Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20220128 DOCKET: C67566
Fairburn A.C.J.O., Gillese and Trotter JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Justin Longshaw Appellant
Counsel: Jeff Carolin and Taufiq Hashmani, for the appellant Molly Flanagan, for the respondent
Heard: January 27, 2022 by video conference
On appeal from the convictions entered on April 18, 2018 by Justice Jane E. Kelly of the Superior Court of Justice, and from the sentence imposed on April 4, 2019.
REASONS FOR DECISION
[1] The appellant was convicted of offences arising from an incident at Cabana Pool Bar (“Cabana”) in Toronto on August 20, 2016. It was conceded at trial that a male wielding a firearm threatened Cabana security staff. The sole issue was identification – whether the appellant was that male.
[2] Following a judge-alone trial, the appellant was convicted of two counts of threatening to cause death and one count each of possessing a dangerous weapon (a firearm), using an imitation firearm while threatening death, obstructing a peace officer by giving an incorrect name, and failing to comply with a probation order to not possess weapons. He was sentenced to 60 days’ imprisonment in addition to four years’ pre-sentence custody credit. He was designated a dangerous offender and placed on a seven-year long-term supervision order.
[3] The appellant raised many grounds of appeal against conviction, effectively arguing that the verdicts were unreasonable. At the oral hearing of the appeal, the court found it unnecessary to call on the respondent Crown. We advised the parties that the appeal was dismissed, with reasons to follow. These are the promised reasons.
BACKGROUND IN BRIEF
[4] On August 20, 2016, after being ejected from Cabana, a man began threatening Cabana security staff. He retreated to the parking lot and returned with what appeared to be a black firearm. He continued to threaten the security staff, now while pointing a firearm at them. When he left again, one of the security staff, Mr. Osroff, followed him to the parking lot behind Cabana and called 911. He stayed on the 911 call until the police arrived. During that time, he saw the suspect near a vehicle that he later described as a “sedan Jeep”.
[5] When the police arrived, Mr. Osroff pointed them to the area in the parking lot where he believed the suspect was. The police moved to that area and saw a male emerge from the back-passenger side of a blue Jeep and walk quickly away from it. The police arrested the male, who fit the description of the suspect. That male was the appellant. The appellant falsely identified himself as “Corey Barriner” on arrest.
[6] The police located an imitation firearm (a black handgun) on the floor of the Jeep in front of the rear passenger seat from which the appellant had emerged.
THE TRIAL DECISION
[7] The trial took place over three days. The Crown called the three security staff from Cabana who had witnessed the incident and five police officers who attended the scene and were involved in arresting the appellant in the parking lot. The defence called no evidence. Its primary position at trial was that the Crown had failed to prove identity.
[8] After a brief summary of the facts, the trial judge turned to the issue of identity. She summarized the descriptions of the man given by the three security staff witnesses and acknowledged the differences in those descriptions, such as the man’s footwear and height. However, she concluded that the evidence was reliable. She said the differences were to be expected because the situation on the night in question was dynamic and fluid. While they were making their observations, the staff were being threatened by a male holding what they believed was a firearm, leading them to fear for their safety and that of others.
[9] Further, the trial judge found that the differences in descriptions were minor, in the context of the entirety of the evidence. Moreover, the description of the suspect reported on the 911 call was consistent with the appellant’s appearance at the time of arrest: he was a Black male, in his 20s, with cornrows, and wearing a white t-shirt and dark shorts.
[10] The trial judge also noted that the situation was different from a typical identification case where witnesses have only a fleeting opportunity to observe the suspect. Here, two of the staff observed the individual for minutes during the first set of threats; three staff saw him during the second set of threats; and one of the witnesses, Mr. Osroff, never lost sight of the suspect from the time he made the second set of threats to his arrest. Despite some minor frailties in Mr. Osroff’s evidence, the trial judge accepted it. She gave thorough, compelling reasons for rejecting defence counsel’s submissions that Mr. Osroff’s evidence was unreliable and undermined in cross-examination.
[11] The trial judge reminded herself of the frailties of eyewitness identification evidence before concluding that she “completely accept[ed] the evidence of the security staff” with respect to the identification of the appellant as the man who threatened them on the night in question, noting there was circumstantial evidence that supported the identification evidence.
[12] The trial judge was further satisfied that the black firearm described by the three security staff and seized by the police from the Jeep was the firearm used by the appellant when threatening the officers.
[13] Finally, the trial judge found that by giving a false name to the police, the appellant was guilty of obstructing a peace officer, as there was no other inference to draw from providing a false name on the evidence before her.
