RULING
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
ANDRE WILLIAMS
Court Information
Before: The Honourable Mr. Justice J. Bovard
At: Brampton, Ontario
Date: December 4, 2015
Appearances
Counsel for the Crown: C. Nadler
Counsel for the Accused: H. Gonzalez, Esq.
Hearing Information
Heard: In Writing
Transcript Ordered: December 17, 2015
Transcript Completed: January 2016
The Ruling
Introduction
This is a ruling on a motion for a directed verdict in the trial of Andre Williams on the charge that on December 24th, 2013, he breached the house arrest condition of his recognizance of bail.
The issue is whether there is sufficient evidence of identity to pass the Shephard test.
Crown's Evidence
Officer Perreault's Surveillance Observations
Officer Perreault was part of a surveillance team that was watching a person other than the defendant. He heard over the police radio that two males were seen leaving 1 Sandway Drive, which was the address that the officers were watching. Officer Perreault could see the males and the address they were surveilling, but not the front door of the house.
The information that members of the surveillance team conveyed was that the two males were walking northbound on Brisdale Drive, then eastbound on Fairhill Avenue. Officer Perreault drove past the two males and immediately recognized the defendant as one of the two males. He parked ahead of them and got out his binoculars to look back at them. He was approximately 100 meters from them and kept looking at them as they walked past him.
Basis for Officer Perreault's Identification
Officer Perreault gave two reasons for concluding that one of the males was the defendant.
First Reason: On June 29, 2012, he investigated a person that identified himself as Brendon Facey. Officer Perreault could not verify the identity of this person and released him after about 20 to 30 minutes without any charges being laid.
Officer Perreault testified that "later in 2013," but before the day in question, he was speaking to Officer Gauvreau about his investigation of "Brendon Facey." Officer Gauvreau had read his report of the investigation and told Officer Perreault that he had figured out the true identity of "Brendon Facey" through investigating other incidents in which a person had provided the same name fictitiously. Officer Gauvreau told him that the person was named Andre Williams.
Based on this information, Officer Perreault checked the mug shot ascribed to Andre Williams and saw that the mug shot was of the person that had identified himself as "Brendon Facey."
Second Reason: On the morning of the day in question, he was conducting compliance checks. He came across Andre Williams' name and checked to see if he had any outstanding charges. He saw that he was on bail and that he had a house arrest condition. He printed out the charges for which he was on bail and his mug shot (Exhibit 1) and put them in his duty bag.
Officer Perreault did not know who identified the person in the mug shot as being Andre Williams when the mug shot was put into the computer log. He said the person that did that would have been the one that took this person's fingerprints and took the mug shot when he was charged.
Officer Perreault had this material with him when he saw the person walking down the street that he identifies as Mr. Williams.
Continued Surveillance
The two males walked by a plaza and went southbound on Chinguacousy Street, and then westbound on Fandor Way. As they walked down Fandor Way, a pick-up truck pulled up. They got into the truck and returned to 1 Sandway Drive. Officer Perreault only saw them going towards the front of the house. He conceded that he could not remember if the two persons that got out of the truck were the same two that he had just seen walking down the street.
Officer Perreault saw the defendant's face "completely." He described him as "a pretty distinctive-looking guy." He also noted that he had checked the mug shot "literally hours" before. He said that "it was fresh in my head." His observation of him lasted from the time that the two males started walking to when "they got picked up and brought to Sandway." He estimated this as being between 15 to 20 minutes.
Arrest Attempts
Other Officers went to 1 Sandway Drive to arrest the defendant for breach of his recognizance, but they were not able to arrest him.
Four days later, on December 28, 2013, Officers Perreault, Sauve, Osborne, and Westbrook went to the house to arrest him. While they were at the house, Officer Perreault saw a woman that had been with Mr. Williams during Officer Perreault's previous investigation of the person that identified himself as "Brendon Facey."
After some heated discussion with the defendant and other occupants of the house, they arrested the defendant and took him to the police station.
Documentary Evidence
The Crown introduced as exhibits through Officer Perreault exemplified copies of the recognizance in question and of the Information on which it is based. The Information charges a person named "Andre Howard Williams." The recognizance is for "Andre Williams."
The mug shot, Information, and recognizance list the same date of birth for the person named: August 3, 1989. The Information for the charge before me has a date of birth of August 3, 1989.
