CITATION: R. v. Zhou, 2022 ONCJ 305
DATE: June 21, 2022
Information No. 4911-998-20-05012-00
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
JIARONG ZHOU
RULING ON CROWN’S APPLICATION RE IDENTIFICATION
BEFORE THE HONOURABLE MR. JUSTICE PRUTSCHI
on June 21, 2022
at NEWMARKET, Ontario
Section 486.4 publication order
APPEARANCES:
A. Barkin Counsel for the Crown
S. Moshe-Steinberg Counsel for the Jiarong Zhou
RULING ON CROWN’S APPLICATION RE IDENTIFICATION
Prutschi j. (Orally)
Thank you to both counsel for strong submissions on short notice in an interesting scenario that has arisen in this case. These are my oral reasons on the Crown’s application.
N.F. is the complainant in a sexual assault case. She had met her alleged assailant on only two prior occasions, one of which was at the time of the incident.
She had obtained social media photos through a friend of the person that she believed assaulted her. One of those photos reveals a pattern tattooed on the man’s left arm, running from his elbow to his wrist.
Mr. Zhou, the accused in this trial, has attended at his case each and every day wearing a business blazer which covers his arms.
I’m told that the Crown has no photos which speak to whether or not he has any tattoos, and now seeks an order of this court to have Mr. Zhou remove his jacket and roll up his sleeves, if necessary, to display his arms to the complainant as part of her testimony.
Counsel on behalf of Mr. Zhou objects, noting this would be a form of in-court search to which Mr. Zhou would be judicially compelled to participate, violating not only his s. 8 right but his s. 11(c) right against self-incrimination and more generally his right to silence.
There’s no doubt that observations of markings such as a tattoo can be relevant evidence going to identification where such observations can be made in the normal course of simply watching someone as they participate in a trial. However, the issue I am being asked to determine today is whether it is appropriate for me, as the trial judge, to order Mr. Zhou to reveal his otherwise covered bare arms to the complainant witness to assist in a possible identification. It is this court-ordered compulsion that engages some unique constitutional concerns.
In R. v. Ricciardi, 2017 ONSC 2105, the accused showed up at his preliminary hearing wearing a distinctive hoodie sweatshirt that police believed might have been worn during the commission of the offences in question. The Crown applied to the preliminary inquiry court for permission to photograph the accused in that hoodie. The preliminary inquiry judge expressed some hesitation about the propriety of such a move and requested that counsel furnish him with case law prior to making a ruling. The application was eventually abandoned by the Crown, noting that ‘certain other steps’ could be taken.
At a break, an officer engaged in those certain other steps, by approaching the accused, who was seated in the prisoner’s dock, and seized the hoodie, relying ostensibly on s. 489(2)(c) to permit the seizure of items in plain view. Justice Di Luca of this jurisdiction’s Superior Court, later at trial noted that the removal of a sweatshirt from an accused was analogous to a strip search, though clearly to a much lesser degree than what is traditionally contemplated in that kind of intrusive search. However, he did note that such a search engages similar privacy concerns and runs the risk of some level of degradation or humiliation. [See paragraphs 35 and 36 of the Ricciardi decision].
This therefore, in the view of Justice De Luca engaged the s. 8 right to be free from unreasonable search and seizure, and the court in that case found the seizure of the hoodie overstepped these bounds and constituted a Charter violation.
In R. v. Stephens, 2021 ABQB 246, the issue was the removal of a health mask during the throes of the Covid-19 pandemic, for the purposes of in-dock identification. Under those circumstances the court concluded that mask removal should be granted since masking in court is not something that would normally be permitted and only occurred in that instance due to the fortuitous circumstances of the pandemic. ‘Fortuitous’ is perhaps an odd word in the circumstance, no-one is thankful that we’ve gone through what we’ve gone through over the last two plus years, but fortuitous in the sense that were it not for the pandemic, no-one would have been masked in that courtroom on that date at that time. The order of the justice in Stephens noted that an accused would not normally be permitted to conceal their identity at trial by resort to a mask.
Indeed, I note in this case Mr. Zhou has worn a mask, presumably for Covid-19 health reasons, which he is perfectly entitled to do. He was requested by the Crown to remove that mask for the purposes of an in-dock identification and he did not object to that procedure.
