Court File and Parties

Ontario Court of Justice

Date: 2019-04-09

Court File No.: Kitchener Information #18-2788

Between:

Her Majesty the Queen

— and —

Brian De La Cruz

Before: Justice C.A. Parry

Heard on: January 14 and 15, 2019

Reasons for Judgment released on: April 9, 2019

Counsel

Cynthia Jennison — counsel for the Crown

Melanie Webb — counsel for the accused De La Cruz

Judgment

PARRY J.:

I. INTRODUCTION

[1] Shortly after midnight, on March 10, 2018, a stranger came to the home of Ms. Zanaab Haseeb. He said he was there to visit a friend. Assuming he was there to see a housemate, Ms. Haseeb let him in. Soon afterwards, Ms. Haseeb found herself in the dark, fighting against an apparent attack. For this alleged attack, Brian De La Cruz stands charged with Assault.

[2] There are only two live issues in this case: Has the Crown proven that Mr. De La Cruz was the man entangled with Ms. Haseeb? And, has the Crown proven that the physical entanglement was the product of the intentional application of force and not merely an accident that occurred when the lights went out?

[3] Mr. De La Cruz elected against calling a defence. Consequently, the determination of these two issues turns entirely on whether the Crown's evidence proves beyond a reasonable doubt that an assault occurred and that Mr. De La Cruz is the assailant. For the reasons that follow, I am satisfied that the Crown met its burden.

II. MS. HASEEB'S EVIDENCE

[4] Ms. Haseeb lived in an apartment at 267 Hazel Street in the City of Waterloo. The house at that address had been converted into apartments. Ms. Haseeb's apartment occupied a part of the ground floor and the entire basement of the house. She had three housemates, Suzanne Rego, Caitlyn Jacobs, and Chioma. Ms. Rego and Ms. Jacobs were home at the time of the incident, but Chioma was away.

[5] The alleged attack occurred by the kitchen of the apartment, which was on the ground floor. Only Ms. Haseeb and her alleged attacker were present for the alleged assault. She is the only witness to have purported to have actually seen the assailant.

[6] As I will outline in more detail below, the evidence discloses that Ms. Haseeb's contact with the stranger occurred in several discrete episodes over a relatively brief time span. The initial contact occurred at around 12:15 to 12:30 a.m. The whole episode was at around 12:40 a.m., when Ms. Rego called the police. Cumulatively, the contacts covered a time span of no more than 25 minutes, and probably something closer to 10 minutes. I would break down the episodes as follows:

1. Ms. Haseeb initially met the stranger when she answered the door and let him in to see one of her housemates.

2. She then momentarily saw him downstairs outside her friend's door speaking to her friend through the door.

3. She then engaged in small talk with him in the kitchen area as she made noodles.

4. She then let him back inside the residence after a brief departure.

5. She then fought against him in the darkness before he fled the scene.

All but the struggle in darkness involved relatively casual encounters at close range with a stranger who piqued Ms. Haseeb's curiosity and suspicion during the course of his visit. As a result, Ms. Haseeb had ample opportunity to make observations of the man whom she alleges became her assailant.

[7] Now to return to the beginning of the tale and Ms. Haseeb's initial encounter with the stranger. At about 12:15 a.m., a man knocked on the door to the apartment. Ms. Haseeb was on a break from studying. She was in the kitchen, not far from the front door, and in the process of boiling water to make Ramen noodles. Ms. Haseeb answered the door. The man explained that he was there to see a friend. Despite her requests, he did not name the friend, nor did he identify himself. Nevertheless, Ms. Haseeb let the stranger inside.

[8] The man was carrying a bottle of alcohol with him. It was a clear bottle with pink liquid inside. Ms. Haseeb was not a drinker, but she believed the bottle to be a bottle of wine.

