COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Hudson, 2020 ONCA 507
DATE: 20200812
DOCKET: C67855
Strathy C.J.O., Tulloch and Coroza JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Damian Hudson
Appellant
Dirk Derstine, for the appellant
Grace Choi, for the respondent
Heard: May 12, 2020 by video conference
On appeal from the convictions entered on June 18, 2019, by Justice Lawrence T. Feldman of the Ontario Court of Justice.
Tulloch J.A.:
I. overview
[1] On April 30, 2018, a young man was stabbed during an altercation in Scarborough.
[2] A few days later, the appellant, Damian Hudson, was arrested and charged in connection with the stabbing. He was subsequently convicted of aggravated assault and carrying a weapon for the purpose of committing an offence.
[3] Mr. Hudson now appeals his convictions. For the reasons that follow, I would dismiss the appeal.
II. FACTS AND PROCEDURAL HISTORY
[4] At approximately 3:34 p.m. on April 30, 2018, Nirushan Jude was stabbed in the chest during an altercation with another man on Kennedy Road in Scarborough. The injury caused a rupture to his right ventricle, leading to full cardiac arrest and an anoxic brain injury, leaving Mr. Jude with cognitive and functional impairments.
[5] After stabbing Mr. Jude, the perpetrator fled the scene, running through a parking lot and neighbouring streets.
[6] A few days later, on May 2, 2018 the appellant was arrested and charged with attempted murder, aggravated assault, and carrying a weapon for the purpose of committing an offence, contrary to ss. 239(1), 268(2), and 88(1) of the Criminal Code, R.S.C. 1985, c. C-46. Based on a review of his intake photographs taken at the time of his arrest, his physical appearance was as follows: he was approximately 6 feet tall (185 centimetres), with a slim build (163 pounds), and a medium complexion; he had a nearly-shaved head, with a clean hairline running across his forehead and extending down into a thin beard; the hair on his chin was thicker and protruded down slightly; he had tattoos on his right forearm, his left wrist, his left hand (near the thumb), and his left forearm (along the backside). He was living at 30 Eppleworth Road, an apartment complex located in close proximity to where the stabbing occurred.
[7] At trial, the sole issue was identification. In support of its case, the Crown adduced three forms of evidence: eyewitness evidence, video surveillance evidence, and recognition evidence.
Eyewitness evidence
[8] There were three eyewitnesses who testified to the altercation or the events immediately following.
[9] The first eyewitness, a young person, M.H., testified that she had been walking from school with her sister when she heard two men arguing. She claimed that one of the men fell to the ground. The man who was still standing was tall, light skinned, and wearing jeans and a blue windbreaker with the hood on. He was holding something long and black in his hand. She claimed it looked like a belt.
[10] The second eyewitness, Chelsea Haywood-Alexander, was in a romantic relationship with Mr. Jude at the time of the incident. She testified that she arrived at Eglinton and Kennedy a few minutes before the altercation. She was across the street from Mr. Jude and the perpetrator when she heard yelling. She approached them and attempted to break up the fight. While she was in between the two men, facing Mr. Jude, the perpetrator stepped forward, reached around her, and hit Mr. Jude in the chest. Mr. Jude fell to the ground and the perpetrator ran. She called 911 at approximately 3:35 p.m.
[11] With regards to the perpetrator’s appearance, Ms. Haywood-Alexander testified that he was tall (over 6 feet), very skinny, and was “wearing a blue windbreaker, like navy blue, and he had the hood over his head and was wearing jeans, like a washed-out blue jeans.” In examination-in-chief, she testified that she had seen his face “pretty clearly” and could remember certain of his features, including his dark skin, wide eyes, small nose, and chiseled cheeks. However, as this evidence was inconsistent with her police statement – in which she stated that she had not seen his face – the Crown was permitted to cross-examine her pursuant to s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5. On cross-examination, she claimed that she had not told police the details of his face because she didn’t have enough information to provide an accurate description for the purpose of identification. She claimed that her memory was still fresh and she was not as emotional as she had been at the time of her original statement.