There is a line of cases from British Columbia that include R. v. Teskey, 1995 BCJ No. 3071, and the Summary Conviction Appeal Court’s decision, also in British Columbia, of R. v. Cyr, 1997 1039, in which courts have ordered accused persons to reveal tattoos for the purposes of identification. This line of cases was carefully considered and rejected by the trial judge in R. v. Ermineskin, 2020 ABPC 40. The Ermineskin case involved a number of criminal charges including a robbery in which the perpetrator was said by the complainant witness to be missing fingers on one hand. The accused in that case had a congenital deformity to his right hand, making it much smaller in size, with fingers that were much shorter than normal. The Crown brought an application to compel the accused to show the complainant his hand in court. He had been sitting throughout the trial with his arms folded in a manner that kept his hands out of the witness’s view.
Justice DePoe stated at paragraph 31:
I would agree that there is a discretion vested in the trial judge to direct an accused person to comply with what may be described as the normal expectations of an accused appearing in court. Passive observation of an accused at trial has always been perfectly acceptable. In nearly all cases, the accused is, or can be, required to be present. He might be seen to move about in the courtroom, and a witness may view him where he sits in court. The accused would be expected to be attired in a normal way. There is a difficult line to be drawn here, but in my view, it must be done with the rights of the accused, described herein, firmly in mind.
Justice DePoe went on to consider the potential damage to dignity that could be caused by compelling the accused to present his hands in court in this fashion, and noted that there were a number of alternative remedies available to the Crown including evidence that may have been collected pursuant to the Identification of Criminals Act, or even potentially by resort to the General Warrant provisions of the Criminal Code.
Justice DePoe concluded that ‘in the ordinary course of events at trial’ a judge should not make such an order:
Aside from avoiding a breach of an accused person’s Charter rights, it would serve to avoid the court losing the appearance of impartiality and becoming involved to some degree in obtaining evidence from a presumptively innocent (and silent) accused.
What the Crown asks me to do here is to participate in an investigative step that has the potential, through an in-court search, to conscript evidence from the accused. I recognize that the impact on Mr. Zhou’s dignity in this particular case is likely minimal as the purported location of the tattoo is in an area on his arm that might often be exposed to public view. It is, however, qualitatively different for a sitting court, in the midst of a trial, to force compliance with such a procedure on an accused. An accused person is not compellable to participate in lineups. These are now accomplished by way of a police photo array. Though the Crown has analogized to the extraction of DNA, I note that this procedure takes place outside of court, upon a formal written application by the Crown, and is assessed in light of a specific statutory regime governing whether it will be granted and in what manner it is to be executed. That is very different from directing a defendant to roll up his sleeve in court so that a witness can gaze at it.
I note, as the court did in Ermineskin, that there are a number of alternative mechanisms by which the Crown here could have, or might still be able, to view Mr. Zhou’s arms for identification. These include photographs or booking notes made upon arrest. Although I am advised that booking photos were not taken in this case, I have not been advised whether booking notes exist or police station surveillance that perhaps might have Mr. Zhou’s arms exposed on them. Even if such items do not exist, the Crown has, as was indicated in Ermineskin, the option to resort to the General Warrant provisions of the Criminal Code should it be deemed appropriate.
Ordering an accused, who is exercising his right to silence, to disrobe in open court for the purposes of identification, is, in my view, not a proper exercise of judicial authority. As Justice DePoe noted in Ermineskin at paragraph 25:
If an accused person cannot be lawfully compelled to say anything, or even participate in his trial, it is entirely illogical to me to suggest that he can be compelled, at trial, to expose a part of his body by order of the court at the request of the Crown. The court should not be placed in this position.
For these reasons I decline to order Mr. Zhou to roll up his sleeves in this case at this time. This ruling may be revisited should Mr. Zhou choose to testify, if the Crown seeks to cross-examine him about any tattoos he may have. That scenario may well engage a different set of considerations, such as those discussed in R. v. Dunstan, 2017 ONCA 432 at paragraph 59.
FORM 2
Certificate of Transcript (Subsection 5(2))
Evidence Act
I, Jean M. Walters, certify that this document is a true and accurate transcript of the recording of R. v. JIARONG ZHOU in the Ontario Court of Justice held at 50 Eagle Street West, NEWMARKET, Ontario, taken from Recording No. 4911_200_ 20220621_085716__6_PRUTSCE.dcr, which has been certified in Form 1.
June 29, 2022
(Date) (Signature of Authorized Person)
Jean M. Walters
ACT ID: 7510033481
1-855-443-2748