[9] The stranger went downstairs. Ms. Haseeb could hear him talking to Ms. Jacobs from upstairs. In short order, Ms. Haseeb went downstairs to grab a broom. When she got downstairs, she saw the stranger speaking to Ms. Jacobs through the closed door of Ms. Jacobs' bedroom. She could not tell the court the subject of the conversation taking place through the closed door, but I infer from her evidence that this somewhat unusual transaction drew her attention. She then returned up the stairs.

[10] Soon after Ms. Haseeb's arrival back in the kitchen, the stranger came up the stairs too. He briefly attempted to fix a hallway curtain that was askew, before Ms. Haseeb informed him that the curtain rod was broken. He then began to make small talk with Ms. Haseeb as she stood in the kitchen making her noodles. He also asked her for a cup. He then poured himself a drink from his bottle into a cup provided by Ms. Haseeb. During this small talk, the stranger repeatedly asked her what she was making, requiring her to repeatedly tell him. She found this odd.

[11] Ms. Haseeb again asked the stranger his name, and asked who he had come to see. She also asked if Ms. Jacobs [whom she called 'Caitlyn'] would be joining him. He replied, "So, that's her name," suggesting he did not know Caitlyn. He then said again that he was just there to see a friend. He then offered her a drink, in an apparent effort to break the ice and engage in small talk. She declined.

[12] Seeking to garner more information about the visitor, Ms. Haseeb asked him what he did for a living. He told her that he was a fighter. Ms. Haseeb sought clarification, so the stranger told her he was a boxer. In reply, Ms. Haseeb told him that she used to kick box. The stranger suggested that she might kick him. She declined the invitation. Soon afterwards, the stranger went downstairs with his bottle and cup. He did not stay down there long before returning upstairs and leaving the apartment.

[13] Not long after he departed the apartment, the stranger knocked on the door again. Ms. Haseeb let him inside again and returned to the nearby kitchen. Then the lights went out. Ms. Haseeb figured that the stranger likely brushed against the switch in the hall. She said "hey" and then the lights went back on. Then stranger turned off the lights a second time. Ms. Haseeb then felt him grab her hair at the nape of her neck. He pulled her hair and pulled her into the garbage cans that stood between her and the stranger. He then pushed her, causing her fall to the ground and hit her head against the kitchen table leg, just above floor level. He had not let go of his grasp. He still had her hair in his hand when he came on top of her. Ms. Haseeb alleged that the stranger tried to scratch her head and face. During this struggle, Ms. Haseeb's head kept hitting the table and adjacent wall. In response to defence counsel's suggestion that the stranger simply fell on top of Ms. Haseeb, Ms. Haseeb suggested that the stranger's conduct felt like a concerted effort. I paraphrase her evidence on this point as follows: "It would feel a lot more clumsy if he was falling on me as opposed to trying to come on top of me. The only thing pushing him away is my feet." Ms. Haseeb went on to describe laying on the ground and pushing her feet against her assailant's chest, trying to push him away. She was also clawing while trying to keep him at bay. Through the whole struggle, Ms. Haseeb screamed as loud as she could.

[14] The struggle only lasted a couple of minutes. The stranger then fled the scene. Ms. Haseeb gave chase and attempted to grab him by the collar when they were on the front porch of the residence, but he eluded her grasp and ran away. Once she failed to grab his collar, she terminated her pursuit and returned inside.

[15] When Ms. Haseeb got back inside, she rushed down to the basement to speak to Ms. Rego, who had already called the police. Ms. Jacobs soon joined them. All three of them then went up to the ground floor to await the arrival of the police, who arrived on scene quickly.

[16] Ms. Haseeb provided an initial description of her assailant to Constable Field soon after his arrival. That description is as follows:

• Male of mixed race
• 5'10"
• Stocky build
• Curly short pony tail
• Black scruff on face
• Top with black chest and grey sleeves
• Dark jeans
• White and black ankle top shoes

Constable Field provided this description to dispatch, to allow them to broadcast the description.

