Court File and Parties
Court File No.: Not provided
Date: February 26, 2016
Location: London, Ontario
Ontario Court of Justice
Between:
Her Majesty the Queen
-and-
Jermaine Haughton
Counsel
For Jermaine Haughton: E. Ferris
For Crown: J. Carnegie
Reasons for Decision
Before: Justice Jonathon George
Overview of Charges
[1] Jermaine Haughton stands charged on an eight count Information. It is alleged he:
- assaulted Chantel Mitchell-Hamilton (count 1);
- entered forcibly upon the property of Ms. Mitchell-Hamilton (count 2);
- uttered a threat to cause death to Ms. Mitchell-Hamilton (count 3);
- possessed a weapon dangerous to the public peace (count 4);
- committed mischief by causing damage to Ms. Mitchell-Hamilton's property (count 5);
- criminally harassed her by repeated communications (count 6);
- breached a recognizance by not residing at Ms. Mitchell-Hamilton's residence (count 7);
- and lastly, that he breached a recognizance by failing to remain in his residence at all times, subject to certain exceptions (count 8).
Crown's Case and Defence Response
[2] One Crown witness testified - the complainant Ms. Mitchell-Hamilton. No defence was called. The defence admitted the jurisdiction of this court, and the existence of the bail order containing the two terms set out in counts seven and eight. The defence did not relieve the Crown of its burden to establish identity beyond a reasonable doubt.
[3] The Crown has not met its onus respecting each of counts three (death threat), and six (criminal harassment). I find as well it has not met its burden respecting count seven (residence breach).
[4] Respecting counts three and six, the evidence simply doesn't rise to the threshold of proof beyond a reasonable doubt. In fact each of these two counts would have been dismissed earlier had a non-suit application been brought. A prima facie case was not made.
[5] Count seven is somewhat more complicated as there is some evidence on this point. And while I don't argue it is open to me to find Mr. Haughton guilty of this offence, I am left with a doubt. More on this shortly.
The Central Issue: Identity
[6] I must first address the central issue, which is, has the Crown established identity beyond a reasonable doubt? If it hasn't, all counts must be dismissed.
[7] The complainant, and a man named Jermaine Haughton, were romantic partners. At the relevant time, she was the surety for a Jermaine Haughton, who was to be residing with her pursuant to a recognizance. The existence of this order, and presumably that the subject named therein is indeed the Jermaine Haughton before me, was admitted by the defence.
[8] I indicated, during submissions, that this issue would have been more properly dealt with as an application for a directed verdict. That is to say, if there is no evidence that the person before the court, in this case a man named Jermaine Haughton, had committed the alleged offences, then the Crown did not make a prima facie case. This is not how it unfolded. The defence did not bring that motion, instead advising he was calling no evidence. This is Mr. Haughton's right, and is a decision from which no negative inference can be drawn.
[9] The defence seemingly conceded there was some evidence as to identity through the complainant's use of the name 'Jermaine Haughton', but argued that that evidence was not sufficient to establish identity beyond a reasonable doubt. In other words, it was suggested that the Crown had not proven that the man standing before me, whose name is Jermaine Haughton, is the man who did what Ms. Mitchell-Hamilton alleges. Indeed, the complainant was not asked, nor did she on her own, point towards the prisoner's box indicating that that was the person who assaulted her. There was no in-dock identification. Nor did she testify to any physical characteristics of the man who she says entered her home and assaulted her.
Evidence Relevant to Identity
[10] I will summarize the evidence that is, at least arguably, relevant to identity:
In response to this question from the Crown: "how do you know Jermaine Haughton", Ms. Mitchell-Hamilton said "he is my ex-boyfriend…..we were together for roughly almost two years".
In response to the Crown's inquiry as to when their relationship ended, she indicated that it was "sometime last year…in 2015……roughly around September".
When asked "what happened", in reference to the allegations before the court, she testified that the events occurred sometime around the date their relationship ended.
She testified that "Jermaine came into my house" and confirmed that "Jermaine" was supposed to be at her house, on house arrest, and that she was his surety.
During the complainant's evidence in chief, she, on a number of occasions, in response to questions specifically about Jermaine Haughton (and Mr. Haughton), indicates clearly she knows to whom the Crown is referring. When the name "Jermaine Haughton" was used in a question, at no point does she seek clarification as to who that is, nor does she ever suggest she doesn't know who Jermaine Haughton is.
During the playing of a 911 recording in court, she was able to identify her voice, and the voice of "Jermaine", and that, though with some reluctance, she described being with "Jermaine" during the time that is captured within the 911 recording, going on to describe him entering her home looking for "another guy".
