WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it;

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Keating, 2020 ONCA 242
DATE: 20200401
DOCKET: C65506

Doherty, Watt and Benotto JJ.A.

BETWEEN

Her Majesty the Queen
Respondent

and

Dwayne Keating
Appellant

Michael Pasquale, for the appellant
Adam Wheeler, for the respondent

Heard: In-writing appeal submitted to the panel on March 23, 2020

On appeal from the convictions entered by Justice Paul T. O’Marra of the Ontario Court of Justice, dated April 12, 2018.

Doherty J.A.:

I

overview

[1] This is an appeal from conviction only.

[2] The appellant was charged with three “pimping” related offences. The trial judge convicted on all three counts.

[3] The appellant acknowledges that the conduct and events described by the complainant, and accepted as factually accurate by the trial judge, established the requisite elements of the three offences charged. The appellant submits, however, that the trial judge erred in finding that the appellant was the person who committed the offences.

II

the evidence

[4] The Crown’s case rested almost exclusively on the evidence of the complainant. She testified and, on consent, the trial judge admitted a video statement made by the complainant pursuant to s. 715.1 of the Criminal Code. That statement, once admitted, became part of her testimony.

[5] In April 2017, the complainant was destitute, abusing drugs and trying to survive on the streets by herself. She was 17. Her parents had ordered her out of the house earlier.

[6] The complainant found herself alone in a Tim Hortons in Thornton, Ontario. She was under the influence of the drug Xanax. The complainant contacted a person she knew as “Chicken” on her Instagram. They had communicated over Instagram previously. They had never met.

[7] Eventually, Chicken, at the complainant’s request, picked her up at the Tim Hortons. Over the next four or five days, the complainant and Chicken were constantly together, first, at his mother’s home and later at various hotels. They had sexual intercourse on various occasions. They were joined by another woman, who the complainant knew as Shanice. The complainant soon realized that Shanice worked as a prostitute for Chicken.

[8] Chicken quickly began to pressure the complainant to work as an escort. He assured her that she could make some “easy money”. Chicken prepared and placed an advertisement offering the complainant’s sexual services on a website known as Backpage. Chicken controlled all inquiries generated by that advertisement.

[9] Having lived on the streets for about two years, the complainant had some familiarity with the world of escorts. She did not want to become involved in prostitution and did all she could to avoid meeting the “clients” who answered the advertisement placed by Chicken. She and Chicken quarrelled over her reluctance to work as an escort. He became very angry.

[10] During the four or five days the complainant was with Chicken, she had little sleep and was constantly under the influence of drugs that he provided.

[11] The complainant met only one client. He paid her the agreed upon amount for sex, but apart from some awkward kissing, they only talked. The complainant gave the money to Chicken after the client left.

[12] On the fourth or fifth night that the complainant was with Chicken, she and Shanice got into a heated argument in a hotel room. Eventually, the complainant went to the front desk and asked the clerk to call the police. Chicken and Shanice fled before the police arrived.

[13] The police took the complainant to the police station. A police officer conducted a video interview with the complainant later that night. This was the video eventually admitted at trial under s. 715.1 of the Criminal Code.

[14] In the course of the video interview, the complainant was shown screenshots taken from the complainant’s Facebook page, containing photos of a Facebook friend who used the name “Teff Dot”. The complainant told the police officer that the person in the photos was the same person she had been referring to as Chicken when describing the events of the previous four or five days.

[15] The complainant did not know the identity of the person she knew as Chicken at the time she was interviewed by the police. The appellant was eventually arrested about six weeks later.

[16] In her trial testimony, the complainant again identified the person in the Facebook photos as the person she knew and referred to as Chicken. The complainant also made an in-court identification of the appellant as that person. The complainant, who testified by closed circuit tv, indicated, however, that she could not see the appellant clearly on the camera, although she did notice that his hair was shorter than it had been.

[17] The Crown also introduced into evidence a photograph of the appellant taken when he was arrested, about six weeks after the complainant spoke to the police.

[18] The appellant did not testify or call any evidence.

III

Did the trial judge err in his consideration of the identification evidence?

[19] There is no gainsaying the risks inherent in eyewitness identification. Equally, there can be no doubt that care must be taken by a trier of fact when assessing, and before relying on, eyewitness evidence.

[20] It is important, however, that the risks be assessed in the context of the specific facts of the case. Here, the complainant testified that she met a person she knew as Chicken through Instagram. She had pictures of that person on her Facebook page. In her video statement, she identified the photographs as pictures of the person she knew as Chicken, the very same person she had been with continually over the previous four or five days. She gave the same evidence at trial.