[17] A short time later, Cst. Field assisted Ms. Haseeb in the preparation of a written statement. In that written statement, Ms. Haseeb provided a slightly more detailed description of the assailant to Cst. Field. That description is as follows:

• 5'10"
• Black hair. Curly pony tail
• Mixed race
• Scruff on face
• Wire on teeth, like a retainer
• In 20's
• Slim build
• Black jacket with grey sleeves. Sport jacket
• Blue shirt under jacket
• Dark jeans
• White and black shoes – ankle high tops
• He was carrying a clear bottle, pink liquid, possibly wine

[18] Ms. Haseeb also provided a description of her assailant in court. That description was essentially consistent with the one she provided on the day of the alleged assault and is as follows:

• 5'10"
• Stocky but still pretty skinny…. Athletic build
• Dark curly hair in ponytail
• Mixed race….[In using this term, she was describing someone who was "half-black"]
• Blue shirt with a grey sleeved-black chested button-up sports sweater [like a varsity jacket]
• Dark jeans
• Black and white high top shoes
• He had a wire on his teeth… I don't remember its location now… but not braces

[19] Ms. Haseeb took part in two photo-lineups. According to Sergeant Yeoman, the first photo-lineup occurred on March 10th. This lineup did not include a photograph of Mr. De La Cruz. This initial photo-lineup was performed for the purpose of investigating the possibility that the attacker was a man named Naji Mohamed. Naji bore a general resemblance to Mr. De La Cruz. Someone bearing that description took a cab from near Ms. Haseeb's home to a residence connected to Naji Mohamed. Ms. Haseeb did not identify anyone from this first photo-lineup.

[20] Eleven days later, Ms. Haseeb took part in the second photo-lineup procedure. The police videotaped this procedure. That video became Exhibit #4 in this trial. Constable Gaiser administered the procedure. During this procedure Ms. Haseeb identified the individual in the second photograph as being the man who attacked her in her home. She indicated that the men depicted in the other eleven photographs were not her attacker.

[21] In addition to identifying the accused's photograph, Ms. Haseeb provided an in-dock identification of the accused.

[22] Ms. Haseeb received minor scratches on her neck from the alleged attack. She showed these scratches to the police on the night of the incident. Photographs of those injuries form part of the package of photographs in Exhibit #1.

III. THE REMAINING CROWN WITNESSES

[23] The remaining crown witnesses offer virtually no assistance in resolving whether or not the entanglement was intentional or an accident.

[24] Some of the remaining witnesses, however, provide evidence capable of corroborating the identification evidence of Ms. Haseeb: Caitlyn Jacobs [who recognized the voice of the visitor as belonging to a man who had been to her apartment on February 23rd], Constable Steven Field [a responding officer who received Ms. Haseeb's initial description of her assailant], Detective Mark Gaiser [who conducted the photo-lineup procedure], Joyce Henderson [a taxi driver who picked up two men from near Ms. Haseeb's home near the time of the incident], and Sergeant Yeoman [who attended the residence to which the cab delivered the two men and from that residence received a tip that the accused might be the man she was looking for]. I will now elaborate, as necessary, on the evidence of these witnesses.

[25] The description provided by Ms. Haseeb to Constable Field has been discussed already and need not be repeated. I will note, however, that Mr. De La Cruz's appearance in court is generally consistent with the man described by Ms. Haseeb. In particular, Mr. De La Cruz has a muscular and athletic build, is of a similar height, and apparently has a mixed racial heritage that includes black ancestors. His hair at trial was quite short, but this is a mutable characteristic.

