Court Information
Ontario Court of Justice
Date: March 27, 2017
Court File No.: Toronto Region – College Park
Information No.: 16-75002394
Parties
Between:
Her Majesty the Queen
— AND —
Tyler Williams-Dennis
Judicial Officer and Counsel
Before: Justice M. Wong
Heard on: February 21, 22, and 23, 2017
Reasons for Judgment released on: March 27, 2017
Counsel:
- Y. Laine, counsel for the Crown
- C. Levine, counsel for the accused Tyler Williams-Dennis
Judgment
Wong, J.:
Introduction
[1] Tyler Williams-Dennis pleaded not guilty to robbery, forcible confinement, assault with a weapon, threatening bodily harm, and possession under. Where the crown had an election they proceeded by indictment, and Mr. Williams-Dennis elected trial before this Court.
[2] An agreed statement of fact was filed and the crown called six witnesses. The defence did not call any evidence. The only issue is identification.
Position of the Parties
[3] The Crown's theory is that Mr. Williams-Dennis was the principle player in the robbery of two teenagers selling a pair of running shoes. The crown relies on the direct evidence of one of the victims, L.G., who selected Mr. Williams-Dennis from a photo line-up and who also identified him in court. As well, the crown relies on circumstantial evidence: security videos from two apartment buildings and a Bank of Montreal, which although do not capture the actual robbery, constructs a time line of events that the crown submits puts Mr. Williams-Dennis with other suspects, in and around where the robbery occurred. The crown also asks the Court to accept P.C. Wayne Alexander's identification of Mr. Williams-Dennis from the security video. P.C. Alexander's opinion evidence was subject to a Leaney voir dire, which defence counsel reasonably conceded met the threshold test of admissibility. Lastly the crown asks the Court to undertake a R.v. Nikolovski comparison of Mr. Williams-Dennis' in-court appearance with the video surveillance evidence which together with the other evidence in the case, should satisfy the Court that the defendant was involved in the robbery.
[4] Defence counsel argues first, regarding the direct evidence that the witness' initial description of the suspect was generic. Secondly, that the photo line-up the witness was shown was highly flawed because no one but Mr. Williams-Dennis was wearing a red hoodie, as described by the victims. As well, counsel submits there are inconsistencies in the witness' description. Defence counsel also argues the poor quality of the security video and still photos prevents the court making a positive comparison to the person on the video with Mr. Williams-Dennis. Counsel argues the police had tunnel-vision, focusing on his client albeit a month after the incident because Mr. Williams-Dennis was known to police. Lastly, counsel submitted that should the Court find beyond a reasonable doubt Mr. Williams-Dennis was involved in the robbery, his client should be acquitted of forcible confinement because, at times, the victims could have escaped, but they didn't; as well counsel argues because the Y.C.J.A. co-accused pleaded guilty to robbery, this somehow restricts and prevents the Court from finding Mr. Williams-Dennis guilty of the additional count of forcible confinement.
[5] I will first begin with a summary of the evidence and some of the facts that is not disputed.
Summary of the Evidence
[6] On April 30, 2016, L.G. age 15, went to 25 Henry Lane Terrace, an apartment building located in the Esplanade and Jarvis area in downtown Toronto to sell a pair of Air Jordan running shoes to T.H. for $250. Mr. L.G. said he and "T." went to the same school and, at the time, he considered T. a pretty good friend". Mr. L.G. went with his two friends, M.A. and G.R..
[7] Upon arriving at 25 Henry Lane Terrace, Mr. L.G. said T. led him up a stairwell to a rooftop patio while M.A. and G.R. waited downstairs. Mr. L.G. said T. led him to a secluded patio area, where T. was "chilling" with four other males; Mr. L.G. said he also recognized C.K. from their school.
[8] According to Mr. L.G., T. tried on the sneakers, but said he didn't have the money and would pay him later. Mr. L.G. said "no": that if he didn't have the money then T. should give him back the shoes. T. repeated that he wasn't going to pay. Mr. L.G. said he was outnumbered and therefore, he was not in a position to argue so he turned to leave. However, someone from T.'s group told Mr. L.G. to call and tell his friends to come up.
[9] M.A. and G.R. had been waiting down stairs. Mr. M.A. testified L.G. called him and told them to come upstairs. Mr. M.A. said L.G. sounded rushed so he sensed that something was not right. Nonetheless, Mr. M.A. and G.R. went up the same stairs to the rooftop patio.
[10] In court, both Messrs. L.G. and M.A. were asked to describe the persons on the rooftop.
a) L.G.'s Descriptions of the Suspects
[11] According to Mr. L.G., there were five males on the rooftop and later two females joined them.
T.H.: Age 13 – (2 years younger than Mr. L.G.); black, tall like 5'11", fairly skinny and short hair. Clothing: thinks he was wearing shorts, hoodie and baseball cap.
C.K.: Age 15; approximately 5'9" tall, pretty chubby with a round face, black, medium length hair. Wearing all black: black jeans, black jacket and a black hat.
Unknown person #3: Male, black, height – approximately 5'7 or 5'8", wearing a red hoodie, jeans, green and pink shoes (Nike Air Force Ones). Hair: medium length cornrows– almost to his shoulders. Around 18 years old, pretty short, and average build. Anything else distinctive? A gold grill on the bottom of his teeth and possibly a moustache.
Unknown person #4: white male, approximately 5'10" with long brown hair down to his shoulders. Age: approximately 16-17 years. Wearing a Roots track suit, pants and hoodie blackish grey/black and white specks in colour. Possibly had a thin moustache and the person wore a gold necklace/chain.
