COURT FILE NO.: CRIMJ(P) 1501/11
DATE: 20120228
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Kelly Slate, for the Respondent
Respondent
- and -
JERMAINE PHILLIPS
Carlos Rippell, for the Applicant
Applicant
HEARD: February 13, 2012
APPLICATION FOR CERTIORARI
F. Dawson J.
[1] Jermaine Phillips applies for an order in the nature of certiorari to quash his committal for trial on two charges of attempted murder and two charges of aggravated assault. The applicant was ordered to stand trial on October 27, 2011 following a preliminary inquiry before Justice Irving Andre of the Ontario Court of Justice.
[2] It is alleged that the applicant is the man who shot Omar Roberts and Courtney McDonald at 4:30 a.m. on November 27, 2010 outside a home on Lauraglen Crescent in the City of Brampton. The applicant submits that there was no admissible evidence identifying him as the “shooter” and that consequently Andre J. exceeded his jurisdiction in ordering him to stand trial.
Overview of the Evidence
[3] The evidence showed that Omar Roberts and Courtney McDonald attended an “after hours” gathering at the home where the shooting occurred. It was Mr. Roberts’ birthday and he had been drinking heavily. He had also taken ecstasy earlier in the evening.
[4] Mr. Roberts became involved in an altercation with the applicant’s sister, Nicole Buchanan. After Mr. Roberts touched her inappropriately three times she struck him over the head with a vase and ran out the front door of the home.
[5] Omar Roberts pursued Ms. Buchanan. Courtney McDonald followed behind Mr. Roberts. Mr. Roberts said that as he exited the house he saw a short black male, 5’7” to 5’8” who was wearing a white hoodie. The male had a silver handgun and started shooting. Mr. Roberts was hit in the leg and the arm. Mr. McDonald, who did not see the shooter, was shot in the foot.
[6] There was no evidence that the applicant was at the party. Nicole Buchanan testified that she did not see him there.
[7] Before any evidence was called Crown counsel advised Andre J. that he anticipated that Mr. Roberts, who was the only witness who might be able to give identification evidence, could prove uncooperative. Crown counsel indicated that he hoped to lead evidence of an in-dock identification together with evidence that Mr. Roberts had indentified the applicant on prior occasions as the person who shot him. Crown counsel referred Andre J. to R. v. Tat (1997), 1997 2234 (ON CA), 35 O.R. (3d) 641, 117 C.C.C. (3d) 481 (C.A.) and said that “a KGB-type application” may be required to admit evidence of a prior photo identification of the shooter by Mr. Roberts, as substantive evidence in the case[^1]. As it turned out, no such application was ever brought by the Crown or determined by the preliminary inquiry judge.
[8] Omar Roberts was called as a witness. He described what occurred at the party leading up to the shooting. He said he saw the man who shot him from seven feet away. He provided the general description I have already referred to and added that he saw some hair sticking out of the white hoodie.
[9] Crown counsel asked Mr. Roberts if he thought he would be in a position to recognize the man who shot him if he saw him “today”. Mr. Roberts said he would not. Later, at the commencement of his cross-examination, Mr. Roberts stated that the applicant was not the man who shot him.
[10] Returning to Mr. Robert’s examination-in-chief, after he said he would not recognize the person who shot him if he saw him again, Mr. Roberts was asked about prior identification procedures. He did not recall being shown photographs while he was in a hospital emergency department on November 27, 2010 shortly after the shooting. I pause here to add that Det. Robert Hackenbrook later testified that on November 27, 2010 he showed Mr. Roberts photographs of three men and one woman and that Mr. Roberts indicated that the male in the third photograph was the man who shot him. The third photograph was of the applicant Jermaine Phillips.
[11] As his examination-in-chief continued Mr. Roberts did recall a photo line-up that was conducted on December 7, 2010, while he was still in the hospital. That procedure was video recorded and the video was played in the courtroom while Mr. Roberts was in the witness stand. He had also seen the recording earlier in the day in preparation for his testimony.
[12] Significantly, Mr. Roberts said his memory of the shooting was better on December 7, 2010 than it was when he was testifying at the preliminary inquiry. He acknowledged his initials and signature on an instruction sheet regarding the photo line-up. He agreed that he was shown 12 photos one at a time and that he selected photo number 7 and wrote on the back of it, “This [is] the guy that shot me.” Photo number 7 was of Jermaine Phillips. Mr. Roberts agreed that he wrote “No” on the back of the other 11 photos. Det. Hackenbrook later testified that although he had previously shown Mr. Roberts photographs of three males, the only photograph from the prior group of photos that was included in the December 7, 2010 line-up was the one of Jermaine Phillips.
