Court File and Parties

Ontario Court of Justice Date: 2023 11 14 Court File No.: Durham Region 22-28107398

Between:

His Majesty the King

— And —

George Andrews

Before: Justice J. De Filippis

Heard on: November 6 & 7, 2023 Reasons for Judgment released on: November 14, 2023

Counsel: Mr. C. Villacci, for the Crown Mr. T. Smith, for the accused

De Filippis, J.:

Introduction

[1] The defendant is charged with five counts, all of which are dated October 13, 2020 at the City of Oshawa: assaulting a man with a weapon, namely a motor vehicle; dangerous operation of a conveyance; mischief over $5,000 and two counts of failure to comply with a release order (being out of his residence after the 10 PM curfew and being in the City of Oshawa).

[2] This was a one witness case along with the presentation of three video clips and a certified copy of the release order. The Crown seeks to prove its case by means of a Nikolovski application. I am asked to resolve the issue of identification based on surveillance. There is no controversy about the authenticity or quality of the video clips. The Crown asks that I compare a person recorded in the video clips with the defendant before me and conclude that they are one and the same.

[3] These reasons explain why I find the defendant guilty of the five charges.

Evidence

[4] The only witness at this trial is employed as a supervisor of a homeless shelter. She owns the home where the events in question occurred. Her adult son was at this home on the date in question. She was at Union Station in Toronto when she received a telephone call from a neighbour reporting that her son had been hurt, was bleeding, and had left the home She has surveillance cameras in the front and back of her home. She authenticated the video record and provided some background information about her interaction with the police who also called her to report the assault on her son.

[5] The three short video clips (with audio) depict the following:

a) A motor vehicle arrives in the driveway of the residential dwelling. A male driver, front female passenger, and rear male passenger exit the vehicle and walk towards the house. It is daylight.

b) The next video clip shows a nighttime scene. The scene is illuminated by artificial light (perhaps, surveillance camera light). The same three individuals return to the motor vehicle. The male driver, staring at the house, argues with a person off camera. The driver warns the person not to throw anything at his vehicle or he will drive it into the house. The driver accelerates in reverse. A male, wearing only shorts, comes into the driveway, and is captured on camera. He gestures aggressively at the occupants of the motor vehicle and appears – but I cannot be certain – to throw something at the motor vehicle. The vehicle is put in drive and accelerates back into the driveway, striking the man before colliding into the house. The vehicle airbags are deployed. The three occupants collect their belongings from the vehicle and run away, leaving the man on the ground.

c) There is a third video clip. It is from a camera on a deck in the backyard of the house. It captures an event between the arrival and departure of the motor vehicle as described above. It depicts a man coming onto the deck to smoke a cigarette. It is daylight. The man stands within a couple of feet of the camera. He has a large tattoo on his neck and another on his arm. There is a smaller tattoo one on his right cheek.

[6] The mother of the man who was struck by the motor vehicle testified that she had evicted him because of the many parties he had at the home and the resulting police visits. Nevertheless, she allowed him to come and go as he was homeless. Her son was prescribed a variety of medication to deal with psychosis, depression, and other mental health issues. When she arrived home on the evening in question, he was not there. He arrived soon after, having walked from somewhere. She testified that it was obvious he had not taken his medication and was likely high from the consumption of illicit drugs.

Submissions

[7] The Crown submitted that I should conclude that the man driving the motor vehicle and the man smoking the cigarette is one and the same. The Crown also argued that that this man is the defendant. Without calling on Defence counsel, I replied to these submissions as follows: The man in the video clips and the defendant before me look quite similar. I am confident of this notwithstanding that the defendant has a beard and some hair while the man in the video does not. Indeed, if this was a civil case, I could conclude that it is more likely than not that they are one and the same. However, I could not come to such a conclusion on the criminal law standard of proof – subject to comparing tattoos the defendant may have with those of the man in the video clips.

[8] I added the following comments: The defendant is in custody and appeared in the prisoner’s box wearing a winter coat that was zipped up such that it covered his neck. Moreover, the defendant sat at a 90-degree right angle to me, and I could only see the left side of his face. However, at one point he turned to look at me and I saw a tattoo on the right side of his face, above the beard and just below the eye. However, the distance between me and the prisoner meant I could not see the details. I added this final observation. I have been a judge for 23 years presiding only in criminal cases. I do not recall a prisoner brought before me dressed in a winter coat.

[9] Before calling on Defence counsel for submissions, I asked the parties for their assistance about whether I could lawfully compel the defendant to remove his winter coat so that I could see if he had a matching tattoo on his neck and also to have a closer look at the one on his right cheek. We recessed for an extended lunch so the parties could research that issue.

[10] Defence counsel submitted that there is nothing sinister about the fact that the defendant is wearing a winter coat in the courtroom as prisoners wear the clothes they had on arrest. His primary submission is that the Crown had many options to prove identity by examination of tattoos; it could have produced evidence from the booking sergeant and booking video, a “mug shot” on arrest, or applied for a general warrant. Having failed to do so, the Crown should not now be entitled to ask me to order the defendant to do something that incriminates himself in the courtroom.

[11] In advancing his primary submission, Defence counsel relies on R v Zhou 2022 ONCJ 305. In that case, the Crown sought to prove identity by having the Court order the defendant to roll up the sleeve of his sweater to expose his forearm. The purpose of the request was to determine if the defendant had a tattoo that matched the description given by a sexual assault complainant in trial testimony. Justice Prutschi denied the request. After reviewing several cases on point, he held as follows:

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.

