Court Information

Court: Ontario Court of Justice

Date: August 13, 2019

Between:

Her Majesty the Queen

— AND —

Donovan Campbell

Before: Justice R. Maxwell

Heard on: November 23, 24, 27, 2017 and June 1, 4, 5, 6, 2018 and April 26, May 21, 2019

Reasons for Judgment released on: August 13, 2019

Counsel:

• T. Goddard, counsel for the Crown
• J. Weisz, counsel for Donovan Campbell

MAXWELL J.:

I. Overview

[1] Donovan Campbell is charged with two counts of assault with a weapon and two counts of assault causing bodily harm against two individuals, Kervin White and Anthony Sayers, arising out of events which took place on July 30, 2016.

[2] On July 30, 2016, Mr. White and Mr. Sayers attended Caribana Day in Toronto. At the end of the festivities, Mr. White and Mr. Sayers walked toward Mr. Sayers' home. They encountered a group of three men. Words were exchanged between this group of men and Mr. White and Mr. Sayers, but Mr. White and Mr. Sayers resumed their walk toward Mr. Sayers' home. Shortly thereafter, Mr. White and Mr. Sayers encountered the three men again. The encounter became physical and Mr. White and Mr. Sayers were both attacked.

[3] There is no dispute that both Mr. White and Mr. Sayers were assaulted on July 30, 2016, and that both suffered injuries constituting "bodily harm", as defined by the Criminal Code. Mr. White was struck in the head with an object, then kicked in the face, sustaining a broken nose, a cut over his left eye, lacerations to his upper lip, and a chipped tooth. Mr. Sayers suffered a penetrating wound to his abdomen which required six staples to close. Photos and medical records of the injuries were filed as exhibits at the trial.

[4] PC Mark Bowers and PC Volodymyr Zhorak arrived on-scene at East Liberty Street and Jefferson Avenue, near Lamport Stadium. They found Mr. Sayers, Mr. White and another male, Mr. Campbell, near a bench at the corner of Jefferson Street and East Liberty Street. Based on information received from Mr. Sayers and Mr. White, PC Bowers advised PC Zhorak to place Mr. Campbell under arrest for assault. Mr. Campbell began to run. PC Zhorak and PC Bowers gave chase and eventually caught Mr. Campbell on a set of stairs going from the sidewalk to an outdoor parking area. He was handcuffed and placed under arrest.

[5] Both Mr. White and Mr. Sayers were transported to the hospital for treatment of their injuries. Both provided written statements to police.

II. Issues on the Trial

[6] The only issue at the trial is whether the Crown has proven, beyond a reasonable doubt, that Mr. Campbell committed the assaults.

[7] The trial proceeded as a blended trial and Charter voir dire. Given the narrow scope of the trial, the parties requested that I provide judgment on the trial and, subject to the outcome of the trial, proceed to hear arguments on the various Charter issues raised. In brief oral reasons delivered on May 21, 2019, I found Mr. Campbell not guilty on all counts, with written reasons to follow. These are my reasons for judgment.

III. Positions of the Parties

[8] Mr. Goddard, for the Crown, relies on the evidence of Mr. Sayers, Mr. White, the DNA blood evidence, and the evidence of the first officers on scene, to argue that identification has been proven beyond a reasonable doubt. He asks me to accept Mr. Sayers' evidence that he recognized Mr. Campbell from the earlier interaction, and continuously observed and interacted with Mr. Campbell from the time the assaults started on Mr. White, to the time police arrived and detained Mr. Campbell on scene.

[9] Although there is no direct evidence of who caused Mr. Sayers' injuries, Mr. Goddard argues that Mr. Campbell had exclusive opportunity to cause the injuries, as the other two men with Mr. Campbell were no longer in his vicinity when he was injured. He also notes the presence of Mr. White's blood on Mr. Campbell's pant legs as another piece of circumstantial evidence pointing to Mr. Campbell as the assailant. Finally, he urges me to put weight on the in-court identification, provided by both Mr. White and Mr. Sayers, identifying Mr. Campbell as the assailant.

[10] Mr. Weisz argues that neither Mr. Sayers nor Mr. White provided reliable evidence of identification. Mr. White's recollection of events was, in general, poor. He was unable to describe his assailant, or anyone in the group of men. There were numerous inconsistencies between his evidence and other evidence. He argues Mr. White's in-court identification should be given no weight.

[11] Mr. Sayers' evidence, particularly in describing the assailant, was internally inconsistent, and inconsistent with other evidence. His in-court identification of Mr. Campbell as the assailant has little probative value, in light of the inconsistencies in the evidence he provided about the incident and the description of the assailant.

[12] He further argues that, in the circumstances of a dynamic physical encounter, the fact that Mr. White's blood was found on Mr. Campbell's pant legs does not establish that Mr. Campbell committed the assaults.

IV. Legal Principles

A. Presumption of Innocence and Proof Beyond a Reasonable Doubt

[13] Mr. Campbell is presumed to be innocent of these charges. There is no burden on him to prove or disprove anything. The burden to prove the case beyond a reasonable doubt always rests with the Crown.

[14] It is not sufficient for the evidence to establish that a defendant is probably or likely guilty. I must be sure, based on the evidence, that Mr. Campbell committed the offences charged.

