Court File and Parties
Court File No.: 13-1047 Dated: September 17, 2014 Ontario Court of Justice
Between: Her Majesty the Queen — and — Krishani Nancoo
Before: Justice Ronald A. Marion
Counsel:
- Roger Dietrich, for the Crown
- Evan Weber, for the Accused
MARION J.
REASONS FOR JUDGMENT
1: THE PROCEEDING
[1] Mr. Nancoo is charged that on or about the 29th day of May, 2013, he did commit an assault on Brian Chamney. He allegedly used a liquid or powder spray in committing the assault.
[2] Time, date and jurisdiction were admitted. Credibility is the central issue in this case.
2: THE ISSUES
[3] Both the complainant and the accused testified. The accused denied any involvement in the assault and two alibi witnesses were called by the defence. Mr. Chamney identified Mr. Nancoo as one of his attackers and in particular the one who sprayed him with what he claimed was pepper spray.
3: THE FACTS
[4] On the evening of May 29, 2013, at approximately 2:00 a.m., Mr. Chamney heard a knock on his back door. When he answered the door, he testified that "a kid said my vehicle was being smashed." He ran outside without putting on his shoes and wearing socks on his feet to see what was going on. He said that as soon as he came around his fence he saw Mr. Nancoo and was immediately blinded by some sort of spray which he believed to be pepper spray. He also alleges that he was punched and kicked before he retreated into his residence. The only evidence linking Mr. Nancoo to the incident is the identification by Mr. Chamney.
[5] The complainant and accused are familiar with one another. They have known one another for approximately two years. They have talked casually, according to Mr. Chamney, approximately 20 to 30 times.
[6] The complainant and his wife occupy the same residential complex as Mr. Nancoo and his parents. Mr. Chamney's apartment is on the main floor. According to Mr. Chamney, there is a "park" separating each unit. Presumably, he means a yard. His attacker was in his neighbour's yard. This is where the alleged assault took place.
[7] Mr. Chamney admits that it was dark and the only lighting in the area was from his neighbour's house. He said there was another person off to the left when he "rounded the fence." He said, "I couldn't make out that person because it was dark." He said he saw Mr. Nancoo "clearly."
[8] Mr. Chamney and Mr. Nancoo were on good terms until someone vandalized Mr. Chamney's wife's car. Mr. Chamney stated that he is certain Mr. Nancoo damaged the vehicle. He himself did not see it. Someone, he said, told him this. He did not provide the name of the person who allegedly gave him this information. He does acknowledge subsequently going to Mr. Nancoo's residence. He presented as angry and aggressive on that occasion as he wanted some restitution for the deductible.
[9] There has been substantial acrimony between the two men since then. Mr. Nancoo recounted several conflicts which he attributed to Mr. Chamney. Dennis Nancoo, the accused's father, testified that over the next several weeks several acts of vandalism of their car occurred, dog feces were smeared on their back window in the accused's name, a stick was left on their door step with writing to the effect of "Here's the stick back Kris - Mother Fucker payment is expensive."
[10] It was conceded by Dennis Nancoo that it could not be "for sure" that these occurrences were related to Mr. Chamney. At best, it is clear that in the very least someone bore Krishani Nancoo ill will.
[11] The accused did, however, testify that on one occasion as he was walking by Mr. Chamney's residence and Mr. Chamney said that he was "going to take a baseball bat to his fucking head." Mr. Chamney denied all responsibility in these events.
[12] The animosity between Mr. Chamney and Mr. Nancoo has significant bearing on the assessment of the evidence.
[13] I turn now to Mr. Chamney's identification of Mr. Nancoo.
[14] Mr. Chamney stated that he saw "his face – his face was lit up by the light from the door so I could see him clearly."
[15] In his examination in-chief, he was asked:
"Q. Where you said that you saw Mr. Nancoo are you able to tell us about the lighting, if any?
A. Yes there was – there was no lighting in that yard except what was on in the neighbour's house. Now where he was positioned the light from the house was shining directly into the corner where he was."