[26] Ms. Henderson picked up a taxi fare at about 1:10 a.m., roughly 30 minutes after the end of the alleged attack. She picked up two men at 263 Hazel Street, Waterloo, which was adjacent to Ms. Haseeb's house. One passenger got in the front seat and one got in the back. She took this fare to 92 Churchill Drive, Waterloo. En-route, she received a computer alert from her taxi company's dispatch centre. The alert advised her that the police were looking a man with long curly hair and braces. Ms. Henderson described the rear passenger as appearing to be East Indian. He did not arouse her concern. The front passenger, however, had long curly hair, which he put up into a pony tail as soon as he got into the cab. Ms. Henderson described this man as being half-black [she also used the term "mulatto"], having long curly hair [which he put into a pony tail], fairly tall, athletic, and wearing braces. The man kept his head down for much of the trip, but when someone came from the house at 92 Churchill to pay the fare, Ms. Henderson made a point of getting a look at her passenger, to determine whether or not he fit the description of the man in the police alert. At this juncture, the interior lights were on and Ms. Henderson made an effort to determine whether or not her curly haired passenger had braces. When the lights in the car came on, she could distinctly see that her front passenger wore braces. Consequently, Ms. Henderson concluded that her passenger might be the man the police were seeking. She notified police at waited for them near the Churchill address, when no one came in a timely fashion, the then returned to Hazel Street to provide her information to police.

[27] In addition to providing a description of her front passenger, Ms. Henderson provided other probative identification evidence. As noted, the proximity of the cab fare to the location and time of the assault is probative circumstantial evidence. Ms. Henderson also identified Mr. De La Cruz in court as being the front passenger from the 263 Hazel Street fare. Finally, the content of the conversation between the two passengers in the cab provides probative circumstantial evidence. During the course of the ride, the rear passenger chided the front passenger during the car ride, telling him he needed to grow up, that he was thirty years old. The front passenger corrected the rear passenger, telling him he was 28 years old. The Information containing Mr. De La Cruz's charges also contains his date of birth. That date of birth reveals that Mr. De La Cruz would have been 28 years old at the time of this cab ride. Ms. Henderson testified that the front passenger appeared obviously upset about something. Ultimately, he told Ms. Henderson, "I shouldn't be alive… I was brought up by a good Christian family" – a recrimination consistent with remorse.

[28] Constable Field heard about Ms. Henderson's report over the radio. He was familiar with the residence at 92 Churchill Street. He was also familiar with two of the occupants, Rasha Mohamed and her brother Naji Mohamed. According to Sgt. Yeoman, Naji Mohamed bore a general similarity to the suspect described by Ms. Haseeb. The police quickly had Ms. Haseeb partake in a photo-lineup that included a N.I.C.H.E. photograph of Naji.

[29] Sgt. Yeoman attended at the 92 Churchill address of Ms. Haseeb at 5 p.m. on March 10th. By this point in time, she had read Cst. Field's notes and therefore was aware that Rasha Mohamed had paid the cab fare of the possible suspects who drove from 263 Hazel Street shortly after the attack on Ms. Haseeb. She was also aware that Ms. Haseeb's brother, Naji Mohamed, bore a general similarity to the suspect described by Ms. Haseeb. However, she had also learned that Ms. Haseeb had already partaken in a photo-lineup procedure that included a photo of Mr. Naji Mohamed; and that Ms. Haseeb did not identify Naji Mohamed as the culprit. When Sgt. Yeoman arrived at 92 Churchill, Rasha Mohamed let her inside. While inside, she spoke to a man who would only identify himself as Jay. Jay told her that they had taken a cab from 263 Hazel Street the prior evening.

[30] In the morning of her next shift on March 11th, Sgt. Yeoman ran queries on the police records management system in an effort to dig up names associated with 263 Hazel Street. She ran N.I.C.H.E. queries on the names produced in this search, in search of identification photographs associated with those names. One of the people uncovered in the queries was Ahmed Abdulkadir Hagi. His N.I.C.H.E. looked like Mr. Ahmed Hagi.

