ONTARIO COURT OF JUSTICE DATE: 2022-04-27 COURT FILE No.: Toronto 19-15007260
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
TAJAUN GREAVES
Before Justice P.F. Band
Reasons for Judgment (Preliminary Inquiry)
Ms. E. Pancer.................................................................................... counsel for the Crown Ms. C. Brunet....................................................... counsel for the Accused, Mr. Greaves
Band J.:
I. Introduction
[1] On the evening of October 5, 2019, in the area of Lansdowne Avenue and Dupont Street in Toronto, police found a man named Joshua Gittens, who had suffered two gunshot wounds. The wounds were non-life-threatening. Mr. Gittens was hostile towards the officers, and did not give them any information as to how, when, where or by whom he was shot.
[2] Police arrested Mr. Greaves on October 9 while executing a search warrant at a residence they believed to be his. He was charged with attempted murder, aggravated assault and associated firearms offences.
[3] The preliminary inquiry, which was conducted remotely via Zoom, related only to the attempted murder count. For the following reasons, I have decided that Mr. Greaves must be discharged.
II. Issues and the Test on a Preliminary Inquiry
[4] The Crown’s theory is that Mr. Greaves chased Mr. Gittens into a path between two homes on Lappin Avenue and shot him twice before Mr. Gittens ran back out onto the street. Those homes are approximately one block away from where the police found Mr. Gittens minutes later. Crown counsel places much importance on security camera video depicting two males running in and then out of that path. She also relies on security camera footage from a nearby home, which depicts a male alleged to be Mr. Greaves running by. Of particular importance is the jacket he was wearing.
[5] Defence counsel argues that there is no evidence that Mr. Gittens was the male who ran into the pathway, or that he was shot there. She also argues that the evidence that Mr. Greaves is the male who ran into the pathway after that male is founded on inadmissible hearsay (the RICI photo and information conveyed to investigating officers tasked with surveilling him) and is, therefore, incapable of supporting the inference of identity sought by the Crown. She also argues that the evidence is insufficient to permit an inference of a specific intent to commit murder.
[6] At issue in this case is whether a reasonable and properly instructed jury could find, beyond a reasonable doubt, that:
i. Mr. Greaves is the male who ran into the pathway after the other male;
ii. Mr. Gittens is that other male;
iii. Mr. Greaves shot Mr. Gittens in the pathway; and
iv. In doing so, Mr. Greaves intended to kill Mr. Gittens.
[7] The case against Mr. Greaves is entirely circumstantial. The parties agree that I am required to engage in limited weighing of the evidence. I must “weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw”: see R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at para. 23. I must be mindful that the phrase “sufficient evidence” means “sufficient evidence to sustain a verdict beyond a reasonable doubt.” The concept of sufficiency “always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case”: see R. v. Charemski, [1998] 1 S.C.R. 679 at para. 35.
[8] I have come to the conclusion that the cumulative effect of the evidence is incapable of supporting a reasonable inference that Mr. Greaves was the male who ran into the pathway after the other male. In what follows, I will go over evidence in fine detail, and mention certain evidence that is not present. I am fully aware that the law requires me to commit Mr. Greaves to stand trial if a properly instructed jury could draw the inferences that the Crown seeks with respect to each element of the offence, even if there are inferences pointing in the opposite direction. I am also aware that this is not a trial, and that I am to assess the cumulative effect of the evidence that is presented. I explain my reasoning in the way that I do because of how the evidence was presented and the nature of the arguments, which evolved during the course of the preliminary inquiry, as sometimes happens.
III. The Evidence and Arguments Regarding Identity
[9] Prior to the investigation of gunshots in the Lansdowne and Dupont area, two different officers had been tasked with investigating Mr. Greaves for suspected drug trafficking: PC Morel and DC Hwang. The circumstantial evidence relied upon by the Crown includes the following photos and security footage:
- Three stills taken from security footage from a building at 1011 Lansdowne Avenue on October 2 and 3 depicting a male believed to be Mr. Greaves (the “1011 Lansdowne stills”).
- Two security videos depicting the pathway between 154 and 156 Lappin Avenue on October 5 (the “Lappin videos”).
