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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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 — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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 Information

Court File No.: Toronto Y125675-02

Date: 2013-02-14

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 —

M.T., a young person

Before: Justice E. B. Murray

Heard on: January 7, 8, 9, 10, 11; 14, 15 and February 5, 6, 7, 2013

Reasons for Judgment released on: February 14, 2013

Counsel:

Ms. Jody Millstein — for the Crown

Mr. Ugo Cara — counsel for the accused M.T.

MURRAY, E. B. J.:

1. Introduction

[1] M.T faces two charges of aggravated assault and two charges of possession of a dangerous weapon relating to an incident which took place on Saturday February 4, 2012. On that evening S.R.'s parents hosted a "sweet sixteen" party for her at the Lithuanian banquet hall on Bloor Street in west-end Toronto. About 250 guests attended. Late in the evening two of those guests, her cousins L.S. and K.A., were each stabbed in the abdomen by an assailant on the street in front of the hall, and required hospital treatment. The only issue in this trial is whether the Crown has proved beyond a reasonable doubt that the defendant M.T. is that assailant. M.T. is now 16 years old, and was 15 years of age at the time of this incident.

2. Positions of the Parties

[2] The Crown concedes that this is not an easy case. She notes that:

• the individual who stabbed K.A. and L.S. was not previously known to any of the witnesses to the attack;
• the identification evidence offered entails cross-racial identification; and
• the attack was brief, comprising only a few seconds.

[3] Nevertheless, the Crown submits that a chain of evidence from various witnesses provides proof beyond a reasonable doubt that the defendant was the assailant of K.A. and L.S.

[4] The defence disagrees, and submits that the identification evidence is woefully inadequate.

[5] Before I summarize the relevant evidence heard, I will address two issues which arose in the trial.

3. Witnesses Who Did Not Complete Their Evidence

[6] There was difficulty in having two witnesses in this trial, J.J. and B.R., complete their evidence. Neither of these witnesses saw the assaults. For oral reasons given at the close of the Crown's case, I excused both witnesses from testifying further. I ruled that I would disregard J.J.'s evidence in its entirety, and that I would admit B.R.'s evidence as adduced, subject to argument about weight.

3.1 Allegations of "Tainted" Evidence

[7] At the conclusion of the Crown's case, the defence brought a motion asking that evidence of most of the Crown witnesses be excluded because of "tainting" through allegedly improper identification procedures employed by some of the officers in this investigation. Specifically, there was evidence which I accepted that an officer showed witnesses V.L. and F.L. R.I.C.I. photos of the defendant before their statements were taken; that witness L.H. was advised by an officer of the defendant's name as a possible suspect before her statement was taken; and that an officer showed witness B.R. a Facebook photo of the defendant, after his statement was taken, but before he identified the defendant as being present at the scene. I dismissed the motion for oral reasons given, holding that the concerns raised would be considered in determining the weight to be given to the evidence of these witnesses.

[8] There is abundant caselaw which speaks to the danger to a fair trial which arises if police suggest in any way to a witness before he makes an identification or gives a statement that an individual is suspected by them of committing the crime being investigated. I accept that it may be necessary in the interests of public safety on occasion for officers to show a suspect's photo to witnesses—for example, when a suspect is at large, and the police are trying to apprehend him quickly. The necessity of the procedure does not mitigate the damage which the practice does to the integrity of the identification evidence, however.

[9] The comments which follow address the issue of how (if at all) the identification procedures employed by officers with these witnesses will affect my assessment of their evidence. I have concluded that they should not, except in the case of one witness, B.R.

[10] R.I.C.I. photos are headshots of a subject that typically do not provide information about the subject's height or clothing and headgear worn. I was not shown the specific photos of the defendant which are in the police database, but no evidence was introduced that they depart from this template.

[11] F.L. was a witness to the assaults, but his evidence, as detailed further below, is that he did not have a good view of the face of the assailant and can not identify him. F.L.'s evidence (aside from a fairly generic description of the assailant—that he was young, male, and "Asian", factors agreed upon by all witnesses) deals primarily with clothing worn by the assailant. Exposure to a R.I.C.I. photo cannot be said in these circumstances to have tainted the evidence of F.L., and it was not F.L's evidence that his testimony was influenced by exposure to this image.

