COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Benson, 2015 ONCA 827

DATE: 20151202

DOCKET: C58262

Gillese, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Orton Benson

Appellant

John Collins, for the appellant

John Pearson, for the respondent

Heard: May 5, 2015

On appeal from the conviction entered by Justice A.J. Stong of the Superior Court of Justice, sitting without a jury, on April 5, 2013, and from the sentence imposed on January 28, 2014.

Tulloch J.A.:

A. introduction

[1] The appellant, John Benson, was convicted of four arson related charges. The charges arose out of a fire set to a truck located on his neighbour’s property on April 13, 2010. The neighbour, Brian Timmons, suffered minor burns and damage to his property.

[2] The crucial evidence at trial was a video of a man approaching the truck with something in his right hand, reaching into the driver’s side of the vehicle, igniting a fire, and quickly moving back in the direction he came from. Timmons recognized the appellant as the arsonist and testified to this at trial.

[3] The appellant appeals his conviction, and raises three grounds of appeal. First, he contends that the trial judge did not consider the effect of the evidence of the Crown’s expert forensic video analyst on the quality, as opposed to the admissibility, of the lay opinion recognition evidence.

[4] Second, he submits that the trial judge failed or refused to engage in any analysis whatsoever concerning Timmons’ credibility based on his admitted animus towards the appellant, his history of criminal misconduct, and the fact that he lied about this misconduct to the trial judge.

[5] Finally, the appellant submits that the trial judge drew an unwarranted negative inference against the credibility of the appellant in his assessment of the appellant’s videotaped statement to the police.

[6] Although the appellant’s factum suggests that he sought leave to appeal sentence, he made no submissions, either oral or written, on the sentence appeal.

[7] For the reasons that follow, I would dismiss the appeal.

B. FACTS

[8] The sole issue at trial was the identity of the person who set fire to the truck. The appellant did not testify.

[9] At the time of the fire, the appellant and Timmons had known each other for at least six years. Timmons purchased his property from the appellant. At one point, Timmons and the appellant had a friendly, neighbourly relationship, in which the appellant would attend Timmons’ property regularly. Their relationship deteriorated and became acrimonious to the extent that the appellant made regular complaints to the Ministry of Natural Resources about the business activities, including sandblasting, that Timmons’ engaged in on his property.

[10] On the day of the fire, Timmons had been working on fixing the driver’s side window of a truck lent to him. During the six o’clock news, Timmons heard percussion sounds and saw a cloud of smoke out his window. He saw the truck engulfed in flames. The truck was near a garage that contained chemicals for his business. He used a forklift that he had in his yard and backed the truck out of its position near his garage. A passerby called the fire department.

[11] When the police arrived at the scene to investigate the fire, Timmons insisted that he was responsible for accidentally setting it. He testified that he did not want them to conduct an investigation because he did not want the hassle of having to deal with the authorities. Timmons did not call the fire department or the police when he realized his property was on fire.

[12] A few weeks before the fire, Timmons had installed surveillance video cameras on his property. When the police arrived on the property to commence their investigation, he did not immediately disclose to them that there was a surveillance video. Timmons later testified that he had actually forgotten that he had had the cameras installed. Once the police became aware of the existence of the surveillance cameras, they asked about the cameras, but Timmons was reluctant to give them the tapes, believing that he had caused the fire and he did not hand the videos over to the police until he was threatened with a warrant. The surveillance video captured the image of the person setting the fire. Timmons saw the video while with the police and immediately identified the appellant.

C. Discussion

(1) The Evidence of the Expert Forensic Video Analyst

[13] At trial, the Crown adduced video evidence. The police expert who testified to tender the video evidence was not called as an identification witness, but as a forensic video analyst. He was not asked to do a lengthy comparative analysis report. The expert prepared the video evidence introduced at trial, including the surveillance recording of the crime scene showing a person of interest reaching inside the victim’s truck when it erupted in flames.