THE GROUNDS OF APPEAL
[14] The appellant submits that the verdicts are unreasonable. He says that the trial judge erred:
by using Mr. Osroff’s certainty that he never lost sight of the suspect as a proxy for his reliability;
by: a. misapprehending the additional evidence that she used to find Mr. Osroff reliable; and b. failing to critically engage with the evidence that pointed to his unreliability;
in her treatment of the security staff’s descriptions of the male by: a. not assessing the exculpatory descriptive evidence (i.e., the inconsistencies) against the reasonable doubt standard; b. relying only on the generic descriptive evidence that was consistent with the appellant’s appearance; c. applying different standards of reliability to the inculpatory and exculpatory descriptive evidence; and d. failing to consider the exculpatory generic descriptors against the reasonable doubt standard;
by relying on the in-dock identifications of the appellant;
by relying on generic handgun descriptions;
by concluding that guilt was the only reasonable inference that arose from the appellant providing a fake name; and
in relation to the obstructing a peace officer count only, by failing to provide reasons to support the conviction, entitling him to a new trial.
[15] The appellant asks that if acquittals are entered or a new trial is ordered in respect of each offence except the charge of obstructing a peace officer, the sentence for obstructing a peace officer be varied to 30 days’ imprisonment.
ANALYSIS
[16] The many grounds of appeal which the appellant raises are essentially an attempt to relitigate the issue of identification. Most of the grounds amount to disagreement with the trial judge’s factual findings. We do not accept that the trial judge made any of the alleged errors and see no basis to disturb the factual findings below.
[17] In cases involving eyewitness identification evidence, the trial judge must consider the eyewitness testimony in its entirety, mindful of its inherent frailties. These frailties arise most acutely in cases where eyewitnesses have only a fleeting opportunity to observe an unfamiliar person in a stressful circumstance: R. v. Pelletier, 2012 ONCA 566, 291 C.C.C. (3d) 279, at paras. 90, 95. In order to determine whether the appellant’s guilt was proven beyond a reasonable doubt, the trial judge was required to consider the eyewitness testimony in the context of the evidence as a whole: Pelletier, at para. 95. She did so in this case.
[18] The trial judge considered all of the identification evidence and ultimately concluded that the appellant was the person who threatened the security staff and that the gun found in the vehicle was the gun used by the appellant to threaten the security staff.
[19] Of paramount importance was the evidence of Mr. Osroff, who testified that he did not lose sight of the suspect, from the time he made the second set of threats to his arrest. After acknowledging the vigorous cross-examination and submissions of defence counsel on the reliability of that evidence, the trial judge found that his evidence with respect to the continuous observation was not undermined. Thereafter, she gave compelling reasons for that finding.
[20] The main thrust of the appellant’s submissions was that the trial judge’s findings concerning Mr. Osroff’s evidence were flawed, thereby undermining the reasonableness of her conclusion on the issue of identity. We do not accept this submission. As already noted, the trial judge’s findings were compelling. We are not persuaded that there is any basis to set them aside on appeal.
[21] Counsel for the appellant acknowledges that the appeal turns largely on his grounds of appeal that relate to how the trial judge addressed Mr. Osroff’s evidence. Nonetheless, he also made submissions concerning the trial judge’s treatment of the other identification witnesses. Again, we see no error in the trial judge’s findings. She explicitly recognized the frailties associated with eyewitness identification evidence and considered it with that caution in mind. She addressed the inconsistencies in the witnesses’ descriptions and gave compelling reasons for why the relatively minor differences did not cause her to conclude that evidence was unreliable. She noted that, unlike a typical identification case where there is only a fleeting opportunity to observe the suspect, in this case, the security staff witnesses had a good opportunity to observe the suspect over several minutes. The trial judge came to multiple findings of fact, all of which were available to her on the evidence adduced at trial. Those findings of fact reasonably support the convictions. We see no error in the trial judge’s approach to the evidence or the law. It is not for this court to retry the case.
[22] The appellant relies on his factum for his submission that the trial judge erred in finding him guilty of obstructing a peace officer. We do not accept this submission. The trial judge found that the appellant gave a false name to the police and concluded that, on the evidence before her, there was no other inference to draw from that. While the trial judge’s reasons are brief, they are adequate, as they permit meaningful appellate review: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 30, 57.
[23] The appellant’s sentence appeal was contingent on success on his conviction appeal. Because we dismiss the conviction appeal, his sentence appeal falls away.
DISPOSITION
[24] For these reasons, the conviction appeal is dismissed.
“Fairburn A.C.J.O.” “E.E. Gillese J.A.” “Gary Trotter J.A.”