COURT OF APPEAL FOR ONTARIO

DATE: 20240708 DOCKET: C68929

Benotto, Coroza and Dawe JJ.A.

BETWEEN

His Majesty the King Respondent

and

Chad Michael Kennedy Appellant

Counsel: Chad Michael Kennedy, acting in person Ian Kasper, appearing as duty counsel Erica Whitford, for the respondent

Heard: April 11, 2024

On appeal from the conviction entered on November 2, 2020 and from the sentence imposed on March 29, 2021 by Justice Geoffrey Griffin of the Ontario Court of Justice.

REASONS FOR DECISION

INTRODUCTION

[1] The appellant was convicted of two counts of arson, one count of criminal harassment, one count of uttering death threats, possession of an explosive substance, disobeying a court order, and two breaches of probation. He received a global sentence of 28 months followed by 18 months’ probation and a restitution order. He appeals from conviction and sentence.

[2] The convictions followed multiple instances of harassment of his ex-partner, Lindsay Bawn and her new partner Nathaniel Fregeau in the summer of 2020. The appellant and Ms. Bawn had been in a relationship but Ms. Bawn had ended their relationship in February 2020. The appellant was angry at Ms. Bawn that she had started a new relationship with Mr. Fregeau.

[3] Before the trial judge, defence counsel conceded that the evidence of criminal harassment, death threats, disobeying a court order, and breaching probation was compelling. The appellant harassed Ms. Bawn and Mr. Fregeau through text messages, voicemails, and in person. It was alleged that the harassment culminated with the appellant lighting Mr. Fregeau’s truck ablaze in the early morning hours of July 6, 2020 by setting fireworks off beneath the truck while it was parked in the parking lot of Ms. Bawn’s building. The ensuing blaze also damaged the vehicle parked next to the truck, belonging to another individual.

FACTUAL BACKGROUND

[4] The trial focused on the charges for arson and possession of an explosive substance. To prove these counts, the Crown relied on text messages and voicemails that captured the appellant pleading with Ms. Bawn to remove Mr. Fregeau’s truck from the apartment building parking lot prior to the arson. The appellant stated the following in two separate messages to Ms. Bawn:

Tell him to get the fuckin’ truck out of there or it’s gonna be gone.

Get his fuckin’ truck moving. I’m dead fuckin’ serious. My word, get it the fuck outta there, and get him the fuck out of that apartment before it’s fuckin’ done.

[5] The Crown also introduced video footage capturing an individual near Mr. Fregeau’s truck just prior to the fireworks going off. This footage was captured by a camera Ms. Bawn placed on her balcony, pointed toward the parking lot, after Mr. Fregeau’s tires were slashed by an unknown person.

[6] The Crown also relied on the eyewitness identification of Lori Devine, a neighbour of Ms. Bawn’s who testified at trial. Ms. Devine was a reluctant witness. She had obtained a doctor’s note and asked to be excused from testifying. She admitted that she did not like the appellant and testified that she was afraid of him and what he would do to her for testifying. The record amply demonstrates that she did not want to be involved in the trial. However, she was adamant in her testimony that the appellant was the person she saw setting the fireworks beneath Mr. Fregeau’s truck through an unobstructed view she had from her bedroom window.

[7] According to Ms. Devine, it was about 4:15 a.m. when the lights of a car woke her up. She got out of bed and looked out the window. She saw the lights of the appellant’s red Dodge Journey. She saw the appellant get out of his SUV and put something underneath the front of Mr. Fregeau’s truck which was parked directly in front of her window. Then, within seconds, the truck “blew up.” Mr. Kennedy got back in his SUV and left the parking lot.

[8] Ms. Devine identified the arsonist as the appellant and testified that he wore blue jeans, boots, a lime green construction vest, and a hat she knew to belong to the appellant. An officer testified that Mr. Kennedy was wearing a “lime green work-type shirt” and jeans in court following his arrest on the day of the arson.

[9] Ms. Devine stated she was “150% sure” that it was the appellant’s red Dodge Journey that she saw, and “200% sure” that it was the appellant she saw putting something underneath Mr. Fregeau’s truck. It is uncontested that the appellant owned a red Dodge Journey (an SUV) at the time. Ms. Devine had known the appellant for years and had seen him driving the red Dodge Journey.

[10] At trial, defence counsel argued that Ms. Devine’s evidence was unreliable because the camera footage contradicted her evidence about what the appellant was wearing. As defence counsel put it: “[t]he video shows us exactly what happened and it's unclear as to who the perpetrator is but it's very clear that it's not the person that [Ms. Devine] described having seen there.”

