Court Information

Ontario Court of Justice

Date: 2019-10-23

Between:

Her Majesty the Queen

— and —

Chad Connolly

Judgment

Counsel:

• M. Tait, Counsel for the Crown
• C. Cawkell, Counsel for the Defendant

Before: Felix J.

Table of Contents: R. v. Chad Connolly

• A. Introduction
• B. Position of the Crown and Defence
• C. Ruling on Committal
• D. Test at a Preliminary Inquiry
• E. The Evidentiary Record Adduced in Support of Identification
• F. Applying Nikolovski at a preliminary inquiry
• G. Nikolovski Analysis: Videos from the Circle K
• H. Facebook Photos
• I. Conclusion

A. Introduction

[1] This is a case about the application of R. v. Nikolovski, [1996] S.C.J. No. 122 at a preliminary inquiry as it relates to the standard of proof applicable to the essential element of identification.

[2] The complainant was working in a convenience store when he was robbed by a male assailant. The person entered the store, came behind the counter, told the complainant to open the cash register, and took money. The assailant also took a carton of cigarettes and searched the complainant for the purpose of taking his bank card. While no weapons were produced, and no threatening words were uttered, the circumstances clearly make out the elements of the indictable offence of robbery. The sole remaining issue on the preliminary inquiry is the essential element of identification.

[3] After the robbery, the investigating police officer took a number of investigative steps. He reviewed the surveillance video from the robbery, reviewed surveillance footage of the assailant from a nearby Remax real estate office, and produced a police media release with pictures of the robber. The male assailant was dressed in a black baseball hat, red shirt, and dark pants. His face was not obscured.

[4] After the media release was published, the officer received a number of anonymous phone calls identifying "Chad Connelly" as responsible for the robbery. The officer accessed a mug shot of the defendant that he described as "dated" (taken in 2011). The officer also described accessing the "open source" Facebook and obtaining photos from an account belonging to a "Chad Connelly" that "he believed to be responsible for the robbery". The officer testified that he tried to find the best Facebook-sourced photos that would show the defendant's face. Two such photos have been marked as exhibits at the preliminary hearing.

[5] The officer used the product of the surveillance footage from the robbery, the mug shot, and the Facebook photos to determine that he had reasonable grounds to arrest the defendant for robbery. He believed that there were "some similarities" between the mugshot, the Facebook photos, the Remax video, and the videos from the convenience store. He determined that it "… appeared that the suspect in the robbery had similar body features to [Chad] Connolly."

B. Position of the Crown and Defence

[6] The Crown relies on Nikolovski in asking the Court to examine the defendant before the Court, examine the assailant on the surveillance video, and find that identification of the robber has been established. Defence counsel submits that the evidence is too frail to establish identification.

[7] The Crown and Defence premise their respective positions on the differing approach to "direct evidence" and "circumstantial evidence" at a preliminary inquiry: R. v. Arcuri, 2001 SCC 54, at paras. 22-23. The Crown argues that a Nikolovski identification is "direct evidence" supportive of committal. The Defence argues that given the role of the preliminary inquiry justice using Nikolovski, some limited weighing of the evidence is required. Defence counsel submits that the Crown is essentially asking the Court to draw a circumstantial inference based on the evidentiary record – namely, that the defendant is depicted in the video from the robbery. This exercise amounts to the limited weighing of the circumstantial inference urged upon the Court by the Crown.

C. Ruling on Committal

[8] A preliminary inquiry justice must consider the entire evidentiary record when evaluating whether or not the Crown has adduced sufficient evidence to establish an essential element. I find that in order for a preliminary inquiry justice to commit for trial pursuant to a Nikolovski identification, the preliminary inquiry justice must be subjectively satisfied that the evidentiary record supports a positive identification of the defendant. In arriving at a finding premised upon Nikolovski, I find that the preliminary inquiry justice necessarily engages in a limited weighing of the evidence to determine if there is sufficient identification evidence prior to a determination as to whether a reasonable jury, instructed in the law, could (not would) convict.

[9] Applying this analysis to the case before the Court, the Crown submits that this Court should examine the defendant, compare him to the video depiction of the robber at the convenience store, and conclude that it is the same person. The Crown submits that if I am satisfied that it is the same person, obviously a reasonable and properly instructed jury could find that the defendant was the robber.

[10] I find that the Crown has not adduced sufficient identification evidence to establish a positive identification of the defendant before the Court as the person depicted on the surveillance video.