[13] Crown counsel then asked Mr. Roberts why he wrote what he did on the photo of the applicant. Mr. Roberts responded that it was because he looked familiar. Crown counsel then asked “from where” the applicant’s photo looked familiar. Mr. Roberts responded, “From when I seen him in the hoodie - when he was shooting me.”
[14] Mr. Roberts went on to assert that he did not pick out the applicant’s photograph because he recognized him but just because the person looked familiar. However, once again, when Crown counsel pursued why the applicant’s photo looked familiar to him Mr. Roberts responded, “From when he shot me.”
[15] Mr. Roberts went on to testify that he was only “ten percent” certain when he picked out the applicant’s photo on December 7, 2010. He agreed what he said on the video recording differed from his preliminary inquiry evidence. However, when he was asked if he was telling the truth on December 7, 2010, he said he was. He added that he picked out the applicant’s photo because “he was the closest guy” in appearance to the man who shot him. Towards the end of his examination-in-chief Mr. Roberts said, “I should have put that ‘looks like the guy’ who shot me”, on the photograph.
[16] In cross-examination Mr. Roberts agreed that when he was shown the video of the photo line-up earlier in the day in preparation for his testimony he told the police he only picked the applicant’s photo because he had seen his photo before. He continued on in cross-examination to say that he had seen the applicant’s photo at the hospital prior to December 7, 2010. He did not say under what circumstances. As previously mentioned, he said the applicant, who was before him, was not the man who shot him.
[17] When Det. Hackenbrook testified he acknowledged that he did not follow protocols for photo line-ups when he showed Omar Roberts the photos of the three males and a female on November 27, 2010, shortly after the shooting. He explained that he was concerned Mr. Roberts might not survive and he felt public safety considerations warranted showing Mr. Roberts the photos he had at that time. He understood it might taint any subsequent photo line-up procedure. He testified that when Mr. Roberts was shown the photo of the third male, which was the applicant’s photo, Mr. Roberts’ eyes went wide and he said that was the man who shot him.
The Reasons for Committal
[18] Andre J. gave brief reasons for ordering the applicant to stand trial. He indicated that the identification evidence was weak and that if he was sitting as a trial judge he would enter an acquittal. However, he found that while the evidence was weak, there was some evidence of identification.
[19] His Honour went on to refer to the selection of the photograph of the applicant by Mr. Roberts on the day he was shot. He concluded that Det. Hackenbrook’s evidence that Mr. Roberts selected the applicant’s photo at that time was some evidence of identification. He then referred to the December 7, 2010 selection of the applicant’s photo as also constituting some such evidence. Andre J. made specific reference to Mr. Roberts’ evidence that he did not now recognize the applicant as the person who shot him and that he now said only that the photo he selected on December 7, 2010 “looks like the guy that shot me.” His Honour also indicated that as a preliminary inquiry judge he did not have the ability to reject the evidence as unreliable. After making reference to U.S.A. v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, 30 C.C.C. (2d) 424 and R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, 157 C.C.C. (3d) 21 he ordered the applicant to stand trial.
Positions of the Parties
[20] The applicant submits that the preliminary inquiry judge must have failed to consider all of the evidence when he committed the applicant in the face of Omar Roberts’ testimony that the applicant was not the man who shot him. Relying on R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, 208 C.C.C. (3d) 225, he submits that failure to consider all of the evidence is a jurisdictional error.
[21] The applicant also submits that Omar Roberts did not adopt his prior identifications of the applicant as part of his testimony, and observes that Crown counsel did not pursue an application to have Mr. Roberts’ prior out-of-court statements identifying the applicant as the shooter admitted as substantive evidence under the principled exception to the hearsay rule. Consequently, he submits that the prior identifications were never admitted into evidence and could not form the basis for the order to stand trial. As it is not a situation where the preliminary inquiry justice considered the admissibility question and made a decision, the committal cannot be said to rest on an error of law made within jurisdiction. On a proper analysis, the applicant submits there is a total absence of admissible evidence to support the orders to stand trial, resulting in a jurisdictional error that requires that the committal be quashed.
[22] The respondent conceded in oral argument that the photo selection that occurred on November 27, 2010 shortly after the shooting was never adopted by Omar Roberts as part of his evidence and consequently cannot serve as evidence to support the committal. However, the respondent submits that Omar Roberts did effectively adopt his December 7, 2010 photo selection. The respondent points to Mr. Roberts’ acknowledgement that his memory was better on December 7, 2010 than at the preliminary hearing and to his agreement that he selected the applicant’s photo on that occasion without hesitation and said that was the person who shot him.