[15] Central to determining whether the Crown has proven the charges beyond a reasonable doubt is my assessment of the credibility and reliability of the witnesses. I must look at each witness' evidence individually, and in the context of the rest of the evidence, to determine what, if any, of their evidence I accept. I can accept some, none, or all of a witness' testimony. In making that assessment, I must be vigilant not to allow demeanor or notions about how a witness should testify or behave inform my assessment of that witness' evidence.

[16] One of the most valuable means of assessing witness credibility and reliability is to examine inconsistencies between what the witness said in the witness box and what that witness said on prior occasions, as the Court of Appeal for Ontario observed in R. v. M.(A.), 2014 ONCA 769, at paras. 12-13. The significance of inconsistencies will vary, depending on the nature of the inconsistency and its importance to the issues in play: R. v. O.(L.), 2015 ONCA 394, at para. 35.

B. Eyewitness Identification Evidence

[17] As has been widely recognized, in assessing identification evidence, a court must go beyond considering the honesty of a witness. Rather, all the circumstances in which the identification was made must be considered, in order to accurately assess the reliability of the identification to prove the charge beyond a reasonable doubt: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 50-53.

[18] Concern for the reliability of identification evidence is heightened where, as in this case, the evidence involves identification of a stranger. Where a suspect is unknown to the eyewitness, there is a danger of an honest but inaccurate identification. To paraphrase the Ontario Court of Appeal in R. v. Goran, 2008 ONCA 195, at paras. 26-27, and R. v. Alphonso, 2008 ONCA 238, [2008] O.J. No. 1248 (Ont. C.A.), at para. 5, certainty of a witness in his/her identification of a suspect cannot be equated with reliability, as sincere witnesses can be mistaken: See also R. v. Miaponoose, 110 C.C.C. (3d) 445 (Ont. C.A.), at pp. 450-451.

[19] Justice Hill, in R. v. Gonsalves, [2008] CarswellOnt 2288 (Ont. S.C.J.), provided a helpful checklist for the assessment of the reliability of identification evidence:

• Was the suspect a stranger or known to the witness?
• Was the opportunity to see the suspect a fleeting glimpse or something more substantial?
• Was the setting in the darkness of night or in well-illuminated conditions?
• Was the sighting by the witness in circumstances of stress?
• Did the witness commit the description to writing or report the description to the police in a timely way?
• Is the witness' description general, generic or vague or is there a description of detail including distinctive features of the suspect and his or her clothing?
• Were there intervening circumstances, capable of tainting or contaminating the independence of the identification, between the witness' initial sighting of the suspect and the rendering of the descriptive account to the police or the court?
• Has the witness described a distinguishing feature of the suspect not shared by the accused or conversely has the witness' description of the suspect failed to include mention of a distinctive feature of the accused?
• Is the eyewitness identification unconfirmed?

[20] I will refer to many of these factors when I assess the reliability of the identification evidence offered by Mr. White and Mr. Sayers.

C. Recognition Evidence

[21] Recognition evidence, a subset of identification evidence, is identification evidence based on prior acquaintance. A trier of fact can take into consideration the fact that a witness is acquainted with the defendant in assessing the reliability of the identification evidence.

[22] However, the same concerns and frailties apply as with any other form of identification evidence. As such, identification based on recognition must be subjected to the same rigorous scrutiny for reliability: R. v. Olliffe, 2015 ONCA 242, at paras. 37-40; R. v. M.B., 2017 ONCA 653, at paras. 33-35.

V. Evidence Summary

[23] The identification evidence presented by the Crown in this case consisted of:

i. The testimony of Mr. White; ii. The testimony of Mr. Sayers; iii. Forensic identification evidence of blood located on Mr. Campbell's clothing; iv. In-court identification of Mr. Campbell as the assailant, by both Mr. White and Mr. Sayers; v. Prior identification evidence.

[24] I will now turn to my analysis of the identification evidence.

A. Evidence of Kervin White

[25] Mr. White testified that the initial encounter with the group of three males began when he accidentally bumped one of the males. That accidental bump, according to Mr. White, triggered foul language from the group, in particular, one individual. The exchange was brief and he, Mr. Sayers and another friend, kept walking.

[26] 5 to 10 minutes later, Mr. Sayers crossed the street to speak to someone while Mr. White waited for him on the opposite side of the street. He testified that he was approached by the same group of three males from earlier, who started to swear at him again. He recalled someone in the group stating words to the effect, "You think you're a tough guy". Mr. White testified that he turned to walk away from the men when he was punched in the face by one of the men.

[27] He testified that he recognized Mr. Campbell as one of the men who approached him. He made an in-court identification of Mr. Campbell as the person who punched him in the face. I will address what, if any, probative value flows from Mr. White's in-court identification of Mr. Campbell later in these reasons.

[28] He fell to the ground and recalled having blood "all over" his face. He may have lost consciousness for a period of time. He recalled trying to get up, but Mr. Sayers, who had run over from across the street, told him to stay down. He testified that he was then kicked in the face. He could not see who kicked him in the face when he was down on the ground. He could not say whether the person who punched or hit in him the face was the same person who then kicked him in the face. The next thing he recalled was hearing sirens and speaking to the police.

[29] He testified that the person who punched him in the face was no longer on scene when police arrived.