[11] I find that in order to commit for trial based on a Nikolovski analysis, I must be subjectively satisfied by the evidentiary record that the assailant in the robbery is the person before the Court. The identification features on the surveillance video and the identification features on the Facebook photos are generically applicable to a vast population of male persons in the greater Toronto area. There are no unique or distinguishing features available to assess (e.g., tattoos).

[12] On the record produced at the preliminary inquiry, having regard to the care and concern inherent in criminal law as it pertains to issues around identification evidence, I am not satisfied that the defendant before the Court is the person depicted on the surveillance video pursuant to the analysis in Nikolovski. In so finding, the distinction between "direct evidence" and "circumstantial evidence" is less important. I note in passing, that even if I found that the use of Nikolovski engaged considerations around the use of "direct evidence", I would arrive at the same conclusion on this record.

[13] Based on the evidentiary record presented at the preliminary inquiry, no reasonable jury, properly instructed in the law, could convict.

[14] I am obligated to discharge the defendant.

D. Test at a Preliminary Inquiry

[15] The Crown and Defence did not litigate the proper scope of a preliminary inquiry nor the test for committal. As such, I will only briefly set out the following guidance at a preliminary inquiry:

1. The function of a preliminary inquiry justice per s. 548(1) of the Criminal Code is to order the defendant to stand trial if there is "sufficient evidence", and to discharge the defendant if "on the whole of the evidence no sufficient case is made out": s. 548(1) of the Criminal Code.

2. The preliminary inquiry justice must consider whether there is any admissible evidence "upon which a reasonable jury, properly instructed, could return a verdict of guilty": Arcuri, at para. 21; United States of America v. Shephard, [1977] 2 S.C.R. 1067. The evidence must support a finding that a jury could, but not necessarily would, find the defendant guilty.

3. The preliminary inquiry justice must be satisfied that there is evidence of each essential element of an offence.

4. The preliminary inquiry justice does not assess the credibility of witnesses or consider competing inferences. Where more than one inference is available, only the inferences that favour the Crown are considered, regardless of how strong or weak the inference might be: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635.

5. Where the Crown relies on "direct evidence" to prove an element of the offence, the evidence need only be accepted to suffice for committal: Arcuri, at para. 22.

6. Where the Crown relies upon "circumstantial evidence", the preliminary inquiry justice must engage in a limited weighing of the evidence to determine whether or not it supports the inferences asserted by the Crown: Arcuri, at paras. 21-22.

E. The Evidentiary Record Adduced in Support of Identification

[16] During submissions, the prosecution narrowed the identification issue to the application of Nikolovski at the preliminary inquiry stage. Prior to addressing the analysis implied by Nikolovski, there are eighteen factors relevant to the record produced on the issue of identification which provide context to my judgment:

1. The complainant from the robbery did not identify the defendant before the Court as the person who robbed him (e.g., "in-dock").

2. The complainant from the robbery was never asked to participate in a photo line-up by the police.

3. The Remax video, relied upon by the officer as part of his identification, was not adduced into evidence.

4. The mug-shot of the defendant, relied upon by the officer as part of his identification, was not produced into evidence.

5. Utterances made by the defendant to the police upon arrest were not adduced into evidence because of a pre-trial agreement between a case management Crown and Defence counsel.

6. The content of the several anonymous calls to the officer were not admitted into evidence for the purpose of incriminating the defendant. They were admitted for the purpose of narrative and reasonable grounds only.

7. Defence counsel conceded that the Facebook photos could be marked as exhibits on the preliminary hearing. In so doing, Defence counsel did not concede that the Facebook photos were factually sourced from the defendant's Facebook account or that the photos depicted the defendant.

8. The evidentiary record produced concerning the Facebook photos failed to meet the test for admission of electronic evidence under the Canada Evidence Act ss. 31.1-31.8. These sections were not expressly relied upon nor satisfied by the record produced.

9. Even if I have erred in this finding, there is no direct or circumstantial link between the Facebook material and the defendant. The officer's use of Facebook was not amplified by evidence concerning the manner in which Facebook was searched. For example, there was no evidence explaining how the search was conducted, what filters or limitations were applied (e.g., was the search limited to the Toronto area or world-wide?), or how many Facebook profiles with the name "Chad Connolly" existed. As such, this evidentiary record did not factually establish a link between the defendant and the Facebook photos or lay a foundation for a reasonable inference that the Facebook photos were of the defendant.

