Court File and Parties

Ontario Court of Justice

Date: August 26, 2016

Court File No.: London 15-13690

Between:

Her Majesty the Queen

— and —

Alannah McGill

Before: Justice A. Thomas McKay

Heard on: June 21, 2016

Reasons for Judgment released on: August 26, 2016

Counsel

Mr. Gideon Bloch — counsel for the Crown

Mr. George Grant — counsel for the defendant Alannah McGill

MCKAY J.:

Introduction

[1] On July 19, 2015, Melissa McIntyre and Matthew Rynen were living at an apartment in downtown London. They attended a wedding reception on the evening of July 18th. In the early morning hours of July 19, Mr. Rynen's brother dropped them off at their apartment. He dropped them at the rear entrance to their building, which is located in a laneway. They observed two women who appeared to be drinking beer by a car located in one of the parking spots allocated to their building. Mr. Rynen initiated the conversation with the women asking what they were doing in that location. He was concerned because the building had been broken into a few days earlier.

[2] That conversation quickly turned into a confrontation in which a knife was allegedly produced by one of the women. Ms. McIntyre and Mr. Rynen left the confrontation and went inside. They contacted the police. A short while later, a police officer arrived, spoke with them briefly, and then went into the laneway where the confrontation took place. The police officer spoke with two women in the laneway. He was of the view that the two women matched the description provided by Mr. Rynen. He arrested the two women. He searched the vehicle associated with the two women and located and seized a knife.

[3] Ms. McIntyre and Mr. Rynen subsequently attended at the entrance to the laneway and Ms. McIntyre identified them as the women involved in the altercation. Ms. McGill was one of the women found in the laneway. She was subsequently charged with the following three offences under the Criminal Code of Canada:

1. uttering a threat to cause bodily harm to Melissa McIntyre, contrary to section 264.1(2);

2. committing an assault on Melissa McIntyre, contrary to section 266;

3. carrying a weapon, specifically a knife, for a purpose dangerous to the public peace contrary to section 88(2).

Evidence

Melissa McIntyre

[4] Ms. McIntyre is 23 years of age. At the relevant time, she was residing in an apartment at 333 Richmond Street in London with her boyfriend and another roommate. There are four apartments in the building. There was parking space for three vehicles in the laneway behind the building. She and Mr. Rynen were out for the evening on July 18. They returned home after midnight, receiving a ride from Mr. Rynen's younger brother. The car that they were travelling in pulled into the laneway and they exited the vehicle. The vehicle left. They were at the rear entrance of the building, although they usually use the front entrance. They observed two women drinking beer beside a car which was parked in one of the three parking spots allocated to their building. They could observe beer on the roof of the car. The women were not known to them, and her understanding was that they did not live in the building.

[5] Mr. Rynen walked over to ask the women what they were doing. She followed him and the two of them took up a position less than one meter from the two women. Mr. Rynen was relaxed and calm and just asked why they were parking there. He explained that there was a break-in near the building recently and suggested that it would be great if they could move their car and take their party elsewhere. One of the women, who she identified as Ms. McGill, very quickly became defensive and agitated. Ms. McGill responded by saying, among other things, "who the fuck are you, the landlord"? It was clear that Ms. McGill was angry. Ms. McGill was wearing a black shirt with short sleeves, was Caucasian, and was approximately five foot four. Her hair was brown, and styled in the same fashion as it was in Court that day, described by Ms. McIntyre as a low ponytail. She was of average size, with a medium build. Ms. McIntyre only observed Ms. McGill drinking beer as she was not focused on the second woman. Ms. McGill was aggressive and doing most of the talking.

[6] After Ms. McGill responded in that fashion, Mr. Rynen said something, but Ms. McIntyre was unable to recall specifically what. Things escalated quickly then. Ms. McGill moved forward and reached for Ms. McIntyre's shoulder, saying "what's going to happen to your girlfriend if you don't let this go"? Ms. McGill had a grip on Ms. McIntyre's left shoulder and was holding a beer bottle above Ms. McIntyre's head. Ms. McIntyre felt threatened. Ms. McIntyre indicated that she was approximately one meter from a grey car when she was grabbed. The second woman stayed close to the vehicle.

