COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Graham, 2023 ONCA 273
DATE: 20230420
DOCKET: C69213
Feldman, Roberts and Coroza JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Julian Graham
Appellant
Craig Zeeh, for the appellant
Brett Cohen, for the respondent
Heard: March 30, 2023
On appeal from the convictions entered by Justice Stephen T. Bale of the Superior Court of Justice, on September 14, 2018, and from the sentence imposed on September 9, 2020.
Roberts J.A.:
[1] The appellant appeals from his convictions for attempted murder, possession of a loaded restricted firearm and other related offences, arising out of the shooting of the complainant, Sean Smith. On consent, he was designated a dangerous offender. He received a global ten-year sentence, followed by a ten-year long-term supervision order.
[2] The appellant appeals the convictions on two bases. First, he submits that the trial judge erred in his treatment of the evidence given by the Crown’s principal witness, Jessica Stammis, who identified the appellant from a photo line-up as the person who shot Mr. Smith. Second, he argues that the trial judge failed to stay counts 2 to 5 and 8 pursuant to R. v. Kienapple, [1974] 1 S.C.R. 729[^1]. The Crown agrees that counts 2 to 5 and 8 should be stayed but otherwise opposes the appeal.
[3] These reasons explain why I agree that the convictions and sentences on counts 2 to 5 and 8 should be set aside but otherwise would dismiss the appeal.
Background
[4] The relevant facts as the trial judge found them can be briefly stated. On March 10, 2017, Smith visited Stammis’ basement residence to sell narcotics. While they discussed the sale of narcotics, two men arrived. They were known to Stammis as “Jordan” and “Little Moe”. Jordan was described as having a beard and was noticeably taller and older than Little Moe. Stammis knew Jordan as a drug dealer who attended at her residence to traffic cocaine. She had seen Jordan between 10 to 20 times over the past 2 to 3 years to purchase narcotics from him.
[5] Shortly after the men arrived, Stammis left to purchase cigarettes. Smith testified that he asked Jordan and Little Moe if they had any narcotics. Jordan pulled out a firearm and asked Smith whom he worked for. Smith tried to give money to Jordan and then the two became involved in a struggle. Jordan shot Smith in the right thigh. Jordan left the room and then quickly returned. He pointed the firearm at Smith’s stomach and told him, “You’re going to die today, pussy”. Jordan fired a second shot, wounding Smith in the stomach, and left the basement. Stammis came running and passed Jordan on the stairs, noting he had a firearm in his hand.
[6] The main issue at trial was identification: did Jordan shoot Smith and was Jordan the appellant, Julian Graham. The Crown relied principally on Stammis’ evidence, including: her previous acquaintance with Jordan; her physical description of Jordan; her seeing Jordan run up the stairs with the firearm; and her photo line-up identification of Jordan as the appellant. Stammis was unable to identify the appellant in court because she did not have her eyeglasses. The Crown argued that her photo line-up identification was corroborated by Smith’s in-dock identification of the appellant, his physical description of Jordan, and the police surveillance evidence that the appellant was a drug dealer who, following the shooting, had changed his appearance by shaving his beard.
[7] The trial judge was alert to issues with Smith’s credibility and reliability as a witness. He gave no weight to his in-court identification of the appellant but accepted his evidence describing Jordan as the person who shot him. With respect to Stammis’ evidence, the trial judge was not troubled by its inconsistencies and found that her previous familiarity with Jordan, when combined with Smith’s consistent description of the gunman as the taller, older male with facial hair, confirmed that Jordan was the gunman. The trial judge accepted Stammis’ photo line-up identification of the appellant as Jordan, notwithstanding that before the photo line-up, Stammis had seen media coverage including the appellant’s photograph in relation to the shooting at her residence. The trial judge convicted the appellant of all counts.
Analysis
(i) Trial judge’s assessment of the evidence
[8] The appellant submits that the trial judge’s approach to Stammis’ evidence was flawed: he should not have relied on Stammis’ photo line-up identification of the appellant because it was contaminated by the previous media coverage that she had seen; he failed to adequately analyze specific and significant frailties in Stammis’ evidence; and he failed to provide sufficient reasons for accepting Stammis’ evidence that the appellant was Jordan. If we accept these submissions, the appellant argues that the verdict was unreasonable.
(ii) Application of the Kienapple principle
[9] The appellant submits and the Crown agrees that counts 2 to 5 and 8 should have been stayed and the appellant should not have been convicted of them. As a result, the convictions and sentences on those counts should be set aside.
[10] I shall consider these submissions in turn.
(i) Trial judge’s assessment of the evidence
(a) Identification evidence
[11] Because of the potential unreliability of eyewitness identification evidence, identification findings are subject to closer appellate scrutiny than other findings: R. v. Hersi (2000), 2000 16911 (ON CA), 137 O.A.C. 60, at para. 14; R. v. Tat (1997) 1997 2234 (ON CA), 35 O.R. (3d) 641, at paras. 99-100 R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283, at para. 20. However, I see no basis here for appellate intervention.
[12] The trial judge’s reasons demonstrate that he was alert to the well-known dangers and frailties of eyewitness identification evidence and the special caution to be exercised in his assessment of it, including the limited weight to be given to in-court identification and the potential for flawed photo line-up procedures that may undermine identification. He summarized the defence’s concerns. He took into account the material inconsistencies and problems with the evidence given by Stammis and Smith, including that they were under the influence of drugs, their accounts did not always align, Stammis had changed her evidence about seeing Jordan shoot Smith, and Stammis had only seen Jordan fleetingly with a gun in his hand. He also acknowledged the potential contamination of the photo line-up because Stammis had seen media coverage showing the appellant’s photograph prior to viewing the photo line-up.
