NEWMARKET COURT FILE NO.: CR-12-09700

DATE: 20141125
CORRIGENDA: 20141126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

MACTERRY IGBINOBA

Applicant

Lori Thompson, for the Crown

Carol Ann Shirtliff-Hinds, for the Applicant

HEARD: July 28, 2014

PUBLICATION BAN

Information contained herein is prohibited from publication pursuant to Section 486.4(1)(a) of the Criminal Code of Canada

REVISED RULING ON APPLICATION

TO QUASH COMMITTAL FOR TRIAL

The text of the original endorsement has been corrected with the text of the corrigendum (released today’s date)

H.K. O’CONNELL J.:

Overview

[1] Mr. Igbinoba seeks to have his committal for trial quashed, arguing that the learned preliminary inquiry justice erred in fact and law in committing the accused to stand trial in the absence of evidence of identification.

[2] Before I review the submissions of counsel I will overview the evidence that was presented at the preliminary inquiry and overview the findings of the preliminary inquiry judge.

The Charges and Court History

[3] Mr. Igbinoba is charged with touching the complainant for a sexual purpose while being in a position of trust or authority over a person with a mental or physical disability, contrary to section 153.1(1) of the Criminal Code. He is further charged that he committed a sexual assault on the same complainant contrary to section 271 of the Criminal Code.

[4] Both offences are said to have occurred between May 1, 2010 and May 13, 2012.

[5] Mr. Igbinoba made his first appearance at court on November 29, 2012 and was remanded for a bail hearing. On December 3, 2012 he was admitted to bail.

[6] The preliminary inquiry was conducted on the following dates: September 9, 10 and 27, 2013. Judgment on committal was rendered on February 27, 2014.

[7] The date of September 9, 2013 consisted substantially of argument and evidence regarding whether or not the video statement of the complainant could be tendered pursuant to section 715.1 of the Criminal Code, and taken to constitute the evidence of the plaintiff in-chief. The officer in charge, Detective Stoby, and Ms. Brandy Wall gave evidence on the 715.1 application.

September 9, 2013: Evidence of Ms. Brandy Wall

[8] It was agreed that the evidence of the Crown witness, Ms. Wall, which was led on September 9, 2013, was receivable both at the section 715.1 voir dire and the preliminary inquiry proper[^1].

[9] Ms. Wall’s evidence on September 9, 2013 is relied upon by Ms. Shirtliff-Hinds and Ms. Thompson on the certiorari application.

[10] Ms. Wall testified that she worked at V[…], which is an agency that deals with clients with developmental disability and a dual diagnosis. Ms. Wall had worked there for some seven years, commencing in 2006. [^2]

[11] Ms. Wall started at the V[…] location in May 2012. She worked with the complainant at this location and, indeed, had known the complainant since her start of employment with the agency in 2006. Ms. Wall testified that the complainant had only been at the V[…] location for about a year, give or take, prior to May 2012.

[12] Ms. Wall testified that she did not know when the accused started his employment at V[…]. In May 2012, when Ms. Wall took on the responsibility of running the V[…] centre, the accused was not working there. She had no idea when he otherwise started his work at that location.

[13] Ms. Wall testified as to what the workers at the home did.

[14] Ms. Wall had met the accused “once when I was introduced to the team to be taking over”[^3]. She did not know the exact date that she met him, but testified that “it would’ve been in May, 2012, of last year”[^4].

[15] Ms. Wall said that because of the allegation made against the accused, he would have been pulled off shift until the police conducted an investigation, which is the policy within V[…] [^5].

[16] Mr. Igbinoba was already exposed to the policy when Ms. Wall started at V[…] in May 2012.

The Court Date of September 10, 2013

[17] On September 10, 2013, no evidence was called. Issues respecting the section 715.1 application were canvassed. The matter was then adjourned to September 27, 2013.

The Court Date of September 27, 2013

[18] On that date, the learned justice ruled that the videotaped statement of the complainant, taken on July 2, 2012, was admissible at the preliminary inquiry pursuant to section 715.1 of the Code[^6].

[19] The Crown relied completely on the videotaped statement of the complainant, which was made on July 2, 2012, as the evidence of the complainant at trial, in chief.