[12] Upon returning to examination-in-chief, Ms. Haywood-Alexander testified that the appellant “[did not] look like the guy”. She claimed that his skin colour was different, his nose did not match, and he did not have a distinctive jawline. She also noted that he appeared to be shorter and not lanky.
[13] The final eyewitness to testify was Jakov Papadopoulos. Mr. Papadopoulos testified that at around 3:35 p.m. or 3:40 p.m. on April 30, 2018, he had been in his basement when he saw a figure walk past a window, potentially trespassing on his property. He went upstairs and into his driveway where he saw a “tall skinny guy walking away with a hoodie, hoodie over, over his head.” He said that, at some point, the hood was down and he saw the back of the person’s head. He said it looked like a black man with short hair. During cross-examination, Mr. Papadopoulos testified that the appellant looked “[d]ifferent altogether” from the “skinnier dude” he had seen. He claimed that “this guy’s – he’s like Frankenstein there, you know, he’s huge.”
Video surveillance evidence
[14] The Crown adduced video surveillance evidence from various cameras in the area immediate to where Mr. Jude was stabbed. The videos establish the following timeline.
[15] At approximately 1:15 p.m., surveillance footage of the courtyard at 30 Eppleworth Road shows a black man leaving the building. He has a nearly-shaved head and is wearing blue jeans and a dark blue sweater or jacket with a hood.
[16] At approximately 3:35 p.m., surveillance footage from cameras at 711 Kennedy Road show an altercation between two people. One person is seen dropping to the ground, while the other runs away in a southbound direction before heading east. The person running appears to be wearing a hoodie with the hood up.
[17] At approximately 3:38 p.m., surveillance footage from 27 Merrian Road, which is located southeast of where Mr. Jude was stabbed, appears to show a young, black male with a shaved head and facial hair walking south in a laneway toward the 30 Eppleworth Road apartment complex. He appears to be wearing dark jeans and a black t-shirt with a colour logo on the front. He is carrying a piece of dark clothing in his right hand.
[18] Approximately 30 seconds later, surveillance footage from an entrance at 30 Eppleworth Road shows a black man, with a nearly-shaved head entering the building. He is wearing blue jeans and a black t-shirt.
[19] At approximately the same time, surveillance footage from the front lobby at 30 Eppleworth Road shows a black man, with a nearly-shaved head and facial hair (a thin moustache and a goatee extending from his chin) entering the building. He is wearing blue jeans and a black t-shirt, with blue lettering on the front. He is carrying a dark blue sweater or jacket, and there appears to be some discolouration on his right forearm and left wrist.
Recognition evidence
[20] At trial, the Crown brought an application to adduce evidence from two police officers, Detective Glen Cecile and Detective Constable Michael Reeves, in an effort to assist the trial judge in identifying the appellant as the person in the surveillance footage. Both officers testified as to their relationship with the appellant.
[21] Detective Constable Reeves was involved in the investigation of the stabbing of Mr. Jude. He was informed by another officer that video surveillance appeared to show someone entering 30 Eppleworth Road and going to the second floor. He began checking information on the residents and recognized the name of Damian Hudson. He claimed that he was aware of the appellant through general bulletins at the police station, as well as through personal interactions. He testified that sometime between April 2015 and June 2015, he reviewed pictures of him before heading out on patrol, where he briefly saw and chased a man, who he believed to be the appellant, in a stairwell of a building. He also stated that he believed he saw him “[m]aybe three times” in the community over a number of years. He testified that he recognized the appellant as the person in the videos taken on the afternoon of April 30, 2018 based on the descriptions provided by civilian witnesses, an examination of the appellant’s images in IntelliBook (the program used by police to record photographs and fingerprints of persons charged with an offence), and his previous dealings with him. He acknowledged in cross-examination that, after he reached his conclusion, he informed his fellow officers, including Detective Cecile, that he believed the person was Damian Hudson.
