WARNING
The court hearing this matter directs that the following notice should be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. Identity of offender not to be published. —(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. Identity of victim or witness not to be published. — (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.
129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court File and Parties
Court File No.: Regional Municipality of Durham: 998 12 RY26035
Date: 2013-11-26
Ontario Court of Justice
sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1
Between:
Her Majesty the Queen
— and —
D.F. and R.L., young persons
Before: Justice J. De Filippis
Heard on: May 6, July 29, September 5, & October 18, 2013
Reasons for Judgment released on: November 26, 2013
Counsel:
Mr. K. Polley — counsel for the Crown
Ms S. Campbell — counsel for D.F.
Mr. A. Lobel — counsel for R.L.
De Filippis J.:
Facts and Charges
[1] D.F. and R.L. are jointly charged with the robbery of three people at the City of Ajax on 14 May 2012; the victims are Gary Saini, Fisayo Oladiran, and Riman Rafi. R.L. is also charged with violating a peace bond and youth sentence; in both cases, by failing to keep the peace and be of good behaviour. The charges arise because of an incident at a plaza near J. Clarke Richardson High School. There is no dispute that during the lunch period on the day in question the three victims were robbed by a group of males. The issue in this case is the identity of the assailants. These reasons explain why I find both defendants guilty.
[2] The three victims are now 19 years old and at the time of these events were grade 12 students. All were seated on a bench in a plaza near their school eating lunch when four young men approached them. Mr. Saini added that two young women accompanied them and that he "recognized one of the girls from school".
Descriptions of Assailants
[3] Each victim testified about the description of the assailants, as set out below. As will be explained, I find that Male No. 1 is D.F. and Male No. 3 is R.L.:
Male No. 1: All said he was black, wearing a dark blue windbreaker, and jeans. Mr. Saini and Mr. Oladiran noted that the jeans were blue but the third victim said they were black. Mr. Saini and Mr. Rafi added that his face was partially covered by a blue bandana.
Male No. 2: All said he was black, wearing khaki pants and a white doo rag. Mr. Saini and Mr. Oladiran added that he had a white windbreaker. Mr. Rafi testified it was a jacket, without reference to colour.
Male No. 3: All said he was black, wearing a brown leather jacket and khaki pants. Mr. Oladiran added that he had a white T-shirt and Mr. Rafi testified his face was partially covered by a blue bandana.
Male No. 4: All said he was black but the description of his clothing is vague.
Evidence of the Robbery
[4] Mr. Oladiran testified that as the assailants approached, one of them asked "what are you guys doing" and Male No. 1 and Male No. 4 patted him down. He testified that as they did so, Male No. 2 held his hand under his jacket suggesting that he had a weapon and said "don't make me pull it out" while others said "what do you have" and "give me your stuff". According to Mr. Oladiran, Male No. 4 stole his cell phone and pushed him back while Male No. 1 took his wallet, inspected it, and returned it on realizing it did not contain money. This victim also testified that Male No. 3 stole a wallet, iPod, and necklace from Mr. Saini and that he intervened when Male No. 1 pushed Mr. Saini. The latter described these events somewhat differently; he said he was pushed around and that Male No. 1 demanded his cell phone while one of the other assailants stole his wallet and a third one took his iPod.
[5] Mr. Rafi testified that when the assailants first approached one of them said "we run shit here" and another told him not to move. When this victim refused to give up his cell phone, "the white doo rag guy" [Male No. 2] grabbed the device from his hand. Mr. Rafi testified that as soon as the assailants left he contacted the police who arrived within five minutes.
Identification of D.F.
[6] The three victims identified Male No. 1 as the defendant, D.F.. Mr. Saini said he recognized him "by his eyes…the bandana covered his face from the nose down" and added he had previously seen him at school. Mr. Oladiran testified that he saw the defendant's face when the "bandana slipped down" and noted that he had seen him a school "a couple of times". According to Mr. Rafi, when he saw D.F. at the scene his bandana was around his neck. He added that he had seen him "at school a lot". This victim learned his name by searching through the yearbook. He did this in presence of the vice-principal. Mr. Rafi pointed out that he reviewed the entire yearbook as he did not know what grade D.F. was in. Soon after the robbery, the three victims picked D.F. from a photo array assembled by the vice-principal. Each one also identified him in the courtroom during this trial by pointing to him as he sat with two other young black men on the front row.[1]
Evidence Regarding R.L.