In-Court Identification
In court, the Crown asked Officer Perreault if he saw anyone in court that "resembles the person that you believed to be Andre Williams on December 24th." Officer Perreault replied:
"Yeah, the person, yeah, it's Andre Williams that I saw that's in the back wearing the black shirt,"
indicating the defendant.
Officer Osborne's Evidence
Officer Osborne testified that he and Officer Westbrook went to 1 Sandway Drive on December 28, 2013 to arrest the defendant for breach of recognizance. Officer Westbrook effected the arrest. Officer Osborne identified the defendant in court as the person that Officer Westbrook arrested.
Officer Osborne said that he served the defendant with a notice of intent to produce at his trial the Information and the recognizance to which it relates. The notice is an exhibit on the trial. The defendant did not sign it.
That was all the evidence for the Crown. The defence brought a motion for a directed verdict.
Defence Submissions
Defence counsel, Mr. Gonzalez, argues that there is no admissible evidence that the defendant before the court is Andre Williams. The mug shot that Officer Perreault used to identify the defendant as Mr. Williams is hearsay.
He relies on Regina v. Williams, [2005] O.J. No. 4429, paragraph 4, in which Justice Caldwell granted a directed verdict in a similar case. Justice Caldwell said:
Even if I were to conclude that the photograph that the officer viewed was of the individual before the court, there is no admissible evidence before me that the correct name of the person in that photograph is Tamra Williams.
The naming of the photograph is essentially hearsay evidence, as the photo was obviously labeled by another individual at another time, and I have not heard from that individual, nor do I have any information as to how that individual determined that this was the name of the person that was photographed. As such, I do not accept that the name applied to the photo on the RIKKI system is evidence of the identification of the person in that photo, nor is it an identification of the individual that is seated before me in the court.
Justice Caldwell also found that the fact that the defendant attorned to the jurisdiction of the court was not evidence of identity. She stated in paragraphs 5 and 6:
The fact that the person responded to the name of Tamra Williams when it was called is not evidence, in my view, that was put before me during the course of the trial.
I do not find that the fact that she rose when the name was called is evidence of her identity. All that her response shows is that she is aware that she was charged under this name, but not that Tamra Williams, in fact, is her name, and as such I find that there is no evidence before me upon which I could find her guilty, and therefore I grant the defence motion for the directed verdict. The charge is dismissed.
With regard to whether attornment to the court's jurisdiction can be used as a proof of identity, in Regina v. Levene [2008] O.J. No. 5964, para. 3, a Crown appeal of an acquittal, the Summary Appeal Court found that:
The Crown should not be permitted to use the court process, either the accused's appearance in court, or the arraignment process, as a substitute for evidence.
Mr. Gonzalez argued that, likewise, Officer Perreault's evidence that another officer told him that he dealt with a person that identified himself as Brendon Facey, but was in fact Andre Williams, is inadmissible hearsay.
In addition, Mr. Gonzalez argues that since the Crown did not call "the original underlying officer for the original charges for which the recognizance was made," there is an evidentiary gap in the Crown's case. There is nothing linking the defendant to the certified copies of the Information and recognizance that were made exhibits.
In this regard, the court ruled in a similar case after a trial, Regina v. Ali [2011] O.J. No. 5950, para. 51, that:
Simply because the name and address of a person is the same on a Recognizance and on an Information charging an accused with breach of the Recognizance does not mean that the accused is the person named in those documents. The court may take judicial notice of the court's documents and their contents, but without an evidentiary link between the person named in the documents and the accused before the court, it cannot rely on the documents to prove that the accused is the same person as the one named in the documents.
Mr. Gonzalez pointed out that Justice Zivolak decided similarly in Regina v. Brown, an unreported decision dated July 28, 2015 in the Ontario Court of Justice. This was a decision made after trial. Justice Zivolak made a point of noting that the defendant's name, Sean Brown, was a "very general common both first and last name." The same can be said of the names Andre Williams and Andre Howard Williams.
Crown's Submissions
The Crown argues that all that is needed is Officer Perreault's in-dock identification of the defendant as Andre Williams, and that is sufficient evidence to pass the Shephard test, which is the test on a motion for a directed verdict.
