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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and
(b) on application made by the victim, 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.
ONTARIO COURT OF JUSTICE
CITATION: R. v. Siddiq, 2019 ONCJ 432
DATE: 2019 06 18
COURT FILE No.: Toronto, College Park 17-75003532
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MUSTAFA SIDDIQ
Before: Justice J.W. Bovard
Heard on: August 16, 2018; January 11, 2019
Reasons for Judgment released on: June 18, 2019
Counsel: Ms. S. Duffey, counsel for the Crown Ms. A. Barnes, counsel for the defendant Mustafa Siddiq
Bovard J.:
- These are the court’s reasons for judgment after the trial of Mustafa Siddiq on one count of sexual assault on July 22, 2017.
The issue
- The issue is identity.
Introduction
Around 3:30 a.m. on the day in question, the complainant and her grandson and nephew went to an apartment building on Sherbourne Street to pick up her daughter. She parked her truck in front of the building. As she was on her way to the lobby of the building a man that was standing by her truck grabbed her buttocks.
She immediately returned to her truck, locked the doors and stayed in the truck for a short time. The man walked up Sherbourne Street to a convenience store. The complainant followed him in her truck. She lost sight of him for a couple of minutes. Then she saw him go into the store.
She returned to the apartment building and spoke to a police officer that was there for another incident. She described her assailant to him. The officer went to the convenience store and obtained a surveillance videotape that shows Mr. Siddiq in the store making a purchase. The complainant alleges that he was her assailant.
The defence argues that the complainant’s description of her assailant does not sufficiently describe Mr. Siddiq as the culprit. The Crown argues that it does.
The evidence
The complainant was unsure about many of her estimates of the time that the events occurred. In examination-in-chief, she said that at approximately between 3:00 a.m. and 3:30 a.m., her daughter called her and asked her to pick her up at an apartment building on Sherbourne Street in Toronto. The complainant told her that she needed about half of an hour to get there.
In cross-examination, she said that when her daughter called her she looked at the clock on her computer. It was 3:05 a.m. or 3:10 a.m.
Later, she said that because of the passage of time she could only remember that it was between 3 a.m. and 3:30 and a.m. She also remembered that she left her home between 3 a.m. and 3:30 a.m.
The complainant and her grandson and nephew went to the apartment building to pick up her daughter. It took her 15 to 20 minutes to get there. She arrived at “around a quarter after three, 3:30”.
In cross-examination, she said that she did not know exactly, but she estimated that she arrived at the apartment building at 3:30 a.m. because she supposed that it took her 15 to 20 minutes to get there.
I find this odd because she said she her daughter called her between 3:00 a.m. and 3:30 a.m. and that it would take her about half an hour to get there (actually it only took her 15 to 20 minutes).
In addition, how could she have gotten to the apartment building at 3:30 a.m. if her daughter called her between 3:00 a.m. and 3:30 a.m.? Therefore, I question her ability to recollect accurately the time that these events took place.
When she arrived, she parked beside a security car in a “two car parking” area next to the building. She told her grandson and nephew to stay in the car while she went to the lobby to tell the security guard to tell her daughter that she was there to pick her up. The lobby was not far away from her truck. The children would not lose sight of her, nor her of them.
She got out of her truck and locked it. There were artificial lights illuminating the area. As she walked between her truck and the car parked next to her she saw a man leaning up against the back of her truck. He lifted himself off of her truck to let her go by.
She started to go around the car parked next to her when suddenly the man grabbed her buttocks with a force that “wasn’t light”. She pulled away and asked him “what the hell are you doing”? He looked at her and said “Yo, bitch, I just grabbed your ass and I’m gona grab it again”. He started towards her. She ran into her truck and locked the doors.
Her husband had passed away the previous November. No other man had ever touched her. Her assailant made her feel dirty. She “remember[ed] “this day like it was yesterday”.
At first, in examination-in-chief, she said that she started her truck and sat for two minutes to compose herself. But as her evidence progressed she gave different time estimates of how long she sat in the truck before she drove away.
On August 16, 2018, the first time that she testified, she said that after the incident she sat in her truck “in shock” for a couple of minutes. After she gave the two minute estimate she said that she was not sure if it was exactly 2 minutes but “I sat for a minute. Whatever how long”.
