COURT FILE NO.: CRIMJ(P) 456/17

DATE: 2018 03 09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

I. Singh, for the Crown

• and -

GURIQBAL SINGH THIND

R. Pillay, for the Defence

HEARD: February 27-28 and March 1, 2018, at Brampton

REASONS FOR JUDGMENT

Hill J.

INTRODUCTION

[1] Guriqbal Thind pled not guilty to this allegation of perjury:

That he, on or about the 30^th day of April, 2012, at the City of Brampton, in the Central West Region, did commit perjury at the trial in the Superior Court of Justice at 7755 Hurontario Street, in the City of Brampton sitting on April 30^th, 2012 between R. v. Manjit Singh Dhanoa and R. v. Harvishal Singh Kler by swearing falsely and with intent to mislead the court that he did not speak to Manjit Singh Dhanoa inside a washroom at the A. Grenville and William Davis Courthouse at 7755 Hurontario Street in the City of Brampton, in the Region of Peel, on April 30, 2012, contrary to the Criminal Code of Canada, section 131.

THE DHANOA/KLER TRIAL

[2] In April 2012, Manjit Dhanoa and Harvishal Kler, jointly charged with importing heroin into Canada, went on trial before Dawson J. and a jury.

[3] Included in the jury selected to try the importing charge were William Thomson (Juror #6) and Michael O’Donnell (Juror #10). Seated in the jurybox of the trial courtroom of the Davis Courthouse in Brampton, throughout the days of trial, both jurors had a daily opportunity to view Manjit Dhanoa during the proceedings.

[4] The Davis Courthouse is a large facility serving the Regional of Peel. The consolidated courthouse with a total of 40 provincial and superior courtrooms, is exceptionally busy on a daily basis. On the main floor of the facility is a cafeteria frequented by courthouse staff, jurors and others. Immediately adjacent to the cafeteria down a short corridor are men’s and women’s washrooms.

GURIQBAL THIND’S APPEARANCE AS A WITNESS

[5] Juror #s 6 and 10, who testified in this perjury trial, had different recalls respecting the depth of their familiarity with the accused prior to April 30, 2012.

[6] Both jurors agreed that during the trial of Dhanoa and Kler, charged as overseers of a drug operation recruiting young men to be runners abroad, they had seen a booklet of photos entered as a trial exhibit which contained what appeared to be vacation photos of an individual identified in the evidence as Guriqbal Thind. The exhibit had been passed around the courtroom’s jurybox for jurors to examine. Mr. Thomson recalled jurors “briefly” reviewing 20 to 30 photos depicting a person identified in some manner during the trial evidence as Guriqbal Thind. Mr. O’Donnell testified here that he gave the photos significant scrutiny for perhaps 15 to 30 minutes – there were over 90, at least 70% of which he believed to depict Mr. Thind.

[7] Mr. Thomson testified that the accused appeared as a witness before the jury on only one date – April 30, 2012. Mr. O’Donnell was certain that the accused had testified before the jury at length on at least two prior occasions in the three weeks prior to his April 30 appearance stating that he “had been on the witness stand several times throughout those days … this was not the first time we’d seen Mr. Thind” – he had been “on the stand several times during the case”.

[8] It is an agreed fact in this trial that after a number of days of trial, with the prosecution case completed, on April 30, 2012, counsel for Mr. Dhanoa called Mr. Thind, who was subject to a subpoena, as a defence witness. Thind was under subpoena and had not previously testified in the trial.

[9] In this proceeding, Mr. Thomson described Manjit Dhanoa as East Indian with brown skin appearing to be aged 30 to 40 years. Mr. O’Donnell described Dhanoa as brown-skinned, of short stature with thinning hair, and prone to falling asleep at trial. Dhanoa had the assistance of a language interpreter during the trial. As said, both jurors had a clear view of Dhanoa in the courtroom during the days of trial.

[10] Asked in this trial to describe Mr. Thind’s appearance on April 30, 2012, Mr. Thomson described the accused as an East Asian male of about 18 years of age, brown-skinned and wearing appropriate court attire consisting of a dark-coloured dress shirt with buttons and dress pants. Mr. O’Donnell described the accused as a brown-skinned male in his early or mid-twenties with messy hair, and dressed inappropriately for court in sporting attire with dark basketball shoes, no socks, dark navy blue Kway nylon track or sports pants, a white soccer jersey and a black windbreaker. The witness considered that the accused’s clothing “stuck out”.

[11] In this trial, Mr. Thomson and Mr. O’Donnell identified the accused seated beside Mr. Pillay at defence counsel’s table as the witness Thind from the trial in which they served as jurors.

[12] The accused’s evidence commenced at the outset of the morning on April 30, 2012 shortly after 10:30 a.m. With a morning break, the accused’s in-chief evidence continued until 12:56 p.m. when the trial recessed for the lunch break until 2:10 p.m.

[13] The 22-year-old accused (D.O.B. Feb. 6/89) testified before the jury that, at his heroin importation trial in 2011, he was acquitted of the charge relating to a seizure of heroin from his luggage at the Pearson International Airport. He was currently completing university studies and had been accepted for admission to the Bond Law School in Australia.

[14] The accused testified before the jury as to the circumstances of his trip to Japan and India with a friend, Parket Khattra, and his arrest as a suspected drug courier on return to Canada.

[15] Mr. O’Donnell informed this court that just prior to the April 30 lunch recess, counsel for Dhanoa asked Mr. Thind two or three questions to elicit answers emphasizing that the witness had no prior relationship with the two accused before the court – it was the Crown who had brought them together in the trial. Mr. O’Donnell was certain that defence counsel asked a “significant series” of questions which kept “hitting the same point”, repeating himself several times to make this distinctive point abundantly clear – “it was question after question on the same point” which became a “highlight” or “red flag”.

[16] The certified transcript of the April 30, 2012 trial proceeding before Dawson J. (Exhibit #2) discloses only a single question posed by Mr. Dhanoa’s counsel relating to his client:

Q. … and do you know Manjit Dhanoa over here, he’s the fella with the [interpretation] headphones on?

A. No, I do not.

This exchange occurred some minutes before the mid-morning court recess.

JURORS IN THE CAFETERIA

[17] Mr. Thomson recalls 10 or 11 of the jurors having lunch in the courthouse cafeteria. To his recall, his seating was about 10 feet from the door leading to the hallway where washrooms were located. To the witness’ recall, the cafeteria was “fairly busy”. Mr. O’Donnell’s recall is that only 6 or 7 jurors lunched together on April 30, 2012. They reached the cafeteria no longer than 10 minutes after court adjourned – just in the nick of time to be able to push tables together. To the witness’ recall, within a few minutes, the cafeteria became busier.

[18] Mr. Thomson recalled sitting closest to Mike and Laura, two of his fellow jurors. Mr. O’Donnell’s recollection is that he sat nearest to Bill and a female juror. Mr. O’Donnell sat with his back to the nearby door leading to the washroom corridor.