[7] Ms. McIntyre began walking backwards towards York Street but Ms. McGill held on to her shoulder. Mr. Rynen moved closer to her. Ms. McGill's comments referenced Ms. McIntyre, but were directed to Mr. Rynen. Ms. McIntyre believed that she was going to be struck in the head with a beer bottle. When Mr. Rynen got close to her, Ms. McGill grabbed Mr. Rynen, and Ms. McIntyre believes that Ms. McGill let go of her at that point. The second woman began slowly approaching them. Ms. McIntyre was standing beside Mr. Rynen, and Ms. McGill was holding onto Mr. Rynen's shirt. The second woman approached and also grabbed Mr. Rynen's shirt with her left hand. The second woman had a knife in her right hand, and pointed the knife at Mr. Rynen's chest. The second woman said nothing; Ms. McGill continuing to talk.

[8] When Ms. McIntyre saw the knife, she grabbed Mr. Rynen and said "we have to go". Ms. McGill let go of Mr. Rynen, and Ms. McIntyre and Mr. Rynen walked to the front entrance of their apartment building, went inside and telephoned the police. Constable McNicol arrived and spoke to them briefly. She then went upstairs to their apartment. Ms. McIntyre confirmed that, of the two women, only Ms. McGill had her hair in a ponytail, and that it was the other woman who had possession of the knife. Mr. Rynen had not seen the knife, so Ms. McIntyre had to say something to end the conflict. For that reason, she grabbed Mr. Rynen and said "we need to go" firmly, and then pulled him away. She testified that she had either one or two drinks over the course of the previous evening at the wedding. Mr. Rynen had more than that, but was not drunk. Mr. Rynen was not aggressive; he spoke calmly to the two women.

[9] In cross-examination, Ms. McIntyre confirmed that she was quite upset when the police first arrived. She went upstairs briefly, but then Mr. Rynen came upstairs to get her to come back outside. She stood at York Street at the entrance to the laneway and spoke with the police officer. After the two women were arrested, she provided a description to a police officer and a detailed statement. In her statement, she indicated to the officer that Ms. McGill was wearing all black, with her hair slicked back in a ponytail. When she was giving the statement, she was still quite shaken. She does recall Ms. McGill saying that she lived in the adjoining apartment building. Mr. Rynen was telling Ms. McGill to get out of there, but in a friendly way, not being aggressive. She agreed that there was a sign posted in the parking area behind the building which indicated "authorized parking only".

[10] After reviewing her statement, she agreed that when the second woman became involved with Ms. McGill and Mr. Rynen, the second woman said words to the effect of "let's go, let them call the police". Mr. Rynen had never seen the knife, and she told him about the knife before the police arrived. The police asked her to identify the two women in the laneway. She peeked in the laneway and told the police that they were the two people involved. After that, she gave her description of the two women to the police. She was not asked to do anything else with respect to the identification of the women until her in-court identification at trial. She agreed that she expected to see Ms. McGill in the courtroom that day.

[11] When shown a knife which was seized from the vehicle by Constable McNicol, Ms. McIntyre testified that she had thought that the knife which she had seen that evening was silver, but that the overall details of the knife filed as the Exhibit looked the same as the knife that she saw that evening. The knife, which was filed as Exhibit 1, had a handle which was black in colour.

[12] In re-examination, she confirmed that the second woman was saying words to the effect of "let him call the police". However, after saying that, the woman came to Mr. Rynen, with the knife out at chest height, blade extended.

Matthew Rynen

[13] Mr. Rynen also testified that upon returning home from the wedding reception, he and Ms. McIntyre were dropped off in the rear of the residence by his brother. He observed two women standing in an area that was fairly dark. That seemed strange, given the break and enter of the bar and the neighbouring building a week earlier. He was concerned that there might be another break and enter. He shouted out at the women "what are you doing back here"? They responded by saying that they lived there. He indicated to the two women that they did not live there because he did not know them. Mr. Rynen indicated that he was slightly intoxicated at the time. Ms. McIntyre was standing beside him. The two women were approximately the width of two car parking spots away from him. The laneway was brightly lit, but the area of the parking spots and the building behind them was dark. Initially, he could not see the women well.

[14] He thought that the vehicle that the two women were standing beside was a dark grey Mustang. When he went back to the scene afterwards with the police officer, he realized that the car was actually a dark grey Audi. Originally, he could simply see silhouettes, but he knew that two people were women. As the conversation progressed, the women indicated that they did live there, and pointed at the neighbouring building. He told the women that the parking spots were for the building in which he resided. He remained stationary, and Ms. McGill came towards him from the car. Their conversation went back and forth, with Ms. McGill indicating things like "are you the landlord... what the fuck do you care… it is none of your business".

