CITATION: R. v. Berhe, 2016 ONSC 6624
COURT FILE NO.: 84/15
DATE: 20161024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
YOHANNES BERHE
Appellant
M. Sabat, for the Respondent
S. Wilson, for the Appellant
HEARD: September 22, 2016
s.a.Q. akhtar j.
[1] On appeal from the convictions entered by Justice Cathy Mocha of the Ontario Court of Justice dated 15 October 2015.
FACTUAL BACKGROUND AND OVERVIEW
[2] The appellant was found guilty, after trial, of the offences of Indecent Act and Mischief Under $5000 on 15 October 2015. He was given a suspended sentence and two years probation, after serving a period of five months pre-trial custody. He appeals his conviction on the ground that the trial judge erred in her treatment of the identification evidence.
The Findings of the Trial Judge
[3] On 13 July 2012, sometime between 1 p.m. and 1.30 p.m., Paul Angrove, a TTC employee working in the subway janitorial department, boarded a Dundas West subway train heading eastbound, on his way to work. After taking a seat, he noticed a male standing at the end of the car near the pass-through doors, approximately 10 to 15 feet away. The male was someone that Angrove was sure that he had seen before. Angrove observed that the man was holding his penis with his right hand and masturbating whilst staring at a woman standing approximately five feet away. Angrove now realised that he had seen the same man on two previous occasions.
[4] In 2009, a woman had approached him, whilst he was cleaning a subway platform, to inform him that a man had been following her on a train and masturbating. After taking the woman to the subway collector’s booth to contact the authorities, the man was seen coming up from the subway platforms, and she pointed him out. He was wearing a blue coat and pants, carrying a briefcase and newspapers and wore a beard. Angrove chased him down the street but did not catch him. The interaction lasted approximately four to five minutes.
[5] In 2010, Angrove was again on a subway platform with his work partner when he observed the same man masturbating in the doorway of a subway car. On this occasion, Angrove and his partner sounded the alarm and apprehended the man, who was subsequently arrested. He was later identified as the appellant. Angrove’s interaction with the appellant on this occasion lasted approximately half an hour.
[6] On 13 July 2012, Angrove testified that the man on the train appeared to recognise him and began to put away his penis whilst reaching for his bag. The man exited the train at the next stop and ran. Mocha J. found that the entire interaction took approximately two and a half minutes. Angrove remained on the train for an additional stop but alighted at Ossington subway station to notify TTC guards. When waiting for a supervisor and the police to arrive, Angrove saw the man coming up an escalator. At this point, the period of time that had elapsed since Angrove had exited the subway at Ossington was between 10 and 20 minutes. Angrove followed the man and took two pictures. The man left Ossington subway station and was arrested by the police approximately 50 feet from the corner of Ossington and Bloor Street. When taken to the police station, he was identified as the appellant.
[7] At the conclusion of the trial, the judge was satisfied beyond a reasonable doubt that the man Angrove had seen on the subway train was the man arrested by the police, the appellant, and entered findings of conviction on both counts, staying the Mischief Under $5000 charge pursuant to the principles of Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
Identification
[8] The sole ground of appeal in this case is that Mocha J. erred in her treatment of the identification evidence by finding Angrove’s ability to identify the appellant as recognition rather than eyewitness identification. By doing so, the appellant argues that the judge failed to address any of the inherent frailties of eyewitness identification.
[9] The risks present when relying on eyewitness identification are long acknowledged in Canadian case law. Eyewitness identification requires a special scrutiny before providing the basis for a conviction. The jurisprudence is littered with cases where persons have been wrongly convicted due to mistaken identification. The fact that a witness is genuinely convinced that their identification is accurate does not mean that they are correct. When the Crown’s case depends entirely or substantially on eyewitness identification, the trier of fact is required to closely examine the circumstances that lead to an identification: see R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at paras. 13-15; R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, at para. 19 R. v. Bardales, 1996 CanLII 213 (SCC), [1996] 2 S.C.R. 461; and R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at paras. 52-53.
Did Mocha J. Err?
[10] I reject the appellant’s argument that Mocha J. treated the case as one of recognition. From the outset of her analysis, Mocha J. made it clear that “[t]he main issue here is identification and the court must be mindful of the frailties with eyewitness identification. The mind can play tricks and sometimes fill in blanks, the person is not aware that that is what’s happened” (emphasis added). It is clear that Mocha J. cautioned herself of the risks and frailties of eyewitness identification when proceeding to judgment. Mocha J. also referred to the potential pitfalls of Angrove’s identification, such as the break in time between his sightings of the man on the train and the possibility that Angrove may have simply formed his belief that the appellant was the same man because of his prior dealings.
[11] In R. v. Benson, 2015 ONCA 827, 333 C.C.C. (3d) 180, Tulloch J.A., at para. 25, provided a useful reminder that recognition evidence is simply a form of identification evidence which is still subject to the caution surrounding the frailties of eyewitness identification. It is the level of familiarity between the witness and an accused that enhances the reliability of a particular identification: R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39.
[12] The appellant relies on Jack, a robbery case, to bolster his argument that Mocha J. applied the wrong principles. There, the court found that the circumstances of that case meant that the identification was wrongly characterised as recognition. The previous encounters between the appellant and the identifying witnesses were brief and made in the normal course of business, so there would be no reason for the witnesses to recall any distinctive features possessed by the robber. Additionally, the robbery was both brief and stressful, giving very little time for the victim to observe the suspect’s features.
[13] This case could not be more different. Mocha J. found the prior encounters to be of significant length and meaning: the 2010 incident alone lasted half an hour and resulted in the arrest of the appellant. Nor could Angrove’s previous encounters with the appellant be described as routine: on both occasions, the appellant was suspected of masturbating in public. Unlike Jack, there would be every reason for Angrove to take note of the appellant’s features and appearance.
[14] Finally, Mocha J. noted that Angrove’s evidence described not merely a fleeting glimpse but a two to three minute unobstructed subway ride where the appellant stood in close proximity to Angrove and, at one point, stared directly into Angrove’s eyes. The detailed description provided by Angrove matched that of the appellant, notwithstanding a small inaccuracy regarding his height; this was a discrepancy referenced by and taken into account by Mocha J., whose findings were supported in the evidence and cannot be interfered with: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 183-184.; R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at p. 663; and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-39.
[15] Significantly, the appellant was not convicted solely on Angrove’s identification evidence. In finding guilt beyond a reasonable doubt, Mocha J. relied upon Angrove’s testimony that the man on the train appeared to recognise him; the proximity between the offence and the appellant’s re-appearance at Ossington subway station; and the items found on the appellant after his arrest, including the newspaper, baby oil and the toilet paper concealed in his right pant leg. These additional pieces of evidence went a long way in confirming the identification evidence.
[16] For the reasons set out above, I find no errors to have been committed and the appeal is dismissed.
S.A.Q. Akhtar J.
Released: 24 October 2016
CITATION: R. v. Berhe, 2016 ONSC 6624
COURT FILE NO.: 84/15
DATE: 20161024
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
YOHANNES BERHE
Appellant
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.