ONTARIO COURT OF JUSTICE DATE: 2022 09 20 COURT FILE No.: Scarborough 20-3500-0502
BETWEEN:
HIS MAJESTY THE KING
— AND —
J’AHEIM WEBBE-WONG
Before: Justice R. Wright
Heard on: March 22, August 8 and 9, 2022 Reasons for Judgment released on: September 20, 2022
Counsel: S. Capogrecco..................................................................................... counsel for the Crown K. Singh............................................ counsel for the defendant J’Aheim Webbe-Wong
R. WRIGHT J.:
[1] J’Aheim Webbe-Wong stands charged with possession of a stolen motor vehicle and failing to comply with a condition of a Release Order that he keep the peace and be of good behaviour. His trial comes down to a single issue: identity.
[2] Despite some initial evidentiary issues related to the prior acquaintance between the Crown witness and Mr. Webbe-Wong, this was a relatively straightforward recognition case. The Crown submits that their witness’s recognition of Mr. Webbe-Wong is sufficiently reliable given the circumstances in which it was made and the past acquaintance between the two men. The Defence submits that the past acquaintance between the two men is minimal, and that the conditions of the purported recognition, along with inconsistencies as to the description of Mr. Webbe-Wong, are enough to raise a reasonable doubt about the accuracy of the recognition.
[3] The reasons that follow explain why I agree with the Defence.
The Evidence of Detective Constable (“DC”) Kevin Sarjoo
[4] Kevin Sarjoo is a Toronto police officer with more than 16-years' experience. On January 20, 2020, he was working plainclothes in an unmarked car in 43 Division field intelligence.
[5] Shortly after 7 PM, DC Sarjoo was traveling eastbound on Lawrence Avenue East approaching the T-intersection at Orton Park Road. He was driving in the centre lane. To his right, he observed a white Acura SUV stopping at the light. The windows had no tint.
[6] As DC Sarjoo pulled up beside the Acura, he noticed the driver. The driver was wearing a hoodie; however, it was not fully forward. The front profile of the driver’s face could be seen. DC Sarjoo recognized the driver but could not remember his name. He did not believe the male to be a licensed driver.
[7] The light at Orton Park Road was red. DC Sarjoo nudged forward so he could look back through the front window and be in a better position to observe the driver in order to be certain if it was the male he recognized. He used the bar between the two doors of his vehicle to conceal his own face. He did not want the driver to see who he was in case he remembered him to be an officer, which might create a dangerous situation. DC Sarjoo was able to see the majority of the driver’s face once he had moved his car.
[8] What stood out about the male’s facial features were his jawline and side profile. DC Sarjoo testified that the male had a very noticeable wide jawline, very low, that protrudes a bit forward. He also described it as square or squared off. The side profile of the face was flat.
[9] DC Sarjoo described the lighting at that time as dark but lit by artificial light. The intersection at that corner is well lit due to a bus stop, a light standard and a gas station. DC Sarjoo testified that he had the entirety of the cycle of the red light to make observations of the driver. He put this time at just under a minute. He put his initial observations before pulling forward at approximately 10 to 15 seconds.
[10] DC Sarjoo concluded that he was correct in his initial recognition of the driver but still could not remember his name. The light turned green, and the Acura proceeded into the intersection. DC Sarjoo was able to see the license plate as the Acura moved forward and he asked dispatch to run the plate. He had to wait for the vehicle to get ahead of him in order to read the license plate.
[11] The Acura traveled east approximately 100 feet to the entrance area of 3939 Lawrence Avenue East where it turned right into the complex. Prior to the Acura completing that turn, he had provided the license plate to dispatch. DC Sarjoo continued east past the turn and made a U-turn so that he was facing back west on Lawrence Ave.
[12] In testimony, DC Sarjoo could not remember if there was anyone else in the vehicle, in particular on the passenger side. He said he wasn't paying attention to the passenger side of the vehicle.
[13] Dispatch advised him that the vehicle was stolen. DC Sarjoo made his way back to the entrance area of 3939 Lawrence Avenue East. He was in the lane closest to the centre median traveling west. He observed the Acura now coming back out of the complex and proceeding west on Lawrence Ave. He noticed that the passenger-side front light of the vehicle was not working. He was again able to see the driver. The driver still had his hood up but not fully covering his face. DC Sarjoo strategically followed the vehicle westbound.