- Two Nest camera videos taken from 186 Emerson Avenue on October 6 (the “Nest videos”).
[10] The Crown also relies on an encounter DC Hwang had with a male he believed to be Mr. Greaves near 2063 Dufferin Avenue on October 5, approximately one hour before the reports of gunfire.
PC Morel’s Evidence
[11] PC Morel understood that the target of his investigation was Mr. Greaves, who was believed to be dealing drugs at 1011 Lansdowne, an apartment building that is a five-minute walk from Lappin and St. Clarens. Armed with what he believed was a RICI photo of Mr. Greaves from a prior arrest, [^1] PC Morel attended at 1011 Lansdowne on October 4. Building staff told him they had seen the male depicted in the RICI photo and showed PC Morel security video from October 2 and 3. PC Morel compared the male on the videos to the male depicted in the RICI photo and came to the conclusion he was Mr. Greaves. He did not see this male at 1011 Lansdowne in person.
[12] Three still shots taken from different times of day on the October 2, 1011 Lansdowne videos were filed as exhibits. They depict a thin, young black male. Where it is visible, his skin appears relatively dark. In two of the photos, the hood is up. In one of them, his head is bare, but he is looking at a slightly downward angle. In one of the photos, his face is completely obscured, perhaps because the hood is up. In the other photo where the hood is up, he is looking downward and his face is not visible in its entirety. In that photo and the one where his head is bare, one can see that he is wearing dark-framed glasses. His hair appears to be in short braids or ringlets, which reach down to his mid-forehead. Overall, the photos are grainy and the lighting is not very good. Where the face is visible, it is impossible to make out distinct features with any precision.
[13] The multi-coloured Nike jacket he is wearing took on significant importance. The top of the chest and shoulders appear to be black (and were described as such by PC Morel), the sleeves are blue, the torso is white and the waist is a dark colour. The black panel makes a V-shape where it connects to the white panels at the chest, and the Nike logo appears on the left side, at chest height. In one photo, the hood appears to be black. In another, it appears to be blue. In one photo, the male is wearing black shorts. In the others, he is wearing black pants and running shoes that have a significant amount of white around them.
[14] As a demonstrative aid, the Crown filed a photo of a similar looking Nike jacket that was taken from the internet. To me, the upper chest and shoulders appear to be dark blue.
[15] On October 5, PC Morel attended the area of St. Clarens and Lappin in regard to the reports of gunfire. The suspect description was as follows: male black, mid teens, 5’9”, thin build, unknown hair, white hoodie with gray and blue decal on it; hood is up; wearing jeans and carrying a handgun. He later went to view the Nest videos numerous times on a cell phone.
[16] I have viewed the Nest videos multiple times on a larger-than average, good quality monitor. The lighting is good and they are of very good quality with respect to things in the foreground. However, because the male is running on the sidewalk, which is at some distance from the entrance of the home, no distinct features can be made out. What is depicted is a thin male running northbound on Emerson. In one, the male can be seen from his left side. The other is taken at an angle such that he can only really be seen from behind. It takes him three to four seconds to cross the frame. He is wearing a jacket similar to the Nike jacket described by PC Morel, however, the upper chest and shoulders appear to be blue. His pants are black. His shoes are mostly black. He appears to be a light-skinned male with short black hair, wearing dark-framed glasses. No more can be said about his hairstyle, and there is nothing in this footage to indicate that he is a black male.
[17] At the scene, after reviewing the Nest videos, PC Morel came to the determination that they depicted the same male he had seen the day before, at 1011 Lansdowne. He based this conclusion on the jacket and his belief that the male had “a similar build, physical description and stature.”
[18] His involvement in the case ended there, and there is no evidence that he ever saw Mr. Greaves in person.
[19] During the preliminary inquiry, everyone participated remotely. PC Morel identified Mr. Greaves as the male in question. Mr. Greaves was the only young black male on the screen, and his name was written below his image.