[30] In cross-examination, Mr. White was asked about descriptions of the men he encountered that night. He testified that all three were black and in their early twenties. He could not recall what anyone was wearing, their hairstyles, or whether anyone wore glasses or had facial hair. He could not recall if anyone spoke with an accent or spoke in Patois or Caribbean slang. Apart from stating that he remembered the person who punched him as being "aggressive", he was unable to describe him, or point to any distinguishing features between this male and the other men in the group. He acknowledged that there was no reason, after the initial verbal altercation, for him to have formed a good picture of the three men in his head.

[31] He also accepted that, in his statement to the police later that night, when asked if he could describe the person who punched him, he stated, "I do not remember him", and then stated, "All I remember is that he was a black guy in his early twenties."

[32] When asked why he could identify Mr. Campbell as the person who punched him, some 16 months later, when he could not describe the assailant on the night of the incident, Mr. White explained that he was traumatized and in pain. He went on to state that, although he could not provide specifics about Mr. Campbell's features or appearance, that looking at Mr. Campbell in court, he remembered his face from that night.

[33] He testified that he was never shown a photo line-up, but that both the police and Mr. Sayers told him someone had been arrested. He "assumed" the defendant, Mr. Campbell, was the person arrested.

[34] He also accepted that some of his testimony was based on what he was told about the incident by Mr. Sayers, and not from independent memory. For example, he accepted that he had no memory of having been kicked in the face that night. He accepted that there was nothing in his statement to police taken on the night of the incident that he had been kicked in the face because he had no memory of this happening. He stated that it could have been one, two or all three males fighting with him and Mr. Sayers at that time. Mr. White testified that he only remembered this detail in the days following the event, after he spoke to Mr. Sayers who told him that he (Mr. White) had been kicked in the face.

[35] As another example, he accepted that details, such as that he was trying to get up when he was kicked in the face, and that Mr. Sayers told him to stay down, were not in his statement to the police.

[36] He also acknowledged that he could not recall how many alcoholic beverages he drank that night, but testified he was "a little intoxicated".

B. Evidence of Anthony Sayers

[37] Mr. Sayers testified that, as he and Mr. White walked, they passed a group of people on a patio. He had the impression that the group on the patio thought Mr. White said something derogatory or insulting to them. He recalled that it was Mr. White who was "talking nonsense" from his group. They began yelling back and forth. He believed someone made a gesture indicating an intention to follow he and Mr. White. He thought he should keep an eye on the group.

[38] Mr. Sayers described himself as "a little tipsy", and Mr. White as, "a bit more" than "tipsy".

[39] As they walked, he and Mr. White became separated. 15 to 20 minutes later, as he stood on the north side of East Liberty Street, he saw Mr. White standing on the south side of the street and noticed three men running up to him. He testified that he remembered the three men as the men he felt he should "keep an eye on" from earlier. Mr. Sayers then ran across the street, telling the men to leave Mr. White alone and that Mr. White was "just drunk".

[40] Mr. Sayers testified that he recognized one particular male from the group they interacted with earlier. In examination in chief, he did not describe this male, but rather, testified that he "…recognized one gentleman because he's here today", and that he, "just remember[s] his face". He then made an in-court identification of Mr. Campbell as the male he recognized that night.

[41] Mr. Sayers attempted to explain to the group of men that Mr. White said something in Trinidadian or Jamaican slang and that it meant nothing. He testified that the men continued to yell and use profane language. He recalled hearing Mr. Campbell say words to the effect, "I don't play". Mr. Sayers then observed Mr. White turn to walk away from the group, and Mr. Campbell reach into a knapsack. He testified that he then saw Mr. Campbell hit Mr. White over the head with a beer bottle. He heard it shatter and saw Mr. White on the ground, bleeding. He testified that he was four feet behind Mr. Campbell when he hit Mr. White. He later clarified that he saw the assailant open a backpack and take something out, but could not say what.

[42] Mr. Sayers then grabbed hold of another black male in the group and punched him. All three men then "backed off" to the side. He testified that all three men were then, "trying to come back at me." Mr. Sayers proceeded to try and pick Mr. White up off the ground. As he did this, the same male who struck Mr. White with a bottle kicked Mr. White in the face. Mr. Sayers chased the male off momentarily. This male, who Mr. Sayers testified was Mr. Campbell, stood back 10 to 12 feet while Mr. Sayers attended to Mr. White. The other two men were 15 to 20 feet away.

[43] As Mr. Sayers again tried to help Mr. White get up, he saw the same male move to pull something from his pants. Mr. Sayers was able to pick Mr. White up and walk him over to a nearby bench. He put Mr. White down on the bench, but the male approached again and continued to try to get to Mr. White. Mr. Sayers then proceeded to chase the male around the bench. He believed he and the male fought at one point, but he was not certain. Police then arrived on scene.

[44] Mr. Sayers did not realize he had been stabbed until police arrived and told him to stop running because he was injured. He did not know how or when he was injured.

[45] He saw police grab Mr. Campbell and recalled police telling him (Mr. Sayers) not to move. He responded, "Why are you telling me not to move? He's the guy you are after."

[46] He then pointed to Mr. Campbell, who was 12 to 14 feet away. He testified that Mr. Campbell was, "still trying to run away from the police", but that he was not able to get away because, "a few other officers came and helped the other officer."