She testified at length about the recognizance Mr. Haughton was subject to, and of the supervisory role that was established for her in that order. She described how, at the point Jermaine Haughton came into her home, he was bound by that order. She spoke specifically about Mr. Haughton being subject to a term of house arrest, the very term that is contained in count 8, the existence of which was affirmed by defence counsel at the trial's onset. Of particular note is this exchange:
Crown: When that relationship ended, do you recall at that time whether Mr. Haughton was required to live at your address on house arrest?
Witness: Can you rephrase the question please?
Crown: You said the relationship ended prior to this happening?
Witness: Right.
Crown: When the relationship ended did you know whether Mr. Haughton was on an order to live at your house?
Witness: Yes I did know he was on an order to be on house arrest.
Crown: Was this at your residence then?
Witness: Yes
[11] The defence had no questions for Ms. Mitchell-Hamilton, and as such there was no suggestion of confusion or error in terms of the accused before the court.
Legal Principles on Identity
[12] Counsel made fairly lengthy arguments on this point. Several authorities were filed. There is a vast number of cases dealing with identification, but it is almost always in the context of an accused that is not otherwise known to the witness. The frailties, in those circumstances, are examined at length, and trial courts are directed to use extreme caution when relying upon such identification evidence. For example, and this is but one, in-dock identification, on its own, is so limited to be virtually useless. But this matter doesn't fit in that category.
[13] This case involves an intimate relationship between the witness and the accused. While its true identity was not admitted at the outset, and while it's true the Crown bears the burden on each and every element of each offence, including identity, the absence of an in court pointing towards the accused person is not fatal.
[14] None of this is to suggest that, when a witness and accused are familiar with each other, that the Crown is relieved of its burden respecting identity. There is no short cut then available to them. But what it does do is highlight how, in some instances, 'some' evidence is tantamount to proof of identity beyond a reasonable doubt. What do I mean? The defence conceded there was some evidence, in the form of a name, but that this didn't amount to proof beyond a reasonable doubt. Of course, there are two separate thresholds. Before a case can be put to a jury, the Crown must make a prima facie case, and if it can't, an acquittal should be directed. And, even after a conclusion that there is some evidence, that doesn't necessarily mean the criminal standard of proof has been met. But in a case such as this, there is an intersection with common sense, meaning in this context that - where the witness and accused named in the Information are well known to each other - some evidence, practically speaking, will likely amount to proof of identification beyond a reasonable doubt. Is it the person, or isn't it?
[15] Perhaps I am wrong about this, which still leaves me with the question of, is the person the complainant was speaking of, the person named in the Information and standing before me? First, the accused before the court is indeed the person who was charged with the offence. On this there is no question. This person, the accused Jermaine Haughton, is present. He was here on his trial date; he was present on the date I heard argument; and he is here today.
[16] Is he, however, the offender? Is he the person Ms. Mitchell-Hamilton spoke of in her evidence? And, if he is, what is the evidence that answers this question?
Analysis of Case Law on Identity
[17] For guidance I was referred to R. v. McConnell & Carmichael 2016 ONSC 945, a recent decision from Ontario's Superior Court. This case wasn't at all helpful. The trial judge there was grappling with the question of whether the accused was in actual (or constructive) possession of an illegal substance; specifically whether it had been established that one of the coaccused had occupied a particular bedroom in the searched residence. The only, even marginally relevant, passage is paragraph 58 which speaks to the standard of proof when the Crown's case is circumstantial.
[18] Some reliance was placed on Justice Nakatsuru's opinion in R. v. Levene 2007 ONCJ 6. That case is distinguishable. In Levene the accused was charged with public mischief, and the issue was whether the Crown had proven beyond a reasonable doubt that the accused provided a false name. In other words, was there proof of the falsity of the name given to police? Justice Nakatsuru engages in a thoughtful analysis, making several important points that are somewhat relevant, but not determinative on the identity issue. For instance, he, quite rightly, highlights the fact that the accused by his mere presence is submitting to the jurisdiction of the court, thereby conferring authority on that court to address his matter. He goes on to write that:
The fact that an accused does not dispute the jurisdiction of the court over his or her person is not equivalent to some proof of his or her true identify as an element of the offence the Crown must prove.
[19] I don't quibble with this at all. The mere fact the accused Jermaine Haughton stood up when asked to enter his pleas, is not proof that he is the person who did what Ms. Mitchell-Hamilton claims. In other words, the arraignment process is not evidence the Crown can use to prove a charge.
