Ontario Court of Justice

Date: January 5, 2017

Between:

Her Majesty the Queen

— and —

Adam Odette

Before: Justice F. Javed

Heard on: November 22, December 8, 2016

Reasons for Judgment released on: January 5, 2017

Counsel:

• D. Slessor — counsel for the Crown
• M. Wyszomierska — counsel for Mr. Odette

F. Javed J.:

Introduction

[1] Adam Odette is charged on an information alleging the following criminal offences contrary to the Criminal Code:

1. Robbery with a knife – s.343(d);
2. Possession of a knife for a dangerous purpose – s.88(1); and
3. Unlawfully in a dwelling house – s.349(1).

[2] The Crown proceeded by indictment. Mr. Odette elected to have a trial before me.

[3] The allegations involve a "home invasion" style robbery of the victim Doug Baker by two assailants. The live issue in the case is the identification of the perpetrators. The Crown's theory is that Mr. Odette was one of the two parties involved in the home invasion.

Procedural History

[4] The trial, through no fault of either counsel, took many detours before it was completed. The detours are important to the resolution of this case.

[5] First, Mr. Odette was in custody at the time the trial started. I ruled on a defence application to remove his hand restraints and leg shackles. The Crown opposed the application citing security concerns. The law is clear that there is a presumption that accused persons appearing in court should not be restrained unless the need for restraints has been justified by the Crown: R. v. McNeill (1996), 29 O.R. (3d) 641 (C.A.) In support, the Crown called Cst. Brian Concepcion of the Durham Regional Police Service (DRPS). After hearing evidence on the issue, I ordered that Mr. Odette's hand restraints be removed while he was in the prisoner box but his leg shackles remain. I was satisfied that any security concerns could be mitigated by such an order.

[6] Second, the Crown called the complainant, Doug Baker who could not identify his assailants. I will discuss his evidence below. The Crown then called their second witness, Peter Mischanuk. Mr. Mischanuk was in custody at the time at Central East Correctional Centre (CECC). A judges' order was secured by the Crown to procure his attendance at the trial. On the trial date, I was advised by Mr. Slessor that CECC had indicated that Mr. Mischanuk refused to leave the facility citing medical issues, namely, he didn't get his dose of methadone. Mr. Slessor applied for a material witness warrant under s.705 of the Criminal Code. This application was resisted by the defence. On the voir dire, Mr. Slessor tendered the 911 recording of Mr. Mischanuk to establish that he had material evidence to give. A transcript of the 911 recording was filed as an exhibit on the voir dire. I agreed with the Crown's position that Mr. Mischanuk who identified himself on the 911 recording, did have material evidence to give, namely, providing the name of Mr. Odette as a person who may be involved. The material witness warrant was granted returnable in the near future.

[7] To alleviate any prejudice, Mr. Slessor, quite reasonably in my view, agreed to release Mr. Odette on stringent bail conditions.

[8] On the return date, Mr. Mischanuk refused to attend court, yet again. With the consent of the parties, I compelled him to appear through video (on the same date) as I was concerned about three things: (a) potential medical issues that he cited on the last occasion and (b) the refusal of the authorities to bring him to court as required by the judges' order and (c) the material witness warrant. I advised Mr. Mischanuk that he was entitled to get independent legal advice from his counsel, Mr. Affleck about his position on failing to attend and possibly being cited for contempt. I remanded him to the continuation date for the trial. I was concerned about the possible contemptuous actions of the authorities as well in failing to execute the courts' orders. I asked that a representative attend to determine if I should cite the authorities for contempt "in face of the court".

[9] On the continuation date, a representative of the CECC appeared. Based on the explanation provided, the reasons for which are not germane to this trial, I was satisfied that there was no contempt in face of the court. The matter was remanded to November 22, 2016 for continuation of the trial.

[10] On November 22, 2016, Mr. Mischanuk, still in custody, appeared in court and was called by the Crown. In summary, he testified that he could only "vaguely" identify Mr. Odette based on what he was told by a third party while he made observations from the peep hole of his apartment across that of Mr. Baker. Mr. Slessor applied under s.9(1) of the Canada Evidence Act (CEA) to have Mr. Mischanuk declared an adverse witness as well as under s.9(2) to cross-examine him on inconsistencies between his trial and out of court evidence (the 911 call/videotaped statement). In brief reasons, I allowed the s.9(2) application but did not immediately grant the s.9(1) application as he had not proven "adverse". Mr. Slessor ultimately abandoned the s.9(1) application.