[47] He accepted, in cross-examination, that he provided a physical description of the three men to the police on the night of the incident, describing the group as "two black males" and "one white male". He accepted that he did not distinguish the two black males as, "black" and "light-skinned black", when he spoke to the police on the night of the incident. However, in cross-examination, he testified that one of the men in the group was a "shorter, white male" wearing a baseball cap, and wearing "probably a hoodie and some runners, and either track pants or jeans". The second, he described in his evidence as a, "light-skinned taller gentleman". He believed this male was wearing a baseball cap, a jacket and "probably runners and track pants as well". He testified that it was this male that he punched.

[48] In terms of Mr. Campbell, Mr. Sayers did not offer any physical description of Mr. Campbell in his evidence in chief, but testified that he remembered Mr. Campbell because of the earlier encounter that evening. He also testified that he has a photographic memory and is "very good with faces".

[49] Mr. Sayers testified that Mr. Campbell was the only person with a backpack that night.

[50] In cross-examination, he provided a description of Mr. Campbell's clothing that night. He testified Mr. Campbell was wearing either blue or black jeans and a hoodie.

[51] In cross-examination, he also accepted that, in his statement to police on the night of the incident, he confirmed (by signing the memobook statement) the accuracy of the descriptions he provided, which were recorded as: "male 1: [male/black] wearing blue jeans, t-shirt, baseball hall, 160-170lbs", and "male 2: [male/black] baggy pants and backpack; unknown clothing". He accepted that he told police on the night of the incident that "male 1" was the assailant. When it was pointed out that he did not describe "male 1" as having a backpack in his description to the police, he testified that he was no longer sure whether Mr. Campbell was carrying a backpack and that, while he saw something coming out of a backpack, he could not say who was carrying the backpack.

[52] He agreed in cross-examination that he told Mr. White, after the fact, that he had been struck with a bottle and kicked in the face, because Mr. White did not recall these details.

C. Prior Identification Evidence

[53] The prior identification evidence came from the testimony of PC Bowers and Mr. Sayers.

[54] PC Bowers testified that when he and PC Zhorak arrived at Jefferson Avenue and Liberty Street, they found three men. One male, who I accept was Mr. White, was sitting on the bench, holding his head and covered in blood. A second male, who I accept was Mr. Sayers, was standing near the bench and had a wound to his stomach. A third male, Mr. Campbell, was standing nearby and was verbally aggressive toward the other two men.

[55] PC Bowers testified that he spoke to Mr. White and Mr. Sayers at the scene, while PC Zhorak spoke with Mr. Campbell a short distance away. He testified that "the males" advised him that "they had been attacked for no reason and hit with a bottle and stabbed with a bottle". He stated that both males advised it was the male with PC Zhorak (Mr. Campbell) who assaulted them.

[56] He accepted that in his memobook, he noted, "[b]oth males advised the male with [PC Zhorak] is one of the males who assaulted them."

[57] PC Bowers was unable to say who said what, or what exact words were used. He did not take a formal statement from either Mr. White or Mr. Sayers at the scene.

[58] He then directed PC Zhorak to place Mr. Campbell under arrest, a foot pursuit ensued, and Mr. Campbell was eventually apprehended.

[59] Later that night, PC Bowers went to the Toronto Western Hospital to take a statement from Mr. Sayers. He asked Mr. Sayers to describe the males. Mr. Sayers provided the following information to PC Bowers:

"First male (male 1); male black, 5'9"-5'11", skinny build, blue jeans, t-shirt, baseball hat, 160-170 lbs."

"Second male (male 2); male black, skinny build, baseball hat, baggy jeans, back pack, unknown clothing."

[60] He then asked Mr. Sayers whether the male he believed stabbed him was "male 1", to which Mr. Sayers responded, "yes".

[61] Mr. Sayers' testified that when police arrived on scene, he was chasing Mr. Campbell around the bench, trying to prevent him from getting to Mr. White again. When the police arrived, he stated, "Why are you telling me not to move. There's your guy." He pointed at Mr. Campbell.

[62] He was then told by one of the officers that he had been stabbed and he then noticed the front of his shirt was covered in blood. He recalled Mr. Campbell trying to get away from the police, but that he was not successful as other officers came to help. He did not see Mr. Campbell again after he pointed him out, as he was taken into an ambulance.

D. The Forensic Evidence

[63] Detective Constable Smissen, an officer with the Toronto Police Service Forensic Identification Unit for 16 years, attended the scene of the assaults on July 30, 2016. He arrived at 11:05 pm and spoke with Police Constable Tam who gave a general walk-through of the scene that had been cordoned off and was being guarded by other officers.

[64] He took overall photographs of the scene. In the roadway was broken glass from a "Grace Island" soda bottle. DC Smissen photographed and collected the broken bottle pieces.

[65] He also photographed a blood pool stain on the street, just north of the sidewalk, and a second, larger blood pool, on the south sidewalk. Swabs were taken from both blood pools, however the swabs were not submitted for DNA testing.

[66] DC Smissen photographed three blood-stained footwear impressions at the scene. The footwear impressions were all from a right shoe. The footwear impressions were going in an easterly direction away from the street, onto the sidewalk, toward a planter located in front of the doors of 79 East Liberty Street.