[20] Defence counsel cross-examined the complainant over the span of some twenty-six pages and completed the cross-examination on September 27, 2013.

The Statement of the Complainant July 2, 2012 as Evidence

[21] In her statement the complainant advised the officers that she was present “because a staff was touching me”[^7]. She stated that “there was a staff that was touching me in the group home”[^8].

[22] She identified the ‘staff’ as “Terry”[^9]. She described what Terry did to her. For the purposes of these reasons I need not describe the actions, as the committal is not being challenged on the basis of a failure of the Crown to lead some evidence of the offences alleged, but only on the basis of a failure of the Crown to lead evidence of identity sufficient for committal.

[23] The complainant said in her statement that she was sexually assaulted in the laundry room in the facility, and in the van that the accused took her out in. Some of the assaults occurred around a Tim Horton’s.

[24] The complainant testified that she had been at the V[…] home for “maybe a year”[^10] at the time that she gave her statement.

[25] The complainant testified that she did not want Terry to come back and that she didn’t even want to be in that group home[^11]. The complainant, when asked if Terry was there anymore, said “no he got fired, but he could come back”[^12].

[26] The complainant stated that Terry was black[^13].

Cross-Examination

[27] The complainant testified that she went to the laundry room more than once with Terry[^14]. Terry would be the one who would normally drive her to Tim Horton’s[^15].

Re-Examination[^16]

[28] The complainant testified that when she told the police what happened, Terry stopped working at the home.

Reasons for Committal

[29] Although the matter was adjourned to January 31, 2014, it would appear that the Crown tendered no further evidence. The matter was then adjourned to February 27, 2014 for the preliminary inquiry justice’s reasons.

[30] The justice identified the sole issue before him as whether the Crown had proffered evidence of identity sufficient for committal.

[31] The learned justice reviewed the evidence of the complainant, containing as it did, the evidence that her assailant “was a black, male, a personal support worker working at the V[…] home where she was a resident, who went by the name of “Terry”[^17].

[32] The learned justice noted that there was no opportunity for in dock identification, given that the complainant testified via closed circuit TV, pursuant to section 486 of the Criminal Code. However, he stated:

It is clear from her evidence that she knew Terry well and had frequent contact with him. All of the sexual assaults that occurred, on her evidence, were at the hands of Terry and no one else while he was at work at Ms. Skuce’s residence, the special needs home of V[…].

[33] The learned justice overviewed the evidence of Ms. Wall. He stated that the complainant identified Terry Igbinoba in dock as the personal support worker whom she met in May 2012 at V[…]. The justice further noted that Ms. Wall testified that by the time she took over as the director at the home, Terry Igbinoba was no longer working there. He had been suspended.

[34] In the context of the evidence of the complainant and Ms. Wall, the learned justice said:

I am satisfied that the evidence that I have reviewed is sufficient evidence of identity in this matter. I am mindful that this evidence is circumstantial and as per R. v. Arcuri and R. v. Charemski, I am permitted and required to engage in a limited weighing of the evidence to determine if the evidence is sufficient to support the inferences that the Crown would wish a jury to draw to sustain a verdict of guilt. At this preliminary inquiry, that inference is as follows; that the identity of the alleged assailant, the male black, V[…] employee that worked in Ms. Skuce’s special needs home at the time of the sexual assaults, was identified as an employee of V[…] and the assailant by Ms. Skuce named “Terry”, is Terry Igbinoba, the individual before the court, the accused identified by Ms. Wall in court, as the V[…] employee she had met at the same home in May 2012 who was suspended for allegations of sexual assault involving Ms. Skuce. I am of the view that there is sufficient evidence, as set out above, to support this inference of identity such that a jury, properly instructed on the law, could reasonably return a verdict of guilt beyond a reasonable doubt.

Position of the Applicant

[35] Ms. Shirtliff-Hinds, in a succinct and compelling argument, notes that the case for identification was entirely circumstantial. There was no identification of the accused by the complainant, much less a photo line-up having been conducted.

[36] In addition, the reasons of the learned justice manifest factual error, given counsel says that there was no evidence of in dock identification by the witness, Ms. Wall, of the accused, nor was there evidence that the accused was a personal support worker at V[…].