[11] On December 8, 2016, I heard submissions on the admissibility of the 911 recording. In an oral judgment, I ruled that it was admissible as a res gestae exception to the hearsay rule and to the extent that it was necessary, threshold reliability had been met under the principled exception to the hearsay rule. The question of weight, if any, would be left with the trier of fact. I then heard final submissions and reserved judgment.

[12] Within this backdrop, these are my reasons on whether the Crown has proven beyond a reasonable doubt that Mr. Odette was involved in the offences. For completeness, my reasons on the admissibility of the 911 recording should be read in conjunction with these reasons.

The Positions of the Parties

[13] Mr. Slessor made brief and focused submissions in support of his position that the offences have been proven. He submits that the 911 call is a "key" piece of evidence in which Mr. Mischanuk identifies Mr. Odette as being involved. He anchored his position on the submission that this is a recognition, not identification case as Mr. Mischanuk knows Mr. Odette.

[14] Ms. Wyszomierska submits that the 911 call does not assist in proving that Mr. Odette was involved as it suffers from the same frailties inherent in identification evidence.

Analysis

[15] In my view, this is both a case of identification and recognition evidence. That said, I agree with the defence submission that recognition evidence can suffer from the same frailties as identification evidence. Accordingly, I must proceed with caution. I have guided myself on how to assess the evidence pursuant to the controlling principles in R. v. Gough, [2013] O.J. No. 713 (C.A.), where Epstein J.A. on behalf of the Ontario Court of Appeal wrote as follows beginning at paragraph 35:

35 Being notoriously unreliable, eyewitness identification evidence calls for considerable caution by a trier of fact: R. v. Nikolovski, [1996] 3 S.C.R. 1197, at pp. 1209-10; R. v. Bardales, [1996] 2 S.C.R. 461, at pp. 461-62; R. v. Burke, [1996] 1 S.C.R. 474, at p. 498. It is generally the reliability, not the credibility, of the eyewitness' identification that must be established. The danger is an honest but inaccurate identification: R. v. Alphonso, 2008 ONCA 238, [2008] O.J. No. 1248, at para. 5; Goran, at paras. 26-27.

36 The trier of fact must take into account the frailties of eyewitness identification in considering such issues as whether the suspect was known to the witness, the circumstances of the contact during the commission of the crime (including whether the opportunity to see the suspect was lengthy or fleeting) and whether the circumstances surrounding the opportunity to observe the suspect were stressful; R. v. Carpenter, [1998] O.J. No. 1819 (C.A.), at para. 1; Nikolovski, at 1210; R. v. Francis (2002), 165 O.A.C. 131, [2002] O.J. No. 4010, at para. 8.

37 As well, the judge must carefully scrutinize the witnesses' description of the assailant. Generic descriptions have been considered to be of little assistance; R. v. Boucher, 2007 ONCA 131, [2007] O.J. No. 722, at para. 21. The same can be said of in-dock or in-court identification; R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at 468-69; R. v. Tebo (2003), 172 O.A.C. 148 (Ont. C.A.), at para. 19.

[16] These principles were recently affirmed in R. v. Oliffe, 2015 ONCA 242 which dealt with recognition evidence. Hourigan J.A. wrote at para. 39 … "recognition evidence is merely a form of identification evidence. The same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other evidence: R. v. Spatola, [1970] 3 O.R. 74 (C.A.), at p.82; R. v. Turnbull, [1977] Q.B. 224 (Eng. C.A.) at pp.228-229."

[17] Applying the above principles, I must consider whether on the whole of the evidence, I can conclude that the Crown has proven Mr. Odette's identification. I am reminded by defence counsel that the record upon which I must conduct my analysis, including, credibility assessments is the evidence of Mr. Baker, Mr. Mischanuk's in court evidence and the 911 recording. The Crown did not seek to tender Mr. Mischanuk's videotaped statement to the police for its truth.

(i) Evidence of Doug Baker

[18] The outcome will largely turn on the evidence of Mr. Mischanuk as Mr. Baker couldn't identify his assailants. He testified that he lives at 304 Simcoe St. in unit 11. At around 11:00 pm/12:00 am, he was watching television and using oxycontin, which was on his table. He had just used one pill. He left the front door unlocked, which he would sometimes do for his girlfriend. He heard a knock on the door and before he could open the door, two men barged in. They tackled him and pinned him to his recliner. Both said "looking for the pills". He directed them to the oxycontin on the table. One male held a three-inch pocket knife to his neck while the other went for the pills. He tried to hit one male but got punched.