Unknown person #5: Approximately 23-25 years old. Tall, around 6'2"; a beard; the person wore his hood up, but he could tell his hair was short. Fairly strong looking, strong build.
[12] In court, Mr. L.G. identified Mr. Williams-Dennis as the male in the red hoodie. Mr. L.G. had also previously selected Mr. William-Dennis' RICI photo from a photo line-up, which I will discuss momentarily.
b) M.A.'s Descriptions of the Suspects
Male #1: The person who let them into the stairwell he knew as "T.", around 15 years old, approximately 5'10"; dark skinned, short dark hair, but did not remember his clothing.
Unknown male #2: Dark skinned; approximately 18 years old; 6 feet tall; average build, dark beard and had a hood up so he could not see his hair. Clothing: he believed he wore a black sweater.
Unknown male #3: male, 5'7", skinny; dark skinned; wearing a red sweater and sweat pants. Braided hair, grill on his teeth. Approximately 20 years old. This person had the knife. Nothing distinctive about his face.
Unknown male #4: white; age 18, 6 feet tall, average build, dreadlocks, to his shoulders. Clothing: does not recall what he was originally wearing, but this person changed into a grey Roots Track suit; wore a gold chain around his neck.
Unknown male #5: age 15, dark skinned (later learned his name was C. but had not met him before). Approximately 5'8; a bit like larger in size than normal. Short black hair; could not recall his clothing.
[13] Mr. M.A. did not pick out Mr. Williams-Dennis or anyone else from the photo line-up. As such, in court Mr. M.A. was not asked by the Crown nor did he point out Mr. Williams-Dennis in court.
[14] According to both Mr. L.G. and Mr. M.A., the white guy with the long dreadlocks asked to see G.R.'s cell phone (both witnesses said the "white guy with the long hair" left at some point, changed his clothes and returned wearing a Roots track suit/sweat pants). Both witnesses said the white guy took G.R.'s phone and played music. L.G. said one of the suspects took his cell phone but they gave it back to him because the screen was cracked.
[15] Both witnesses also said the male with the red sweater patted down Mr. M.A. and took his cell phone and wallet. Mr. M.A. said the same male looked through the wallet, did not take anything and returned it. Both Messrs. L.G. and M.A. said the male in the red sweater asked Mr. M.A. for his cell phone password. Mr. M.A. said he gave the password because the group were "coming up into our faces" and they were "demanding" and asking for their things "forcefully".
[16] Both Messrs. L.G. and M.A. said the male in the red sweater asked M.A. for his iCloud password for his iPhone 6. At first, Mr. M.A. said he refused because he knew the person wanted to reset it. (This same male in the red sweater had just sold G.R.'s phone to another person in the group). Eventually Mr. M.A. said he told them his iCloud password and someone reset his phone.
[17] Someone then found Mr. M.A.'s mother's debit card. Mr. M.A. said the male with the red sweater asked him for his mother's PIN number, but initially he refused to tell him. Mr. M.A. said the male in the red sweater asked one of his friends for his knife, which he was given. The male in the red sweater then stood about a foot away with the knife and "fake stabbed him", which the witness demonstrated by bending his right arm at the elbow, extending it forward and then retracting his arm. The same male then pressed the knife to Mr. M.A.'s abdomen saying, "What is the fucking PIN number?" Mr. M.A. said his friend G.R. signaled that he should tell him the PIN, which Mr. M.A. said he finally gave because he was scared. Having divulged the PIN number, Mr. M.A. said everyone including the girls left except C., who remained behind to guard him, L.G. and G.R..
[18] Similarly, Mr. L.G. also described and demonstrated in court the male with the cornrows waving the knife and saying to Mr. M.A. words to the effect of "give me the PIN or I'll slice you". Mr. L.G. said the male also told them they were lucky he hadn't stabbed them. The same male said he was going to the bank and withdraw money, warning them that if he had been given the wrong PIN number, he would call his friend.
[19] Both witnesses described the knife: Mr. L.G. said it was a black handled, spring assisted knife with a 4-5 inch straight edged blade. Mr. M.A. said the knife had a black handle, the blade was flat and approximately 4 inches long. Mr. M.A. said he had seen similar knives at camp.
[20] As I mentioned, Mr. M.A. testified two girls later arrived on the patio and he described them as follows:
Asian, around 16, wearing leggings but he could not remember the colour. Around 5'8" tall, average body type.
White female, around 15 years old, 5"8" and average body type.
[21] According to Mr. L.G., as the males were about to leave for the bank with M.A.'s mom's debit card and PIN number, two girls showed up.
Short Asian female, wearing possibly a blue sweater and pink shoes. "Really short" around 5'4" tall, wearing glasses, looked pretty young "maybe 13 or 14 years old", and skinny.
White female, average height around 5'7" tall, average/skinny build, fairly long brown hair (halfway between her shoulders and elbow), wearing all grey clothing, around 16 or 17 years old.
[22] Mr. L.G. said as the group were leaving, T.H. took off the running shoes he had stolen from him, gave them to the Asian girl, who put the shoes in a large "camo" backpack she was carrying.
[23] At 3:40:19 pm, video taken from a Bank of Montreal ATM shows two young women using M.A.'s mom's BMO bank card and withdrawing $1000 from her account (see Agreed Statement of Fact marked Exhibit 1 as well the BMO bank video and still photos marked as Exhibits 9 and 10).