[14] DC Sarjoo requested marked cars to pursue the vehicle. He followed the vehicle until scout cars located it. They then took over the chase. However, the Acura was not stopped due to the speeds involved, and the chase was called off. After the chase ended, DC Sarjoo recalled the name of the male he had recognized and provided that name to dispatch. The name was J'Aheim Webbe-Wong.
[15] DC Sarjoo was asked to detail the features that were distinctive to him that caused him to recognize the male as Mr. Webbe-Wong. DC Sarjoo described:
(1) a thick individual, and only a few of the young men in that area had that type of build; (2) a square jaw/face structure: a jaw line that goes down and elongates at the bottom, and has a flat line, and is very wide; (3) a side profile of his nose that is not protruding, more flat; (4) nothing extra in the curvature of his forehead or nose, more flat; and, (5) skin-tone not too dark, closer to light-skinned or mixed-race.
[16] DC Sarjoo’s role in field intelligence at 43 division meant he looked at all types of criminality occurring across the division and assisted officers to make links between cases. As part of his role, he tried to remain aware of persons of interest in the community including younger persons who might be at a higher risk for a criminal lifestyle.
[17] Through his role in community intelligence, DC Sarjoo had had prior knowledge/interaction with Mr. Webbe-Wong. On March 7, 2018, there was an incident in the division in which Mr. Webbe-Wong’s name had been involved. That was the first time DC Sarjoo had heard his name. It was due to this incident that Mr. Webbe-Wong became of interest to DC Sarjoo. He did not directly see or interact with Mr. Webbe-Wong on this date.
[18] Between March of 2018 and November of 2018, DC Sarjoo saw Mr. Webbe-Wong at a few spots in the neighborhood.
[19] On November 15, 2018, at 43 division, DC Sarjoo met with Mr. Webbe-Wong during an investigation. He had a conversation with him about the potential trajectory of his life. This conversation was approximately 25 to 30 minutes in length. It was held in an interview room. There was a table, and they were each seated at it. The lighting in the room was very bright. The general topic of conversation was about avoiding a criminal lifestyle and included discussions about Mr. Webbe-Wong moving out of the neighborhood.
[20] After November of 2018, DC Sarjoo saw a YouTube rap video with a number of individuals from Orton Park in it, including Mr. Webbe-Wong. The video is three minutes and 12 seconds long and was tendered into evidence. Mr. Webbe-Wong appears in the video at least 11 times.
[21] Between November of 2018 and January of 2020, DC Sarjoo saw Mr. Webbe-Wong a few more times in the neighborhood around Orton Park, including once in the company of a male who he knew had been shot. This incident stood out in his mind as it was the first time DC Sarjoo had seen that other male, who he believed was an associate of Mr. Webbe-Wong's, since his shooting.
[22] DC Sarjoo had also spoken to Mr. Webbe-Wong’s mother over the phone once or twice. Their conversation involved DC Sarjoo inviting her to a community meeting which a number of neighbourhood parents were invited to attend.
[23] On January 29, 2020, after the day he had recognized the driver of the Acura, DC Sarjoo saw another video in which Mr. Webbe-Wong was depicted. DC Sarjoo described seeing the same facial features about the jaw structure and face. This video increased DC Sarjoo’s certainty in the accuracy of his January 20 recognition.
[24] In cross-examination, it was suggested to DC Sarjoo that he had had prior interaction with Mr. Webbe-Wong’s uncle and father. He did not believe any prior interaction with relations of Mr. Webbe-Wong could have tainted or impacted his recognition. He agreed that his shift on January 20 had been long and that he was tired when he encountered the Acura. He had been involved in assisting with an investigation into a death at a school.
The Evidence of Stephanie Webbe
[25] Mr. Webbe-Wong's mother testified on behalf of the defence, ostensibly to provide some contradiction to the evidence of DC Sarjoo related to his past interaction with her and her son. For the purposes of these reasons, it is not necessary to summarize her evidence other than to note that her evidence did not significantly contradict that of DC Sarjoo.
Recognition Evidence
[26] Recognition evidence is a type of eyewitness-identification evidence in which the eyewitness' identification is based on prior familiarity with the subject of the identification. As a foundation for their opinion that the subject of their identification is the person they opine them to be, the eyewitness generally testifies to their prior familiarity with the subject preceding the relevant date of observation. The eyewitness' degree or level of familiarity with the identified person may, given the specific circumstances of the case, serve to enhance the accuracy of their identification: R. v. Benson, 2015 ONCA 827, at para. 25; R. v. Smith, 2011 BCCA 362, at para. 31.
