Court of Appeal for Ontario

Date: January 25, 2017 Docket: C61485

Judges: Simmons, van Rensburg and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Cody Campbell Appellant

Counsel

Janani Shanmuganathan, for the appellant

Nadia Thomas, for the respondent

Heard

December 8, 2016

Appeal Information

On appeal from the conviction entered on July 2, 2015 by Justice Patrick J. Flynn of the Superior Court of Justice, sitting without a jury.

Decision

By the Court:

[1] Nature of the Appeal

This is a conviction appeal. The appellant was convicted of break and enter and robbery in a judge-alone trial. The only issue was identification.

[2] The Offence

Two people who wore hats and were masked with bandanas were involved in the offence. On May 13, 2011, they came to the door of Michelle Bowles's residence, where they entered and robbed the father of one of her children, Zachary Brydges, of money he had received earlier that day. One assailant was Raymond Landry, known as "little Ray-Ray". He was doing all the talking and waving a knife. The second individual, alleged to be the appellant, stood silently behind Landry holding a gun under his arm. Brydges gave Landry some money, but Landry insisted, "I know you have more than that". Eventually, Brydges gave Landry $2,000 and both men ran away.

[3] Identification Evidence at Trial

Both Bowles and Brydges testified that the appellant, whom they knew as "Mack Truck", was the second assailant. They testified that they knew him from a group they used to hang out with that called themselves the Hamilton Blood Soldiers, or HBS. They testified that the only people who knew that Brydges had received money that day were his cousin and possibly an acquaintance named AJ and his girlfriend who were part of the group that hung out with the appellant and Landry. After the assailants left, Bowles called 911 and told police that an individual named Mack Truck and another male had robbed her, and that she recognized both. She said that Mack Truck was about 200 pounds and had brown eyes. At the police station, Bowles looked up photos from the appellant's Facebook account and showed them to police. She identified both assailants among the people in the photos.

[4] Co-Accused's Evidence

Landry was arrested shortly after the incident. He pleaded guilty and implicated the appellant in the agreed facts in his guilty plea. He testified at the appellant's trial, admitting his involvement, but insisted that he could not remember anything about the events or who was with him.

[5] Appellant's Evidence

The appellant testified. He admitted that his nickname was "Mack Truck", that he used to hang around with Bowles and Brydges in the HBS group, and that he had seen them two or three times a week between 2007 and 2010. He denied being involved in the robbery, insisting he had distanced himself from the HBS and had not associated with the complainants since suffering an injury in 2009 or 2010.

[6] Trial Judge's Credibility Findings

The trial judge rejected the appellant's evidence, citing factors that affected the appellant's credibility such as the evidence he did not accept that the appellant had distanced himself from the HBS years prior to the event and that he was not running from the police in the years between the incident and his arrest. The trial judge also disbelieved Landry's evidence that he did not remember the robbery, and he concluded that he was, in fact, lying to protect the appellant.

[7] Trial Judge's Identification Finding

The trial judge accepted the evidence of Bowles and Brydges identifying the appellant. He confirmed his awareness of the frailties of identification evidence and the scrutiny required, but noted that this case was based on recognition. The trial judge was satisfied beyond a reasonable doubt that the appellant was the larger robber.

[8] Grounds of Appeal

The appellant advances four arguments on appeal.

Analysis of Grounds of Appeal

Ground One: Treatment of Identification Evidence

[9] Appellant's Submission

First, the appellant contends that the trial judge erred in his approach to the identification evidence. In saying this was a case of recognition and not the identification of a stranger, the trial judge ignored the requirement to approach such evidence with caution. We disagree.

[10] Legal Framework for Recognition Evidence

This court has confirmed that "[r]ecognition evidence is merely a form of identification evidence" and, as such, "[t]he same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence": R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39. This court also noted in that paragraph, however, that "[t]he level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence." Unlike cases involving the identification of a stranger, the reliability of recognition evidence depends heavily on the extent of the previous acquaintanceship and the opportunity for observation during the incident: R. v. Miaponoose (1996), 30 O.R. (3d) 419 (C.A.), at p. 424, citing R. v. Smierciak (1946), 87 C.C.C. 175, at p. 177. Recently, in R. v. Charles, 2016 ONCA 892, at paras. 50-51, this court noted the "critical difference" between recognition cases and cases involving identification by a witness of a complete stranger, and referred to the relevance of the "timeline of the identification narrative". See also R. v. Peterpaul (2001), 52 O.R. (3d) 631 (C.A.), at p. 638.

