COURT FILE NO.: CR-16-70000167-0000 DATE: 20170330 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – MICHAEL CASEY Accused

Counsel: Emma Evans, for the Crown Victor Giourgas & Danielle Guido, for the Accused

HEARD: January 30 – February 10, 2017

B.A. ALLEN J.

REASONS FOR JUDGMENT

BACKGROUND AND OVERVIEW

[1] Michael Casey was charged in 2015 with aggravated assault, assault with a weapon and possession of a weapon, a knife.

[2] The basic facts are that Mr. Casey and others were partying with friends and acquaintances at an apartment over two days. The victim of the assault, Michael Greer, was present over the two-day period.

[3] Mr. Greer was the only witness who testified about what happened at the party. The other witnesses the Crown called were police officers involved in investigating the matter before the court and officers who had investigated prior incidents at the apartment. The defence, as it is entitled to do, called no evidence.

[4] Mr. Greer testified that two couples and another couple, unknown to him, were also in attendance along with Mr. Casey and Ms. Christina David. Other people, unidentified by Mr. Greer, came and went over the two days.

[5] Mr. Greer testified everyone was doing various drugs and drinking alcohol at the party. Mr. Greer admitted to drinking and doing drugs from his arrival and throughout his time in the apartment.

[6] Mr. Greer insists it was Mr. Casey that stabbed him in the back and shoulder. He sustained serious injuries to his spine which rendered him paralyzed. He developed an infection in his right leg which ultimately resulted in an amputation below the knee.

[7] There is no dispute that a crime was committed, that an aggravated assault with a knife was committed against Mr. Greer. The sole issue in this case is whether Crown counsel has proven beyond a reasonable doubt that Mr. Casey was the person who committed the crime.

THE LAW ON IDENTIFICATION EVIDENCE

[8] There are several possible sources of identification evidence in this case. The Crown seeks to prove the identity of the assailant through eyewitness identification, surveillance video footage, stills of a person depicted in the surveillance, a police photo line-up and an in-dock identification.

[9] The dangers inherent in identification evidence are well-known. This type of evidence is inherently unreliable. It is well-established that the frailties of eyewitness identification have resulted in wrongful convictions and that even well-meaning witnesses may misidentify individuals: R. v. Miaponoose; R. v. F.A., at para. 39; and R. v. Quercia, at 389.

[10] Some factors applicable to assessing the strength of identification evidence are:

• distinctive features or appearance of the suspect;
• previous acquaintance with the suspect;
• opportunity to observe the suspect;
• the distance of the witness from the suspect; and
• focused attention or any distraction by the witness.

[11] Courts have held that a person with no familiarity with the appearance of the accused cannot testify on the identification of the accused in a video: R. v. Leaney. Courts have made a distinction between identification of a stranger by a witness and identification by a witness acquainted with the suspect, the difference between identification and recognition evidence. It has been said that, “the level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence”: R. v. Olliffe, 2015 ONCA 242, at para. 39; R. v. Campbell, 2017 ONCA 65, at para. 10; E.G. Ewaschuk, “Identification,” (1988) 16:7068 Criminal Pleadings and Practice in Canada, p.6.

[12] Recognition evidence is evidence where an assailant is recognized as the accused by a person who knows or is familiar with the accused. It is a form of identification evidence. The Ontario Court of Appeal has held that the same concerns as apply to other types of identification evidence, and the same cautions, must apply in regard to recognition evidence.

[13] The Ontario Court of Appeal has pointed out that the crucial difference between recognition cases and cases involving identification by a witness of a complete stranger is affected by “the timeline of the identification narrative”:R. v. Charles, 2016 ONCA 892, at paras. 50-51. This refers to the immediacy or closeness in time of the recognition in relation to the commission of the offence.

[14] The strength of recognition evidence can be demonstrated through certain indicia of familiarity, such as:

• the length of the prior relationship between the witness and the suspect;
• the circumstances of the prior relationship between the witness and the suspect; and,
• the timing of the contact between the witness and the suspect prior to the event where the witness recognized the accused.