On January 11, 2019, the second time that she testified, she said that it was “a minute - I say about maybe 30 seconds”. I suspect that this was an effort on her part to modify her evidence in order to neutralize the cross-examination, which was highlighting the implausibility of her time estimates.
While she was sitting in the truck, the man started to walk north on the sidewalk of Sherbourne Street towards a convenience store on the corner of Sherbourne Street and Dundas Street. She followed him in her truck. Throughout the interaction with the man there were no other persons on the street.
Regarding keeping an eye on the man after the assault, on August 16, 2018, she said that she never lost sight of him.
On January 11, 2019, she said that she lost sight of him on three occasions, but “not for a long time”: (1) when she sat in her truck “in shock” after the incident, (2) when she was backing up her truck and pulling onto “the main drag”, which I interpret as being Sherbourne Street, and (3) when he went around “a corner of stores and you go around the corner to go into them”. When he went around this “corner of stores” she lost sight of him for “a few minutes”. Then, “when I got up more, I seen him going in the store”.
The complainant mentioned that when she was trying to back up onto Sherbourne Street she had to “wait for the traffic”. I grant that she testified that “… when I was backing up and I got to the sidewalk part, like where the fence is, I looked and you can still see him walking. So I still had sight of him”. However, it seems to me that she lost sight of him for at least the time that it took her to check the cars that were going by while she waited to pick her spot in traffic to pull onto Sherbourne Street.
According to the maps in evidence, the cars would have been going northbound on Sherbourne Street towards Dundas Street. This means that she would have to have been looking southbound at the cars while her assailant was walking northbound towards the convenience store.
Her evidence supports this supposition where she says “I can see everything. Until I actually turned around to make sure there was no cars on the other side coming and I could back up, …”
She said that this was the only time that she lost sight of the man. This is inconsistent with other parts of her testimony where she said that there were other times when she lost sight of him. Perhaps, she meant that it was the only time she lost sight of him while she was backing up onto Sherbourne Street.
I note that while she was waiting to pick her spot in traffic in order to back onto Sherbourne Street it would have been very difficult for her to look at the oncoming traffic and at her assailant at the same time. She did not estimate how long it took her to find an opening in traffic in order to pull out onto Sherbourne Street.
She said that the convenience store was “about 12 houses up” from where she was parked. It would take less than two minutes to walk there if you were walking “fast enough”.
It was “around quarter to four, ten to four” when the man entered the convenience store. She did not want to pull into the parking lot of the store because there were persons hanging around the parking lot that she suspected were unsavory characters. So she drove past the store and stopped for the traffic light at the corner of Dundas Street and Sherbourne Street. She said that from her truck, as she waited for the traffic light to change, she saw her assailant enter the store.
She drove through the intersection. She saw a police cruiser driving south bound on Sherbourne Street. She turned around and followed the cruiser, trying to flag it down. The cruiser went to the apartment building where she had been assaulted. She pulled in beside it and told one of the officers that she had just been sexually assaulted by a man.
One of the officers asked her to tell him what happened. The complainant told him what had happened and described her assailant. She told the officer that he went into a convenience store at the corner of Dundas Street and Sherbourne Street. The officer went to the store. He obtained the surveillance videotape from the store. He told her that they had video surveillance from the store and that she had given “a great description”. The other officer told her to go to 51 Division the next day to give a statement, which she did.
In examination-in-chief, the complainant described her assailant as follows:
… middle built, curly wet looking hair, black in colour. Well, I’m not sure if it was black or brown, but it was dark, but it was a dark colour. He was wearing red ball shorts [to the knees], … A white t-shirt with writing on the front and sandals or flip-flops.
It was dark, but I say he was anywhere between like his – he was in his 30 or 40’s …
… He’s an olive colour. He’s – I don’t want to be ignorant or nothing, but like, Pakistanian (sic), but he wasn’t dark. He was not light, but he wasn’t dark.[^1]
After she gave this description, the Crown played the surveillance video from the convenience store for the complainant. At 3:45 a.m., it recorded a man as he walked through the parking lot and into the store. She identified him as her assailant. She said that the man on the video was of medium build, as was her attacker. She described the man in the video as being of medium build because she compared him to her brother-in-law who weighs “maybe 500 pounds”.
She also identified her truck in the background in the video as she was stopped for the traffic light at the corner of Sherbourne Street and Dundas Street.
The complainant watched two additional surveillance videotapes that depicted the inside of the store. She identified her assailant in the videos. The timestamps of these videos start at 3:44:47 a.m., and at 3:44:58 a.m.