[12] The Crown accepts the ruling in Zhou and does not ask that I order the defendant to remove his winter coat so that I can observe any tattoo he might have on his neck. The Crown asks that I compare the tattoo on the defendant’s face to the one on the face of the man recorded smoking a cigarette. The Crown relies on R v Stillman 1997 SCC 384, in which the Chief Justice, in dissent, but not on this point, stated as follows (at para 205):

These reasons for the common law confinement of the principle against self-incrimination to testimonial evidence may be supplemented by a fourth. To render illegal the compelled use of the accused’s body in gathering evidence against the accused would be to render inadmissible many kinds of evidence which have long been routinely admitted. The identification witness who says, “I recognize the man in the prisoner’s box as the person I saw at the scene of the crime”, is using the accused’s body against him. Standard police techniques such as photographing the accused or requiring him to appear in an identification line-up similarly depend on using the accused’s body against him, usually without consent. The principle against self-incrimination provides no means to distinguish between the police photo and more serious incursions of the suspect’s body. The principle of protection against unreasonable search and seizure, on the other hand, provides such means. The principle against self-incrimination applied to physical evidence is a blunt tool, requiring either distortion or supplementation if it is to operate fairly and practically. The principle against unreasonable search and seizure, by contrast, evokes a body of jurisprudence aimed at aiding the court in making the necessary distinctions between permissible use of the suspect’s body and impermissible use of the suspect’s body. For this reason, Holmes J. in Holt v. United States , 218 U.S. 245 (1910), referred to the argument that evidence of an accused’s non-consensual modelling of a blouse violated the privilege against self-incrimination as “an extravagant extension of the Fifth Amendment” (p. 252).

Can I Examine the Defendant’s Facial Tattoo?

[13] I need not decide if ordering the defendant to remove a winter coat worn all day in a heated courtroom – to use the language in Zhou – would have me engage in an investigative step that could conscript evidence from him, especially since – as in Zhou – I find the impact of this on his dignity to be minimal. As noted, the Crown does not ask that I do so.

[14] I return to the decision in Zhou. Justice Prutschi concluded as follows:

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.

[15] The concluding comments in Zhou do not apply to the present case. I am entitled to look at the defendant’s face. To do so does not offend the principle against self-incrimination. It is not an unreasonable search. The defendant is before me. He has an exposed tattoo on the right side of his face. I know this because for a moment, I saw it. When I repeated that even if I could still see the right side of the defendant’s face, the distance between us is such that I cannot describe the tattoo, the Defence resisted the suggestion that I take a closer look at it.

[16] That I would be precluded from being in reasonable proximity to the defendant’s face to conduct the Nikolovksi hearing would make a mockery of this trial. It would mean that the two guards beside the defendant could describe the tattoo on his face. A member of the public sitting in the front row near the prisoner’s box could do so as well. Similarly, counsel could do so by looking directly at the defendant. The only person unable to describe the tattoo on the defendant’s face is me – the judge. I am entitled to take a closer look at the defendant’s face.

[17] After advising the parties of this ruling, I walked to the defendant seated in the prisoner’s box. I could have had him brought to me, but this was easier. I stood in front of him, about two metres away, and looked at his face for a few seconds. Nothing was said. I returned to my seat and received final submissions on the trial issues.

Conclusion

[18] The Crown carries the burden of proving guilt beyond a reasonable doubt. This means that probable guilt is not the criminal law standard of proof – it is closer to certainty. In this regard, there is no onus on the Defence to call evidence. A reasonable doubt is a doubt based on reason and common sense which must be logically based on the evidence or lack of evidence (R. v. Villaroman, 2016 SCC 33).

[19] It is not in dispute that someone is guilty of the dangerous operation and mischief charges. The question is whether the Crown has proven beyond a reasonable doubt that the defendant is the culprit. It is not argued that the driver of the motor vehicle and the man who smoked a cigarette on the back deck are different people. In this regard, the images of the male driver and the male rear passenger show distinctly different persons. I appreciate that there could have been other men in the house. However, I have no doubt, based on the video clips, that the male driver arriving and leaving the residence and the man on the deck are one and the same. The question is whether this man is the defendant.

[20] Defence counsel argued that if the only evidence available to the Crown to meet its burden of proof is the tattoo on the right side of the defendant’s face, this prosecution must fail. Counsel added that the defendant also has a small tattoo on the left side of his face. This is not visible in the back deck video clip because that side of his face is never exposed to the camera. Defence counsel pointed out that it is also not visible on the face of the driver captured by the surveillance camera on his arrival at the residence. It is submitted that this must raise a reasonable doubt.

[21] As already indicated, the person in the video clips and the defendant look similar. What persuades me beyond a reasonable doubt that they are one and the same is the tattoo on the right side of the defendant’s face. Having had a proper look at the defendant, I conclude that it matches the tattoo on the face of the man recorded on the back deck. The distinctive image from the camera on the back deck is reproduced below:

[22] I am not troubled by the fact that the defendant also has a tattoo on the left side of his face, and that I cannot see that in any of the video clips. The answer to this objection is simply that it was not captured by the surveillance cameras. On arrival and departure at the home, the defendant was sufficiently far away from the camera that neither tattoo on his face is visible, as is evident by the image below:

[23] Having regard to this finding it follows that the defendant is guilty of dangerous operation of a conveyance, mischief over, and the two counts of failure to comply with a release order. It is the position of the Defence that it does not follow that the assault charge has been proven.

[24] The Defence argued that intent to assault has not been established. I am reminded that the defendant warned the victim that he would drive his vehicle into the house. Having apparently been provoked, he did so. I reject the suggestion that striking the man was inadvertent. The video clip persuades me that the man was seen as collateral damage. In coming to this conclusion, I note that the presence of the man in the driveway was obvious when the defendant changed gear from reverse to drive and accelerated. The following images show what happened:

[25] The Crown has met its burden of proof. The defendant is guilty as charged.

Released: November 14, 2023 Signed: Justice J. De Filippis