R. v. Brown

[15] In-dock identification involves a witness identifying the person sitting at the defence table or in the prisoner’s dock as the assailant involved in the crime before the court. The Ontario Court of Appeal affirmed the longstanding view that in-dock identification should attract little weight: R. v. Izzard and R. v. Reitsma, at paras. 56-59. The Supreme Court cautioned that: “…it is important to remember that the danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere”: R. v. Hibbert, 2002 SCC 39, at para. 50. The danger lies in the possibility of the witness identifying the accused only because he is the person they see in court sitting in the place assigned for an accused.

[16] Courts have made a distinction between the value of identification evidence that comes from a previous fleeting observation or first identification in court, on one hand, and, on the other hand, identification evidence that arises in the context of previous encounters with the accused in relation to in-court identification.

We also note that this case is quite different from the classic case where the in-dock identification is central to the Crown's case and where, based on a fleeting observation, the witness confidently identifies a stranger for the first time in court. Here, the appellant was caught fleeing the scene and the in-dock identification was only one of several pieces of evidence linking the appellant to the guns found in the car. In addition, Mr. McLeod had had considerable contact with Doug over a summer and had given police a description of Doug that resembled the appellant.

R. v. Muir, 2013 ONCA 470, at para.11

EVIDENCE ON ACTIVITIES IN APARTMENT 101

Who, Where and When?

[17] The incident took place at 1275 Danforth Ave., apartment 101. Ms. David’s father was the tenant but did not reside there. It appears Ms. David was the occupant of the apartment at the time of the party. The partying lasted two days, from the early afternoon of February 28 to the evening of March 1, 2014.

[18] Mr. Greer testified that he arrived on February 28th at about 4:30 p.m. He described the attendees as a random grouping of people who arrived at the apartment at various times. People came and left throughout the time Mr. Greer was there. A couple, Nick and Stacey, another unknown couple, and Ms. David and Mr. Casey were present during the time Mr. Greer was at the apartment. Mr. Casey was the only black person present. The others were white. It appears that Mr. Casey was in a close relationship with Ms. David. Mr. Greer testified he had known Nick and Stacey for two years. He had seen Ms. David briefly once on an earlier occasion and had never met Mr. Casey before.

[19] Mr. Greer testified that he thought Mr. Casey’s name was Michael Price because he overheard a conversation at the party between Mr. Casey and Ms. David from which he drew that conclusion. He testified he later realized he was wrong and that the name of the person at the party was Michael Casey.

What Happened Before the Incident?

[20] Mr. Greer admitted to consuming a substantial quantity of drugs and alcohol over the two days. He admitted to being a crack addict. He testified he did crack cocaine and drank beer throughout his time at the party. At the party, he injected heroin once for the first time in his life. As will be seen, there is a question whether he also injected another opiate just before he was stabbed. Mr. Greer testified others were consuming alcohol, heroin, crack and Fentanyl.

[21] During the evening of February 28th Mr. Greer borrowed $15.00 from Ms. David. To induce her to loan the money, he promised to pay her back $50.00. He said he was supposed to be receiving $80.00 the next day from his son’s mother and he would use a portion of that money to reimburse Ms. David. He did not receive the $80.00 and he never did repay Ms. David.

[22] Mr. Greer was homeless at the time and made money for drugs by panhandling. He testified he left the party on February 26th to panhandle around 10:00 a.m. because he needed more crack. He panhandled alone up and down Danforth Ave. for a couple of hours. He returned in the early afternoon. He bought some crack with the money he raised and gave ten dollars’ worth to Ms. David, he said, until he got the $80.00 the next day. Mr. Greer said Ms. David seemed okay with the arrangement. Mr. Greer testified that Mr. Casey and others were present when he made the deal with Ms. David.

[23] Sometime later that day, Mr. Greer and Mr. Casey left the apartment to go to a convenience store and the liquor store. Mr. Greer stated that before they left the apartment, Mr. Casey and he got into an argument. Mr. Casey shoved him and accused him of sleeping with Ms. David. Mr. Greer said he denied it and laughed it off. Before they went to the liquor store Mr. Greer injected heroin for the first time in his life.