[7] P.C. Legge was advised by radio at 1:06 PM that a robbery had just occurred and arrived on scene within minutes. Having been advised of the above noted descriptions of the four assailants, he reviewed a video recorded by a security camera and observed a young black male wearing a brown leather jacket entering J. Clarke Richardson High School 1:07 PM. It is agreed that this man is the defendant, R.L.. P.C. Legge also noted that R.L. walked "from the west"; that is, from the plaza area where the robbery had occurred. Later in the day, R.L. left school and boarded a bus. Before departure, he was escorted from it by P.C. Legge. The officer searched the brown leather jacket worn by the defendant and found a wallet. There is no dispute that this wallet belongs to Saini and had been taken from him during the robbery.
[8] The location of the wallet in the jacket is controversial; the officer testified it was "hidden inside the lining". The jacket, an exhibit at this trial, reveals a tear inside the upper left lining and P.C. Legge testified he found the wallet inside the bottom left side of the jacket. As will be discussed, the defendant has a different explanation for where the wallet was found and how it got there.
Vice-Principal's Evidence
[9] Henri Poulin is a vice-principal at J. Clarke Richardson High School. He testified that the school has an electronic version of its yearbook. On that basis, he randomly assembled a photo array of 20 young black students, including the two defendants. He testified that he was present when the victims picked out the D.F. as one of the culprits and he so advised the police.
R.L.'s Testimony
[10] R.L. is 17 years old. He is now a part time student at a community college and also works part time at a restaurant. He has a youth criminal record for possession of a controlled substance and theft under. He testified that on the day in question he, along with two female students, went to the plaza but did not see the victims or participate in a robbery. He knows D.F. but could not recall if he was at the plaza. R.L. said he was "skipping third period" at the time and while walking back to school for his next class he found a wallet on the ground. He looked inside it but did not recognize the person – Mr. Saini – depicted in the documents. He testified that he intended to "hand it in at the office" but did not want to be late for class. He explained that he had already been late for class eleven times and one more such incident would mean a suspension. Moreover, he did not want to turn over the wallet right away because the vice-principal would make him serve a detention after class for skipping the third period. By waiting until the end of the day to hand it in, he would only encounter the secretary and thus delay the detention until the following day.
[11] R.L. testified that at the end of the school day, he retrieved his coat from the locker and, forgetting that he had possession of the wallet, boarded the bus to go home. He asserted that he only realized he still had the wallet when the police came onto the bus to speak to him. He did not admit possession of the wallet or turn it over because, "I wasn't sure what to do, maybe they were going to arrest me, the vice principal was pointing at me". R.L. added, "I didn't know what I'd be arrested for…I was scared". He conceded that the wallet contained "many cards" and was of appreciable weight. He denied hiding it in the lining of his jacket and said it ended up there because of a large hole in the right pocket. I have examined the pocket and confirm such a hole. R.L. claimed the police caused the tear in the lining in upper left side when they seized the wallet.
Legal Framework for Identification Evidence
[12] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This means that if the defendant has called evidence, there must be an acquittal: (i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R v W.D. (1991), 63 C.C.C. (3d) 397 (S.C.C.). The application of this principle does not mean the defendant's evidence is to be viewed in isolation, divorced from the context or other evidence in the case: F v R.D. [2004] O.J. 2086 (O.C.A).
Defence Arguments
[13] Counsel for D.F. claims the Crown has failed to meet its onus of proof. The three complainants provided general descriptions of the robbers and picked D.F. from a photo array assembled by the vice-principal. It is submitted that the victims' previous observation of the defendant at school and the circumstances in which they encountered the assailant at the scene renders this "suspect recognition evidence". In this regard, it is argued that the difficulty with each victim's identification is not overcome because there are three of them. Finally, it is submitted that the "in dock" identification does nothing to strengthen the Crown's case.
[14] Counsel for R.L. points out that the victims did not identify his client as one of the assailants and that the Crown's case rests on the fact that he generally matches the description given and was found in possession of Mr. Saini's wallet. It is submitted that the latter has been explained or, at least, a doubt is raised, by the defendant's testimony. Moreover, it is argued that there are important differences between the description of the assailant the Crown claims is R.L. and the clothing worn by him as depicted on the video record. The latter shows R.L. with brown jacket, blue jeans, grey shirt and white shoes with prominent red on bottom and back. Mr. Saini said one of assailants had a brown jacket, khaki pants and white shirt. The other victims do not mention anyone with a brown jacket. Lastly, counsel noted that Mr. Oladiran said he saw the same person steal Mr. Saini's wallet and iPod and that the defendant was found only with the wallet. This, it is suggested, supports R.L.' testimony that he found the wallet and placed it in his pocket where it slipped through the hole and innocently ended up in the lining of the jacket.
