, I place little weight on Chelsea Haywood-Alexander's exculpatory evidence. For reasons expressed earlier, I have reliability concerns regarding her testimony. Her original description of the suspect was imprecise.

[61] Importantly, her view of the suspect's face for what she estimated to be a couple of seconds was at best fleeting in traumatic circumstances where her focus was on forcing her boyfriend to calm down and leave. Reliable memory is vulnerable to the passage of time. It is questionable, as she asserts, that her memory has improved over the year.

[62] Regarding exculpatory evidence of this kind, the court must instruct itself or the jury that it need not accept the defence of other exculpatory evidence, but that it is sufficient for acquittal if the evidence leaves the trier with a reasonable doubt: R. v. Vassel, 2018 ONCA 721.

[63] In R. v. Bettencourt, 2008 ONCA 337, the trial judge erred in his instruction to the jury regarding exculpatory identification evidence. The court set out the preferable instruction, but held the error not to be fatal "because the Crown's case against the defendant was overwhelming". This principle has application to the case at bar.

[64] I observe, as well, that Ms. Hamedeh and Mr. Papadopoulos did not see the suspect's face. Mr. Papadopoulos had but a momentary view of the person. On April 27, Mr. Fernandez did not get enough of a look to identify the other man in conflict with Narooshan at a photo lineup. Their identification evidence is of little assistance.

[65] On all the evidence, I am satisfied beyond a reasonable doubt that on April 30, Mr. Hudson reached around Chelsea to stab Narooshan Jude. Mr. Hudson will be found guilty of aggravated assault and possession of a weapon for a purpose dangerous to the public peace.

[66] However, I am left in reasonable doubt that the defendant had the specific intent to kill Mr. Jude: R. v. Ancio, [1984] 1 SCR 225. In the confrontation on April 30, matters heated up quickly and the defendant struck one blow in response to Mr. Jude's verbal aggression. In doing so, he had to extend his arm around Ms. Haywood-Alexander, who was blocking him, in order to reach his target. It is possible he intended to stab his victim in the 'cardiac box' area, but of this on the evidence, I am unsure. Mr. Hudson will be acquitted of attempt murder.

Released: June 18, 2019

Signed: Justice L. Feldman