WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: November 8, 2017

Court File No.: Region of Durham 998 16 35563

Between:

Her Majesty the Queen

— AND —

Richard Pearce

Before: Justice J. De Filippis

Heard on: October 24 and 25, 2017

Reasons for Judgment released on: November 8, 2017

Counsel:

Mr. T. Boodoosingh — counsel for the Crown

Mr. P. Affleck — counsel for the accused

Reasons for Judgment

De Filippis, J.:

The Charge

[1] The defendant was charged with the offence of invitation to sexual touching, contrary to section 152 of the Criminal Code. I heard from one witness (the complainant) and received an agreed statement of evidence (re P.C. Snow). There is no controversy about the credibility of this evidence and, with respect to P.C. Snow, there is also no dispute about its reliability. Somebody committed the offence in question. The single issue in the case is whether it has been established that the defendant is that person.

The Complainant's Evidence

[2] The complainant is a 15-year-old girl. On May 8, 2016, when she was 14 years old, she encountered a man while walking to a convenience store in Newcastle. It was about 3 or 4 PM. She testified that she first heard the man behind her making "meowing and barking sounds" and he explained that he was poking fun at her because the hat she was wearing had "cat ears". The man asked where the complainant lived and when she replied "why", he said "I live above the hair place". In saying this, the man pointed to a nearby hair salon.

[3] According to the complainant, as the parties walked together, the following conversation occurred:

Out of nowhere, he just asked me if I liked sex. And I said no, I'm 14. And then he said do you wanta have sex, after I told him I was 14. And I said no. And then he said are you going to call the cops on me? And I said no, and then I went into Mac's and that was it".

[4] As the complainant entered the store, she saw the man walk into the hair salon he had pointed to. She testified the distance between the store and salon is "about 30 yards". After leaving the store, the complainant walked back home and told her parents about the encounter. The next day she was taken to a police station by her father to report the incident. The latter remained with his daughter during the interview.

[5] The complainant described the man as a white male, close to six feet tall, with a shaved head and goatee. He was wearing black shoes, black jeans, a black jacket – "I think, was leather" – with sunglasses that had "white frames". When asked about his age, she said, "in his 40s". When asked about his weight, the complainant said "he was pretty skinny." She confirmed that he did not have any identifying marks, scars, or tattoo.

[6] The complainant was shown google maps and identified the area in question and the hair salon. That latter is on the ground floor of a multi-unit residential building at 101 King Street West in Newcastle.

The Identification Process

[7] About five weeks later, on June 16, the complainant returned to the police station to report that she had found the suspect on Facebook and had saved the photograph. She described how this happened in these words:

Dad has a friend, who knows this guy. And so, Dad went to his friend and asked him what his name was…his friend says the guy's name was Richard Pearce. So, I searched him on Facebook and he came up right away.

[8] The complainant told the police that she found the picture on Facebook three or four weeks earlier but did not report it because "I didn't know if it was super important". Eventually, she told her father and he took her to the police station. Before this happened, the complainant saw the man again. She explained she was in her father's car and they passed him on the street. She pointed him out to her father and he said, "That's who I thought it was".

[9] The complainant acknowledged her encounter with the man lasted "one minute or so" and that she had never seen him before. She searched Facebook for him after she overheard her father tell her step-mother that the culprit was "Richard Pearce". The discovery of his picture happened 11 to 18 days after the encounter. The complainant testified she was certain the culprit is the man in the photograph.

[10] On June 17, 2016, PC Snow conducted a Facebook check and located "Richard Pearce". The officer compared this to the picture the complainant had also located on that social media and concluded it was the same person. Further inquiries confirmed that this man lived in unit No. 3 at 101 King Street West, Newcastle. On June 20, P.C. Snow contacted this man and advised the police would meet him outside the building. Later that day the officer met the defendant at that location and arrested him for the present offence.

Crown's Submissions

[11] The Crown concedes the dangers inherent in "stranger identification" cases and that the interaction between the parties was brief. Counsel points out, however, that there was sufficient opportunity for the complainant to observe and later relate a detailed description of the man and his clothing as well as a residential address. On overhearing the name of the suspect, she immediately recognized him on Facebook. Counsel submits that other than this suggestion by her father, there is no other "tainting" of her identification.

