COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cleland, 2020 ONCA 837

DATE: 20201223

DOCKET: C65950

MacPherson, Lauwers and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Theo Cleland

Appellant

Frank Addario and Wesley Dutcher-Walls, for the appellant

Michael S. Dunn, for the respondent

Heard: December 15, 2020 by video conference

On appeal from the conviction entered by Justice David A. Broad of the Superior Court of Justice, sitting with a jury, on June 7, 2018.

REASONS FOR DECISION

[1] Theo Cleland appeals his conviction by jury of aggravated assault. He argues that the jury’s verdict was unreasonable and requests that the conviction be set aside, and an acquittal be ordered. In the alternative, Mr. Cleland seeks a new trial, claiming that the trial judge misdirected the jury by providing a confusing jury direction relating to the identification evidence against Mr. Cleland, thereby overstating the significance of the Crown’s identification evidence. For reasons that follow, we would dismiss Mr. Cleland’s appeal.

THE MATERIAL FACTS

[2] The complainant, Mitchell Wotton, was at a university house party (“the house party”) when an uninvited group of young men arrived and attempted to enter the house, leading to an altercation. It is not disputed that Hussein Karshe was one of those uninvited young men and was involved in the scuffle that ensued. Mr. Karshe received an injury to his hand, which bled.

[3] It is also agreed that Mr. Cleland was part of Mr. Karshe’s group of friends and was present outside the house party. There was no evidence that Mr. Cleland was involved in the scuffle.

[4] Shortly after the uninvited men left the house party, Mr. Wotton, Andrew Zaduban, and Sean Redmond also left. At the time, the three young men were roommates and good friends. Each of them had consumed approximately five beers, or more. Mr. Wotton may have consumed eight beers. Shortly after leaving, the three men met up with Gabrielle D’Amelio and they walked together.

[5] Before long, Mr. Wotton’s group encountered several young men, including Mr. Karshe. It was conceded before us, and supported by trial evidence, that Mr. Cleland, who is white and 5’10”, was part of Mr. Karshe’s group. Mr. Cleland was wearing a white t-shirt, and his hair was tied in a bun.

[6] Mr. Wotton and Mr. Karshe exchanged words and then began to fight. Others became involved, including Mr. Zaduban and Mr. Redmond. Mr. Zaduban and Mr. Redmond testified that they were not striking anyone but were merely attempting to protect Mr. Wotton, who had been knocked to the ground and was being kicked and punched. The fight ended shortly after it began, when the police arrived. Mr. Karshe and his group fled.

[7] During the fight, Mr. Wotton was badly cut and his jaw was broken. Mr. Zaduban and Mr. Redmond accompanied him to the hospital. It was only later, after they had discussed what had happened, that their police statements were prepared.

[8] Approximately 15 minutes after the police arrived, Mr. Cleland was arrested nearby. He broadly met the on-scene description that Mr. Wotton had provided to the police.

[9] At the time of his arrest, Mr. Cleland’s hair was in a bun. There was blood on the left side of his white t-shirt, in the area of his left pectoral muscle. His shirt was also stained with dirt. His knuckles were slightly swollen, and he had a scratch on his face, blood on his ring, and what appeared to be blood on his arm.

[10] The blood from the shirt and the ring was subjected to DNA analysis. Mr. Karshe was the source of the blood on the ring, and his DNA was also extracted from the blood on the shirt. The blood on Mr. Cleland’s shirt was from more than one source, but the amount of DNA that remained after Mr. Karshe’s DNA was isolated was too small for analysis.

[11] Mr. Karshe was not arrested on the night of the fight. He was identified the next day by Rachel Gluek, a witness from the house party, with the assistance of social media, and subsequently arrested.

[12] Ms. Gluek also selected a photograph of Kwasi Adjei. Mr. Wotton, Mr. Zaduban, and Mr. Redmond were convinced that Mr. Adjei had been involved, and Mr. Adjei was interviewed by police as a suspect. Ultimately, Mr. Adjei provided an alibi and was not charged.

[13] During the trial, Ms. Gluek testified that she had seen Mr. Cleland on the lawn at the house party and had learned his identity from photographs on social media. Three police officers involved in Mr. Cleland’s arrest identified him in court as the person they arrested. None of the witnesses to the fight in which Mr. Wotton was injured purported to identify Mr. Cleland prior to trial or in court. The case against Mr. Cleland was built on descriptions provided by Mr. Zaduban, Mr. Redmond, and Mr. Wotton, and Mr. Cleland’s condition and appearance when arrested.

[14] When Mr. Zaduban described the fight, he testified that after Mr. Wotton punched Mr. Karshe, Mr. Karshe’s whole group went after Mr. Wotton “really quickly”. He said the members of the group were punching and kicking Mr. Wotton. When asked if anybody from Mr. Karshe’s group was not involved, he said, “It’s hard to say, ‘cause it’s a blur, but it felt like the whole group was attacking [Mr. Wotton].”