[11] Trial Judge's Proper Consideration of Identification Frailties

Contrary to the appellant's submission, the trial judge did not ignore the need for scrutiny because this was a case of recognition; indeed, he adverted specifically to the dangers of eyewitness identification and the need to scrutinize the evidence carefully. He considered the potential weaknesses in the complainants' identification of the appellant raised by the defence, in particular that the victims were involved in a traumatic event, that they were focused on the smaller knife-wielding assailant, and that their view of the assailants' faces was limited to the portion not covered by the bandanas. The trial judge considered the victims' prior association with the assailants and their ability to recognize the appellant, and he accepted their evidence that the larger of the two assailants had reacted when Bowles used his nickname. Brydges testified he was "70% sure" about the larger robber's identity when he saw him, but became "100% certain" after Bowles called out Mack Truck's name and he reacted. There was nothing in the identification process to call into question the reliability of the identification. Bowles identified the appellant immediately in her 911 call and at the police station. The appellant admitted that he knew the complainants and used to hang around in the same group, although he suggested he had not associated with them in the past year.

[12] Eye Colour Discrepancy Argument

Also in support of his argument regarding identification evidence, the appellant contends that the trial judge erred in refusing to take note of his eye colour, which he says is blue, and in failing to use that evidence in his assessment of the reliability of Bowles's identification evidence. The appellant submits that, given that the assailants were masked and there were very few identifiers, the fact that Bowles may have been mistaken about his eye colour was a critical part of the identification that the trial judge refused to consider. Again, we do not give effect to this argument.

[13] Bowles's Evidence Regarding Eye Colour

In her 911 call, Bowles said that she believed the two assailants were wearing red or black bandanas, that the larger assailant was Mack Truck, and that he was about 200 pounds and had brown eyes. She stated "I looked him right in the face." In cross-examination, she was asked about the colour of the bandanas the assailants were wearing. She confirmed that, while she testified they were wearing red bandanas, she was uncertain both in the 911 call and at trial about the colours. She agreed with counsel's suggestion that she had a lot going on that day so it was easy not to be able to pick up on particular details. She was also asked about her statement in the 911 call that the bigger person had brown eyes. She stated that, without hearing the call, she wouldn't know the appellant's eye colour. Bowles admitted that there were no other details, other than his size, that she recalled about the larger of the two assailants involved in the robbery.

[14] Trial Judge's Refusal to Consider Eye Colour

There was no evidence during the trial about the appellant's eye colour, nor was any potential inconsistency put to Bowles in her cross-examination. In closing submissions, however, the appellant's counsel argued that Bowles's evidence was unreliable because she had said her assailant's eyes were brown when the appellant's eyes were blue. The appellant's counsel relied on R. v. Nikolovski, [1996] 3 S.C.R. 1197 as permitting the trial judge to compare an accused's appearance with the evidence. The trial judge refused to do so. He noted that no one had raised the issue of the appellant's eye colour in evidence and that "[i]t would have been something that somebody could have asked a question about".

[15] Court's Analysis of Eye Colour Issue

The appellant argues that the trial judge erred in refusing to consider his eye colour and its possible effect on Bowles's identification evidence. We disagree. First, while Nikolovski permits a trial judge to compare an accused's appearance with the trial evidence, this is not mandatory. In R. v. Rae, 2013 ONCA 556, at paras. 5-6, this court held that the trial judge was entitled to rely on the strong identification evidence of the two witnesses without assessing its reliability with reference to the appellant's appearance in the courtroom. Similarly, here the trial judge was entitled to refuse to use his own observation of the appellant's eye colour, particularly when it was only referenced in closing argument and where the issue of a possible error had not been pursued in Bowles's cross-examination. In any event, in the circumstances of this case, if such evidence had been admitted, and if it had indicated that the appellant's eye colour was in fact blue, this would not reasonably have affected the outcome of the trial. Bowles admitted on cross-examination that she did not rely on specific features of the intruder's appearance other than his size in identifying him as the appellant. The identification was based on the witnesses' recognition of him through their prior association in the HBS group, with the defining features being his size and physical appearance and his reaction to being addressed as "Mack Truck". The appellant's prior association with Landry, who admitted his own involvement, and the appellant and Landry's prior association with people who knew about Brydges's money, supported the reliability of the identification.