[37] These factual errors in the reasons of the learned justice, combined with the complete absence of a connection between the accused at bar and the perpetrator of the offences, makes committal for trial unsound. This should have led to the discharge of the accused at the preliminary hearing.

[38] Referencing the decision in R. v. Arcuri, Ms. Shirtliff-Hinds notes that at paragraph 23, the Supreme Court reminds that in a case where no direct evidence is led as to each essential element of an offence, the court must consider whether an inference can be drawn from the circumstantial evidence. In cases that rest on circumstantial evidence, the judge must engage in a limited weighing of the evidence given the ‘inferential gap’ between the evidence and the matter to be established.

[39] Counsel argues that the inferential gap is not bridgeable in the case at bar. The fact that Ms. Wall met Mr. Igbinoba once in May 2012 cannot assist the Crown, given the fact that Ms. Wall never identified the person in court as the person that she testified that she had met in May 2012.

[40] The preliminary justice made a factual error in suggesting that an in dock identification was ever made by Ms. Wall. This is highly significant.

[41] Counsel referenced McCombs J.’s decision in R. v. Herrera[^18], which sustained the discharge of the accused at his preliminary inquiry. Like our case, identification was the central issue in the Herrera case.

[42] In Herrera, McCombs J. noted further that the only evidence of identification was the complainant’s evidence as to the identification of the accused as the perpetrator made in dock some seven years after the offence. Justice McCombs stated: “viewed fairly the totality of her evidence on the issue of identity went no higher than that the respondent looked familiar.” The complainant had also testified that “the police told me they got him so how will I know, I don’t remember the guy.”

[43] Ms. Shirtliff-Hinds submits that the case at bar is built on a more troublesome foundation for committal, given the complete absence of in dock identification of the accused, much less any identification.

[44] Counsel also relied upon the case of R. v. Williams[^19]. In that case, Nordheimer J. upheld the discharge of the accused, even though, unlike the case at bar, there were many more descriptors with respect to identification. Applying the principles in R. v. Charemski, Nordheimer J. agreed with the preliminary inquiry justice that a jury properly instructed and acting reasonably, could not convict the accused. Nordheimer J. reiterated, however, that the reviewing court is not to substitute its opinion on the sufficiency of the evidence for that of the preliminary inquiry judge[^20].

[45] In R. v. Vigneswaran[^21], Greene J. of the Ontario Court discharged the accused in a vicious robbery case, where the only live issue was identification. Turning to the issue of whether there was some evidence of identification of the perpetrator, the learned justice turned her mind to whether there was some evidence of a positive identification and, if not, whether having regard to the evidence as a whole, there was some evidence of identification sufficient to lead a reasonable jury to convict. Greene J. held that the victim had not made a positive identification of his assailant in a photo line-up. Turning to whether the evidence as presented constituted some evidence of identification, Greene J. Greene held that it did not.

[46] Rounding out her review of the law, Ms. Shirtliff-Hinds referenced R. v. Brooks[^22], wherein the justice sitting on the certiorari application noted that only one witness identified the accused in court as being a person seen on the date of the offence, but did not identify that person as the assailant. Even though the same witness did pick the accused out of a photo line-up some two months after the offence, the identification evidence tendered went no further than the person looked similar to that of the perpetrator. Finding that the identification evidence did not meet the test of sufficiency as prescribed in United States v. Sheppard, the learned justice therefore issued the requested order for certiorari and quashed the committal.

[47] Brooks, argues counsel, is a case of a ‘missing link in identification’, which is the same scenario in the case at bar.

[48] Ms. Shirtliff-Hinds also, in her submissions in anticipation of those of the Crown, set out to distinguish the cases relied upon by the Crown, noting that R. v. Chandra was a case that dealt with a ruling on a voir dire as to what evidence was to go to a jury. That case involved the admissibility of a statement made by the accused wherein he identified himself by complete name and particulars of his address.

[49] In R. v. D.B., the complainant identified the person as her assailant.

[50] In R. v. Thompson, the fact pattern is radically different from the case at bar. None of the cases submitted by the Crown assist the court on this application, argues Ms. Shirtliff-Hinds.

