WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:

486.5 Order restricting publication — victims and witnesses.

(1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) Justice system participants. — On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2014-03-06

Court File No.: Regional Municipality of Durham 998 12 14996

Between:

Her Majesty the Queen

— AND —

Mark Shields

Before: Justice J. De Filippis

Heard on: October 1, 2013 & February 4, 2014

Reasons for Judgment released on: March 6, 2014

Counsel:

• Ms B. Green — counsel for the Crown
• Mr. T. Bloodworth — counsel for the defendant

Reasons for Judgment

De Filippis J.:

[1] The Defendant was charged with committing an indecent act and criminal harassment. There is no doubt the complainant is the victim of these crimes. The only issue at this trial is the identity of the culprit. These reasons explain why I find the defendant not guilty.

[2] The complainant is an 18 year old woman who attends university. At the time of these events she was 17 years old and worked in a retail store at the Pickering Town Centre. The store offered leather bags, purses, and wallets for sale. The complainant testified that on July 24, 2012 at 7 PM, a man came into the store and spoke of "medical issues" as he lowered his pants. She was startled to see that the man was masturbating his exposed penis. As he did so, he addressed her by name and said, "thank you…I'll see you soon". The complainant ran out into the mall to an adjacent store and called mall security. However, the man left before officers arrived. She testified that she was "really scared" but did not think he would return and did not pursue the matter with police. However, about two weeks later, on August 11, in the afternoon, the complainant saw him walking in the Pickering Town Centre. This alarmed her and she contacted security. The officers did not apprehend him but he was captured by a security camera. This was turned over to the police.

[3] In October the complainant was asked to view a photo line-up. The manner in which this was conducted by the police is unassailable. An officer with no knowledge of this investigation presented the complainant with an array of pictures of similar looking men. The proceedings were videotaped and played to the court. The complainant independently reviewed the pictures, picked out number 10, and said she was "85-90% certain" he was the culprit. The defendant is the person in this photograph. At trial, she testified she was not absolutely sure because the picture depicted a man with "darker hair and no glasses". She also testified that she was "100%" certain the man captured by the mall surveillance camera was the culprit and pointed to the defendant as that man. The person captured on video differs from the one in picture number 10 primarily because he is wearing glasses and his hair is lighter; that is, it is more grey. Picture number 10 is from the defendant's driver's licence and had been taken four years earlier.

[4] The complainant testified that her observation of the defendant is not limited to the two occasions on July 24 and August 11. She saw him in her store on four or five prior occasions. She said that he lingered in the store – once for over one hour – and never purchased merchandise. Moreover, she thinks she saw him after these events at a university cultural fair but cannot be certain because she was "scared and looked away". The complainant's testimony that the culprit wore glasses is unequivocal:

Q: And every time that you saw this – whoever this is…he was wearing glasses?

A: Yes, every time.

Q: Every time?

A: Yes…I don't recall him not wearing glasses.

[5] Cst. Wilson was assigned to this investigation on August 31, 2012. He obtained a still photograph from the aforementioned video record and included it in a media release dated September 10. The image and a written physical description appeared on the Durham Regional Police Service website and in a local newspaper. On September 19, the officer received a telephone call from a man who advised that the picture in the newspaper resembled him and he was perplexed to be linked to an indecent act. The man identified himself as Mark Shields and accepted the officer's invitation to attend the police station for an interview. That interview between Cst. Wilson and the defendant was video recorded. The Defence concedes it is a voluntary statement and it was tendered by the Crown for the purpose of cross examination of the defendant.

[6] The defendant is a 64 year old father and grandfather who works as a production manager at a local company. He denied exposing himself to the complainant. He testified that he contacted the police after reading a report about a "flasher" that included a picture of a suspect that looked like him. I note that while being interviewed, he used glasses to read documents put to him by the officer, but did not otherwise wear them. The officer, alert to the significant of this, asked the defendant if it is necessary for him to always wear glasses. The defendant replied as follows: "No I, huh, if I put my glasses on I wouldn't be able to… to see you very well, they're strictly for reading….I couldn't walk around in them, it would hurt my eyes". At trial, the defendant testified that he only wears glasses to read and for no other purpose. I will explain later why I consider his prior consistent statement to be relevant.

[7] The defendant admitted that he often goes to the Pickering Town Centre and sometimes "wanders around for up to an hour" at a time. He also conceded that his marriage has had "its ups and downs" and at the time of these events his wife was out of town for two out of three weeks at a job in Alberta. The defendant denied that he went to the police as a "pre-emptive strike" to deflect suspicion. He said he was worried that friends and neighbours who saw the newspaper would think he was the culprit and went to the police to "assist them by clarifying it was not me". When pressed to explain how this would assist the police, the defendant repeated that he was worried by the striking similarity between him and the culprit and wanted to "clear the air".

