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 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: June 26, 2018

Court File No.: 17-10026

Between:

Her Majesty the Queen

— and —

Neal Robert Demers

Before: Justice G. Orsini

Heard on: June 5 and 6, 2018

Preliminary Hearing Reasons Released on: June 26, 2018

Counsel

C. DeKoning — counsel for the Crown

R. Farrington and J. Prosser — counsel for the defendant Neal Robert Demers

Decision

Orsini J.:

INTRODUCTION

[1] Justin Guinedon, Neal Demers and Angela MacDonald were each charged with the following offences arising out of a home invasion robbery alleged to have occurred on July 30, 2017:

(a) assault with a weapon contrary to s. 267(a) of the Criminal Code of Canada;

(b) robbery contrary to s. 344(1) of the Criminal Code of Canada;

(c) break and enter and commit the indictable offence of assault with a weapon contrary to s. 348(1)(a) of the Criminal Code of Canada;

(d) conspiracy to commit the indictable offence of robbery/assault with intent to steal contrary to s. 465(1)(c) of the Criminal Code of Canada; and

(e) possession of a weapon for the purpose of committing an offence contrary to s. 88(1) of the Criminal Code of Canada.

[2] The matter proceeded before me by way of a preliminary hearing on June 5 and 6, 2018.

[3] At the end of the preliminary inquiry, Angela MacDonald and Justin Guinedon consented to committal to trial. Mr. Demers did not.

ISSUE

[4] Mr. Demers contests committal arguing a total absence of evidence identifying him as one of the individuals responsible for the above-noted offences. The Crown does not rely on any eyewitness identification evidence. Instead, the Crown tendered videotape evidence which depicts two males entering and then fleeing the apartment complex located at 173 Oxford St. E., where the events in question are alleged to have occurred. The defence takes no issue that the videotape constitutes some evidence upon which a jury could convict those two males of the charges before this court. The question is whether the quality of the video is such that it amounts to some evidence identifying Mr. Demers as one of those two men.

POSITION OF THE PARTIES

[5] The Crown argues that Mr. Demers is one of the two men implicated by the video. The Crown is not relying on witness opinion evidence in making any comparison between the video evidence and the accused before the court. Rather, the Crown says I am in a position to make such an assessment and urges me to find that the video is direct evidence of identification. Additionally, the Crown says that the evidence relating to Mr. Demers' arrest the following day, and in particular the shirt he was wearing at that time, amount to circumstantial evidence from which a jury could conclude that he is one of the two men captured on the Oxford Street East video surveillance.

[6] The defence says that Mr. Demers should be discharged – that the video is of such poor quality that it cannot form the basis of any direct or circumstantial evidence of identification. The defence argues the videos show only general characteristics and provide no facial details sufficient for direct identification. Based on the quality of the video, they say, one can only speculate that the shirt seen in the video is the same shirt Mr. Demers was wearing upon arrest the following day.

EVIDENCE

Background

[7] The evidence as to what occurred is relatively straightforward. On July 30, 2017, Christopher Kime-Gradidge and Jacob Squire were at their shared apartment located at 11-173 Oxford St. E., London, Ontario. This is a three storey building with staircases leading up the east and west sides of the building. Apartment 11 is on the third floor.

[8] Mr. Kime-Gradidge testified that at approximately 12:45 pm there was a knock at the apartment door. He looked through the peep hole and saw what he thought was a female with long brownish-black curly hair. When he unlocked the door and began opening it he felt the door being forcefully pushed open. This forced him back into the wall immediately behind the door. As he pushed back against the door to close it, an arm protruded through the door opening. The individual had a knife and began waving it about while Mr. Kime-Gradidge continued in his attempts to force the door shut. The knife was described as having a black and blue handle. Ultimately, Jacob Squire retrieved a meat cleaver from the kitchen. He swung it at the hand of the individual holding the knife, severing one of the fingers. Needless to say this resulted in the individual removing their arm from the door. Demands to return the finger went unheeded. The altercation came to an end.