[24] According to Messrs. L.G. and M.A., they waited on the terrace with C. until C.'s phone rang; signaling that the PIN number worked and they had withdrawn some money. Both victims said the three men returned including the guy with the red hoodie, who had $500. According to Mr. L.G., the "guy with the cornrows" gave $100 to T., $100 to C., $100 to the white man but only $10 to the "big guy", who played a secondary role. According to Mr. M.A., the suspect with the red sweater gave out $20 bills.
[25] Sometime between 20 minutes to an hour later, both Messrs. L.G. and M.A. said they were escorted to the bus stop because their assailants wanted to make sure they left. Mr. L.G. said the male with the cornrows and red hoodie told them "not to cause any trouble"; Mr. M.A. said he was instructed to tell his parents that he had lost his wallet and his cell phone. Both victims said they were warned that if they told anyone, the group would show up at their school and kill them. Mr. M.A. said he took the threat seriously.
[26] When asked why they had not tried flee to a nearby exit when it was only C. guarding them, Mr. L.G. said he was afraid; he did not know if everyone had left the building or if someone was around the corner, and it was not worth the risk trying to escape.
[27] Two days later on May 2, 2016, Detective Constable Ryan Kotzer received information about a robbery that had occurred over the weekend. He went to M.A.'s house and spoke to the mother. The next day on May 3, 2016, police took videotaped statements from both M.A. and L.G..
[28] On May 4, 2016, police arrested C.K. and T.H.
[29] On May 5, 2016, D.C. Kotzer went to 25 Henry Lane Terrace and obtained security video and took photos of the terrace. In court, D.C. Kotzer was shown the video and he named the individuals he believed were the persons from the video. In court, the officer was also shown video taken from 140 The Esplanade from April 30th, the same day as the robbery. The officer also seized video from April 30 from a Bank of Montreal located at 6 King Street, in Toronto.
[30] Between May 5 and 12, 2016, D.C. Kotzer understood two more suspects were arrested including the white female with the long brown hair seen on the BMO video.
[31] On May 29, 2016, based on information he had received during this investigation, Detective Constable Kotzer prepared a photo line-up for Tyler Williams-Dennis, who by this point had become a suspect. On May 30, 2016, another police officer, P.C. Robyn Court and her partner conducted a videotaped photo line-up with L.G., who selected the person in photo "#9", as the "guy that robbed us". Photo #9 is a photograph of Mr. Williams-Dennis. M.A. did not select anyone from his photo line-up.
[32] On May 30, 2016, a warrant in the first was issued for the arrest of Tyler Williams-Dennis.
[33] On June 2, 2016, just before 2:50 pm, Police Constable Wayne Alexander was responding to a radio call on Yonge Street on an unrelated matter. He noticed the defendant on the west side of Yonge Street, walking towards their police cruiser. P.C. Alexander, whose evidence was conceded met the threshold test on the Leaney voir dire, testified that based on his prior acquaintance with Mr. Williams-Dennis, the officer recognized him. In fact, Mr. Williams-Dennis also recognized P.C. Alexander and greeted the officer with "What's up?" Constable Alexander testified he told Mr. Williams-Dennis about the warrant and the defendant was surprised. At 2:50 pm, P.C. Alexander arrested the defendant for the charges before this court. P.C. Alexander transported Mr. Williams-Dennis to the police station, where he was processed.
Direct Evidence and Circumstantial Evidence
[34] "Direct evidence is evidence which, if believed, resolves a matter in issue". (See David Paciocco, The Law of Evidence, 6th Edition, page 27 citing R.v. Cinous, 2002 SCC 29 at para. 88 ). Direct evidence establishes a material fact without the need for any inferences to be drawn.
[35] Circumstantial evidence "is evidence that tends to prove a factual matter by proving other events or circumstances from which [either alone or in combination with other evidence] the occurrence of the matter in issue can be reasonably inferred". (See Paciocco, The Law of Evidence, page 28 citing Cinous, supra at para. 89 ). Unlike direct evidence, circumstantial evidence requires inferences to be drawn before it is of use in resolving material issues.
[36] In this case, there is both direct and circumstantial evidence for the Court to consider:
a) Direct Evidence
[37] L.G. positively identified Tyler Williams-Dennis in both a photo line-up and in court as the main suspect in the robbery. The Crown asks the Court to accept his identification evidence as credible and reliable. Defence counsel submits Mr. L.G.'s description of the suspects was generic and that the photo line-up was tainted. As well, Defence counsel submits Mr. L.G. in court added details to his description of the "male in the red sweater", which undermines his testimony.
[38] Both L.G. and M.A., age 15, were full time grade 10 students. It was not suggested that either young man had a prior criminal youth court record or previous contact with the law. At the time of the incident, neither were under the influence of any intoxicants; there was no suggestion either had diminished intelligence or mental incapacity, or poor eyesight, hearing and so on. They each gave their own versions of the events, which I found were strikingly detailed and very similar. I did not, however, find their evidence to be, for example, scripted. They each answered questions spontaneously, they both appeared intelligent and thoughtful. As well, their descriptions of the persons and events were rich in detail. I will highlight some examples momentarily. As well, the incident took place over a very long period of time during daylight. The video surveillance from the rooftop reveals Mr. L.G. arrived on the rooftop at approximately 2:31 pm; Mr. M.A. joined him 16 minutes later at 2:47 pm. The victims were still confined to the rooftop at 3:42 pm, when the BMO video shows the girls withdrawing money from M.A.'s mother's account. Both witnesses testified they were kept on the roof 20 minutes or longer until they were escorted to the bus. At minimum, Mr. L.G. was in the presence of the suspects for at least an hour before they left for the bank, and then for a period of time after. Also, the witnesses had the opportunity to observe the suspects up close, from a distance, standing still at times and in motion. Lastly, much of what Mr. L.G. and Mr. M.A. said occurred was corroborated by extraneous evidence including security video retrieved from two apartment buildings and a bank.