[31] Other officers then paid another visit to Mr. Hagi to question him about the identity of those who took the cab fare from 263 Hazel Street on the night of the offence. Those officers informed Sgt. Yeoman that Mr. Hagi identified Mr. De La Cruz. Having received this information, Sgt. Yeoman obtained a 2016 N.I.C.H.E. photograph of Mr. De La Cruz. She then asked the identification branch to construct a photo-lineup array that incorporated this photo. She then asked Ms. Haseeb to take part in a second photo-lineup procedure.

[32] Detective Gaiser administered the second photo-lineup on March 21st. Gaiser had no prior involvement in the investigation and no knowledge of the evidence gathered by the police in the investigation. Gaiser videotaped the entire procedure. The video of the procedure became Exhibit #4 on this trial. Gaiser met Ms. Haseeb for the first time when he walked into the videotaped interview room. During the procedure, Gaiser presented Ms. Haseeb with the photo-lineup instruction sheet. Once Ms. Haseeb had received her instructions, Ms. Haseeb examined 12 photographs, one at a time, from a shuffled stack of 12 envelopes. Ms. Haseeb wrote a number on the back of each photograph together with a comment about that photograph. She numbered the photographs in sequence, from one to twelve. With the exception of photograph number two, she indicated that the man depicted was not her assailant. Accordingly, she wrote "no" on the back of photographs one and three to twelve. When she got to photograph number two, she indicated that the man depicted in the photograph was her attacker.

[33] Having seen the photographic array, I come to the following conclusions. First, the array contains photographs of 12 men who all appear to be of mixed race and who would appear to have some African heritage. They all appear to be of similar age. They also have similar skin colour. The vast majority have varying degrees of facial hair. While a couple could be said to have scant facial hair, I would not describe any of them as entirely clean shaven. While a couple have short hair, the vast majority have varying degrees of longer curly [afro] hair. None of the men pictured have a pony tail, but the absence of this feature from all of them lends to their similarity to one another. The men do not look identical to one another, of course, but they all look fairly similar. Finally, I would note that no witness testified about which of the twelve photographs was a photograph of Mr. De La Cruz. Despite this omission, I am prepared to conclude with virtual certainty that photograph number two, the photograph picked by Ms. Haseeb, is indeed a photograph of Mr. De La Cruz. Sgt. Yeoman gave the identification branch instructions to create this lineup using a 2016 N.I.C.H.E. photograph of Mr. De La Cruz. This instruction plus the presence of an implicit approval of the lineup's constitution in Yeoman's evidence leads me to infer that the lineup contained Mr. De La Cruz's photograph. Most importantly, having spent two days in court with Mr. De La Cruz and thus having had ample opportunity to compare him to the man in photograph number two, I am well positioned to come to that conclusion: R. v. Nikolovski, [1996] S.C.J. No. 122.

[34] Ms. Jacobs' evidence offered limited proof of the assailant's identity, but offered some. Ms. Jacobs testified about speaking to a man on the other side of her bedroom door shortly after midnight on March 10th. She never opened the door and saw him, but she recognized his voice. The voice sounded like the voice of a stranger who had paid her a visit about 15 days previously, on the evening of February 23rd. Ms. Jacobs alleged that the man had engaged in a "sexual encounter" with her on February 23rd. She did not report the incident to the police, however, until the night of March 10th. Nevertheless, when the man came to her door on March 10th, she refused him entry. The man told her that he had a gift for her. He also apologized for what happened during the previous incident. Given the similarity of the voice and the content of the conversation on March 10th, Ms. Jacobs believed she was speaking to the man who had been involved in the "sexual encounter" on February 23rd.

[35] Ms. Jacobs' description of the man involved in the February 23rd incident, bears some similarity to the descriptions provided by Ms. Haseeb and Ms. Henderson:

• He was taller than me [I am 5'2"… he is about maybe 5 inches taller, I don't know]
• Medium skin tone
• Dark curly hair that was tied back with a hair elastic
• Lean build
• Short facial hair. Dark
• He told me he was 25
• He said he had a business
• He had a chain in his pant pocket. Silver
• He was wearing a t-shirt covered in a candy pattern
• Wearing a sports jacket. Dark grey or black. A softer material
• Long pants
• Dark coloured socks
• Black slip-on loafers

[36] Like Ms. Haseeb and Ms. Henderson, Ms. Jacobs identified Mr. De La Cruz in court as being the man whom she encountered on February 23rd.