[15] Ms. McGill approached aggressively and grabbed Ms. McIntyre's shoulder or arm. Ms. McGill had a beer bottle in her right hand held over Ms. McIntyre's head. Ms. McGill was saying things like "well, what's going to happen to your girlfriend?" Mr. Rynen grabbed Ms. McIntyre and pulled her back and said "don't touch my girlfriend". He was not focused on the second woman because of Ms. McGill's involvement with Ms. McIntyre. He described the second woman's actions as just backing up Ms. McGill's words. Ms. McGill was the aggressor. Ms. McIntyre said "we have to leave and get out of here". Ms. McIntyre grabbed him at that point and pulled him away. They left the scene and went to the front of the building. Ms. McIntyre then told him about the knife being produced by the second woman, and he telephoned 911 immediately. The police officer arrived and spoke briefly with them and then drove to the laneway. He and Ms. McIntyre followed on foot and stood on the sidewalk on York Street, a distance of 10-20 feet from the parking spots allocated to his building. The police officer spoke with two women in the laneway. They were the same two women that he and Ms. McIntyre had encountered moments earlier.

[16] Ms. McGill was the only one of the two women who had her hair in a ponytail. When he provided his description to the police, he may have indicated that Ms. McGill was in a striped dress. In hindsight, he is not certain what Ms. McGill was wearing that evening. As the two women approached them, they came into the area of the laneway lit by the floodlight and he was able to see the two women. He believed that he gave the clothing descriptions to the police officer after the two women were arrested.

[17] Mr. Rynen testified that in reviewing his statement, he realized that he may have mixed up which woman held the knife, and which woman held the bottle. After reviewing the statement, the morning of the trial, he advised the Crown of that prior to testifying. He testified that he remembered the events more clearly the following morning, after he spoke with Ms. McIntyre. He agreed that in providing his statement to the police officer that evening, he identified the second woman as the one holding the beer bottle, and indicated that she wore a striped dress. After reviewing his statement that morning, he realized that the statement is incorrect in that regard. His statement to the police that evening indicated that the woman in the striped dress was off to the side and holding a full bottle of beer in her hand. In his statement, he told the officer that Ms. McIntyre had told him that the woman with a ponytail had the knife. On the day of trial, he could not recall what Ms. McIntyre had told him about which woman had the knife. He agreed that he probably repeated to the police what Ms. McIntyre told him about the knife. He agreed that in his statement to the police, he indicated that the second woman had her hair styled in a ponytail. He was uncertain of whether his memory on that point had changed because of his conversations with Ms. McIntyre.

[18] Mr. Rynen did not recall specifically being asked to identify anyone in the back laneway when the police officer was there. He could not recall whether he gave the police officer descriptions of the two women when the officer first arrived and had the initial conversation with them. He did recall that once the police officer had pulled his car into the laneway, there were lights everywhere. Before the arrival of the police car, the lighting in the laneway was a new LED floodlight above the garage which sits approximately 20 feet into the laneway from York Street on the left side. Other than that, there were a few other lights not well maintained by the bar which is located nearby.

[19] In re-examination, Mr. Rynen indicated that he was more calm the following day, and more sober. For those reasons, he remembered things more clearly the next day. Ms. McNeil had her hair styled in a ponytail, and was holding the beer bottle. The second woman was the person who had the knife.

Ryan McNichol

[20] Constable McNichol has been a member of the London Police Service since July 2005. He responded to the call which arose out of this incident at 1:14 a.m. It was classified as an urgent call. He arrived at 1:18 a.m. He met Mr. Rynen and Ms. McIntyre. Mr. Rynen was upset, but able to provide details of the incident. Ms. McIntyre was initially very upset and very nervous and not ready to speak with him. She went into her apartment. He and Mr. Rynen attended to the laneway and back of the building. He observed two women in the laneway who matched the description which he had been provided, standing beside a grey Audi.

[21] The description which he had been provided described the two women as follows: a Caucasian woman wearing a black and white horizontal striped skirt, with long brown hair. The information which he had been provided earlier indicated that she was the woman who produced a knife. The description of the second woman was Caucasian, approximately five foot six inches tall with a heavyset build and brown hair styled in a ponytail. The information provided to him was that she was the woman who grabbed Ms. McIntyre and held a beer bottle above Ms. McIntyre's head. When he observed the two women in the alley way, he was of the view that they matched the description.

