ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-50000469-0000
DATE: 20130718
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BILAL DEEB
L. Bird, for the Crown
L. Hochberg and A. Doran, for Mr. Deeb
HEARD: July 2, 3, 4, 5, 8 and 10, 2013
Kelly J.
Reasons for judgment
[1] Mr. Bilal Deeb is charged with attempting to murder Mr. Jesse Kay using a firearm. On November 12, 2011, in the afternoon, Mr. Kay was on a TTC bus travelling on Eglinton Avenue in the City of Toronto. While on the bus, he noticed two men get on board. He immediately recognized the second of the two men as Mr. Deeb. Mr. Kay knew Mr. Deeb from the neighbourhood and as a result of a prior altercation with him five years prior.
[2] As the two men approached and passed Mr. Kay on the bus, they gave him a dirty look while nodding their heads up and down. No words were exchanged between the person identified as Mr. Deeb and Mr. Kay.
[3] Mr. Kay got off the bus at the intersection of Blackthorn and Eglinton Avenues. Almost immediately, he heard footsteps behind him. He turned. Mr. Kay saw Mr. Deeb standing about two feet away from him and pointing a black firearm at his head. Mr. Kay raised his hand to protect himself but was shot three times. One of the bullets entered Mr. Kay’s spinal cord, rendering him a quadriplegic.
[4] In addition to Mr. Kay’s testimony, I heard evidence from three civilian witnesses who were at the scene and various others. Mr. Deeb did not testify.
[5] As a result of this shooting, Mr. Deeb has been charged with the following offences:
a. Attempt murder contrary to s. 239(1)(a.1) of the Criminal Code;[^1]
b. Discharge firearm with intent to endanger life contrary to s. 244(2)(b) of the Criminal Code;
c. Possession of a loaded prohibited or restricted firearm while not authorized to do so contrary to s. 95(2)(a) of the Criminal Code; and
d. Failure to comply with his recognizance which prohibited him from possessing any weapons contrary to s. 145(3)(a) of the Criminal Code.
The Issue
[6] The question that must be decided in this case is the following: Has Crown Counsel proven beyond a reasonable doubt that the shooter was Mr. Deeb? She submits that this is a recognition case and that there is other evidence that supports Mr. Kay’s identification of Mr. Deeb as the shooter.
[7] Counsel for Mr. Deeb submits that this is purely an identification case (as opposed to a recognition case) and that the evidence relied upon to identify Mr. Deeb is not reliable. He submits that Mr. Kay is an honest and convincing witness who has wrongly identified Mr. Deeb as the shooter. He suggests that Mr. Kay fabricated the identity of Mr. Deeb as his shooter to provide answers for his family. I disagree.
[8] While I find that Mr. Kay was credible and sincere about his identification of Mr. Deeb as the shooter, I place limited reliance on these factors. I am aware that a witness’s level of confidence, especially in an identification case, is a poor measure of the accuracy of the identification.[^2] Mr. Kay’s credibility and sincerity are relevant to rebut any suggestion that he is intentionally misidentifying Mr. Deeb as his assailant. I find that his evidence is reliable, especially when considered with the other evidence. Accordingly, I find that Crown Counsel has proven beyond a reasonable doubt that Mr. Deeb is the shooter and therefore guilty of all offences before this Court. What follows are my reasons.
Analysis
[9] As I have stated, this is an identification case. As such I am mindful of the inherent dangers of identification evidence which was set out by Sopinka J. in R. v. Burke[^3]:
The cases are replete with warnings about the causal acceptance of identification evidence even when such identification is made by direct visual confrontation of the accused. By reason of the many instances in which identification has proved erroneous, the trier of fact must be cognizant of ‘the inherent frailties of identification evidence arising from the psychological face of the unreliability of human observation and recollection’ [citations omitted].
[10] While the inherent frailties of identification evidence may be obvious, a trier of fact cannot be precluded from relying on such evidence in appropriate cases. The requisite care must be exercised in analyzing the identification evidence. The weight of identification evidence will vary depending on the circumstances.[^4]
[11] There is a recognized difference between recognition and identification. A witness’s previous familiarity with a person may, in certain circumstances, add to the reliability of the witness’s identification, even in situations where the opportunity to observe the person is less than ideal. Depending on the level of familiarity, a “recognition witness” may be in a better position than someone identifying a stranger, in that, the previous familiarity with the person may provide a basis for comparison of similar features. I recognize, however, that the need for caution still applies even where the identification at issue involves elements of recognition.[^5] This is so because the circumstances surrounding the “recognition” may give rise to many of the same reliability concerns that exist in stranger identification cases.