[8] I granted a Defence application to admit lay opinion recognition evidence from three witnesses. The test for the admissibility of such evidence is discussed in R v Berhe (2012) 2012 ONCA 716, 292 C.C.C. (3d) 456 (Ont. C.A.) and R v Berhe 2013 ONCJ 368. Gary Taylor, Judith Sauder, and Hachim Kinder considered the still image of the person captured by the mall security camera that was used by Cst Wilson as part of his news release and offered an opinion as to whether he is the defendant. Each witness said the person looks like the defendant and explained why they believe it is not him.

[9] Mr. Taylor works with the defendant and has known him for four years. He testified the person in the image is heavier than the defendant and is wearing glasses while apparently walking in a mall. With respect to the latter, the witness said he has only seen the defendant wear glasses while looking at a computer screen. Mr. Taylor testified that the defendant brought the newspaper article to his attention and told him "he'd been misidentified".

[10] Ms Sauder is a nurse and has known the defendant for 30 years. She testified that the person in the image has the same face and hairline as the defendant. However, she observed that the defendant has "a long nose but not as long as the person in the photo". In addition, the person is different in that he wears glasses and is heavier than the defendant. The witness recounted that when she was shown the newspaper article by the defendant, she thought it looked like him, "except for the glasses". He added that the defendant told her he went to the police to "clarify the mistake" as he had never been in the store where "the baggage girl" worked. Ms Sauder agreed with the defendant that the image was not him. She testified that she cannot believe the defendant "could masturbate in front of a 17 year old girl – he's not that kind of person".

[11] Mr. Kinder is the defendant's neighbour and has known him for six years. He testified that he has never seen the defendant wear glasses or the clothing worn by the person in the image. He added that the latter is also younger and heavier than the defendant. The witness acknowledged that the person in the image otherwise looks like the defendant. He testified that the defendant told him he was puzzled that the image in the newspaper looked like him and had gone to the police to "assist in the investigation by telling them in was not him".

Legal Analysis

[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).

[13] The credibility of the complainant is not in dispute and her reliability is challenged only with respect to the identification of the defendant. In other words, there is no question that a man masturbated before her and that she sincerely believes the defendant is the culprit. The complainant's belief deserves serious consideration: Her identification is not based on one occasion under the quick and stressful conditions of an indecent exposure. She saw the man four or five times in the preceding months. She picked the defendant out of a photo line up that included his four year old driver's licence picture in which he is without glasses and has darker [younger] hair with 85-90% certainty. She is 100% certain the defendant is the man she saw two to three weeks after the incident as captured by the mall security camera, now with lighter [older] hair and wearing glasses.

[14] I do not doubt the honesty of three defence witnesses in question but bias is a concern. They discussed the identification issue with the defendant before trial and one added she could not imagine that he could commit such a crime. In any event, my review of relevant pictures leads me to conclude that the culprit is a good match for the defendant, except that the latter appears slimmer and only wore glasses in court when reading. The slimmer figure is a minor concern that could be explained by the effects of the camera and passage of time. However, the matter of the glasses is significant. It is debatable if this is the type of opinion evidence contemplated by Berhe. In any event, I consider it a persuasive fact.

[15] The Crown challenged the integrity of the defendant by asserting his initial call to the police was a "pre-emptive strike" to deflect suspicion because of his obvious similarity to the published picture of the culprit. This was supported by the allegation the defendant abandoned an attempted alibi in his statement to police after he realized the date of the picture, as reported in the newspaper, was incorrect. Crown counsel's cross-examination has given me much to think about but, ultimately, it does not undermine the Defence evidence on the critical issue of the glasses.

[16] The defendant's claim that he only wears glasses to read is consistent with how he conducted himself in court and during the police interview. The latter is especially important. When asked about his use of glasses, the defendant told the officer they were "strictly for reading" and that he "couldn't walk around in them". Even assuming he said this because the published picture shows a man standing in a mall while wearing glasses, he could not have known that the complainant would insist in trial testimony that the culprit always wore glasses. More importantly, the defendant's evidence on this point is supported by three people who have known him for years. While these witnesses may be biased, the reliability of their testimony about the defendant not wearing glasses other than to read is not in question.

[17] If the Crown's case had gone unanswered, I would have found the defendant guilty. However, the Defence evidence raises sufficient doubt that the charges must be dismissed.

Released: March 6, 2014

Signed: Justice J. De Filippis