Submissions of Crown Counsel

[51] The Crown relied upon its factum in support of its argument.

[52] The Crown also submitted that counsel for the applicant admitted facts in her factum that established that the person before the court at the preliminary hearing was the applicant and that he had been suspended from his employment because of the levelling of criminal charges.

[53] The complainant’s evidence at the preliminary inquiry, consisting of the section 715.1 statement proffered in chief and supplemented by the complainant’s evidence at trial, provided the evidentiary basis for the following facts[^23]:

(a) The complainant saw ‘Terry’, the person she said was the perpetrator, every day and that he worked at the group home, V[…];

(b) When the complainant told the police what happened to her, ‘Terry’ stopped working at the group home and was fired;

(c) That ‘Terry’ was the person who sexually assaulted her and no one else did; and,

(d) That ‘Terry’ was a black male.

[54] The evidence of Ms. Wall provided the evidentiary basis for the following additional facts:

(a) When asked if Ms. Wall knew the complainant before the court, Ms. Wall said she met him once in May 2012 when she was introduced to the staffing team at V[…], where Ms. Wall was taking on new duties as the director of the home; and,

(b) That when Ms. Wall actually took over at the V[…] home, the accused had been “pulled off shift” because of the allegations made by the complainant.

[55] Referencing the evidence of Ms. Wall, counsel argues that Ms. Wall was testifying about someone that she clearly knew, namely the accused. It is submitted that Mr. Igbinoba was the accused that Ms. Wall was referring to in court, who she knew as ‘Terry’.

[56] Crown counsel referenced various cases to argue that in the absence of a photo line-up and in the absence of a traditional in dock identification, the Crown is still able to substantiate in evidence some evidence of identification. In R. v. Vasquez- Rivera[^24], the Court of Appeal noted “that the identification evidence provided by the complainant, when considered in the context of the entire proceedings, was sufficient to support the jury’s verdict.” The court in Vasquez further noted that no issue was raised during the evidence of the complainant of the identification of the perpetrator.

[57] In addition, in Vasquez, the complainant was well known to the assailant, and although not providing the usual ‘that is the man’ type of evidence in court, the complainant also knew her assailant by his name “Luis” and by “Mr. Vasquez-Rivera.”

[58] In R. v. Thompson,[^25] Greene J. held that a witness who referred to the accused in their testimony is some evidence for a jury to consider to draw the inference that the accused before the court is the person who committed the offence.

[59] Greene J. stated:

I appreciate that the term ‘the accused’ can be ambiguous and may not necessarily mean that the officer was identifying the accused before the court. It is, however, one possible inference that could be drawn and therefore it is some evidence that Mr. Thompson was the person found in the apartment with the cocaine on December 14, 2011.[^26]

[60] Given the factors in Vasquez and Thompson, Crown counsel submits that Ms. Wall provides as an ingredient in the totality of the evidence before the preliminary inquiry justice, some evidence that Mr. Igbinoba, the accused before the court, was the same person that she met in May 2012.

[61] Ms. Wall also testified that Mr. Igbinoba had worked for the agency and had been suspended pending the allegations as made by the complainant, which when placed in the stew of evidence, provided some evidence that the accused was the person that the complainant identified as Terry, the person who sexually assaulted her.

[62] Crown counsel also submits that similarity of names can provide circumstantial evidence of identity. In R. v. Chandra[^27], the court said that mere similarity of name affords some evidence of identity of the person before the court.

[63] The Court of Appeal for Ontario adopted the reasoning in Chandra, in R. v. D.B., 2007 ONCA 368, [2007] O.J. No. 1893.

[64] Given that the applicant in the case at bar has a name similar to that of the accused, namely his first name ‘MacTerry’, that includes the name ‘Terry’, this constitutes some evidence of identification on a circumstantial level.

[65] The Crown argues that when considered in the context of the whole of the evidence, as tendered by Crown counsel at the preliminary hearing, there is some evidence for which the preliminary inquiry justice was entitled to rely upon to infer some evidence of identification.

Findings

[66] This case is one that completely rides on the sufficiency of circumstantial evidence of identification and therefore attracts the application of R. v. Arcuri and R. v. Charemski.

[67] The learned justice recognized the relevant applicability of those cases. It is his reference to the inference drawing which is under attack on this review.

