WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 110(1) and 111(1) of the Youth Criminal Justice Act. This subsection of the Youth Criminal Justice Act, which is concerned with the consequence of failure to comply with an order made under subsection 110(1) and 111(1), reads as follows:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

Court Information

Court File No.: 2811 998 10Y19173 00

Date: 2012-03-05

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

J.S.

Before: Justice M.T. Devlin

Heard on: November 21, 2011, February 7 and 13, 2012

Judgment released on: March 5, 2012

Counsel:

• K. Kennedy, for the Crown
• D. Maubach, for the accused J.S.

DEVLIN J.:

This is the judgment in the case of J.S. who is a young person within the meaning of the Youth Criminal Justice Act. Mr. J.S. is charged with robbery and assault causing bodily harm in relation to Mitchell Wilson who is now deceased. The charges stem from an incident which occurred on November 1, 2010.

ISSUE

There is no question that Mitchell Wilson was robbed and injured by two other youths, nor is there any question that the injuries suffered by Mitchell Wilson amount to bodily harm as defined by the Criminal Code of Canada. The only issue is whether the Crown has proven beyond a reasonable doubt the identity of J.S. as one of the youth who committed these crimes.

This trial began on November 21, 2011 and was continued on February 7th, and February 13th, 2012. The Crown called 5 witnesses on a voir dire to establish the admissibility of the deceased complainant's statements:

• Tiffany Usher, Mitchell Wilson's step-mother
• Dawna Wastesicoot, the Vice-Principal of Westcreek Public School
• Tony Rizutto, the Principal of Westcreek Public School
• Constable Dubois, the investigating officer
• Constable Campbell, the follow-up officer

In my ruling on the voir dire which was delivered on February 13th, all four of Mitchell Wilson's statements were found to be admissible. This evidence was then adopted into the trial. Neither the Crown nor the Defence called any further evidence. Submissions were made on the ultimate issue of whether the evidence relied upon by the Crown was sufficient to prove the case beyond a reasonable doubt.

FACTS

Overview

The facts are as follows. In November 2010, Mitchell Wilson was 10 years old and in grade 5 at Westcreek Public School. He had been diagnosed with muscular dystrophy and part of his daily regimen included walking. On November 1st, he asked his father for permission to walk a new route and left home at approximately 5:00 pm. He was carrying his father's iPhone and used it to call home and find out what was for dinner. Shortly after using the phone, he was jumped from behind by two males. These males pushed him to the ground, stole his iPhone, and then fled.

By chance, Mr. Wilson's step-mother, Tiffany Usher, saw the robbery and gave chase to the assailants in her car. When she cornered the taller boy, he eventually tossed the phone back to her. Ms. Usher then returned to Mitchell and called the police.

As a result of the robbery, Mr. Wilson was bleeding from the mouth. Two of his front teeth were chipped. His hands were scuffed and he had a sore wrist. Mr. Wilson required medical attention for his damaged teeth.

Statements

Most unfortunately, Mitchell Wilson died in September 2011 shortly before this trial was originally scheduled to begin. The Crown therefore relied on the statements he made during the investigation to prove its case.

Technically Mitchell Wilson made four statements but these can be categorized into two main groups:

1. The initial statements to Constables Dubois and Campbell describing the robbery;
2. The statement to Tiffany Usher identifying J.S. as the shorter boy who robbed him. This statement was subsequently recorded in writing by Constable Campbell.

i. Statements to Police

In his first two statements to the police, Mitchell Wilson said that he saw a group of Black boys outside a townhouse complex on the first part of his walk. These boys were gathered around an old black truck with a white bumper. While he was in eyesight of this group, he used the iPhone to call home. On the return portion of his walk, he again passed the townhouse. He saw two males from the original group pull their hoodies up and walk over to him, one tall and one short. The taller boy body slammed Mr. Wilson from behind and he fell. Both youths searched his pockets and the taller boy removed the iPhone from his coat pocket. The youths then fled.

Mitchell Wilson stated that the taller male was wearing a white hoodie. Mr. Wilson described him as a Black male with dark skin, the heavier of the two, and a stocky build. He estimated him to be 15 – 16 years old. The shorter male was wearing a brown hoodie with a blue vest over it and blue jeans. Mr. Wilson described him as a Black male, dark skinned, 5' tall, with a slim build. He estimated him to be 12 – 13 years old.

ii. Identification of J.S.