[14] The appellant argues that Timmons’ identification of the appellant should be viewed in light of the expert’s testimony about the low quality of the surveillance video evidence and the expert’s inability to identify the characteristics of the person captured by the video.

[15] The officer’s evidence was technical in nature and relevant to whether or not the video evidence was in any way compromised or altered. Once it has been determined that the video was not altered or changed and that it accurately depicts the scene, the video “may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events”: R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, at para. 28.

[16] The trial judge noted the pixilation of the video and that it could not be further enhanced. Whether the video recordings were of sufficient quality to form the basis for the identification was a question of fact for the trial judge. This court’s jurisdiction to review that finding is limited: R. v. Abdi, 2011 ONCA 446, [2011] O.J. No. 2639, at para. 6.

[17] The quality of the recording was relevant to the trial judge’s consideration of the content of the video. It pertained to the question of whether or not it was clear enough for the trial judge to review and place any weight on the video or on Timmons’ observations and identification. But there was no need for the trial judge to further refer to the testimony of the expert, as his testimony on the content of the video was of minimal probative value. Those who are not acquainted with the accused are in no better position than the trial judge to identify persons in video evidence: R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393, at para. 33. The expert’s description of the arsonist and evidence on the content of the video would not assist the trial judge on the ultimate identification issue.

[18] It is clear from the reasons that the trial judge examined the video. He provided a detailed description of what he was able to glean from it despite its pixilation. A review of the surveillance video confirms that the trial judge’s assessment of it was reasonable. Of note, the trial judge did not make a positive identification from his viewing of the video. He relied on the recognition evidence of the complainant and his own supporting observations in making his decision on the appellant’s guilt.

(2) The Credibility of the Identification Witness and the Reliability of the Recognition Evidence

[19] In light of the quality of the surveillance video, the appellant argues there was an increased need for an analysis of Timmons’ credibility, and submits that the trial judge failed or refused to engage in any credibility analysis whatsoever.

[20] I disagree. It is clear from a reading of the reasons as a whole that the trial judge accepted Timmons’ testimony, found him to be credible, and found his identification of the appellant to be reliable.

[21] While appellate courts retain the power, pursuant to s. 686(1)(a)(i) of the Criminal Code to reverse trial courts’ verdicts where the assessment of credibility made at trial is not supported by the evidence, this is done sparingly. Appellate courts show great deference to findings of credibility made at trial, and will only interfere with findings of credibility in exceptional circumstances: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, p. 131; R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at paras. 5-7. Trial judges are in a special position to assess credibility issues as they have the advantage of seeing and hearing the evidence of witnesses.

[22] The appellant’s main issue is that the trial judge did not consider Timmons’ admitted animus toward the appellant, his history of criminal misconduct, or that he lied about his criminal misconduct, in considering his credibility and the reliability of his identification.

[23] All of these issues were raised by the defence and acknowledged by the trial judge at the beginning of his decision. He noted the history of the relationship between the appellant and Timmons and the “clear animosity” between the two. He also engaged in a lengthy discussion about Timmons’ actions and motivations on the evening of the fire. The trial judge concluded: “I accept his explanation. He had had his hassle with the authorities. He was conducting his business and did not want to have more problems. At this point he believed that he was responsible for the fire.”

[24] With respect to the reliability of the identification and the weight to be assigned to it, the trial judge reviewed Timmons’ testimony and compared it to his own observations of the video. The trial judge summarized Timmons’ testimony as follows:

[H]e said he was one hundred percent sure that it was John Benson on the video by the way he moved his arms, by the way he walked, by the way he limped as he was moving, by his hairstyle, his face, his body shape, his thinning hair, his age, his build, the extended body that he saw, meaning his enlarged stomach, the clothing that he always wore, meaning his plaid shirt, particularly. He referred to the person depicted in the video as Mr. Benson and described Mr. Benson’s hairstyle as an Einstein hairstyle.