The video surveillance shows the person that she identified as her assailant leaving the store at 3:50 a.m.
In the video, the t-shirt that the man is wearing looks pink. This contrasts to the complainant’s evidence that her assailant was wearing a white t-shirt. When defence counsel put this to her she said that she remembered that when she was following the person that she thought was her assailant, the t-shirt that he was wearing looked white with some different colours on the front.[^2]
The complainant stated that she did not see the surveillance videotape prior to testifying. I note that in her description of the t-shirt in examination-in-chief, cited above, she said that the t-shirt had writing on the front. She gave this description before the Crown played the surveillance videotape for her, which shows that the t-shirt did not have writing on it, but rather, a coloured design.
As shown above, later, in cross-examination, she states that the t-shirt had “some different colours on the front”. She does not mention the writing anymore. I find that it is highly likely that she changed her evidence to agree with how the t-shirt is depicted on the videotape. I noted above that she similarly changed her testimony to match the evidence with regard to her time estimates. This damages the reliability and credibility of her evidence regarding the t-shirt that her assailant wore.
Regarding the colour of the t-shirt, in spite of seeing the surveillance video tape, which depicts a pink t-shirt, she stuck by her account of it being a white t-shirt. She guessed that the difference in colour on the videotape “could have been the colour of the video”.
Regarding the lighting on the street when she was making these observations, she said that “It was light enough. Like, I could see the man. I can’t … say it was perfect … it wasn’t as bright as this, but I could see him clear as day”.[^3] Since it was between 3:30 a.m. and 4:00 a.m. I find that saying that it was clear as day is an exaggeration.
The complainant said that “On a scale of one to ten” her level of certainty that the person that she identified on the video was her assailant is “100”. She said that Mr. Siddiq is that person. She is “100 percent certain” that Mr. Siddiq was her assailant. She said that she would never forget his face.
Officer Bezley testified that three days after the incident he arrested Mr. Siddiq at 191 Sherbourne Street, unit 916. He seized a pink t-shirt from the apartment. He took pictures of Mr. Siddiq. They are exhibits. The t-shirt does not have writing on the front, just designs.
When defence counsel questioned the complainant about the colour of the t-shirt in the picture, she said that “It could be the picture”.
Officer Bezley confirmed that the Google map that is an exhibit indicates that it is a 170 meter, two minute walk, from 191 Sherbourne Street to the convenience store. He confirmed that the map also shows that from 200 Sherbourne Street, where the incident occurred, to the store is about 90 meters.
That was all of the evidence.
The law
Regarding the dangers of eye-witness identification evidence, I have instructed myself concerning this and I have followed the dictates of the courts in the following cases.
In R. v. Nikolovski, the Supreme Court said that “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”.[^4]
But despite this possibility, the jurisprudence below states clearly that triers of fact must exercise great caution in assessing eye witness identification evidence. All of the circumstances, including corroborative evidence must be considered.
In R. v. Burke[^5], Sopinka, J. said the following concerning the frailties of visual identification and the consequences of a trial judge's unquestioned reliance on it:
"The cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made by direct visual confrontation of the accused. By reason of the many instances in which identification has proved erroneous, the trier of fact must be cognizant of 'the inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection': R. v. Sutton, 1969 497 (ON CA), [1970] 2 O.R. 358 (C.A.) at p. 368. In R. v. Spatola, 1970 390 (ON CA), [1970] 3 O.R. 74 (C.A.), Laskin J.A. (as he then was) made the following observation about identification evidence (at p. 82):
Errors of recognition have a long documented history. Identification experiments have underlined the frailty of memory and the fallibility of powers of observation. Studies have shown the progressive assurance that builds upon an original identification that may be erroneous. . . . The very question of admissibility of identification evidence in some of its aspects has caused sufficient apprehension in some jurisdictions to give pause to uncritical reliance on such evidence, when admitted, as the basis of conviction. . . . [Emphasis added]"
- In Regina v. Thompson; Regina v. Wilmot[^6] the court said:
The case law makes it clear that the jury should be instructed about the need for caution when dealing with identification evidence "[w]here the prosecution's case depends substantially upon the accuracy of eyewitness identification": see R. v. Wristen (1999), 1999 3824 (ON CA), 47 O.R. (3d) 66 at 80, 141 C.C.C. (3d) 1 (C.A.).
