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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Court Information

Ontario Court of Justice

Date: June 21, 2019

Court File No.: Brampton 18-13747

Between:

Her Majesty the Queen

— and —

Clayton Williams

Before: Justice N. S. Kastner

Heard on: March 11, March 12, March 13, March 14, March 15, March 21, and March 28, 2019

Reasons for Ruling released on: June 21, 2019

Counsel:

• Ms. Cindy Nadler — counsel for the Crown
• Ms. Paula Rochman — counsel for the accused Clayton Williams

Decision

KASTNER, J.:

Overview

[1] The Crown applies for a ruling of admissibility of part of the evidence of Ms. Alicia Marini, the probation officer and sexual offender supervisor for Mr. Williams, as to her opinion on identification of an unknown male recorded on home surveillance from a home proximate to where a break-in and sexual assault is said to have occurred moments earlier.

[2] This evidence was heard in a voir dire as to its admissibility, in what is referred to as a "Leaney Application".

[3] In the Leaney case, the accused were alleged to have been involved in the robbery of one drugstore and the break-in of another. Both were convicted of armed robbery, of use of a firearm in the commission of that robbery, of break and enter, and, in Rawlinson's case, of possession of stolen property. Leaney appealed all of his convictions and Rawlinson all except the break and enter which he had admitted committing. A majority of the Court of Appeal dismissed the appeals of both on all counts. The issue before the Supreme Court of Canada was whether the Court of Appeal had correctly applied s. 613(1)(b)(iii) of the Criminal Code when it decided that, notwithstanding a finding of error of law, the verdict would necessarily have been the same absent error of law.

[4] The break and enter was recorded on videotape. At trial, four police officers, who were unacquainted with the accused, and a police sergeant, who had been acquainted with Leaney, identified Leaney as one of the persons shown on the videotape. The second person was not identified but matched the description of Rawlinson. The evidence of the police officers was admitted without a voir dire and that of the police sergeant was fully cross-examined. The trial judge viewed the videotape and concluded independently of the police officers' testimony that Leaney was one of the persons shown on it.

[5] The identification evidence of the break and enter was admitted as similar fact evidence in the robbery charge against Leaney. The only other admissible evidence linking Leaney to the robbery and the firearms offence was circumstantial: boxes found hours after the robbery just outside Rawlinson's apartment with Leaney's finger and palm prints on them, a general description of Leaney matching one of the two persons involved in the robbery and Leaney's association with Rawlinson who matched the description of the other person involved in the robbery.

[6] Rawlinson was not positively identified in the robbery. The circumstantial evidence linking Leaney to the crime, however, also linked Rawlinson. In addition, drugs had been found in a bag in his anal cavity, some of the kind stolen in the robbery and some not, and a witness, following his instructions, recovered a sawed-off rifle which was similar to the weapon used in the robbery by the person fitting his description. Finally, Rawlinson declined to testify despite the incriminating circumstances.

[7] On appeal the majority found that two fundamental errors occurred at trial: (1) when the trial judge treated evidence of the break-in as similar fact evidence going to the identification of the accused on the charges arising out of the robbery and, (2) when the evidence of the police officers as to the identity of the persons shown on the videotape was admitted.

[8] Nevertheless it found that the Court of Appeal properly applied s. 613(1)(b)(iii) in upholding Leaney's conviction for the break-in because no reasonable jury, properly instructed and acting judicially, could fail to convict on the admissible evidence presented on the break-in. Since the trial judge arrived at his conclusion as to identity independently of the evidence of the police officers, their evidence "assumed the character of mere surplusage" and its being inadmissible did not impair his independent conclusion. No appearance of unfairness could be said to arise here, nor was there a miscarriage of justice.

[9] However the majority on review held that the Court of Appeal erred in applying s. 613(1)(b)(iii) to the charges against Leaney arising out of the robbery because a reasonable jury could acquit on the evidence. The trial judge's conclusions as to identity in the break-in could not be admitted as similar fact evidence in the charges relating to the robbery. The trial judge erred in using evidence on the break-in trial as similar fact evidence on the robbery and firearms charges against Rawlinson. The Court of Appeal, however, correctly concluded that no reasonable jury, properly instructed and acting judicially, could fail to convict on the admissible evidence on the robbery and firearms charges and properly applied the curative proviso. The admissible evidence against Rawlinson was impressive and the court took into account his failure to explain evidence connecting him to the crime.