[39] As I mentioned, the security camera video situated on the rooftop patio at 25 Henry Lane Terrace, shows L.G. arriving on the rooftop at 2:31:10 pm with a person, he identified as "T." or T.H. In the video and screenshot below, Mr. L.G. is the 2nd male trailing behind the individual, both victims knew as T. Mr. L.G. is seen with a knapsack and carrying a bag. According to Mr. L.G., T. led him to a secluded patio where T. and who, he assumed were T.'s friends, were "chilling". The video continues and shows the two young men walking off camera to the right (See photos marked as Exhibits 2A-2E and the security video marked as Exhibit 3).
[40] Approximately 16 minutes after L.G. had arrived on the rooftop, at 2:47:14 pm the video shows T.H. now escorting Mr. L.G.'s friends M.A. and G.R. from the same entrance on the rooftop, to the same corner off camera. According to Mr. M.A., T. was wearing the running shoes that Mr. L.G. had brought to sell. As I mentioned, this is one example of those small, but important details, which strengthens the reliability of the witness' observations. In fact, in reviewing the rooftop video it is apparent that the person known as T. indeed changes shoes between 2:31:10 pm when he retrieved L.G. (wearing dark shoes, see photo above), and 2:47:20 pm when he brought up the other two boys (wearing light shoes, see photo below).
[41] It should be mentioned that T.H., age 14, was also called by the Crown. He was pleasant, swore on the Bible that he would tell the truth, and he did his best to sound sincere. However, I found his evidence entirely unconvincing. Mr. T.H. agreed he had pled guilty with counsel at 311 Jarvis, but he was unsure about what facts he admitted. Something about taking of a pair for Jordan 7 sneakers from M.A.; and yes, it was while on the rooftop of 25 Henry Lane Terrace, where he had gone for a barbeque. Under oath, Mr. T.H. testified he did not whose barbeque it was; he did not know M.A. before the incident; and he did not know if L.G. had anything to do with the shoes. Both L.G. and M.A., knew "T." by name and Mr. L.G. said he and T. went to school together and it was T. had replied to his ad to buy the shoes. Most unconvincingly, Mr. T.H. also pretended to not even recognize himself from the rooftop video. As for who he was with on the rooftop, the Crown did not ask him the question directly because it is reasonable to assume, Mr. T.H. would have lied about that too.
[42] On the other hand, L.G. was an impressive witness. He was intelligent, comprehensive, and articulate. Although he had been robbed, threatened and confined for over an hour, Mr. L.G. did not appear to harbor any unusual amount of ill will towards Mr. Williams-Dennis or any of the other suspects. He answered questions directly and he agreed with many suggestions put to him by the Defence.
[43] Both witnesses described their interaction with the suspect with the red hoodie/sweater and cornrows, as well providing fairly detailed descriptions of the lesser players. Defence counsel suggested to some of the witnesses and repeated in his submissions, that Mr. L.G. and Mr. M.A.'s descriptions of the suspects were generic in nature and could match many individuals in Toronto and, in particular, within that neighbourhood. A generic description, in my view, would have been for example: "male, black, 5' 7" tall, average build" without additional details about the person's clothing, hair style, and the like. In this case, I strongly disagree with Defence counsel's characterization of either Messrs. L.G. or M.A.'s descriptions as generic.
[44] As well the witnesses were interviewed soon after the event. The robbery occurred April 30, and the police took statements from them on May 3, 2016. Defence counsel did not cross examine either witness regarding any inconsistencies in their initial descriptions each gave to police and their in-court testimony except for challenging Mr. L.G. in two areas of his testimony.
[45] In court, Mr. L.G. said the suspect wore a red hoodie; he did not mention any insignias or logos on the person's shirt. However, in cross examination and after seeing the security video from the lobby of 140 The Esplanade, Mr. L.G. said he was 90% certain he told police about the "Adidas" logo. However, counsel agreed Mr. L.G. had not. Defence counsel submits this omission reinforces the frailties of identification evidence and the Court should find Mr. L.G.'s identification evidence unreliable.
[46] I agree with counsel that in some cases where a witness later embellishes their evidence, adding details they ought to have remembered at the time they gave their statement, but they did not; in those cases, their credibility and the reliability of their evidence can be undermined. However, in other cases, the discrepancies maybe minor and inconsequential when the totality of their evidence is weighed and considered. In this case, neither L.G. nor M.A. were asked if the red hoodie worn by the suspect was zipped up or left open. Neither, in fact mentioned the suspect wearing a shirt of any kind underneath the hoodie. Perhaps, Mr. L.G. is mistaken when he believes he saw an Adidas logo? Maybe he did see an Adidas logo and forgot to tell the police? Or, perhaps there is a third explanation. Overall, in weighing and considering the totality of Mr. L.G.'s evidence as well as the circumstantial evidence, which I will review momentarily, I consider the inconsistency to be immaterial.