Recently, in R. v. Bao[^7], the Court of Appeal reminded us of the “inherent frailties generally associated with eyewitness identification evidence”. They stated that the weaknesses of this type of evidence is “well known and have been discussed by the courts on countless occasions”.
Although jurisprudence from the United States is not binding, it is interesting to note that the courts in the United States have also emphasized the weakness of eyewitness identification evidence.
In People v. Boone[^8] the New York Court of Appeals stated that mistaken eyewitness identifications are “the single greatest cause of wrongful convictions in this country” (State v. Delgado, 188 NJ 48, 60 [2006]. The court observed that “Inaccurate identifications, especially misidentifications by a single eyewitness, play a role in the vast majority of post-conviction DNA-based exonerations in the United States”.
In McWilliams’ Canadian Criminal Evidence (5d)[^9], there is a lengthy discussion of the frailties of eye witness identification evidence. The authors cite R. v. Biddle[^10], which states that “the assessment of the probative force of eyewitness evidence does not generally turn on credibility assessments, but rather on considerations of the totality of the circumstances pertinent to that identification”.
The authors of McWilliams’ conclude that the “assessment by the trier must primarily focus on reliability having regard to a number of non-exhaustive factors. They cite numerous cases that have isolated certain factors that are relevant to this assessment.[^11] I have considered the following that are relevant to the case at bar:
a. Opportunity, capacity to observe, and conditions surrounding the observation; (I consider these as being the duration of the observation, light conditions, the distance from the witness to the person observed etc.)
b. Lapse of time between the observation and the identification;
c. Previous acquaintance with the accused;
d. Presence or absence of distinctive features or appearance of the accused;
e. Emotional state including stress, the presence of violence
f. Cross-racial identification;
g. The amount of detail including physical descriptors which may increase reliability as opposed to generic descriptions;
h. The absence or existence of corroborative evidence.
To this list I would add any suggestion by the police that based on the description that the witness gave of the wrongdoer they have the culprit in a picture or on video.
I will discuss each factor individually.
Any suggestion by the police that based on the description that the witness gave of the wrongdoer they have the culprit in a picture or on video.
- After the police officer obtained the surveillance videotape from the convenience store he told the complainant that they had the videotape and that she had given a “great description”. Although the complainant did not see the videotape prior to testifying in court, I find that there is a danger that the officer’s comment communicated to the complainant that the culprit would be depicted in the videotape. Therefore, there exists the danger that she was conditioned to expect to see the culprit in the videotape when the Crown played it in court and she identified Mr. Siddiq as the culprit.
Opportunity, capacity to observe, and conditions surrounding the observation; (I consider these as being the duration of the observation, light conditions, the distance from the witness to the person observed etc.)
The Crown stated that the complainant testified in a “very clear and very detailed and forthright” manner. I think that the complainant was an honest person who tried her best to give an accurate account of what happened on the day in question. At times her evidence was clear and detailed, but at times it was not.
For example, the Crown submitted that when the complainant pulled out onto Sherbourne Street after the assault, Mr. Siddiq had not walked far.[^12] However, there is no direct evidence regarding how far he walked after the assault.
At first, in examination-in-chief, the complainant said that she spent a couple of minutes in her truck before she started to back out onto Sherbourne Street. Later, in cross-examination, she whittled this down to between 30 seconds and a minute or “whatever”. As I observed above, I think that the shorter time estimates were her efforts to minimize the effect of the cross-examination, which was undermining her estimates of time. I have more confidence in her initial estimate of approximately two minutes.
The complainant said that the convenience store was about 12 houses away from where the assault occurred. She said that it would take less than two minutes to walk to the store if you walked “fast enough”. Therefore, if the complainant’s evidence when she first testified in-chief is accepted: that she sat in her truck for approximately two minutes after the assault before she backed out onto Sherbourne Street, it is possible that the assailant could have been at least half way to the store, even if he was not a particularly fast walker.
This would make it doubtful that the assailant had not walked far. This in turn would diminish the quality of her view of the suspected assailant as he walked up the street. Consequently, it would make it more difficult for her to identify the man walking as her assailant because he would have been quite a few meters up the street, which was illuminated solely by street lights. In addition, she was under a lot of stress at this time.