[12] V.L. knew the defendant well before the night in question. They had attended middle school together. The defendant had telephoned her several times that evening, wanting to know where she was, but she did not tell him. Her evidence, detailed further below, is that she saw the defendant outside the hall sometime before the assaults. Given V.L.'s prior acquaintance with the defendant, her exposure to a R.I.C.I. photo of him could not be said to taint her evidence.

[13] L.H. was not invited to the party, and was a stranger to those at the party, and a stranger to the defendant. She testified that although she observed the assailant running away that night, she did not get a good look at his face and could not identify him. Her evidence is that an officer, when questioning her, gave her the defendant's name as a possible suspect. Given L.H.'s lack of acquaintance with the defendant, her evidence could not be said to be tainted by the officer's mention of his name.

[14] B.R. is S.R.'s father. His evidence, detailed further below, is that sometime prior to the time of the assaults, he had an unpleasant encounter with two young men outside the front door of the hall who had not been invited to the party. He identified these men as D.K. and S.T., whom he knew as former classmates of his daughter; he went on to say that D.K. was "native or oriental" and that S.T. was a Tibetan. B.R. testified that at least one other male, who was unknown to him, was outside the hall at the time of this incident. B.R. did not see this young man interacting with D.K. or S.T., and at the time thought that he was a bystander. Later B.R. thought that this young man, whom he described as "Tibetan", might be a good witness, if he could be located.

[15] After the assaults, B.R. gave a statement to police in which he spoke of the encounter that he had with D.K. Two days later he went to his daughter's school, apparently in an effort to obtain further information that he hoped would help in identifying the man who had stabbed his nephews. B.R. met with the police officer who was assigned to the school, who accessed the Facebook accounts of S.T. and D.K., and the accounts of individuals who were identified as their Facebook "friends". B.R. testified that he was horrified to see that one of the "friends" was a young man brandishing a gun and sporting Tibetan gang colours. He said that this Facebook entry bore the name of the defendant.

[16] B.R., upon seeing this photo, identified the third young man outside the hall that night as the defendant. The context in which B.R. was presented with the photo—suggesting that the individual portrayed was involved in violent criminal activity— gives rise to a concern that he was improperly influenced in making this identification. I will deal further with this concern below.

4. The Evidence

[17] I heard evidence from 8 civilian witnesses.

4.1 Evidence About the Assaults

[18] Five of those witnesses – L.H., L.S., F.L., T.S. and B.B., all teenagers or young adults-- testified that they were present during the assault on the two victims. These witnesses included one of the victims; the other victim chose not to testify.

[19] The defendant was not previously known to any of the witnesses to the assaults.

[20] The police did not conduct a photo lineup with any witness.

[21] The assaults took place near the front door of the hall on Bloor Street, and the witnesses stood close by. The assaults began and ended in a few seconds. Although it was dark, there was light from the streetlights. Four witnesses saw the assailant make a thrusting or pushing motion towards one or both of the victims; these witnesses did not see a weapon. One witness did not see these motions, but saw a commotion and a man sprinting by her with a blade clutched in his hand.

4.1.1 Evidence of L.S.

[22] L.S., one of the victims, picked out the defendant as his assailant in an in-dock identification in the courtroom. In his evidence, L.S. described the defendant as "Asian", "skinny", and between 5'4"-5'6" tall, wearing dark clothes, which included a black button-down "varsity type" jacket with leather sleeves. He testified as to two distinctive features of his assailant or of his clothing:

• He had a dark spot at the corner of his left eye—perhaps a birthmark or tattoo.
• He wore a black baseball cap, with beige or black ear flaps, tied up, and featuring a Chicago Bulls logo, a red bull with horns, and a New Era sticker—"59/50"—on the brim. L.S. said that he wears the same type of hat.

[23] When pressed in cross-examination as to why he was certain that the defendant was his assailant, L.S. replied with a question: "Why would he be here (i.e., in the prisoner's box) if he isn't?"

[24] L.S. testified that his assailant was accompanied by two other young Asian males who stood by and did not play a part in the attack on him.