[22] He obtained photo identification of the two women. He described the second woman, Chelsea Garcia, as a Caucasian female, five foot six inches tall, slim build, with long straight blond/brown hair, wearing a white tank top, and a long blue dress with horizontal white stripes. He described McGill as a Caucasian female, five foot four inches tall with a medium build, and long brown hair, wearing a black T-shirt, blue long shorts with black shoes. He believed that these were the two women involved in the incident. He had a conversation with Ms. Garcia regarding a knife. He arrested both women, provided the right to counsel and caution. Both women were placed in the rear of his patrol car. He subsequently searched the Audi automobile, and located the knife under the front passenger seat. The blade of the knife opened by centrifugal force and therefore met the definition of a prohibited weapon.

[23] Ms. Garcia was emitting a moderate odour of alcohol. Ms. McGill had a moderate odour of alcohol emitting from her breath. He noticed the odours standing approximately two feet away from Ms. Garcia and Ms. McGill. He looked around the area and located a shattered beer bottle approximately 15 feet from the car. He did not find any intact beer bottles. He had other officers attend and speak with Ms. McIntyre and Mr. Rynen to obtain statements from them.

[24] In cross-examination, Constable McNichol agreed that the two apartment buildings in question appear to be one continuous building. He indicated that Ms. McIntyre identified both Ms. Garcia and Ms. McGill prior to the arrest. The original description of the women was provided to him by Mr. Rynen, because Ms. McIntyre was so upset at that point. However, he also indicated that it was possible that the original descriptions were jointly provided by Mr. Rynen and Ms. McIntyre. Other than the identification provided by Ms. McIntyre at the scene, there were no additional identification steps taken. He did not recall Ms. McGill having her hair styled in a ponytail when he dealt with her.

[25] The defence did not call evidence.

Positions of the Parties

The Crown

[26] The evidence of the two complainants regarding identification, combined with the fact that Ms. McGill was located at the scene of the confrontation minutes later and identified at the scene as one of the individuals involved in the altercation is sufficient to prove beyond a reasonable doubt that Ms. McGill committed the offences.

The Defence

[27] The defence takes the position that the circumstances of the identification are gravely tainted. The detailed description of the two women was not given until after the women were arrested and observed in the laneway with police present. Neither woman had her hair styled in a ponytail when they were arrested. Of the two complainants, Mr. Rynen and Ms. McIntyre, police described Mr. Rynen as the calm one. However, there are significant differences between his statement to police given shortly after the events, and his testimony at trial regarding which woman took what action. It is human nature for individuals to discuss events after the fact, but in this situation the recollections of Ms. McIntyre and Mr. Rynen are so intertwined that it is impossible to accurately determine what their independent recollection is.

[28] In addition, the defence points out that the weapons charge against Ms. McGill specifies that she did possess a knife for a purpose dangerous to the public peace. The evidence at trial does not attribute possession of the knife to Ms. McGill.

Applicable Legal Principles

Eyewitness Identification

[29] The potential frailty of eyewitness identification evidence is well-known. The danger associated with eyewitness in-court identification is that it is deceptively credible, mainly because it is honest, sincere and has the potential to have a dramatic impact on the trier of fact. History has shown a very weak link between the confidence level of a witness and the accuracy of the witness' identification.

[30] Visual or sensory identification evidence is lay opinion evidence. Essentially, such testimony amounts to a statement of recognition. The dangers of such evidence are well known. The law is full of examples of the erroneous convictions based upon honest and convincing, but mistaken eyewitness identification. The concern is heightened in situations where the opportunity of the witness to observe was under poor conditions, improper identification procedures were employed, or suggestive influences have occurred. If there is a notable dissimilarity between the initial description furnished by the witness and the suspect who is later identified, and there is no other evidential support for that identification, the purported identification must be viewed with caution. The assessment of the probative force of eyewitness evidence generally does not turn upon credibility assessments, but rather on considerations of the totality of the circumstance pertinent to that identification.

[31] Where the first identification of the accused is made in court and there are problems with the quality of the initial observation of the suspect, the in-court identification is entitled to virtually no weight. However, where the in-court identification is supported by distinctive details, prior familiarity, or previous forms of identification such as properly conducted lineups, the value of the in-court identification can be significantly strengthened.

[32] Out-of-court identifications made by a witness may be admitted for their truth and for credibility purposes in certain situations. Generally speaking, for identity opinion to be admissible the witness must have a prior opportunity to observe the person being identified, must identify that person out-of-court, often by physical descriptors and in most cases by identification procedures such as a photo array. Finally, the witness must communicate the opinion regarding identity as part of an in court identification. The strength of an eyewitness' identification depends, to a great extent, on the facts supporting that opinion.