10. While it is clear that the robber had a distinctive tattoo on the top of his left hand, no evidence was adduced that Chad Connolly has this tattoo on his left hand. No further investigation of this distinctive feature was presented in Court (e.g., photos of his hand incidental to arrest).

11. If there are other relevant tattoos on the defendant's body (e.g., perhaps there is a tattoo on the left side of the defendant's neck), this evidence was not canvassed at the preliminary inquiry. No investigation of this distinctive feature was presented in Court (e.g., photographs of the defendant's neck tattoo).

12. While it is clear that the robber utilized a white towel wrapped around his hand, and I have heard evidence that a white towel was seized, there was no forensic investigation of this towel presented.

13. Notwithstanding the fact that the robber clearly touched numerous surfaces as is evidenced by the surveillance video, no forensic investigation of the inside of the store was presented.

14. There was no evidence linking the defendant before the Court to any of the clothing worn by the robber (e.g., seizure of items of clothing incidental to arrest or pursuant to search warrant).

15. No photographic capture of the defendant proximate to the time of arrest was adduced into evidence.

16. No evidence of the defendant's height, weight, physical stature, or distinguishing physical features was adduced into evidence.

17. The simple fact that the defendant initiated contact with the police after the media release is not after-the-fact conduct incriminating the defendant.

18. The investigating officer was not able to provide identification evidence per R. v. Leaney, [1989] 2 S.C.R. 393, because he had no prior association with the defendant. In such circumstances, that the officer honestly believed that the Facebook photos and the video from the robbery depict the defendant is inadmissible and irrelevant: R. v. Cuming, [2001] O.J. No. 3578. The officer is in no better position than the Court to opine on the issue.

F. Applying Nikolovski at a Preliminary Inquiry

[17] The Crown argues that the record produced places this Court in the position to utilize Nikolovski and commit for trial based on "direct evidence". The Crown relies upon R. v. Sheardown, 2010 ONSC 4235, a decision of T. Ducharme J. on a certiorari application. In that case the Court grappled with the salient issue of how to characterize the use of Nikolovski at a preliminary inquiry stage given the test for committal. The Court analysed the issue from the perspective of both "direct evidence" and "circumstantial evidence". As it concerns the analysis as "direct evidence", the Court held that the video is real evidence and may be used by the Court as "direct evidence": Sheardown, at para. 23. The Court analogized the circumstances as placing the preliminary inquiry justice in the position of an eyewitness and concluded at paragraphs 24-25 that:

. . . Similarly, if the preliminary inquiry judge concludes on the basis of the photo comparison that a reasonable jury properly instructed could conclude that the accused was the person in the photograph that would be sufficient evidence of identity for committal. This is exactly the conclusion reached by Justice Merenda.

25 For both of these reasons, I conclude that the evidence in a Nikolovski situation is, in fact, direct evidence. This conclusion is significant as it means that the role of the preliminary inquiry judge and the scope of review available on a certiorari application are narrower. That is, the "limited weighing" involved in the second branch of Arcuri is not permitted. The only question for the preliminary inquiry judge is whether there was evidence of identification. If there is, and there is evidence of all the other elements of the offence, committal must be ordered. [Emphasis added]

[18] As it concerns viewing the Nikolovski process as an assessment premised on "circumstantial evidence", the Court in Sheardown held (at paragraph 32) that the "limited weighing" inherent in such a process risked running afoul of the rules at a preliminary inquiry:

32 The theoretically challenging aspect of "limited weighing" in this context is that it is difficult to understand how one can do this without running afoul of the oft-repeated prohibition against assessing the "sufficiency" of the evidence. In Nikolovski, the Supreme Court of Canada made it clear that such photographic evidence must be of "sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt." Thus, it seems that any assessment of photographic evidence would require some minimal assessment of qualitative sufficiency.

[19] It is clear that the Court in Sheardown grappled with whether use of Nikolovski implied consideration of "direct evidence" or "circumstantial evidence": Sheardown, at para. 22. Ultimately the Court held that applying Nikolovski involved consideration of "direct evidence".

[20] I find that if a preliminary inquiry justice is asked to invoke Nikolovski, the Court is necessarily engaging in a limited weighing of the evidence. Inherent in the invocation of Nikolovski is the fact that the preliminary inquiry justice must evaluate the identification evidence and determine if it is available and capable of satisfying the essential element of identification. This evaluation engages consideration of the quality of the video, what the video depicts, and the subjective view of the preliminary inquiry justice. I find that Nikolovski requires me to be subjectively satisfied that there is a positive identification before crediting the identification evidence as evidence capable of being received by a jury.

