COURT FILE AND PARTIES

COURT FILE NO.: 11-40000820-0000
DATE: 20121012

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Glenn Brotherston for the Crown

• and -

CHRISTOPHER ALEXANDER

Dirk Derstine for Christopher Alexander

HEARD: September 24, 26-28, October 1-5 and 12, 2012

Thorburn J .

REASONS FOR JUDGMENT

I. The Charges

[ 1 ] The charges in this case stem from a shooting that took place in the Fairview Mall on September 13, 2010.

[ 2 ] Christopher Alexander is charged with the following offences:

i. attempt murder of Owen Baker [1] ;

ii. discharge of a Glock 9mm semi-automatic pistol at Owen Baker in order to wound, maim, disfigure or endanger Owen Baker’s life or to prevent his own arrest [2] ;

iii. discharge of the pistol knowing or being reckless as to whether another person was present; [3]

iv. unlawful possession of the pistol without being the holder of a licence and registration certificate [4] ;

v. possession of an overcapacity magazine knowing he had no licence to possess it [5] ;

vi. possession of a firearm while prohibited from doing so by virtue of a March 22, 2007 court order pursuant to section 110 of the Criminal Code [6] ;

vii. failure to comply with the terms of his recognizance “to be in your place of residence at all times seven days a week except for medical emergencies and to go directly to and from court and while at court or while in the continuous company of your surety” [7] ;

viii. failure to comply with the terms of his recognizance, “Not to be found within the City of Toronto except in the direct company of your surety or to go to and from court and while at court” [8] ; and

ix. failure to comply with the terms of his recognizance, not to possess, until dealt with according to law, any firearm, prohibited weapon or restricted weapon or ammunition [9] .

II. Agreed Facts

[ 3 ] Just after 8 p.m. on September 13, 2010, a black male with light complexion wearing a large red T-shirt, dark trousers, white shoes, and with hair tied in a bun was in The Bay at Fairview Mall. He stole a bottle of cologne that was on the counter. The theft was captured on videotape by a security camera operated by The Bay.

[ 4 ] Two loss prevention officers employed by The Bay followed the male wearing the red T-shirt and his companion. The male wearing the red T-shirt was arrested just after leaving The Bay.

[ 5 ] Five individuals were present during the arrest: two Bay loss prevention officers (Owen Baker and Mark Mendonca) and three Fairview Mall security guards (Jeremy Coombs, Kris Mazun and Corey Spencer).

[ 6 ] Initially the male wearing the red T-shirt did not resist arrest, but when the word handcuffs was mentioned, he fled and was chased by Owen Baker and followed by the others present at the time of his arrest [10] . The chase was captured by several security cameras at the Fairview Mall.

[ 7 ] Owen Baker chased the male wearing the red T-shirt through the lower level of the Mall. As they approached the food court, the male wearing the red T-shirt fired a shot from a loaded handgun in his right hand. Kris Mazun and Corey Spencer also ran after the male in the red T-shirt but were behind Owen Baker and the male wearing the red T-shirt. Kris Mazun said that as they were running, he told Cory Spencer to watch the person with the red T-shirt’s hands. Mark Mendonca was also running after the male with the red T-shirt but was even further behind and did not witness the shooting.

[ 8 ] Owen Baker later saw the male wearing the red T-shirt drop the handgun. It was a 9mm Glock pistol. He picked up the handgun with gloves and gave it to police upon their arrival.

[ 9 ] A shell casing was found on the floor of the lower level of the Fairview Mall near the food court.

[ 10 ] The handgun is a prohibited firearm and the magazine is a prohibited device. Fourteen bullets were found in the chamber and magazine when the handgun was seized by police. Ballistics testing revealed that the shell casing found was fired from the handgun.

[ 11 ] There was a small round dent in the metal of a half wall in the Fairview Mall food court and another small round dent in the metal surrounding a vendor’s sign above a stall in the food court.

[ 12 ] The male wearing the red T-shirt fled and was not arrested at the time of the incident nor was the other male who was with him.