[68] The real necessity for me is to evaluate, on review, whether the inferential gap has been filled with some evidence that would allow a reasonable jury to return a verdict of guilt on the evidence before the learned justice.

[69] I will start out by noting that Ms. Shirtliff-Hinds made it plain that everything was in issue at the preliminary hearing, and put the Crown to the strict proof to substantiate committal. However, I do note that after the complainant’s evidence was tendered via the section 715.1 route, and in viva voce testimony, that defence counsel did not suggest that the acts that the complainant said were perpetrated on her were not subject to any argument that they did not constitute the essential physical acts to make out the offences as alleged.

[70] The only live issue was that of whether the Crown had tendered some evidence of identification, which was clearly a sine qua non for committal.

[71] I therefore reject the argument of the Crown that characterizations in her factum rise to that of concessions. First, it is trite that the factum is legal argument on this application and is not evidence. Secondly, it would be fundamentally unfair to elevate factum commentary to proof of an issue in contest, without a clear indication that that is what it is.

[72] I have considered the evidence of the only two witnesses tendered by the Crown, namely the complainant and Ms. Wall.

[73] I have also considered that the preliminary inquiry justice misstated that there was evidence that the applicant was a personal support worker and that Ms. Wall had done an ‘in dock’ identification. However, I find that the misstatements of the evidence do not arise to being material.

[74] In relation to the issue of the applicant being a personal support worker, there was evidence that a person named ‘Terry’ was staff at the facility where the complainant was, who carried out duties that are care related duties for residents. This is synonymous with what a personal support worker does.

[75] In relation to the finding by the preliminary inquiry justice that Ms. Wall identified the applicant ‘in dock’, the applicant did not do so in the classic sense of identifying the person to whom she was speaking by reference to the person before the court ‘in dock.’ However, it is clear, and I accept that Ms. Wall was referring to the applicant when she was asked, “do you know Mr. Igbinoba before the court”, because she answered, “I met him once when I was introduced to the team taking over.” (Emphasis added)

[76] This exchange provides some evidence that Ms. Wall was referring to the applicant who was clearly, as the record shows, before the court. Although it is not a classic ‘in dock’ identification, it is clearly some evidence of identification of the person of the applicant, before the court, being the person that Ms. Wall met once in May 2012 at V[…].

[77] Combined with the name of the applicant, the evidence of the complainant and the fact that the person before the court had been suspended when Ms. Wall took on her duties as Director at the V[…] location where the complainant said she was sexually assaulted, this template of testimony provided some substantiation in the totality of the evidence for the preliminary inquiry justice to bridge the inferential gap in identification.

[78] As Watt J., as he then was, said in Her Majesty the Queen and Michael Scott and Derrick Delpeache, [2003] O.J. No. 90 (Sup. Ct. Justice):

The nature and extent of the authority of the superior court of criminal jurisdiction sitting in review of an order to stand trial after a preliminary inquiry is familiar and well-travelled ground. There is a single basis: lack of jurisdiction. See, for example, Patterson v. The Queen 1970 180 (SCC), [1970] S.C.R. 409, 411 per Judson J.; and Re Martin, Simard and Desjardins v. The Queen; Re Nichols v. The Queen (1977), 1977 1383 (ON CA), 20 N.R. 380, 41 C.C.C. (2d) 336, 338 (Ont. C.A.) per Estey C.J.O. affirmed sub nom re Martin, Simard and Desjardins v. The Queen (1978), 1978 30 (SCC), 41 C.C.C. (2d) 342 (S.C.C.).

When an applicant moves to quash an order to stand trial on the ground that the order was made without the evidentiary foundation required by s. 548(1), a judge of the reviewing court is not entitled to substitute his or her own views of the sufficiency of the evidence to meet the standard of s. 548(1) for the conclusion reached by the provincial court judge. There is not, in other words, a de novo consideration of the standard of s. 548(1) by a different judicial officer. The issue is not whether the reviewing judge would have reached the same conclusion as the judge who presided, but rather, whether the judge at the preliminary could have reached the decision that she or he did.

