Ontario Superior Court of Justice

COURT FILE NO.: YC-11-50000004-0000
DATE: 20120420

Ontario Superior Court of Justice

Her Majesty The Queen against T.N.

Counsel:
C. Igwe for The Crown
S. Hinkson for the defence

Trial heard April 17, 18, 19, 2012

Reasons for Judgment of Backhouse, J. released April 20, 2012

[ 1 ] The young person is charged with aggravated assault. Brian Anderson was attacked at a Subway shop in Toronto on December 23, 2009. Mr. Anderson suffered multiple bruises to his face, arms and body. He also suffered significant injuries to his left eye which eventually had to be removed as a result of the assault.

[ 2 ] Surveillance videos were retrieved from the Subway restaurant. Officer Drepack identified A.K. as one of the two assailants who appeared on the Subway shop surveillance video. He retrieved the surveillance video from 1 Summerhill Road, an apartment complex where A.K. resided. The Summerhill video shows 2 persons entering the building shortly after the incident at the Subway shop who are believed to be the assailants. Information from a confidential informant led the police to suspect that the young person was the second assailant.

[ 3 ] Officer Drepack called up Officer Payumo who at the time of the incident worked as a School Resource Officer at the young person’s school. He asked Officer Payumo whether he knew the young person. When Officer Payumo said that he did, Officer Drepack requested that he view a video. Officer Payumo assumed from this that they were investigating the young person for something and that they were coming to see if he could confirm that it was the young person who appeared on the video. He had no prior involvement with the investigation.

Officer Payumo

[ 4 ] At the time of the assault, Officer Payumo was a police officer with 20 years experience. From the fall of 2008, he worked as a School Resource Officer at Bishop Marrocco Thomas Merton Catholic Secondary School. He testified that starting shortly after September, 2008 and continuing through 2009, he had several encounters with the young person in the auto mechanic class he was in. He saw the young person anywhere from once a day to 2 to 3 times per week, if not in the classroom at least in the hallway of the school. He sometimes had conversations with him about police work. He had a good relationship with the young person.

[ 5 ] When shown the Summerhill surveillance video, he identified the young person as appearing on it. He testified that he was able to recognize the young person on the video because of his face and overall physical appearance which included round eyes, a wide nose, full lips, a slim face and a slim build. He never saw him wear the lighter blue or green jacket and green hat that is seen on the video worn by the person Officer Payumo identified as the young person. He acknowledged that he could not see the hairstyle, the shape of the head, the ears, the shape of the forehead or the height of the person on the video. He agreed that the features he described applied to many individuals at Bishop Marrocco Thomas Merton Catholic Secondary School and to many individuals in Toronto.

[ 6 ] The other officers who were present when Officer Payumo watched the video and identified the young person made no notes of his degree of certainty or what was distinctive about the person in the video that enabled him to identify him as the young person. Officer Payumo testified that the fact that he knew that the police suspected the young person did not affect his opinion that it was the young person depicted in the video.

Brian Anderson

[ 7 ] Close to the time of the assault, Brian Anderson gave a statement to the police at the hospital and at the police station. The events were then fresh in his mind. He told the police that the taller person involved in the assault was 25 years of age or over, wore a black baseball hat and dark clothes. He was not asked to take part in a photo lineup. He testified at the preliminary inquiry on April 4, 2011. He met with the Crown attorney and police before the preliminary inquiry and before trial. He had had previous opportunities to view the surveillance video at the Subway shop. He had the phone numbers of the officers involved in the investigation in case he needed to get in touch with them. At no time prior to trial did he identify the young person as one of his assailants. At trial he testified that he recognized the young person as one of the assailants.

Other Officers

[ 8 ] The other officers who testified did not know the young person before his arrest and had no admissible evidence on the issue of identification.

Paul Mata

[ 9 ] Paul Mata, an employee at the Subway store at the time of the incident, testified as follows. He picked A.K.’s photograph out in the photo line-up but was not able to pick out the photograph of the person who assaulted Mr. Anderson. He described that person as tall, five feet 9 inches, dark, wearing 2 big gold earrings, a black winter jacket with no sleeves and of slight build. He estimated that he was between 18 and 20 years of age.

A.K.

[ 10 ] A.K. testified as follows. He is now 15 years of age. He pled guilty to being an accessory after the fact and to fraudulently obtaining food and lodging in regard to the Subway shop assault on December 23, 2009. On December 23, 2009, he was on his way to the Subway shop when he met up with an acquaintance whom he knew as Mookie. He did not know Mookie’s real or full name, where he went to school or where he lived. They went together to

the Subway shop where Mookie got into an altercation with Mr. Anderson. He left without Mookie but Mookie showed up near his apartment. Mr. K. let him use the laundry room to clean the blood off. He has not seen Mookie since then. He described Mookie as having dark skin, being 5 foot nine inches tall, muscular, 170 to 180 pounds and around 18 years of age. On December 23, 2009, he was wearing a navy blue jacket, a toque and earrings. He denied being afraid of Mookie. If he knew Mookie’s full name, he would tell the court.

[ 11 ] Mr. K. gave a statement to the police close in time to the incident where he identified Mookie as the person who assaulted Mr. Anderson.

