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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.

112. 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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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 and Parties

ONTARIO COURT OF JUSTICE

YOUTH COURT

DATE: 2021·06·07

NEWMARKET

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

LH

JUDGMENT

Evidence and Submissions Heard: 7 June, 2021.

Delivered: 7 June, 2021.

Counsel: Mr. Jacob Wilson .................................................................................... counsel for the Crown Mr. Don Carter................................................................................... counsel for the defendant

KENKEL J.:

Introduction

[1] LH is charged with aggravated assault contrary to s 268(2). The Crown proceeded by way of an Agreed Statement of Fact with one witness called by the Crown on the issue of identification.

[2] The case involves both cowardice and bravery. The complainant was lured from his car by a male who then attacked him for no reason. The male attacked the complainant as he opened the door, before he would have a chance to defend himself. The male didn’t carry out the attack alone, but was immediately joined by six friends who produced extendable metal batons. The group proceeded to beat the defenceless victim with the batons. They were joined by more friends until there were about 20 of them in the attacking group. The attackers hid their faces behind masks and when police were called, they all ran away. The Crown witness mentioned there had been other similar incidents in her area at that time.

[3] In contrast to the cowardice of the attackers, there was also courage. The young woman who testified for the Crown was one of two people who intervened. When she saw the metal batons, she realized that the victim could be seriously injured or killed. She tackled one of the men armed with a baton and held him up against the wall until the group ran away. She appeared at trial to be average size and there’s no evidence she had any particular training, but her bravery stopped one of the attackers and may well have saved her friend’s life.

[4] It’s alleged that LH was one of the six men who had an expandable baton. The circumstances of the unprovoked attack, including the production and use of weapons, show that every armed member of that group were s 21 parties to the offence of Aggravated Assault. The sole issue at trial was whether the Crown has proved the identification of the accused beyond a reasonable doubt.

Identification

[5] The witness identified LH as being one of the men with a baton. Her recognition of the accused at the time was based on the following circumstances:

• She’s 20 now. She went to the same elementary school as LH and the same high school. Although they weren’t friends, she saw him at both schools.
• At the time of the attack, it had only been 5 months since she’d last seen him at school.
• She was close to the attack and directly observed the person she identified as LH.
• That person looked at her and then looked down, which she inferred signalled that he knew her.
• When that person left she said she knew who he was, and the same person looked back at her, another indication to her that she was right about her conclusion.

[6] Several circumstances potentially detract from the reliability of that evidence:

• Most of the attacking group, including the person she identified as LH, hid behind masks. She described LH’s mask as being like a neck warmer covering the neck up to just over the nose. She could see the person’s eyes and hair.
• The witness went to the same schools as LH, but they were not in the same grade and they were not otherwise friends. LH is one of hundreds of people she would occasionally see in a very large high school.
• The witness only had a brief opportunity to observe the persons involved prior to the attack and immediately afterwards she was engaged in trying to save her friend. She then had another brief look at the group as they ran away, and she saw that the person she identified as LH had a baton in his hand.
• There was nothing distinctive about that person’s clothing. There were no distinctive facial features in the limited portion she could see.

[7] The defence submitted that the witness was trying to be helpful in court just as she had helped during the incident. She made statements to police about the attackers being a year younger than her without knowing for certain that was the case. I disagree with the defence that the witness tried to “fill in the gaps” in the evidence. Her conclusion that the attackers were a year younger than her wasn’t based on a desire to be helpful, but rather on her observations and inferences. She identified one member of the group as someone she knew he was in grade 12. One of the group asked her friends what grade they were in, which one does if they are still in high school but wouldn’t do if they had already left. The witness observed that the attackers looked younger than her peer group who had just graduated. She also knew that people in high school tend to “hang out” with people in their own grade. Finally, she didn’t recognize any of the other members of the group when she would have done if they were in her grade or older. She only recognized LH because they had gone to grade school together. Cross-examination showed that the testimony of the witness was based on her observations and reasonable inferences she drew from the circumstances.

[8] It’s important to approach all identification evidence with caution. The in-dock identification of the accused is simply the statement of a conclusion. It typically has little value standing on its own – R v Hibbert, 2002 SCC 39, [2002] SCJ No 40 at para 49. While the witness did describe the eyes and hair of the person she saw, there were no distinctive features and the person was wearing all black as were many of the attacking group.

[9] Triers of fact are entitled to take into account whether a witness is acquainted with the accused when assessing the reliability of their identification evidence – R v Campbell, 2017 ONCA 65 at para 10. This acknowledges that people are able to identify someone well known to them by numerous factors including appearance, body shape, body size, posture, gait and voice. Even though they may not think to articulate those aspects in a statement to police or even in court unless specifically asked, the extent to which they know the person identified is usually an important factor in assessing the reliability of their evidence.

[10] In this case LH was not in the same grade as the witness. While I’m satisfied that she could recognize him at high school in passing as she described, there were only a few occasions a year when she might have seen him briefly (10 times over 4 years as one of hundreds she would casually see every day). I find the level of familiarity is not such that it adds significantly to the objective reliability of the identification evidence.

[11] While I agree with the Crown that the witness was very confident in her identification, I disagree that witness confidence adds anything to the objective reliability of her evidence. The witness made two observations of the person’s demeanor on scene which in her mind confirmed her conclusion that the person was someone she knew. While I understand her conclusion, the Court of Appeal has instructed that perceptions based on out-of-court demeanour are highly suspect as evidence and easily misinterpreted – R v Levert, [2001] OJ No 3907(CA), R v Bennett, [2003] OJ No 3810 (CA) at para 118.

[12] The evidence of the witness was truthful and detailed. She identified LH as the person she saw because that is her genuine belief. However, considering all of the evidence, I find that there are not sufficient objective facts to prove the reliability of that identification beyond a reasonable doubt. That’s no reflection on the witness, but simply an acknowledgement that on these facts, a reasonable doubt must remain.

Conclusion

[13] The charge is dismissed.

Delivered: 7 June, 2021. Justice Joseph F. Kenkel