[47] Similarly, Mr. L.G. described the suspect in the red hoodie wearing Air Force One running shoes, which he said have a black, green and pink camo pattern. When Defence counsel showed Mr. L.G. the security video from the lobby of 140 The Esplanade, Mr. L.G. agreed he could not see any pink. Curiously, in his final submissions, defence counsel referred to the same lobby video as "quite blurry" and also suggested to P.C. Kotzer that the images were "distorted". Yet, counsel asks the Court to find that Mr. L.G. agreeing that he could not see pink on a pair of shoes undermines his testimony. When P.C. Kotzer was asked by Defence counsel to describe the clothing of the man from the lobby video, he said it was hard for him say what colour the shoes were except they were "light colour", adding the shoes were sort of the same tone as the person's pants which P.C. Kotzer described as "beige" but depending on the camera angle, also "gray" with possibly black laces. I would agree with P.C. Kotzer's description of the shoes as "light colour" is about the best that can be said to describe the shoes.
[48] Lastly, Defence counsel challenged Mr. L.G. about whether his memory of the events were merely "strong" as opposed to "super strong"; and something about whether being "90% certain" was much stronger than being "very certain". Mr. L.G. agreed his his recollection was stronger regarding some details, but he quickly added that he was certain about the identity of the person in the red hoodie, who had robbed him. Mr. L.G. was otherwise, not cross examined about any major inconsistencies in his original statement to police; and overall, I found Mr. L.G.'s testimony to be logical, consistent, and supported by independent evidence in particular the circumstantial evidence contained within the videotape surveillance.
[49] Defence counsel also submits the photo line-up was flawed because Mr. L.G. was the only black male wearing a red hoodie, which was a stand-out feature described by both victims.
[50] On May 29, 2016, D.C. Kotzer said he prepared a photo line-up for Tyler Williams-Dennis, who at this point had become a suspect. D.C. Kotzer explained how he searched for photos of suspects who matched the description given by the two victims. Using the police database referred to as Intellibook, D.C. Kotzer entered search criteria based on the estimated age, height, weight, and hair style of the suspect. D.C. Kotzer said he also used the most recent police RICI shot of Mr. Williams-Dennis (see Exhibit 5B), where it just so happened the defendant on that arrest was also wearing a red sweater and a grey shirt, and had his hair braided.
[51] Defence counsel asked various witnesses how many of the suspects in the police photo line-up wore a red hoodie. Mr. L.G. agreed with Defence counsel that only Mr. L.G. was wearing a "red-hooded sweater", but added that there was another suspect who wore a red jacket. Having reviewed the photos, objectively it appears that 3 possibly 4 suspects including Mr. Williams-Dennis could be seen to be wearing a red shirt. Suspect #1 appears to have on a grey hoodie with an orangey-red shirt over top. Suspect #2 wore an orangey-red shirt, and, of course, #9 Mr. Williams-Dennis is wearing an orangey-red hoodie. Suspect #6 appears to be wearing a red shirt and a grey hoodie, underneath what P.C. Kotzer identified as a prison jumpsuit. All of the suspects in the line-up were young black males with braided hair. More importantly, I find the majority of the suspects in Mr. Williams-Dennis' photo line-up shared many of the same facial features (See Exhibit 5C in particular photos #1, #2, #3, #4, #7 and #11)
[52] On May 30, 2016, P.C. Court and her partner conducted the police photo line-up with the victims. The photo line-up procedure was videotaped and was conducted, in what I find followed the best practices as recommended in the Sophonow Report. In watching the videotaped photo line-up, Mr. L.G. carefully listened and followed the D.C. Court's instructions, shuffling the envelopes, and looking carefully at each photo before marking the back with "yes" or "no". When Mr. L.G. opened the ninth envelope, without hesitation he wrote "yes", and told the officers that this was the "guy that robbed us". The officers did not prompt Mr. L.G. and they did not comment on his selection.
[53] Defence counsel submits the decision in R.v. Maygag [2005] O.J. No. 1869 (Ont.Sup.Ct.) for the principle that where the initial eye-witness descriptions is merely general and lacking in detail and, where subsequent photo line-up is flawed, then the Court should be mindful of the real possibility that the witness' positive identification of the accused is unreliable. In Maygag, supra, the defendant had long curly hair, his photo was the only one in the line-up with a person with long curly hair, and during cross examination, the witness said he picked out #7 adding, "I picked out the hair and it was exactly like the face I saw". The Court held that if the witness was being truthful, his evidence was unreliable.
[54] In my view, the facts in this case are much different. Unlike Maygag, defence counsel did not suggest to Mr. L.G. that he recognized the red sweatshirt and together with the face, that's why he selected photo #9, or words to that effect. If there were deficiencies in Mr. Williams-Dennis' photo line-up they were minor.
[55] Overall, I found L.G.'s out of court and in court identification of Mr. Williams-Dennis as compelling and believable. But in this case, there is also considerable circumstantial evidence that I have also considered:
b) Circumstantial Evidence
[56] According to the Google Map marked as Exhibit 8 as well as the police witnesses, 25 Henry Lane Terrace and 140 The Esplanade are two Toronto Community Housing apartment buildings located within walking distance from each other. According to P.C. Kotzer, 25 Henry Lane Terrace is a "J" shaped apartment complex that also houses an elementary school and some retail shops. A large terrace stretches across one of the top floors of the complex and there are at least four entrances to the building; and several entrances and exits leading to the patio. P.C. Kotzer drew a map of the layout of 25 Henry Lane Terrace, which was marked as Exhibit 11. He also identified and explained the location of the security camera on the rooftop terrace and where he stood to take photos marked Exhibit 2A-2E, the corner of the rooftop terrace where Mr. L.G. and Mr. M.A. said they were robbed.
