Court File and Parties

COURT FILE NO.: 13-10000598-0000

DATE: 20131016

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. ITHEMAR BROWN, ABEDNEGO WYNN, NATHAN ELVIE

and TAMARA BROWN

BEFORE: Justice Spies

COUNSEL: Danielle Carbonneau, for the Crown

Taro Inoue, for the Defendant, Ithemar Brown

Marco Sciarra, for the Defendant, Abednego Wynn

Hans Cedro, for Defendant, Nathan Elvie

Kweku Ackaah-Boafo, for the Defendant, Tamara Brown

HEARD: October 1, 2013

ruling on Defence Application to Exclude Recognition Evidence

Overview and Issues

[1] Mr. Sciarra, on behalf of Mr. Wynn, sought an order that the Crown not be permitted to call certain recognition evidence of Ferisha Besley. The Crown opposed the application.

[2] Some of the items stolen from the complainants during the robbery the defendants are charged with were located at Ms. Besley’s residence at 196 McHardy Court during the execution of a search warrant on September 1, 2011. She was arrested and later provided a statement to the police, admitting that she had been with Tamara Brown and the others girls in the complainants’ hotel room prior to the robbery taking place. During this statement, she identified herself along with the co-accused before the court in the surveillance footage from the hotel. She was not charged with the robbery. The Crown attempted to call her as a witness at the preliminary inquiry on this matter in 2012, but she did not attend court and a bench warrant was issued. It was executed several months later. Ms. Besley later testified at the preliminary inquiry for Meshach Brown, Abednego Wynn[1], Melisia Edwards, Shadrach Brown and Dinish Barnes (Group #2) on August 8, 2013.

[3] Both counsel agreed that the issue on this application was whether or not Ms. Besley was in a better position than a jury to identify Mr. Wynn in the hotel surveillance video, the CCTV footage and in the YouTube video.

[4] After hearing submissions, on October 2, 2013 I advised counsel that I would permit Ms. Carbonneau to call this evidence of Ms. Besley and that I would provide reasons for my decision. These are those reasons.

The Evidence

[5] The evidence on the voir dire was the evidence given by Ms. Besley at the preliminary inquiry in August 2013. It was not in dispute. Mr. Sciarra admitted the accuracy of all of the excerpts from that testimony relied upon by Ms. Carbonneau in her factum although he submitted that many were not germane to the issue of how well Ms. Besley knew Mr. Wynn.

[6] Ms. Besley has a child with Meshach Brown, a co-accused in this robbery who is a defendant in the other proceeding concerning Group #2. Meshach Brown is the brother of the defendants Ithemar Brown, Tamara Brown and Abednego Wynn. Ms. Carbonneau relied on the following evidence of Ms. Besley in support of her position that she is very familiar with the Brown/Wynn family. Much of it relates to other family members; I have italicized those portions that are relevant to her knowledge of Mr. Wynn:

(a) Meshach Brown is her “baby father” i.e. the father of her child. (In-chief, p. 5)

(b) Tamara Brown is Meshach’s sister and she knows her “good enough”. In 2011, she had known her for 8 years. She would recognize her if she saw her again. (In-chief, pp. 5-6)

(c) One of the girls that she was with on the night of the robbery was Yonique, who is Meshach’s brother’s baby mother. This brother goes by the nickname of “Bendy” and his last name is Wynn. (In-chief, pp. 6-7)

(d) Tamara Brown was living with her at 196 McHardy Court from mid-June 2011 until September 1, 2011 when the search warrant was executed at her residence. (In-chief, p. 25)

(e) Meshach’s younger brother, nicknamed “Mars”, had been babysitting for her the night of the robbery and he was there when they returned early the next morning. (In-chief, p. 27)

(f) Ms. Besley identified Meshach Brown, Melisia Edwards (known as “Melo”) at the preliminary inquiry. (In-chief, pp. 31-32)

(g) She identified Tamara Brown in the surveillance stills. (In-chief, p. 41)

(h) She also identified “Bends or Bendy” in the surveillance stills and then proceeded to identify him in court. (In-chief, p. 41)

(i) She identified Shadrach Brown (co-accused in Group #2) and “Red” or “Reds” (Mr. Elvie’s nickname) in the surveillance stills. She indicated that Shadrach is Meshach’s older brother (In-chief, p. 42). Shadrach Brown was absent from court when she testified. (Aug. 8, 2013 transcript, p. 2)