[67] DC Smissen collected and photographed the clothing and footwear belonging to Mr. Sayers and Mr. White. Mr. White's right running shoes had blood staining on the sole and the tread pattern was consistent with that seen in the three blood-stained footwear impressions at the scene. It is not disputed that the three footwear impressions at the scene came from Mr. White's right running shoe.

[68] In cross-examination, PC Smissen testified that the broken "Grace Island" soda bottle was missing its neck. He did not locate any other bottle fragments, including any beer bottles.

[69] Mr. Campbell's clothing was also seized post-arrest and photographed. The photographs were marked as an exhibit on the trial. His clothing consisted of a white or light-beige shirt, light beige or white jeans, white running shoes with black trim, and white socks.

[70] PC Smissen agreed that there were no visible blood stains on the top of Mr. Campbell's running shoes, although he noted a small area of reddish-coloured staining on the left side front toe. He agreed there did not appear to be any staining on the soles of the shoes.

[71] Mr. Campbell's light-coloured jeans had blood staining on the lower right pant leg and a small area of blood staining on the left knee area. There was also minor blood staining on the back of his pants, at the lower right leg, and the left knee area.

[72] A DNA analysis was conducted on the blood on Mr. Campbell's pants. The report was filed as an exhibit on the trial and confirmed that Mr. White could not be excluded as the source of the blood on Mr. Campbell's lower right front pant leg and on the mid-back left pant leg. Mr. Sayers was excluded as a source of any of the blood on Mr. Campbell's pants.

[73] There was no blood staining on Mr. Campbell's white shirt or socks.

[74] DC Smissen testified that he did not collect any backpacks on the scene.

[75] There was insufficient detail on a fingerprint lifted from the lip of the broken bottle to make a comparison.

VI. Analysis and Findings

A. The Prior Identification Evidence

[76] The nature of the prior identification evidence raises two preliminary issues therefore, I will begin my analysis with this evidence.

[77] First, is the prior identification evidence admissible, as the Crown argues, as an exception to the hearsay rule and, therefore, to be relied on as direct evidence of identification, or is it admissible only in assessing the probative value and weight to be put on the in-court identifications made by the witnesses?

[78] Second, if the evidence is admissible only to understand the history behind the in-court identifications, does it apply to the in-court identifications made by both Mr. White and Mr. Sayers, or only to Mr. Sayers' in-court identification of Mr. Campbell as the assailant?

i. Use to be Made of the Prior Identification Evidence

[79] There are two circumstances in which out-of-court statements of identification may be admitted. First, a prior statement identifying or describing the defendant is admissible where the identifying witness identifies the defendant at trial. The witness, or others who heard the description and saw the identification, can testify to the descriptions given and the identification made by the identifying witness: R. v. Tat, at para. 35.

[80] In this first circumstance, the admission of the prior identification evidence does not have a hearsay purpose, because the earlier identification is not being admitted for the truth of the earlier identification, but rather, to add to the cogency and probative value of the in-court identification. The prior identification evidence, in these circumstances, helps demonstrate the witness' ability to describe and/or identify the defendant before his/her memory has faded, or before he/she knows the defendant is the person under arrest: Tat, at paras. 37-39.

[81] The second circumstance in which out-of-court statements of identification are admissible is where the identifying witness is unable to identify the defendant at the trial but can testify that he or she previously gave an accurate description or made an accurate identification: R. v. Langille, 59 C.C.C. (3d) 544; Tat, at para. 41.

[82] In this case, both Mr. White and Mr. Sayers made in-court identifications of Mr. Campbell as the assailant. Therefore, this is a circumstance where the evidence of prior identification functions as a factor to consider in assessing what weight should be given to the in-court identification. The prior identification is not admissible as "original" evidence, as an exception to the hearsay rule.

ii. Who Made the Prior Identification?

[83] As noted above, PC Bowers testified that "they", (referring to both Mr. Sayers and Mr. White) advised him that they had been assaulted with a bottle and that they identified Mr. Campbell as the male, or "one of the males", who committed the assaults.

[84] I find PC Bowers credible and reliable in his recounting of events on his arrival at the scene. It was clear from his evidence that when he recorded the information in his memobook, he was paraphrasing information he received. It is understandable that he did not take a word-for-word account of who said what on his arrival at the scene. I accept PC Bowers' evidence that he could not say who provided what parts of the information.

[85] Although the use of the word "they" suggests both Mr. White and Mr. Sayers identified Mr. Campbell as the assailant, I find that, based on the evidence, it was Mr. Sayers who made the identification.

[86] First, on Mr. White's own evidence, he did not see who attacked him with a bottle, nor did he see who kicked him in the face. He testified, and I accept, that he has no recollection of any events after he was kicked in the face. Indeed, he acknowledged in cross-examination that he only learned he was struck with a bottle after speaking to Mr. Sayers. There is nothing in his testimony to support a conclusion that he was able to positively identify Mr. Campbell as the person who struck him. Nor did he testify that he made an identification at the scene. On the contrary, he testified in cross-examination that he told police that night that he did not know who hit him and that all he knew was the person was, "a black guy in his early twenties".

[87] On the other hand, I accept Mr. Sayers' evidence that he identified Mr. Campbell as the assailant by pointing at him and stating words to the effect, "Why are you telling me to stop. He's the guy you are after".