[57] P.C. Kotzer testified 140 The Esplanade is located just north of the Henry Lane Terrace playground. The lobby of 140 The Esplanade is also monitored by security cameras.
[58] In addition to identifying Mr. Williams-Dennis from the photo line-up and in court, L.G. also identified Mr. Williams-Dennis from the lobby video at 140 The Esplanade. The video at 12:39:11 pm., shows a young black male with his hair in cornrows, wearing a red hoodie overtop of a black t-shirt, light coloured pants, and running shoes standing and pacing next to an e-bike, and talking on a cell phone. The video from the front lobby of 140 The Esplanade runs from approximately 12:39:11 pm to 12:42:19, when the young man in the red hoodie wheels the bike out through the front doors and disappears.
[59] Next, the Crown introduced video surveillance taken from the front entrance of 25 Henry Lane Terrace, which at 2:18:32 pm shows a young man having entered the building, waiting for the elevator. The screen shot below shows what looks like a dark skinned young man, wearing a red hoodie with hood pulled up, talking on a cell phone and entering the elevator.
[60] At 2:19:00 pm, the video surveillance from the rooftop at 25 Henry Lane Terrace shows in the far background, a male wearing something red on the top, being greeted by another male.
[61] From that same video surveillance footage, at 2:31:10 pm., L.G. is seen arriving on the terrace. As noted earlier, he is with his friend T., who leads him off screen to a patio. At 2:47:20 pm, Mr. L.G.' two friends are seen also being escorted by T. to the corner. According to the witnesses, they are robbed of their cell phones and other property at knifepoint. Eventually someone finds Mr. M.A.'s mother's bank card and they go off to withdraw some money. By this point both victims testified two girls had joined the group. To paraphrase their descriptions: an Asian female with a camouflage coloured backpack and a white female with long hair.
[62] Beginning around 3:40 pm, the security video from a Bank of Montreal captures from three different angles, two young women entering the bank. They both have their hoods drawn over their heads. The young Asian female wearing a grey sweatshirt hoodie, dark pants, multi-coloured but mainly pink sneakers and carrying a camouflage coloured backpack, approaches one of the two instant teller machines. Meantime, a second female works away at the second machine: she is also young, white or Caucasian, with long straight brown hair, wearing a dark hoodie, and dark pants. This suspect intentionally and continually draped her long straight hair over her face; the reasonable inference being she was attempting to cover her face from the cameras. The young woman with the straight hair ends up with a bundle of cash and leaves the bank first, followed soon after at approximately 3:42:46 pm. by the Asian female with the camouflaged coloured back pack.
[63] Exhibit 1 the agreed statement of fact is that on April 30, 2016 at 3:40 pm, M.A.'s mother's bank card was used without her permission to withdraw $1000 from her bank account. There is no doubt that the two young women seen below in the image taken from the bank surveillance camera were using the victim's mother's card.
[64] In the meantime, P.C. Kotzer identified a 3d party known to him as Dylan Graves. The only significance of this evidence is that both Messrs. L.G. and M.A. described one of the suspects leaving, changing his clothing and returning wearing an all "Roots" pants and hoodie track suit. According to the lobby video at 140 The Esplanade, at 12:10:49 pm P.C. Kotzer identified a young person he believes to be Dylan Graves leaving the building, wearing a dark shirt, dark pants, and a blue and white Toronto Maple Leaf baseball cap. At 3:32 pm, so just before the two girls go the bank, this male dressed in the same dark shirt, dark pants, and blue and white Toronto Maple Leaf baseball cap enters 140 The Esplanade; only to leave the building at 3:44 pm wearing a grey track suit.
[65] As mentioned previously, both victims described a white male with long hair participating in the robbery (starting by taking G.R.'s phone), but then later re-appearing wearing different clothes – a Roots track suit.
[66] According to the victims, at some point the group of males return back to the rooftop and the male in the red hoodie, distributed some of the money.
[67] At approximately 3:48:15 pm., the rooftop security camera captures three young men running towards one of the exits. The first of the group was identified by L.G. as T.H., who in the video appears to be wearing the same clothing as when he first led Mr. L.G. and later his two friends to the rooftop area at approximately 2:31:10 and 2:47:20 pm (dark shorts, grey hoodie, light shoes). Mr. L.G. also identified the suspect in the Roots "sweats" also running with the others to the exit.
[68] At 4:07:53 pm back at the front entrance at 25 Henry Lane Terrace, the security video shows a male wearing a red hoodie with the hood pulled up, enter the building with a Caucasian looking female with long straight hair. The female is of similar build and wearing similar monotone colour pants and hoodie as the female at the BMO machine plus she keeps playing with her hair (Although the screen shot below does not show the female's face, the female is clear on the video). These two persons enter the elevator and disappear. Moments later, two young men and a female, who is dressed the same as the Asian girl at the bank machine with shoulder length black hair and, most notably, carrying what is obviously a camouflage patterned backpack. As noted previously, Mr. L.G. said T.H. took off the stolen running shoes, gave them to the Asian girl, who put the shoes in her "camo" backpack. On the video from 25 Henry Lane Terrace, the female and the two males enter the escalator.
[69] There is other video from the rooftop starting from 4:09 pm, whereby P.C. Kotzer identified various individuals who he believed were the same females, Dylan Graves and other suspects.