IV. ANALYSIS OF THE EVIDENCE

A. A Note about Credibility

[37] Mr. De La Cruz has not seriously challenged the credibility of any of the Crown witnesses. The focus of his scrutiny has been the reliability of each witness.

[38] I found each and every Crown witness to be credible and well intentioned. I am satisfied beyond any doubt that each believed in the truth and accuracy of the evidence they provided.

[39] Honest witnesses can nevertheless prove to be inaccurate or unreliable. The resolution of the two main issues in this case will turn on my assessment of the reliability of the witnesses called by the Crown. With that in mind, I turn to the first issue.

B. Was there an Assault?

[40] Ms. Haseeb's description of the event can only be interpreted as an assault. Ms. Haseeb's description of the event can only be interpreted as an assault. In my view, it affords no other reasonable interpretation – and it categorically rules out the possibility of accident.

[41] Certainly, when the lights go out, inadvertent contact becomes possible. But the lights went out not once, but twice. With regard to the second occasion, Ms. Haseeb described being grabbed by her hair at the nape of her neck, being pulled by her hair and pulled into the garbage cans that stood between her and the stranger. She then described being pushed to the ground and she described her head repeatedly getting pushed against the kitchen table leg. All the while, the man would not let go of his grasp. She also described the stranger trying to scratch her head and face. In her observation, his actions were the product of a concerted effort, even though she could only feel what was happening in the dark. She described clawing at him to keep him at bay. She also described forcefully pushing him off of her with both feet. There was no apology as one might expect with an accidental collision. There was a struggle. There was a resistance to that struggle. And then there was flight – followed by a brief pursuit. The flight itself provides evidence of her counterpart's view of the incident. Flight would be out of all proportion to an accidental entanglement in the dark. Only a failed attack reasonably explains the flight.

[42] I am convinced beyond any doubt that Ms. Haseeb was assaulted.

[43] I must turn now to consider whether the Crown has established beyond a reasonable doubt the identity of the attacker.

C. Has the Crown Proven that the Accused was the Assailant?

[44] Eye-witness evidence is a form of lay opinion evidence: Watt's Manual of Criminal Evidence, David Watt, 2018: Thomson Reuters Canada Ltd. Courts have come to recognize this evidence as inherently frail and prone to honest human error. Honest but mistaken witnesses may nevertheless make convincing witnesses. The research shows that there is a very weak relationship between the witness' confidence level and the accuracy of the identification. Despite this weak correlation, the confidence level of the witness can have a "powerful effect on jurors": see Manitoba, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001) at 28; see also R. v. Hibbert (2002), 2002 SCC 39, 163 C.C.C. (3d) 129 (SCC) at 148; and R. v. Hanemaayer, 2008 ONCA 580, [2008] O.J. No. 3087 (C.A.). Accordingly, I caution myself to show extreme care in scrutinizing the identification evidence in the case before me.

[45] Having carefully considered the identification evidence in this case, I am satisfied beyond a reasonable doubt that Mr. De La Cruz is the man who engaged in the altercation with Ms. Haseeb. I come to this conclusion for several reasons.