[22] Detective Cecile was also involved in the investigation. He testified that he knew the appellant through a number of previous interactions: in May 2014, as part of a criminal harassment investigation, he reviewed several video images and stills of the appellant and compared them to his images in IntelliBook; in August 2014, at a one day trial related to the criminal harassment investigation, Detective Cecile saw the appellant for most of the day; and Detective Cecile had reviewed video images of the appellant in an investigation of a potential assault on a court officer.
[23] At trial, Detective Cecile testified that he recognized the appellant as the person in the videos from the afternoon of April 30, 2018 based on his knowledge of the appellant’s “slender build”, shaved head, and distinctive facial hair (a “thin goatee” with a “tuft of hair on his chin”). His belief was strengthened by the fact that the appellant lived at 30 Eppleworth Road and has tattoos which appear to match the discolourations seen on the person in the video. In his testimony, he acknowledged that Detective Constable Reeves’ mention of the appellant “planted [the] seed” in his mind that the person was, in fact, Damian Hudson. He explained that he was aware of the dangers of confirmation bias but claimed that his conclusion was based on an objective assessment of the evidence and on his prior dealings with the appellant.
Trial judge’s decision
[24] After the six days of trial, the trial judge found that, based on the surveillance videos and still photographs of the appellant, there was no doubt that he had committed the offences in question. The appellant and the person captured on the video shared common tattoos and facial features, including a similarly shaped face, a near-shaved head, a moustache, a chin-strap goatee, and a similar nose and ears. He found that the discolourations seen on the left wrist and right arm of the person in the video matched the placement of tattoos on the appellant. The clothing of the man also matched the description provided by the various witnesses. The trial judge further noted that “[o]f particular significance” was the recognition evidence of the two police officers, who had a prior acquaintance with the appellant. He placed little weight on the exculpatory evidence of Ms. Haywood-Alexander and Mr. Papadopoulos, as Ms. Haywood-Alexander’s description was unreliable and imprecise, and Mr. Papadopoulos had not seen the person’s face.
[25] The trial judge concluded that the route taken by the appellant, the common physical descriptors, and the identification by both the court and police officers suggested that the only reasonable inference was that the appellant had committed the offences. Beyond speculation, there was no basis to infer that the appellant had merely been in the wrong place at the wrong time. The trial judge convicted the appellant of aggravated assault and carrying a weapon for the purpose of committing an offence.
[26] On the charge of attempted murder, however, the trial judge found that, in light of evidence that the altercation had escalated quickly, there was a reasonable doubt as to whether the appellant had the specific intent to kill Mr. Jude. He acquitted the appellant of attempted murder.
III. Issues on appeal
[27] The appellant appeals his convictions on three grounds:
1) did the trial judge err by improperly admitting the recognition evidence of the two police officers?
2) did the trial judge err by improperly relying on the recognition evidence in reaching his conclusion on identification?
3) was the trial judge’s verdict unreasonable?
IV. Analysis
(1) Did the trial judge err by improperly admitting the recognition evidence of the two police officers?
Governing principles
[28] Where there is video or photographic evidence capturing the commission of an offence and the identity of the perpetrator is at issue, one way in which the Crown may seek to prove that the accused is, in fact, the perpetrator is by adducing evidence from a witness who is sufficiently familiar with the accused to recognize them and assist the trier of fact in determining whether the accused is the person seen: R. v. Leaney, 1989 28 (SCC), [1989] 2 S.C.R. 393.
[29] In order for such recognition evidence to be relied upon by the trier of fact, two distinct inquiries must first be undertaken. To begin, the trial judge must determine whether the evidence meets the threshold requirements for admissibility. If this test is met, the trier of fact must then assess the evidence to determine its ultimate reliability and the appropriate weight, if any, that can be properly attributed to it.