[ 13 ] Police prepared a wanted poster for Christopher Alexander (whom they believed to be the male in the red T-shirt) and Shawn Mobine (whom they believed to be the male in the company of the male in the red Tshirt on September 13.) Shawn Mobine turned himself in to police. Police were later satisfied that he was not involved in this incident.

[ 14 ] On the date of the incident, Christopher Alexander had no licence or registration certificate to possess a Glock 9mm semi-automatic pistol or an overcapacity magazine. He was also prohibited from possession of a firearm or magazine by virtue of a March 22, 2007 court order pursuant to section 110 of the Criminal Code .

[ 15 ] On September 13, 2010, Christopher Alexander was not permitted to be out of his home except for very limited purposes and in the company of his surety.

[ 16 ] In 2010, Christopher Alexander had a tattoo on the outside of his left hand that read “HK”. On the inside of his left forearm extending from his elbow to his wrist he had another tattoo that read “Roywoodz.” The letters of “Roywoodz” were not filled in.

III. The Issues

[ 17 ] The key questions to be determined in this case are:

(a) Is Christopher Alexander the male who wore a red T-shirt at the Fairview Mall on September 13, 2010, and was involved in this incident?

(b) If he was, did he shoot at Owen Baker?

IV. The Burden of Proof

[ 18 ] An accused person is presumed innocent and the burden is on the Crown to prove each of the essential elements of each offence beyond a reasonable doubt. [11] There must be a careful assessment of the evidence before determining whether guilt has been established. [12] Parts of a witness’ evidence may be accepted while others rejected, and different weight may be accorded to different parts of the evidence. [13]

[ 19 ] As the Court of Appeal stated in R v. F.E ., “ Where, on a vital issue, credibility findings must be made between conflicting evidence called by the defence or emerging from evidence favourable to the defence adduced as part of the Crown’s case, the trial judge must relate the principle of reasonable doubt to those credibility findings. [14]

[ 20 ] The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence, or the separate pieces of evidence which make up the Crown’s case, but to the total body of evidence upon which the Crown relies to prove guilt. [15] An accused must be acquitted if the conflicting evidence leaves the trier with a reasonable doubt about the accused’s guilt in light of all the evidence. [16]

V. Analysis of the First Issue: Identification of the Male Wearing the Red T-Shirt

[ 21 ] The test to be applied in deciding whether to admit non-expert opinion evidence from those who purport to recognize an accused is: whether the witness is in a better position than the trier of fact to identify the accused. [17]

[ 22 ] The lay witness must be able to articulate some basis for the opinion so that the opinion can be subject to evaluation. It also assists to have a record of the process of recognition so that the degree of confidence in the recognition can be challenged.

[ 23 ] The inherent frailties o f identification evidence have been the subject of frequent judicial comment. [18] One must be particularly careful therefore in considering such evidence. Some of the key factors relevant to a determination of the reliability of identification evidence where the honesty and sincerity of the witnesses are not at issue are:

(a) the degree of familiarity with the suspect (including the length and circumstances of the relationship) [19] ;

(b) whether the description is general or vague;

(c) whether the description includes distinctive features of the suspect and his or her clothing; [20]

(d) the length of time the witness had to observe the suspect; [21]

(e) conditions under which the description was given; [22] and,

(f) whether the eyewitness identification is confirmed by other evidence. [23]

[ 24 ] Where several witnesses come to the same conclusion independently of one another, even where that evidence may be weak, their evidence may be accorded greater weight than the evidence of an individual witness because the burden of proof applies to the evidence as a whole not the individual pieces of evidence. [24] The cumulative effect of all evidence is therefore important.

[ 25 ] A feature that is dissimilar to the person sought to be identified can be more revealing than a similarity. [25] However, this is true only if the dissimilarity is not one that is easily modified such as a change of clothes or a different way of wearing one’s hair.

[ 26 ] Three types of identification evidence have been provided in this case:

(a) recognition evidence from four people who met Christopher Alexander before this incident took place (one defence witness and three Crown witnesses),

(b) identification evidence from two individuals who identified Christopher Alexander as the person they saw on September 13, 2010, and

(c) video footage from The Bay and the Fairview Mall and still photographs taken from the videos and from social websites belonging to Christopher Alexander.

(continued exactly as in the source judgment through paragraph [103] and the footnotes below)

Thorburn J.