The complainant did not have but a few seconds to observe her assailant before he assaulted her. After the assault, she asked him what he was doing. He said that he had just grabbed her buttocks and was going to do it again. She immediately ran into her truck. She did not say how long this interaction took, but is safe to deduce that it was quite quick. It was nighttime. Although there was lighting in the area, it was artificial lighting.
Therefore, the total time that she observed her assailant during the incident was quite brief.
Lapse of time between the observation and the identification
The complainant’s evidence regarding when she got to the apartment building was not clear. From what she said I find that she arrived there between 3:30 a.m. and 4:00 a.m. Therefore, the assault occurred at approximately sometime during this half hour.
The Crown maintained that the complainant's time estimates with regard to when her assailant walked into the convenience store are “bang on”. They coincided with the time stamps on the video surveillance obtained from the store. She said that she saw her suspected assailant walking into the store “around quarter to four, ten to four”. The surveillance video shows Mr. Siddiq walking into the store at 3:47 a.m.
However, this does not necessarily prove that Mr. Siddiq was her assailant. It proves that he entered the store at that time. I would point out here that just before the person that the complainant was following on Sherbourne Street got to the convenience store she lost sight of him for a few minutes. In these circumstances, this is a long time. It creates the possibility that other persons could have come into the area captured by the surveillance video. The complainant testified that there were several dodgy persons in the parking lot in front of the store. Therefore, her suspected assailant was not the only person in the immediate area.
There is no evidence of what time it was when she gave the police her description of the assailant. One might try to calculate that after the assault up to two minutes passed until she started to pull out onto Sherbourne Street. There is no evidence of how long she had to wait for an opening in traffic before pulling onto Sherbourne Street.
Then it took her another couple of minutes to drive up to the corner store. Perhaps another five to ten minutes passed for her to wait at the traffic signal, go through the intersection, make a U-turn and drive back to the scene of the crime and speak to the officer. In these circumstances I find that she gave her description within approximately 15 minutes of the assault occurring.
Previous acquaintance with the accused
- The complainant had never seen her assailant before. This was a case of “stranger identification”. See, Bao at paragraph 19 where the court states:
As this court cautioned in R. v. Tat (1997), 1997 2234 (ON CA), 117 C.C.C. (3d) 481, at para. 100, concerns about eyewitness identification “are particularly high where the person identified is a stranger to the witness”: see also R. v. Goran, 2008 ONCA 195 234 O.A.C. 283, at para. 32.
Presence or absence of distinctive features or appearance of the accused
The Crown argued that the complainant's description of her assailant matches the description of Mr. Siddiq as shown in the surveillance video tape. Both the man that she described as her assailant and Mr. Siddiq as he appears in the surveillance videotape are in their 30s or 40s, have an olive complexion, curly, wet looking, black hair, were wearing red ball shorts to the knee, flip flops, t-shirt, and were of medium build.
The complainant described her assailant as being of “medium built” in comparison to her 500 pound brother-in-law. This may be the way she sees things, but it does not correspond to the conventional meaning of a “medium build”.
There is no evidence regarding Mr. Siddiq’s weight, but on the video surveillance tape, and in court, Mr. Siddiq appears much too heavy to qualify as being of medium build as that term is commonly understood. He appears to be in a 250 pound range. It is clear that a person that weighs this much is not of medium build.
One might say that, in spite of society's general understanding of what a person of medium build looks like, the complainant is entitled to her subjective characterization of a person's build and that according to her subjective belief the person in the video was of "medium build" and, therefore, was the same size as her assailant. Of course, this would distort beyond recognition and render meaningless the conventionally agreed on meaning of "medium build".
Another part of her evidence calls into question the meaning of her words when she is describing her assailant compared to how Mr. Siddiq appears in the videotape. She testified in cross-examination as follows:
Q. And the person you said to the police, when you were describing him, you said he was medium build, right?
A. I said he wasn’t small and he wasn’t big. (emphasis added)
A. ... a fair size man. Like, he’s a medium built man. He’s not small like the judge. He’s not big like my brother in law. He’s in between. So, he’s a fair size man. He’s a medium built.
Her description of her assailant as being of medium build is clearly contrary to how Mr. Siddiq appears in the surveillance videotape. Regardless of the interesting semantical/perceptual issue that the complainant raised by her method of determining the relative sizes of human bodies, it is untenable to say that Mr. Siddiq does not appear as big in the videotape. Even if he does not weigh 500 pounds, he is still clearly a big man as the term is commonly used. This seriously damages the reliability of her testimony that Mr. Siddiq was the man that assaulted her.
