Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20240501 DOCKET: COA-23-CR-0792

Benotto, Coroza and Dawe JJ.A.

BETWEEN

His Majesty the King Respondent

and

Daniel Griffin Appellant

Counsel: Daniel Griffin, acting in person Ariel Herscovitch, appearing as duty counsel Gavin MacDonald, for the respondent

Heard: April 8, 2024

On appeal from the convictions entered on February 10, 2023 by Justice Gary W. Tranmer of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals his convictions on two counts of robbery, a charge of breaking and entering a dwelling house and committing robbery, and a charge of suffocating another person with intent to enable or commit robbery.

[2] The convictions arose out of a series of separate alleged incidents involving the same complainant. She was a Kingston-area drug dealer, and the appellant was a drug user and one of her customers. It was common ground that the appellant sometimes bought drugs from the complainant, and that there were a few times in 2020 when he drove her to Toronto to make drug purchases.

[3] The complainant alleged that on one occasion in the fall of 2020, the appellant came to her apartment and offered to trade her a shop-vac for drugs. He then threatened her with a hammer, pushed her to the floor, and stole drugs and cash. This allegation was the basis for one of the two robbery convictions. The appellant, who testified in his own defence, acknowledged that he had gone to the complainant’s apartment with his shop-vac and traded it to her for drugs, but denied her allegation that he had threatened her with a hammer and robbed her.

[4] The complainant alleged further that on a later occasion she went to a motel room to engage in a drug transaction, where she was attacked and robbed by two women to whom she owed money. She maintained that the appellant was present during this incident, and alleged that he had guarded the motel room door while the women robbed her. For his part, the appellant acknowledged that he had been present that night but denied taking any active part in the assault and robbery. The trial judge acquitted him of the charges arising out of this incident.

[5] The third incident described by the complainant was alleged to have occurred in November 2020. The complainant testified that she had had some friends over to her apartment, who stayed until the early morning hours. After her friends left, the complainant found the appellant inside her apartment, but did not know how he had entered. He offered her some crack cocaine to share, and after a further conversation asked her for money and drugs. When she screamed, the appellant pushed her down onto her bed and put a pillow over her face. He then took a quantity of drugs and money. When he stopped pinning the complainant down on the bed, she picked up a taser that she kept between the bed and the wall and pointed it at the appellant, who then left her apartment. These allegations were the basis for the remaining charges on which the appellant was convicted.

[6] The appellant denied that he had been at the complainant’s apartment that night. He testified that a surveillance video showing a man in the hallway of the apartment building, who the complainant had purported to identify as the appellant, was not him. The face of this man was concealed by a hood and cannot be seen.

[7] With respect to the first and third incidents, the trial judge substantially accepted the complainant’s evidence and largely rejected the appellant’s evidence. He accordingly found the appellant guilty of the charges arising out of both of these incidents, while acquitting him of the charges relating to the second incident in the motel room.

[8] Mr. Herscovitch, as duty counsel, raises two grounds of appeal on the appellant’s behalf. The first ground relates only to the convictions on the charges arising out of the third incident, while the second ground bears on all of the appellant’s convictions.

[9] As we have noted, the appellant’s position in relation to the first and second incident was that he had been present, but had not done the things that the complainant alleged. However, his evidence with respect to the third incident was that on the night in question he had not been at the complainant’s apartment at all.

[10] Mr. Herscovitch contends that this raised concerns about the reliability of the complainant’s identification of the appellant as the man who robbed her, as well as about the credibility of her account of being robbed. He argues that the trial judge erred by not instructing himself about the frailties of eyewitness identification evidence that still exist even when eyewitnesses purport to be recognizing someone who they know. He places particular reliance on Hourigan J.A.’s observation in R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39, that:

The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. It must be remembered, however, that recognition evidence is merely 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: R. v. Spatola, 1970 ONCA 390, [1970] 3 O.R. 74 (C.A.), at p. 82; R. v. Turnbull, [1977] Q.B. 224 (Eng. C.A.), at pp. 228-229.

See also R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d) 783, at paras. 26-34.

[11] We agree that previous familiarity with a person does not automatically allay all concerns about the possibility that an eyewitness’s identification of that person might be mistaken. However, unlike the situation in Chafe, the complainant in this case was not purporting to have identified the appellant based on only a brief observation of him. Rather, on her account, her encounter with the appellant in her apartment lasted for at least a few minutes, during which time they had some extended conversation. In our view, this significantly reduced the chances that she might have honestly mistaken some other man for the appellant.