The Governing Legal Principles
Committal for Trial
[23] At the conclusion of the evidence adduced at a preliminary inquiry the presiding justice must decide whether to order the accused to stand trial on the offences charged or any other offences disclosed by the evidence: s. 548(1) of the Criminal Code. The test to be applied is whether there is any evidence upon which a jury, acting reasonably and properly instructed, could convict: Shephard. In making this determination the preliminary inquiry judge must consider all of the evidence: R. v. Skogman, 1984 22 (SCC), [1984] 2 S.C.R. 93, 13 C.C.C. (3d) 161; Sazant.
[24] Individual items of evidence are not to be segregated and subjected to discrete analysis: R. v. Rojas, [1997] O.J. No. 3756 (Ont. Ct. (Gen. Div.)), at para. 11. The test is the same whether the evidence is direct or circumstantial. If there is direct evidence as to each element of the offence the accused must be committed for trial. Where the evidence is circumstantial the judge at the preliminary inquiry must engage in a limited weighing of the evidence, but only in the sense of determining whether the evidence is capable of supporting the inferences necessary for a conviction: Arcuri.
Review of Committal for Trial
[25] The decision of the preliminary inquiry justice to either commit or discharge the accused is not open to appeal but is subject to review by way of certiorari, restricted to a determination of whether the justice made a jurisdictional error. Such an error will occur where an accused has been ordered to stand trial in the absence of any evidence on an essential element of the offence: Sazant, at paras. 14-16; Skogman, at pp. 170-71 C.C.C. (3d); Arcuri.
[26] However, it is well established that a reviewing court is not entitled to substitute its own opinion as to whether a properly instructed jury could convict. The reviewing court is restricted to considering whether there is any evidence upon which the preliminary inquiry judge could form a judicial opinion that the evidence meets the Shephard test to commit the accused for trial: R. v. Martin, 1978 30 (SCC), [1978] 2 S.C.R. 511; R. v. Chambers (185) 1985 169 (ON CA), 20 C.C.C. (3d) 440 (C.A.), at pp 445-46; Rojas, at para. 18. This important qualifier on the scope of review is important in this case.
Admissibility of Out-of-Court Statements of Identification
[27] This topic is comprehensively addressed by Doherty J.A. on behalf of the Ontario Court of Appeal in Tat, to which Andre J. was directed at the commencement of the preliminary inquiry. Tat was approved of by the majority in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 221.
[28] A review of Tat illustrates that there are four ways in which evidence of prior out-of-court statements of identification may come before the court.
[29] The first occurs where the witness, while testifying, adopts all or part of the prior statement as true. To the extent the prior statement is adopted, it becomes evidence in the proceeding. When the witness adopts the prior statement of identification the evidence of identification is via the witness’ in-court testimony. See Tat, at paras. 21-29.
[30] The second occurs when the witness identifies the accused while testifying. Given the recognized frailties of eyewitness and in-dock identifications the law permits the witness, and others, to testify as to prior descriptions and identifications given and made by the witness. In this situation the prior identification statements are admitted as original evidence directed to evaluation of the reliability of the witness’ in-court identification evidence. As the prior statements are not tendered to establish identity the hearsay rule is not implicated. See Tat, at paras. 31-40.
[31] The third occurs when the witness is unable to identify the accused while testifying but testifies that he or she previously gave an accurate description or made an accurate identification. Other witnesses are then permitted to provide the court with the details of the identifying witness’ prior descriptions or identifications. See Tat at para. 41 et seq. In this situation the evidence of identification is via the witness' in-court testimony that their prior identifications or descriptions are accurate.
[32] Fourth and finally, prior statements of identification may be admitted as substantive evidence under the principled exception to the hearsay rule pursuant to R. v. B.(K.G.), op. cit. fn 1. See Tat at para. 67 et seq.
[33] As Doherty J.A. also observed in Tat, at paras. 31-33, while there is a difference of opinion within the authorities as to whether prior statements of identification should be analysed under the rubric of hearsay or otherwise, “none of the authorities suggest that all out-of-court statements of identification are admissible as substantive evidence”.
Analysis
[34] I agree with the Crown’s concession that Det. Hackenbrook’s evidence that Omar Roberts selected a photograph of the applicant on the day of the shooting and said he was the shooter cannot be taken into consideration as evidence of identification. In regard to the issue of identity such evidence is hearsay, and does not fit into any of the categories of receivable prior identification evidence described in Tat and Starr. It was never tendered and admitted under the principled exception to the hearsay rule.
[35] Turning to the photo line-up procedure conducted on December 7, 2010, I find that I am unable to accept the respondent’s argument that Omar Roberts actually adopted his prior statements identifying the applicant as the shooter. One of the things that Mr. Roberts said in his sworn testimony was that the applicant was not the person who shot him. That can hardly be said to be an adoption of his prior positive identification. Merely acknowledging that he made the prior statement does not constitute actual adoption of it: R. v. Toten (1993), 88 C.C.C. (3d) 5 (Ont. C.A.), at pp. 23-24; R. v. Smith, 2012 ONSC 910, at para. 9. But that does not end the matter.