[21] While I recognize that a preliminary inquiry justice is prohibited from weighing the evidence, the entire record of the proceedings must be considered, and the justice must determine whether the evidence amounts to an identification at all. This is a necessary precondition to a finding that the evidence of identification meets the test for committal: (See the analysis by J.D. McCombs J. in the mandamus application R. v. Herrera, [2008] O.J. No. 3040 (S.C.) at paragraphs 22–30 and R. v. Kumi, 2017 ONSC 5508, at paras. 49-52).

[22] The over-arching duty of the preliminary inquiry justice is to commit or discharge depending on whether evidence on an essential element has been adduced. Having regard to the traditional concerns held by the criminal justice system inherent in identification cases, I find that I must be satisfied that there is some positive evidence of identification in order to commit for trial. Where committal at a preliminary inquiry hinges on the Court's subjective evaluation of evidence per Nikolovski, the Court must evaluate all of the evidence led at the preliminary inquiry and possess sufficient confidence in the identification evidence in order to commit for trial.

G. Nikolovski Analysis: Videos from the Circle K

[23] I make the following findings from the surveillance footage from the convenience store marked as an exhibit:

1. Doorframe AVI: This video is blurry and of poor quality. The assailant is wearing a dark baseball hat, dark jacket, red colour shirt. The assailant is of heavy-set build. There is something white in his hands. There is nothing discernable in this video.

2. Pos1AVI: This video is blurry and of poor quality. At 00:42 HRS the best profile of the assailant's face is presented. No hair colour is visible.

3. Pos2AVI: This video is very clear and of very high-quality and resolution. I am able to see grey hair on the rear head area of the assailant under the baseball hat. Furthermore, there is a clear and discernable tattoo on the assailant's left hand.

[24] The identification evidence is deficient for several reasons. Only the Pos2AVI video is clear. The facial area of the assailant is clear for only a small portion of the video given the positioning of the assailant and the relative position of the camera. Notwithstanding the quality of the Pos2AVI video, I cannot honestly find that the defendant before the Court is the person depicted on the video. Having regard to the record on this preliminary inquiry, there is only a generic resemblance between the person on the video and the person before the Court. The only similarities are that both are Caucasian males with a medium to heavy-set build. There are no unique identification characteristics to evaluate given the record produced on the preliminary inquiry.

H. Facebook Photos

[25] I find that the Facebook Photos are not "direct evidence" as contemplated by Nikolovski. The photos constitute circumstantial evidence, produced by the investigating officer, informed by his subjective impressions gleaned from the investigation.

[26] I cannot find that the defendant before the Court is the "Chad Connelly" depicted in the Facebook photos. While the Defence conceded that the photos could be filed as exhibits, the Defence did not concede that the photos were sourced from the defendant's Facebook account or that the photos actually depict the defendant. The record produced concerning the entity known as Facebook was limited. I note in passing that the considerations implied by sections 31.1 to 31.8 of the Canada Evidence Act were not addressed by the record produced through the testimony of the officer. Even if the Canada Evidence Act criteria had been addressed, there was no basis to infer or find that the Facebook Photos were associated to the defendant before the Court. No evidence was called concerning the manner in which Facebook was searched including what steps were taken, if any, to limit the search in an attempt to focus on the defendant (e.g., geographic filters). Given the record produced concerning the open-source search, and the very limited knowledge accessible about Facebook via the doctrine of judicial notice, I am unable to circumstantially infer that there is a link between the open-source Facebook photos and the defendant.

[27] Finally, even if I assumed that the Facebook account belonged to the defendant, the identification inference urged by the Crown is no stronger. In comparing the person depicted in the Facebook photos and the person before the Court there is merely a generic resemblance. Comparing the person depicted in the Facebook photos to the person on the surveillance video does not support a positive identification. Once again, the generic presentation of the person on the surveillance footage and the person in the Facebook photos does not reasonably support the finding that the defendant before the Court is the robber.

I. Conclusion

[28] The defendant is discharged.

Released: October 23, 2019

Signed: "Justice M.S. Felix"

[1] Not the Crown Attorney leading evidence at the preliminary inquiry.