[24] Mr. Greer testified he thought the issue about Ms. David was resolved until it was brought up again when he and Mr. Casey left the apartment together. They were gone about a half hour. After the trip outside he also thought the dispute was over.

[25] Mr. Greer testified that after he returned from the outing with Mr. Casey, he overheard Stacey or Ms. David say he had not paid back the money. He said he then heard Mr. Casey respond that if he does not pay back the money he will stab him. He never spoke to Mr. Casey after that. Mr. Greer said everyone was still at the apartment and Nick was sleeping at the time. Mr. Greer said he thought Mr. Casey was emotional because he and Ms. David were arguing. Mr. Casey asked everyone to leave the apartment but no one left.

What Happened During the Incident?

[26] Mr. Greer testified that the stabbing occurred on March 1st between 7:00 and 8:00 p.m. He said he was intoxicated by this time as he had consumed beer, heroin and a large quantity of crack. Present at the apartment at the time, besides he and Mr. Casey, were Ms. David, Nick and Stacey and the other couple.

[27] Mr. Greer testified that he was standing near a coffee table in the living room drinking a beer and talking to the male of the unknown couple. The next thing he knew is that he was on the floor with both legs “flaring” uncontrollably. Mr. Greer indicated that before he was attacked he was preparing to have another opiate injected. In-chief he testified he is not sure whether he actually injected the drug before he found himself on the floor. On cross-examination, he said he was not sure but admitted it was possible.

[28] Mr. Greer said all six other persons at the party were either in the dining room or living room at the time. He indicated he was confused. He did not know what had happened. Nick was nearby and said to him, “Mike, you’ve just been stabbed.” He testified the other couple was the first to flee the apartment. Nick and Stacey were uneasy and began gathering their things.

[29] Mr. Greer testified that after Nick told him he had been stabbed he turned to look behind him. He said he saw who he says was Mr. Casey standing behind him holding a knife that was embedded in his left shoulder. He described Mr. Casey’s demeanor. Mr. Casey was breathing heavily, and according to Mr. Greer, seemed hysterical. He does not recall Mr. Casey’s words.

[30] Mr. Greer begged for his life. He testified he told Mr. Casey if he spared his life, he would not tell the police who stabbed him. He pointed out that if he dies Mr. Casey would do life in prison. Mr. Greer’s evidence is that after he spoke those words to Mr. Casey, Mr. Casey pulled the knife from his shoulder and put it to Mr. Greer’s neck. Mr. Greer stated he could not get up or control his movements. He was bleeding profusely.

[31] Mr. Greer closed his eyes and said the next thing he heard was Mr. Casey in the washroom with the knife. He thought he heard Mr. Casey put the knife into the toilet tank. Mr. Greer admitted he did not see the knife or Mr. Casey take the knife into the bathroom. He just assumed Mr. Casey was in the bathroom with the knife. He also admitted because of the drugs he had taken that he might have hallucinated about this. However, he said he believed Mr. Casey would have taken the knife into the bathroom because he had told him to get rid of the knife and get as far away as possible and he would wait ten minutes to call the ambulance.

[32] Mr. Greer testified the other couple had left the apartment and Mr. Casey left next followed by Nick and Stacey. Mr. Greer remained scared and on the living room floor. Ms. David remained behind and according to Mr. Greer she was panicking. There was no landline in the apartment and neither of them had a cellphone to call the ambulance. Ms. David left the apartment and borrowed the phone of a neighbouring tenant to call the ambulance.

What Happened in the Lobby and Vestibule?

[33] There are surveillance security cameras that produce silent recordings of the lobby and vestibule at the entrance of the apartment building. The Crown filed in evidence video footage covering the period from about 9:00 p.m. until about 9:30 p.m. when Mr. Greer was taken away in an ambulance, and some footage for periods before and after. Mr. Greer was transported to St. Michael’s Hospital.

[34] At 9:09 p.m. the video recording depicts Mr. Greer on his stomach dragging himself to the lobby doors that leads to the vestibule. He testified his legs were not functioning and he had to use his hands and elbows to crawl and pull himself up on the lobby door. At 9:07 p.m. Ms. David comes into the picture, kneels down to assist Mr. Greer and lights him a cigarette. At 9:16 p.m., the EMS attendants appear. The police appear shortly thereafter. At 9:26 p.m. the EMS attendants get Mr. Greer onto a gurney to load him into the ambulance. Ms. David is seen speaking to the police officers.