[10] Chief Justice Lamer dissented, and found that the trial judge erred in admitting the evidence of the five police officers in Leaney's trial for break and enter. The testimony of four of the officers was inadmissible and that of the police sergeant should first have been considered on a voir dire. The proviso of s. 613(1)(b)(iii) was nevertheless found to be properly operative as regards admission of the police sergeant's testimony. He had been fully cross-examined and the matter was not raised on appeal or through affidavit evidence alleging that his defence had been prejudiced by the omission. The fact that the trial judge arrived at his own conclusion as to Leaney's identity, quite independently of the police officers' testimony, did not result in or appear to result in a substantial wrong or miscarriage of justice.

[11] Wilson J., in dissent, found that:

An appearance of unfairness was created when the trial judge admitted the evidence of the police officers and buttressed his own conclusions with it. The evidence of four of the officers was clearly inadmissible and that of the police sergeant, even if admissible, could not be separated from that of the other officers because the overall appearance was still one of unfairness. A voir dire should have been held to determine the admissibility of the police sergeant's testimony. The appearance of unfairness could only be dispelled if no reliance were placed on the trial judge's reasons regarding the identification of the man in the videotape. Since the admissible evidence against Leaney, apart from the videotape evidence, was inadequate to compel the conclusion that a properly instructed trier of fact would necessarily have convicted him of the break and enter charge, s. 613(1)(b)(iii) should not be applied.

The Application

[12] The evidence was heard in a voir dire as directed by the Supreme Court of Canada in the Leaney decision.

[13] The home surveillance videos from a number of homes on the two streets involved in these charges is important, or critical, to the Crown's case as circumstantial evidence of whether an incident occurred, the timing of it, and who committed it.

[14] This Court is entitled to look at the video and make findings, if it is able: see R. v. Nikolovski, [1996] 3 S.C.R. 1197.

[15] Opinion evidence is not admissible when the witness offering the opinion is in no better position than the trier of fact to assess the situation under scrutiny: see Graat v. The Queen, [1982] 2 S.C.R. 819, at p. 836.

[16] The threshold issue is whether I can receive the opinion of Ms. Marini regarding similarities between the man in the video and her probation client, the accused. Is her opinion something that the Court can observe for itself, in whole or in part?

[17] The ultimate issue of whether the male person in the video can be identified as Mr. Williams is to be determined at the end of the case, upon a consideration of the totality of any admissible evidence or the absence of evidence.

[18] Of course, the issue of admissibility of Ms. Marini's observations of Mr. Williams' appearance, clothing, gait, footwear, etcetera when he reported for his probation appointments is not contested. It is admissible evidence, particularly in the relevant time period.

[19] I note that the witness never opined that the male in the video was the accused, just that his appearance is consistent with the appearance of her client Clayton Williams in seven respects.

Alicia Marini

[20] Ms. Marini supervises sexual offenders in the probation office in Mississauga. She began supervising the accused on his probation order on May 1, 2018.

[21] She always went to meet him and retrieve him from the waiting room to her office. Health and Safety training requires the probationer to walk in front of the probation officer, and she observes him walking and where his hands are. She did this each time she met him. This observation pattern also occurs at the end of each meeting. It is approximately fifty feet down the hall between her office and the lobby.

[22] Ms. Marini met with the accused fifteen (15) times prior to his arrest, and ten (ten) times prior to the two alleged break-ins.

[23] Most meetings were approximately between 20 minutes to 1 hour in duration. At least one meeting was two hours.

[24] During the meetings, Mr. Williams would sit across the desk from Ms. Marini, only three to four feet away. She would make eye contact and have conversation with him.

[25] There is no video surveillance in her office, but there is surveillance in the client waiting room, in the hallway before entering the waiting room, in the stairwells and around the exterior of the probation office.

[26] Ms. Marini identified Mr. Williams on a still frame from the video of the probation waiting area on Aug. 23, 2018.

[27] On Sept. 4, 2018, Peel Regional Police contacted her to request she look at video surveillance of an individual believed to be her client, Clayton Williams. She watched it that day.

[28] After watching the video, she noted "similar characteristics" between Mr. Williams and the male in the video, and reported these to the police.

[29] Ms. Marini testified about her observations of similarity, as follows:

• Physical build;
• A shaved head with slight regrowth, almost like a shadow;
• Hairline, visible on the video;
• Walk was similar to the walk of the accused when he reported to her;
• Similar shoes to the ones the accused wore to her office prior to, and on Aug. 23. They were dark shoes with white soles;
• The clothing is similar to the type she has observed the accused wearing to her office, track pant style, t-shirt, or lumberjack print sweater, or dark work shirt one would wear at an automotive place; and
• Height. She estimated Mr. Williams' height as 6 foot 2 inches from dealing with him directly, and the person on the video is similar height as depicted when he is between the garage and hedge.

[30] Her next meeting with the accused was two days later on Sept. 6th. She observed his appearance and noted he was wearing a baseball hat with the logo Mobil 1, a black t-shirt, dark gray sweatpants, and lace up gray shoes with lighter soles. The hat stood out for her because she recalled he did not wear a hat prior to his Sept. 6 visit.