[27] In R. v. McCracken, 2016 ONCA 228, Tulloch J.A. described the concerns surrounding eyewitness identification evidence in this way:
Even at the best of times, identification evidence is subject to well-known and inherent frailties: R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at paras. 36–40; R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283, at paras. 19–20 and 31–33. Honest and convincing, but mistaken, eyewitness identification, has been the source of wrongful convictions because it appears deceptively reliable. Particular vigilance is therefore required in relation to this type of evidence. Although familiarity may enhance the reliability of evidence, the same cautions and concerns apply to recognition evidence: R. v. Benson, 2015 ONCA 827, [2015] O.J. No. 6348, at para. 25.
See also R. v. Olliffe, 2015 ONCA 242, at paras. 39-40; R. v. Chafe, 2019 ONCA 113, at para. 31.
[28] The focus of the concern is not the credibility of the witness providing the identification evidence, but the reliability of the evidence. Identification evidence often appears deceptively reliable because it comes from credible and convincing witnesses. Courts must vigilantly guard against convicting based on honest and convincing, but mistaken, eyewitness identification:
Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.
R. v. Panghali, 2010 BCSC 1710, at para. 42.
[29] In assessing the reliability of an eyewitness' identification, a trier of fact considers the whole of the circumstances including confirmatory evidence, if any, and, in relation to the particular witness' evidence, a trier may have regard to a number of factors including:
(1) the level of familiarity between the accused and the witness. Unlike in cases involving the identification of a stranger, the reliability of recognition evidence depends heavily on the extent of the prior acquaintance: R. v. Campbell, 2017 ONCA 65, at para. 10; R. v. Charles, 2016 ONCA 892, at paras. 50 and 51; R. v. Panghali, 2010 BCSC 1710, at para. 42.
(2) the duration and qualitative sufficiency of the eyewitness' opportunity to observe the subject of the identification: R. v. Jack, 2013 ONCA 80, at paras. 15, 26; R. v. Davy, 2015 ONCA 38, at paras. 3-4; R. v. Virgo, 2016 ONCA 792, at para. 17; R. v. Campbell, 2017 ONCA 65, at para. 10.
(3) the natural human inclination to fill in perceived events with other details (since perception and memory are selective processes), a process enabling presentation of a logical and coherent account largely driven by past experience and personal expectations: R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.), at p. 422; R. v. M.B., 2017 ONCA 653, at para. 31.
(4) the reliability limitations of cross-racial identification as described in R. v. Lam, 2014 ONSC 3538, at paras. 190-191:
An especial danger in eyewitness identification is the problem associated with cross-racial identification – “the perception that members of one race tend to think that members of another race “all look alike””: R. v. McIntosh (1997), 117 C.C.C. (3d) 385 (Ont. C.A.), at pp. 394-5 (leave to appeal refused, sub nom. McCarthy, [1997] S.C.C.A. No. 610, 121 C.C.C. (3d) vi).
Although one court has observed that “the greater chance of error on the part of people of one race when identifying those of another than when identifying those of their own is something of which any rational person would be aware” (R. v. Smith, [1994] B.C.J. No. 3090 (C.A.), at para. 8), the risks are significant enough that we regularly instruct jurors about cross-racial identification problems (R. v. Campbell, [2001] O.J. No. 4954 (C.A.), at para. 7; R. v. Richards (2004), 70 O.R. (3d) 737 (C.A.), at para. 32) and expect trial judges to self-instruct on this issue: R. v. Gough, 2013 ONCA 137, at para. 38. We do so without expert evidence because judicial notice can be taken of this phenomenon: McIntosh, at pp. 394-5; R. v. B.M. (1998), 130 C.C.C. (3d) 353 (Ont. C.A.), at para. 105; R. v. Mey, 2011 ONCA 288, at para. 35.
(5) whether the eyewitness' observation was made in circumstances of stress: R. v. Jack, 2013 ONCA 80, at paras. 15, 26; R. v. Virgo, 2016 ONCA 792, at para. 17.
(6) whether the eyewitness' trial evidence provides only a general, generic and non-specific description of a person which purportedly triggered identification of the subject from the earlier occasion as opposed to recounting unique or special characteristics. The importance of this factor may vary with how well the witness knows the person he or she identifies: R. v. Benson, 2015 ONCA 827, at paras. 27-29; R. v. Jack, 2013 ONCA 80, at para. 16; R. v. M.B., 2017 ONCA 653, at paras. 37, 46-47; R. v. Panghali, 2010 BCSC 1710, at para. 42.
(7) whether the eyewitness' reported identification is the product of an independent process untainted by influence or contamination from a second eyewitness: R. v. Davy, 2015 ONCA 38, at para. 4.