[12] Moreover, while some parallels can be drawn between the identification evidence in Olliffe and the complainant’s purported recognition of the appellant as the man in the security video images, her evidence that the appellant was the man who robbed her ultimately turned on her evidence about the observations of him she says she made while they were together in her apartment. Indeed, the face of the man on the security video cannot be seen at all.

[13] In this factual context, we are not persuaded that the trial judge erred by not specifically instructing himself about the possibility of the complainant being honestly mistaken about the identity of the man who she said had robbed her that night.

[14] Mr. Herscovitch’s second argument, which applies to all of the appellant’s convictions, is that the trial judge erred by applying a different standard of scrutiny to the complainant and the appellant’s evidence when assessing their testimonial credibility.

[15] As Paciocco J.A. explained in R. v. Kiss, 2018 ONCA 184, at paras. 82-83:

It is an error of law for a trial judge to use a higher degree of scrutiny in assessing the credibility or reliability of defence evidence than Crown evidence. Where this happens, a trial will be unfair to the accused: R. v. Howe, 2005 ONCA 253, 192 C.C.C. (3d) 480 (Ont. C.A.), [2005] O.J. No. 39; R. v. Owen, 2001 ONCA 3367, 150 O.A.C. 378 (C.A.), [2001] O.J. No. 4257; and R. v. T.(T.), 2009 ONCA 613, at paras. 71-74.

This is a notoriously difficult ground of appeal to succeed upon because a trial judge’s credibility determinations are entitled to a high degree of deference, and courts are justifiably skeptical of what may be veiled attempts to have an appellate court re-evaluate credibility: R. v. D.T., 2014 ONCA 44, at paras. 71-73; and R. v. Aird, 2013 ONCA 447, at para. 39. An “uneven scrutiny” ground of appeal is made out only if it is clear that the trial judge has applied different standards in assessing the competing evidence: Howe, at para. 59. Where the imbalance is significant enough, “the deference normally owed to the trial judge’s credibility assessment is generally displaced”: R. v. Rhayel, 2015 ONCA 377, at para. 96; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 19; and R. v. Phan, 2013 ONCA 787, at para. 34.

[16] In our view, the trial judge’s reasons in this case do not reveal that he made this legal error. When he was explaining his rejection of the appellant’s evidence, the trial judge listed a number of aspects of the appellant’s testimony that he found were internally inconsistent, along with others that he viewed as “unlikely and improbable”. The inconsistencies that he cited were largely on collateral points, such as the amount of time that the appellant worked during the year, and the frequency with which he used drugs.

[17] Mr. Herscovitch submits that the trial judge was more forgiving of the complainant’s inconsistencies about matters that directly related to the charges against the appellant. Examples include the number of people who she said had been in the motel room during the second incident, and the clothes the appellant had been wearing during the third incident at her apartment.

[18] We agree that the inconsistencies in the complainant’s evidence, unlike those in the appellant’s testimony, cannot be dismissed as collateral. However, that did not automatically require the trial judge to treat them as important. It was open to him to conclude, as he did, that even if the complainant did not accurately recall some precise details of the incidents that she described, this did not seriously undermine her credibility or her overall reliability.

[19] Conversely, while it would have been open to the trial judge to discount the internal contradictions in the appellant’s evidence because they were on collateral points (see Kiss, at para. 93), he was not obliged to do so. Rather, the question of how much importance to attach to these contradictions was a judgment call for him to make.

[20] As Paciocco J.A. noted in Kiss, at para. 93, “[t]he instant point is that the same measure should be used for both parties”. In our view, this is not a situation like Kiss, where the trial judge treated inconsistencies on similarly collateral points as significant when they came from the accused, but as unimportant when they came from the complainant.

[21] In the case at bar, the trial judge was entitled to treat the complainant’s inconsistency about some details of what had transpired during the three robberies as inconsequential, because they “paled in comparison to the robbery she experienced”. He was also entitled to treat the appellant’s inconsistencies about peripheral points as revealing a tendency to be careless with the facts, because they were about factual matters that were well known to the appellant, even if they were not themselves of any great importance to the question of whether the appellant had robbed the complainant. In the context of this case, where the inconsistencies at issue were different in nature, the trial judge was not obliged to treat them in the same way.

[22] We would accordingly not give effect to this ground of appeal.

[23] The appellant also made submissions on his own behalf, in which he highlighted what he says are a number of inconsistencies and improbabilities with the complainant’s evidence. These points were all raised with the trial judge, and as the trier of fact it was within his province to decide what to make of them. We are not persuaded that his reasons reveal that he made any palpable and overriding factual errors that would justify our intervention.

[24] The appeal is accordingly dismissed.

“M.L. Benotto J.A.”

“S. Coroza J.A.”

“J. Dawe J.A.”