Court File and Parties

COURT FILE NO.: CR-17-4682-00 DATE: 2018 11 13 SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN M. Occhiogrosso, for the Crown

• and -

KAMOREY MITCHELL Accused C. Levien, for the Accused

HEARD: October 22-25, 2018

Reasons for Decision

LEMAY J

[1] Early in the morning on December 10th, 2016 there was an altercation in the Firgate & Firkin, a pub in Brampton. As a result of that altercation, Mr. Jason John suffered a significant injury to his face.

[2] As a result of this altercation, the accused, Mr. Kamorey Mitchell faces three charges. The indictment reads as follows:

1. That he, on or about the 10th day of December, 2016, at the City of Brampton, in the Central West Region, did unlawfully commit an assault on Jason John, contrary to section 266 of the Criminal Code of Canada.

2. That he, on or about the 10th day of December, 2016, at the City of Brampton, in the Central West Region, did in person, knowingly utter a threat to Jason John, to cause death to Jason John, contrary to section 264.1(1)(a) of the Criminal Code of Canada;

3. That he, on or about the 10th day of December, 2016, at the City of Brampton, in the Central West Region, did unlawfully commit an aggravated assault on Jason John, by wounding that person, contrary to section 268(1) of the Criminal Code of Canada.

[3] The Crown called Mr. Lucas Marks, a bouncer who worked at the Firkin, as well as the alleged victim, Mr. Jason John and Constables Eric Anderson and Amanda Drexler.

[4] The Defence called Nathan Thompson, a friend of the accused who was at the Firkin the night of the assault. The accused also testified on his own behalf.

[5] There were also exhibits filed in evidence. In addition, there were some admissions as to date, time, jurisdiction and medical records that counsel provided to me. Specifically, the offence took place on December 10th, 2016 at and after approximately 2:15 am at 378 Queen Street East in Brampton.

[6] Finally, at the end of closing argument, Crown Counsel invited me to dismiss the second count of the indictment, being the charge of uttering threats against Mr. Mitchell, and I indicated that an acquittal would be registered on that charge.

Evidence

[7] In the sections that follow, I will outline the basic, undisputed background facts, and then set out the key components of the evidence provided by the Crown and the Accused. Once I have done that, I will set out the law, and my conclusions on this case.

a) The Undisputed Evidence

[8] Early in the morning on December 10th, 2016, there was an altercation in the Firkin and Firgate pub (“the Firkin”) in Brampton. The altercation started when a group of men approached Mr. John and attacked him. They were beating him up, hitting him with fists and hitting him with beer bottles.

[9] The security staff at the Firkin intervened and pulled the attackers off of Mr. John. Mr. John was then behind Mr. Lucas, the head of security for the Firkin, when they were approached by another person who either threw a beer bottle at Mr. John’s face or slashed him with it. Mr. Lucas was between Mr. John and the attacker when the attack happened.

[10] Paramedics were called, and Mr. John was transported to the hospital. He required medical treatment, including well in excess of thirty (30) stitches on his face, as a significant gash had been opened up in his lip and his left cheek.

[11] Mr. John had therapy on his face for approximately eight (8) months after the accident. Mr. John still has problems, particularly a loss of sensation on cold days, with his face. He also still has a visible scar on his face.

b) The Crown’s Evidence

Mr. Lucas Marks

[12] At the time of the assault, Mr. Marks had worked for the Firkin in security for approximately eight years. He described himself as the head of Security for the pub. He was one of three security staff on duty that night, and his job was to check ID’s, break up any fights and remove intoxicated patrons.

[13] Mr. Marks described the victim of the assault as a large (meaning very muscular) African male who clearly worked out. Mr. Marks testified that he had not had any conversations with the victim prior to the assault taking place. The assault started with approximately four or five people attacking the victim.

[14] Mr. Marks stated that he did not know the patrons who were attacking the victim. He also saw another person in a red sweater hitting the victim, but confirmed that, at this point, the victim was not bleeding and had not suffered any serious injuries. At this point, Mr. Marks went to get his colleagues so that they could assist him.

[15] Mr. Marks described coming back and breaking up the fight. When he broke up the fight, he stated that most of the people started to leave the Firkin. Mr. Marks testified that, at that point, the victim was leaning on his back. A lone male then approached them. Mr. Marks asked the lone male, who Mr. Marks described as a light-skinned African male wearing a hoodie and a T-shirt with a We the North logo, to back off. Instead, the lone male threw a Budweiser beer bottle at Mr. John.

[16] Mr. Marks did not see the beer bottle hit the victim. However, he turned around to see the victim almost immediately after the bottle was thrown and noted that the victim’s face was now bleeding from a cut. Mr. Marks had not seen any injury on the victim’s face prior to the beer bottle being thrown. At this point, paramedics and police were called.