[88] On the basis of the evidence, I find that it was Mr. Sayers who made the prior identification of Mr. Campbell as the assailant. The prior identification evidence, therefore, is relevant only to assessing his in-court identification of Mr. Campbell.

B. Assessment of Mr. White's Evidence

[89] I believe Mr. White did his best to be honest with the court and that, for the most part, he was forthright in his evidence. He acknowledged the gaps in his memory of the events on July 30, 2016.

[90] That being said, and as I referred to in setting out the applicable legal principles in this case, it is the reliability of Mr. White's evidence that is the focus of my assessment. For several reasons, I have concerns about the reliability of Mr. White's evidence, particularly as it relates to identifying Mr. Campbell as the assailant.

[91] To begin, I find that Mr. White's memory of the events that evening was significantly impaired, either because of his alcohol consumption, the injuries he sustained, or a combination of both. Mr. White could not say definitively how much alcohol he consumed that evening, but agreed he was "a little intoxicated". I find he understated his level of intoxication. I accept Mr. Sayers' evidence that Mr. White was "a little more" than "a little tipsy", and that he was swearing and talking loudly. Further, he sustained a serious head injury which, according to his evidence, caused him to lose consciousness. At a number of points in his testimony, he stated he could not recall details of the evening. Indeed, he had no recollection of anything after he was kicked in the face. He also acknowledged that he discussed the events with Mr. Sayers afterwards because he was unsure of what happened.

[92] The unreliability of his memory is highlighted by several significant discrepancies between his evidence and other evidence.

[93] First, his account of how the altercation began is not consistent with Mr. Sayers' evidence, whose evidence I prefer. I accept Mr. Sayers' evidence that the altercation started with a verbal exchange and no physical contact, and that the three men involved were on a patio, not walking on the sidewalk, when the first interaction occurred. I find Mr. White was mistaken when he stated that the altercation started on the sidewalk when he bumped a member of the other group.

[94] How and where the altercation began is significant because both Mr. White and Mr. Sayers relied on the earlier encounter as a basis for recognizing Mr. Campbell at the second confrontation. The Crown relies, in part, on the continuity of the group involved as circumstantial evidence going to establish Mr. Campbell as the assailant. Mr. White's inability to accurately recall the initial interaction raises concerns about his reliability.

[95] Second, I accept the evidence of both Mr. Sayers and Officers Bowers and Zhorak that Mr. Campbell was still on scene when police arrived, contrary to Mr. White's evidence that the assailant was not present by this time. While there is divergence between Mr. Sayers' evidence that he was chasing Mr. Campbell around the bench when police arrived and the officers' evidence that Mr. Campbell was standing in the area when they arrived, all the evidence puts Mr. Campbell at the scene. I also accept the evidence of Officers Bowers and Zhorak that PC Bowers spoke with Mr. White and Mr. Sayers on scene, while PC Zhorak spoke with Mr. Campbell, a short distance away, but still in the immediate vicinity.

[96] This discrepancy between Mr. White's evidence and that of Mr. Sayers and the first officers on scene is significant because it opens up the possibility that it was someone else (who was no longer at the scene when police arrived), who assaulted Mr. White. It may also be that Mr. White is simply mistaken when he said the assailant was gone when police arrived, but in my view, this is a significant fact to be mistaken about and raises concerns about the reliability of his recollection generally.

[97] Third, I find that Mr. White was first injured by being struck with a bottle in the face. Mr. White's evidence that he was punched in the face is inconsistent with Mr. Sayers' evidence that he heard glass shatter, then saw Mr. White on the ground bleeding, and the evidence of glass bottle remnants being found on the scene in the immediate vicinity of the pooled blood.

[98] In the circumstances of a surprise physical altercation, it is understandable that Mr. White may have been mistaken about how he was injured. While I consider this discrepancy to be less significant than others, it is, nevertheless, another example of an inaccuracy in his recollection.

[99] Turning specifically to Mr. White's evidence on the issue of identification, his evidence raises additional concerns. First, Mr. White was unable to provide police with any description of any of the three men involved in the confrontation on the night of the incident, other than a general description that they were all black males in their twenties. Beyond that, he was unable to provide any physical description, clothing description, or provide any distinguishing features of anyone in the group. I would note as well, that his evidence is inconsistent with Mr. Sayers' evidence that one of the three males was white.

[100] Second, Mr. White had very little opportunity to observe the group and make any observations which would lend credence to his identification of Mr. Campbell as the person who hit him. Indeed, as he admitted in cross-examination, he had no reason to have focused on these individuals when he first encountered them and engaged in a verbal exchange. After that initial encounter, he was unexpectedly attacked, leaving very little opportunity to observe his attacker.

[101] Third, Mr. White's in-court identification of Mr. Campbell as the assailant came almost a year and a half after the attack. Moreover, in making the in-court identification, Mr. White was not asked for any description of his assailant prior to being asked if he could identify the person in court. The following exchange took place between the Crown and Mr. White during examination in chief:

Q: Now in terms of what you'd already experienced that you've described to Her Honour, at that point in time had you got a good look at these people?

A: Yes

Q: So would you be able to recognize any of those people if you saw them again?

A: Yes

Q: Alright. Are any of those three people that you encountered that evening here in the courtroom today?