In cases like this, the reviewing judge is confined to considering whether there was any evidence before the preliminary inquiry judge upon which that judge, acting judicially, could form an opinion that the evidence was sufficient to order the person charged to stand trial. See, Re Martin and R: Re Nichols and R. (1977), 1977 1383 (ON CA), 20 O.R. (2d) 455, 486-7 (C.A.), per Estey C.J.O. affirmed, 1978 30 (SCC), [1978] 2 S.C.R. 511, 41 C.C.C. (2d) 342; R. v. Tuske (1978), 26 Chitty's L.J. 321, 322 (Ont. C.A.), per Martin J.A.; R. v. Seguin (1982), 1982 5527 (ON CA), 31 C.R. (3d) 271, 276-7 (Ont. C.A.) per Martin J.A.; and R. v. Chambers (1985), 1985 169 (ON CA), 9 O.A.C. 228, 230-1 (Ont. C.A.), per Martin J.A.

[79] Applying the test as articulated by Watt J., as he then was, and having regard to my jurisdiction on this review of the committal, I find that there is some evidence upon which a trier of fact could return a verdict of guilty as against the accused.

[80] I likewise note that this is not appellate review of a conviction. In such a case the crown would have to show that the only reasonable inference available to the trier of fact was that the person before the court was the same person who committed the offence.

[81] That is not the test for committal. There must only be some evidence upon which a reasonable jury could infer identification, such that the jury could return a verdict of guilt. The ultimate drawing of the only reasonable inference to be drawn is not for me to consider on this application.

[82] The application is therefore dismissed.

[83] I would be remiss not to compliment Ms. Shirtliff-Hinds on her very skillful and concise argument.

O’CONNELL J.

Released: November 26, 2014

CORRIGENDA

1. Publication Ban – the section number, previously set out as 486.1(a), has been corrected to 486.4(1)(a).

[^1]: Preliminary Inquiry Transcript, September 9, 2013 at page 58.
[^2]: Preliminary Inquiry Transcript, September 9, 2013, at page 40 and 41.
[^3]: Preliminary Inquiry Transcript, September 9, 2013 at page 80.
[^4]: Preliminary Inquiry Transcript, September 9, 2013 at page 80.
[^5]: Preliminary Inquiry Transcript, September 9, 2013, at page 82.
[^6]: Preliminary Inquiry Transcript, September 27, 2013, pages 23-31.
[^7]: Statement of Complainant, July 2, 2012, page 13, lines 25-29.
[^8]: Statement of Complainant, July 2, 2012, page 15, lines 29-30.
[^9]: Statement of Complainant, July 2, 2012, page 16, lines 11-15.
[^10]: Statement of Complainant, July 2, 2012, page 20, lines 16-31.
[^11]: Statement of Complainant, July 2, 2012, page 22, lines 15-22.
[^12]: Statement of Complainant, July 2, 2012, page 22, line 27 to page 23, lines 1-5.
[^13]: Statement of Complainant, July 2, 2012, page 47, line 8.
[^14]: Preliminary Inquiry Transcript, September 27, 2013, page 45, lines 7-10.
[^15]: Preliminary Inquiry Transcript, September 27, 2013, page 46, lines 30-32.
[^16]: Because the concession that the evidence of Ms. Wall would apply to both the section 715.1 voir dire and the trial, was made during the evidence of Ms. Wall, the Crown asked Ms. Walls more questions at the end of the cross-examination, under the rubric of re-examination, although it wasn’t classic re-examination.
[^17]: Reasons for Judgment, February 27, 2014, page 2.
[^18]: [2008] O.J. No. 3040 (S.C.J.).
[^19]: [2012] O.J. No. 6002 (S.C.J.).
[^20]: See R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601.
[^21]: [2011] O.J. No. 1546 (Ont.C.J.).
[^22]: [1996] O.J. No. 1737 (S.C.J.).
[^23]: See Respondent’s factum, pages 2 and 3.
[^24]: R. v. Vasquez-Rivera, [1999] O.J. No. 1955.
[^25]: R. v. Thompson, 2013 ONCJ 299.
[^26]: R. v. Thompson, at paragraph 17.
[^27]: R. v. Chandra, 1975 1294 (BC CA), [1975] B.C.J. No. 1036, (B.C.C.A).