WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2019-07-09

Court File No.: Toronto Y180726

Between:

Her Majesty the Queen

— and —

J.B., a young person

Before: Justice B. Weagant

Heard on: June 18, 19, and 20, 2019

Reasons for Judgment released on: July 9, 2019

Counsel

Ms. Jody Milstein — counsel for the Crown

Mr. Ronald Chu — counsel for the accused J.B.

Decision

WEAGANT, B. J.:

Facts

[1] These are facts as I find them.

[2] On the evening of September 27, 2018, the complainant in this case, C.B., went out drinking by himself at a pub just east of the intersection of Yonge and Eglinton in the City of Toronto. He admits to being intoxicated when he left the bar sometime after midnight. The effects of the alcohol made him very talkative and when he was approached by two young men he engaged in conversation with them. He described one of the males as a big guy and the one as a smaller, skinnier guy. After a short chat they asked him if he wanted to get high and C.B. agreed. He followed them down a street (which I now know is Cow Bell Lane) which services Holly Street. He thought he was going to their residence. They led him into a stairwell in a parking lot of an apartment building where he was viciously attacked by the two. The attack commenced with a blow to the face that dazed C.B., and he eventually fell, cheek to the ground. He remembers some kind of struggle over the shoulder bag he was carrying. The bag was stolen, along with his wallet and his iPhone 8.

[3] C.B. did not sustain permanent disfigurement to his face. However, photos taken shortly after the attack reveal soft tissue damage that would affect his appearance for quite a while. I am satisfied that the injuries meet the requirements for a finding that this was bodily harm, within the meaning of the section.

[4] Through bank records, C.B. was able to say that his credit card was used later at 2:30 a.m. in a Hasty Market near the attack. The assailants also made an online purchase.

[5] Officer Adrian Terzo took on the investigation when he started his shift the next day. He quickly identified spots where there may be closed-circuit videotape evidence, based on his interview with the complainant. His investigation yielded several videos, three of which form the basis of the identification evidence in this case.

[6] One video shows the two assailants running from Cow Bell Lane. It is brief, but the stolen bag can be seen. More importantly, the head of assailant who I now know is the smaller, skinnier guy is uncovered. I can observe his hairstyle.

[7] The second and third video are from the security footage at the Hasty Market. Although the head of the smaller, skinnier guy is covered by his hooded jacket, there are several decent face shots.

[8] Officer Terzo screen-captured what he considered the best face shots from the video and put them in an in-house bulletin, called a "push pin", after the name of the program which is used to create the document. The photos generated for the bulletin were exclusively from the Hasty Market videos.

[9] On October 4, Officer Terzo showed the bulletin to Officer Marcie Beaven. She immediately recognized one of the assailants as MR, an individual she had arrested a week prior for a similar type of robbery. He lives in the general area of Yonge and Eglinton. To her mind, he matched the appearance of the smaller, skinnier guy.

[10] Officer Beaven was called as a witness by the defence. She testified that she spent 25 minutes in an interview room with MR after his detention. She was confident in her identification. Because MR is not the young person being prosecuted, no "Leany" application was made to vet the admissibility of Officer Beaven's identification. However, I am content that she spent enough time in close quarters with MR that her evidence would have been admissible against him. Her opportunity to observe MR, in very close contact, the freshness of her observations, and her training as a detective, suited her to make a call on the identification of one of the assailants through the photographic evidence.

[11] MR's parents informed the police that MR was currently attending a school program at […]. On October 15, Officer Terzo attended at that program and spoke to witness PP, a teacher in MR's program. PP was shown 8 still photos from the videos. He recognized MR to be the 'thin lanky' suspect (the smaller, skinnier guy). He did have one hesitation: he had never seen MR in the exact clothes being worn in the video.

[12] From there Officer Terzo took steps to create an authorization for a search warrant. A search warrant for the residences of MR was sought and obtained (he splits his time between two parents). The ITO produced for the purposes of getting the search warrant contain booking photos of MR. I agree with Officer Beaven that there are many points of similarity between the video captured images and the boy I can observe in the booking photos. Officer Beaven did not see the street video showing the assailants leave the scene. Had she, she would have observed that MR, in his booking video, has the same hair length and style as the smaller, skinnier guy. Nevertheless, Officer Beaven stands confident in her identification of similarities between the video captures and MR, in spite of the fact a second identification has been made which brings a different young person in front of the court for prosecution.

[13] The search warrant produced no new evidence. The searches took place on October 17.

[14] Officer Terzo later received an updated fraud report from the complainant's bank. There had been an attempt to use the complainant's CIBC card at a business establishment (restaurant) on College Street. Officer Terzo attended and was shown a video revealing the card's use. It was an employee attempting to use the card. There were no customers around at the time. The employee was called SM.

[15] The officer contacted SM and asked him to come to the station. Having doubts that might happen, Officer Terzo met SM at the restaurant just after 7:00 a.m. on October 30. SM was placed under arrest and cautioned. SM advised that he had a gym bag in the back. Officer Terzo searched the bag and found an iPhone 8. The complainant was called and was asked for his passcode to the phone. Officer Terzo was able to open the phone.