Crown's Arguments
[15] Crown counsel submits the court can be confident in the identification of D.F. because it is confirmed by three people about whom there is no suggestion of collusion. Each victim had previously seen the defendant and picked him from a photo array that, it is argued, is a valid sample of similar looking young black men. In addition, one of the victims, Mr. Rafi, picked found him in the school yearbook. Finally, the Crown submits that this is not a case of "in dock identification" because each victim pointed to D.F. from among three black defendants and, therefore, "had 66% chance of getting it wrong".
[16] With respect to R.L., the Crown relies on his similarity to one of the assailants and possession of the stolen wallet in such close proximity of time and place to the robbery. The video record shows that the defendant's shoes are predominantly white and that he has a brown jacket and blue jeans, as described by the victims. Counsel submits that the inconsistency between his light grey shirt and white while one attributed to the assailant is not troubling given lighting and other conditions at the scene and video record. The Crown also argues that R.L.' testimony is incapable of belief. According to Mr. Saini, only one of the culprits walked towards school – "the brown jacket guy". The video record shows R.L. in similar clothing walking to the school from the area of the plaza within minutes of the robbery. The Crown submits that R.L. concealed the wallet inside the lining of his coat and the suggestion that the police caused the tear is absurd, especially since they could not have known his defence in this trial.
Analysis of Identification Evidence
[17] Crown and defence counsel acknowledged the challenges posed by identification evidence and both cited R v Miaponoose, [1996] 93 O.A.C. 115. That case was recently commented upon in R v Liew 2012 ONSC 1826.
Eyewitness identification has many frailties, well known to the law. It is a type of opinion evidence, the reliability of which can be difficult to assess: R. v. Miaponoose, [1996] O.J. No. 3216 (C.A.). The weight to put on a purported identification varies depending on the circumstances. In R. v. Powell, [2007] O.J. No. 4196 (S.C.J.), Ducharme J. described a number of factors that courts will consider when assessing identification evidence. Those factors include:
(i) Whether the suspect was a complete stranger or known to the witness;
(ii) Whether the opportunity to see the suspect was fleeting or something more substantial;
(iii) Whether the setting was darkness or well-illuminated conditions;
(iv) The condition of the witness at the time of the sighting;
(v) Whether the witness committed a description of the suspect to writing;
(vi) Whether the description was vague and general or whether the description was detailed including any distinctive features of the suspect;
(vii) Whether there were intervening circumstances capable of tainting or contaminating the independence of the identification evidence;
(viii) Whether cross-racial identification is involved. If so, the trier of fact must be alive to at least the possibility that this might cause the witness some difficulty; and,
(ix) Whether there is any other reliable circumstantial evidence capable of confirming or supporting the identification evidence of the eye witness.
Court's Assessment of D.F.'s Identification
[18] The credibility of the victims in this case was not seriously challenged. Moreover, I accept the reliability of their evidence. This is especially significant with respect to the identification of D.F.. In this regard, I am not troubled by the different accounts of the state of this defendant's bandana. It is reasonable to conclude it covered his face from the nose down when Mr. Saini saw him and had fallen to his neck when the other two observed him. On behalf of her client, Ms Campbell reviewed several leading decisions on identification evidence that dictate a cautious approach, mindful of previous wrongful convictions. I acknowledge her submissions but find the evidence in this case to be persuasive. Each of the three victims provided a general, consistent, and contemporaneous description of all assailants as observed by them at close range on a weekday afternoon. Each one had previously seen D.F. at school on one or more occasions. Each one picked him out of a photo array prepared by the vice-principal. I agree with Crown counsel that the array is a fair one in presenting 20 similar looking persons. In addition, Mr. Rafi learned D.F.'s name by picking his photograph from the school year book that included students in all grades. Finally, each victim pointed to D.F. in the courtroom as he sat with two other young black male defendants. In these circumstances, and having regard to the absence of collusion, I have no doubt that D.F. was correctly identified as one of the culprits.