[19] He testified that a friend across the hall (Mr. Mischanuk) heard the commotion and heard a bang on the door, which was closed. The two men locked the door to prevent him from coming in. A voice said "calling the police". The two men left. He said Mr. Mischanuk saw their backs as they left.

[20] He stated that he didn't have his eyeglasses on but recalled the first assailant who pinned him down as wearing "a dark winter jacket, other dark clothing with a toque on his head". He was wearing winter gloves but couldn't say what colour his hair was. He was in his "early 30's around 160 pounds, 5'8". This male was rubbing his gloves in his face.

[21] He couldn't identify the second person – the individual who took the pills. He thought that this person had a pellet gun or BB gun in his waistline. It wasn't pulled out and looked fake.

[22] The whole ordeal happened fast, possibly, 5 minutes.

[23] The police arrived and spoke to Mr. Mischanuk. He recalled Mr. Mischanuk's brother being present as well.

(ii) Evidence of Peter Mischanuk

[24] Mr. Mischanuk was a reluctant witness to say the least. As noted above, he didn't attend on the first date when subpoenaed as he was in custody and indicated that he hadn't been administered his methadone. While I have some concerns with the veracity of this claim, given the health risks associated with such a claim, I proceeded cautiously. In any event, I contemplated citing Mr. Mischanuk for contempt in the face of the court, but the issue dissolved with him receiving legal advice from his counsel, Mr. Affleck. I permitted the Crown to cross-examine him under s.9(2) of the CEA based on his inconsistencies between his in court evidence and his statements to the 911 operator and the police. In particular, the significant omission from both was his evidence that he was given the identification of Mr. Odette from his brother's girlfriend who was present with them. He had not seen Mr. Odette himself. As noted, Mr. Slessor didn't pursue the application under s.9(1) of the CEA.

[25] The concepts of reliability and credibility are intertwined and bear repeating given their application to this case. In R. v. H.C., 2009 ONCA 56, Watt J.A. explained the difference between credibility and reliability. At paragraph 41 he noted that the concepts are different. "Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately observe, recall and recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514, at 526 (C.A.)."

[26] As a general observation, there were significant concerns with both the reliability and credibility of his account.

[27] First, Mr. Mischanuk testified that prior to making the 911 call, he was on a "bender" for a few days smoking heroin and crack. Accordingly, he was high when he made his observations. There is nothing on the record that contradicts the veracity of this assertion. In fact, he acknowledged his criminal record, which contains convictions for drugs. He didn't tell this to the 911 operator or the police for that matter, but I can't take anything from that. He was responding to a home invasion as it occurred. It would be unrealistic to make this front and center to a 911 operator. In any event, that is the lens from which I must assess the reliability of his observations when he made the 911 call and his in court evidence. Clearly, this would constitute a "stressful" opportunity to make an accurate observation.

[28] Second, Mr. Mischanuk waffled in his in court testimony identifying Mr. Odette. He went from not seeing him at all to "vaguely" identifying him. He explained that he was told of his identity from his brother's girlfriend, Erin who he had no reason to disbelieve. He did not tell this to the 911 operator and was cross-examined by Mr. Slessor under s. 9(2) of the CEA on this omission. I have grave difficulty in accepting the credibility of this account and find that he did identify Mr. Odette on the 911 call. As such, I reject his in court testimony for the following reasons: (1) Mr. Mischanuk had a clear motive to lie about his identification as it's clear that he knew Mr. Odette and didn't want to be "a rat" and put his life in danger, (2) Ms. Wyszomierska submits that the 911 call makes it clear that Mr. Mischanuk made all observations in the past tense – after the home invasion had taken place. I disagree, in part. The caller clearly tells the operator in language using present tense. He says: "We have them, they can't get out the door because we got stuff in it". (3) Ms. Wyszomierska submits that his account is supported by the call as one could hear the voice of a woman, ostensibly, Erin. I have heard the 911 call several times and can't be clear one way or the other that a voice of a woman is heard. The audio is not ideal as there is some interference. Further, there is no corroborating evidence to support this assertion. There's no evidence that the police met with a woman upon arrival or no evidence from Mr. Baker that he too saw a woman, unlike seeing Mr. Mischanuk's brother. It's clear from the 911 call that the police arrived as Mr. Mischanuk was still speaking to the 911 operator.