[ 12 ] Mr. K. has been friends with the young person since 2008. They saw each other approximately 3 times a week to play basketball behind 1 Summerhill or to hang out and chill. Prior to December 23, 2009, Mr. K. and the young person had gone to the Subway shop together 4 to 5 times. They were not short of funds to pay for their orders on any of these occasions. He did not go to the Subway shop with the young person on December 23, 2009 and the young person was not involved in the assault of Mr. Anderson. He had not seen the young person wearing the clothing depicted on the video.

[ 13 ] On January 6, 2010, the police executed a search warrant on the young person’s home and were not able to locate the blue or green coloured jacket and toque which the assailant was seen wearing in the videos or anything else relevant to the incident.

Submissions

The Crown’s Submissions

[ 14 ] The Crown submits as follows. Officer Payumo’s evidence should be accepted for the following reasons. He was a police officer with 20 years of experience. He had a good relationship with the young person. He had no prior involvement with the investigation. His evidence that the fact that he knew that the police suspected the young person did not affect his opinion was credible.

[ 15 ] While no conclusion should be drawn from Mr. Anderson’s in the dock identification of the young person, this should not be the basis of a negative finding of credibility. The court may rely upon his description of the person who assaulted him where it is consistent with the other witnesses.

[ 16 ] As an accomplice, the evidence of Mr. K. should be approached cautiously and accepted only where it is consistent with other evidence. His evidence that he allowed the assailant to come into his building to clean up is more consistent with helping a good friend such as the young person rather than Mookie who he described as an acquaintance only.

[ 17 ] The young person was not arrested until January 11, 2010. In the course of their investigation, the police had attended at his residence prior to that date, giving him ample opportunity to discard the clothing he had been wearing on December 23, 2009.

The Defence’s Submissions

[ 18 ] Counsel for the young person submitted as follows. This is a case about identification. None of the persons present at the assault were able to identify the young person as the assailant involved in the assault. Mr. Anderson’s in dock identification should have no weight. Mr. Mata, the Subway shop employee, was able to identify Mr. K. but was unable to identify the photo of the young person as the assailant in the photo lineup. Mr. Mata has consistently identified the assailant as Mookie, not the young person and testified that he had never seen the young person wearing the clothing depicted on the video. The execution of the search warrant did not locate the earrings, jacket, or toque depicted on the video. There is no physical evidence. Officer Payumo’s evidence is severely tainted and should be given no weight.

Analysis

[ 19 ] The sole issue in this case is identification. In the past, persons have been wrongly convicted because eyewitnesses have made mistakes in identifying the person whom they saw committing a crime.

[ 20 ] Officer Payumo’s evidence as to what allowed him to identify the person in the video was general. It could apply to many persons. There was nothing distinctive about the person in the video, for example, his walk, that enabled him to identify him as the young person. He had never seen the young person wear the colour of coat or hat on the person in the video. Moreover, Officer Payumo knew that the young person was a suspect before he viewed the video. No notes were taken by the investigating officers of what he said when he was shown the video or what discussions there were with him before or after. His evidence is tainted as a result of what he was told in advance.

[ 21 ] The surveillance video at the Subway shop is of poor quality. It is not possible to make out the features of the person assaulting Mr. Anderson. The surveillance video at 1 Summerhill shows 2 Black males entering the building 2 minutes after the assault at the Subway shop. One of the persons is wearing a white or light cap with a brim and is carrying an object. This person was identified as A.K. carrying a Subway sandwich who lived at 1 Summerhill Road, less than 1 km. from the subway store. The second person is very indistinct. He is wearing what looks like a blue parka and blue hat. His facial features are not discernible. His height and body build are not discernible. I am unable to say whether there is any resemblance to the young person.

[ 22 ] I conclude that Officer Payumo was an honest but mistaken witness.

[ 23 ] Brian Anderson’s evidence, was not credible. His description of the taller person who assaulted him as 25 years of age or older does not match the young person who was 17 years of age at the time and does not look 25 years of age now. Mr. Anderson’s identification at trial of the young person as the older person who assaulted him can be given no weight, given both his failure to identify the young person as his assailant at the preliminary inquiry and to advise the police or Crown Attorney of this change of position.

[ 24 ] Mr. Mata was not able to pick out the young person’s photo from the police photo-lineup.

[ 25 ] Mr. K. identified someone other than the young person as the assailant. While his evidence was not credible, I cannot conclude from that that the person with whom he went to the Subway shop on December 23, 2009 and who assaulted Mr. Anderson was the young person.

[ 26 ] As is not unusual in identification cases, the various witnesses gave descriptions of the assailant which differed in material respects.

Conclusion

[ 27 ] The evidence is not sufficient to prove beyond a reasonable doubt that the young person was the assailant. The charge is dismissed.

Backhouse J.

Released April 20, 2012

COURT FILE NO.: YC-11-50000004-0000

DATE: 20120420

ONTARIO SUPERIOR COURT OF JUSTICE

Her Majesty the Queen and T.N.

REASONS FOR JUDGMENT Backhouse J.

Released: April 20, 2012