[35] Mr. Greer testified about his observations of persons who were depicted leaving the building. He testified about the recording that captured the persons leaving the building who had attended the party. At 9:00:50 p.m. Nick and Stacey are seen leaving. At 9:00:55, five seconds later, the unknown couple is seen leaving. Mr. Casey is the last to leave at 9:03:09, about three minutes after the others.

[36] On March 4, 2014 the police investigated the lobby and vestibule and found areas where blood was left and found a bloody sweat shirt on a bench. They searched apartment 101. Photos were taken. The apartment was in a state of extreme disarray with blood on the walls and other surfaces, and a broken mirror and glass on the floor.

[37] The most critical piece of evidence seized was a knife which was lying on the foot of the bed in the bedroom. It had blood on it which the forensics unit determined by the DNA was Mr. Greer’s blood. There was nothing else of forensic significance found on the knife. It was a black-handled kitchen knife. The police also seized an empty beer can from a shelf in the bedroom that was determined to contain a fingerprint of Mr. Casey. They also found a number of documents referring to Ms. David and a cellphone bill in Mr. Casey’s name.

IDENTIFICATION EVIDENCE

Evidence from Mr. Greer While Hospitalized

[38] Mr. Greer was hospitalized at St. Michael’s for one month. He was treated for four stab wounds, three in the lower back and one in the shoulder. The wounds to his back severed his spine rendering his legs paralyzed.

[39] Officer Scott Murray attended the hospital at 10:15 a.m. on March 2nd. He observed that Mr. Greer appeared lethargic. Officer Murray testified Mr. Greer did not provide a signed statement. The officer asked questions and Mr. Greer gave answers. He refused to tell the officer the identity of the assailant. Following his visit to the hospital, Officer Murray went to the police station to view the video surveillance from 1275 Danforth Ave.

[40] After St. Michael’s Mr. Greer was transferred to the Lyndhurst Centre for rehabilitation. He was discharged able to walk after one month. He developed a blood blister on his right toe which became gangrenous affecting his right leg below the knee. He was admitted to Scarborough General Hospital at the end of December 2014. His leg was amputated on January 10, 2015. He remained at Scarborough General for one month. He has been wheelchair-bound since then. He was placed on morphine for pain and then on methadone for drug addiction which he still takes through a clinic.

[41] Mr. Greer explained that once he realized his leg would be amputated as a result of his injuries he decided to talk to the police because he felt his life had been taken from him. On January 3, 2015, Officer Murray went to see Mr. Greer at Scarborough General. Officer Murray took an audio recorded statement from Mr. Greer. The recording started at 11:20 p.m. and ended at 11:45 p.m.

The Photo Line-Up

[42] Later on January 3, 2015, Officer Murray returned to the hospital. This time, almost a year after the incident, Mr. Greer gave a description of his assailant. He told the police that at the party his assailant, who he thought was named Michael Price, was bald or had a recently shaved head. He described him as being about age 27, 5′ 6″ in height and 120 – 130 lbs. Mr. Greer said he was perhaps of Guyanese background and described him as having skin color, “more dark than light”, and “very, very dark”.

[43] Based on the descriptors Mr. Greer gave, Officer Murray selected booking photos of men fitting those descriptors and prepared a photo-lineup. He included in the lineup an earlier booking video of Mr. Casey. The photo-lineup was made an exhibit.

[44] On January 4th, Officer Murray returned to the hospital to conduct the photo-lineup. This was about ten months after the stabbing. Mr. Greer cooperated with the police. He was shown 12 pictures of black men, one of whom was Mr. Casey. Mr. Greer did not pick out Mr. Casey as his assailant. He did not identify any of the men. There is no dispute that the proper procedure was followed in conducting the photo-lineup.

The Video Surveillance

[45] Later in the evening on January 4th, Officer Murray attended the hospital with some stills of the video surveillance. Mr. Greer reviewed the stills and identified a black male leaving the building as who he thought was Michael Price. The man he identified was light skinned and slight in build with a full head of black hair.