MR. THOMSON’S VISIT TO THE WASHROOM

[19] Mr. Thomson testified that, after eating part of his lunch, he went to the washroom adjacent to the cafeteria. His intention was to get in and out of the washroom as quickly as possible. In public washrooms, he does not converse with, or generally make eye-contact, with others.

[20] Mr. Thomson proceeded directly to one of the urinals without looking around to see who else might be in the washroom. He had no idea how many others may have been present. He next washed his hands at one of the sinks. When he turned to look for a towel to dry his hands, from a distance of perhaps 15 or 20 feet, he clearly and immediately recognized the accused, wearing the same clothes he had in the courtroom, drying his hands and standing by, and turned toward, one of the closed-door stalls (Exhibit #4 – Mr. Thomson’s diagram).

[21] To the witness’ recall, there was someone in the stall as he could see, through the gap under the stall door, shoes pointing outward toward the well of the washroom as though that individual was about to exit the stall. Later in the afternoon of April 30, in describing to Dawson J. what he had seen in the washroom, Mr. Thomson did not say anything about seeing legs or shoes in a washroom stall. The witness informed this court that he did mention these facts a couple of weeks later in his statement to the RCMP.

[22] In his in-chief evidence, in describing the accused, Mr. Thomson stated: “it seemed to me like he was talking to someone … behind the door”. The witness had “a feeling” or “interpretation” that the accused was having a conversation. It seemed “very weird”. He “only heard a few words” from the accused in a language he could not understand. Again, in his in-chief testimony, the witness could not say how many words he heard. The volume of the accused’s voice was lower than for ordinary conversation. The witness heard no voice from the person in the stall.

[23] In cross-examination, when referred to his March 1, 2017 evidence at the preliminary inquiry in this case, where the witness described his observations of the accused in the washroom lasting only “seconds”, the witness accepted that that was true. In further cross-examination, when asked if perhaps he only heard one word spoken, Mr. Thomson stated: “No, because it seemed to me that … he was having a conversation … it could have been anything because I couldn’t hear it”. Asked the question again, the witness acknowledged that “[i]t could have been one” word. He could not say whether it was a communication or an utterance the speaker may have made to himself.

[24] The witness did not see the accused with a cellphone or Bluetooth earpiece. Asked in cross-examination if it was possible, the witness responded, “I don’t know”.

[25] Mr. Thomson does not recall whether there were others in the washroom including in the second stall.

[26] Mr. Thomson quickly dried his hands, did not speak to the accused, and left the washroom – “I left as soon as I could”. He assumed that the accused had seen him.

[27] Mr. Thomson described himself as feeling really uncomfortable in the washroom being there in the proximity of a trial witness. At the outset of trial, Justice Dawson had cautioned jurors about contact with persons involved in the trial.

[28] Mr. Thomson testified that when he sat down at the lunch table, where Mike and Laura were still seated, he reported to fellow jurors his discomfort at being in the washroom in proximity to the witness involved in their case. There was then a brief discussion.

[29] Mr. Thomson informed this court that, “several minutes later”, five minutes or so later, Mike came back from the washroom and stated that he had seen the accused and Dhanoa having a conversation, “talking to each other”.

MR. O’DONNELL’S VISIT TO THE WASHROOM

[30] Mr. O’Donnell testified that at a point he excused himself from the lunch tables and proceeded toward the nearby washroom. As he approached the door of the men’s washroom, he bent down to pull up his socks. At this time, he heard “people inside the washroom talking” – “it was two people going back and forth … they were fairly animated”. The witness also stated in-chief that he heard conversation when he was at the door about to enter. There were two male voices speaking relatively loudly in a foreign language.

[31] The witness entered the washroom still hearing voices. Once inside, he came even with the end of a corridor entrance wall on his left such that he could then see the interior of the main part of the washroom. Mr. O’Donnell informed the court that at this point he first saw Mr. Dhanoa, the shorter defendant with thinning hair. He was “face on face” to Dhanoa. In his in-chief testimony, the witness stated that once Dhanoa saw the witness, Dhanoa stopped talking. Mr. Dhanoa was “kind of crouched forward” holding with one hand one handle of a black laptop bag/briefcase which was hanging open and, in his other hand, were pieces of paper which were out in front of a second person he recognized to be the accused. The two males were 12 to 18 inches apart. Dhanoa stopped speaking and appeared to hurry to put the papers in the bag.

[32] Mr. O’Donnell described the accused as very relaxed and casual, leaning back against the sink counter with his hands folded and his feet out. In his in-chief evidence, the witness stated that he recognized the accused from seeing him in the courtroom on various days, from the photo exhibit book, from seeing him testify that morning, and on seeing this individual wearing the same clothing as in the courtroom a short time before. He had no doubt as to the identity of these two persons.

[33] The witness thought to himself “Oh wow”, slowing his step slightly to take in what he had walked into while continuing to walk straight forward toward a urinal. In the witness’ view, Mr. Dhanoa had a look of fright and surprise on his face.

[34] In cross-examination, Mr. O’Donnell maintained that he passed very very close to Dhanoa and the accused. To cross the approximate nine feet from the corner of the end of the washroom entrance wall to the urinal took only three to five seconds which the witness ultimately agreed, as he remained in motion, was a “brief opportunity” to observe the others. He found himself in “a situation” and did not want to engage with them.

[35] The witness was challenged in cross-examination on his in-chief assertion that it was Mr. Dhanoa who stopped talking when the witness drew even with the occupants of the washroom – Mr. O’Donnell had advanced this information to Justice Dawson in the court’s April 30 inquiry:

COUNSEL FOR DHANOA: The – the issue of who’s saying what when and for how long and the difference in the voices, if any?

THE COURT: Yeah. You – were – were both speaking? Just one speaking?

MR. O’DONNELL: It was Mr. Thind that was speaking, that – because Mr. Thind had – Mr. Dhanoa had seen me quicker, because obviously his position in the wall, and I didn’t see anything coming from Mr. Dhanoa. So, I heard, again, stuff that I could not make out, turned the corner, there’s Mr. Thind leaned up against the – the sink and Mr. Dhanoa’s kind of just tussling with his briefcase or bag or whatever, and then Mr. Dhanoa saw me, then turned away from Mr. Thind, to kind of just break the conversation, and then Mr. Thind then at that point saw me kind around the bend, and then he realized and stopped talking.

COUNSEL FOR DHANOA: If I – I have more. Your Honour, the – the juror mentioned Mr. Thind was speaking. Is that because he saw this or he heard it or both? And was there anything else from the other person, or – or not?

THE COURT: Can you respond to that?

MR. O’DONNELL: If – if I were to piece things together – because, again, when you’re coming through the door, you don’t see thing – you don’t see anything, and you wanna come around the corner, you still don’t see anything. So, if I were to piece things together, it was Mr. Thind that was talking all along, and then as I came around the corner, Mr. Dhanoa looked up, saw me, broke away from Mr. Thind, and I would imagine – and, again, this was – trying to piece things – probably just leaving the bathroom immediately, whereas that Mr. Thind probably was about a, a second behind Mr. Dhanoa, realizing that he should stop talking. So, it was – it was – I believe it was Mr. Thind. That was talking the whole time.