DC Hwang’s evidence
[20] On October 5, DC Hwang was conducting surveillance near 2063 Dufferin St., which he believed to be Mr. Greaves’ last known address. At approximately 5:30 p.m., he was approached by a male. They had a short interaction standing three to four feet apart during which DC Hwang asked him for some information and the male politely responded that he was unable to assist him. He described him as a light skinned black male with some small freckles on his nose and very light, peach fuzz facial hair. He described his clothing as a Nike jacket with a white body, black chest, blue sleeves and a hood. The hood was up, he was wearing black glasses, black pants and a black backpack. The male entered a unit at 2063 Dufferin and DC Hwang left that location shortly afterwards.
[21] Approximately an hour later, DC Hwang heard the same description of the suspect shooter as PC Morel had. Based on that description, he returned to the area of 2063 Dufferin as Mr. Greaves was believed to frequent that area. After about 30 minutes, he went to the area of 154 Lappin. He estimated it to be a 20-25 minute walk or 10 minute drive away. He, too, viewed the Nest videos. He believed that they depicted Mr. Greaves because the male was wearing the same clothing as DC Hwang had seen earlier.
[22] DC Hwang was not asked to identify Mr. Greaves during the hearing. [^2]
The Lappin videos
[23] There are two Lappin videos taken from a home across the street from 154 and 156 Lappin on October 5 just after 6:30 p.m. The first depicts two males running into a pathway between 154 and 156 Lappin Avenue about five seconds apart. The first one to enter the pathway appears to be a dark-skinned black male. He is wearing dark clothing. The second male is wearing a similar jacket to the one that has been described above, black pants and black shoes. He has dark hair and is of thin build. In the second video, the dark-skinned male runs out first, and proceeds in a southwest direction down St. Clarens Ave. The second to exit is the male in the multi-coloured jacket. He is lighter skinned than the other male. Beyond that, no distinct features are visible as he runs eastbound along Lappin. The picture is good quality, as is the lighting. However, because the action takes place across the street and the persons of interest are running, it is impossible to make out distinct features. Also, they appear in the frame for a matter of seconds and are at times obstructed by a blue jeep, an electric pole and signage.
Other evidence
[24] The Crown also points to other circumstantial evidence bearing on identity. In particular, the proximity in time and place where the male alleged to be Mr. Greaves was seen in the days and hours leading up to the reports of gunshots: 1011 Landsdowne on October 2 and 3, and 2063 Dufferin, 154/156 Lappin and 186 Emerson on October 5.
[25] No evidence was presented as to the clothing that Mr. Greaves was wearing upon arrest on October 9 or what, if anything, was seized pursuant to the search warrant. A second RICI photo, dated October 9, was filed among the documents. In that photo, Mr. Greaves appears as a relatively light-skinned black male with afro-style hair that is four to five inches long on top, and closely shorn above the neck and ears. He has some freckles about his nose, sparse and fine facial hair and a laceration on the skin between his eyes. During the preliminary inquiry, Mr. Greaves appeared to me to be a relatively light-skinned, thin young black male.
[26] An Agreed Statement of Facts was also filed. It contains descriptions of black males that were seen in the area by people who called 911. Their descriptions do not match that of the male alleged to be Mr. Greaves. One of them was alleged to have left a Dollarama and run south on Lansdowne while shooting a gun. Blood was seen near the Dollarama, which is between Dupont and Lappin.
The Arguments
[27] During her cross-examination of PC Morel, Defence counsel embarked on a line of cross-examination one would expect in the context of a “Leaney application”. This is not surprising, as he had been asked, in-chief, to state the conclusions he had drawn from the Nest videos. I interrupted her to ask the Crown whether she intended to bring such an application which, of course, would require a voir dire. Crown counsel advised that she did not. However, Crown counsel indicated that she would be inviting me to compare the male depicted in the photos and security video with Mr. Greaves, before the court, pursuant to R. v. Nikolovski, [1996] 3 S.C.R. 1197. As a result, Defence counsel moved on to another line of questioning.
[28] In her closing submissions, Crown counsel advised that she no longer intended to rely on Nikolovski. I would not be asked to compare Mr. Greaves, the accused person before me, to the stills and security video to determine if they were the same person. Rather, the Crown argued that my role would be to determine whether a properly instructed jury could find that the male depicted in the 1011 Lansdowne stills and the Lappin and Nest videos was one and the same. In her submission, PC Morel’s belief that Mr. Greaves was the male in the 1011 Lansdown videos, when seen in the context of all the circumstantial evidence and the in-dock identification, is what connects Mr. Greaves to the events that took place in the pathway between 154 and 156 Lappin.