(j) She identified Ithemar Brown in the surveillance stills as Tamara’s brother or “Dopey” or “Dopes”. (In-chief, pp. 42-43)

(k) She identified Meshach Brown in the surveillance stills. (In-chief, p. 43)

(l) When asked how she could identify these individuals, she indicated “because it’s mostly family members, and I can recognize them.” (In-chief, p. 44)

(m) Meshach’s brother “Mars” would pick up Meshach’s mail at their old address and bring it to 196 McHardy Court for their mother to pick it up there. (In-chief, p. 51)

(n) Meshach’s brothers were staying with her for a while. “His younger brothers were in and out of my house, too. The family was there.” (In-chief, p. 51)

(o) When cross-examined about her viewing of the surveillance stills during a witness preparation meeting, she indicated “half the people that were on the picture was my other side of the family.” (Cross, p. 96)

(p) She testified to Meshach having a large family, with at least 1 sister and many brothers. He has an older brother and many younger brothers. (Cross, pp. 99-100)

(q) She identified Mr. Wynn as “Grimey”. He is one of Meshach’s younger brothers. She agreed that she would see him here and there on very few occasions. (Cross, p. 101)

(r) She indicated that she was able to say what his hairstyle looked like throughout the years because he usually shaved it. He had a low fade in 2011. (Cross, p. 102)

(s) When asked how many times she had seen Mr. Wynn in the course of her life, she indicated “I’ve seen Bendy quite a bit.” (Cross, p. 107)

(t) She recalled Mr. Wynn having other hairstyles over the years such as braids when he was younger. (Re-exam, p. 108)

[7] Mr. Sciarra relied on the following additional evidence:

(a) Ms. Besley admitted that Mr. Wynn is one of the brothers that she would not see very frequently, that she did not have a personal relationship with him at all and that he was more of an acquaintance through the family. (Cross, p. 101)

(b) Ms. Besley admitted that back in the summer of 2011 she did not see Mr. Wynn very often. (Cross, p. 101)

(c) Although Ms. Besley was able to identify particular features about Meshach such as tattoos she would not be able to do the same with Mr. Wynn. (Cross, p. 101 - 102)

(d) She could not say that Mr. Wynn’s hair was a low fade throughout 2011. (Cross, p. 102)

(e) She is not able to specify any specific features on his face such as scars. (Cross, p. 102)

(f) Ms. Besley did not see Mr. Wynn at the Delta Chelsea hotel on the night of the robbery and she did not see him earlier that night. (Cross, pp. 104-105)

(g) She did not know what Mr. Wynn was wearing that night or who he was hanging out with. (Cross, p. 105)

(h) There is nothing distinctive about Mr. Wynn that he can point out that tells her that its “Bendy”. (Cross, p. 106)

(i) By low fade she meant hardly any hair on his head. (Cross, p. 108)

Analysis

[8] It is Mr. Sciarra’s position that Ms. Besley is in no better position than the jury to identify Mr. Wynn as she lacks the sufficient prior knowledge of his appearance and/or movements. He also submitted that her evidence is of no probative value and that its admission is outweighed by its prejudicial effect due to his inability to test its weight in cross-examination. Ms. Carbonneau argued that Ms. Besley is a family member through Meshach Brown and that her evidence should be admitted.

[9] At first Ms. Carbonneau wanted me to find that Ms. Besley was not truthful when she testified that she did not see Mr. Wynn on the night of the robbery since the evidence of the complainants is that he was among the first through the door into their hotel room. She then submitted it was possible that Ms. Besley was not in the room at that moment as she had left the room to get something to drink. As Ms. Besley was not called on the voir dire I have proceeded on the basis of her evidence that she did not see Mr. Wynn on the night of the robbery.

[10] As Mr. Sciarra submitted, Ms. Besley was not able to point to any physical characteristic that allowed her to identify Mr. Wynn. All she testified to was that she knew him like family. As Mr. Sciarra pointed out, based on the YouTube video, Mr. Wynn had an obvious Mohawk hairstyle at that time. Although there is no clear date as to when this video was filmed, based on its content and the fact it was discovered by police in late August 2011, it is reasonable to assume that Mr. Wynn had more than a shaved head at the time of the robbery. In fact since deciding this application counsel have agreed the video was filmed on or before August 1, 2011. Mr. Sciarra submitted that the fact that Ms. Besley did not recall the Mohawk hairstyle in 2011 suggests that she had not seen Mr. Wynn around the time of this offence. Certainly his hair in the YouTube video could not have grown that long from a shaved head from the time of the robbery.