[12] The identification concerns are present in this case and so I do approach Mr. Kay’s recognition of Mr. Deeb with caution. Although I find the ability of Mr. Kay to observe Mr. Deeb while on the bus was excellent, there is a break between the identification of him on the bus and the person identified as the shooter. The identification of the shooter on the street was made in a very short period of time and under extremely stressful circumstances. Mr. Kay had just turned around and saw his attacker pointing a gun at his head. He raised his hand to protect himself and was shot within seconds. These are hardly ideal circumstances for any identification witness.
[13] For the reasons set out below, I find that despite the need for caution, Mr. Kay’s level of familiarity with Mr. Deeb arising from the quality and quantity of the past interactions, renders his identification of Mr. Deeb highly reliable. I find this even in the face of a five-year gap between the shooting and the last time Mr. Kay saw Mr. Deeb.[^6] In this regard, I place particular reliance on the fact that just seconds before he was shot, Mr. Kay reliably identified Mr. Deeb as a passenger on the bus. This identification combined with the evidence of Mr. Marcus DaSilva (who was on the bus) leaves me with no doubt but that Mr. Deeb was the shooter.
[14] Mr. DaSilva’s observations were not seriously challenged during this proceeding. He testified that the person who sat beside him got off the bus at Blackthorn and Eglinton Avenue. He testified that as the bus started to move forward, he observed that person lift up his sweater and pull something out which appeared to be a gun. That person pointed it. He did not see where it was pointed because the bus was in motion. We now know that it was Mr. Kay who had been shot.
[15] I have no doubt that the person described by Mr. DaSilva is the same person Mr. Kay identified on the bus as Mr. Deeb. To put two and two together, I am satisfied beyond a reasonable doubt that Mr. Kay identified Mr. Deeb as the person on the bus, and that he is the same person that Mr. DaSilva identified as pointing something resembling a gun moments after leaving the bus.
[16] Lastly, there is circumstantial evidence that supports the identification of Mr. Deeb as the shooter.[^7] When the totality of the evidence is considered, I am satisfied beyond a reasonable doubt that Mr. Deeb is the shooter. I will deal with the identification evidence in chronological order which supports such a finding and deal with the allegation of Mr. Kay fabricating Mr. Deeb as the shooter.
(Full decision continues exactly as in the original judgment through paragraphs [17]–[119], footnotes [1]–[22], and the concluding release information.)
Kelly J.
Released: July 18, 2013
COURT FILE NO.: CR-13-50000469-0000
DATE: 20130718
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
BILAL DEEB
reasons for Judgment
Kelly J.
Released: July 18, 2013
[^1]: R.S.C., 1985, c. C‑46
[^2]: R. v. Hibbert (2002), 2002 SCC 39 at paras. 50‑52
[^3]: (1996), 105 C.C.C. (3d), (S.C.C.) at para. 52
[^4]: R. v. Miaponoose (1996), 1996 1268 (ON CA); R. v. Brown 2009 ONCA 563
[^5]: R. v. Curran, 2004 10434 (ON CA); R. v. Miller (1998), 1998 5115 (ON CA)
[^6]: R. v. Philion 2008 ONCA 329
[^7]: R. v. Andrilovic, 2007 ONCA 754
[^8]: See explanation in the judgment regarding witness observations on the bus.
[^9]: The Honourable Mr. Justice David Watt, Ontario Specimen Jury Instructions (Criminal) (Toronto: Thomson Carswell, 2005).
[^10]: See: R. v. Barnes 2009 ONCA 432
[^11]: R. v. M.G. (1994), 1994 8733 (ON CA)
[^12]: R. v. Caroo 2010 ONCA 143
[^13]: R. v. Bruce 2010 ABCA 131
[^14]: R. v. Rybak 2008 ONCA 354
[^15]: R. v. O’Connor (1995), 1995 255 (ON CA)
[^16]: Text messages referenced in the evidence from the seized phone.
[^17]: Evidence of Dakota Kay regarding the nickname “Beamz”.
[^18]: Police expert evidence interpreting street terminology.
[^19]: See: R. v. S.B.1. T.F., M.W. and S.B.2, 2012 ONSC 3139
[^20]: Lewis v. The Queen (1979), 1979 19 (SCC)
[^21]: R. v. Gonsalves 2008 17559 (ON SC)
[^22]: R. v. Jack 2013 ONCA 80