[20] The defence relies upon R. v. Coutu [2008] MBCA 151, a decision of the Manitoba Court of Appeal. At paragraph 66, the court writes:
….the burden on the Crown of proving guilt beyond a reasonable doubt includes proving beyond a reasonable doubt that the prisoner in the dock is the same person who the Crown alleges committed the offence. When proving identity becomes necessary, the Crown may discharge that particular burden by one or more evidentiary means. One such means, and common in a criminal case, is for the Crown to seek to elicit from eyewitnesses to the crime an in-court identification, even though such identifications are, like all eyewitness evidence, potentially unreliable.
[21] This is indisputably true. Of course in-dock identification, standing on its own, in most cases, and most certainly when a witness and an accused were previously unknown to each other, is virtually meaningless. But in this case that simple step would have been fatal to the defence position on identity. It would have contained no inherent frailties. In our case, this 'some' evidence (in court identification) would have amounted to proof of identity beyond a reasonable doubt, subject to challenge in cross. Which goes to show how the Crown has made things more difficult then they needed to be. Its problem, and it's a problem insofar as we are potentially not going to be dealing with the allegations on its merits, could have been easily avoided.
[22] Counsel referred me to the case of R. v. Watt 2014 ONCA 24, a decision of our Court of Appeal. This is also distinguishable. In that case the appeal was allowed, the court determining that the trial judge erred in finding that the mere act of a witness looking at an accused person in the courtroom can, standing alone, have evidentiary value. The court writes that "…..the mere act of looking at someone, particularly an accused in a courtroom, is simply too equivocal to warrant a finding of fact based on it". This of course is inarguably true, and if that were the state of the evidence in our case, I would have promptly agreed with the defence, and dismissed all counts against Mr. Haughton.
[23] In R. v. Chandra, 29 C.C.C. (2d) 570, on a charge of criminal negligence, the Crown's evidence relative to identity consisted of an officer adducing statements allegedly made by the accused to the officer at the scene of an accident. No witness, including the officer, was otherwise able to identify the person who committed the act. The appeal court overturned the trial decision that there was no evidence as to identity, stating the following:
In my opinion, mere identity of name affords some evidence of identity of a person. When accompanied by other factors such as the relative distinctiveness of the name, or the fact that it is coupled with an address, or appears upon a license or other document of significance, its weight is strengthened. The trier of fact when such evidence is before it, whether judge alone or jury, must consider it, weigh it and reach its determination. When such evidence is adduced to the trier of fact it cannot be said there is no evidence.
[24] Granted, Chandra is contemplating whether there is some evidence on identity sufficient to have the question put to a jury, and not specifically proof beyond a reasonable doubt, but this is highly instructive, if not precisely on par. Chandra's communications with the officer, and the information detailed and divulged in the course of those exchanges, was at least capable of supporting a finding that identity had been established. Noteworthy as well is the fact that none of the witnesses there, including the officer, knew the accused beforehand. They were strangers.
[25] Similarly, R. v. Vasquez-Rivera [1999] O.J. No. 1955 and R v. D.B. 2007 ONCA 368, [2007] O.J. No. 1893, both Ontario Court of Appeal opinions, stand for the proposition that the identity of names of the person complained of can constitute some evidence on the issue of identity. I appreciate the defence argument, which is this doesn't necessarily amount to proof on a criminal standard, but implicit within that principle is that it is at least capable of being sufficient proof. That conclusion would be open to a jury. As I alluded to earlier, in some instances, on the narrow issue of identity, some evidence inevitably equates to conclusive proof.
[26] Vasquez-Rivera holds particular weight, and is the most similar to our fact-set. Mr. Vasquez-Rivera was convicted of sexual assault upon the complainant, someone well known to him. They were not strangers. The complainant did not point out the accused in court. No question was raised about the identity of the accused. Defence counsel cross-examined the complainant but raised no concerns respecting the identity of the offender. Mr. Vasquez-Rivera appealed. The court, in dismissing his appeal, made these comments found at paragraphs two through four:
It is our view that the identification evidence provided by the complainant, when considered in the context of the entire proceedings, was sufficient to support the jury's verdict.
It is important to note that the appellant was well known to the 15 year old complainant. He was a friend of the family with whom she and her family had lived for some time and who had continued to regularly visit after he had moved out. During the course of her testimony, the complainant repeatedly referred to her assailant by name, Luis, or Mr. Vasquez-Rivera. Both Crown and defence counsel also repeatedly referred to the perpetrator by name.
No issue was raised with respect to the identification of the perpetrator at any time during the course of the complainant's testimony. It is apparent from the cross-examination of the complainant that the theory of the defence was that the victim disliked and resented Mr. Vasquez-Rivera and that of the complainant's testimony and that she had fabricated the allegations of sexual abuse. No suggestion was ever made during the course of the complainant's testimony that the person in court may not have been the "Mr. Vasquez-Rivera" being referred to in the evidence.