[25] Recognition evidence such as Timmons’ evidence in this case is a form of identification evidence. The caution with respect to the frailties of eyewitness identification evidence still applies: R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39. However, as the court in Olliffe noted, the level of familiarity between the accused and the witness may enhance the reliability of the identification evidence. This applies here. The trial judge considered that the two men had known each other for a long period of time and had interacted on a regular basis. Their relationship and familiarity with one another certainly served to enhance the reliability of the identification.

[26] This court in R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, discussed the threshold admissibility for recognition evidence from the examination of a photograph or video. The court held, at para. 22, that the ability of a witness to point to a unique identifiable feature or idiosyncrasy of the person to be identified was a concern better resolved when determining the ultimate reliability of the evidence, and not its admissibility.

[27] Timmons’ clearly noted the unique, distinctive, and recognizable features of the appellant in his testimony. These were, in the trial judge’s opinion, “the badges of reliability of identification”. That he was not able to identify the particular features of the appellant’s face or eye colour was not fatal to his identification.

[28] The distinctive features relied upon by the complainant are easily observed upon viewing the video. In Leaney, the main identification evidence against the accused was a video of the break-in and the testimony of five police officers. The Supreme Court of Canada held that the evidence of four police officers was inadmissible. The identification evidence and testimony of a sergeant who had known the accused since childhood and who gave evidence about features and idiosyncrasies of the accused that were identifiable on the video was admissible. The trial judge made his own observations of the video made and compared the identifiable features of the accused. The conviction was upheld despite the inadmissible evidence on the basis of the trial judge’s own observations of the video and his comparison of the tape to the accused.

[29] Here, the identification evidence was supported by the trial judge’s own observations. As mentioned, the quality of the surveillance video was low and the trial judge could not positively identify the appellant based only on his viewing of the tape. However, he noted in particular the appellant’s limp from his left side and the predominant use of his right arm, that the contours of the face in the video were that of an older male with full cheeks, and that the arsonist had disheveled hair that was standing up. All of this was consistent with Timmons’ testimony. It was also consistent with the video of the appellant at the police station, seemingly wearing the same plaid shirt as the arsonist in the surveillance video, and with the same hairstyle and puffy cheeks.

[30] The trial judge in the present case considered all the evidence, including the lack of physical evidence to corroborate the identification. It was open to him to accept those parts of Timmons’ evidence that coincided with his own observations and which identified the person depicted in the video as the appellant. This was particularly so in the absence of any evidence to the contrary from the appellant.

(3) The Credibility of the Appellant

[31] The trial judge reviewed the videotaped statement made by the appellant to the police on the day after the fire. He found the appellant to be polite, unrehearsed, and consistent in his denial. However, the trial judge also noted an inconsistency with respect to whether the appellant had gone over to the complainant’s property after the fire began and before the fire department arrived. The trial judge found that he changed his story to include that he “ran up there” out of concern for his dogs. This comment was made after the appellant was questioned by police and confronted with the possibility that there were surveillance cameras on Timmons’ property.

[32] The trial judge was entitled to consider the inconsistency in the appellant’s statement and the comment about him running, despite his mobility and health issues. I agree with the Crown that the trial judge did not violate the principle in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, in his analysis of the evidence. The appellant did not testify at his trial, and the trial was not a credibility contest between the appellant and the identification witness. The trial judge was satisfied beyond a reasonable doubt that it was the appellant who was depicted on the video setting fire to the truck. The trial judge considered the appellant’s denial to police, but based his conclusion on Timmons’ identification and his own observation of the video in light of Timmons’ testimony on the distinctive features of the appellant. This was appropriate in the circumstances.

D. Disposition

[33] For the reasons above, I would dismiss the conviction appeal. In the total absence of submissions on sentence, I would not grant leave to appeal sentence.

Released: “EEG” DEC 2 2015

“M. Tulloch J.A.”

I agree. E.E. Gillese J.A.”

“I agree. P. Lauwers J.A.”