[46] The preliminary inquiry was held on February 8, 2016, two years after the incident. Mr. Greer reviewed the video surveillance on the day before the preliminary inquiry and was shown the video surveillance during the proceeding. In face of the man on the video surveillance having dark hair, Mr. Greer testified at the preliminary inquiry that his assailant had a closely shaved head, almost bald. Mr. Greer testified that he “learned a lot” from viewing the surveillance video and that it helped him remember what happened on March 1st. At trial he also admitted he had learned a lot from the surveillance video.

[47] At trial Mr. Greer was again shown the stills and the pertinent portion of the video recording. Despite his description of his assailant’s hair at the preliminary inquiry, he identified from the stills and the corresponding video recording the same black male with a full head of hair. He testified he was the person he thought was named Michael Price, the man who stabbed him.

[48] At trial on cross-examination Mr. Greer acknowledged that the identification at the preliminary inquiry of a man who was nearly bald and light skinned departed widely from his description to the police of a dark skinned black man. He also acknowledged that the person he identified from the surveillance had the opposite type of hair than his description to the police.

In-Dock Identification

[49] Mr. Greer’s description at trial also differed widely from what he told the police especially as regards skin tone. In-chief Mr. Greer described the assailant as 5′ 7″, 160 – 170 pounds with a slender build, light brown skin tone, with closely shaved hair, almost bald. He said his assailant was smaller than anyone else at the party. The Crown asked if Mr. Greer could identify the person who stabbed him. He pointed to Mr. Casey in the prisoner’s dock − the person he mistakenly thought was named Michael Price.

[50] The defence objected to the in-dock evidence based on its inherent frailty, the danger that Mr. Greer simply identified Mr. Casey because he was in the prisoner’s dock.

[51] The Crown argued that this is not a case where this is the first time Mr. Greer has encountered Mr. Casey. The Crown pointed out that it is not the first time he identified Mr. Casey as he had identified him in the surveillance stills and the video recording. The Crown also referenced the fact that Mr. Greer had also spent two days in company with Mr. Casey at the party.

[52] I accepted the Crown’s position that the in-dock evidence should not be rejected. I find the defence’s concerns would be more enhanced in a jury trial where a strongly worded instruction to the jury would be required. I indicated I can appropriately instruct myself on the dangers of this kind of evidence.

[53] I also took into account that there is a context in which the in-dock identification was made. The case at hand is unlike the circumstances where there is only a fleeting previous observation or no previous observation before an in-dock identification. The case for identification does not rest solely on the in-dock evidence. I considered the fact the defence would have the opportunity to challenge Mr. Greer’s identification in cross-examination.

ANALYSIS

Credibility and Reliability Issues

The Material Witness Warrants

[54] Mr. Greer is the only person to testify about what happened at the party in apartment 101, as to what caused his injuries. So the credibility and reliability of his evidence is critical to a determination of Mr. Casey’s guilt. The Crown must rely on his evidence to prove beyond a reasonable doubt that Mr. Casey stabbed Mr. Greer. Mr. Greer’s evidence suffers from both credibility and reliability problems.

[55] I cannot ignore Mr. Greer’s conduct in trying to avoid testifying at the trial. I was required to issue two material witness warrants in order to bring him to trial because he refused to comply with his subpoena.

[56] Mr. Greer was required to have methadone administered to him each morning by a clinic near his apartment. On the first morning of trial Mr. Greer was not present. I heard evidence from Det. Fernandez, the officer-in-charge, that the police had hired a taxi service to transport him in his wheelchair to court.

[57] The plan was that the taxi would pick him up in the morning outside his apartment after Mr. Greer left his appointment at the methadone clinic. Det. Fernandez confirmed that the taxi had waited for Mr. Greer but he did not show up to take the taxi. Another taxi was set to pick him up after noon. Again, Mr. Greer did not appear. He had avoided the police’s visits to his home and had ignored many calls and texts from the police trying to arrange to get him to court.