[30] In R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, this court outlined the test for threshold admissibility of recognition evidence. Blair J.A. labelled the test as the “prior acquaintance/better position” test. The court set out two steps that must first be met before threshold admissibility can be established. The trial judge must determine whether: 1) the witness is sufficiently familiar with the accused to have “some basis” for their identification opinion; and 2) the witness, as a result of their prior acquaintance with the accused, must be 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”: at paras. 14, 21.
[31] The thrust of this inquiry is aimed at determining the level of familiarity of the potential witness with the accused. In assessing this level of familiarity, the trial judge should focus on the nature of the relationship between the potential witness and the accused, including the frequency and intensity of past contact. The fundamental question for the trial judge, is whether the potential witness is sufficiently familiar with the accused such that the witness may be able to provide valuable identifying information about the accused that a trier of fact, with access to only the accused, the video, and photographic evidence during trial, will not be able to or unlikely to ascertain for him or herself. In answering this question, the trial judge should base his or her determination primarily on the evidence of the nature of the relationship, including the nature of past contact, as opposed to a potential witness’ anticipated testimony. While a potential witness’ anticipated testimony may be of assistance in borderline cases, trial judges should be wary of the allure of potential witnesses who, despite having only a general level of familiarity with the accused, purport to be able to offer descriptions capable of identifying them. In other words, a trial judge should generally only permit a potential recognition witness to testify where the judge 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.
[32] The trial judge is in the best position to determine the "prior acquaintance/better position" test. That determination on the admissibility of recognition evidence is entitled to deference, absent an error in principle or an unreasonable ruling.
[33] Where a trial judge finds that the requirements for threshold admissibility have been met, the recognition witness will be permitted to testify. It will then be the role of the trier of fact to assess the witness’ testimony to determine its ultimate reliability and the weight that can be properly attributed to it, if any. In doing so, the trier of fact should consider the following, non-exhaustive list of factors as indicia of reliability: 1) the circumstances of the identification, including whether it was independent or suggested; and 2) the level of detail provided in the description, including the ability of the witness to “point to some unique identifiable feature or idiosyncrasy of the person to be identified”: Berhe, at para. 22. However, the “importance of unique identifiable features varies with how well the witness knows the person he or she identifies” (the better a person knows the accused, the less important the articulation of identifiable features becomes): R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, at para. 46; 3) the quality of the video or photographic evidence upon which the witness is making their identification (the witness’ testimony will be more reliable as the quality increases); and 4) the circumstantial or direct evidence available that can corroborate or undermine the reliability of the witness’ description.
[34] In determining the ultimate reliability of the evidence, the trier of fact must also be cognizant of the fact that, as recognition evidence is a form of identification evidence, the “same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence”: M.B., at para. 34, quoting R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39; R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d) 783, at paras. 29-32; R. v. McCracken, 2016 ONCA 228, 348 O.A.C. 267, at para. 25.
[35] The frailties of identification evidence have been well documented: M.B., at paras. 29-31; R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, at para. 52; R. v. Miaponoose (1996), 1996 1268 (ON CA), 30 O.R. (3d) 419 (C.A.). While seemingly reliable, particularly where witnesses are credible and convincing in their testimony, eyewitness identification is inherently unreliable: M.B., at para. 29; McCracken, at para. 25. Although witnesses may honestly believe their account reflects the reality of their observations, they “are often completely unaware of the interpretive process whereby they fill in the necessary but missing data” and arrive at a distorted recreation of the events they actually witnessed: Miaponoose, at p. 422, quoting the Law Reform Commission of Canada Study Paper on Pretrial Eyewitness Identification Procedures (1983), at p. 10. Where proper precautions are not taken in assessing identification evidence, the likelihood of wrongful conviction increases. The trier of fact, therefore, “must be satisfied of both the honesty of the witness and the correctness of the identification”: R. v. Reitsma (1997), 1998 825 (SCC), 125 C.C.C. (3d) 1 (B.C. C.A.), at para. 41, per Rowles J.A. (dissenting), rev’d [1998] 1 S.C.R. 769 (adopting the dissenting reasons of Rowles J.A.); R. v. Cole, [2006] O.J. No. 1654 (S.C.), at para. 20.