It is important to note that Officer Perreault's identification of the defendant as Andre Williams is based on hearsay. To understand how he formulated his opinion that the defendant is Andre Williams, it will be helpful to quote from the transcript of his evidence. After Officer Perreault described his encounter with a person who he says falsely identified himself as Brendon Facey, he said that he spoke to Officer Gauvreau about the incident. On pages 11, 12, and 13 of the transcript of his evidence given on October 20th, 2015, the following exchange took place:
Q. Okay, did you do any follow-up investigation to determine what the identity of that person was?
A. Well, I remember speaking with somebody. He spoke to me, a Constable Gauvreau. He was out at 22 Division. As well, him and I are friends. We were just having a conversation about him reading that report that I had put on, and he had said to me that he figured out the actual identity of the person that I had dealt with that night because there was other incidents where he provided that name factitiously.
Q. Okay.
A. And that's then he told me it was Andre Williams.
Q. Okay, as a result of that information that you received, that the person was Andre Williams, did you ever try to conduct your own investigation to determine and satisfy yourself that that person that called himself Brendon Facey was in fact Andre Williams?
A. Well, I remember when he told me, I looked up the mug shot and I -- I -- I immediately recognized him as the person I had been talking to that night.
Further down on page 12, Ms. Nadler, the Crown, asked:
Q. Earlier, you had said that there were sort of two circumstances to lead you to a 100 percent belief that the gentleman that you saw on December 24th, 2013 was Mr. Williams. What was the other circumstance?
A. The other circumstance was actually that the morning of the December 24th, we were in the office and we were doing some administrative work. Part of the job that I do in the Street Crime Gang Unit is conduct compliance checks on people, and I was actually, more or less, going through my old files and remember coming across his name, and I ran him that morning to see what current charges he was on, and found that he was on house arrest resulting from Toronto charges.
Q. Okay, and?
A. So what I had done -- sorry, just to finish off.
Q. Sure.
A. What I had done is, I printed off his -- the current charges he was on and a mug shot of him and I threw it in my duty bag.
Q. Okay, and did you have that with you when you made the observation of who you believed to be was Mr. Williams?
A. Yes, I did.
Q. Okay, and do you see anyone in court that resembles the person that you believe to be Andre Williams on December 24th?
A. Yeah, the person, yeah, it's Andre Williams that I saw that's in the back wearing the black shirt.
Ms. Nadler said:
Indicating the defendant for the record, Your Honour.
Court's Analysis
Problems with the Evidence
I see two problems with the admissibility of this evidence. First, Officer Perreault's identification of the person in the mug shot as being Andre Williams is based on the hearsay evidence of the person that labeled the mug shot "Andre Williams," and on Officer Gauvreau's hearsay evidence that the person in the mug shot is "Andre Williams." Therefore, his identification of the defendant bootstraps on two sources of hearsay.
Secondly, a troublesome, but perhaps not fatal flaw in Officer Perreault's in-dock identification is that the Crown asked if he saw anyone in court that "resembles" the person that you believed to be Andre Williams on December 24th. Officer Perreault replied, "Yeah, the person, yeah, it's Andre Williams that I saw, that's in the back wearing the black shirt," indicating the defendant.
But this identification must be taken in the context of the question. Therefore, he was identifying the defendant as someone that "resembled" who he believed was Andre Williams on December 24th.
The Oxford on-line dictionary of the English language defines "Resemble" as to "have a similar appearance to, or qualities in common with (someone or something); look or seem like."
The dictionary gives examples in sentences as follows:
"Some people resemble their dogs"
and
"They resembled each other closely."
These examples show clearly that to resemble something is not to be that thing, or to look exactly like that thing.
Crown's Reliance on Photographs
Ms. Nadler argued that the police are entitled to rely on photographs to identify persons. In support of this position, she cited Regina v. G.M.S. [2008] M.J. No. 407, a decision made after a trial. However, in that case the defence did not question the identity of the person in the pictures used to identify the accused.
Ms. Nadler argued that the fact that Officer Perreault was present when the defendant was arrested and identified him as the person that he saw walking around the neighbourhood four days earlier is proof that the person is the defendant. That may be so, but it is not evidence that the defendant is the Andre Williams mentioned in the recognizance and the original Information that supports it.
Ms. Nadler also relied on the evidence that the same woman who was with the man that identified himself as Brendon Facey to Officer Perreault, and who Officer Perreault believes is the defendant, was at the house where the police arrested the defendant.
I do not see that this helps to prove that the defendant is the Andre Williams mentioned in the recognizance and the original Information that supports it, however.