[29] Crown counsel also advised that she was not relying on PC Morel’s and DC Hwang’s belief that Mr. Greaves is the male depicted in the Lappin and Nest videos. However, she described PC Morel’s belief that the male he saw in the 1011 videos is Mr. Greaves as being “in play” because he believes that he knows that to be a fact based on the RICI photo. Subsequently, she indicated that she was relying on this evidence only as narrative to explain how he came to identify Mr. Greaves at 1011 Lansdowne. She made similar submissions about DC Hwang’s belief regarding the male near 2063 Dufferin.
[30] Defence counsel argued that the source of both officers’ belief – the RICI photo of the prior arrest and attendant information they had been given – is inadmissible hearsay. It is also the keystone of the evidence pointing to identity. So, once it is removed, the whole edifice crumbles.
IV. Analysis
Is the RICI photo hearsay?
[31] It is difficult to determine in this case whether the RICI photo is hearsay. Technically, it might be. However, it is difficult to square Defence counsel’s submission in that regard with the fact that the photo was tendered on consent at the outset of the hearing as both admissible and authentic and again, toward the end, in the Agreed Statement of Facts. It must be said that this matter proceeded very quickly and most of the exhibits were tendered electronically in one fell swoop. On more than one occasion, I was compelled to ask parties to slow down. The RICI photo might have been a casualty of haste. In these circumstances, I would be unwilling to rule definitively on this point. In any event, given the conclusion I have come to, it is unnecessary to do so.
What to make of the “narrative” concerning identity?
[32] The Crown was quite right to disclaim any reliance on the officers’ opinion that Mr. Greaves is depicted in the Lappin and Nest videos. But the problem remains upstream, with the officers’ stated belief that Mr. Greaves was the male seen in the 1011 Lansdowne videos and near 2063 Dufferin.
[33] In light of the tight proximity in time and place, as well as the similar clothing and physical attributes, a jury would have no trouble finding that the male in the multi-coloured jacket in the Lappin and Nest videos is the same person. However, a jury could not find that that male was the one depicted in the 1011 Lansdowne stills of October 2. Due to the poor quality of the images, such an inference would be speculative.
[34] What is more, a jury could not find that Mr. Greaves is the male in the 1011 Lansdown stills or the person that PC Hwang interacted with near 2063 Dufferin. The officers’ beliefs in that regard were opinions, albeit implicit ones, based on a comparison they each made to an undated RICI photo. To be admissible, they ought to have been the subject of a Leaney voir dire. They were not, and there is an almost total lack of evidence in support of them. A jury would be instructed not to rely on those opinions to infer that Mr. Greaves was the male depicted in the Lappin and Nest videos.
[35] Downgrading the officers’ beliefs to narrative is not a viable solution. As narrative, such evidence cannot do the work that the Crown asks it to do: provide a basis for proof of identity.
[36] I am also of the view that a jury would be instructed to give no weight to PC Morel’s in-dock identification of Mr. Greaves in this case. It was based only on the RICI photo [^3] and, perhaps the 1011 Lansdowne videos. And, as I mentioned above, he made it by looking at a Zoom display containing only one young black male, whose name was written on the screen.
V. Conclusion
[37] A reasonable and properly instructed jury could not find that the Crown has proved identity beyond a reasonable doubt based on this record. As a result, Mr. Greaves will be discharged on the count of attempted murder.
[38] In light of that conclusion, it is unnecessary for me to address the other points in issue.
Released: April 27, 2022
Justice Patrice F. Band Ontario Court of Justice
[^1]: This photo, which was filed as an exhibit, is undated. [^2]: In her submissions, Crown Counsel indicated that she thought he had. I mention this for the sake of completeness only. [^3]: In her submissions, Crown counsel told me that the RICI photo was not for my substantive use, but only part of the narrative. Nonetheless, it bears mentioning that Mr. Greaves looks significantly younger in it than he does in his post-arrest photo of October 9.