[46] I begin by noting that there exists some circumstantial evidence that corroborates Ms. Haseeb's identification. In particular, I note that Mr. De La Cruz's name was provided by Mr. Hagi, who connected Mr. De La Cruz to the cab ride taken by two men from the vicinity of the crime shortly after the commission of the crime. I do not consider Mr. Hagi's claim for the truth of its contents. I do consider it for the fact that it was made and consider that fact in conjunction with the fact that Ms. Haseeb picked Mr. De La Cruz's photograph out of a photo-lineup that was constructed on the basis of Mr. Hagi's claim. Mr. De La Cruz's photograph was not selected out of thin air. The police utilized this photograph in the photo-lineup because they received information from a man located inside the cab fare's destination that Mr. De La Cruz was an occupant of that cab. With this narrative context in mind, Ms. Haseeb's selection of Mr. De La Cruz's photo from the twelve photos shown constitutes a remarkable coincidence. I appreciate that neither party encouraged me to go down this path of reasoning, and the defence provided arguments to support its position. However, I am persuaded, upon reflection to conclude that the narrative context and the coincidence that spawns from it constitute compelling circumstantial evidence.

[47] Furthermore, the photo-lineup procedure that resulted in Ms. Haseeb's identification of the accused also provides me with substantial assurance of the reliability of the identification. I say so for several reasons. First, as I have already I observed, the photographs in the photo-lineup depicted men who all generally resembled the photograph of Mr. De La Cruz. I therefore conclude that no structural bias existed in the photographic array: see Hanemaayer, supra. Second, apart from the length of the subjects' hair, the photographs bore a general resemblance to Ms. Haseeb's description of her attacker. I note here that it would appear that the police did not possess a photograph of the accused with long hair in a ponytail. Having said that, they utilized a relatively recent N.I.C.H.E. photograph of him, a photograph which I could easily and without doubt conclude was a photograph of the accused. Had the other eleven subjects been depicted with long hair in pony tails, but Mr. De La Cruz had not, the array would have contained an obvious structural bias. Using subjects with somewhat similar hair as the hair in the accused's photograph was the only fair way to proceed. Third, the officer who administered the lineup procedure had no knowledge or prior involvement in the investigation; accordingly, there existed virtually no chance for him to consciously or unconsciously steer Ms. Haseeb to Mr. De La Cruz's photograph. Fourth, the photographs were presented in sequential fashion and Ms. Haseeb was instructed to come to a conclusion regarding each photograph and to record that conclusion prior to moving on to the next photograph. She was also advised that the suspect may or may not be in the lineup. Given her inability to pick a suspect from the first lineup, I infer that she was very much alive to this possibility and thus not vulnerable to the implication that the actual culprit must be somewhere in the stack of photographs. Fifth, I note that the entire procedure was audio and video recorded, which provided additional evidence of the absence of any intentional or unintentional contamination of the procedure. Finally, I note that this photo-identification procedure occurred within a mere eleven days of the incident. Accordingly, I consider the proximity of the prior identification to provide an additional assurance of its reliability.

[48] I should also note, as discussed previously, that Ms. Haseeb had an ample opportunity to make observations of her attacker in good lighting and at a range in which her eye-sight was capable of accurately discerning the features of her attacker's face. I acknowledge that she was somewhat uncertain as to whether or not she was wearing her glasses at the time of the altercation. However, she gave unchallenged evidence of her capacity to make clear observations of someone in close proximity to her, even without eye-glasses. I also note that she was wearing her glasses in the photograph taken by the identification officer a short time after the assault.

[49] Ms. Haseeb's prior descriptions and her prior selection of Mr. De La Cruz in a photographic lineup provide substantial corroboration for her in-dock identification and in-court descriptions of Mr. De La Cruz.

[50] The taxi-driver also provides substantial corroboration of Ms. Haseeb's identification. She picked up a cab fare right across the street from the scene of the crime very soon after the time of the commission of the crime. Her near contemporaneous description of the front passenger is very similar to Ms. Haseeb's description of her attacker: she describes a man of similar racial composition, with a similar hairstyle, and a similar build. She also made a point of discerning whether or not this passenger wore braces. I appreciate that the term "braces" might potentially refer to something different than the "wire" described by Ms. Haseeb, but neither party asked the taxi driver to explain her use of the term braces and whether or not she considered a "wire" to be a kind of "braces". The employment of different dental hardware terminology by the two witnesses created merely the possibility of an inconsistency. I do not know why, but the Crown did not call evidence about whether the accused had dental hardware at the time of his arrest, nor did the defence, so I am not in position to know whether either, both, or neither of the two descriptions was consistent or inconsistent with Mr. De La Cruz's presentation near the time of the offence. Therefore, in the end, an inconsistency was never actually established. As a result, I consider the alleged presence of orthodontic hardware in the mouth of both the assailant and the taxi passenger to be a probative coincidence.