The Longmuir Case
The Crown also relied on Regina v. Longmuir [1982] O.J. No. 119, an appeal of an acquittal. The court stated that Regina v. Oulette (no citation given) did not lay down:
"...any general principle to the effect that identity of names may not be some evidence of the identity of the person for which, indeed, there appears to be ample authority"
(para. 8).
However, the circumstances of that case are quite different from those in the case at bar. In Longmuir, the court dealt with a factual base that included the following evidence. At paragraph 3, the court stated:
Joanne McDonnell, the clerk of the Director at Frontenac Institution, produced from her custody three documents. The first document was a Warrant of Committal upon conviction for conspiracy dated January 19, 1979 in the Provincial Court (Criminal Division) for the County of Peterborough committing the offender named therein, Brent Stuart Longmuir, to imprisonment for two and one-half years. The second document was a Warrant of Committal upon conviction for public mischief, dated May 1, 1979 in the same court and committing the offender named therein, Brent Stewart Longmuir, to imprisonment for one month consecutive to any other time being served. The third document was a calendar of sentence under signature of the Clerk of the Peace for the County of Peterborough, dated October 31, 1979, recording that on October 31, 1979, in the County Court Judges Criminal Court for the said County, the offender named therein, Brent Stewart Longmuir, was sentenced to imprisonment for two and one half years consecutive to the sentence then being served pursuant to his conviction for robbery.
In paragraph 5 the court said:
Walter Tobin, a Living Unit Officer at Frontenac Institution was on duty on August 3rd, 1981. He was acquainted with the respondent in his capacity of Living Unit Officer and was in charge of the 4:00 p.m. to 12:00 midnight shift. Mr. Tobin took a bed count 21:00 hours at which time the respondent was present. At 22:05 count the respondent was missing. Mr. Tobin searched the building and found that the respondent had gone. During his search, he found a screen in a window in the east dormitory had been damaged. He also testified that no pass had been issued to the respondent. (emphasis added)
The court noted that although there was a discrepancy in the spelling of the accused's name in two of the documents, the birthdates were the same.
The court held, at paragraph 9, that:
We are completely of the view that the learned trial judge erred in holding that the identity of names in the circumstances of this case did not constitute prima facie evidence that the accused before him, and identified by the witnesses McDonnell and Tobin as an inmate of Frontenac Institution, was the person named in the documents. We are of the opinion that this evidence was sufficient to satisfy the evidential burden and was sufficient to permit the case to go to the jury if the trial had been before a jury. This case, however, did not depend solely upon the similarity of the names in the documents with that of the accused. There was, in our view, circumstantial evidence which was highly probative, namely, the evidence of Joanne McDonnell, that she knew the accused from Frontenac Institution and the evidence of the Living Unit Officer who was familiar with the respondent as an inmate of Frontenac Institution and who testified to his presence on August 3rd and his departure on that day. In our view, to hold that there was no evidence upon which a finding could be made that the accused was in lawful custody in Frontenac Institution flies in the face of common sense and no doubt the ordinary, intelligent citizen would think the law was strange indeed, if it required us to so hold. (emphasis added)
In overturning the trial judge, the court held that he was in error in finding that Regina v. Oulette precluded him from "Holding that the identity of names in the circumstances constituted a prima facie case". (emphasis added)
It is clear that in Longmuir there was cogent evidence that linked the accused to the person named in the documents in question. This is not the situation in the case at bar.
The Applicable Test
Since the case before me is a motion for a directed verdict, I must pay heed to the different tests in the above cited cases. Some are trial decisions and some deal with the test on a directed verdict.
The test that I must apply in the case at bar is set down in The United States of America v. Shephard (1976), 30 C.C.C. (2d) 424 at 427:
...the duty imposed upon a "justice" under s.475(1) is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is "sufficient" to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty. The "justice" in accordance with this principle, is, ....required to commit an accused person for trial in any case in which there is admissible evidence, which could, if it were believed, result in a conviction.
In Arcuri v. The Queen, 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.), at paragraph 25, affirmed that the Shephard test is the same whether the evidence is direct or circumstantial.
A "scintilla" of evidence is enough to justify a committal to trial at a preliminary hearing. Re Skogman and The Queen, 13 C.C.C., 161, at page 173.
At the preliminary hearing stage, any doubt concerning whether or not there is sufficient evidence to commit an accused to trial should be resolved in favour of the Crown.
Ex Parte Hill, 1970, Volume, 2, C.C.C., 264, at 272, Pennell J. (Ontario Superior Court).