[16] Officer Terzo also located a jacket that matched the one being worn by the larger male in the videos, who had short dark hair like SM.

[17] Although an adult for criminal law purposes, SM's place of residence is an adolescent group home. Officer Jami Bernier decided to go to the group home to let the employees know what was going on. When Officer Bernier arrived he spoke with witness SK, a team leader at the residential program. Officer Bernier showed SK the photo stills from the Hasty Market footage and SK immediately confirmed SM's identification, but went on to say that the other fellow in the photos is SM's roommate there at the group home, JB, the young person before the court. JB was in the residence at the time and he was arrested.

[18] SK was called as a witness. He had spent substantial time with both young men as part of the programming in the residence. He was confident in his identification, saying he had seen the very clothing worn by the young men and they sometimes passed items back and forth.

[19] SK was most cooperative with the police and the prosecution. He testified that he recognized the face of JB, the clothing, his posture (shoulder positions), the way he walks, and his hair.

[20] The last two observations in aid of identification are curious: SK was never shown a video, only stills, so there is no way he could identify JB through his walk. Second, SK says he recognized the hair of JB, as it flips out of the hood. SK never saw the other photo of the second male with the hood down (Holly Street video). No evidence was led as to how JB wore his hair at the time of this offence and SK was never asked. JB, today, sports a shock of hair on the top of his head. If under a hood, it would be quite capable of flipping out of the hood, as described by SK. JB does not have the hair style of the male running in the video. The mass of hair he sports is on the top of his head. The hair on the sides and back of his head are currently substantially shorter than the male in the video.

[21] I appreciate that hair styles can be changed overnight. However I do regard this as a gap in the evidence. We know that MR had the same hair style as the fellow in the video, but we do not know if JB did.

[22] Shortly after the arrest, SK was cleaning out the bedroom of JB and SM. A cut-up credit card that belonged to the complainant was found in a dresser that SM used. JB had his own dresser.

[23] SK produced for the court the residence logs for the day under scrutiny. If working perfectly, the comings and goings of each resident would be catalogued. On the night in question, SM logs out around midnight, but there is no entry logging JB out. Based on the absence of an entry, one can surmise he was home.

[24] Further, there is a policy that night staff check on the residents once an hour. It is described as an 'eyes on' check. If a resident is missing, there would be a missing person report.

[25] There is no notation showing that JB's bedroom was empty during those checks.

[26] While much was made of the fact that employees might be careless about the logs and the checks (after JB's arrest new procedures were put in place increasing the frequency of 'eyes on' checks), and the fact that residents had ways of getting out and coming back in without night staff noticing (through windows, for example), the fact remains that the logs for that night place JB at home. Similarly, there is no missing person entry suggesting he was missing during any of the bedroom checks. I will return to this piece of evidence later when I discuss reliability.

Analysis

[27] In my opinion, this is a case disposed of by way of an application of the framework laid out in R. v. W. (D.), [1991] 1 S.C.R. 742. Justice Cory sets out the following as an appropriate charge to the decision maker(s):

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[28] Because of the importance the second step of this formula plays in my ultimate decision, I feel it necessary to acknowledge that Justice Cory refers to the "testimony of the accused" in the second part of the framework. JB did not offer any testimony in this trial.

[29] As pointed out by Justice Paciocco, now a Justice on our Appeal Court, the first proposition refers to the "evidence of the accused", a term wide enough to embrace all defence evidence. The language narrows in the second proposition (see Paciocco, D., Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment, (2017) 22 Can. Crim. L.R. 31). Justice Paciocco argues that courts have extracted the underlying principles and should and are applying them more broadly. He argues that the language in the second plank of the framework is imprecise and may simply reflect the facts in front of the court in "W.D.".

[30] In the case of R. V. L.(T.), 2008 ONCA 763, Crown witnesses offered contradictory identification evidence. The Crown did not rely on the identification evidence. However, citing a Manitoba case (R. v. Jack (1992), 70 C.C.C. (3d) 67 (Man. C.A.)), which dealt with a "W.D." warning given to a jury in a case with exculpatory identification evidence, our Court of Appeal said the same instruction should have been given in the case at bar, in spite of the fact that the Crown conceded that the jury could not convict on the identification evidence.

[31] In the 2011 case of R. v. D.B., 2011 ONCA 51, Justice Blair said the following:

There is some uncertainty in the jurisprudence, however, about whether the W.(D.) requirement extends beyond cases where the accused testifies to those where the accused does not but there is other defence evidence called contradicting the Crown's case and/or conflicting evidence favourable to the defence in the Crown's case (for example, an exculpatory remark in a statement put in by the Crown), and the jury must make credibility findings in that context. This Court has not yet squarely decided that issue. For the reasons that follow, I am satisfied that the principles underlying W. (D.) do extend to such circumstances.