I suspect that the semantical journey on which the complainant took the court results from her having to reconcile the description that she gave in examination-in-chief of her assailant being of medium build, with Mr. Siddiq’s corpulent appearance on the surveillance tape, which she only saw after she gave her description in-chief. This explains her curious evidence that contradicts the definition of what one would reasonably classify as a big man.
Another problem with her identification of Mr. Siddiq as her assailant is that the t-shirt that the person is wearing in the videotape is pink, not white as she said her assailant wore. When defense counsel referred her to the picture of the pink t-shirt that the police seized at Mr. Siddiq’s apartment, she simply said “it could be their picture”. This is not a satisfactory explanation of the difference between the two t-shirts.
Defence counsel concedes that in parts of the surveillance videotape the t-shirt looks pink, in others it looks white. However, when it looks white it still has pink tinges.
The Crown argued that the difference in color between the t-shirt that the complainant described was being worn by her assailant and the color of the t-shirt that Mr. Siddiq is wearing in the videotape “can be explained by way of perhaps the lighting in the … area”.
The Crown argues that "It's not so … drastic a contrast that it would render the rest of [the complainant's] description unreliable”.[^13] But this explanation is speculative. There is no evidence regarding what could turn a white t-shirt into a pink one.
A further concern with the complainant’s description is that she described her assailant as having “curly wet looking hair” that was dark. The Crown concedes that the still pictures taken from the video surveillance tape do not “show with particular detail … whether or not Mr. Siddiq’s hair was curly at the time”.[^14]
The Crown said that notwithstanding this, with the exception of the wrong color of t-shirt, the complainant's description of her assailant matches that of Mr. Siddiq. The Crown notes that the police who arrested Mr. Siddiq took pictures of him that show his hair as “curly and perhaps wet looking”. I note, however, that “perhaps" wet looking is not a very certain descriptor and it waters down the strength of the description.
I do not doubt that the person in the videotape is Mr. Siddiq. But as indicated above, this does not necessarily mean that Mr. Siddiq is the culprit. Just being in the store at this time does not necessarily implicate him as the assailant.
Emotional state including stress, the presence of violence
The incident took the complainant aback. She said that no man had ever touched her other than her husband who passed away approximately eight months before. The assailant made her feel dirty. Understandably, this put her in a state of emotional upset that she described as being “in shock”. This naturally would affect her perceptual abilities and her ability to recall from there on.
An indication of the degree of her upset is that she had trouble remembering how long she sat in her truck. At first, she said that it was two minutes. Later, she said that she was not sure if it was two minutes. Then she testified that she “sat for a minute. Whatever how long”. On the last day of her testimony she stated that it was “a minute … maybe 30 seconds”.
As I stated above, I suspect that her last time estimate was an effort on her part to modify her evidence in order to neutralize the cross-examination, which was highlighting the implausibility of her time estimates. I suspect that she realized that the less time that she spent in her truck recovering from the assault, the closer the culprit who was walking away up Sherbourne Street would be to her. And the shorter this distance was, the stronger her evidence would be of what she said she saw of this person.
Cross-racial identification
This is a case of cross-racial identification. The complainant is Caucasian, Mr. Siddiq is not. McWilliams cites jurisprudence where the courts have referred to added difficulties in the reliability of eye-witness identification evidence when the witness and the person identified are of different races.[^15]
In addition, the Bao court cites cases where this weakness has been discussed.[^16]
The amount of detail including physical descriptors which may increase reliability as opposed to generic descriptions
The Crown argued that the complainant's evidence is reliable because she gave a detailed account of what happened on the evening in question, which corresponds with the corroborative evidence; namely, the surveillance footage and the pictures of Mr. Siddiq that the police took when they arrested him.
This is true for some of the corroborative evidence. It is not true for the colour of the t-shirt, nor for the size of her assailant compared to Mr. Siddiq as he appears in the videotape, unless one accepts the complainant’s peculiar idea of what constitutes “medium build”.
I agree that the complainant gave a significant amount of detail regarding the events, including a physical description. My comments above regarding her evidence address this factor. Therefore, I will not repeat what I said above in this regard.