[31] Sept. 20 she met with him again, and he was wearing loafer type shoes, she had not seen before, gray with yellowish accent. His pants were like khaki, dark navy blue. He had a buttoned up sweater shirt, and the same baseball hat. He had a scruffy beard, like a five o'clock shadow.

[32] On Oct. 18, he wore a black toque, pullover sweater, brown jean type pants, and the gray with yellowish sole shoes.

[33] The last meeting before his arrest was on Nov. 1, 2018.

Analysis

[34] In the recent case of R. v. McKenzie, Justice Ken Campbell sets out the applicable principles:

The law is settled that a non-expert witness may provide opinion recognition evidence that the image of a person displayed in a photograph or on a video recording is a particular individual known to them, provided that the witness has a "prior acquaintance" with the individual being recognized and the witness is in a "better position" than the trier of fact to identify the individual. This has been described as the "prior acquaintance/better position" test of admissibility. See R. v. Leaney, [1989] 2 S.C.R. 393, at p. 413; R. v. Brown (2006), 219 O.A.C. 26, 215 C.C.C. (3d) 330 (C.A.), at para. 39; R. v. Berhe, 2012 ONCA 716, 292 C.C.C. (3d) 456, at paras. 13-23; R. v. Dirie, 2013 ONCA 261, [2013] O.J. No. 1873; R. v. Farhan, 2013 ONSC 7094, [2013] O.J. No. 5519, at paras. 33-36; R. v. Brown, 2013 ONSC 6466, [2013] O.J. No. 5036, at paras. 11-13; R. v. Sheikh-Hussein, 2015 ONSC 2888, [2015] O.J. No. 2554, at paras. 57-58; R. v. Farah, 2016 ONSC 2081, 30 C.R. (7th) 148, at paras 6-9; R. v. Barreira, 2017 ONSC 1078, [2017] O.J. No. 2453, at paras. 39-48; R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, at paras. 33-37, 46-47.

In order to meet this threshold standard of admissibility, the witness need not be so familiar with the unique features of the individual recognized so as to permit the witness to describe with particularity the individual's idiosyncrasies in physical appearance or movement as may be reflected in the photographs or portrayed on the video recording. While such familiarity would certainly strengthen the probative value of the recognition evidence, such matters should be left to the trier of fact to consider in assessing the ultimate weight of the evidence. See R. v. Berhe, at paras. 16-22; R. v. Panghali, 2010 BCSC 1710, [2010] B.C.J. No. 2729, at para. 42, affirmed, 2012 BCCA 407, [2012] B.C.J. No. 2115, at paras. 70-80; R. v. Benson, 2015 ONCA 827, 333 C.C.C. (3d) 180, at para. 26; R. v. M.B., at paras. 36-37, 46-47.

As Blair J.A. noted, in delivering the judgment of the Court of Appeal for Ontario in R. v. Berhe, at para. 20, the accepted "prior acquaintance/better position" standard has the "advantage of flexibility while at the same time providing sufficient criteria ... to enable the court to perform its gate-keeping function for purposes of determining threshold admissibility." As Blair J.A. stated, at para. 21:

The "prior acquaintance" branch of the Leaney / Brown test enables the trial judge, on a voir dire, to sort out whether the potential witness is sufficiently familiar with the person sought to be identified to have "some basis" for the opinion -- or, "an articulated basis," as some have said -- and the "better position" branch ensures that the evidence will only be admitted if it is helpful to the trier of fact because the potential witness has some advantage that can shed light on the evidence in question.

While this legal standard may most often be applied in the identification of accused persons, the standard is equally applicable when a witness purports to identify other non-accused individuals from photographs or video recordings. The legal standard is certainly not, by its commonly articulated terms, limited to the identification of accused individuals, and I see no persuasive reason in principle why the standard would not be equally applicable to the identification of other non-accused individuals. See R. v. Farah, at para. 9.

[35] Ms. Marini's evidence accords with the above criteria for admissibility, to be weighed by the trier of fact. Under the "prior acquaintance" branch of test, based on the evidence, she is sufficiently familiar with the accused to have "some basis," or an "articulated basis," to provide the Court with her recognition testimony. She has seen the accused in her probation office on multiple occasions. More importantly, just over one week before she first viewed the video surveillance from the home two doors away from the alleged break-in and sexual assault, Ms. Marini spent at least 20 minutes or up to one hour in the presence of the accused during the course of probation interview. As in the McKenzie decision, "this was a significant meeting of some duration". Further, Ms. Marini was in close physical proximity to the accused for this meeting, "was paying close attention to his facial features, and had an excellent opportunity to consider carefully all aspects of his physical appearance, as well and his general demeanour and mannerisms".