[32] I am content that the W.D. framework applies to any evidence, whether it arises in the defence evidence or the Crown evidence, if the evidence in issue is properly evaluated for credibility and reliability and could prevent the Crown from proving an essential element of the offence beyond a reasonable doubt.

[33] In the case in front of me, there are two possible people that have been identified by witnesses who are familiar with the young man identified. If I find those 'identifications' to be reliable, then it is clear that as a matter of logic both cannot be correct. Both might be incorrect. But there is no logical principle that says one is correct and the other not, simply because they are the only two identifications in front of the court. Following the guidance in the article written by Justice Paciocco, cited above, I cannot allow the exercise of weighing the evidence to become a battle of credibility between the two identifications made. A criminal trial is to determine whether the evidence accepted proves the guilt of the accused beyond a reasonable doubt. It is not about determining which conflicting version of events I prefer.

[34] I turn now to a reliability/credibility analysis of the two 'identifications' made in this case.

[35] Because no direct evidence of identification was called, for example SM was not called as a witness in spite of the fact he gave a statement in the case (according to one police witness), therefore all of the evidence is circumstantial in nature. All of the evidence is potentially unreliable in some way. Looking at any one piece of evidence in isolation of the rest of the surrounding evidence must be avoided.

[36] The fact that I have two admissible sources of identification that are conflicting attests to the notion that all of the evidence is potentially unreliable. Of the reliable evidence I do have, I must weigh its assessed reliability against the standard of proof required.

Proposition One: MR is the person in the photos

[37] MR was identified by Officer Bevan after looking at the still photos in the police bulletin. She had arrested MR a week before for a similar offence and she spent half an hour with him in an interview room. His face his clear enough in the photos shown that she made a very quick determination. A comparison of the booking shots of MR with the video captures serves to illuminate Officer Bevan's conviction that MR is the young man in the still photos.

[38] The haircut sported by MR a week later (in the booking photographs) is the same as the hair in the video of the two young men fleeing the scene.

[39] MR is also identified as the person in the photo by his teacher at the […] school program.

[40] Detracting from the reliability of his identification, however, is that this teacher could not recall MR ever wearing the clothes that are in the stills. When asked to describe how MR does dress and how it differs from the photographs, the teacher could not find the words to accurately describe what he meant. He cannot be faulted. The pervasiveness of sports jackets with hoods, blue jeans and sporty shoes in the teenage male fashion repertoire might lead a casual older observer to falter when trying to point out differences between this jacket's style and another's. However, I am content that the importance of the teacher's evidence is that he had never seen MR in the clothes worn by the person he identified as MR in the photo.

[41] The search warrant's execution found no corroborating evidence that could link MR to the crime.

Proposition Two: JB is the person in the photos

[42] JB is identified by SK, an adult counselor that has worked closely with JB for a substantial period of time. SK articulated that he saw similarities in the look, the bangs that protruded from the hoodie, the posture and the walk (even though he was shown still photos). Most importantly, he had seen these very clothes on JB.

[43] Of considerable significance is the fact that JB is SM's roommate at the group home.

[44] Detracting from the reliability of this identification are two things. First, the photos from which the identification was made show a young man with his head covered. SK was never shown a still photo from the video showing an uncovered head. SK was never asked about JB's hairstyle at the time of the offence. While admittedly a patently mutable characteristic, hairstyle is important to appearance. JB currently has long hair on the top and shorter hair on the sides. I cannot predict just by looking at him, that the type of body his hair enjoys would yield the same kind and look of hair as the Holly Street video man has. There is an absence of evidence on this point.

[45] Second, the logs kept by the staff at JB's group home reveal that SM was logged out for the pertinent hours, but JB was not. Further, there is no notation from the hourly room checks that says JB was 'awol'. I understand that the human endeavor of keeping track of the boys living in the house was subject to the frailties of human capability and that the residents were known to have subverted the system by trickery. However, I have no evidence that this happened on the night in question.

[46] As I said above, no one piece of evidence should be looked at in isolation. I think the logs kept at the house were potentially very unreliable. However, in an assessment of evidence that is all potentially unreliable, including the very identifications themselves, it is not irrelevant that the logs are exculpatory on their face.

[47] I conclude that both identifications are credible and reliable, subject to the detracting features I have mentioned above.

[48] Turning back to W.D., and the first plank of analysis, I cannot accept that the identification of MR is the answer in this case. I do not reject it completely – it may be true. But I would not rely upon it to convict MR, were he in front of this court. It has features of unreliability, the major one being it is identification evidence from a photo.

[49] On the second plank of the W.D. framework, however, the identification evidence of MR is enough to inject reasonable doubt into this matter.

[50] On the third plank of W.D., I must say that it is hard to delineate what evidence I do accept. I think that the identification evidence, as it concerns JB, is stronger than the identification evidence implicating MR, but that does not mean it proves JB's guilt beyond a reasonable doubt. There are indicia of unreliability in that evidence that I have discussed above. Looking at the evidence as a whole, I have reasonable doubt.

[51] I am acquitting JB of all charges.

Released: July 9, 2019

Signed: Justice B. Weagant