[25] L.S. testified that earlier in the evening he saw the same three Asian males attempt to rob Marcus, a young man who was a party guest, in the street in front of the hall. According to L.S., this incident took place about 45-60 minutes before the attack on him. L.S. testified that both he and B.R. had told these men to leave, as they were not invited. L.S. described the robber as lanky, "taller" (about 5'9"-10"), and as wearing black work plants, black running shoes, and a black hoodie. L.S. could give no description of the third male in this group. According to L.S., both his assailant and this third man did not participate in the attempted robbery.

4.1.2 Evidence of Other Witnesses to the Assaults

[26] The other witnesses to the assault – L.H., F.L., T.S. and B.B.—testified that they did not believe that they would be able to identify the assailant. L.H. and F.L. said that they did not get a good look at his face. F.L. and T.S. testified that they did not think that the assailant was "in the courtroom".

[27] None of these witnesses noted any distinctive facial features in the assailant, such as a birthmark or tattoo below his left eye as reported by L.S.

[28] Evidence at trial established that the defendant has a noticeable mole in the middle of his nose, a mole which V.L. testified has been present as long as she has known him. None of the witnesses to the assaults testified that the assailant had such a mole.

[29] All of these witnesses agree that the assailant was young, "Asian", had a slim build, and wore dark clothes. I summarize their further identification evidence below:

B.B.

• Height: 5'6", or a bit shorter
• Age: No specific evidence
• Clothes: All black, no information as to style or fit
• Hat: Ballcap with fuzzy earflaps, cap and flaps black, no logo. Witness says he wears same type of hat.
• Any companions? No information given.

T.S.

• Height: 5'7"-8"
• Age: No specific evidence
• Clothes: Dark jacket, fell to hip, don't recall style or pant description; acknowledges accuracy of statement to police in which he said that assailant wore a black parka with fur on the hood.
• Hat: None
• Hair: Dark; acknowledges accuracy of statement to police in which he said hair was black, spiked.
• Any companions? Appeared to be alone.

L.H.

• Height: 5'3"-4"
• Age: 15-18
• Clothes: Baggy; dark black or blue hood or jacket, maybe hip or thigh length.
• Hat: fitted ballcap with earflaps, black or dark blue; no memory if earflaps same colour and fabric as hat, and did not see a logo.
• Any companions? Were 1 or 2; no memory of any features, except that he was (or they were) male.

F.L.

• Height: Perhaps chest level to me; witness is 6' tall
• Age: Very young, 14-16
• Clothes: Very baggy; no memory of style or colour
• Hat: Black and red baseball cap with earflaps; flaps were same colour as hat. Witness thinks it had a Chicago Bulls logo, although he did not advise police of this feature in his statement. Says: "It's a popular hat".
• Any companions? 2 males. One was aboriginal, 5'9"-10"; no memory of clothes or whether he wore a hat. No memory of any features of other male.

4.2 Other Identification Evidence

[30] What evidence other than L.S's in-dock identification links the defendant to this assault? The Crown offers evidence about events earlier in the evening to make that link, evidence placing the defendant on the scene and a description of the defendant which the Crown says has many similarities the descriptions given of the assailant of L.S. and K.A. The Crown in particular points to what it submits is a distinctive hat worn by the assailant, and says that evidence shows that the defendant wore a very similar hat.

4.2.1 Evidence of V.L.

[31] V.L. testified that at some time prior to the assault, she and her friend A. went out the front door of the hall, where she saw the defendant with D.K. and T.R., two young males who were also known to her. Party guests, mainly members of S.R.'s family, were also outside. V.L. knew that the defendant and D.K. and T.R. were not invited, and she told them to leave. S.R.'s father, B.R., then told her and A. to go back into the hall, and they did.

[32] V.L. did not see the defendant and his companions interact with B.R.. She did not see any attempt to rob a party-goer, as described by L.S.

[33] According to V.L., it was approximately 30 minutes later that she and her friend K.B. went outside the hall again, and walked up and down Bloor Street, looking for the defendant and his companions. She did not see them. She re-entered the hall, and some time later (she did not specify how long), she saw a young man who was a guest at the party burst back into the hall, yelling that he was wounded. She saw blood on his clothes.