[58] I issued the first warrant and Mr. Greer was brought before the court in the afternoon on the first day of trial. Mr. Greer gave an account of why he did not take the taxi. He said he thought the taxi was going to pick him up at the clinic when the officer had made it clear where the pick-up location would be. He also said that the taxi did not show up, that he did not receive calls and texts and did not know the police came to his apartment.

[59] I indicated I did not believe his account of why he failed to attend court. I ordered him detained overnight and he attended court the next morning.

[60] My intention was to detain Mr. Greer until he completed his testimony. However, Mr. Greer indicated he had not received his methadone while in detention and were he detained again and not administered methadone he would not be in a state to testify. I granted him a release from the warrant on a promise that he would take the taxi to court the next morning. Mr. Greer did appear on the third day of trial.

[61] However, much the same thing happened on the morning of the fourth day of trial. Mr. Greer did not take the taxi. I issued a second warrant and he was arrested and brought before the court the next morning. Mr. Greer gave much the same excuses as he did on the first day which I indicated again that I did not believe. I indicated that if he did not complete his evidence that day, I would again order him detained. He finished testifying that day.

[62] Mr. Greer’s conduct in trying to avoid testifying is troublesome, particularly in view of some of his other actions before trial.

Threat to Recant Police Statement

[63] Defence counsel cross-examined Mr. Greer about his contact after the preliminary inquiry with the victims’ services office at College Park. Mr. Greer had received notice that Mr. Casey had been released on bail. Mr. Greer responded to an allegation by the defence that he had told a victims’ services worker that he would testify for the defence. Mr. Greer corrected the defence suggestion saying that what he actually said to the worker was that he would not testify for the prosecution. Mr. Greer said he made that threat out of anger because Mr. Casey had been released.

[64] Mr. Greer went so far in testimony to admit that he told the worker he would recant his statement to the police if he got paid. He testified he did not intend to recant his statement in return for pay. He stated that he said what he said to the worker because he was afraid that Mr. Casey would finish what he started, that Mr. Casey would kill him.

[65] I am not convinced he made the bargain out of fear. He had already testified at the preliminary inquiry, I assume, in front of Mr. Casey. Further, notwithstanding his valiant efforts to avoid trial, when he did testify he spoke freely, without hesitation in front of Mr. Casey. There is simply no evidence of fear.

[66] Mr. Greer’s dealings with victim’s services together with his attempts to avoid testifying cast a dubious light on him. It makes one question the credibility and reliability of his other evidence and his motivation for giving the evidence he gave. His willingness to bargain for money in exchange for his testimony is to say the least a case of nefarious dealing.

Reliability of Mr. Greer’s Evidence of the Incident

[67] Mr. Greer admitted to being very intoxicated by an injection of heroin and smoking crack and drinking beer all weekend and all day on March 1st up to the time of the stabbing. In fact, Mr. Greer admitted he was preparing another opiate just before he was stabbed and conceded that he does not know for sure whether it was administered. But he said it was possible.

[68] At trial Mr. Greer adopted what he said in his police statement about his mental state while in St. Michael’s. He had told the police that for the first few weeks he was not in reality. He hallucinated and dreamed strange scenarios – such as that he was being kidnapped and raped. Mr. Greer could not say for certain whether it was the party intoxicants or medications that caused the hallucinations.

[69] Mr. Greer also adopted his evidence from the preliminary inquiry that parts of what occurred that night were foggy due to the intoxicants he had consumed. His concession that seeing the surveillance video at the preliminary inquiry made him remember a lot makes the reliability of his police statement, and his subsequent evidence at court, uncertain.

[70] Mr. Greer’s further admission that he might have been hallucinating at the party about his assailant putting the knife in the toilet tank casts some doubt on the reliability of other parts of his evidence about the party. The police did not find the knife where Mr. Greer believed it would be.

[71] The assailant stabbed Mr. Greer when his back was turned. Mr. Greer says he turned around when he was stabbed in the shoulder and saw who he insists was Mr. Casey with his hand on the knife. He spoke to the assailant bargaining for his life but he did not say they were face-to-face.

The Identification Evidence

[72] Mr. Greer identified Mr. Casey in-dock as the person who stabbed him. The Crown submits this is a case of recognition. Mr. Greer was familiar with Mr. Casey and identified him in-dock.

