ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-291-AP
DATE: 2012Nov30

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

JEMAL CEDENO
Appellant

Andrew Scott, for the Crown

Donald F. McLeod, for the Appellant

HEARD: November 27, 2012 at Kingston

TRANMER J.

DECISION ON APPEAL

NATURE OF THE APPEAL

[ 1 ] The Appellant appeals against his conviction for the offence of assault using a weapon and assault causing bodily harm arising out of an incident which occurred on the 29th day of July 2007. His conviction followed the trial in the Ontario Court of Justice. The Honourable Justice Masse gave his Reasons for Decision on August 26, 2010. Sentence was imposed on April 28, 2011. Although the Appellant initially indicated an appeal against sentence, his appeal in this regard was abandoned in the course of the appeal heard by me.

NATURE OF THE OFFENCES

[ 2 ] In brief, the offences occurred around midnight outside a bar in downtown Kingston. Mr. Cedeno was convicted of striking a bouncer working at the bar with a brick causing a bloody gash on the right side of the bouncer’s face.

[ 3 ] The Crown evidence consisted of the testimony of two eyewitnesses, namely the victim and another bouncer working with him that night, and the police officer who attended upon the scene shortly after it had ended and who found the victim on top of the accused, who he had pinned to the ground. There was also a 7 second surveillance video entered as evidence. It viewed the altercation from just inside the front door, looking out through the door to the outside. The defence called two witnesses who testified they were present with the Appellant at the time of the altercation and that they and the Appellant were not involved in it at all except to the extent the Appellant was tackled by one of the bouncers. The defence also called three members of the Appellant's family, each of whom testified they had viewed the surveillance video and none of the persons shown in the video were the Appellant.

GROUNDS FOR APPEAL

[ 4 ] Although four grounds of appeal were referred to in the Notice of Appeal and the Appellant's Factum, the only grounds argued were as found at paragraph 30(A) and (B) of his Factum, namely:

A. that the trial judge erred by reaching a verdict that is unreasonable and unsupported by the evidence;

B. that the trial judge erred by failing to instruct himself properly about the eyewitness testimony and to direct his mind to its inherent frailties as well as by failing to instruct himself properly about the frailties and limitations of the videotape evidence.

The other two grounds of appeal were abandoned at the hearing before me.

APPELLANT'S POSITION

[ 5 ] The Appellant submits that because the justice rejected critical evidence of the eyewitness O’Donnell, as to the clothing worn by the attacker and that he saw the attacker pull a brick out of his sweat shirt, and also rejected critical evidence of the victim, that he saw the brick in his attacker’s hand and that the attacker was the only person to his immediate right at the time and shortly after he was hit, the verdict was unreasonable and not supported by the evidence. Although the Appellant acknowledges the judge relied on the video as the basis to convict, he argues that the surveillance video evidence does not enable proof beyond a reasonable doubt that the Appellant hit the victim with the brick unless the judge accepted the evidence of O’Donnell and the victim which I have just indicated that the judge rejected. The Appellant argues that the video does not clearly show the existence of the brick. The Appellant argues that even though the Justice rejected the noted evidence of O’Donnell and the victim, he nevertheless must have looked at the video based on the victim's assertion that the fellow who hit him was on his right and did so with the brick. The Appellant argues that absent O’Donnell’s and the victim’s commentary that the attacker used a brick, the video does not show a brick present at the scene.

ANALYSIS

[ 6 ] In his Reasons for Decision, Justice Masse states that he viewed the video on many occasions at full-screen as well as on a frame-by-frame basis. He states that the video lasts only about seven seconds and has been shot at a rate of 15 frames per second. He states that the interaction between the victim and the attacker lasts for only a bit more than one second. He acknowledges the video was not a very good quality and that it is grainy and black-and-white. He says the perspective of the video was limited and shows the space between the two sets of doors at the club as well as a portion of the sidewalk outside. He recites in detail “the critical parts of the video.”

[ 7 ] The video was played in the course of the appeal and I would add to the Justice’s description of what is shown by the video, the following details. It clearly shows the attacker’s right arm advancing from the side of his body in the direction of the right side of the victim's face. In the next frame, the attacker’s right hand is shown in contact with the right side of the victim's face. I note that the photographs filed as exhibits demonstrated a gash on the right side of the face of the victim under his right eye in the area of the contact shown on the video. In the very next frame following this contact, the victim is turning to face the attacker. He then pursues him and takes him to the ground within the next few frames.

[ 8 ] This is not the more usual case of identification, for example, where a victim is assaulted by a stranger who flees the scene and then when the police arrive some time later, he points to a person who is then walking past the scene on the other side of the street and identifies him as the attacker.

[ 9 ] The Judge acknowledges that there are frailties in that type of evidence in this case. At page 35 of his Reasons he says, “as I have already indicated, the video is of poor quality, black-and-white and grainy. I cannot say that I can positively identify the accused as being Mr. McGee’s attacker. However, the similarities between the attacker and the accused are such that I cannot say that the accused is not the attacker. What the video does is to show a chain of events from the time Mr. McGee was struck until the time Mr. McGee caught and pinned the accused to the ground.”

[ 10 ] The learned trial judge uses the video evidence to prove the chain of events beyond a reasonable doubt, namely, the victim does not see the brick or the blow coming, he is hit, he turns immediately, sees the guy within arm’s length who hit him, pursues him and catches and pins him to the ground within a few feet of the attack, and in less than 2 seconds.

[ 11 ] This is a case where the learned trial judge founded his conviction on the basis of the surveillance video evidence. He is, at law, entitled to do so. R. v. Nikolovski, [1996] 3 SCR 1197. The judge instructed himself expressly in this regard. See also, R. v. Abdi, 2011 ONCA 446, paras. 6 and 7 and R. v. R.H., 2010 ONCA 704, paras.4 and 5.

[ 12 ] I cannot say that the trial judge’s conclusion, based on the video evidence, that the person that the victim pinned to the ground was the attacker who had hit the victim in his face with a brick is unreasonable. The video clearly shows that there are only four persons in proximity to O'Donnell and the victim. After the one fellow punches O’ Donnell and becomes tangled up with him, the video shows the attacker to the right of and closest to the victim and within reach of the victim. There is a fellow directly in front of O'Donnell and the victim straight out from the door, but further away than the attacker. There is also a fellow with sunglasses on his head to the right of the victim but that person is behind and further away from the victim than is the attacker, who is between this person with sunglasses and the victim.

[ 13 ] The Appellant's counsel makes a strong argument in favour of his client based on the problems presented in the evidence of the witnesses who testified at trial. However, it is clear that the basis of the conviction was the learned trial judge’s consideration of the surveillance video. It is my view that the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered. It is my view that the verdict does not rest on findings of fact that are demonstrably incompatible with the evidence that could properly be accepted by the court.

DECISION

[ 14 ] For these reasons, the appeal is dismissed.

Tranmer J.

Released: November 30, 2012

COURT FILE NO.: CR-11-291-AP

DATE: 2012Nov30

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – HER MAJESTY THE QUEEN Respondent – and – JEMAL CEDENO Appellant DECISION ON APPEAL Tranmer J.

Released: November 30, 2012