[70] Defence counsel submits the latter video showing the black male in the hoodie with the female with the long hair in the 25 Henry Lane lobby; followed by the Asian girl with the camouflage backpack and two other males does not show the group interacting with each other; as such, counsel submits it would be speculation for the Court to find a) they were acting in concert and b) they are the same group described by the victims, who robbed them. Counsel submits this group of people could have exited their homes or apartments and simply met the females on the terrace. Defence counsel's theory, of course, is not supported by any evidence and indeed, would require a lot of conjecture. Rather, after reviewing the videos, the Court finds the only reasonable inference from the circumstantial evidence, which is consistent with the direct evidence of L.G. and M.A. that all of these parties – the males and then later the two girls – were involved in the robbery and later the use of the stolen bank card. However, there is additional evidence to consider.
Additional Evidence
i) Leaney Evidence
[71] Non-expert, lay opinion to the effect that the witness recognizes the image of a person seen in a photograph or on videotape, based on a prior connection with that person, may be admissible in certain circumstances. In R.v. Brown, 215 C.C.C. (3d) 330 (C.A.) at para. 39, Rosenberg, J.A. stated succinctly that "this type of non-expert opinion evidence is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator." (See R.v. Berhe [2012] O.J. No. 5029 (Ont.C.A.) at paras. 13 and 14 citing R.v. Leaney, [1989] 2 S.C.R. 393 S.C.C.).
[72] On the voir dire, Police Constable Wayne Alexander viewed the video taken from 140 The Esplanade and he testified he was familiar with the building, and more importantly that he identified Mr. Williams-Dennis, as the young male in the red hoodie pacing back and forth beside a stationary e-bike. P.C. Alexander said he recognized Mr. Williams-Dennis based on the hair, which appeared to be worn in the same cornrows, the defendant's walk and mannerism, as well as his facial features.
[73] P.C. Alexander testified his prior involvement with Mr. Williams-Dennis began in 2014 when the officer worked in the Community Response Unit, whose primary goal was interacting with members of the public, building trust and relationships in the neighbourhood. P.C. Alexander testified he knew and recognized Mr. Williams-Dennis, who in court referred to him by his first name, Tyler. In addition, P.C. Alexander arrested Mr. Williams-Dennis on March 26, 2015, and he gave details about that investigation where he was the arresting, transporting and search officer. P.C. Alexander said back in March 2015, Mr. Williams-Dennis was shorter, about 5'3", his hair was in cornrows, he had braces, attended grade 12 at Central Tech, and referred to his notes to describe what he was wearing. The officer identified Mr. Williams-Dennis from his RICI photo taken March 26, 2015, which was marked as first Exhibit E on the voir dire and then later renamed Exhibit 13B at the trial).
[74] Since March 2015, P.C. Alexander said it was hard to estimate how many times he has seen Mr. Williams-Dennis as part of the officer's duties as a member of the Community Response Unit or "crew". The officer testified as part of the team, he attends various community programs, makes a point to go up and talk to the youth in particular the kids on "the Esplanade". P.C. Alexander said sometimes it was simply a "hi" or acknowledgement of one another; other times the two might have talked. The officer said Mr. Williams-Dennis sometimes referred to him by his last name, "Alexander", which was not uncommon. The Court notes P.C. Alexander seems well suited to this part of his job, i.e. developing relationships with younger members of the neighbourhood: the officer is young, he is black, wears very modern, stylish glasses and does not look like, what some people might think as the stereotypical police officer with a uniform and badge.
[75] On June 2, 2016, P.C. Alexander was on Yonge Street investigating something unrelated. P.C. Alexander said he instantly recognized Mr. Williams-Dennis and vice versa; they spoke, the officer advised him of the warrant and arrested him. Defence counsel did not challenge the officer's version of events.
[76] When asked how Mr. Williams-Dennis' appearance in March 2015 compared to how he appeared on June 2, 2016, first, P.C. Alexander stated that Mr. Williams-Dennis's DOB is July 10, 1997, which means he was now 19 years old. P.C. Alexander said Tyler had grown a little taller, his facial features were the same, but the officer could tell the defendant had gotten a little older, and his voice was deeper. In June 2016, he said Mr. Williams-Dennis' hair was braided as opposed to worn in cornrows. P.C. Alexander explained that "cornrows" are stuck to one's head and "braids" are longer and dangle a bit more.
[77] In comparing Mr. Williams-Dennis' arrest photo from March 26, 2015 to the police photo on these charges taken on June 2, 2016, the officer said Tyler looked the same.
[78] P.C. Alexander was not shaken in cross examination that he recognized Mr. Williams-Dennis from the 140 The Esplanade video based on the same cornrows worn often by the defendant, his walk and mannerisms as well as his facial features.
[79] In this case, first, I accept P.C. Alexander's evidence that he was sufficiently familiar with Mr. Williams-Dennis so much so that on June 2, 2016 the two parties recognized and acknowledged one another. As well, Constable Alexander's testimony is corroborated by police records and the officer was able to provide details about the dates, times and circumstances of his previous involvement with the defendant. Lastly, I am satisfied that P.C. Alexander was in a better position than myself to identify the person in the video. For these reasons, the officer's opinion evidence is admissible against Mr. Williams-Dennis at his trial.
ii) Nikolovski
[80] R.v. Nikolovski, [1996] S.C.J. No. 122 (S.C.C.) recognized that a videotape or photographic evidence is real evidence that in some cases can and should be used by the trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. The images captured on the video may indeed be a "silent, trustworthy, unemotional, unbiased and accurate witness, who has complete and instant recall of the events. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilty of the accused" (see Nikolovski, para. 28.)