[15] He also testified that he remembered three of the people who were kicking Mr. Wotton, including “a white guy with a man-bun”, wearing a white shirt with blood on it, who “seemed pretty average height, I’d say 5’11”, 5’10”, 5’11”.” When asked where the blood was on this man’s shirt, he said, “It’s on his left side of his torso”, and he agreed it was on the man’s “pec”.

[16] Mr. Zaduban testified that he saw the blood when the man was right beside him, kicking Mr. Wotton. When confronted with his earlier statement that he had observed the blood on the man wearing his hair in a bun when he first encountered the group, he said he could not remember when he first saw the blood, but agreed that he had been attempting to be truthful in that statement and that his memory was fresher at the time.

[17] Mr. Redmond testified that shortly after Mr. Karshe and Mr. Wotton began fighting, “the rest of their group starts punching [Mr. Wotton]”. He remembered three of the people in Mr. Karshe’s group, including a white male, about 5’8”, with a white t-shirt and long, brown hair in a bun. When asked why he remembered these three men, he explained that they were the most aggressive and were punching and kicking Mr. Wotton.

[18] Mr. Wotton testified that after meeting Mr. Karshe’s group, and before the fight began, he “recognized a guy from the party that had a man-bun”, and a “light shirt”. He also testified that while he was fighting Mr. Karshe, Mr. Karshe’s group “all rush in and jump me”. He said he could not see specifically who was punching and kicking him, but he said, “I have a specific recollection of all members of their party coming in.”

[19] The jury ultimately found both Mr. Karshe and Mr. Cleland guilty of aggravated assault.

WAS THE VERDICT UNREASONABLE?

[20] Mr. Cleland argues that the verdict of guilty against him was unreasonable. He argues that the inculpatory evidence is so unreliable that guilt is not a verdict that a properly instructed jury, acting judicially, could have rendered. He urges that when the evidence is reviewed and weighed through the lens of judicial experience, the verdict can be seen to be “flawed in light of the unreasonable result that it produced”: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 39-40.

[21] In his argument, Mr. Cleland focused on six flaws in the evidence: (1) each witness was under the influence of alcohol; (2) Mr. Zaduban, Mr. Redmond, and Mr. Wotton had each misidentified Mr. Adjei as present that evening, and were therefore demonstrated to be unreliable identification witnesses; (3) these three witnesses were friends who had discussed the case; (4) the fight was brief and chaotic and these three witnesses were involved, compromising their opportunity to observe who else was involved in the fight; (5) Mr. Zaduban’s description of his memories as a blur with flashes or impressions shows his evidence to be unreliable; and (6) the evidence of the blood on Mr. Cleland’s shirt is neutral because evidence shows that the blood came from Mr. Karshe, and Mr. Cleland’s shirt may well have been stained from the injury Mr. Karshe had sustained during the house party altercation, before the fight in which Mr. Wotton was injured.

[22] We would dismiss this ground of appeal.

[23] There was ample, reliable evidence that Mr. Cleland was part of Mr. Karshe’s group at the time of the fight in which Mr. Wotton was injured, a fact that was conceded before us. Based on the evidence of Mr. Zaduban, Mr. Redmond, and Mr. Wotton, the jury could reasonably have found that all members of Mr. Karshe’s group, including Mr. Cleland, joined in the assault on Mr. Wotton, which led, foreseeably, to his aggravated injuries. On that basis alone, there was sufficient evidence to support the conviction.

[24] Moreover, there was circumstantial evidence that would permit a jury to reasonably conclude beyond a reasonable doubt that Mr. Cleland was the assailant with his hair in a bun described by Mr. Zaduban and Mr. Redmond. Mr. Cleland was known to be present during the fight, he fit the description of the assailant, including wearing his hair in a bun, and he proved to have blood on his shirt in the very location that Mr. Zaduban described. That bloodstain evidence is not neutral, regardless of its source or when that stain occurred. Its relevance as identification evidence derives from the improbability that both the assailant and Mr. Cleland would have similar stains on their shirts and be in the same general area at the same time.

[25] Further, when Mr. Cleland was arrested nearby, shortly after the fight, his appearance indicated that he had been involved in a recent altercation, most likely outdoors.

[26] We are not of the view that the “flaws” that Mr. Cleland identifies in the incriminating evidence furnished by Mr. Zaduban, Mr. Redmond, and Mr. Wotton are significant enough that judicial experience would require its rejection, particularly given that Mr. Cleland proved to have blood on his shirt exactly where Mr. Zaduban’s evidence indicated it would be. The trial judge in his careful charge, with the assistance of defence counsel, alerted the jury to each of the material challenges to the credibility and reliability of these witnesses, and assisted the jury in understanding their evidence. It was for the jury to decide whether to accept the evidence and to determine whether the circumstantial case against Mr. Cleland proved his guilt beyond a reasonable doubt. We are far from persuaded that the jury verdict was “beyond the reasonableness limit”: R. v. Lira, 2017 ONCA 214, at para. 7.

DID THE TRIAL JUDGE MISDIRECT THE JURY?