[29] On the whole of the evidence, I conclude that the 911 call represents a more credible account of Mr. Mischanuk's purported identification. But does this mean that his identification of Mr. Odette to the 911 operator is also reliable? For the following reasons, I find it is not.

[30] First, I harbor a doubt that Mr. Mischanuk was not high on drugs when he made the 911 call. While little evidence was lead about the effect of drugs on Mr. Mischanuk, I can reasonably infer that a lengthy "bender" of heroin and crack would impact one's ability to make accurate observations.

[31] Second, Mr. Baker's evidence does not assist in corroborating Mr. Mischanuk's account. While there are similarities in the description of the dark clothing and toque, there is a major difference between the height of who is purportedly Mr. Odette (as the first assailant). Mr. Baker said the individual was 5'8 and Mr. Mischanuk told the 911 operator, he was "about 5 foot". In my view, this is a significant difference. I agree with the defence that it's exculpatory in its reach and must be assessed along with the rest of the evidence: Oliffe, supra at para. 46. There's such a significant discrepancy in height that I'm not even sure it can be chalked up to a resemblance as opposed to a positive identification. As noted by Pigeon J. in Chartier v. Quebec (Attorney General), [1979] 2 S.C.R. 474 (SCC) at p.494: … [R]egardless of the number of characteristics, if there is one dissimilar feature there is no identification. … The witness did therefore did not identify him; he merely noted a resemblance. [Emphasis added]

[32] I have considered Mr. Slessor's submission that on the 911 call, Mr. Mischanuk described the second assailant with a beard which leads to an inference that he must have seen faces of both assailants. I have difficulty in accepting the reliability of this account. I do so because there is also a discrepancy in what exactly occurred with Mr. Baker. Mr. Mischanuk told the 911 operator that "they had him tied up" which was not the evidence of Mr. Baker who said one assailant tended to him while the other tended to the drugs. The important implication of this would mean that if true, both assailants would be free to roam around providing more opportunity to be seen by others as opposed to Mr. Baker's account. There is no independent or other evidence that Mr. Baker was tied up. The implication of this is that Mr. Mischanuk's recollection was not reliable on this issue, which also calls into question the accuracy of his ability to recall details, such as the facial features of the parties. In any event, Mr. Baker did not say the second assailant had a beard, which is a distinctive feature and reasonably not to be missed. Mr. Slessor did not suggest that I should also reject the evidence of Mr. Baker. I have no reason to do so and found him credible in his account.

[33] Third, the circumstances of the observations were less than ideal. Mr. Mischanuk told the 911 operator that "they took off" implying the past tense. He later said "Like I just caught it as it happened. I was coming up". This also implies that Mr. Mischanuk didn't see all of the events as they unfolded and pieced it together. This is consistent with the account of Mr. Baker who said Mr. Mischanuk saw their backs as they were leaving after he had banged on the door and said "calling the cops". Accordingly, it's unclear when and how Mr. Mischanuk would have made a reliable facial recognition.

[34] It would be an error to treat the evidence of Mr. Mischanuk, in that he knew Mr. Odette and therefore made a facial recognition, with less caution. Again, the law is clear that the same level of caution must be applied as it would be to identification evidence. Regardless, there is little evidence as to the circumstances in which they knew each other. For example, I do not know if they were friendly or passing acquaintances. I do not know the last time they met or spoke to each other. On the whole of the evidence, even after rejecting Mr. Mischanuk's explanation that he didn't identify Mr. Odette, the weight of the authorities on recognition evidence also lead me to conclude that it would be unsafe to place reliance on the identification based on the 911 call. The identification was made in stressful circumstances as Mr. Mischanuk's friend was being robbed, he himself was high on drugs and on the evidence that I accept, made a fleeting observation of the assailants' backs. It may be that Mr. Mischanuk made an honest but mistaken identification to the 911 operator. While there may be other reasons to doubt this, the honestly held but mistaken belief is equally consistent with his reluctance based on the record before me. Accordingly, the identification evidence is unreliable.

Conclusion

[35] For the foregoing reasons, it would be unsafe to convict based on the identification/recognition evidence in this case. Since there is no other evidence that proves Mr. Odette was involved, he will be found not guilty of the offences.

Released: January 5, 2017

"F. Javed J."