Two days after the robbery on November 3rd, Mitchell Wilson and Tiffany Usher met with Constable Campbell at lunchtime. When Ms. Usher returned Mitchell to school, they went to the office to sign in. As they were entering the office, a youth was leaving. Within seconds of seeing this youth, Mitchell Wilson identified him as the shorter youth who had robbed him. Mr. Wilson also correctly identified this youth in 2 class photos shown to him by the Principal. The youth Mr. Wilson identified was J.S.. Mr. Wilson stated he was "100% sure" of this identification.

ANALYSIS

I turn now to the legal analysis. Counsel referred me to four cases from the Ontario Court of Appeal regarding the issue of identity: R. v. Goran, 2008 ONCA 195, R. v. Hanemaayer, 2008 ONCA 580, R. v. Miaponoose, and R. v. Tat. These cases support the following principles:

• Eye-witness identification evidence is inherently problematic.
• Studies have shown a very weak relationship between a witness' certainty about identification and the accuracy of the identification.
• The weight of eyewitness identification evidence is dependent on the circumstances surrounding the identification.

I note that all of the cited cases deal with photo line-ups and/or staged identifications and can therefore be factually distinguished from the case before me.

Circumstances of the Identification

The first issue is what constituted the identification, the chance encounter at the school office, the viewing of the class photos or a combination of the two? In my view, the identification occurred when Mitchell Wilson and J.S. crossed paths at the school office, independent of the photo exercise.

Unlike the facts in the cited cases dealing with photo line-ups and/or opportunities to view a suspect staged by the police, the identification in this case was made without any suggestion, assistance, or bias. It was based on an immediate recognition by Mitchell Wilson of a person he believed was one of his assailants. Interestingly, J.S. fit the description of the shorter youth that Mitchell Wilson previously provided to the police.

The Defence submitted that Mr. Wilson's initial description was vague and general. I disagree. He was able to describe the gender, race, size, build, age, and clothing of both his attackers. Many adults in a similar situation would have difficulty providing this level of detail. Mitchell Wilson did remarkably well, despite being only 10 years old.

In my opinion, the subsequent viewing of the class photos conducted by the Principal was superfluous because it amounted to a demonstration of whether or not Mitchell Wilson could select from a photograph the youth he had already identified. Whether he could or couldn't indicate J.S. in the class photos was irrelevant to the fact that he had already identified J.S. as one of the robbers. I have therefore attached very little weight to the photograph evidence. Because this procedure was unnecessary, and because it is fraught with potential problems, I urge school officials to refrain from engaging in this type of process, particularly in a case where the police are already involved in an active investigation.

The next issue is the level of certainty with the identification. The evidence of Ms. Usher, the Vice-Principal, Ms. Wastesicoot, Constable Campbell, and the written statement, indicate that Mitchell Wilson was absolutely certain about his identification. They remember him saying he was "for sure, sure" and "I'm sure." The only contradictory evidence on this point came from the Principal, Tony Rizutto, who recalled Mitchell stating he was "pretty sure."

I can accept some, none or all of a witness' evidence. I reject Mr. Rizutto's evidence on this point for the following reasons:

1. There was a 15 month passage of time from his meeting with Mitchell Wilson on November 3rd, 2010 and his testimony in Court on February 7th, 2012.

2. He did not make any notes during his meeting with Mitchell Wilson and therefore did not record what Mr. Wilson said.

3. He was imprecise in other areas of his evidence, particularly his erroneous selection in one of the class photos of a youth who was not in fact J.S.. He was also unable to recollect many of the details surrounding the viewing of the photos.

4. The comment he attributed to Mitchell Wilson could have referred to Mitchell Wilson's certainty about whether the person he selected in the photograph was J.S., and not whether Mitchell Wilson was certain that he had correctly identified J.S. when he saw him at the office.

5. His evidence about Mitchell's certainty is contradicted by three other witnesses and by Mitchell Wilson's own written statement.

I therefore conclude that Mitchell Wilson was absolutely certain of his identification of J.S. and I reject the submission that the answer Constable Campbell recorded in the written statement: "I would say 100% sure" can be construed to mean that Mr. Wilson had any doubts about his identification.

The last issue is how the identification was recorded. I agree with the Defence that had the identification in this case been based on the viewing of the class photographs, this evidence would be virtually worthless because the procedure was not properly conducted or documented. However, as I have already stated, the actual identification occurred before Mitchell Wilson viewed the photographs. This oral identification was recorded in writing a few hours later when Constable Campbell returned to the school.

The Defence submitted that Constable Campbell should have video-taped or made a voice recording of his second interview with Mitchell Wilson and that because this was not done, the written statement is not reliable. I disagree.

