Court Information
Date: May 2, 2017
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Eric Coplin-Duran
Before: Justice K. Doorly
Heard on: April 3rd and April 6th, 2017
Reasons for Judgment released on: May 2nd, 2017
Counsel
Ms. J. Battersby — for the Crown
Mr. D. Michael — for the accused Eric Coplin-Duran
DOORLY J.:
The Charge
[1] Mr. Coplin-Duran is charged with one count of obstructing a police officer by mis-identifying himself.
[2] At trial, the single issue was identification – was it the accused in Room 603 at the Travelodge motel who identified himself as Christian Mori to Officer Perilli? Has the Crown proven identification beyond a reasonable doubt?
[3] The Crown's case is premised on direct evidence, recognition evidence and a Nikolovski comparison.
[4] Briefly, the evidence is that Officer Perilli went to the Travelodge Motel on Nov. 14, 2016 in relation to complaints about under age prostitution. He saw a man and two young women enter the motel. Shortly afterwards, he spoke to this same man in room 603 and arrested him for possession of marijuana. The man identified himself as Christian Mori. Ten days later, the officer watched a YouTube video of a person whom he testified is the same man – but that man's name is Eric Coplin-Duran and thus the charge of obstruct. The Crown was also allowed to call "recognition evidence" from Officer Gorski who is familiar with Mr. Coplin-Duran and who identified the accused on surveillance video taken at the Travelodge motel on Nov. 14.
[5] The Defence takes the position that the direct identification of the accused in court by Officer Perilli and Gorski is the result of a flawed procedure, that little to no weight should be accorded the recognition evidence and that the grainy nature and poor quality of the Travelodge video does not allow for a proper Nikolovski evaluation.
[6] Beyond these various identification paths, there is no other direct or circumstantial evidence that links the accused to the Travelodge motel on the day in question.
[7] The defence did not call any evidence.
[8] It was conceded that the male in the Travelodge surveillance video was the same male that PC Perilli arrested that day; and further that the accused, Mr. Coplin-Duran, is in the YouTube video.
Turning to the Law:
[9] The frailties of eye-witness identification have been the subject of significant judicial consideration.
[10] In R. v. Miapanoose, 1996 CarswellOnt 3386 at para. 28, the Ontario Court of Appeal, in commenting on the impropriety of a flawed identification procedure, held that "Every effort should be made to maintain as much impartiality as possible and to clearly document all details, and all statements made by all parties, from the beginning of the identification process to the end. In all cases, the suspect should be presented to the complainant in circumstances that minimize any suggestion that the police believe the suspect is the offender."
[11] In light of the inherent unreliability of eyewitness identification, it is crucial that procedures which tend to minimize these dangers be followed as much as possible (supra, para. 17).
[12] The dangers are considered in detail in R. v. Gonsalves, [2008] O.J. No 2711 (Ont. Sup. Ct) by Justice Hill at paras 35-53.
[13] Where identification evidence is tainted by inappropriate procedures, the flaw goes to the issue of weight. See R. v. Gonsalves, supra at para. 46
PC Perilli's Evidence:
[14] PC Perilli testified that on November 14, 2016, he was working in the community response unit of 42 Division. He received complaints about underage prostitution at the Travelodge motel and upon arrival, was given the room number of two young women by the manager.
[15] The officer was in the lobby waiting for the women to return.
[16] Shortly thereafter, two young women and a male entered the lobby.
[17] The male was approximately 21 years of age, 5'11", 190 lbs with a goatee and light skin. The male, and one of the other females, went to room 603. The manager wanted them removed.
[18] Officer Perilli requested back-up, and once additional officers arrived, he went to Room 603. He said "Police – hotel management wants you to leave." When no one answered the door, even though a lot of movement was heard inside, the manager opened the door with his master key.
[19] The male the officer had seen moments before was lying down on the bed – he was sweating and nervous.
[20] There were remnants of marijuana in the room and the male was arrested for possession of marijuana. He said he had no identification on him.
[21] He verbally identified himself as Christian Mori, DOB February 2, 1994, with an address of 6 Everglades Ave., Toronto.