[51] In addition to the cab driver's near contemporaneous description of her front passenger, the narrative context she provided corroboration of Ms. Haseeb's identification. In particular, Ms. Henderson's account of the front passenger's conversation with the rear passenger provides compelling evidence that corroborates Ms. Haseeb's identification of Mr. De La Cruz. As the rear passenger chided the front passenger, the front passenger provided his age: 28 years old. That age happens to correspond with the age of the accused, which itself is revealed on the face of the Information. Also, in response to being chided by the rear passenger, the front passenger stated "I shouldn't be alive… I was brought up by a good Christian family" – which I have noted is a recrimination consistent with remorse. This utterance was made by a cab fare that entered the cab a short period of time and a short distance away from the time and place of the attack. Given the context, this utterance provides powerful circumstantial evidence that the man who made it was the attacker. The probative value of this circumstantial evidence increases when one considers that the fact Mr. Hagi named Mr. De La Cruz as an occupant of that taxi and that Ms. Haseeb picked Mr. De La Cruz out of a photo-lineup whose creation was inspired by the information provided by Mr. Hagi.

[52] I recognize that, standing alone, a first-time in-dock identification should be given virtually no weight: R. v. Izzard, [1990] O.J. No. 189 (C.A.); R. v. Hibbert, 2002 SCC 39, [2002] S.C.J. No. 40. However, Ms. Henderson's in-dock identification did not stand alone. It was corroborated by her contemporaneous description of the suspect's appearance and by the above noted narrative context. As a result, I am prepared to give her in-dock identification of Mr. De La Cruz weight.

[53] Considered in its entirety, I therefore find that the evidence of the taxi-driver provides substantial corroboration of what I already consider to be the compelling identification evidence of Ms. Haseeb.

[54] I am not inclined to assign any weight to Ms. Jacobs' in-dock identification of Mr. De La Cruz. True, I am prepared to find as a fact that the man she spoke to on March 10th was the man with whom she had a "sexual encounter" on February 23rd. The content of her conversation with him on March 10th and her voice recognition evidence lead me to this conclusion. However, she did not provide a physical description of her attacker to anyone until after speaking with Ms. Haseeb on March 10th. Indeed, she did not even make a police complaint until March 10th. She also never took part in a photo-lineup procedure. In addition, there is virtually no circumstantial evidence from the February 23rd event itself that bolsters her identification. I therefore conclude that while the evidence of Ms. Haseeb and the taxi-driver are capable of providing circumstantial evidence to corroborate Ms. Jacobs' identification of her February 23rd attacker [if that is a proper characterization of her counterpart in the so-called "sexual encounter"], I am not satisfied that the converse is true.

[55] In the final analysis, though, Ms. Jacobs' evidence is not essential to the Crown's case. Instead, the evidence of Ms. Haseeb, the evidence of her prior identification of the accused, the circumstantial narrative evidence, and the evidence of Ms. Henderson combine to convince me beyond any reasonable doubt that Mr. De La Cruz was the man who attacked Ms. Haseeb on March 10, 2018.

D. CONCLUSION

[56] For all of the above noted reasons, I am satisfied beyond a reasonable doubt that Mr. De La Cruz assaulted Ms. Haseeb on March 10, 2018. I will register a finding of guilt on the return date, which is April 24, 2019.

Released: April 9, 2019

Signed: Justice C.A. Parry