In these circumstances, we see no reason to doubt the correctness of the trial judge's finding that, although not done in the usual way, there had been some evidence of identification by the complainant. Although counsel for the appellant is correct in stating that the transcript does not reveal any express reference in words to the "gentleman in the court", the transcript is entirely consistent with the trial judge's finding that some identification had been made in a manner other than the usual way, by gesture or otherwise pointing out of the accused. Had defence counsel at trial pursued his argument, the Crown could easily have called further evidence on this issue or moved to recall the complainant since the case was not yet closed.
In these circumstances, the jury was entitled to conclude that identification had been proven on the basis of the uncontradicted evidence of the complainant, the manner in which it was given and the context of the entire proceedings.
[27] Vasquez-Rivera is an interesting case, as the issue arose at defence counsel's instance, but before the Crown had closed its case, leaving open the possibility for the Crown to recall the witness. This was not an option here as it would have been completely inappropriate to permit the Crown to reopen its case and then recall Ms. Mitchell-Hamilton. But it is similar in that the defence there did not bring a non-suit application.
[28] Beyond that, the issue remains the same. Does the evidence before me, establish beyond a reasonable doubt, that the Jermaine Haughton charged is the Jermaine Haughton who committed the alleged offences? In my view it does. I refer to the exchange between the Crown and Ms. Mitchell-Hamilton, reproduced earlier in these reasons, where the witness repeatedly responds to questions about and speaks interchangeably, of both 'Jermaine' and 'Mr. Haughton'.
[29] Why do I find that the testimonial reference to a name, which is identical to the name set out in the Information, is sufficient proof of identity? Beyond the court's reasoning in Vasquez-Rivera, which is applicable in our case, and beyond the defence decision to not call into question the witness's reference to her ex-partner Mr. Haughton, the existence of the bail order tips the balance far beyond what would have made this a close call and even slightly controversial. The existence of the recognizance was acknowledged, which necessarily means that the accused agreed he was bound by its terms, two of them specifically relating to Ms. Mitchell-Hamilton and her residence. This draws the link directly, completing the circle, leaving no doubt whatsoever that the person she was speaking of is indeed the person before the court; the same person who acknowledged the existence of the order, and its authority over him.
[30] See also R. v. Nicholson 1984 ABCA 88, which upheld a conviction where the witness (arresting police officer) failed to pick the accused from a crowd at his trial. On the issue of in dock identification specifically, the court said this:
The argument for the appellant before us proceeded on the assumption that a dock identification by an arresting officer is an integral part of the criminal process. This is a myth. That the Crown often relies upon such evidence should not permit us to think that a dock identification is a ritual as essential to a criminal trial as, say, the reading of the charge. The onus upon the Crown is to prove that the crime alleged has been committed and that the accused is the person who did it. This last, like any fact in issue, can be proved in many different ways.
[31] The Crown has not just presented some evidence as to identity, it has established that fact beyond a reasonable doubt.
Analysis of Remaining Counts
[32] Beyond the identity issue, has the Crown established guilt beyond a reasonable doubt?
Count Seven (Residence Breach)
[33] I will first return to my consideration of count seven (residence breach). On this charge, unlike the two counts which I have already dismissed (counts three and six), there is a fair bit of evidence. Some might even say compelling evidence. And while I don't argue it is open to me to find him guilty of this offence, I am left with a nagging doubt.
[34] While it is more probable than not Mr. Haughton was not living with Ms. Mitchell-Hamilton, as required, the evidence is so vague on this particular count as to dates and times, that an acquittal is required. There was evidence he was not there before the incident in question, but the best I can say is that his absence was for a day, and perhaps more, but on this point it's not entirely clear. There was conflicting evidence about when he was there, and whether he was welcome, which raises uncertainty about whether he was not residing there, and residing somewhere else, or just away for a period of time in contravention of the curfew provision.
[35] I could go on and describe other concerning aspects of the evidence respecting this count, but I won't. The Crown has not proven this offence beyond a reasonable doubt, and count seven is dismissed.
Counts 1, 2, 4, 5, and 8
[36] That leaves me to consider counts 1, 2, 4, 5 and 8. The Crown's case depends entirely on the evidence of Chantel Mitchell-Hamilton, its only witness.