[21] The Facebook photographs, which the complainant identified as Chicken, were exhibits at trial. The trial judge compared those photographs to the mugshot photograph of the appellant taken some six weeks after the relevant events. He said:

I have examined Exhibit Number 3, the Facebook pages, and the mugshot taken in May 2017. Although they were black and white photocopies, the Facebook pages were dated January and October. I am satisfied they were of good quality. They have sufficient clarity for me as a trier of fact to identify the accused beyond a reasonable doubt.

[22] The trial judge concluded that the complainant’s identification of the Facebook photographs as pictures of Chicken, the man who had tried to force her into prostitution, combined with the trial judge’s own observation that the Facebook pictures were indeed pictures of the accused as shown in his mugshot, was sufficient to prove beyond a reasonable doubt that the appellant and the person who the complainant referred to as Chicken were one in the same person.

[23] The appellant’s primary submission arises out of the trial judge’s reliance on his own observation of the Facebook photographs to conclude that they were photographs of the appellant. The appellant argues that R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197 limits a trier of fact’s ability to identify an accused as a person depicted in a photograph or video to situations in which the photograph or video is a depiction of the accused committing the crime or acting in close proximity to the commission of the crime.

[24] There is nothing in Nikolovski, the case law flowing from it, or logic which supports the limitation advanced by the appellant. In cases like Nikolovski, in which the photograph or video is relied on as the exclusive evidence to establish an accused’s guilt, it follows that the photograph or video must be sufficiently probative to carry the evidentiary burden on all essential elements of the offence. In practical terms, it must show the accused committing the offence.

[25] In this case, the Crown did not depend exclusively on the identification by the trial judge of the appellant as the person in the Facebook photographs tendered by the Crown. The Crown’s case had two planks. First, the Crown relied on the complainant’s evidence that the person shown in the Facebook photographs was the same person she had lived with the preceding four or five days, and the same person who had attempted to coerce her into acting as an escort. Second, the Crown relied on the trial judge’s comparison of the photographs of the person in the Facebook photographs with the person shown in the appellant’s mugshot. Based on that comparison, the trial judge was satisfied that the appellant, who was obviously the person shown in the mugshot, was also the person shown in the Facebook photographs identified by the complainant.

[26] The Facebook photographs, on their own, could not prove that the accused committed any crime. The complainant’s evidence, which the trial judge accepted after careful analysis, established that the person in the Facebook photographs, known to the complainant as Chicken, committed the crimes alleged. The trial judge’s in-court observations, including his assessment of the complainant’s credibility and acceptance of her testimony, allowed him to conclude that the person in the Facebook photographs who had committed the crimes, was the same person who was before him in court. The trial judge’s reliance on his own observations to forge the connection between the perpetrator of the crimes and the accused before the court did not offend the analysis in Nikolovski or any other evidentiary principle.

[27] The other submissions advanced by the appellant effectively challenged the reasonableness of the convictions. The appellant makes many of the same arguments that were made at trial. For example, he submits that the police failed to take basic and necessary investigative steps, that the trial judge failed to consider the lack of corroborating evidence, and that the complainant had a motive to fabricate the allegations against the appellant.

[28] The trial judge considered these arguments and the other submissions made at trial. He rejected all of them. In doing so, he was clearly alive to the dangers associated with identification evidence. His analysis reveals neither legal nor factual error.

[29] Nor can it be said that the evidence could not reasonably support the trial judge’s findings. In assessing the complainant’s evidence that Chicken was the person shown in the Facebook photographs, it is significant that when the complainant identified the picture as a picture of Chicken, she had been living with that person on intimate terms over the previous four or five days. Her identification of Chicken as the person in the photographs was hardly based on a fleeting glance.

[30] The trial judge gave careful and thorough reasons for accepting the complainant’s evidence, including her evidence that Chicken, the person who attempted to coerce her into prostitution, was the person depicted in the Facebook photographs. In concluding that the appellant before the court was the person in the photographs, the trial judge had regard to the quality of the photographs and carefully took into account certain differences between the appellant’s courtroom appearance and the appearance in the photographs. The trial judge’s findings were reasonably open on the evidence and reasonably arrived at by him.

[31] I would dismiss the appeal.

Released: “DD” “APR 01 2020”

“Doherty J.A.”

“I agree David Watt J.A.”

“I agree M.L. Benotto J.A.”