[36] Under the "better position" branch of the test, based on the evidence, her recognition testimony will be helpful to the Court because Ms. Marini has a number of advantages not possessed by the Court, which can shed light on the true identity of the male in the video. First, the probation officer is much more familiar with the accused. She has "seen the accused, both sitting and standing, from a variety of vantage points, some at very close range". The Court can only look at the accused, from its vantage point, as the accused sits below, and compare his current physical appearance, to the images of the male displayed in the video recording, and in the police surveillance photographs taken in early September.

[37] In light of these circumstances I am satisfied that Ms. Marini is in a "better position" than the Court by her familiarity with him, to identify the accused, and her evidence in this regard may be helpful.

[38] Ms. Marini need not be so familiar with the unique features of the accused so as to permit her to "describe with particularity the idiosyncrasies" in Clayton Williams' physical appearance or his physical movements, as they might be reflected in the video recording. However, she does appear to be able to accurately describe some "unique features" and particular physical "idiosyncrasies" of the physical appearance of the accused.

[39] There is no doubt that this type of recognition/identification evidence, even when given by an honest and sincere witness, can often be unreliable and inaccurate. Such evidence is difficult to accurately assess as it is often provided by honest, credible witnesses, and triers of fact may place undue reliance upon such evidence.

[40] However, the Court can instruct itself fully about the potential dangers of identification evidence and be appropriately reminded of its potential unreliability, so that I will be able to approach consideration of the testimony of Ms. Marini with the appropriate degree of care and caution, fully appreciating the risks concerning the potential unreliability of this evidence.

[41] Ms. Rochman's submission that Ms. Marini's identification evidence is tainted or contaminated by the manner in which it was obtained by the police, and inadmissible on that basis tends to respectfully conflate admissibility with the weight of the evidence. Although evidence which is more prejudicial than probative may be grounds to exclude that evidence, especially with trials by judge and jury, a trial judge sitting alone can give evidence appropriate weight, if any.

[42] This argument of potential danger will be relevant to an assessment of weight to be afforded to this evidence if admitted.

[43] The defence also argues that the net effect of Ms. Marini's opinion regarding the man in the video is generic, and conclusions that a Court can determine on its own, and thus inadmissible. Ms. Rochman gives examples of the generality of dark loose-fitting clothing as unhelpful. While this may be true, at this point, the Court is determining admissibility, not ultimate reliability of each observation made.

[44] The Crown submits that the probation officer's close contact with Mr. Williams offers the Court more informed evidence about his appearance and other physicality than a court's perusal of the video on its own.

[45] The Court finds that Ms. Marini's evidence is closer to that of the police sergeant in the Leaney case. The majority found his evidence to be admissible, had it been heard in a voir dire in the circumstances of that case. I note the sergeant was "acquainted with" Mr. Leaney for longer, but Ms. Marini not only knows Mr. Williams, but was required to observe him and make notes specifically about him over several months. She also had videotape of Mr. Williams in the lobby of the probation office, as recently as the week before the alleged offence date, and afterwards.

[46] While a Court can make certain observations from the video surveillance evidence proffered, as Ms. Rochman asserts; Ms. Marini knows her client and his appearance, and to that extent, her opinions are potentially of some value to a Court.

Conclusion

[47] Ms. Marini's evidence concerning the appearance and characteristics of the accused during the time he reported to her is admissible, to be considered at the conclusion of the case.

[48] I note that she has observed "similarities" or "consistencies" between Clayton Williams and the suspect male on the video surveillance. She did not directly make a positive identification. She is a very careful witness.

[49] The opinion of Ms. Marini about consistency of those identification factors of her client, with the male in the home surveillance video in question is admissible, and further submissions will be considered at the conclusion of the case about what weight is to be given to all or any part of it.

Released: June 21, 2019

Signed: Justice N. S. Kastner

Footnotes

[1] Leaney v. Regina; Rawlinson v. Regina, [1989] 2 SCR 393.

[2] This observation was at the point in the video where the individual reaches a casual walk, which was similar to the walk when the accused comes to her office.

[3] The long sleeved darker shirt or jacket on the male in the video was identified as similar to what she has seen her client wear.

[4] R. v. McKenzie, [2018] O. J. No. 2789 (S.C.J.), at para. 8 to 11.

[5] See McKenzie, at para. 34.

[6] Also at para. 35.

[7] Chief Justice Lamer stated that, "one Sergeant Cessford, who had known the appellant Leaney for 15 years… it is common ground that his opinion evidence could be received".[at page 400] The other jurists refer to the sergeant as "acquainted" with Leaney.