Analysis
[30] Mr. Webbe-Wong is presumed innocent and bears no burden to prove his innocence. The presumption of innocence is only displaced if the Crown has established beyond a reasonable doubt that he is guilty of the offences charged. The standard of proof the Crown bears is high. It is not enough for me to believe that Mr. Webbe-Wong is possibly or even probably guilty. The legal standard is closer to absolute certainty and far greater than probable or likely guilt: R. v. Lifcus (1997), 118 C.C.C. (3d) 1, at para. 27; and R. v. Starr, 2000 SCC 40, at para. 242.
[31] The demeanour of a witness when testifying is of limited value. While it is one factor that I can consider, I must approach the assessment of credibility on this basis with caution. How a witness testifies can be affected by many factors including the artificiality of and the pressures associated with a courtroom: R. v. Hemsworth, 2016 ONCA 85, at paras. 44-45; R. v. Dyce, 2017 ONCA 123, at para. 12; and R. v. S. (N.), 2012 SCC 72, at paras. 18, 26.
[32] DC Sarjoo presented as a thoughtful and careful witness. He provided a clear rationale for his opinion that the driver of the motor vehicle he encountered on January 20 was Mr. Webbe-Wong. He was not shaken on the certainty of this identification in cross-examination. His evidence was logical, having regard to common sense and human experience. His evidence was internally consistent and coherent. It was not tainted by any material inconsistencies (with one exception on the description, which I will deal with below).
[33] DC Sarjoo was cross-examined extensively on his past interaction with Mr. Webbe-Wong and on possible contamination due to his past investigation of relatives of Mr. Webbe-Wong or “personal expectation” that Mr. Webbe-Wong would be involved in the Orton Park Area. He appropriately acknowledged where there were limitations in his past interactions, including that he had not made notes of the times he had seen Mr. Webbe-Wong in the community. He was candid about the limitations on his memory. Despite able cross-examination, and a defence witness who sought to contradict some of his testimony with respect to past police interaction with Mr. Webbe-Wong, DC Sarjoo presented as a very credible witness whose evidence is worthy of belief.
[34] I have no difficulty accepting his evidence that he believes he recognized Mr. Webbe-Wong. However, I must caution myself in respect of this evidence. This is exactly the type of deceptively reliable, honest and convincing evidence that can lead to mistake. DC Sarjoo's honestly held belief cannot be conflated with reliability.
[35] There is no independent evidence that would tend to confirm DC Sarjoo's recognition of Mr. Webbe-Wong as the driver. The case turns entirely on the reliability of DC Sarjoo's recognition. In assessing the specific reliability of this recognition, I have considered the following factors:
(1) This was an independent process untainted by influence or contamination. DC Sarjoo was simply driving on Lawrence Avenue East when he noted the driver of the vehicle next to him and believed he recognized him. The circumstance of this as a random sighting, without prompting, and without a reason for DC Sarjoo to be trying to recognize the driver is a circumstance that, in my view, enhances the reliability of his recognition.
(2) DC Sarjoo was not in a situation of stress or concern for his own safety, but he was tired after a long investigation. His prior interactions with Mr. Webbe-Wong were also not in circumstances of stress.
(3) The duration and qualitative sufficiency of DC Sarjoo's observations:
The duration was far more than fleeting, but it was also not a significant amount of time. It was DC Sarjoo's evidence that it was the duration of the red-light cycle, which he estimated to be about a minute, or possibly longer. There is some confirmation in this estimate of time from the ICAD and radio recordings, which were made exhibits, which demonstrate approximately a minute between event creation and the provision of the license place (which DC Sarjoo could not provide until he allowed the vehicle to proceed in front of him after the red light turned to green).
DC Sarjoo was physically separated by the space between their cars, and the passenger seat, and the height difference to the Acura SUV that he was observing. There was no tint to the windows. DC Sarjoo observed the driver for 10-15 seconds and then moved his car into a forward position to see more of the driver's face and confirm his identity. The lighting was good, with a large amount of artificial light.
The driver's face was only partly visible due to the hood being up. DC Sarjoo was able to observe the left side of the face in profile and then the majority of the face once he had moved his car forward. DC Sarjoo was also attempting to remain unseen by the driver while making these observations, keeping his own face hidden from view by the positioning of the cars. That necessarily limited his own ability to continue full observation of the driver for the whole of the time.