[11] The governing cases begin with R. v. Leaney, [1989] 2 S.C.J. 90 (S.C.C.) where at para. 33 the court confirmed in order for a witness previously acquainted with the accused to provide opinion evidence regarding identity, the Court must be satisfied that this witness is in a better position than the trier of fact to identify the accused; see also R. v. Brown, 2006 42683 (ON CA), [2006] O.J. No. 5077 (Ont. C.A.) at para. 39. In R. v. Berhe, [2012] O.J. No. 5029 at para. 14 the Ontario Court of Appeal reaffirmed this test characterizing it as the “prior acquaintance/better position” test. The court held at para. 22 that this test does not require the witness to show that he or she can point to some unique identifiable feature or idiosyncrasy of the person to be identified.

[12] Ms. Carbonneau also relied on cases where police officers have been able to give this type of evidence even though they were far less acquainted with the accused than Ms. Besley is. For example in R. v. Dirie, 2013 ONCA 261, [2013] O.J. No. 1873 (Ont. C.A.) at para. 3 the Ontario Court of Appeal held that the trial judge did not err by admitting the recognition evidence of P.C. Smissen, who had dealt with the accused on the night of his arrest and took pictures of him. While his prior acquaintance was not lengthy, the court held that it was sufficient and that “the duration of that acquaintance would go to weight and not admissibility”.

[13] Having carefully reviewed the cases, and in particular the Berhe decision, I have come to the conclusion that the issue is whether or not Ms. Besley is sufficiently familiar with Mr. Wynn so that she is in a better position than the jury to identify him on the surveillance video. As Blair J.A. stated on behalf of the court at para. 21 in Berhe, does she have some advantage over the jury? The court also pointed out at para. 22 that: “there are many ordinary people who do not have any particular identifiable features or idiosyncrasies differentiating them from the normal crowd; people familiar with them may well be able to identify their photograph, however.” Justice Blair then went on to adopt a passage from the British Columbia Supreme Court in R. v. Panghali, 2010 BCSC 1710 at para. 42 where the court stated as follows:

Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.

[14] Considering these passages, Ms. Besley is not a witness with only a “little acquaintanceship” with Mr. Wynn. Although she is not someone with a particularly close relationship with him, on her evidence he is part of the other side of the family that over the years she has seen quite a bit. She was able to identify Mr. Wynn in the surveillance video. The fact that she has not articulated a particular feature that underlies her recognition of him is a matter that in these circumstances goes to weight. I note that none have been suggested such as tattoos or scars; only the Mohawk haircut that Mr. Wynn had a the time of the offences.

[15] I note as well that Mr. Wynn’s appearance has changed since August 2011. He no longer has a Mohawk hairstyle and instead he has numerous small braids. This would hamper to some extent the ability of the jury to compare his appearance now to the images on the surveillance video.

[16] Based on my reading of Berhe, the simple fact that Ms. Besley has known Mr. Wynn for some time and has seen him “quite a bit” means that she is in a better position to recognize him on a video than members of a jury. She is sufficiently familiar with his appearance over a number of years before the robbery such that it will be easier for her to identify him than the members of the jury who have only seen Mr. Wynn in court, even if she never saw him with a Mohawk.

[17] As for cross-examination, Mr. Sciarra will be able to bring out the fact that Ms. Besley must not have seen Mr. Wynn close to the time of the robbery as she did not describe a Mohawk hairstyle. The answer to that question and others will go to the weight of her evidence.

[18] For these reasons I concluded that the evidence of Ms. Besley identifying Mr. Wynn on the hotel surveillance, CCTV and YouTube video is admissible. I advised counsel that at the appropriate time I would give the jury a mid-trial instruction with respect to this evidence advising them to consider it in the same way as the eyewitness identification evidence.

SPIES J.

Date: October 16, 2013

[1] Mr. Wynn was joined to this proceeding by an order of this court in September 2013.