[11] For its part, the Crown argued that Ms. Devine’s evidence was credible, reliable, and uncontradicted by the video given its poor quality. The Crown also argued that the entire set of circumstances, including the appellant’s previous messages in relation to Mr. Fregeau’s truck, had to be considered.

POSITIONS OF THE PARTIES ON APPEAL

[12] Duty counsel raises two related grounds of appeal. First, he submits that the trial judge failed to be cautious toward the frailties of eyewitness identification in the circumstances of this case. Second, he argues that the trial judge failed to grapple with an alleged inconsistency between the video footage of the arsonist and Ms. Devine’s identification evidence. In duty counsel’s submission, an integral part of Ms. Devine’s eyewitness identification was her assertion that the arsonist was wearing a hat she knew to belong to the appellant. However, duty counsel submits that the trial judge found the arsonist was not wearing a hat in the video. In light of this alleged inconsistency, the trial judge did not exercise sufficient caution in relying on the eyewitness identification.

[13] The respondent argues that Ms. Devine’s evidence should not be discarded as a whole because of one potential inconsistency regarding a single item of clothing worn by the arsonist. The respondent points to the circumstantial evidence that indicates the appellant’s guilt, including that the appellant had a motive and animus toward Mr. Fregeau and his truck, and that the appellant was wearing a lime green “work-type shirt” and jeans at the court appearance that followed his arrest later that day. The respondent submits that, considering this evidence, any alleged inconsistency related to the hat is insufficient to call into question the appellant’s identification as the perpetrator.

ANALYSIS

[14] Eyewitness identification evidence can be notoriously unreliable, because an honest witness may provide an inaccurate identification. Trial judges must “carefully scrutinize the witnesses’ description of the assailant” and treat eyewitness identification with “considerable caution”: R. v. Gough, 2013 ONCA 137, at paras. 34-37.

[15] We are not persuaded by duty counsel’s submissions. In our view, the trial judge did not commit the error complained of. We conclude the trial judge approached Ms. Devine’s evidence with sufficient caution, and that he specifically grappled with and rejected the defence submission that the video contradicted her evidence.

(1) The Trial Judge Exercised Caution in Assessing Ms. Devine’s Evidence

[16] As a starting point, in his reasons for judgment, the trial judge expressly cautioned himself about relying on Ms. Devine’s eyewitness testimony. The trial judge noted that Ms. Devine disliked the appellant. He also observed that she was a reluctant witness who did not want to testify for multiple reasons: because she was afraid; because she felt this matter was between the appellant and Ms. Bawn; and because she felt she should not have been “dragged into this”. Immediately after making these observations, the trial judge stated:

The point is I am very mindful of being cautious about relying on eyewitness testimony, as it is possible that an honest witness can be mistaken about identification. [Emphasis added.]

Later on in his reasons, the trial judge emphasized that he had to assess Ms. Devine’s identification carefully when he stated that he watched the video “over and over and over again” because he was “aware that Ms. Devine may possibly have a biased perception of events, or the parties involved as the result of the appellant’s behaviour she had witnessed on other occasions around [Ms. Bawn’s] apartment” (emphasis added).

[17] We see no support for the submission that the trial judge failed to approach Ms. Devine’s evidence with considerable caution. We are satisfied after reviewing the parties’ submissions at trial, and the trial judge’s reasons, that he did indeed subject Ms. Devine’s evidence to special scrutiny because she was potentially a biased witness. After carefully examining Ms. Devine’s evidence, the trial judge was satisfied that her eyewitness identification was nonetheless accurate, and was not simply a reflection of who she might well have been expecting the arsonist to be.

(2) The Trial Judge Grappled with the Alleged Inconsistency

[18] We also do not accept duty counsel’s submission that the trial judge “glossed” over a significant inconsistency between Ms. Devine’s evidence and the video. Duty counsel argues that Ms. Devine’s identification evidence was inextricably linked to her memory that the arsonist was wearing a hat belonging to the appellant, and that the trial judge failed to grapple with the implications of this alleged inconsistency between her evidence and the video.

[19] Respectfully, we read the reasons of the trial judge differently. The trial judge did not give the video evidence superficial treatment. Rather, he grappled with the submission that there were inconsistencies between Ms. Devine’s evidence and the video, but in the end concluded he could place no weight on the video.