[36] The witness, in testifying here that what he related to Dawson J. was accurate, went on to indicate that he had heard two voices coming from the washroom.

[37] In cross-examination, on the subject of the witness’ identification of one of the persons in the washroom being the accused, Mr. O’Donnell stated that recognition of the accused’s clothing was one factor only in his identification of the accused – it was his “facial” and the clothing – all based on recognizing the accused from prior exposures. The witness agreed that, at the preliminary inquiry in this case, he had volunteered this evidence relating to his washroom identification of the accused:

A. Can I, can I add something?

Q. Sure.

A. Okay. This had, this had come up earlier, Mr. Thind was, was – how I would know that it was Mr. Thind is he was wearing the exact same attire he had had in the court, when I walked passed him, as he did in the bathroom.

[38] Mr. O’Donnell felt really nervous and somewhat scared and concerned for his safety. He was “very cautious” and as he reached the urinal he continued to look over his left shoulder to see what the other persons would do. He saw them leave the washroom “fairly quickly” “one after the other”.

[39] Because he understood from the morning evidence of the accused that he did not know Dhanoa, in his mind this was unique as he had now seen these two individuals speaking. The witness returned to the lunch table and, after one to three minutes, he reported what he had seen asking fellow jurors what he should do. A fellow juror, Bill, then spoke up saying that when he was in the washroom, “he had heard something” without elaborating further. It was agreed that Mr. O’Donnell should report what he had seen to a member of the court staff.

THE JUDICIAL INQUIRY

[40] Toward the end of the lunch hour, Mr. O’Donnell spoke to a court services officer (CSO) assigned to the jury about what he had seen. The CSO alerted Justice Dawson to the issue.

[41] When court resumed in the afternoon of April 30, 2012, Dawson J. informed trial counsel as to what had been reported to him and conducted an inquiry to determine whether a mistrial or other remedial action was required. At the outset, this exchange occurred:

THE COURT: Just before we get started, Mr. Thind, have you been talking to Mr. Dhanoa outside the courtroom?

GURIQPAL THIND: No.

[42] After hearing submissions from counsel, Dawson J. questioned Mr. O’Donnell and Mr. Thomson in the courtroom in the presence of the accused and all counsel. These jurors were not sworn or affirmed while subject to judicial interview.

[43] The court then questioned Guriqbal Thind who was affirmed to tell the truth while in the witness box. The accused repeated his answer that he had not been speaking with Mr. Dhanoa outside of the courtroom.

[44] The accused informed Dawson J. that he went to the cafeteria area with his mother at lunch time. He used the washroom adjacent to the courthouse cafeteria over the lunch hour. He used a washroom stall. He washed his hands and left the washroom after two to four minutes. He did not see Dhanoa and did not speak to him or anyone else while in the washroom. The accused informed the court that his mother used the women’s washroom before they decided to go out to eat lunch.

[45] According to the accused, Mr. Dhanoa approached him in the public area of the cafeteria before he left the courthouse for lunch “mumbling something” as he walked toward the accused, an utterance which he could not hear. The accused then “just kind of turned to the side”. He had “no reason to speak with” Dhanoa. He had no recall of seeing Dhanoa carrying a briefcase.

[46] The final witness in the inquiry was the accused’s mother.

[47] After hearing further submissions from counsel, Dawson J., on May 1, 2012, declared a mistrial.

POSITIONS OF THE PARTIES

The Prosecution

[48] The Crown submitted that, on the whole of the evidence, it has been established beyond a reasonable doubt that the accused falsely swore before Dawson J., with intent to mislead the court, that he did not speak to Manjit Dhanoa in a washroom at the Brampton Courthouse on April 30, 2012.

[49] Mr. Singh submitted that the court should accept the evidence of Mr. O’Donnell insofar as his observations at the washroom on April 30, 2012. It is said that this is a “recognition” case. Leaving to the side the statutory requirement for corroboration, acceptance of the witness’ evidence of hearing voices before entering the washroom, and only seeing in the washroom the accused and Mr. Dhanoa close together and facing one another in apparent conversation, clearly contradicts the accused’s denial before Dawson J. of speaking to Dhanoa at the luncheon recess.

[50] It was submitted that Mr. O’Donnell’s identification of Mr. Dhanoa as one of the individuals in the washroom can be considered reliable considering the number of days the witness had spent in the trial courtroom with a clear view of Dhanoa. Dhanoa was the first person he observed when he entered the washroom. They made eye contact and were physically close to one another as the witness walked toward the urinal. The witness’ recognition was immediate. Dhanoa had a look of fright in his eyes and surprise or shock on his face.

[51] Crown counsel similarly submitted that Mr. O’Donnell’s identification of Guriqbal Thind in the washroom amounted to reliable recognition evidence when taking into account a number of factors including the following:

(1) the witness had heard evidence at trial about the accused and had seen photos of him in an exhibit book during the trial

(2) on April 30, the juror had been seated in the jurybox in the courtroom close to the witness box where the accused was giving evidence for about a half-day prior to the lunch break

(3) the person identified in the washroom to be the accused was wearing the same clothing as the witness who testified that morning

(4) the witness had immediate recognition of the accused in circumstances of close proximity in the washroom and on observing him for perhaps as long as five seconds.

[52] While there were acknowledged deficiencies in Mr. O’Donnell’s evidence, for example relating to the number of times the accused testified in the R. v. Dhanoa and Kler trial, and as to the timing and number of questions asked of the accused in his April 30, 2012 evidence respecting knowing Dhanoa, it was argued that these features of the evidence do not materially detract from the reliability of Mr. O’Donnell’s identification evidence and particularly in light of what was described as additional supporting evidence in the record from the accused as well as the corroborative evidence of Mr. Thomson.

[53] On his evidence before Dawson J. on April 30, 2012, the accused acknowledged using the washroom situated near the courthouse cafeteria during the lunch recess before leaving the courthouse to have lunch with his mother. This places the accused in the washroom and early in the lunch recess.

[54] Turning to the statutory requirement for the prosecution to adduce evidence corroborating Mr. O’Donnell’s testimony respecting the accused speaking to Dhanoa in the washroom, Mr. Singh advanced that Mr. Thomson’s evidence corroborates O’Donnell’s evidence in a material particular implicating the accused.

[55] It was submitted that while Mr. Thomson did not directly observe the accused speaking to Mr. Dhanoa, he did provide credible and reliable evidence that:

(1) near the beginning of the lunch recess, the accused was in the washroom

(2) the accused, who he immediately recognized, appeared to be in conversation with someone standing in one of the washroom stalls.

[56] This it was submitted, circumstantially confirms Mr. O’Donnell’s observations occurring in the same time frame-identification of the accused speaking to Dhanoa in the washroom during the lunch break proving the falsity of the accused’s evidence before Dawson J.