[34] V.L. testified that the defendant is of Tibetan background; she described the clothing he wore that evening. She said that he wore dark clothes (dark blue jeans and a black waist length jacket) and a dark, solid color hat, with furry gray earflaps. V.L. testified that she did not know the type of the hat, but knew that it was not a baseball cap: she wears baseball caps herself.

[35] I accept V.L.'s evidence that the defendant was at the scene on the night in question. She knows the defendant, had interaction with him that night, and has no reason to fabricate.

4.2.2 Evidence of K.B.

[36] K.B. was another party guest who had a prior acquaintance with the defendant. Her demeanour demonstrated her reluctance to testify. She refused a Crown invitation to refresh her memory of events by reviewing her videotaped statement to police. Her evidence was that at some point in the evening, V.L. received a call from the defendant, and passed the phone to her; she had a brief conversation with him. She testified that the defendant "might have" been at the party or outside the hall that evening. Her evidence is that she can remember nothing more about the evening that might be relevant.

4.2.3 Evidence of B.R.

[37] I referred earlier to B.R.'s unpleasant encounter outside the hall with two young men, D.K. and S.T., who were not invited to the party. B.R. testified that he went outside the hall because he was told that "someone" was attempting to rob a guest. He did not see a robbery attempt, but did see D.K. and S.T. loitering by the door, and told them to leave. D.K. was rude, and blew smoke in his face. B.R. returned to the party, and made an announcement cautioning others not to go outside.

[38] B.R. describes D.K. in a way that echoes other witnesses' descriptions of one of the men outside the hall that night: tall (5'9"-10"); "native or oriental"; wearing a dark down-filled winter jacket.

[39] B.R. describes S.T. as follows:

• Height: 5'3"-4"
• Age: 14-15
• Ethnicity: Tibetan
• Clothing: No evidence
• Hat: a red baseball cap with furry white or beige earflaps and a brim; he did not see a logo on the hat.

[40] The third man—who B.R. later, after seeing the Facebook photos, identified as the defendant—he describes as follows:

• Height: No evidence
• Age: 15-16
• Ethnicity: Tibetan
• Clothing: Black jacket
• Hair: Flat, combed back
• Hat: None

[41] I approach B.R.'s evidence that the defendant was the third man outside the hall with caution, because of the context in which he was provided with the defendant's name. However, given that I accept V.L.'s evidence that the defendant was on the scene at the time when B.R. told her to go inside the hall, I accept B.R.'s evidence that he saw the defendant outside the hall.

5. Analysis

[42] The Crown presents evidence that suggests that the defendant could have been the assailant of L.S. and K.A. In my view that evidence does not rise to the standard required for a finding of guilt.

[43] There is no evidence linking the defendant to these crimes other than eyewitness evidence with respect to the attacks and with respect to certain observations of the defendant's appearance made some time before the attacks. There is no evidence that the knife or the "distinctive" hat referred to by the Crown was recovered from the defendant in the investigation which occurred after these attacks.

[44] There are inherent dangers in eyewitness evidence. Innocent individuals have been found guilty based on such evidence, which although superficially persuasive, has many pitfalls. Factors which a court should consider in assessing identification evidence include:

• Length of observation
• Distance and lighting during observation
• Impediments to observation
• Prior contact between the witness and the suspect before, and frequency of such contact
• Time between original observation and subsequent identification to the police
• Any material discrepancy between the witness's description and the appearance of the suspect.

[45] In evaluating the evidence of the witnesses to the assaults, I note that although the lighting was adequate and proximity to the incident was reasonably close, that the assaults were over in a matter of seconds.

[46] Two of these witnesses had prior contact with the defendant when he stood by outside the hall during B.R.'s encounter with D.K, but that contact was very brief and involved little or no interaction. According to L.S., he told a group of three men, which included the defendant, to leave the party, but his focus was on D.K., whom he reproved for trying to rob Marcus. B.B.'s evidence about what he noted when he was present earlier during the encounter between B.R. and D.K. is confused as regards the defendant. At one point, he said that the man who assaulted L.S. was the same man who had the earlier encounter with B.R.; he then changed his evidence, stating that this was not the case.

[47] It is most important to note that none of the witnesses except for L.S. (including B.B.) purport to identify the defendant as the assailant. L.S.'s only identification of the defendant as his assailant took place in the courtroom, as the defendant stood in the box.