[22] The officer thought it was a false name, given his nervousness and cautioned him for obstruct police. The officer asked how old the male was, and the male did not know if he was 20 or 21.
[23] He was cautioned again and the officer called 42 Division to get a check on the name.
[24] He was advised there was a person by the name of Christian Mori-Jamillo with a date of birth of February 8, 1995. This person also had an address on Everglades Ave.
[25] He was sent a photo on his phone of that person. There were similarities between the two people. The person in the photo seemed younger but somewhat resembled the male in front of him.
[26] The officer was satisfied with the identification and the male was released unconditionally. He was trespassed from the building.
[27] On November 24, 10 days later, PC Perilli was called at home by PC Barnes. PC Barnes wanted the officer to look at a video on YouTube called Ride Trough (sic) the Six by Limitz. DC Barnes told him he knew that the officer had done something at the Travelodge on Nov. 14 – but he did not say why he wanted the officer to look at the video.
[28] PC Perilli watched the video and called PC Barnes back. Barnes asked if he recognized anyone in the video and PC Perilli told him it was the same person he had dealt with over a week ago – Christian Mori-Jamillo. He identified him because not a lot of time had passed. There was no doubt in his mind.
[29] His interaction with the person on November 14th was for about half an hour. He did not recall any other description of the male, other than being sure it was him. In the process of preparing disclosure, he probably watched the YouTube video a couple more times.
[30] The photo of Mori-Jamillo that was sent to him on his phone was not before the court. When he looked at it on November 14th, he was somewhat satisfied – there were similarities, but once he looked at the YouTube video, there was no doubt in his mind.
[31] At trial, he identified the accused in court, Mr. Eric Coplin-Duran, as being the man he spoke to in Room 603 at the Travelodge on Nov. 14, 2016. The officer ultimately arrested the accused for Obstruct Peace Officer.
[32] In cross-examination, the officer did not recall what the person was wearing on November 14th, nor if he was wearing a hat. When he called 42 Division about Christian Mori, he does not recall asking if the person had any identifying tattoos or scars. Nor did he recall if the male in Room 602 had any identifying features or scars. He did not recall his hairstyle. He could not say what he was looking for when comparing the photo to the male. He did not know the hair style of the RICI photo, whether there were birth-marks or tattoos on the person in the RICI photo. After looking at the photo, he concluded it was probably Christian Mori-Jamillo – he said he wasn't proceeding with criminal charges – and he was going to give him a trespass notice and he was satisfied.
[33] Between November 14 and November 24th, he had no reason to suspect that there was anything wrong with the identification at the Travelodge.
[34] At the time of the conversations with PC Barnes 10 days later, he did not have his notebook with him and wrote his notes about the interaction two days later. He made no scrap notes. He did not recall how long the conversations were, other than brief. He does not believe he asked Barnes about the investigation Barnes was doing – just Barnes asking him to watch this video and call him back. Barnes made reference to the Travelodge and November 14 in the conversation. He watched the video once and called right back.
[35] In terms of that second conversation, PC Perilli told Barnes that it was the person he had investigated at the Travelodge and gave the name. Barnes told him the name was Eric Coplin-Duran.
[36] The officer had never seen Eric Coplin-Duran before November 14th. He could not testify to any discernable features about the man at the Travelodge – just that he had light skin – not brown, not white, not black.
PC Barnes Evidence:
[37] PC Barnes testified that on November 24, 2015, he was involved in an investigation and became aware of an earlier occurrence at the Travelodge motel on November 14, 2015. He obtained video from the motel from November 14 and viewed it with PC Gorski on the 24th and then called PC Perilli. He introduced himself to Perilli on the phone, told him he was aware that Perilli had arrested someone at the Travelodge and he wanted details and to know how much dealing he had with the arrested person. PC Barnes made notes of the conversation. The conversation was allowed into evidence as part of the identification process.
[38] What followed from PC Perilli to PC Barnes was a fairly detailed description of what happened at the Travelodge, including the investigation of the two females.
[39] The officer did not ask PC Perilli to do anything in that conversation. Within 5-10 minutes, he sent him a message with a YouTube link asking him to look at it and tell him if he recognized anyone in the video.
[40] A few minutes later, Perilli called him and told him the man in the video is the man he believed to be Christian Mori-Jamillo.