[33] In R. v. Tat, 117 C.C.C. (3d) 481, Doherty, J.A., speaking for the Ontario Court of Appeal, in paragraphs 35 to 37, described the admissibility of eyewitness identifications as follows:

"My review of Canadian case law reveals two situations in which out-of-court statements of identification may be admitted. Firstly, prior statements identifying or describing the accused are admissible where the identifying witness identifies the person at trial. The identifying witness can testify to prior descriptions given and prior identifications made. Others who heard the description and saw the identification may also be allowed to testify to the descriptions given and the identifications made by the identifying witness… The probative force of identification evidence is best measured by a consideration of the entire identification process which culminates with an in-court identification. … Where a witness identifies the accused at trial, evidence of prior identifications made and prior descriptions given by that witness did not have a hearsay purpose. … When such evidence is tendered, the trier of fact is not asked to accept the out-of-court statements as independent evidence of identification, but is told to look to the entirety of the identification process before deciding what weight should be given to the identifying witness' testimony. …

The second situation in which out-of-court statements of identification have been admitted arises where the identifying witness is unable to identify the accused at trial, but can testify that he or she previously gave an accurate description or made an accurate identification. In these circumstances, the identifying witness may testify to what he or she said or did on those earlier occasions and those who heard the description given by the witness or witness the identification made by the witness may give evidence of what the witness said or did."

Analysis

[34] I will begin by addressing the issue raised by the defence that the weapons charge against Ms. McGill specifies a knife, when the evidence at trial suggests that she possessed a beer bottle for a purpose dangerous to the public peace. The Crown takes the position that section 601 of the Criminal Code allows the Court to make an amendment to the Information in order to have it conform to the evidence. The Crown position is that the accused would not be misled or prejudiced in her defence, nor would any injustice be done by such an amendment. I agree with the position of the Crown. The defence knew the case which it had to meet. There is no trial unfairness to Ms. McGill if the Court amends the Information to allege possession of a beer bottle for a purpose dangerous to the public peace. That amendment will be made. I turn next to the issues related to the identification of Ms. McGill as the perpetrator of the offences.

[35] In this case, the Crown's civilian witnesses had a face-to-face confrontation with two women in the laneway. The portion of the laneway where the confrontation took place was relatively well lit and therefore conducive to effective observations. Mr. Rynen was slightly intoxicated, but Ms. McIntyre was essentially sober. The two women were initially at a car in the laneway. Only four people were present in the laneway. I accept the evidence of Constable McNichol that he received a description of the two women from the Crown witnesses.

[36] I am satisfied that prior to attending in the laneway, Constable McNichol received an initial description of the two women from Mr. Rynen or from a combination of Mr. Rynen and Ms. McIntyre. The woman who was reported to have held the knife was described as Caucasian, wearing a black and white horizontal striped skirt, with long brown hair. The description of the woman who had assaulted Ms. McIntyre was Caucasian, approximately five foot six inches tall with a heavyset build and brown hair styled in a ponytail.

[37] Minutes later, Constable McNichol attended in that laneway and found two women generally matching the description, near a motor vehicle generally matching the description of the motor vehicle provided by Mr. Rynen. He had a conversation with those women. There were no other people in the laneway when the officer attended. He obtained their photo identification. He viewed registration documents for the motor vehicle which indicated that Ms. Garcia was the owner. He described the two women as follows: Ms. McGill was Caucasian, five foot four inches tall with a medium build, long brown hair, wearing a black T-shirt, with blue long shorts and black shoes. The second woman, Ms. Garcia, was Caucasian, five foot six inches tall, with a slim build and long straight blond/brown hair. She was wearing a white tank top and a long blue dress with horizontal white stripes.

[38] Constable McNichol arrested Ms. McGill and Ms. Garcia. A subsequent search of the motor vehicle resulted in the discovery of a knife under the front passenger's seat.

[39] After Ms. McGill and Ms. Garcia were arrested, Ms. McIntyre identified them from a distance of 10 to 20 feet away as the two women involved in the altercation. This happened minutes after the altercation occurred.

[40] I am satisfied that the Crown has proven that Ms. Garcia and Ms. McGill were the two women in the laneway who became involved in the confrontation with Mr. Rynen and Ms. McIntyre. The next question to address is the issue of whether the Crown has proven that Ms. McGill was the woman who assaulted and threatened Ms. McIntyre and whether she was in possession of the beer bottle in the dangerous manner described by the Crown's witnesses.