Defence Submissions

[12] The Defence submits that it is problematic that the identification in this case is based upon a single picture found on social media by the complainant after searching a name she overheard her father say was the culprit. Counsel argues that the latter point is especially significant given the close relationship between father and daughter. That the complainant trusts her father is evident in the video record of the police statement. Counsel also points out that the interaction between the complainant and the culprit was brief and the evidence of the defendant's address is not sufficiently compelling.

Legal Principles

[13] The fundamental principle of our criminal law is that the Crown must prove guilt beyond a reasonable doubt. That the defendant is shown to be possibly, or even probably, guilty is not enough. In this case, there is no dispute about what the man said to the complainant. Given her age, those words amount to an invitation to sexual touching.

[14] I believe the complainant to be truthful. She impressed me as an intelligent, mature, and responsible young woman. The question is whether her evidence is sufficiently reliable to justify a finding that the defendant is the man who spoke to her on the day in question.

[15] In R v Olliffe, 2015 ONCA 242, the Court of Appeal for Ontario, stated as follows (at paragraphs 36 and 37):

The inherent frailties in identification evidence are well known and have been the subject of considerable judicial comment and review in social science literature.

The focus of the concern is not the credibility of the witness providing the identification evidence; rather, it is the reliability of the evidence and the potential for it to be given undue weight. Identification evidence is often deceptively reliable because it comes from credible and convincing witnesses. Triers of fact place undue reliance on such testimony in comparison to other types of evidence. Our courts recognize that they must vigilantly guard against convicting based on honest and convincing, but mistaken, eyewitness identification.

[16] The danger of an honest but inaccurate identification is especially present where the culprit is unknown to the eyewitness. As noted in R v Gonzales, "This is the problem of a mistake by a convinced and convincing witness".

[17] These judicial principles do not mean identity cannot rest solely on one witness; on the contrary, it is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness; R v Nikolovski (1977), 111 C.C.C. (3d) 403 (SCC) at page 413.

[18] Where, as here, there is no doubt about the sincerity of the witness, an assessment of reliability depends on a critical consideration of the basis for the witness' conclusion and the presence or absence of confirmatory evidence. A helpful checklist of factors is set out in Gonzales, supra. That decision includes the frequently quoted case of R v Smierciak (1946), 87 C.C.C. 175 (Ont. C. A.) at p. 177:

The conditions under which an observation is made, the care with which it is made, and the ability of the observer, affect the weight of the evidence. In addition to such matters, and of the utmost importance, is the method used to recall or refresh the recollections of a witness who is to be relied upon to identify a person suspected of wrongdoing or who is under arrest. If a witness has no previous knowledge of the accused person so as to make him familiar with that person's appearance, the greatest care ought to be used to ensure the absolute independence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias created directly or indirectly. Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonably prejudice the accused, the value of the evidence may be partially or wholly destroyed. Anything which tends to convey to a witness that a person is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful.

Analysis and Findings

[19] I confirm that the description of the man in question, as given by the complainant, is consistent with the appearance of the defendant and that the latter is the man in the Facebook photograph.

[20] The complainant is a keen observer. Her depiction is a detailed one but there are few distinguishing features; he is white, tall, and skinny, with a shaved head and goatee and dressed in black clothing. This account is based on a one minute interaction with a stranger. The link to the defendant is the result of a Facebook search 11 to 18 days later after the complainant overheard her father mention Richard Pearce as the suspect. In these circumstances, I could not conclude with the requisite certainty that the defendant is the guilty party.

[21] The Crown points to confirmatory evidence to bolster the identification by the complainant; that is, the defendant lives in the building that the culprit pointed to as his residence. However, having regard to the number of units in the building, this additional evidence is not sufficiently compelling to resolve my doubt about the matter of identity.

Disposition

[22] The charge is dismissed.

Released: November 8, 2017

Signed: Justice J. De Filippis