[41] In cross-examination, he acknowledged that his notes did not contain all the questions and conversation he might have had with the officer. He maintained that in his conversation he was concerned with the officer's interactions with all three parties equally. His object was not to see if the officer identified Eric Coplin-Duran on video, but to see the extent of his face-to-face dealings he had with the person he had arrested. He agreed that he did ask him, after talking about Christian Mori Jaramillo, if he recognized anyone in the video. He said he felt he had to preface sending the video link. He did not believe he gave Perilli the name of Eric Coplin-Duran after Perilli called back. Perilli did not give any reasons as to why he believed the person in the video was the same person as in the Travelodge.
Assessment of Perilli's Evidence:
[42] When PC Perilli was asked to view the YouTube video, he made an identification. Because of that identification, the accused was charged. Officer Perilli's opinion as to identification is subject to the same concerns and dangers as any other witness who identifies a suspect. The identification procedure engaged in must be scrutinized.
[43] The major hole in the identification process is the missing photo that was sent to PC Perilli on his cell phone. When he was in the motel room, he was scrutinizing the man's face and comparing him to the photo on his phone. He was satisfied with the match and released the man unconditionally.
[44] To be fair to the officer, it may be that he was a little less stringent about the identification because he was only issuing a trespass notice to the person and not charging him criminally.
[45] On his own evidence, however, he got his assessment wrong: the cell phone photo was not the man in the room, but, according to the witness, the YouTube video was.
[46] And from this premise, without the photo, it is very difficult to assess the accuracy and reliability of PC Perilli's observations. Why did he think images of two different people were of the same person? What specifically was it about the YouTube video that made him believe it was the accused? And likewise, what was it about the first photo? And what were the differences between these images that caused him to change his mind?
[47] Officer Perilli – and I do not doubt the sincerity of his belief that it was the accused in the room that day – repeatedly fell back on saying that he "just knew" that it was the accused in the YouTube video, with almost nothing more. And DC Barnes confirmed that PC Perilli did not explain why he believed it was the accused in the YouTube video.
[48] The case law is rife with warnings about such certainty. Courts are to assess the identification process and the reliability of the process – and the certainty of the witness does bears little on the reliability of the identification.
[49] Additionally, the accused was the only man in the YouTube video. PC Barnes testified that he had spoken to Perilli about the arrested male and that he felt he had to preface sending the video. Permitting a witness to see a single image is clearly less than an ideal identification process (see R. v. Smierciak (1946), 87 C.C.C. 175 (Ont. C.A.) at 177) especially where there is some suggestion that the person may be the offender. See Miapanoose, supra.
[50] Finally, Officer Perilli's recollection and the notes and evidence of PC Barnes contain a number of inconsistencies: Perilli testified that the conversation was brief and he did not believe there was a conversation about the investigation at the Travelodge, versus Barnes who testified that he was given a detailed account of the investigation. Likewise, when was the name of Erin Coplin-Duran first raised? The notes of the identification process are lacking, as they relate to PC Perilli and are not complete, as acknowledged by PC Barnes.
What Weight should be Given to the Recognition Evidence of PC Gorski?:
[51] In separate reasons, the "recognition" evidence of PC Gorski was allowed into evidence following a voir dire. PC Gorski was allowed to testify that in his opinion, it was the accused in the Travelodge surveillance video.
[52] PC Gorski testified that he knew the accused, Mr. Coplin-Duran, because of his dealings with him back in October of 2012. On that occasion, the officer was guarding a crime scene at an apartment building. The accused accidentally dropped a bag of drugs in sight of the officer and as the officer began to arrest and cuff him, the accused began to run – through the crime scene. The officer gave chase and ultimately tackled the accused. He later performed a level 3 search on him. He spent just over 20 minutes with the accused that day, but continued to update the case as it went through the court system and to look at the accused's mugshot.
[53] In his notes from that day, he described the accused as being about 6 ft, slim to medium build, white with a beard.
[54] His recollection of the accused is "pretty vivid" as it was an extraordinary day – the officer was running through a blood-covered crime scene, potentially destroying evidence. It was not in the normal course of his duties.