Arguments on appeal
[36] The appellant argues that the trial judge erred in admitting the recognition evidence of Detective Constable Reeves and Detective Cecile. He submits that while both officers had prior interactions with the appellant, these interactions were brief and fleeting. Neither was in a better position to identify the appellant than the trial judge, who had the opportunity to observe the appellant for six days during trial.
[37] In response, the Crown argues that the evidence of prior interactions between the officers and the appellant was sufficient to permit the trial judge to admit the evidence. Both officers were clearly familiar with the appellant and both had observed him outside of the courtroom context, thereby enabling them to provide information not available to the trial judge.
Analysis
[38] As noted above, a trial judge’s determination on the admissibility of recognition evidence is to be afforded deference, absent an error in principle or an unreasonable ruling. In this case, the trial judge did not commit an error in principle. He outlined the correct legal principles governing threshold admissibility and conducted the appropriate legal test. The only question, therefore, is whether he reached an unreasonable conclusion in admitting the evidence of either Detective Cecile or Detective Constable Reeves.
[39] In my view, the trial judge’s decision to admit the recognition evidence of Detective Cecile was not unreasonable. Detective Cecile had been a part of two prior investigations of the appellant, including one in which he was able to observe the appellant in court for the most part of a day. He had thus been able to study confirmed photographs and video of the appellant, as well as interact with him in person. While certainly a borderline case, given the absence of a prolonged relationship or any particularly intense or meaningful interactions (e.g., a police interview), it was not unreasonable to find that Detective Cecile’s relationship with the appellant would afford him a level of familiarity sufficient to enable him to provide valuable and otherwise unavailable identifying information.
[40] With respect to Detective Constable Reeves’ evidence, however, the trial judge’s ruling was unreasonable. While Detective Constable Reeves was clearly generally acquainted with the appellant, as he was able to recognize his name when checking information on the residents of 30 Eppleworth Road, he had no confirmed history of prior interactions with him. The man seen in the stairwell in 2015 was never confirmed to be the appellant. There was also no evidence confirming that Detective Constable Reeves had ever actually seen the appellant in the community. The only times that Detective Constable Reeves can be said, with any certainty, to have interacted with the appellant is when he saw his name on general bulletins at the police station or reviewed his images in IntelliBook. This level of interaction is insufficient to establish a level of familiarity that would enable Detective Constable Reeves to provide valuable and otherwise unavailable information to the trier of fact. The fact that Detective Constable Reeves purported to recognize the appellant does not strengthen the case for admission. Rather, it is precisely this type of assertive recognition evidence in the absence of a high level of familiarity that is to be avoided, as it offers the allure of reliability despite being based on a superficial level of familiarity. There was no basis to admit the evidence and the trial judge erred in doing so. The impact of this error will be addressed in the next section.
(2) Did the trial judge err by improperly relying on the recognition evidence in reaching his conclusion on identification?
[41] As explained above, where a trial judge has found that the requirements for threshold admissibility have been met, the trier of fact must then assess the ultimate reliability of the evidence.
[42] In this case, the appellant argues that, even if the trial judge was correct to admit the officers’ recognition evidence, he erred in his assessment of its ultimate reliability. The evidence was unreliable as neither officer made their identification of the appellant solely on the basis of the surveillance footage. Rather, both came to the footage with the appellant in mind as the perpetrator: Detective Constable Reeves watched the footage after recognizing the appellant’s name in his search of residents at 30 Eppleworth Road; and Detective Cecile watched the footage after Detective Constable Reeves had “planted [the] seed” in his mind that the appellant was the person captured on the video. The recognition evidence was thus tainted by confirmation bias. The trial judge should not have placed any weight on it, let alone identify it as evidence of “particular significance”. In light of this error, the trial judge’s ultimate conclusion that the appellant was the person in the surveillance footage should be overturned.