[16] Conclusion on Ground One

We therefore do not give effect to the first ground of appeal respecting the trial judge's treatment of the identification evidence.

Ground Two: Reliance on Disbelief of Co-Accused's Evidence

[17] Appellant's Submission

Second, the appellant says that the trial judge improperly relied on his disbelief of Landry's evidence as positive evidence of the appellant's guilt. We disagree.

[18] Analysis of Landry's Testimony

Landry testified that, although he had pleaded guilty to the offences and he was the robber with a knife, he had no recollection of the details or who he was with that night. The trial judge noted that Landry at one point testified that he did not remember anything and that he did not want to incriminate anyone else, which the trial judge interpreted to mean the appellant. Notwithstanding the trial judge's passing comment that Landry was referring to the appellant, his reasons as a whole do not suggest that he relied on the rejection of Landry's evidence as proof of the appellant's guilt. The trial judge was aware that the transcript of Landry's guilty plea was not evidence against the appellant, but was used only to refresh Landry's memory. He did not permit the Crown to cross-examine Landry on the agreed facts. There is nothing in the trial judge's reasons to suggest that he used any evidence with respect to Landry's plea or his failure to implicate the appellant in his evidence at trial as evidence of the appellant's guilt. Rather, the decision was based on the evidence of the complainants identifying the appellant, which he found to be credible and reliable, and his rejection of the appellant's evidence that did not raise a reasonable doubt.

Ground Three: Finding of Police Evasion

[19] Appellant's Submission and Court's Analysis

As a third ground of appeal, the appellant says that the trial judge erred in finding that the appellant intentionally evaded police. The appellant says that it was unreasonable for the trial judge to find the appellant knew the police were looking for him and intentionally avoided them when the Crown advanced no evidence of steps taken by the police to find him or that the appellant knew about those steps. We disagree. It was open on the evidence for the trial judge to say that the appellant's statement that he did not know the police were looking for him "defies logic" and undermined his credibility. The appellant admitted that he knew the police had attended at his mother's house looking for him, that he knew others believed he was involved in the robbery, and that he made no attempt to contact Brydges or to otherwise clear his name. The trial judge also noted that the appellant's close relationship with Landry was difficult to reconcile with the appellant's claim that he did not know the police were looking for him. As such, there was evidence to support the trial judge's conclusion that the appellant was evading the police and his rejection of the appellant's evidence to the contrary.

Ground Four: Use of Gang Affiliation Evidence

[20] Appellant's Submission and Court's Analysis

Finally, the appellant argues that the trial judge erred in using "bad character" evidence, or engaged in improper propensity reasoning, based on the appellant's association with HBS (which was a gang or gang-like group). We disagree. The evidence of the appellant's affiliation with HBS was relevant because it increased the likelihood that the complainants would have recognized him based on their prior association within the group. It also suggested that the appellant was and remained connected to Landry at the time of the robbery and that he knew about Brydges's money, and was relevant to the appellant's credibility regarding his claim that he had no contact with HBS since around 2009. There is no indication that the trial judge engaged in any form of propensity reasoning. Rather, he used the evidence of the appellant's affiliation with HBS for the proper and relevant purpose of determining whether his involvement in HBS supported the complainants' identification evidence and whether the appellant was connected to Landry at the time of the robbery.

Disposition

[21] Appeal Dismissed

The appeal is accordingly dismissed.

Released: January 25, 2017

Janet Simmons J.A.

K. van Rensburg J.A.

B.W. Miller J.A.