Released: October 12, 2012

COURT FILE NO.: 11-40000820-0000
DATE: 20121012

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN and - CHRISTOPHER ALEXANDER ______________________________________ REASONS FOR JUDGMENT ______________________________________ THORBURN J.

RELEASED: October 12, 2012

[1] Section 239 of the Criminal Code , R.S.C. 1985, c. C-46.

[2] Section 244(1) of the Criminal Code .

[3] Section 244.2 of the Criminal Code

[4] Section 95 of the Criminal Code .

[5] Section 92(2) of the Criminal Code

[6] Section 117.01of the Criminal Code .

[7] Section 145(3) of the Criminal Code .

[8] Section 145(3) of the Criminal Code .

[9] Section 145(3) of the Criminal Code

[10] It is agreed that the male wearing the red Tshirt who stole the bottle of cologne is the same person who was arrested and chased by Owen Baker.

[11] R. v. Lifchus , 1997 319 (SCC) , [1997] 3 S.C.R. 320 .

[12] See for example R. v. Stewart (1994), 1994 7208 (ON CA) , 18 O.R. (3d) 509(C.A.) at para 18 , leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 290; R. v. Oziel , [1997] O.J. No. 1185 (C.A.) at para. 8 .

[13] R. v. Howe (2005) , 2005 253 (ON CA) , 192 C.C.C. (3d) 480 , [2005] O.J. No. 39 (C.A.) at para. 44 .

[14] R. v. F.E.E. , 2011 ONCA 783 , [2011] O.J. No. 5738 at para 104

[15] R. .v Bouvier (1984), 1984 3453 (ON CA) , 11 C.C.C. (3d) 257 (Ont. C.A.) at pages 264, 272. See also R. v. Gagnon (2000), 2000 16863 (ON CA) , 147 C.C.C. (3d) 193 (Ont. C.A.) at para. 48 , wherein Weiler J. for the Court held that “although a piece of evidence viewed in isolation may not constitute corroboration, a number of pieces of evidence viewed collectively may constitute corroboration.”

[16] R. v. D. (B.) , 2011 ONCA 51 , 266 C.C.C. (3d) 197 at para. 114 .

[17] R. v. Leany (1989 ), 1989 28 (SCC) , [1989] 2 S.C.R. 393 , 50 C.C.C. (3d) 289 and R. v. Brown (2006) 2006 42683 (ON CA) , 215 C.C.C. (3d) 330 (Ont. C.A.) at para 39 .

[18] R. v. Miaponoose (1996), 1996 1268 (ON CA) , 30 O.R. (3d) 419 (C.A.) at paras 9 to 13

[19] R. v. Leany supra note 17 and R. v. Anderson 2005 BCSC 1346 () , [2005] B.C.J. No. 3053 (S.C.) at para 25 .

[20] R. v. Ellis , 2008 ONCA 77 , [2008] O.J. No.361 at paras. 5 , 8; R. v. F.A. (2004), 2004 10491 (ON CA) , 183 C.C.C. (3d) 518 (Ont. C.A) at para. 64

[21] R. v. Carpenter , [1998] O.J. No. 1819 (C.A.) at para. 1 .

[22] R. v. Nikolovski , 1996 158 (SCC) , [1996] 3 S.C.R. 1197 ; R. v. Francis , 2002 41495 (ON CA) , [2002] O.J. No. 4010 (C.A.) at para. 4 .

[23] R. v. Boucher (2000), 2000 3270 (ON CA) , 146 C.C.C. (3d) 52 (Ont. C.A.) at para. 19 and R. v. John , 2010 ONSC 6085 , [2010] O.J. No. 4738 at para. 110

[24] R. v. John supra note 23 at para. 107

[25] Chartier v. A.G . (Que.), 1979 17 (SCC) , [1979] 2 S.C.R. 474

[26] R. v. Gagnon 2000 16863 (ON CA) , [2000] O.J. No. 3410 (C.A.) at paras 94 and 95 .

[27] R. v. Boucher supra note 23at para. 19

[28] As noted above, I did not find Janelle Breckenreid’s testimony on this point to be either credible or reliable.