[57] As to the reliability of Mr. Thomson’s identification of the accused, Mr. Singh noted that this witness too had spent a half-day with the accused in the witness box, with the accused’s evidence interrupted for the lunch break less than half an hour before the washroom encounter.

[58] Based upon the evidence that the accused had engaged in conversation with Mr. Dhanoa in the washroom, the irresistible inference is that when the accused denied before Dawson J. that this was the case, that false statement was made with the intent to mislead the court.

The Defence

[59] The defence submitted that the accused’s evidence before Dawson J. denying speaking to Dhanoa in the washroom should be accepted or, at a minimum, raise a reasonable doubt as to proof of the perjury allegation.

[60] In any event, it was submitted that the prosecution case stumbled on the reliability of the eyewitness identification and the statutory requirement of corroboration.

[61] Mr. Pillay submitted that Mr. O’Donnell’s purported identification of the accused cannot be assessed as reliable for a number of reasons including:

(1) he erroneously believed that one of the persons he observed in the washroom at lunch, who he identified as Mr. Thind, was an individual who had testified on other occasions before the jury prior to April 30, 2012

(2) apart from that factor upon which the witness relied to found his opinion, he also erroneously recalled that the person he identified as the accused in the washroom had been dramatically questioned just before the lunch break about his lack of knowing Dhanoa

(3) with a general mindset of not speaking to persons in public washrooms, and in obedience to Dawson J.’s instructions to avoid contact with participants in the trial, it is unlikely that Mr. O’Donnell had anything more than a fleeting glimpse, as he walked the nine feet to the urinal, of who Dhanoa may have been speaking to in the washroom

(4) the witness provided no description of particular physical features of the person in the washroom he claimed was the accused

(5) there was evidence that the witness’ sole or principal identifier for saying the accused was in the washroom was the clothing he was wearing matching the clothing worn by the witness testifying that morning – a description entirely at odds with the clothing description provided by Mr. Thomson.

[62] Stressing the caution necessary in eyewitness identification cases, the defence submitted that this witness’ recognition evidence was suspect not only because of the above-described frailties, but also because of the difficulties of cross-racial identification, a potentially tainting discussion with Mr. Thomson on April 30, 2012 about who was in the washroom, and the human tendency to fill in gaps particularly with the passage of nearly six years since the date of April 30, 2012.

[63] Mr. Pillay submitted that not only did Mr. O’Donnell provide different evidence from Mr. Thomson as to the number of exhibit photos of the accused to which jurors had access, and the available time for examination of those photos, but with the photos not being filed in this perjury trial, there is no way of assessing the helpfulness of that resource as an aid for anyone identifying Mr. Thind.

[64] The defence submitted that apart from reliability concerns relating to Mr. O’Donnell’s identification evidence, the court should entertain real concerns as to the witness’ credibility. It is said that Mr. O’Donnell testified in a manner consistent with being invested in achieving a particular result – he was somewhat combative in cross-examination, resistant at times to conceding the obvious, inconsistent between testimony here and that given previously, unresponsive to some questions, and as well prone to long responses appearing to inflate the quality of his purported identification.

[65] Mr. Pillay emphasized the strict requirements for corroboration in a perjury prosecution and further submitted that no such corroboration exists in the evidentiary record here considering that:

(1) The respective identifications of the accused as a person in the washroom at the lunch break by both Mr. O’Donnell and Mr. Thomson had not been proven beyond a reasonable doubt

(2) because Mr. Thomson only identified the accused in the washroom, his evidence cannot be independently supportive of there being a conversation between the accused and Dhanoa – in other words, it can only be legally supportive if the trier borrows from O’Donnell’s evidence that Dhanoa was also in the washroom

(3) the independence requirement of corroboration is further compromised by the lunchtable discussion between the eyewitnesses about what they saw in the washroom.

[66] The defence also was critical of the reliability of Mr. Thomson’s evidence considering that:

(1) the witness had only seconds in the presence of the person he identified as the accused

(2) the witness did not wish to engage with anyone in a public washroom or with trial participants

(3) the witness provided no description of unique physical features of the accused upon which to assess his opinion of identification.

[67] Mr. Pillay further noted with respect to Mr. Thomson’s evidence that:

(1) he did not identify Mr. Dhanoa as present in the washroom

(2) as to the presence of outward-facing feet in one of the washroom stalls, that fact was not related to Dawson J.

(3) cross-examination of the witness left open acceptance by the witness that the person he identified as the accused may only have made a one-word utterance to himself in the washroom as opposed to a communicative exchange with the occupant of the stall.

ANALYSIS

Relevant Statutory Provisions

[68] Section 131 of the Criminal Code defines perjury as a crime:

131. PERJURY – (1) Subject to subsection (3), every one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false.

[69] In terms of a witness testifying before a court, s. 14 of the Canada Evidence Act provides that:

14. SOLEMN AFFIRMATION BY WITNESS INSTEAD OF OATH - (1) A person may, instead of taking an oath, make the following solemn affirmation:

I solemnly affirm that the evidence to be given by me shall be the truth, the whole truth and nothing but the truth.

(2) EFFECT - Where a person makes a solemn affirmation in accordance with subsection (1), his evidence shall be taken and have the same effect as if taken under oath.

[70] Section 133 of the Code imposes a corroborative requirement in certain circumstances depending on the prosecution’s manner of proof of a perjury allegation:

133. CORROBORATION - No person shall be convicted of an offence under section 132 on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.

[71] Section 13 of the Charter provides protection against self-incrimination, qualified only by exclusion of perjury prosecutions from the scope of the constitutional protection:

13. SELF-INCRIMINATION – A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Perjury and the Statutory Corroboration Requirement

[72] The elements of the offence of perjury which the Crown must prove beyond a reasonable doubt were articulated in R. v. Eriksen, 2006 YKCA 13, at para. 12:

To convict for perjury the Crown must prove: 1) that the accused made a false statement under oath or solemn declaration; 2) that the accused knew the statement was false when it was made; and 3) that he made the false statement intending to mislead the court…

See also: R. v. Calder, [1960] S.C.R. 892, at p. 897; R. v. Wolf, [1975] 2 S.C.R. 107, at p. 111; R. v. Evans (1995), 101 C.C.C. (3d) 369 (Man. C.A.), at para. 34.

[73] Insofar as the third element, an intention to mislead the court through the making of a false statement, this element can generally be inferred from evidence establishing that the accused knowingly made the false statement: R. v. Pammett, 2017 ONCA 658, at para. 11; R. v. Seath (2006), 2000 ABCA 174, 147 C.C.C. (3d) 133, (Alta. C.A.), at para. 15; Wolf, at pp. 112-114; Calder, at p. 897; Evans, at para. 37; R. v. Hébert, [1989] 1 S.C.R. 233, at p. 235; R. v. Robinson, 2017 BCCA 6, at para. 58 (affd 2017 SCC 52).