This case was not at all similar to the facts in R. v. Khelawon, 2006 SCC 57 where the complainant was elderly and frail. In this case, the police were dealing with a routine street-level robbery and there was no evidence that Mitchell Wilson suffered from any health issues that would prevent him from being able to later testify in Court.

Constable Campbell's method of conducting the second interview and obtaining a verbatim written statement was proper and appropriate in the circumstances. The officer made thorough notes of the entire meeting, including his discussion with Mitchell prior to recording the verbatim statement.

I therefore conclude that the verbatim statement is reliable and is not compromised because it was recorded in writing as opposed to video or audio.

CONCLUSION

I accept that Mitchell Wilson firmly and honestly believed that J.S. was one of his attackers. I also accept that his identification was spontaneous, immediate, and definite making it a superior identification to the ones described in the cases cited above. I therefore attach considerable weight to this identification which was made within 48 hours of the robbery and virtually instantaneous to Mr. Wilson encountering J.S..

However, I am unable to conclude that this evidence alone proves identity beyond a reasonable doubt for the following reasons:

1. Even though there was evidence that Mitchell Wilson saw his attackers twice, as part of a larger group on the first part of his walk and then again when they approached him on the return part of his walk, there was no evidence about Mitchell Wilson's distance from the youths or the amount of time he had to see them. During the assault itself, the attackers had their faces covered with the hoods of their sweatshirts and this would have prevented Mr. Wilson from making any observations when the youths were closest to him.

2. There was no evidence explaining why Mitchell Wilson believed he recognized J.S. as one of his assailants and no opportunity to test his belief in cross-examination.

3. The caselaw on eyewitness evidence consistently states that even when an eyewitness is honest and credible (as I am sure Mitchell Wilson would have been), these witnesses are often mistaken because of how the brain functions. The Law Reform Commission of Canada Study Paper (1983) on "Pretrial Eyewitness Identification Procedures" referred to in Miaponoose states:

Psychologists have shown that much of what one thinks one saw is really perceptual filling-in. Contrary to the belief of most laymen, and indeed some judges, the signals received by the sense organs and transmitted to the brain do not constitute photographic representations of reality. The work of psychologists has shown that the process whereby sensory stimuli are converted into conscious experience is prone to error, because it is impossible for the brain to receive a total picture of any event. Since perception and memory are selective processes, viewers are inclined to fill in perceived events with other details, a process which enables them to create a logical sequence. The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus the final recreation of the event in the observer's mind may be quite different from reality.

Witnesses are often completely unaware of the interpretive process whereby they fill in the necessary but missing data. They will relate their testimony in good faith, and as honestly as possible, without realizing the extent to which it has been distorted by their cognitive interpretive processes. Thus, although most eyewitnesses are not dishonest, they may nevertheless be grossly mistaken in their identification.

For these reasons, I conclude that the Crown has not proven identity beyond a reasonable doubt and I find J.S. not guilty of the charges before the Court.

I note that from the moment he became involved in this case, the law presumed J.S. to be innocent of the charges. J.S. walked into the courtroom as an innocent person and he will exit the courtroom as an innocent person. He is entitled to, and deserves, the full benefit and protection of the presumption of innocence because anything less would only undermine this vital and fundamental principle of our legal system.

CLOSING COMMENTS

I can only imagine how difficult this case has been for Mitchell Wilson's family and I realize that the conclusion of this trial leaves many unanswered questions, which is unfortunately unavoidable. Given the extraordinary amount of interest in this case, I would like to make the following comments.

I very much doubt that the youths who robbed Mitchell Wilson were aware that he suffered from muscular dystrophy. I also doubt that they ever considered the consequences of their actions which unleashed a horrible chain of events that ultimately led Mitchell Wilson to commit suicide. No one could have foreseen this tragic outcome and it is unclear whether and to what degree the youths who committed the robbery should be held responsible for this tragedy. However, it is clear that these youths are responsible for what they did do on November 1st, 2010 which involved inflicting physical and psychological harm on Mitchell Wilson.

I hope that one day, the youths responsible for these crimes will have the courage to come forward and take responsibility for their wrongdoing. I hope that they will ask for, and receive, forgiveness. I also hope that with the end of this trial, Mitchell Wilson's family can find peace.

My final hope is that everyone involved in this case will take the time to reflect on it and that we will collectively ask ourselves: are we teaching our children through our words and deeds that might does not make right, that stealing is wrong, that one of the bravest things a person can do is to own up to his or her mistakes. Taking the time to learn from this case, and working together to ensure that such a tragedy never happens again, is the least we can do to express our sorrow to the Wilson family and honour the memory of Mitchell Wilson.

Released: March 5th, 2012

Signed: M.T. Devlin