[41] Mr. Rynen's testimony regarding identification can be summarized as follows: during his initial conversation with the police officer, he provided a description of both women. In that description, he may have indicated that Ms. McGill was wearing a striped dress. In fact, he is not certain of what she was wearing that evening. He believes that he described the clothing that the two women were wearing after having seen them in the laneway after their arrest. He recalls Ms. McGill having her hair styled in a ponytail. In his detailed statement to the police after the arrest, he may have confused which of the women had the knife, and which had the bottle. In the statement, he indicated that the woman in the striped dress had the beer bottle in her hand. That was incorrect.

[42] He testified that he recalled the events better the next day after having spoken to Ms. McIntyre. In his detailed statement, he told the police officer that the woman wearing her hair in a ponytail had the knife. He is unable to recall specifically what Ms. McIntyre told him about the knife, but probably simply repeated that to the police officer. In his detailed statement to police, he indicated that the second woman, and not Ms. McGill, had her hair in a ponytail. He was uncertain of whether his recollection of the events had changed because of his conversations with Ms. McIntyre. He did not recall being asked to identify anyone in the laneway after police arrival.

[43] Given the inconsistencies between the statement given that evening and his testimony at trial, Mr. Rynen's evidence of identification as it relates to whether Ms. McGill or Ms. Garcia assaulted and threatened Ms. McIntyre with the beer bottle has significant flaws and is of little weight. In my view, he was a well-intentioned witness. It may be that some combination of adrenaline, alcohol consumption and a reliance upon conversations with Ms. McIntyre impacted his evidence. In any event, the inconsistencies are such that the evidence is considerably weakened.

[44] With respect to Ms. McIntyre, she obviously had the opportunity to effectively observe Ms. McGill. They were at very close proximity during the altercation, and I have found that the area of the altercation was significantly illuminated by artificial lighting. Ms. McIntyre had not consumed any significant amount of alcohol during the course of the evening.

[45] Constable McNichol testified that Ms. McIntyre viewed the two women from the entrance to the laneway and identified them as the parties to the altercation. Ms. McIntyre testified that she looked into the alleyway to identify the women after the women were arrested. After doing so, she provided a description and a detailed statement to police. In it she described Ms. McGill as wearing all black, with her hair slicked back in a ponytail. In her direct evidence at trial, she identified Ms. McGill as her assailant, and described Ms. McGill's appearance that evening as Caucasian, approximately five feet four inches tall, with brown hair in a low ponytail. In addition, she indicated that Ms. McGill was wearing a black shirt with short sleeves and had a medium build, of average size.

[46] There are distinctive differences between the clothing worn that evening and the physical appearances of Ms. Garcia and Ms. McGill. I am satisfied that Ms. McGill and Ms. Garcia wearing the clothing described by Constable McNichol that evening. Specifically, Ms. McGill was wearing a black T-shirt, blue, long shorts and black shoes. She was described as having a heavier build than Ms. Garcia. Ms. Garcia was wearing a white tank top and a long blue dress with horizontal white stripes. This was not a situation where the two women would be virtually indistinguishable to Ms. McIntyre.

[47] The initial information provided to Constable McNichol was that the woman in the horizontal striped dress held the knife; the other woman grabbed and threatened Ms. McIntyre.

[48] Ms. McIntyre had the opportunity to closely observe Ms. McGill during the altercation. I am satisfied that Ms. McIntyre did so, and was able to distinguish between the two women when she identified which woman grabbed her and held a beer bottle over her head. The defense emphasizes the fact that the police officer did not indicate that either Ms. McGill or Ms. Garcia had their hair styled in a ponytail when he came into contact with them. The officer could have simply failed to note that. Alternatively, the hair could and taken out of ponytail by the time the officer arrived on scene. In any event, I am satisfied beyond a reasonable doubt that the evidence establishes that Ms. McGill was the individual who grabbed Ms. McIntyre, held a beer bottle over her head, and made the threatening comments referencing her, but directed to Mr. Rynen. The circumstances of the identification process as a whole significantly strengthen Ms. McIntyre's in-court identification of Ms. McGill, so that the evidence supports convictions.

Conclusions

[49] The Crown has proven each of the three offences beyond a reasonable doubt, and there will be findings of guilt.

Released: August 26, 2016

Signed: "Justice A. Thomas McKay"