The absence or existence of corroborative evidence
The Crown asserts that the complainant’s evidence “is reliable given that she is able to give a detailed recollection of what happened that evening that corresponds with the corroborative evidence that has been presented by the Crown namely the – the surveillance footage that has been tendered as well as the images of Mr. Siddiq on arrest”.[^17]
There are two significant problems with the complainant’s evidence with regard to the corroboration. First, she described her assailant as having a medium build and not being big. Mr. Siddiq does not have a medium build as that term is conventionally understood. Moreover, as indicated above, in the videotape he appears as a big man contrary to the complainant’s description of him as “not big”.
Second, the complainant said that her assailant wore a white t-shirt. In the video surveillance tape Mr. Siddiq is wearing what appears to be a pink t-shirt. I grant that at times the t-shirt looks white, but it always has pink tinges. The t-shirt that the police seized from Mr. Siddiq’s apartment is clearly pink, which matches the colour of the t-shirt that he is wearing in the surveillance video. This leads me to conclude that the parts of the video that depict Mr. Siddiq’s t-shirt as white are faulty. The fact that when the surveillance video shows the t-shirt as white it still has pink tinges supports this conclusion.
In addition, the complainant said that the culprit’s t-shirt had writing on it. Mr. Siddiq’s t-shirt does not have writing; it has a design.
Finally, the Crown reminded the court that the complainant is “absolutely certain that this man [in the videotape] is the person who … sexually assaulted her that evening”[^18].
Regarding the complainant’s confidence that Mr. Siddiq is the culprit, her certitude is not conclusory of the identity of Mr. Siddiq as the culprit. There have been many cases in which eyewitnesses were certain that the accused was the culprit, only to be proved wrong later. In R. v. Hibbert[^19], Arbour J. stated that there is a “very weak link between the confidence level of a witness and the accuracy of that witness (Sophonow Inquiry, at p. 28)”.
Disposition
- I have considered all of the evidence, the circumstances, the jurisprudence and the submissions of counsel. I do not doubt that a man grabbed the complainant’s buttocks as she said. However, for the reasons stated above, when I consider cumulatively the frailties of the complainant’s evidence, I am left in reasonable doubt that the man was Mr. Siddiq.
Released: June 18, 2019
Signed: Justice J.W. Bovard
[^1]: Transcript, August 16, 2018, page 23, lines 3-6 [^2]: Ibid., page 53, lines 11-22 [^3]: Ibid., page 53, lines 26-28 [^4]: (1996), 1996 158 (SCC), 111 C.C.C. (3d) 403 (S.C.C.) At p. 413 [^5]: 1996 229 (SCC), [1996] 1 S.C.R. 474 at 498, 105 C.C.C. (3d) 205, @ pr. 52, 46 C.R. (4th) 195 [^6]: 2000 5746 (ON CA), 146 C.C.C. (3d) 128 (OCA), para. 57 [^7]: 2019 ONCA 458, [2019] O.J. No. 2899, para. 14 [^8]: 2017 NY Slip Op 08731, section III of the judgment [^9]: S. Hill, David M. Tanovich, Louis P. Strezos, at 32.40.10 [^10]: (1993), 1993 8506 (ON CA), 84 C.C.C. (3d) 430, at pp. 434-5 (C.A.), revd 1995 134 (SCC), 96 C.C.C. (3d) 321 (S.C.C.) because the Crown split its case at trial (para. 34), not on evidentiary grounds related to eye witness identification evidence. [^11]: See: 32:40:10 [^12]: Transcript, January 11, 2019, page 28 [^13]: Transcript, January 11, 2019, page 31 [^14]: Transcript, January 11, 2019, Crown’s submissions, page 30, lines 26-32; page 31, line 1. [^15]: See: cases cited in McWilliams’, 32:40.10, FN 95 [^16]: R. v. McIntosh (1997), 1997 3862 (ON CA), 35 O.R. (3d) 97 (C.A.), at p. 105, leave to appeal refused, [1997] S.C.C.A. No. 610; R. v. Richards (2004), 2004 39047 (ON CA), 70 O.R. (3d) 737 (C.A.), at para. 32; and R. v. Mey, 2011 ONCA 288, 280 O.A.C. 319, at para. 35 [^17]: Transcript, January 11, 2019, page 33, lines 26-32 [^18]: Ibid., page 32 [^19]: (2002), 2002 SCC 39, 163 C.C.C. (3d) 129 (S.C.C.) at para, 52