[73] It is true that this is not a typical transitory glance case where the complainant had only a fleeting glimpse of the assailant or no previous observation at all before the in-dock identification. Mr. Greer had spent some two days in Mr. Casey’s company, even taking a 20-minute walk with him to the liquor and convenience stores.

[74] The evidence is that Mr. Greer turned and saw the assailant after he was stabbed in the shoulder. Then the assailant held the knife to Mr. Greer’s neck and Mr. Greer begged for his life. It is highly unlikely that Mr. Greer would have turned his head back toward the assailant as the knife was being held at his neck. I think he would have done that at even more risk to his life. His observation of the assailant would have been very brief. He then thought he heard the assailant in the bathroom. So in spite of being familiar with Mr. Casey before the attack Mr. Greer had only a brief glimpse of the person who stabbed him.

[75] Compounding this is the fact that the intoxicants he consumed made his observation and memory of occurrences at the party foggy. It is not a far reach to conclude that Mr. Greer’s intoxication and the brevity of his observation of the assailant could have compromised his opinion of who stabbed him. In the circumstances I find the evidence does not give me a sufficient measure of confidence that the person Mr. Greer saw behind him with the knife was Mr. Casey.

[76] The circumstances of the case before me are comparable to the circumstances that faced the Ontario Court of Appeal. The Court addressed a situation where the witness had some acquaintance with the accused and a brief observation during the commission of the offence. The Court observed that the reliability of a witness’ identification diminished, although she knew the accused “reasonably well”, because of the “limited time” she had to observe the assailant: R. v. Miller, at paras. 26 - 27.

[77] There are also problems with Mr. Greer’s identification of his assailant in the months and years after the incident.

[78] Mr. Greer’s first identification of whom he thought was his assailant occurred when he gave his statement to the police about ten months after the stabbing. His description to the police as far as the assailant’s skin colour is concerned is clearly at odds with the person he identified in-dock. Mr. Casey is clearly a light skinned black man, not “very, very dark” or “more dark than light”. As well, the skin colour descriptor he gave at the preliminary inquiry, two years after the incident, was contrary to what he told the police although the hair descriptor was similar.

[79] Further, Mr. Greer did not identify Mr. Casey in the photo line-up the day after his police statement. However, later that day the police showed him the stills of the video surveillance and he identified Mr. Casey as his assailant with his full head of black hair. This is puzzling.

[80] What is also curious is that Mr. Greer saw the surveillance video and the stills before and at the preliminary inquiry that show the person he said was his assailant donning a full head of dark hair and light skin. Unexplained is that Mr. Greer said the surveillance jogged his memory about things at the party but in testimony at the preliminary inquiry he maintained his description of the assailant as having a closely shaved head.

[81] The curiosity mounts at trial when Mr. Greer maintained the shaven hair descriptor and did not explain his dark skinned descriptor in his police statement or the full head of hair on the black man in the surveillance video who he said stabbed him.

CONCLUSION

[82] It would be dangerous to convict Mr. Casey on Mr. Greer’s evidence. Identification evidence on its own without more is frail. Mr. Greer’s identification evidence is not only internally inconsistent it also comes in the context of marked credibility and reliability problems in other areas of his evidence. Mr. Greer has shown a remarkable propensity throughout the trial process for skullduggery and opportunist manoeuvring to serve his own interests which I find colours the entirety of his testimony.

[83] In the result, the evidence raises a reasonable doubt in my mind of Mr. Casey’s guilt of aggravated assault, assault with a weapon and possession of a weapon. The Crown has not succeeded in proving beyond a reasonable doubt that Mr. Casey was the person who stabbed Mr. Greer on March 1, 2014.

VERDICT

[84] I find Michael Casey not guilty on all three counts on the indictment. Acquittals will accordingly be entered on the record.

B.A. ALLEN J. Released: March 30, 2017

COURT FILE NO.: CR-16-70000167-0000 DATE: 20170330 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – MICHAEL CASEY Accused REASONS FOR judgment

B.A. ALLEN J. Released: March 30, 2017