[74] It is the elements of the crime of perjury which the prosecution must prove beyond a reasonable doubt, not the corroborative evidence mandated by s. 133 of the Code which is merely an evidentiary requirement: R. v. O’Kane, 2012 MBCA 82, at para. 75.

[75] As observed in Eriksen, at para. 21: “… these cases demonstrate the evil addressed by s. 133, which is the danger that the accused be convicted on a contest, oath against oath, between himself or herself, and another witness.”

[76] Corroboration remains a statutorily prescribed requirement for proof of only four crimes in the Criminal Code: treason (s. 47(3)), high treason (s. 47(3)), perjury (s. 133), and procuring a feigned marriage (s. 292(2)). With the number of crimes for which corroboration is mandatory dwindling over the decades, such a requirement is generally considered to be “an historical anomaly” with “its present value doubtful”: R. v. Bosley (1992), 18 C.R. (4th) 347 (Ont. C.A.), at p. 361; Report of the Federal Provincial Task Force on Uniform Rules of Evidence (1992), at pp. 365-368; A.A. Wakeling, Corroboration in Canadian Law (Toronto: Carswell, 1977), at pp. 128-131.

[77] In R. v. Vetrovec, [1982] 1 S.C.R. 811, the court critically reviewed the historical common law rule of corroboration, established in R. v. Baskerville, [1916] 2 K.B. 658, with the court (at p 820) quoting from Murphy v. The Queen, [1977] 2 S.C.R. 603:

This warning was for many years a matter for the discretion of the trial judge but in 1916, the English Court of Criminal Appeal declared that the practice had become “virtually equivalent to a rule of law” (R. v. Baskerville, supra, at p. 663). The court also took the opportunity, at p. 667, to state that ‘corroboration’ had a precise legal meaning:

We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.

[78] The Vetrovec relaxation of the strictures of the then existing corroboration rule, leading to our contemporary common sense notion of confirmation (R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328; R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162), was limited by Vetrovec itself, at p. 832, to modification only of the common law of corroboration:

I would point out that my comments have been limited to situations in which corroboration is required as a matter of common law. The Criminal Code specifies a number of instances in which corroboration is required, and defines the nature of the corroboration which must be supplied. (See, for example, ss. 139 and 195). The statutory requirements would, of course, be controlling in cases coming under any of those sections.

[79] Insofar as post-Vetrovec jurisprudential qualification of the Baskerville rule, in the context of a statutory corroboration requirement, the foremost authority is R. v. B.(G.), [1990] 2 S.C.R. 3 in which the court, in the context of the former s. 586 of the Code (for conviction, unsworn evidence of child complainant must be “corroborated in a material particular by evidence that implicates the accused”), held at paras. 45 and 50-51, that:

45 It seems to me, therefore, that this Court has clearly rejected an ultra technical approach to corroboration and has returned to a common sense approach which reflects the original rationale for the rule and allows cases to be determined on their merits. This was also the view of the majority of the Alberta Court of Appeal in Chayko. Kerans J.A. cited Dickson J.'s comments on Murphy and Butt in Vetrovec and held that the requirement in s. 586 that the corroborating evidence implicate the accused requires only that the evidence confirm in some material particular the story of the witness giving the evidence which required corroboration.

50 On the other hand, to support the Crown's position, the only wording that is necessary is "corroborated in a material particular". If the section stopped there, its interpretation would not be contentious. However, the section continues and adds "by evidence that implicates the accused". Nonetheless, the addition of these words does not create the same redundancy as does interpreting the provision in accordance with the appellant's position. The extra words are necessary if what is required is that the evidence of the unsworn child implicate the accused. However it does create a redundancy of a different kind since there can be no conviction unless the accused person is implicated by some evidence: indeed, implicated beyond a reasonable doubt.

51 Given the interpretive problems in the language of the section, it is difficult to discern the intention of the legislature by looking at the wording alone. I think we have to apply a purpose approach. In my view, the purpose of s. 586 is to allow the evidence of a witness, otherwise feared to be untrustworthy, to be given weight. Another way of formulating the purpose is to state that the section is designed to ensure that no accused will be convicted on the basis of testimonial evidence that is by its very nature unreliable. In order to achieve the section's purpose, therefore, what is required is additional evidence that renders it probable that the complainant's story is true and may safely be acted upon. Provided that the complainant's evidence is corroborated in a material particular, with or without implicating the accused, the veracity of the witness will be strengthened. A good example in this case would be the evidence of the doctor that the child had indeed been sexually assaulted.

(emphasis added)

[80] The issue inevitably arises as to whether this modification of the Baskerville rule by the Supreme Court of Canada, in the context of prosecutorial proof of sexual crime with a youthful complainant, applies equally to modern-day interpretation of remaining statutory corroboration provisions. In Bosley, after noting the G.B. approach, as well as post-G.B. authorities respecting different mandatory corroboration statutory provisions which had not adopted G.B., Doherty J.A. determined that he need not resolve the difficulties presented by this controversy as to the nature of the evidence which would fulfil a statutory corroboration requirement in the context of the former s. 367(2) of the Code which, in a forgery prosecution, required corroboration of the evidence of one witness in a material particular by evidence that implicated the accused, stating at p. 362:

In R. v. Thind (1991), 64 C.C.C. (3d) 301 (B.C.C.A.), the court considered s. 133 of the Criminal Code which, in terms that are virtually identical to s. 367(2), requires corroboration in perjury cases. Hutcheon J.A., for the majority at pp. 305-308, held that R. v. B.(G.), supra, did not apply to s. 133, and that potentially corroborative evidence for the purposes of that section had to go to demonstrate the falsity of the allegedly perjured testimony.

I need not resolve these difficulties in this case. I will assume that the section applies even where there is not evidence from a single witness which could support the charge. I will also assume that to be corroborative, evidence must confirm or support the evidence to be corroborated in some material particular, and must also implicate the accused in the crime. In deciding whether the evidence said to be corroborative meets these requirements, the totality of the circumstances revealed by that evidence must be considered: R. v. Esposito (1985), 49 C.R. (3d) 193 at 209, 24 C.C.C. (3d) 88 at 102 (Ont. C.A.), leave to appeal ref'd (1986), 50 C.R. (3d) xxv (S.C.C.).