A: Yes

[102] At this point, Mr. White identified Mr. Campbell as one of the three people in the group. Mr. Campbell was the only person (other than counsel and police) sitting at counsel table.

[103] Mr. Goddard then asked Mr. White the following:

Q: Do you recall from that night whether he looked the same as he does today?

A: Yes

Q: Were you was able to tell who punched you in the face out of the three males?

A: Yes

Q: Alright, which person was it, or is it someone you're able to describe?

A: That gentleman over there (pointing at Mr. Campbell).

[104] Given the fact that Mr. White stated he did not remember who assaulted him on the night of the incident, and my finding that he did not make a prior identification, coupled with the fact that he did not describe anyone in his evidence, Mr. White's in-court identification of Mr. Campbell has no probative value. As Cronk J.A. stated in R. v. F.(A.), 183 C.C.C. (3d) 518, at para. 47, this type of identification evidence is "…analogous to a police 'show up' in which the only person shown to the identifying witness is the very person suspected by the police to be guilty of the offence charged."

[105] For all these reasons, I have serious concerns about the reliability of Mr. White's evidence generally, but in particular, as it relates to identifying Mr. Campbell as the assailant.

C. Assessment of Mr. Sayers' Evidence

[106] I find Mr. Sayers to be an honest witness. I also find that he was a more reliable witness than Mr. White. Although he consumed alcohol and accepted that he was "a little bit" intoxicated, he provided a level of detail in his account about the events leading up to the attack which suggested he testified, in general, based on an actual memory of the encounter.

[107] I accept Mr. Sayers' evidence that the interaction began as a verbal exchange and that the men were on a patio while he and his friends walked past. I also accept his testimony that the verbal interaction began because the men may have thought Mr. White said something derogatory toward them.

[108] I accept his evidence that, because of the negative interaction, he thought he should keep an eye of the group.

[109] I also accept his evidence that he ran over to Mr. White when he saw a group of males approaching him, and that he attempted to diffuse the situation by explaining that Mr. White was intoxicated.

[110] However, there are a number of features of Mr. Sayers' evidence on identification which raise concerns about the reliability of his evidence identifying Mr. Campbell as the assailant.

[111] First, the circumstances of his observations did not lend themselves to a close and careful look at any of the men, either from the first encounter, or the later one. His entire interaction with the group occurred under stress, first as he tried to extricate Mr. White from a hostile verbal exchange, then later, as he tried to get Mr. White off the ground and keep him protected from further attacks. At some point in the encounter, he himself was stabbed in the stomach. It was such a dynamic situation, he was unsure of when or how he was injured, or who did it.

[112] Second, on the night of the incident, he provided a fairly generic description of two of the three men. His description did not contain any distinguishing features of any of the men. Notably, he did not distinguish the two black males within the group as "light-skinned" and "dark skinned", nor did he indicate that the third man was white. These distinctions arose for the first time in his evidence in court, after seeing Mr. Campbell in the courtroom.

[113] Third, Mr. Sayers' description of the assailant's clothing does not match the clothing Mr. Campbell was wearing on the night of the incident. As noted in the summary of the forensic evidence below, Mr. Campbell was dressed rather distinctly that evening, wearing white or very light-coloured clothing from head to toe. In his testimony, Mr. Sayers described Mr. Campbell as wearing blue or black jeans and a hoodie. In the description he provided to the police on the evening of the incident, he described "male 1" (who he indicated was the assailant), as wearing blue jeans, a t-shirt, and a baseball hat. Neither description matches the clothing Mr. Campbell was wearing.

[114] Fourth, in his evidence, he said he saw the assailant open a backpack and pull something out, then heard glass shatter and saw Mr. White on the ground. He also testified that Mr. Campbell was the only one with a backpack. However, in his description of the assailant to the police, he did not say "male 1" had a backpack. Rather, he specified that it was "male 2" who had a backpack. Either Mr. Sayers was mistaken when he confirmed (by signing the memobook) that it was "male 1" who stabbed him, or he was mistaken that only one male had a backpack, or he was mistaken when he said he observed the assailant open a backpack. Either way, this is a key detail on which Mr. Sayers' evidence is inconsistent.

[115] The Crown argues that, notwithstanding these discrepancies, the evidence establishes that Mr. Sayers had continuous contact with the assailant and that this continuity provides compelling evidence that the person Mr. Sayers pointed out to police was the same person who assaulted Mr. White and who, by reasonable inference, also assaulted him.

[116] It is important to recognize, however, that this was not one continuous interaction between two people. On Mr. Sayers' own evidence, the assailant backed off and returned three times during the interaction. He did not have continuous observation of the assailant, or the other males, throughout the encounter, as he was attending to Mr. White.

[117] Moreover, there are other aspects of the evidence which raise questions about the continuity of Mr. Sayers' interaction with the assailant. Mr. Sayers' evidence that he was chasing Mr. Campbell around the bench when police arrived is at odds with the evidence of PC Bowers and PC Zhorak that Mr. Campbell was standing nearby Mr. Sayers and Mr. White when they arrived, and that no one was running.