Credibility Assessment
[37] It was somewhat difficult to assess her testimony; mainly because she was, at various points, lying, and at others being truthful. She was without a doubt lying about her inability to recall certain things. There was a pattern whereby she would disclose something with a fair amount of detail, and simultaneously be non-committal and evasive about something else, all under the guise that either she didn't remember or "chose not to remember". Only to have her memory completely and miraculously refreshed after, in some instances only mild persistence on the part of the Crown, and in others, upon listening to portions of the 911 call.
[38] To be fair, I do acknowledge the obvious which was, she did not want to be here. She appeared to have no interest in testifying about these matters. And in that sense, it was abundantly clear she was attempting to be a protector of the accused. I hold out the possibility I am wrong about this, and that perhaps she honestly does not remember or chose not to remember, because the events were so traumatic. I say that, because I have never been the victim of a crime and I would never presume to know what it's like to be one, or what it's like to have to testify against someone you love, or at one time loved.
[39] One might say, and I take it this is the defence position, that because of her testimony, and the manner in which she gave it, she is unreliable, and that it would be too dangerous to ground convictions based on her account. Otherwise put is to argue that this inconsistency, and related concerns, colour and diminish her entire account.
[40] The counter-argument is, when you consider her evidence, and the statements that can clearly and without question be attributed to the accused (as captured in the 911 call), that, when she does describe malfeasance on his part, it is eminently believable.
[41] Without question, should I accept (and I do) that Ms. Mitchell-Hamilton was a hesitant witness with no real and present interest in testifying against the accused, that to the extent she describes Mr. Haughton's criminal behaviour, by virtue of that reticence, gives it an added air of reality and enhanced reliability.
[42] It is well established that a trier of fact can accept some, none, or all of the evidence of a particular witness.
[43] In this case, the account given by the complainant, at least on those things she chose to give evidence and when she chose not to be obstinate, is not just plausible, but is to be believed. Beyond the general assessment that the complainant is believable, I have the 911 recording, which is so powerful that it erases any doubt on several things, including the fact Mr. Haughton was in her home; that he was not welcome there; and the fact he was hostile and angry in his interaction with her.
[44] I accept, beyond a reasonable doubt, that the two voices heard on the 911 call are in fact that of the complainant and the accused.
The 911 Recording
[45] Respecting the 911 call, and to address specifically the objection to its admission into evidence, I suspect there was some confusion on the part of defence counsel as to its potential uses. For clarity, the 911 call was not a prior consistent statement that could be used to boost the complainant's oath. It is the actual capturing of the event itself, which has immense probative value.
[46] It captures the accused stating he will stab someone (presumably the other guy who he thought was at the residence), which casts her evidence about him swinging, waving and holding a knife in a menacing way, in a compelling light. It is confirmatory.
[47] It lends credence to the notion he, without invitation, barged into her home. It confirms the presence of the children, which she testified to. It confirms her testimony that he was looking for the aforementioned 'other guy'. And it confirms her testimony that she wanted him out and that she told him as much.
Findings on Guilt
[48] Being mindful of the fact that assessing credibility is not a science, and that it is a determination of fact not to be arrived at after following a set of rules, after noting her demeanour, selective hesitancy, and that her account stands in harmony with all of the other evidence, I accept her testimony on each point where she doesn't offer the flimsy explanation that she doesn't remember.
[49] The Crown has established guilt on each of counts 1, 2, 4, 5 and 8.
The assault is made out by her being grabbed by Mr. Haughton in an aggressive way, while he was holding a knife. This was clearly without her consent and beyond de minimis.
The weapons violation speaks for itself. The mere possession of the knife, in the circumstances described, requires a finding of guilt.
The mischief is made out by Mr. Haughton's act of attending upstairs, into one of the children's bedrooms and damaging the TV. I heard and accept that this TV was not damaged prior to his arrival, and I accept that it was noticed to be damaged after inspecting it upon him leaving the residence. It is clear that everyone else who was present in the home, besides him, was on the main floor as he was upstairs. And that Ms. Mitchell-Hamilton heard loud noises while he was up there. In these circumstances, on this evidence, the only inference that could possibly be drawn is that the accused intentionally broke the TV. There is nothing competing with this version, and there is no other reasonable conclusion.
And finally, notwithstanding my earlier comments respecting residency, the breach allegation contained in count 8 is made out by the fact that, for a period of time, at least a day but probably more, Mr. Haughton was away from the home outside his curfew. There is simply no basis upon which I could conclude he was away pursuant to one of the allowable exceptions (i.e. while with Ms. Mitchell-Hamilton, or to attend a medical or counselling appointment).
Verdict
[50] To summarize, Mr. Haughton is found not guilty of counts 3, 6 and 7. I find him guilty of counts 1, 2, 4, 5, and 8.
February 26, 2016
Justice Jonathon George