[9] Police were contacted. A portion of the individual's finger that had been severed in the altercation was retrieved by the police. Police also obtained video surveillance from the exterior of the building and ultimately from another building that they believed the culprits came from.

[10] Mr. Kime-Gradidge testified that he and Mr. Squire were expecting someone to arrive to make a purchase. Apparently, Mr. Squire was selling glass pendants and bongs online and had several in the apartment worth as much as $2,000.00 each. Since the building had a controlled access, they were anticipating that the arrival of this individual would be precipitated by them ringing the buzzer to the apartment from the main lobby. This did not occur.

[11] Based on what had subsequently transpired, Mr. Kime-Gradidge believed that this was a planned robbery, particularly given the value of the items in the apartment and the fact that the individuals seemed to have bypassed the controlled entry.

[12] Mr. Kime-Gradidge did not provide any evidence with respect to the identity of the culprits beyond the description of the female.

[13] The issue for this court to decide is whether there is any evidence upon which a reasonable jury, properly instructed could find that Mr. Demers was involved in the incident.

540(7) Materials

[14] The material filed on consent pursuant to section 540(7) evidences the following:

(1) On July 30, 2017 Constable Cook responded to the above-noted incident. He observed and photographed blood drops which can be seen running between the doorway of apartment 11 towards and down the east side staircase. (see Tab 2-Photographs)

(2) At the time of the incident, Angela McDonald was the registered owner of a gold coloured two-door Pontiac Sunfire similar to the one observed on the video referred to below from 530 Mornington Ave. and 173 Oxford St. E. (Evidence of P.C. Dennison at Tab 4);

(3) At the time of the incident, Angela McDonald resided at an apartment located at 530 Mornington Avenue (Evidence of P.C. Dennison at Tab 4);

(4) On July 31, 2017, Mr. Demers and Angela McDonald were arrested in the parking lot of 530 Mornington Ave as they left the building and entered her gold coloured Pontiac Sunfire (Evidence of P.C. Dennison at Tab 4);

(5) Following their arrest, police seized and photographed the following items:

(a) A black shirt from Mr. Demers with grey stitching and a grey emblem on the back (Evidence of P.C. Leppard at Tab 3 and photographs at Tab 11);

(b) A pair of black running shoes from Angela McDonald with white soles and a white emblem on the side (Evidence of P.C. Belanger read in on consent and ex 4-photograph)

Video from 530 Mornington Ave, London Ontario

[15] The Crown filed videotape surveillance from the exterior of an apartment complex located at 530 Mornington Avenue. It shows the following:

(a) On July 30, 2017 at 11:58:50 am a gold coloured vehicle can be seen pulling into a parking spot at 530 Mornington Avenue. Two males exit the vehicle and enter the apartment building. The driver is wearing a white T-shirt and light-coloured blue jeans while the passenger is wearing blue jeans and a dark coloured shirt with grey stitching and a grey logo on the back. The passenger also appears to be bald and wearing sunglasses;

(b) At 12:33:11 pm, three males and a female can be seen exiting the building and entering the above-noted vehicle. Two of the three males appear to be the same males noted above that had previously exited the vehicle. The male in the white T-shirt now has a black coloured backpack on his back. The bald male with the dark coloured shirt is now carrying a red bag with his right hand. The third male is wearing a red shirt. The female appears to have dark hair and is wearing a white short-sleeved top and dark coloured shorts. She also appears to be wearing black running shoes with a white sole and a white emblem on the side.

Video from 173 Oxford Street E., London Ontario

[16] The Crown filed videotape surveillance from the exterior of the apartment complex located at 173 Oxford Street East. It shows the following:

(a) On July 30, 2017, at approximately 12:33 p.m., a vehicle similar in style and colour to the one seen in the Mornington Avenue video can be seen pulling into the parking lot of 173 Oxford St. E. (Video from 173 Oxford Street E);

(b) Within seconds of the vehicle coming to a stop, a female with dark coloured hair wearing a white short-sleeve top and dark shorts is observed walking from the area of the vehicle towards the apartment building. Seconds later, two males also appear to be walking from the area of the motor vehicle. One of them, wearing a white T-shirt and blue jeans, can be seen placing a dark coloured backpack on his back after exiting the vehicle while the other, a bald male wearing a dark coloured shirt with a grey pattern on the back, appears to be carrying a red bag in his right hand.