[55] In the summer of 2015, the officer was involved in a firearms investigation relating to the accused. He looked at the booking photos from 2012, more recent photos and the YouTube "Limitz" videos. He recognized the accused in the YouTube videos from his dealings from 2012. One of the videos was "Ride Trough (sic) the 6" – the video that PC Barnes asked PC Perilli to watch. He did not know how many videos he watched. He did not have any direct contact with Mr. Coplin-Duran between 2012 and November 24, 2015.
[56] As it turns out, Officer Gorski was right – the accused has conceded he is the male in the video.
[57] On November 24, 2015, Officer Gorski's attention was drawn to a video taken at the Travelodge Motel. He testified that the man with the cap and hoodie walking with the two women was Eric Coplin-Duran. He based this opinion on watching him move, seeing his face, his nose, the shape of his face, his slim to medium build, the stills and based on his past experience with the accused. He noted the physical resemblance to the accused and looked as well at the partial face profile, and the prominent, pointed nose, larger nostrils and structure of his face. He further testified that as long as he has known Eric Coplin-Duran, he has had a chin strap beard, as does the person in the video.
[58] He also testified that video footage of the accused getting off the 6th floor elevator allows for a split second view of his face – although this footage did not stand out like the lobby footage did.
[59] In cross-examination, in terms of the level 3 search of the accused in 2012, the officer testified that he could not say if there were any tattoos, birthmarks or scars. Between the arrest and conclusion of the drug matter (about 6-12 months) and the most recent investigation, the officer did not monitor or have any direct contact with the accused.
[60] The officer testified that the accused still has a chin-strap beard, and his nose and face shape are all consistent with the Travelodge video. Nothing in his physical appearance has changed since that video.
Conclusion Regarding Officer Gorski's Evidence:
[61] Officer Gorski testified on the voir dire that his dealings with the accused in 2012 were memorable, given he found himself chasing the accused through a blood-splattered crime scene.
[62] Defence argues that his evidence should be given little weight as his memory of the accused was poor, given the way he relied heavily on his notes and that his opinion was based on supplementing his recollection with known photos and videos of the accused.
[63] The officer did rely heavily on his notes to describe his dealings with the accused in 2012. However, he continued to follow the case and repeatedly looked at photos of the accused after the arrest. It is true that he was investigating the accused when he looked at the YouTube video in 2015, but he accurately identified him.
[64] My concern with Officer Gorski's evidence is not so much with his familiarity with the accused, but more with the quality of the Travelodge video from which he draws his opinion.
[65] The Travelodge video is not sharp. In particular, the face of the male is not sharply captured. The male resembles the accused in a general way – lean, a chin-strap beard, prominent nose, same general skin colour. He is wearing a hat with a hood pulled over it. His nostrils, a feature noted by Officer Gorski, cannot be discerned. He looks tall relative to the woman in the video, but beyond that it is difficult to come to any conclusion regarding his height. So while Officer Gorski is able to identify the accused in better quality videos – such as the YouTube video – I have some reservations as to how much I can rely on his opinion in this matter.
[66] In terms of the Nikolovski issue, the Crown did not seriously press that a finding of guilt should be made based on a comparison of the accused and the image of the man in that video. And I agree for the reasons referred to in the assessment of PC Gorski's evidence. I cannot make out eye shape or colour, shape of the nose, the size of the nostrils or style of hair.
[67] Additionally, no photograph of the accused upon arrest was filed which makes the Nikolovski assessment considerably more difficult.
[68] The Crown is effectively asking the Court to remember the intricacies of an accused's face when writing a judgment and then compare that memory to a video. I'm not sure that an arrest photo would have made a difference in this case in any event, given the quality of the Travelodge video, but I mention it only in passing.
Conclusion:
[69] In the circumstances, having considered the evidence, and having considered as well whether there is combined strength given the evidence of the officers, I find the Crown has not proven identity beyond a reasonable doubt. Given my concerns about each individual officer's evidence, I am left in a state of reasonable doubt when I also consider the combined effect of their evidence.
[70] Accordingly, Mr. Coplin-Duran, you are found not guilty.
Released: May 2nd, 2017
Signed: "Justice K. Doorly"