[43] The Crown submits in response that, although the trial judge clearly put some weight on the recognition evidence, his identification of the appellant as the perpetrator was made independently. The trial judge arrived at his identification decision on the basis of the video and photographic evidence, which was of high quality and permitted such an identification without reliance on additional evidence. There was no error.
[44] Given my earlier finding that the evidence of Detective Constable Reeves should not have been admitted, I agree with the appellant that the trial judge erred in placing any weight on this evidence.
[45] However, I do not accept the appellant’s argument as it pertains to the evidence of Detective Cecile. The trial judge engaged in a proper assessment of the reliability of this evidence. He acknowledged that Detective Constable Reeves’ suggestion to Detective Cecile was “troubling” and noted that he would “weigh his evidence and opinion cautiously”: at paras. 45-46. He considered the level of detail provided by Detective Cecile, including his description of the appellant’s tattoos and their placement: at para. 47. He also gave consideration to the quality of the video evidence, as well as the available corroborative evidence, such as the fact that the appellant was a resident at 30 Eppleworth Road: at paras. 47, 52. Having assessed the relevant factors, the trial judge was entitled to afford meaningful weight to Detective Cecile’s evidence. There is no basis to interfere.
[46] I turn now to the effect of the trial judge’s error in relying on Detective Constable Reeves’ evidence. In my view, the error was not significant. While the evidence should not have been admitted and, consequently, should not have been relied upon, the impact of the error was minor, as the trial judge arrived at his conclusion as to the identity of the perpetrator independently. In his reasons, at para. 55, the trial judge concluded that, after reviewing the surveillance footage and intake photographs of the appellant, he was “not left in reasonable doubt that the defendant and suspect are one and the same.” He proceeded to explain the reasons underlying his conclusion, including the common articles of clothing worn by the perpetrator and the man on the video, the similar facial features between the appellant and the man, and the discolouration on the man’s arms that match the appellant’s tattoos.
[47] It is only after reaching this conclusion that, at para. 57, the trial judge noted that he was assisted by the recognition evidence of the two police officers. While the trial judge’s comment that the evidence was “[o]f particular significance” is problematic in light of the error in admitting Detective Constable Reeves’ evidence, it is clear that the trial judge would have reached the same conclusion on the identity of the suspect even without reliance on this evidence. There are distinct similarities between the man pictured in the surveillance footage and the appellant in his intake photographs, including similar physical builds, haircuts, facial hair, and tattoos (discolourations). The video and photographic evidence was of high quality. In light of the frailties of eyewitness evidence, which have been observed in countless cases, and the necessary cautions that a trier of fact must take when assessing such evidence, whenever there is reliable and continuous video surveillance evidence, it may be powerful and probative evidence for the trier of fact: R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197, at paras. 22-23.
[48] Pursuant to s. 686(1)(b)(iii) of the Criminal Code, where an appellate court finds that the trial judge has committed a legal error, it may nevertheless dismiss the appeal if “it is of the opinion that no substantial wrong or miscarriage of justice has occurred”. The burden rests with the Crown to demonstrate that the curative proviso is applicable and that the conviction should be upheld despite the legal error: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 34.
[49] In this case, while the Crown did not explicitly invoke the curative proviso in either its factum or in oral argument, the substance of the Crown’s position is that, even if there was an error, no substantial wrong or miscarriage of justice occurred, as the trial judge reached his ultimate conclusion independently and without reliance on Detective Constable Reeves’ evidence. Wary that it is not the role of an appellate court to raise the curative proviso on its own motion, I am satisfied that the Crown’s argument amounts to an implicit invocation of the proviso: R. v. P.G., 2017 ONCA 351, 138 O.R. (3d) 343, at paras. 13-15; R. v. Ajise, 2018 ONCA 494, 361 C.C.C. (3d) 384, at para. 32, aff’d 2018 SCC 51, [2018] 3 S.C.R. 301. As such, I am satisfied that it is appropriate to rely on the powers outlined in s. 686(1)(b)(iii) of the Criminal Code to cure the error of the trial judge. In light of the trial judge’s independent conclusion regarding the identity of the perpetrator, the error in admitting and relying on Detective Constable Reeves’ evidence was harmless. No substantial wrong or miscarriage of justice has occurred.