(c) At 12:33:26 pm the same female enters through the front doors of the apartment building;

(d) At 12:33:36 p.m. the same two males previously seen walking from the area of the motor vehicle can be seen entering the east side entrance to the apartment building;

(e) At 12:34:43 p.m. the same female that had entered the apartment building through the front doors is seen exiting through the east side door of the building;

(f) At 12:34:50 p.m. the same female can be seen running towards the area of the vehicle that had entered the parking lot at 12:33 PM;

(g) At 12:35:25 p.m. the same vehicle can be seen backing out of its parking spot;

(h) At 12:35:40 p.m. the same vehicle can be seen backing into a parking spot closer to the apartment building;

(i) At 12:35:50 p.m. the same two previously described males can be seen running from the east side entrance of the apartment building. The male wearing the backpack appears to be holding his hand;

(j) At 12:35:56 p.m. the two previously described males can be seen running towards and entering the above-noted vehicle which immediately leaves the area;

LAW

[17] A preliminary inquiry judge must determine whether there is any admissible evidence in relation to each of the essential elements to permit a properly instructed jury, acting reasonably, to convict. See: U.S.A. v. Shephard, [1997] 2 S.C.R. 1067; R. v. Arcuri, 2001 SCC 54;

[18] While this test is satisfied even where there is nothing more than a "scintilla" of evidence, it must be remembered that "sufficient evidence" means sufficient to sustain a verdict of guilty beyond a reasonable doubt. See R. v. Martin; and R. v. Charemski, at para. 35;

[19] It is not generally within the purview of a preliminary inquiry judge to assess the credibility or reliability of the evidence before him or her as such would usurp the function of the ultimate trier of fact, in this case, a jury. R. v. Arcuri, 2001 SCC 54;

[20] In the case of circumstantial evidence, it is not within the judge's purview to choose between competing inferences that could reasonably be drawn against the accused. See: R. v. Clarke; R. v. Muir, 2008 ONCA 608 at para. 20;

[21] Instead, the preliminary inquiry judge is limited to a consideration of whether the evidence in question is capable of supporting or, put another way, could reasonably support, the inference sought by the Crown. See: R. v. Arcuri, supra, at para. 1, 23 and 30; R. v. Campbell, 140 C.C.C. (3d) 164 (Ont. C.A.) at p. 165;

[22] Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered. Put simply, the judge is to consider the prosecution's case in its best possible light. See: R. v. Sazant, 2004 SCC 77, at para. 18, and R. v. Coke, [1996] O.J. No. 808 (Sup. Ct.) at para. 9;

[23] Where circumstantial evidence is concerned, any inference relied upon by the judge to commit the accused to stand trial must be both:

(a) reasonably based on the evidence heard at the preliminary inquiry;

and

(b) reasonable

Such inferences cannot be based on speculation, no matter how seemingly reasonable. See: R. v. Munoz, at para. 22; and R. v. Coke, supra, at para. 9;

[24] It is also necessary to consider the cumulative effect of the evidence said to point towards guilt on the part of the accused. Especially in a case premised wholly or in large measure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing there from without regard to the context of the totality of the evidence. See: R. v. Coke, supra, at para 9; R. v. Muir, supra, at para 18.

[25] To avoid engaging in speculation, the preliminary inquiry judge must also be mindful of two points. As noted at para. 26 of R. v. Munoz, "the first step in inference drawing is that the primary facts, i.e., the facts that are said to provide the basis for the inference, must be established by the evidence." As noted at para 28, "the second way in which inference drawing can become impermissible speculation occurs where the proposed inference cannot be reasonably and logically drawn from the established primary facts".