[48] Courts have often remarked upon the unreliability of an in-dock identification. L.S.'s reply when asked why he believed that the defendant was his attacker (questioning why he would "be here" if he wasn't) is a textbook example of why it is found to be unreliable.

[49] It further detracts from L.S's identification that he did not, in his statement to police or in his evidence, testify that his attacker had a noticeable mole in the middle of his nose. Furthermore, L.S. in his statement reported that his attacker had a tattoo or a birthmark below his left eye, a feature which the defendant does not have, and did not have at the time of the assault, as confirmed by V.L.

[50] Crown efforts to establish that the defendant is the assailant by comparison of descriptions of the defendant and the clothing worn by him earlier in the evening with descriptions of the assailant and his clothing establish a resemblance between the defendant and the assailant, but no more than that.

[51] The identification offered by witnesses of the physical features of the assailant is generic —young, Asian, of slight build--at least in metropolitan Toronto. These features describe the defendant, as well as many other young men in Toronto.

[52] These assaults did not take place in a remote location in which it would be unusual to find young men of this description. They took place in the context of a party involving 250 guests, and outside a hall on a street on busy Bloor Street West on a Saturday night. The evidence about the scene outside the hall at the time of the stabbings is that there were about 15-20 people standing about; the evidence did not establish how many passers-by there were. It should also be noted that the time which elapsed between the confirmed sightings of the defendant on scene and the stabbings was at least 30 minutes, and perhaps as long as 60 minutes.

[53] Evidence with respect to clothing of the assailant and the defendant indicates one similarity—the clothing was dark. There was conflict in the evidence as to the assailant's upper clothing—was it a varsity jacket with leather sleeves (L.S.); a black parka with a hood with fur trim (T.S.); or a hip-length jacket (L.H.)? Describing the defendant's clothing that night, V.L. said he wore a dark waist-length coat; B.R. gave no evidence on this point.

[54] Crown submissions focussed on the hat it alleges was worn by the assailant. The hat is distinctive, but not unique. Most witnesses agree that it can be described as a baseball cap. Evidence established that a hat which matches the description offered by the victim L.S. is manufactured by New Era, an international company. Two of the witnesses own a similar hat. Witness F.L., a university student, described it as a "popular" style.

[55] There was disagreement among witnesses as to the features of the hat, and as to whether the assailant even wore a hat. Witnesses to the assault varied as to its colour (blue, black?), and as to whether the earflaps were of the same colour and fabric as the hat (furry or flat; beige, gray, or white), or a different colour and fabric.

[56] One of the witnesses to the assaults testified that the assailant wore no hat.

[57] I compare the descriptions of the headgear of the assailant (or lack thereof) with the description of the defendant by the two witnesses who place him at the scene some time before the assaults. V.L., although she describes the defendant as wearing a cap with earflaps, is certain that the cap is not a baseball cap. B.R. describes the defendant as not wearing a hat at all, and describes his hair style.

[58] Furthermore, B.R. testified that S.T., an individual on the scene at the same time as the defendant, was wearing a baseball cap (red) with furry flaps (beige or white). The description B.R. gives of S.T. with respect to ethnicity, height, and age, is very like the description of the assailant offered by witnesses to the assaults.

[59] Given all this, it cannot be said that the Crown has established beyond a reasonable doubt that the defendant was the assailant of K.A. and L.S. I do not find the defendant guilty of these charges.

Released on: February 14, 2013

Justice E. B. Murray

Footnotes

[1] The caselaw is summarized in Criminal Pleadings and Practice, 2nd ed., Justice E.G. Ewaschuk, Canada Law Book, Ch. 16:700

[2] B.R. testified that he was able to identify individuals of Tibetan background because he lives in Parkdale, a neighbourhood with a significant Tibetan population.

[3] Excluding J.J., whose evidence I disregard.

[4] E.g., R. v. Miapanoose, 110 C.C.C. (3rd) 445

[5] See R. v. Turnbull, (1976) All E.R. 549 (Eng. C.A.)

[6] According to B.R. and L.S., that man was in fact D.K.

[7] See for example R. v. Manley, 2011 ONCA 128, 269 C.C.C. (3rd) 40