[20] At trial, defence counsel relied on two excerpts of the video, 14 and 12 seconds in length respectively. The trial judge said the following about the first excerpt (at about 4:23 a.m.):

For less than two seconds, a body can be seen moving at the driver’s side of [Mr. Fregeau’s] truck and [the car parked next to the truck]. The body disappears behind the truck. [Emphasis added.]

He stated the following about the second excerpt (at about 4:25 a.m.):

In one second or less there is a ghost-like apparition, a male, it appears, running from the left to the right on the video. The person seems to be in a light-coloured short sleeved shirt, not wearing a hat, and – and something is illuminated on that apparition’s left arm, like a watch band on his left wrist, that is, but it is impossible to make out his face, or identify any features. As I have said, it is less than one second. The rest of the video shows the area underneath [Mr. Fregeau’s] truck burning with fireworks going off and exploding. [Emphasis added.]

[21] The trial judge went on to conclude that the video was of “poor limited quality” and that in it, “one cannot see anything due to the poor quality in the video” that would enable a specific identification. We see no palpable and overriding error that would allow us to interfere with that conclusion. In context, we do not read the trial judge as definitively finding that the video footage showed an individual without a hat. When his reasons are read as a whole, it is clear to us that the trial judge found the video could not assist him in assessing Ms. Devine’s evidence. Indeed, he stated: “I do not agree that the video contradicts Ms. Devine”. There was therefore no inconsistency, as alleged by duty counsel, because the video was inconclusive on this point.

[22] Nor do we accept duty counsel’s argument that whether the video was generally of good or poor quality was immaterial to the alleged inconsistency. In our view, it was open to the trial judge to conclude that the video quality was so poor that no inconsistency could be identified.

[23] In sum, we see no reason to disturb the trial judge’s finding that he could not rely on the video as evidence that detracted from Ms. Devine’s eyewitness identification. The trial judge considered the issue and approached the eyewitness identification evidence cautiously. He was entitled to find, on this record, that the video was not of sufficient quality to have any impeachment value.

[24] We note that Ms. Devine was also never confronted with the alleged inconsistency between her evidence and the video with respect to a hat. She had no opportunity to comment on it, nor did defence counsel at trial make any submissions to the trial judge about the hat. Rather, he focused on arguing that the man on the video could not be seen to be wearing a lime green reflective vest. The trial judge considered this argument, but concluded:

The submissions that one cannot see a lime green construction vest is true, but one cannot see anything due to the poor quality in the video.

[25] This is likely why the trial judge did not make any specific comment about the alleged inconsistency about the hat now advanced before us. Effectively, the appellant’s submissions invite this court to impermissibly retry this case and make our own determination by watching the video. That is not our function. We are in no better position to assess the quality of this video than was the trier of fact.

[26] In any event, even if the trial judge had found that Ms. Devine was mistaken about the man she saw having been wearing the appellant’s hat, this would not have obliged him to reject her identification evidence. As this court noted in R. v. Quercia (1990), 75 O.R. (2d) 463 (C.A.), at p. 471, “[t]he existence of confirmatory circumstantial evidence can go a long way to minimizing the dangers inherent in eyewitness identification”. In light of the evidence that the appellant had expressed animosity towards Mr. Fregeau and specifically threatened that his truck was “gonna be gone” if Mr. Fregeau did not leave, it would have been a remarkable coincidence if some other person driving a vehicle that resembled the appellant’s Dodge Journey – which Ms. Devine also said she recognized – had been similarly motivated to burn Mr. Fregeau’s truck.

OTHER GROUNDS OF APPEAL

[27] The appellant during oral argument adopted duty counsel’s submissions and made his own submissions relating to Ms. Devine’s credibility and the reliability of her identification. Again, in our view, the trial judge’s assessment of her evidence is error free, and we are not persuaded by any of his submissions.

[28] Nor do we find any merit in the several claims of error raised in the appellant’s notice of appeal. [1]

SENTENCE APPEAL

[29] The appellant filed a notice of appeal against sentence. However, the sentence appeal was not pursued during oral submissions and in any event, we see no error in principle that would displace the deference owed to the trial judge’s sentence. Given the seriousness of the conduct and the appellant’s prior related record, the sentence imposed by the trial judge was fit.

DISPOSITION

[30] For these reasons, the conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“M.L. Benotto J.A.”

“S. Coroza J.A.”

“J. Dawe J.A.”

[1] The appellant raised 22 grounds of appeal.