[13] Having taken these issues into account, the trial judge concluded that he had “no reason to doubt the validity of the photo line-up or the identification” of the appellant by Stammis because of her prior familiarity with Jordan, her identification of the appellant without hesitation in the first photograph shown to her, and her physical description of Jordan that was supported by Smith’s description.
[14] This was not the identification of a stranger based on a fleeting glimpse; rather this was substantial recognition evidence. Stammis recognized the appellant because of her numerous previous interactions with him and their meeting in her residence on the day of the shooting. As a result, the trial judge found “it difficult to accept that [Stammis] mistook some other person for [the appellant]”. These findings were firmly grounded in the record and open to the trial judge to make.
[15] Drawing on R. v. Phillips, 2018 ONCA 651, 364 C.C.C. (3d) 220, the appellant argues that the trial judge relied too heavily on the fact that Stammis recognized the appellant as Jordan and therefore failed to meaningfully address whether the photo line-up was fatally contaminated because she had seen the appellant’s photograph in the media coverage of the offences prior to seeing the photo line-up.
[16] I disagree with these submissions.
[17] Phillips does not stand for the proposition that recognition evidence is automatically worthless if a witness has seen a photograph of the accused prior to examining a photo line-up. The assessment of the reliability of identification evidence must turn on its facts. And Phillips is distinguishable on its facts: the photo line-up witness was an unsavoury individual who seemed to have little familiarity with the masked person he addressed as “Virus”; and there were problems with the photo line-up that went beyond the witness looking at a photograph of the accused. Based on the specific circumstances, this court held that the jury charge inadequately addressed the problems with the photo line-up and ordered a new trial.
[18] Unlike in Phillips, Stammis knew the appellant and had had numerous interactions with him. In addition, when the shooting occurred, the appellant was at her residence, as he often was. The trial judge appropriately recognized the potential issues with the photo line-up and incorporated them into his assessment of the weight to be given to the identification evidence. By taking these issues into account, the trial judge showed his appreciation that recognition evidence is still a form of identification evidence and that the need for caution does not go away when the witness identifying the accused knows the accused. However, the trial judge was entitled to take into account, as he did, Stammis’ familiarity with the appellant in assessing the reliability of her identification of the appellant. Stammis’ substantial familiarity with the appellant because of their numerous interactions served to enhance the reliability of her evidence: R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at paras. 38-39. Accordingly, unlike in Phillips, it was appropriate for the trial judge to accept and rely on Stammis’ recognition evidence.
(b) Credibility issues
[19] The appellant submits that while the trial judge may have taken into account the issues that he referenced in his reasons, he failed to mention and grapple with two significant issues that materially affected Stammis’ credibility and reliability, especially in relation to the photo line-up. First, Stammis provided contradictory evidence because in the initial statement she made to police before starting the photo line-up, she stated that she had not seen any photographs or heard any descriptions of the accused person through the media, but she later agreed that she had seen a photograph of the appellant in the news prior to viewing the photo line-up. Second, she had a criminal record involving crimes of dishonesty.
[20] I am not persuaded by these submissions.
[21] The credibility issues raised by the appellant were not argued before the trial judge. Nor, respectfully, were they germane to the reliability analysis that the trial judge was required to undertake. As this court noted in Olliffe, at para. 37,
The focus of the concern [with identification evidence] is not the credibility of the witness providing the identification evidence; rather, it is the reliability of the evidence and the potential for it to be given undue weight.
[22] The approach taken by trial counsel was consistent with this focus. As trial counsel for both parties advised the trial judge, there was no suggestion that Stammis was lying deliberately when she testified that the appellant was Jordan; rather, the question was the reliability of her identification. In any event, it is clear from his reasons that the trial judge assessed Stammis’ credibility as well as her reliability as an identification witness.
(c) Sufficiency of reasons
[23] The trial judge’s reasons must be read as a whole and assessed for sufficiency in conjunction with the evidence and the submissions of counsel: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16. Here, counsel made lengthy and thorough submissions to the trial judge. The trial judge’s reasons show that he was aware of and engaged with the material issues that counsel raised and that he was required to determine. Importantly, his reasons fulfilled their functional purpose of explaining why he concluded that Jordan shot Smith and that the appellant was Jordan. These were the two live issues at trial, and he provided a sufficient explanation for drawing both conclusions. I see no basis to intervene.
(ii) Application of the Kienapple principle
[24] I agree that the convictions and sentences on counts 2 to 5 and 8 should be set aside and that those counts should be stayed, as conceded by the Crown. In accordance with Kienapple, the appellant should be convicted of the most serious offences arising out of his possession and use of a firearm, while the counts with respect to the related, lesser offences for the same criminal wrong or transaction should be stayed: R. v. Kinnear (2005), 2005 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont. C.A.), at paras. 27, 28. The convictions and sentences on counts 2 to 5 and 8 should therefore be set aside. As the sentences imposed on counts 2 to 5 and 8 were concurrent to the other sentences, the stay does not otherwise affect the appellant’s sentence.
Conclusion
[25] I would allow the appeal in part by setting aside the convictions on counts 2-5 and 8 as well as the sentences imposed for those counts. I would otherwise dismiss the appeal.
Released: April 20, 2023. “K.F.”
“Roberts J.A.”
“I agree. K. Feldman J.A.”
“I agree. S. Coroza J.A.”
[^1]: The appellant characterizes his Kienapple ground of appeal as a sentence appeal, however, it is more correctly characterized as part of his conviction appeal. The appellant does not challenge his sentence but maintains that on the application of the rule against multiple convictions for the same criminal wrong or transaction, counts 2 to 5 and 8 should have been stayed and he ought not to have been convicted of them nor sentenced on them. The stay of these counts does not affect his global sentence.