[36] I do not accept the applicant’s submission that it follows from the foregoing that there is no evidence on the identification issue. My reasoning is as follows.
[37] A trier of fact would be entitled to disbelieve Omar Roberts’ assertion in his testimony that the applicant was not the man who shot him and to conclude that he had adopted his prior statement to the extent that it becomes some evidence of identification. If any support is needed for this proposition it may be found in R. v. Baron and Wertman (1976), 1976 775 (ON CA), 31 C.C.C. (2d) 525 (Ont. C.A.), per Martin J.A. at p. 538. There the court was dealing with whether one accused, Mrs. Wertman, had adopted what had been said by her co-accused, Mr. Baron, based on a consideration of what Mrs. Wertman said and did not say when she was shown Mr. Baron’s statement by the police and permitted to read it. When she read some of the pages she remained silent and when she read others she made comments, including that there were lies in Baron’s statement.
[38] Justice Martin, on behalf of the court, pointed out that an accused’s denial of the accuracy of an incriminating statement made by another does not necessarily preclude a jury from concluding that the accused “assented to”, or in other words, adopted as truthful, the facts in the statement. It seems to me that the same can be said with respect to Omar Roberts’ testimony at the preliminary inquiry, including his assertion that the applicant was not the man who shot him. A trier of fact is entitled to believe some, none or all of a witness’ evidence.
[39] In Baron and Wertman Justice Martin went on immediately at p. 538 to make the point that mere disbelief of a denial by an accused, in other words disbelief of the part of the accused’s statement or testimony inconsistent with adoption, cannot have the effect of converting the denial into an adoption of the statement. There must be “additional circumstances warranting such an inference.”
[40] In the present case Omar Roberts said that his memory was better on December 7, 2010, when he was shown the photo line-up than when he testified at the preliminary inquiry. He also said that he was telling the truth on December 7, 2010, although he qualified his selection of the applicant’s photograph by saying that he should have written on the photograph that it “looked like” the man who shot him. This is some evidence capable of supporting a conclusion by a trier of fact that Mr. Roberts adopted his prior statement. Once it is found that such evidence exists, the question of whether the prior statement was adopted is a question that must be left to the trier of fact to determine: Tat, at para. 21; Toten, at p. 23; R. v. Stiers, 2010 ONCA 382, at para. 42.
[41] Omar Roberts’ statement that the photo he selected looked like the person who shot him, even qualified to a 10% certainty, constitutes some evidence of identification. A trier of fact would be entitled to take into account and evaluate Mr. Roberts’ testimony to the effect that the photo he selected looked familiar to him “from when he shot me.”
[42] Given that a trier of fact would be entitled to reject the parts of Omar Roberts’ testimony that are inconsistent with his adoption of his prior statement, and that there is otherwise some evidence capable of leading the trier of fact to the conclusion that Mr. Roberts did adopt his prior statement, it cannot be said that there is no evidence of identification. Mr. Roberts never resiled from his modified position that on December 7, 2010 he selected the applicant’s photo because the applicant looked like the man who shot him. When that is coupled with his acknowledgment that his memory was better on December 7, 2010 than when he testified, I do not think it can be said that there is “no evidence” in the relevant sense of no basis upon which the preliminary inquiry judge could be called upon to form an opinion under the Shephard test for committal for trial.
[43] The trier of fact would not be required to view Mr. Roberts’ testimony that the applicant was not the man who shot him as a qualification of his earlier photo identification of the shooter. That testimony could be viewed as incredible and in conflict with Mr. Roberts’ own evidence that when his memory was better he picked out the photo of the applicant because the applicant looked like the man who shot him. The preliminary inquiry justice was not entitled, let alone required, to proceed on the basis of the version most favourable to the applicant. While I do not accept the respondent’s submission that Mr. Roberts actually adopted his prior statement, there is evidence upon which a trier of fact could conclude he did and in these unusual circumstances there is some evidence from Mr. Roberts' preliminary inquiry testimony that tended to identify the applicant as the perpetrator.
[44] I would add that as the preliminary inquiry justice made specific reference to Mr. Roberts’ evidence that the applicant was not the man who shot him, the applicant’s submission that Andre J. committed jurisdictional error because he did not consider all of the evidence must also fail.
Conclusion
[45] The application is dismissed.
F. Dawson J.
Released: February 28, 2012
COURT FILE NO.: CRIMJ(P) 1501/11
DATE: 20120228
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
JERMAINE PHILLIPS
Applicant
REASONS FOR JUDGMENT
F. Dawson J.
Released: February 28, 2012
[^1]: R. v. B.(K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, 79 C.C.C. (3d) 257