There was a second, much shorter, sighting of the driver when DC Sarjoo had completed his U-turn and was driving west on Lawrence Avenue East. The driver's hood was still up and still partially obscuring DC Sarjoo's view of the driver. This sighting was at a greater distance as the Acura was making a left turn in front of DC Sarjoo.
(4) The level of familiarity between the accused and the witness:
DC Sarjoo's prior knowledge of Mr. Webbe-Wong was somewhat unusual and must be considered. He had only spoken to him on one prior occasion, for approximately half an hour. However, the context of his involvement, being that he took an active interest in trying to provide options to Mr. Webbe-Wong, is unusual. That specific interest elevated his level of knowledge of Mr. Webbe-Wong. It sets him apart from just an individual he had taken a statement from or dealt with during a run-of-the-mill investigation.
That specific interest also relates to one of DC Sarjoo's prior recognitions of Mr. Webbe-Wong: the rap video. Mr. Webbe-Wong conceded at trial that he was depicted in the video. It was as part of DC Sarjoo's community intelligence work that he reviewed that video extensively. To the extent that DC Sarjoo relied for his identification opinion on the similarity of the video he had previously viewed, I can critically assess the value of that alleged recognition resource to the reliability of his conclusion. DC Sarjoo was challenged strongly in cross-examination to point to all instances of Mr. Webbe-Wong in the video recording, which I note he did with exceptional proficiency. It is not just prior in-person acquaintance that can ground a high level of familiarity.
However, DC Sarjoo's other prior sightings of Mr. Webbe-Wong are of much more limited value. These prior recognitions being “in the community” are distinguishable from some of the scenarios seen in other cases (repeated attendance at a bar or specific residence, for example). DC Sarjoo's purported prior sightings lack the repetition of those types of acquaintances, the circumstance of which can enhance their reliability. DC Sarjoo's memory of seeing Mr. Webbe-Wong, without many specifics, several times in the community over the span of approximately two years does not offer much assistance in enhancing the reliability of his recognition of Mr. Webbe-Wong as the driver on January 20.
(5) DC Sarjoo's description of the driver:
A focus for his identification process was the distinctive square or wide jaw of the driver and the otherwise flat facial features and large size of his head. He also referenced the driver's skin tone and noted the driver's large build and testified that only a few of the young men he knew in that neighbourhood had such a build, and only Mr. Webbe-Wong had both the build and the facial features. Here, there is a concern about the natural human inclination to “fill in the gaps” or to see what we expect to see due to DC Sarjoo's reasoning on this characteristic, moving to a sort of process of elimination
While DC Sarjoo was able to point to unique or special characteristics that, in his mind, supported his identification, the characteristics described by DC Sarjoo do not, in my view, provide a very good description of what Mr. Webbe-Wong looks like (as depicted in the exhibits). Mr. Webbe-Wong does not have a wide or square jaw, although I do agree with the description of it as “protruding.” DC Sarjoo also recorded his description of the jaw inconsistently in his notes where he wrote “round face.” Mr. Webbe-Wong's facial profile is not particularly “flat.” His skin tone is, in my view, not “light.” While I agree with DC Sarjoo's qualification that lighting can have a significant impact on an assessment of skin tone, it was nighttime and DC Sarjoo was making his observations of the driver under artificial light.
I am mindful of the “vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis,” (R. v. Panghali, 2010 BCSC 1710, at para. 42), but where the prior acquaintance between two individuals is as limited as it is between DC Sarjoo and Mr. Webbe-Wong, these discrepancies take on more significance.
(6) The reliability limitations of cross-racial identification. While this area was not significantly explored in cross-examination, that Mr. Webbe-Wong is of mixed race was referred to specifically as a factor in DC Sarjoo's description. I do not have specific evidence of DC Sarjoo's background, however, the likelihood that DC Sarjoo's identification is a cross-racial identification is a factor I have considered.
[36] When I weigh the whole of the circumstances surrounding DC Sarjoo's purported recognition of the driver as Mr. Webbe-Wong (and cautioning myself as instructed as to the dangers associated with eyewitness identification evidence), I find I am not satisfied that the reliability of DC Sarjoo's identification meets the necessary standard. In my view, this is a very close case, but given the limited prior acquaintance/observations of Mr. Webbe-Wong, the inconsistent description he provided of the driver, the human inclination to fill gaps, and the limitations of cross-racial identification, I find I am left in a doubt as to the reliability of his recognition. As such, Mr. Webbe-Wong must be acquitted.
[37] The two counts against Mr. Webbe-Wong are dismissed.
Released: September 20, 2022 Signed: Justice R. Wright