[16] In cross-examination, this is the exchange that occurred as to the lighting:
"Q. Okay but you're telling us today that when you – when you came outside and you saw Mr. Nancoo, although it was dark there was light on him and you recognized him right away?
A. He was down crouched between the neighbour's door and the fence. The neighbour had a light on inside and the way the curtains were angled the light was shining towards the fence where he was at.
Q. So the light was shining right on Mr. Kris Nancoo?
A. It was shining on that whole corner. I wouldn't say it was super bright but it was bright enough that I could see him. I would have been able to see anybody if they were standing there.
Q. And the best you can tell us is he was wearing dark clothing?
A. Yeah he was wearing dark clothing.
Q. You can't say whether he was wearing shorts, pants, a jacket?
A. No he was crouched down. I saw his face.
Q. But you're saying you saw dark clothing?
A. I saw his face. I saw a shirt. I saw from here up. It was dark."
[17] There was very little evidence of the physical configuration of the area where the assault took place. In assessing the reliability of Mr. Chamney's evidence, testimony as to the following would have been of assistance:
a) the size of the neighbour's yard;
b) the location of Mr. Chamney's door and the neighbour's door;
c) the location of Mr. Chamney's fence and the neighbour's fence;
d) the location of the table Mr. Nancoo was allegedly crouching behind relative to the fences and light source; and
e) the location of the window or door from which light was emanating.
[18] Mr. Chamney gave evidence that light was coming from the neighbour's door and on other occasions said it came from a window. The location of the other person seen by him as only a silhouette and its distance from Mr. Chamney is not established. This other person's positioning with regard to the light source is unknown as to explain how it is that Mr. Chamney cannot identify any of his features but clearly sees Mr. Nancoo.
[19] In a case involving identification as the one and only piece of evidence connecting an accused to an alleged offence, attention must be given to the most minute details in order to bolster the reliability of that evidence.
[20] It is argued that Mr. Chamney's evidence is recognition evidence. The two men have known one another for close to two years. According to Mr. Chamney, they have talked casually on 20 to 30 occasions. Familiarity adds weight to identification evidence but that evidence must be carefully assessed in the circumstances of each case. In R. v. Smith, 2011 BCCA 362 at para. 31, Neilson J.A. explains the use of recognition evidence in cases where the identity of the accused is in issue:
"Thus recognition evidence is not a distinct category. The concept of recognition in the context of eyewitness identification simply intimates the witness's evidence is based in part on his or her dealings with the accused before the crimes were committed. The extent and quality of those encounters is but one factor to be considered in weighing the witness's evidence."
[21] The identification of Mr. Nancoo occurred at a distance of "6 – 8 feet, ten at the most." Mr. Chamney said it lasted two seconds but he also said that he rounded the corner, he turned and saw Mr. Nancoo and was immediately sprayed. He was blinded by the spray. What strengthens Mr. Chamney's evidence is that he says he saw Mr. Nancoo's face. What weakens it is as follows:
a) The identification occurred in an area not well lit;
b) It was dark as it occurred at 2:00 a.m.;
c) Mr. Nancoo is 6'3" or 6'4". When he was identified it was impossible to determine the stature of the perpetrator as he was crouched down;
d) He was not able to identify his attacker's clothing. At one point he said he was wearing a shirt. He could only say his clothing was dark;
e) Mr. Nancoo is a black male. He has no facially distinctive features and he is being identified in an area that is poorly lit;
f) There are no identifying features or marks to assist in identifying the accused; and
g) The duration of his observation and the circumstances suggest that it was momentary and unexpected.
[22] There is also some inconsistency in Mr. Chamney's testimony as to the source of light. In examination in-chief he said: "his face was lit up by the light from the door so I could see him clearly" while in cross-examination he said the light was from "inside and the way the curtains were angled the light was shining towards the fence where he was at."