(emphasis added)

[81] In R. v. Neveu (2004), 184 C.C.C. (3d) 18 (Que. C.A.), the appeal court determined that the reductive approaches of Vetrovec and B.(G.) in the realm of corroboration had not impacted on application of the Baskerville principle to interpreting the statutory requirement for corroboration in perjury cases, stating at paras. 9 , 12, 14 and 17:

[9] However, contrary to what some authors claim, Vetrovec has not changed the state of the law in cases where, as in the case of perjury, corroboration is required by a statutory provision. As specifically stated by Dickson J. in this case: "I would like to point out that my comments have been limited to situations where corroboration is required under the common law. The Criminal Code prescribes a number of cases where corroboration is mandatory and defines the nature of the corroboration to be provided. " (our underlines) Therefore, as claimed by the late Professor Fortin, the finding in the judgment Vetrovec the inadequacy of the definition given by stopping Baskerville can not affect the nature of corroboration when it is required by law, as the Supreme Court recognizes…

[12] The role of corroborating evidence provided for in Article 133 C.cr. is substantially different from the substantive requirement discussed in the Supreme Court of Canada decision B. (G). In this case, the Article 586 C.cr., which was still in effect at the time of the alleged acts of the appellant, provided that "no person shall be convicted of an offense on the testimony of a child not under oath, unless the testimony of the child is corroborated in a material respect by evidence involving the accused. In this context, Wilson J., writing for the Court, essentially admits that "s. 586 is intended to increase the evidentiary value of the testimony of a witness who is otherwise feared to be unreliable" (our underlining), asserted that when "the testimony of the complainant is corroborated on an important point, whether or not implicating the accused, the credibility of the witness is strengthened "…

[14] These clarifications therefore explain why the requirement of corroborating evidence of perjury remains fully applicable and why, in this matter, this corroboration must (1) relate to one of the essential elements of the offense and (2) involve the accused in this essential element;

[17] In accordance with its purpose, the corroboration provided by the section 133 C.cr. must necessarily relate to one of the essential elements of the offense and involve the accused in this essential element." It is therefore not enough that the corroboration is about a neutral element; it must be independent evidence that connects the accused to one of the essential elements of the offense or tends to connect him. Concretely, simply so that corroboration is about the falsity of the statement, implying its author (the accused) in a material respect: as the 133 C.cr. the provision, the corroboration has only to relate to one of the essential elements. Mewett and Sankoff in their book Witnesses explain:

From a practical point of view, in perjury prosecutions, it is not the fact that the evidence has given rise to evidence that it needs to be corroborated (viz. the falsity of the statement and the accused's knowledge of that falsity. These are the "material particulars" that will need corroboration if there is only the evidence of one witness.

(emphasis of original)

(footnotes omitted)

[82] Clearly, in interpreting “a material particular” as set out in s. 133, the corroborating evidence must confirm more than an inconsequential part of the story of the single prosecution witness’ evidence which is to be corroborated: R. v. Jackson, [1988] A.J. No. 272 (C.A.), at paras. 16-17; Evans, at para. 50. The corroboration may, however, relate to a point admitted by the accused: R. v. Van Straten (1994), 1994 ABCA 135, 89 C.C.C. (3d) 470 (Alta. C.A.), at para. 13. In addition, in a perjury prosecution, a corroborating witness’ evidence must be independent of reliance on the principal witness’ evidence for its meaning: R. v. Cooper, [2010] EWCA Crim 979, at paras. 10-12, 17-18.

[83] In Evans, at paras. 48-49, the court observed that:

48 The application of s. 133 has given rise to some difficulties in interpretation. There are, for instance, different findings about which element or elements require corroboration. R. v. Nash (1914), 23 C.C.C. 38, 17 D.L.R. 725 (Alta. C.A.) and R. v. Pattyson (1973), 12 C.C.C. (2d) 174, [1973] 5 W.W.R. 203 (Sask. C.A.) hold that corroboration of the falsity of the statement is enough. Other cases however have held that the mental element of the knowledge of falsity requires corroboration. See, for example, Boisjoly v. The Queen (1970), 11 C.R.N.S. 265 (Que. C.A.). As to whether the corroboration should support the reliability of the main prosecution witness see R. v. B.(G.), supra, or directly implicate the accused see R. v. Thind, supra.

49 But what is clear is that there is no case law supporting the proposition that on a charge of perjury the provisions of s. 133 of the Code are not engaged whenever the Crown simply chooses to call in total more than one witness. As noted earlier, the evidence of the "other witnesses" must at least in total deal with "the falsity of the statement alleged to be false." See R. v. Thind, supra. It is thus not enough that the evidence of the "other witnesses" might constitute corroboration as defined in Vetrovec, supra, and subsequent authorities and the trial judge clearly erred in so stating to the jury in this case. To adopt the Vetrovec test alone in a perjury trial would be tantamount to ignoring the plain meaning of s. 133. That, with respect, is what occurred in this otherwise sound charge.

[84] In O’Kane, at paras. 76-77, the court held that:

76 It is important to note that the law regarding the more common form of confirmatory evidence arising from Vetrovec v. The Queen, [1982] 1 S.C.R. 811, does not apply to cases involving perjury. See R. v. Neveu (2004), 184 C.C.C. (3d) 18 (Que. C.A.). Instead, the more rigid historical concepts of corroboration continue to apply to perjury cases.

77 The jurisprudential trend in perjury trials is that the material particular requiring corroboration is the falsity of the statement alleged as perjury. Monnin J.A. (as he then was), in his dissenting judgment in R. v. Bouchard (1982), 13 Man.R. (2d) 344 (C.A.), commented on this (at para. 17):

In other words, the material particular in which corroboration is required is the falsity of the statement alleged as the perjury. The purpose of this rule is to protect an accused from the false testimony of a single witness swearing against him and saying that the accused lied. It has been said that the court should not be left with one oath, (that of the witness) against another oath, (that of the accused). It used to be said that "where there is only oath against oath, it stands in suspense on which side the truth lies". That is simply not sufficient proof in a serious charge of perjury.

[emphasis added] [by Man. C.A.]

[85] In some perjury trials, circumstantial evidence may be the source of corroboration of a material particular of a prosecution’s “one witness”: R. v. Thind (1991), 64 C.C.C. (3d) 301 (B.C.C.A.), at p. 307; R. v. Schertzer, 2015 ONCA 259, at paras. 70-72 (leave to appeal refused [2015] S.C.C.A. No. 242). The s. 133 corroboration requirement to confirm the “one witness” of the prosecution does not apply where the Crown leads circumstantial evidence which is itself capable of proving commission of the perjury crime: Neveu, at para. 19; R. v. Reyat, 2012 BCCA 311, at paras. 48-51 (leave to appeal refused [2012] S.C.C.A. No. 453).

Identification Evidence

[86] “The inherent frailties of identification evidence are well known and have been the subject of considerable judicial comment and review in social science literature”: R. v. Olliffe, 2015 ONCA 242, at para. 36; R. v. Jack, 2013 ONCA 80, at paras. 13-17; R. v. Baltovich (2004), 73 O.R. (3d) 481 (Ont. C.A.), at paras. 79-83.

[87] Over time, inaccurate eyewitness evidence has proven to be a, if not the, principal cause of serious miscarriages of justice. As observed in R. v. M.B., 2017 ONCA 653, at para. 29, eyewitness evidence:

… is inherently unreliable. It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses, and is difficult to discredit it on cross-examination for those same reasons.

