ONTARIO COURT OF JUSTICE DATE: 2021 05 10 Toronto Region
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ANDREW MORRIS
Before: Justice L. Feldman
Heard on: April 26, 2021
Reasons for Judgment released on: May 10, 2021
Counsel: A. Moser, counsel for the Crown A. Goldkind, counsel for the defendant Andrew Morris
FELDMAN J.:
Introduction
[1] At this trial conducted by zoom, Andrew Morris pled not guilty to a charge of assault. It is alleged that he spat on the complainant, Kwabina Herod, 3-4 times, shortly before hitting her across the back of her head. The defence does not dispute that the assault occurred, only that it wasn’t committed by the defendant.
[2] Ms. Herod testified for the prosecution. In addition, the Crown relies on TTC video surveillance and still photos to identify Mr. Morris as the assailant. In this regard, TTC Special Constable, Jake Mahoney, testified in a Leaney application [1], that he had a prior acquaintance with the defendant and recognizes him from the video and photographs, as well as in court, as the person who committed the assault.
[3] The Crown says the circumstances of S.C. Mahoney’s prior acquaintance establishes the evidentiary threshold necessary to admit this evidence on the basis that the witness is both sufficiently familiar with the defendant and in a better position than the court to recognize him. The Crown, as well, asks that the court itself assess identity under the process in Nikolovski [2].
The Evidence
[4] Ms. Herod is 19. She is a student at a community college. On Dec. 23, 2020, she was sitting on an eastbound subway train. She looked up when the man she says is the defendant entered the train. He sat across from her. She looked down, but he came over to her. He removed his air pods and asked her where she was going. She asked him why he wanted to know. He kept asking, she says, aggressively. She eventually told him she was going to a friend’s house. Ms. Herod testified that after pointing out to her that answering him wasn’t so hard, the man removed his mask and spat on her coat.
[5] She got up and questioned why he did that. She says he walked away, but then came back and spat on her coat sleeve 3-4 times, asking her what she, a girl, was going to do about it. She understandably felt threatened and decided to leave the train at the next stop, Warden, rather than at Kennedy, her destination.
[6] Ms. Herod had to walk by this man. She says that as she did so, he punched her in the back of her head with a closed fist. It hurt. She got off at Warden. He followed her unmasked. She called 911. She says she was crying. He told her to stop. She screamed at him to leave her alone. Another man assisted her downstairs. The assailant ran off. The video surveillance shows her leaving the train, followed by the person she says assaulted her.
[7] Ms. Herod testified that her interaction with the accoster lasted about 5 minutes. When he took his mask off the first time, she saw his face for a few seconds, then again during the second batch. She described him as lighter-skinned black, bald and about 5’8”. She was wrong about the height.
[8] At trial, Ms. Herod made an initial in-dock identification of the accused whose zoom image was distant. She was permitted in re-examination to view an enhanced image that she says strengthened her conclusion that it was the defendant who assaulted her. That he was in custody was, she says, a minor factor influencing her initial identification. Standing alone, this evidence would be insufficient to meet the requisite standard of proof. That her estimate of the defendant’s height is wrong is a material discrepancy reinforcing that insufficiency.
Recognition Evidence
[9] The Crown relies on the opinion evidence of S.C. Mahoney to bolster the in-dock identification. This officer says he has had multiple interactions with the accused. He told the court that he recognizes Mr. Morris in the still photos, in the video surveillance and on zoom. They have history.
[10] S.C. Mahoney testified that on Aug. 1, 2018, he arrested the defendant in a TTC washroom for trespass to property. The lighting was good. He was with him for one hour. Mr. Morris provided his Ontario Health card that had his digitized photograph and DOB. The constable had the card cross-referenced by an officer at 32 Division. At the time, he described his detainee as black, light complexion, 6’-6’1”, shaved head, thin beard.
[11] In early 2019, S.C. Mahoney again investigated the defendant, this time for having an open beer bottle at Union subway station. He remembered him from the previous occurrence. He was with him for less than 5 minutes. More recently, he had a fleeting view of Mr. Morris at a subway station. I infer it is the role of security officers to be aware of those who threaten the peace and safety of subway riders.
Recognition Principles
[12] Recognition evidence from video or photographic images is one aspect of identification [3]. It is a type of non-expert opinion evidence [4]. Justice Tulloch describes recognition evidence in Hudson as one way the Crown may seek to prove that the accused is the perpetrator by adducing evidence from a witness sufficiently familiar with the accused to recognize them and assist the trier of fact in the identification process [5]. To rely on this evidence, the court must determine whether it meets the threshold requirements for admissibility and, if so, to then weigh its ultimate reliability [6].
[13] In meeting the test for threshold admissibility, the court must determine if the witness is sufficiently familiar with the accused to have ‘some basis’ for their identification opinion, as well as if, as a result of their prior acquaintance with the accused, the witness is in a better position than the trier of fact to identify the perpetrator, in the sense that they have “some advantage that can shed light on the evidence in question” [7]. The judge’s focus is on the level of familiarity, including the nature of the relationship and degree of past contact.