[26] A video standing alone can constitute direct evidence of identity where the video is not otherwise altered or changed. As indicated in R. v. Sheardown, [2010] O.J. No. 3283 at paragraph 23, in such cases "the preliminary inquiry judge is called upon to look at a photograph or a video and then compare it to the accused and determine whether on the basis of such a comparison a reasonable jury properly instructed could return a verdict of guilty". In this sense, the videotape or photograph amounts to direct evidence.

[27] As indicated in R. v. Nikolovski, at paragraph 23, video or photographic evidence must be of "sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt".

[28] Similarly a video standing alone may be circumstantial evidence justifying a committal (see R. v. Sheardown, [2010] O.J. No. 3283).

ANALYSIS

[29] I am satisfied that a reasonable and properly instructed jury could infer that two males seen on the video entering and subsequently fleeing from the east side entrance of the apartment building shortly thereafter were involved as parties and co-conspirators to what had occurred at apartment 11 that day. The jury could infer this from the blood evidence described above and the fact that the two males arrived and entered the building together each carrying bags, and are seen running together from the east side entrance approximately 2½ minutes later – one of them holding his hand.

[30] What remains is whether the video evidence is of sufficient clarity and quality that a reasonable and properly instructed jury could conclude beyond a reasonable doubt that Mr. Demers is one of those males – either as direct evidence or on the circumstantial basis.

[31] In my view, having looked closely at the video evidence, I am not satisfied that a jury could conclude beyond a reasonable doubt that it amounts to direct evidence on the issue of identity. While the video depicts a bald male of similar build to Mr. Demers (I note that Mr. Demers is bald), it does not show any other distinguishing facial or other features with the degree of clarity that would permit a jury to make a meaningful comparison to Mr. Demers before the court. Bearing in mind the frailties of identification evidence and recognizing that video evidence is devoid of many of the frailties of eyewitness testimony, I am nevertheless of the view that the video in this case is not probative as direct evidence on the issue of identity.

[32] I am however satisfied that there is a circumstantial basis for the jury to conclude that Mr. Demers is one of the males shown on the video from both 173 Oxford Street East and 530 Mornington Ave. I find that a reasonable and properly instructed jury could conclude the following:

(1) that two of the males seen on video leaving the apartment complex at 530 Mornington Ave and entering a vehicle are the same two male individuals seen on the videos from 173 Oxford St. E. minutes later. They are wearing the same clothing, carrying the same bag/knapsack and appear to arrive and leave the Oxford St. East parking lot in the same vehicle from which they departed 530 Mornington Ave.;

(2) that the two male individuals seen on the Oxford Street videos were the ones responsible for the events described by Mr. Kime-Gradidge for the reasons indicated previously;

(3) that the shirt seized from Mr. Demers upon his arrest the following day is the same shirt worn by the bald male individual seen on video leaving 530 Mornington Ave., in a two-door vehicle similar to that registered to Angela McDonald a resident of 530 Mornington Ave. In my view the video is sufficiently clear as to the shirt worn by the second male such that a meaningful comparison could be made by a jury. From my view of the video, the shirt worn by the second male looks identical to the one seized from Mr. Demers the following day;

(4) that the vehicle captured on the video surveillance is Angela MacDonald's vehicle, given it is seen coming and going from the parking lot of her building and matches the descriptors of the vehicle registered to her;

(5) that same bald male wearing the same shirt is seen on video entering the east side door of 173 Oxford St. E. and fleeing through that same door minutes later into the same two door vehicle;

(6) that the probability that Mr. Demers is the individual on the video is heightened by the fact that he is arrested in the same vehicle, wearing the same shirt and coming from the same location (530 Mornington Avenue) the very next day.

[33] In short, the video evidence, together with the circumstances of Mr. Demers' arrest and the seizure of his shirt, provides some evidence upon which a jury may conclude that the individual seen on the video is in fact Mr. Demers.

CONCLUSION

[34] For all of these reasons, Mr. Demers will be committed to stand trial on the above-noted charges.

Justice G. Orsini