[88] An eyewitness’ identification is a non-expert opinion or impression involving subjective processes applied to visual circumstances. While a trier of fact is at liberty to accept some, none or all of the evidence of an eyewitness (R. v. Barkho, 2016 ONCA 62, at para. 17), as noted in R. v. H.C., 2009 ONCA 56, at para. 41, credibility and reliability are different concepts – reliability is concerned with a witness’ ability to observe, recall and recount – there is a “tenuous relationship between a witness’s confidence in identifying” an individual and the accuracy of the witness’ evidence: R. v. Virgo, 2016 ONCA 792, at para. 18.

[89] While a jury direction, or judicial self-instruction, may not be necessary in every case of eyewitness identification evidence as to the caution necessary in assessing such evidence (Vetrovec, at pp. 820-821) it is mandatory in any case where eyewitness evidence “plays a substantial role in the Crown’s case”: R. v. Oswald, 2016 ONCA 147, at para. 4.

[90] In some prosecutions, a witness purports to identify the accused as the person he or she viewed for the first time on a single prior occasion at the time of an alleged incident. This is often termed as identification as distinguished from a witness’ testimonial report of having recognized the person when observed on the occasion of the incident or crime.

[91] Recognition evidence, as “a subset of eyewitness identification evidence, in which the eyewitness’ identification is based on prior experience” (M.B., at para. 33; Olliffe, at para. 39), generally engages the eyewitness describing, as a foundation for his or her opinion/conclusion, prior familiarity with the subject preceding the relevant date of observation. The eyewitness’ degree or level of familiarity with the identified person may, given the specific circumstances of a case, serve to enhance the accuracy of an eyewitness’ identification: R. v. Benson, 2015 ONCA 827, at para. 25; R. v. Smith, 2011 BCCA 362, at para. 31. Be that as it may, the same caution and concerns applying generally to identification evidence are relevant as well to assessment of recognition evidence: Olliffe, at paras. 39-40.

[92] In assessing the ultimate reliability of an eyewitness’ identification, a trier of fact considers the whole of the circumstances including confirmatory evidence, and, in relation to the particular witness’ evidence, a trier will have regard to a number of relevant factors including:

(1) the natural human inclination of viewers, since perception and memory are selective processes, to fill in perceived events with other details, a process enabling presentation of a logical and coherent account largely driven by past experience and personal expectations: R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.), at p. 422 (cited as well in M.B., at para. 31)

(2) the duration of the eyewitness’ opportunity to observe the subject of the identification – simply “fleeting” or qualitatively more sufficient: Jack, at paras. 15, 26; R. v. Davy, 2015 ONCA 38, at paras. 3-4; Virgo, at para. 17

(3) the reliability limitations of cross-racial identification as described in R. v. Lam, 2014 ONSC 3538, at paras. 190-191:

[190] An especial danger in eyewitness identification is the problem associated with cross-racial identification – “the perception that members of one race tend to think that members of another race “all look alike””: R. v. McIntosh (1997), 117 C.C.C. (3d) 385 (Ont. C.A.), at pp. 394-5 (leave to appeal refused, sub nom. McCarthy, 121 C.C.C. (3d) vi).

[191] Although one court has observed that “the greater chance of error on the part of people of one race when identifying those of another than when identifying those of their own is something of which any rational person would be aware” (R. v. Smith, [1994] B.C.J. No. 3090 (C.A.), at para. 8), the risks are significant enough that we regularly instruct jurors about cross-racial identification problems (R. v. Campbell, [2001] O.J. No. 4954 (C.A.), at para. 7; R. v. Richards (2004), 70 O.R. (3d) 737 (C.A.), at para. 32) and expect trial judges to self-instruct on this issue: R. v. Gough, 2013 ONCA 137, at para. 38. We do so without expert evidence because judicial notice can be taken of this phenomenon: McIntosh, at pp. 394-5; R. v. B.M. (1998), 130 C.C.C. (3d) 353 (Ont. C.A.), at para. 105; R. v. Mey, 2011 ONCA 288, at para. 35.

(see also R. v. Gough, 2013 ONCA 137, at para. 30; R. v. Mey, 2011 ONCA 288, at para. 35)

(4) whether the eyewitness’ prior observation was made in circumstances of stress: Virgo, at para. 17; Jack, at paras. 15, 26

(5) in instances of purported recognition evidence, whether the eyewitness’ trial evidence provides only a general, generic and non-specific description of a person which purportedly triggered identification of the subject from the earlier occasion as opposed to recounting idiosyncracies, unique or special characteristics: Benson, at paras. 27-29; Jack, at para. 16; M.B., at paras. 37, 46-47

(6) whether the eyewitness’ reported identification is the product of an independent process untainted by influence or contamination from a second eyewitness: Davy, at para. 4.

[93] An eyewitness’ in-court identification of an accused at trial as the person previously observed is, standing alone, of negligible, or no, probative value given the suggestive circumstances of the courtroom setup and the potential influence of the witness having seen the accused, given his or her compelled appearance, at the trial or preliminary inquiry or other related proceedings: see generally, R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 49-50; R. v. Tebo (2003), 13 C.R. (6th) 308 (Ont. C.A.), at paras. 17-18; Jack, at para. 17.

Discussion

[94] Starting with a procedural point, the indictment alleges that the accused is responsible for “swearing falsely”. This is consistent with para. 4 of the Exhibit #1 Agreed Statement of Facts (“Mr. Thind testified under oath”). The accused did not swear an oath (s. 13 Canada Evidence Act) before Dawson J. on April 30, 2012, opting instead to solemnly affirm to tell the truth both in his testimony in the trial of R. v. Dhanoa and Kler, and in the inquiry conducted by the trial judge (Exhibit #2, certified transcript, pp. 3, 100). It is apparent that the indictment ought to have read “…by solemnly affirming falsely…”, an amendment which would be appropriate within the scope of s. 601 of the Code.

[95] In this trial, the prosecution sought to rely principally on the evidence of Mr. O’Donnell to establish the allegation of perjury that the accused did, with the requisite intent, make a false statement before Dawson J. that “he did not speak to Manjit Dhanoa inside a washroom …” in the Brampton courthouse. The Crown relied as well upon the evidence of Mr. Thomson and the accused’s evidence before Dawson J. during his inquiry into the matter reported to him on April 30 relating to an encounter in the washroom adjacent to the courthouse cafeteria.

[96] In my view, the circumstantial evidence of Mr. Thomson, discussed more fully below, and the accused’s own admission of being in the washroom early in the lunch recess, proximate in time to when O’Donnell reports the accused and Dhanoa to be in conversation at that location, does not achieve an inferential quality of sufficient scope and importance relating to the specific criminal allegation, unlike the Neveu and Reyat cases, to obviate the need for corroboration as mandated by s. 133 of the Code. This is the way I understood the parties to view this case. In any event, whether or not the court considered itself bound by the statutory corroboration requirement, the result would have been no different.

[97] The accused solemnly affirmed before Dawson J. (and was questioned by counsel for Mr. Dhanoa and the prosecutor) that he did not speak to Dhanoa in the courthouse washroom on April 30, 2012. This evidence, amounting to denial of the actus reus of the perjury allegation is, like any out-of-court statement of an accused admitted at trial, evidence capable of speaking in the accused’s favour.