[118] Both PC Bowers and PC Zhorak also testified that they chased Mr. Campbell some distance before catching him on a flight of stairs leading up to a parking lot. I accept their evidence that Mr. Campbell fled when he was told he was under arrest and that they engaged in a foot pursuit of some distance before apprehending him. This evidence is inconsistent with Mr. Sayers' evidence that Mr. Campbell was unable to get away and was captured by police in essentially the same place he was located when police arrived, some 12 to 14 feet away.

[119] These discrepancies raise a question of whether the person who Mr. Sayers interacted with was, in fact, the same person PC Bowers and PC Zhorak apprehended.

[120] Before turning to Mr. Sayers' in-court identification of Mr. Campbell, I will address a few principles. First, as the Court of Appeal for Ontario noted in R. v. Izzard, 54 C.C.C. (3d) 252, at pp. 255-256, as a general rule, in-court identifications attract little weight: see also F.(A.), at para. 47.

[121] In-court identifications are often made in very suggestive circumstances. The accused person, whether in custody or not, is often readily identifiable as the person charged with the offence, by virtue of his/her position within the courtroom, or his/her position in relation to defence counsel. Given those suggestive circumstances, an in-court identification, standing alone, has little, if any, probative value as evidence of the identity of the assailant: R. v. Bailey, 2016 ONCA 516, at para. 48.

[122] The entire identification process which culminates with an in-court identification must be considered in order for the in-court identification to provide any probative force. The circumstances surrounding the prior identification and the details of the prior identification will be of central importance to assessing what weight to give an in-court identification: R. v. Tat, (1997) 117 C.C.C. (3d) 481 (Ont. C.A.), at para. 36.

[123] Mr. Sayers pointed to Mr. Campbell at the scene and declared that he was the person responsible for the assaults. Mr. Campbell was the only other person in the area (other than Mr. White), when police arrived. However, as I have outlined above, Mr. Sayers was unable to give any specific characteristics of the attacker, other than a generic description that he was a black male weighing between 160 and 170 lbs. The clothing description he provided did not match the clothing Mr. Campbell was wearing that night and, in fact, was markedly different. His opportunity to observe the assailant was brief and occurred in circumstances of great stress.

[124] As such, I have concerns about the reliability of Mr. Sayers' identification of Mr. Campbell on the night of the incident.

[125] Moreover, in his testimony, Mr. Sayers was unable to provide any description, either of the assailant or the circumstances, which could prove, circumstantially, that Mr. Campbell was the assailant. When he was asked to describe the person he remembered from that evening, he asserted that he was "good with faces" and had a photographic memory but did not provide any description. His recollection of the circumstances leading up to Mr. Campbell's apprehension were inconsistent with the evidence of the officers, whose evidence on these points, I accept.

[126] Taking all these factors together, in my view, Mr. Sayers' in-court identification of Mr. Campbell is of little evidentiary value.

[127] For the same reasons, and the additional inconsistencies I have set out above, Mr. Sayers' evidence also raises concerns about the reliability of his recollection, particularly as it relates to the issue of identity.

D. The Forensic Evidence

[128] I accept all of DC Smissen's evidence as reliable and credible. I find, based on his evidence and the exhibits filed, that blood was pooling in certain areas where the attack took place, and that Mr. White's bloody shoe imprints were found at the scene. I further find that Mr. Campbell had an area of blood staining on his lower right pant leg, a smaller blood stain on his left pant leg at the knee, and slight blood staining on the back of his pants (on the lower right leg and left knee area).

[129] I accept the findings of the forensic biologist that Mr. White cannot be excluded as the source of the blood on Mr. Campbell's front lower right pant leg and the back, left knee area. I also accept that Mr. Campbell had no (or negligible) blood anywhere else on his clothing.

[130] There is no evidence of how Mr. White's blood came to be on Mr. Campbell's pants. The transference of a fairly minimal quantity of blood could have occurred in a number of different ways. In what can only be described as a dynamic situation, the blood transfer could have come from Mr. Campbell having direct contact with Mr. White. It could have occurred from Mr. Campbell being in the area of pooled blood in the roadway. It could have happened by some other means. There is simply no evidence of how Mr. White's blood ended up on Mr. Campbell's pants.

[131] In my view, the most that can be said is that Mr. Campbell was clearly present in the area where Mr. White was bleeding. Indeed, Mr. Campbell may have been involved in the incident, in some manner. However, even in combination with the rest of the evidence, it does not establish anything more than a possibility that Mr. Campbell was involved in the assaults.

VII. Conclusion

[132] There are numerous frailties and inconsistencies in the evidence of the eye witnesses, Mr. White and Mr. Sayers, which diminish the reliability of their evidence. Their evidence, even in combination with the circumstantial evidence and forensic evidence, does not establish that the only reasonable inference available is that Mr. Campbell committed the assaults.

[133] For these reasons, I find Mr. Campbell not guilty on all counts.

Released: August 13, 2019

Maxwell J.

Footnote

[1] Mr. Campbell brought an application pursuant to section 7 of the Canadian Charter of Rights and Freedoms alleging that officers used excessive force while arresting him and thereafter, failed to provide medical treatment to him for his injuries. He sought a stay of proceedings pursuant to s. 24(1) of the Charter. In addition, mid-trial, defence raised additional Charter arguments, following the viva voce evidence of the arresting officers in this matter, PC Zhorak and PC Bowers, pursuant to s. 10(a), 10(b) and s. 9 of the Charter.