Summary of Crown's Evidence
In the case before me, I would summarize the pertinent evidence adduced by the Crown as follows:
Officer Perreault investigated a person on June 29, 2012 that identified himself as Brendon Facey. A woman was with this person. Later, Officer Gauvreau told him that the person was someone named Andre Williams. This is hearsay.
Officer Perreault then checked the name "Andre Williams" on the police computer, which produced a mug shot with the name "Andre Howard Williams" with a date of birth of August 3, 1989. This is hearsay.
On the day in question, Officer Perreault performed a compliance check and found that the person in the mug shot was subject to a recognizance. This is hearsay.
Later that day, he saw the person in the mug shot walking around the streets. He identified this person as the person named in the mug shot: Andre Williams, with a date of birth of August 3, 1989. But this is based on the mug shot hearsay and on Officer Gauvreau's hearsay.
Officer Perreault saw a truck pick up this person and head towards 1 Sandway Drive. He did not see the person get out of the truck and go into this address.
Officer Perreault saw this person in the house at 1 Sandway Drive when he and other officers went there to arrest him. They left without arresting him.
Four days later, on December 28, 2013, Officer Perreault and other officers went to the same address and arrested the defendant.
Officer Perreault saw the same woman in the house that was with the person that identified himself as Brendon Facey, and whom Officer Gauvreau told him is named "Andre Williams."
Officer Perreault testified that the person that he saw walking around the streets and who was arrested is the same person that is depicted in the mug shot, whose name is Andre Williams. However, as seen above, this is based on hearsay.
He testified that this person was the defendant. I find that it is admissible evidence that the defendant is the person in the mug shot and is the person that Officer Perreault saw walking around the streets and who the police arrested for breach of recognizance, but it is not evidence that the defendant is the person who is named in the recognizance or in the Information in issue. The Crown has to adduce more evidence to establish this.
The Critical Gap in the Crown's Case
In order to do this, the Crown introduced as exhibits the recognizance at issue and the Information on which it is based. The Information accuses a person named Andre Howard Williams. It has the same date of birth as the mug shot. It lists the address as "NFA". There is no evidence that the accused's name in the Information is the defendant. Officer Perreault cannot supply this evidence because he did not arrest the person named in the Information and in the recognizance. There is no evidence linking the defendant to the person named in the recognizance.
Officer Perreault arguably identified the defendant as a person that "resembles" the person that he saw walking around the streets and who was later arrested at 1 Sandway Drive.
But the only evidence that the person that Officer Perreault investigated who said that he was Brendon Facey is a person named Andre Williams, with a date of birth of August 3, 1989, and is depicted in the mug shot, is hearsay from Officer Gauvreau and from the computer-generated mug shot.
I agree that there is evidence that Officer Perreault saw the person in the mug shot walking around the streets and that he was arrested for breach of recognizance.
Despite the problematic in-dock identification, I am prepared to accept that Officer Perreault provided some evidence that the person that he saw walking around the street and who was arrested is the defendant.
The problem comes with finding evidence that the person named in the Information and its accompanying recognizance is the defendant. What links the defendant to this person? His name? But his name is not distinctive. There could be other Andre Williams. And the information contains the middle name, "Howard." The recognizance does not.
The Information, the recognizance, and the mug shot lists a date of birth of August 3, 1989, but there is no evidence that the defendant's date of birth is August 3, 1989, so this does not provide the required link.
In the case at bar, it is crucial to focus on whether there is any admissible evidence that can pass the Shephard test. Hearsay is not admissible evidence.
I find that the Crown adduced evidence that the defendant is the person in the mug shot, but the Crown's case is fatally flawed because it did not produce admissible evidence to link the defendant to the person named in the recognizance and in the Information on which it is based.
Decision
Therefore, after considering all the circumstances, counsels' submissions, and the law, I find that the Crown did not adduce sufficient evidence to pass the Shephard test that the defendant is the person named in the recognizance or in the Information that supports it.
The motion for a directed verdict is granted.
The charge is dismissed.
Certificate of Transcript
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
I, Arlene Gorewicz, certify that this document is a true and accurate transcript of the recording of:
Regina v. Andre Williams
Ontario Court of Justice
held at 7755 Hurontario Street, Brampton
taken from Recording 3111 H9 20151204 100829
which has been certified in Form 1.
January 2016
ARLENE GOREWICZ