[81] In this case, the robbery was not captured on video. Therefore, the Court would have to first find that Mr. Williams-Dennis, who I observed during the three day trial is the same person in the lobby video, and then find that he is the same person identified by Mr. L.G. as the main suspect. The Ontario Court of Appeal in R.v. Rae, 2013 ONCA 556 at para. 6 noted that where video recording evidence is tendered, together with credible and reliable eye witness identification evidence (and in this case compelling circumstantial evidence) the trial judge is not required to undertake a Nikolovski comparison. For these reasons, I do not find it necessary to embark on such an analysis.
[82] Lastly, I do not find any merit in Defence counsel's argument that the police had "tunnel vision" in their investigation and arrest of Mr. Williams-Dennis. Based on P.C. Kotzer's testimony, Mr. Williams-Dennis was apparently one of the last suspects arrested; in addtion, the investigative steps outlined by P.C. Kotzer and other officers leading to the arrest of the defendant was logical and not challenged by Defence counsel during cross examination.
Conclusions
[83] First, for the reasons given, I accept the direct evidence of L.G. who positively identified Mr. Williams-Dennis from a properly conducted photo line-up and in court. I find the fact that Mr. M.A. did not identify anyone from his photo line-up does not undermine the weight of Mr. L.G.'s testimony, but rather speaks to individual differences when it comes to eye-witness identification.
[84] Secondly, I accept Mr. L.G. and Mr. M.A.'s version of events. I am satisfied beyond a reasonable doubt the two boys were robbed at knifepoint by a group of young men. Their evidence is substantially corroborated with the circumstantial evidence taken by piecing together the various video surveillance clips. The date stamps on the videos have been very helpful in creating a time line that I find dovetails with what the victims said transpired. While the quality of the rooftop and lobby videos was not consistent and less than optimum, the images captured were clear enough to see general facial and body characteristics, clothing and hair styles of the individuals. However, the BMO video and images was excellent: capturing close-ups and full body length shots of the two girls withdrawing the money from M.A.'s mother's account. In particular, the BMO video captured the young Asian female carrying a distinct camouflage backpack, where inside L.G. said T. hid the stolen running shoes. These two same girls are then seen re-entering the apartment building albeit a few minutes apart with the man with the red hoodie and others. The proof of the bank withdrawal with the clear images of the girls who withdrew the money, together with the totality of the other evidence does not leave the court with reasonable doubt that this group including Mr. Williams-Dennis, as their leader, robbed Messrs. L.G. and M.A., of the bank card, the money and two out of three phones.
[85] Lastly, I accept P.C. Alexander testimony, whose prior acquaintance with Mr. Williams-Dennis was documented, as reliable and admissible against the defendant at his trial. His level of familiarity with Mr. Williams-Dennis enhances the reliability of his identification evidence.
[86] With respect to forcible confinement, Defence counsel submits that because there was potentially a means of escape, i.e. after the group left C. to guard the victims, the Crown has not proven the offence of forcible confinement. Unlawful confinement requires the use of physical restraint, contrary to the wishes of the person restrained, but to which that person submits unwillingly, thereby depriving that person of his or her liberty to move from one place to another: R. v. Luxton, [1990] 2 S.C.R. 711, at p. 723. The authorities establish that if for any significant period of time, the victim was coercively restrained or directed contrary to his or her wishes, so that she or he could not move about according to his or her own inclination and desire, the victim has been unlawfully confined: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24. In R.v. EB, [2006] O.J. No. 1864 (Ont.Sup.Ct.) para. 115-116 the Courts have held that confinement generally consists of restraining another person's liberty, though not necessarily the victim's ability to escape.
[87] In addition, in this case by the time the victims were left guarded by only C., the actus and mens rea of the forcible confinement had already been completed. Their confinement was merely prolonged when the rest of the group returned.
[88] During submissions, the Court asked the Crown to assist whether upon a conviction on the robbery whether the charge of assault with a weapon was subject to the rule against multiple convictions re: Kienapple v. R. (1974), 26 C.R.N.S. 1 (S.C.C.). The Crown submitted the two acts (the robbery being the taking of the phones and bank cards; and the assault with weapon relating to jabbing Mr. M.A. with the knife) were distinct. In considering the evidence, I respectfully disagree with the Crown. In my view, the robbery and the assault with the weapon were part of the same transaction. There is a sufficient factual nexus between Mr. Williams-Dennis frisking, verbally threatening and then producing the knife to threat and jab at the victim as actions in furtherance of getting the bank card and PIN, which is encompassed now in a conviction for robbery, the more serious of the offences. I find there are no additional or distinct elements in the assault with a weapon offence. For these reasons, I will conditionally stay that charge.
[89] However, I agree with the Crown that the threatening bodily harm charge is distinct from the robbery. The victims testified that while being escorted to the bus, Mr. Williams-Dennis told not to tell anyone or they would come to their school and kill them. Mr. M.A. testified he believed the threat, which was objectively reasonable under all of the circumstances.
[90] For these reasons, in assessing all of the evidence, I am satisfied the Crown has proven the essential elements of each of the following offences and Mr. Williams-Dennis will be found guilty of:
Count #1: Robbery of M.A. and L.G.
Count #2: Forcible Confinement of M.A. and L.G.
Count #4: Threatening Bodily Harm to M.A. and L.G.
[91] Counts #3 (Assault with a weapon) and #5 (Possession Under) will be conditionally stayed.
Released: March 27, 2017
Justice M. Wong