[98] The prosecution’s primary reliance was upon Mr. O’Donnell’s evidence as this witness directly contradicted the accused’s testimonial position stated before Dawson J. Taken at its highest, Mr. O’Donnell identified the accused and Dhanoa as engaged in conversation in the washroom near the courthouse cafeteria. That said, scrutiny of the witness’ evidence raises credibility and reliability concerns.

[99] There is something to Mr. Pillay’s submission that the court ought to entertain reservations about the witness’ credibility. Mr. O’Donnell was prone to wordy and run-on answers to questions. On occasion, the court interrupted the witness to terminate repetitive or unresponsive answers. The witness, at times, was argumentative in cross-examination. He unreasonably resisted admitting facts which might be viewed as minimizing his opportunity for an accurate identification of persons he encountered in the washroom – for example, that his forward motion to reach the urinal lasted 2 to 3 seconds leaving only a “brief” opportunity to identify the individuals. There was a quality about the witness’ overall presentation suggesting that he was making conscious efforts to justify his identification conclusions at the expense of acknowledgment of limitations and weaknesses in those opinions.

[100] Mr. O’Donnell testified to certainty that the two persons in the washroom were Guriqbal Thind and Manjit Dhanoa. Of course, the central issue is the reliability of this testimonial opinion, not the reporter’s sincerity.

[101] Leaving to the side Mr. O’Donnell’s identification of Dhanoa in the washroom and turning to specific reliability problems with the witness’ purported identification of the accused as the person said to have been speaking to Dhanoa, the court has had regard to a number of factors including the following:

(1) the opportunity for observation was fleeting, give or take 3 seconds

(2) the witness was physically closest to Dhanoa and, while moving past him, focused on this person long enough to see the expression on his face and his actions with papers and a briefcase

(3) the witness did not stop but stayed in motion toward the urinal such that Dhanoa was partially positioned between him and the second person in the washroom (see witness’ Exhibit #6 diagram)

(4) Mr. O’Donnell did not want to engage with Dhanoa and felt a measure of stress or concern for his own safety

(5) a focus for the witness’ identification process relating to the accused, as volunteered at the preliminary inquiry (para. 37 above), was the congruence of attire between the person in the washroom and the person in the witness stand during the morning of April 30 – a clothing description entirely irreconcilable with the attire Mr. Thomson reported the accused to be wearing

(6) to the extent that Mr. O’Donnell relied for his identification opinion on the similarity of photos in a trial exhibit book of a person he believed to be the accused to the April 30 witness, and subsequently to a person in the washroom, the trier of fact here cannot critically assess the value of that alleged recognition resource to the reliability of the witness’ conclusion in the absence of viewing those photos

(7) Mr. O’Donnell, clearly and consistently in his evidence, maintained that his identification of the person in the washroom as the accused was founded in part upon recognizing this individual as someone who had testified before the jury in the Dhanoa/Kler trial on multiple days – the accused never testified prior to April 30 – it is unknown whether some other witness in the trial had such a testifying schedule

(8) apart from reliance on identical clothing, the witness purported to make a cross-racial identification with no articulation of specific identifying characteristics of the individual identified as the accused whether in terms of describing facial features, stature, etc.

(9) while Mr. O’Donnell advanced that the significance of seeing the persons in the washroom he recognized as the accused and Dhanoa was tied to a memorable sequence of questions just before the lunch break in which the accused stated that he did not know Dhanoa, the April 30 transcript discloses no such questioning of the morning’s witness.

[102] While I recognize that Mr. O’Donnell has testified here nearly six years later, these features of the witness’ evidence signal caution as to the reliability of his April 30, 2012 identification of the accused. In addition, while aspects of the witness’ testimony suggested that he observed the washroom occupants engaged in conversation, he retreated in cross-examination to indicating that he only heard two-speaker conversation outside and on entering the washroom. While maintaining in his in-chief evidence that he observed Mr. Dhanoa stop speaking, in cross-examination, when confronted with his April 30 evidence before Dawson J. (“if I were to piece things together”), the witness appeared to acknowledge the accuracy of that earlier inconsistent evidence that it was only the person he claimed to be the accused who was speaking.

[103] Mr. O’Donnell’s evidence differed from Mr. Thomson’s evidence on a number of relatively inconsequential matters such as the number of photos of the accused in evidence at the Dhanoa/Kler trial, the duration of the opportunity for jurors to study those photos, the number of jurors at the lunch table, etc. Of more significance is the discrepancy between the Crown witnesses as to whether or not Mr. Thomson, as he maintained, reported to fellow jurors including O’Donnell that he had seen the accused in the washroom before O’Donnell went to the washroom. Mr. O’Donnell had no recall of this occurring. Given that there is no compelling reason to reject Mr. Thomson’s version on this point, this information, related to Mr. O’Donnell before his washroom attendance, may well have influenced who he believed was in the washroom with Dhanoa.

[104] There was no evidence in this trial from the two prosecution witnesses to seeing Mr. Dhanoa and/or the accused emerge from the washroom area.

[105] Mr. Thomson’s evidence identifying the accused in the washroom earlier in the luncheon break suffers many of the same frailties as the evidence of Mr. O’Donnell. For example, while Mr. Thomson, in close proximity, had heard the accused testifying prior to the lunch recess, his opportunity for identification in the washroom was for seconds only at a reported distance of 15 to 20 feet with the subject partly turned away from the witness facing a stall. The witness purported to make a cross-racial identification also without articulation of any specific identifying characteristics of the person observed.

[106] Mr. Thomson’s account, impacted by cross-examination, was reduced to the possibility that the person he believed to be the accused may have uttered one word in a foreign language to himself. The witness heard no voice come from the stall’s occupant. As significant as seeing outward-facing shoes of the stall’s occupant appeared to be to the witness here, that fact was not reported to Dawson J. and there is no particularized description of the shoes – adult or youth sizing, dark basketball shoes or not.

[107] The evidence at trial does not in fact and law corroborate Mr. O’Donnell’s evidence in a material particular implicating the accused.

[108] Alternatively, leaving s. 133 corroboration to the side, and taking into account the evidence of Mr. Thomson and the accused’s evidence before Dawson J. of presence in the washroom, a finding of guilt could not be reasonably sustained on the record applying the circumstantial evidence principles discussed in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 to the totality of the evidence.

[109] While it may seem tempting to reason that because O’Donnell and Thomson, and the accused himself, all place the accused in the washroom at the front-end of the lunch break that, in particular, Mr. O’Donnell’s purported recognition opinion of the accused as the individual speaking to Dhanoa is thereby materially strengthened. In light of the accused’s testimonial denial of speaking to Dhanoa in the washroom, and the very real credibility and reliability concerns with Mr. O’Donnell’s evidence, whether statutory or common law corroboration principles were applied, it would be unsafe to conclude on the totality of the trial record that the perjury allegation has been proven.

CONCLUSION

[110] The accused is found not guilty.

Hill J.

Released: March 9, 2018