[23] Two alibi witnesses testified that Mr. Nancoo was elsewhere at the time of the assault. R. v. Partington, sets out the use of alibi evidence in a jury direction:
"1) that if they believed the alibi testimony given then, of course, they must acquit;
that if they did not believe such testimony, but were left in reasonable doubt by it, once again they must acquit the accused;
that even if they were not left in reasonable doubt by this testimony, then on the basis of all the evidence they must determine whether they were convinced beyond a reasonable doubt of the guilt of the accused."
[24] Once the alibi evidence has been heard, the burden on the Crown is set out in R. v. Nickerson, [1988] N.S.J. No. 257 (N.S.C.A.). Justice McDonald of that court states:
"The burden of proof was upon the Crown to establish beyond reasonable doubt that the alibi could not succeed. In my opinion, the learned trial judge erred in failing to relate the principle of reasonable doubt to the alibi evidence. He should also have instructed the jury that, even if they were not satisfied that the alibi was established by the evidence, yet, if the evidence in support of it raised in their minds a reasonable doubt as to the appellant's guilt, it was their duty to acquit him: see Lizotte v. The King, [1951] S.C.R. 115; 99 C.C.C. 113. Finally, the jury should have been directed that, even if they disbelieved the alibi evidence, then, on the basis of all the evidence, they must determine whether they were convinced beyond a reasonable doubt of the guilt of Mr. Nickerson. While it may not be necessary to give such detailed directions with respect to the defence of alibi in every case, it is my opinion that they certainly were called for here because of the extremely weak identification evidence."
4: POSITION OF THE PARTIES
[25] The Crown has urged me to reject the alibi witness evidence. Mr. Nancoo gave evidence that he arrived at the residence of Michelle Seremack and Rylee Seremack at approximately 10:00 p.m. on the evening of August 28 and that he slept over that night. He did not leave until the next morning. This evidence is confirmed by Rylee Seremack and his mother, Michelle Seremack.
[26] The reasons given for me to reject this evidence are:
a) Michelle Seremack has a lengthy criminal record for crimes of theft and fraud which should cause some pause as to her honesty;
b) Kylee Seremack is a good friend of the accused;
c) There was some delay in coming forward, however they did so while allowing police authorities sufficient time to investigate;
d) There was some discrepancy as to what information had been given by his father about the alleged offence. Mr. Nancoo said he was not aware of the identity of the victim after speaking to his father the next morning. The alibi witnesses believed he had told them; and
e) Mr. Nancoo did not testify that he met with both alibi witnesses the morning he left their residence. The alibi witnesses believe he did.
[27] The confusion in this evidence is as much evidence against collusion as it is in favour of collusion as alleged by the Crown. The alibi witnesses did not falter on the fact that Mr. Nancoo was at their residence on the evening in question. The criminal record of Ms. Seremack and her son's relationship to the accused cause me to have some concern in accepting their evidence.
[28] In considering the Crown's case, I have some pause in accepting Mr. Chamney's identification evidence. At trial, he described himself hurriedly rushing out of the house, rounding the fence and then, as he turned to look, he was immediately pepper sprayed but he saw Mr. Nancoo holding a canister. The fact that Mr. Nancoo was holding anything in his hand was never mentioned in Mr. Chamney's statement to the police. In describing what he saw of Mr. Nancoo that night in cross-examination, he said, "I saw his face, his shoulders and his arms. I couldn't see his clothing." If he could see a canister in his hands it is perplexing that he never told the police this critical information about the canister.
5: CONCLUSION
[29] There are, in my opinion, concerns with the alibi witnesses' testimony and Mr. Chamney's identification of the accused. Mr. Chamney had a significant dislike of Mr. Nancoo and this further compromises his evidence. I have to review the evidence in its totality in reaching a decision.
[30] Despite my concerns with the alibi evidence, I am left by their evidence with reasonable doubt as to the guilt of the accused. Although it is unnecessary to comment further, I was additionally left in reasonable doubt by the Crown's case which rested entirely on the identification of the accused by Mr. Chamney. There are significant frailties in any identification evidence but there are substantial frailties in the identification evidence in this case.
[31] The accused will be found not guilty.
Released Orally: September 17, 2014
"released to Judicial Research"
Ronald A. Marion Justice