[14] The trial judge should only permit the recognition witness to testify where he or she is satisfied on a balance of probabilities that “the witness’ relationship with the accused affords him or her a level of familiarity that will enable the witness to provide valuable and otherwise unavailable identifying information” [8]. Where the acquaintanceship is not extensive, “the recognition evidence may be of little value unless the witness can explain its basis in some considerable detail” [9].
[15] I am satisfied that the nature and circumstances of S.C. Mahoney’s past interactions with the defendant in combination meet that test. The officer’s description of the defendant captured his unique features. As well, the video surveillance and still photos are of good quality.
[16] When determining the ultimate reliability of this recognition evidence, I am mindful that the court need be cautious and aware of its frailties, as it would any other identification evidence [10].
Positions of the Parties
[17] Mr. Goldkind, for the defence, submits that the complainant’s in-dock identification, diminished by the height discrepancy, is fatal to the Crown’s case. He says the quality of what he describes as dated recognition evidence is insufficiently reliable to overcome this material inconsistency. He suggests the court’s Nikolovski burden is made more difficult by the fact that in his view the quality of the video and photographic evidence is not high.
[18] Mr. Goldkind submits that the statement by Martland J. in Chartier [11] that, “regardless of the number of similar characteristics, if there is one dissimilar feature there is not identification”, is determinative.
[19] Ms. Moser, for the prosecution, submits that the recognition evidence is strong and serves to overcome the height discrepancy. She asks that the court weigh the identification evidence carefully and notes the clarity of the video and photographs. She submits that Chartier is distinguishable on these facts.
Has the Crown Met its Burden of Proof?
[20] It is fundamental that a trier of fact need be cautious in relying on eyewitness identification because of its inherent frailties that arise from the unreliability of human observation and recollection [12], all the more so in cases that rely solely on in-dock identification. In-dock identification is considered in the authorities to be undesirable and unsatisfactory and to attract little weight [13]. In this regard, a material inconsistency would be fatal to the prosecution’s case [14].
[21] That is not this case. The Crown does not rely on in-dock identification alone. Rather, the recognition evidence and my own viewing of the video and photographs may serve to buttress the complainant’s identification of the offender.
[22] In that sense, as well, Chartier is of little assistance. In Chartier, a civil suit for damages in a false arrest claim, the identification evidence of several witnesses was inconsistent on a material feature, such that the identification of the assailant was not made out. Of significance, the court noted the absence of “circumstantial evidence” in the record that by implication left it open for other material evidence to overcome the discrepancy.
[23] In that regard, I have carefully reviewed the video surveillance, the still photos of the assailant leaving the train and the arrest photo. They were clear and of good quality. I have been able to observe the defendant on zoom during the trial. He appears taller than 5’8” and is likely closer to 6’ or 6’1”. However, I am satisfied, although only on a balance of probabilities, that the face of the assailant, including its shape, baldness and appearance, and that of the defendant are one and the same.
[24] It is the strength of the recognition evidence that in these circumstances is determinative. S.C. Mahoney’s first contact with the defendant, a little over two years earlier, was substantial. He arrested and investigated Mr. Morris in close quarters in a well-lit washroom for about an hour. Further, his familiarity with the defendant was reinforced in a brief encounter the following year. He also had a fleeting view of him on a subway platform a few months prior to his arrest. He recognized him immediately in the still photos taken from the video surveillance a week after the incident. He identified him in court. His identification evidence and the basis for it was not, in my view, seriously challenged in cross-examination.
[25] I accept S.C. Mahoney’s identification evidence as sound. I would rely on it, together with my own assessment of the evidence to the degree that overcomes the one ‘dissimilar feature’ in the complainant’s identification of the accused and in a manner that serves to buttress the in-dock identification. On all the evidence, I am satisfied beyond a reasonable doubt that the man in the video following the complainant out of the subway train was Mr. Morris.
[26] There will be a finding of guilt.
Released: May 10, 2021 Signed: Justice L. Feldman
[1] R. v. Leaney, [1989] 2 S.C.R. 393 [2] R. v. Nikolovski, [1996] 3 S.C.R. 1197 [3] R. v. Brown, 2009 ONCA 563, 2009 O.J. No. 2908 (Ont. C.A.), at para. 17 [4] R. v. Brown (2006), 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 39 [5] R. v. Hudson, 2020 ONCA 507, at para. 28 [6] Hudson, at para. 29 [7] R. v. Behre, 2012 ONCA 716, at paras. 14, 20-21; Hudson, at para. 30 [8] Hudson, at para. 29 [9] R. v. Panghali, [2010] B.C.J. No. 2729, 2010 BCSC 1710, at para. 42 [10] R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, at paras. 29-31, 24; R. v. Olliffe, 2015 ONCA 242, at para. 39 [11] Chartier v. Att. Gen. (Que.), [1979] 2 SCR 474, at p. 494 [12] R. v Miaponoose, (1996), 110 C.C.C. (3d) 445 [13] R. v. Quercia, (1990), 60 C.C.C. (3d) 380 [14] Chartier, supra, at p. 494