[27] Mr. Cleland argues that the trial judge misdirected the jury by providing a misleading picture of the identification evidence. The police officers involved in Mr. Cleland’s arrest identified Mr. Cleland in court. Ms. Gluek testified that she saw Mr. Cleland on the lawn at the house party and later identified him from photographs she viewed on social media. None of the witnesses to the fight in which Mr. Wotton was injured purported to identify Mr. Cleland. Mr. Cleland contends that the trial judge failed to point this out in his charge, instead treating both categories of witnesses – those who identified Mr. Cleland as Mr. Cleland, and those who merely gave descriptions of an assailant wearing his hair in a bun – the same, creating the real risk that the jury would be misled into believing that there was evidence that Mr. Cleland had been identified as having been involved in the fight. He says that, as a result, the jury charge was misleading and did not leave the jury with “a sufficient understanding of the facts as they relate to the relevant issues”: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 14.

[28] Mr. Cleland relies specifically on two passages from the jury charge.

[29] First, when summarizing the Crown position, the trial judge recounted the Crown submission that Mr. Cleland was identified “by his matching the description at the time of his arrest of one of the participants in the fight”, by his condition upon arrest, and by the place of his arrest. The trial judge then continued, “In addition to this strong uncontradicted evidence of identity, Mr. Cleland was identified in dock or in court by several Crown witnesses.”

[30] Mr. Cleland appears to be suggesting that this passage elides the descriptive evidence and the identification evidence, obscuring the important distinction between these two kinds of proof.

[31] Second, when summarizing specific shortcomings in the Crown’s evidence, the trial judge said:

Ten, certain of the witnesses made in court identifications of Theo Cleland and Hussein Karshe. In court identification occurs when a witness identifies an accused person during the trial in the courtroom. It is well established in the law that in court identification is to be given negligible, if any, weight.

Eleven, in addition to the four eyewitnesses to the altercation on University Avenue that I referred to, there was another witness, Rachel Gluek, who offered identification evidence. She identified Theo Cleland as having been among the group that had attempted to gain entry to the party on the lawn afterwards. Her identification of Theo Cleland derived from an observation of a photograph posted on Facebook. No photos supporting identification of Theo Cleland were provided to police and identification on Facebook deprived the police of the opportunity to conduct a photo line-up with the various witnesses to support a positive identification. Moreover, Rachel Gluek’s description of Theo Cleland’s hairstyle when she observed him on the lawn differed from other witnesses. She confirmed that the individual she identified did not have a ponytail or a man-bun.

[32] As indicated, Ms. Gluek testified to seeing Mr. Cleland on the lawn at the house party. Mr. Cleland contends that, together, points “ten” and “eleven”, above, once again obscure the distinction between witnesses who identified Mr. Cleland and those who merely described the assailant.

[33] We would dismiss this ground of appeal, as well. The jury would not have been misled by the jury charge. The trial judge drew a clear distinction in his charge between descriptive evidence and identification evidence.

[34] The trial judge began his charge relating to the issue of identity by explaining the risks of “eyewitness identification” and how it is to be evaluated. He made clear in his comments that eyewitness identification evidence involves observations and descriptions. The trial judge then identified the four witnesses who gave eyewitness evidence relating to the incident, namely, Mr. Wotton, Mr. Redmond, Mr. Zaduban, and Ms. D’Amelio. At no time did he suggest that they had identified Mr. Cleland as the bun-wearing assailant.

[35] In point ten, quoted above, the trial judge defined in-court identification evidence as occurring “when a witness identifies an accused person during the trial in the courtroom”. In this way, he equipped the jury to identify who the in-court identification witnesses were. It would have been apparent to the jury, applying that definition, that none of the witnesses to the fight were in-court identification witnesses.

[36] Nor would the jury have been confused by the description of Ms. Gluek as an “eyewitness” who “offered identification evidence”, in point eleven, quoted above. It was not inaccurate to describe Ms. Gluek in this way. As the impugned passage makes clear, Ms. Gluek identified Mr. Cleland in the circumstances described, and she also gave eyewitness evidence relevant to his identification as having been at the house party. Given the clear description by the trial judge of the nature of the evidence given by the eyewitnesses to the fight in which Mr. Wotton was injured, we see no realistic risk that the way he described Ms. Gluek’s evidence would cause the jury to mistakenly believe that Mr. Cleland had been identified by witnesses as having participated in the fight.

[37] Finally, no objection on this issue was taken to the charge. Although we take Mr. Cleland’s point that Mr. Cleland would have received no tactical benefit from a charge that created confusion about whether eyewitnesses to the incident had identified him in court, the failure to object “says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection”: Jacquard, at para. 38.

[38] We are satisfied that the “charge as a whole enabled the trier of fact to decide the case according to the law and the evidence”: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 8.

CONCLUSION

[39] Mr. Cleland’s appeal is dismissed.

“J.C. MacPherson J.A.” “P. Lauwers J.A.” “David M. Paciocco J.A.”