(3) Was the trial judge’s verdict unreasonable?
[50] An appellate court may set aside a trial verdict if the verdict is either unreasonable, unsupported by the evidence, or both: Criminal Code, s. 686(1)(a)(i); R. v. Lights, 2020 ONCA 128, 149 O.R. 273, at para. 29. In cases such as this one, where the verdict rests wholly or substantially on circumstantial evidence, the question on appeal is “whether the trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole”: Lights, at para. 39, citing R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55. It is the role of the trier of fact to assess whether any proposed alternative way of viewing the case as a whole is reasonable enough to raise a doubt as to the guilt of the accused: Lights, at para. 39, citing Villaroman, at para. 56.
[51] In this case, the trial judge found the appellant guilty on the basis that: 1) the person seen in the surveillance footage was the person described by eyewitnesses as having stabbed Mr. Jude; and 2) the appellant was the person seen in the surveillance footage. Beyond speculation, there was no basis to infer that the appellant had merely been in the wrong place at the wrong time.
[52] The appellant submits that this conclusion is unreasonable for two reasons. First, he argues that the trial judge erred by failing to give any meaningful weight to the exculpatory evidence of the witnesses, particularly the evidence of Ms. Haywood-Alexander and Mr. Papadopoulos. As both witnesses claimed that the appellant did not look like the person they had seen on April 30, 2018, the trial judge should have given greater consideration to whether their testimony raised a reasonable doubt as to whether the appellant was, in fact, the person who had stabbed Mr. Jude.
[53] Second, the appellant argues that the trial judge failed to consider the reasonable possibility that the person shown in the video surveillance footage was not the appellant, but someone else who resembled him. This was a reasonable inference consistent with innocence and the trial judge erred in dismissing it as speculative.
[54] I would not give effect to these arguments. The trial judge considered the evidence of all the eyewitnesses, including Ms. Haywood-Alexander and Mr. Papadopoulos. With respect to Ms. Haywood-Alexander, he found that, in light of her fleeting view of the suspect’s face and the imprecision of her original description, her testimony did not raise a reasonable doubt as to the guilt of the appellant. Similarly, with Mr. Papadopoulos, the trial judge determined that his evidence did not raise a reasonable doubt, as he had “but a momentary view of the person” and had not seen the suspect’s face. These findings are reasonable and within the purview of the trier of fact. Nor, do I agree that the trial judge undermined the defence position or reversed the burden of proof by improperly approaching that evidence with care and caution. The trial judge noted at para. 62 of his reasons that he need not accept the defence of other exculpatory evidence, but that it was sufficient for acquittal if the evidence leaves the trier with a reasonable doubt: R. v. Vassel 2018 ONCA 721, [2018] O.J. No. 4512 (Ont. C.A.). There is no basis to interfere.
[55] The trial judge was also entitled to find that there was no reasonable possibility that the perpetrator was someone who simply resembled the appellant. As he explained, the circumstantial evidence, including the description of the perpetrator by the eyewitnesses, the timeline established by the surveillance cameras and witnesses, the similarities between the man seen on the surveillance footage and the appellant’s intake photos, and the appellant’s residence at the building, strongly suggested against the reasonableness of such a possibility. I see no reason to interfere with his conclusion.
[56] The verdict was not unreasonable.
V. disposition
[57] In all the circumstances, I would dismiss the appeal.
Released: “G.R.S.” August 12, 2020
“M. Tulloch J.A.”
“I agree. G.R. Strathy C.J.O.”
“I agree. S. Coroza J.A.”