[17] Mr. Marks was interviewed by the police and provided them with a statement. He described the attacker as being regular, with short hair and wearing grills (metal things over your teeth). Mr. Marks was not asked to participate in a photo line-up by the police.

[18] At trial, Mr. Marks identified the accused as the person who threw the beer bottle at the victim. Mr. Marks made that identification on the basis that the accused was a “regular” at the pub, and that Mr. Marks had seen him on most Fridays or Saturdays for a number of months prior to the assault. Mr. Marks has not seen the accused (except at hearings) since the assault in December of 2016.

[19] Finally, in summarizing Mr. Marks’ evidence, I note that he did not identify Mr. John as the victim of the assault. However, with the medical records that were entered on consent, along with the other evidence I describe in these reasons, it is clear that Mr. John was the victim that Mr. Marks was referring to in his evidence.

Mr. Jason John

[20] Mr. John was the victim of an assault on December 10th, 2016. He is currently unemployed. At the time of the assault, he worked as a bouncer at 52nd Street, which is another bar in Brampton. He had been working there for a number of years. He is currently unemployed, and testified that the injuries that he suffered as a result of this attack made it impossible for him to continue to work as a bouncer.

[21] He testified that he had gone to the Firkin that evening in order to see if he could get another job as a security guard, because 52nd Street was slow. Mr. John testified that he arrived at the pub at approximately 11:00 pm the night before. He spoke with a number of the security guards about the work and the pub. He estimated that he would have talked to three security guards, and that there were somewhere around 5 or 6 of them working that night.

[22] During the course of the evening, Mr. John was approached by another male patron, who asked Mr. John if he remembered the other patron. Mr. John stated that he did not remember this patron, and the patron identified himself as someone who had been thrown out of 52nd Street by Mr. John approximately six (6) months previously. This other patron then told Mr. John that “tonight is your night”.

[23] Mr. John then observed this patron go around to other patrons and speak to them. Another patron also came up to him and said that “tonight is your night”. At this point, Mr. John became more concerned, and was considering leaving the bar if the patron who had originally remembered him went to the washroom.

[24] The patron who had originally said “tonight is your night” then came back and stood in front of Mr. John. This patron started to wave his hands up and down in front of Mr. John’s face, and Mr. John thought that his assailant was looking to start an argument. At this point, approximately 10-12 people swarmed Mr. John, who put his hands up over his head in a protective way.

[25] Mr. John testified that he was beaten with beer bottles and kicked all over his body. At this point, security came and started to peel people off of Mr. John. Once security had removed the people attacking Mr. John, he testified that they formed a line to keep others away from him. Mr. John then testified that he was rushed by the original patron, and that he was hit with a bottle.

[26] Mr. John did not realize the extent of his injuries at first. He could feel blood dripping down onto his shirt and lower body. Security assisted him with his injuries, and he was transported to Brampton Civic Hospital, where he was treated for his injuries.

[27] Mr. John provided the police with a description of his assailant, as being a slim, fair skinned person with a beard.

[28] At the preliminary inquiry, Mr. John testified that he obtained information about who the accused might be from friends of his who showed him a photo of someone with a cut on his hand from smashing someone on the face. Mr. John believed that this photo had been found on FaceTime [sic] or some other social media site.

[29] However, Mr. John’s testimony at trial was that he found out that the person that he had ejected from 52nd Street was going to Masta’s Lounge. He was told this information by his boss at 52nd Street.

[30] When confronted with this inconsistency in cross-examination, Mr. John thanked Defence counsel for refreshing him, and adopted the explanation that he gave at the preliminary inquiry.

[31] After receiving this information, Mr. John went to Masta’s Lounge and waited outside one evening about a month after the attack. He saw someone who looked like his assailant come out of Masta’s Lounge and get into a Black Civic. Mr. John followed this car to a gas station on Queen Street in Brampton, and testified that in the bright lights at the gas station, he was able to identify his assailant.

[32] Mr. John then went back to Masta’s Lounge and asked the owner of the bar for the videotape. He was provided with this tape, and produced a photograph from the videotape that he provided to the police. This was provided prior to Mr. John participating in the photo line-up.

[33] Mr. John attended at two line-ups, and testified that he did not really know why a second line-up was required. The videotape of the second line-up was entered into evidence. Mr. John confirmed that he was looking at the video from Masta’s Lounge on his iPhone immediately prior to the second photo line-up being conducted.

[34] In the course of that second photo line-up, Mr. John identified the accused as his assailant. There is no dispute that the photo that Mr. John selected is a photo of the accused.

[35] Finally, during the course of his cross-examination, Mr. John was asked to confirm whether the majority of the people at the Firkin on the night he was attacked were black. He did not agree with this statement. Then, he was confronted with his testimony from the preliminary inquiry where he did state that the majority of people at the Firkin were black. His response to that question was to say that looking at the crowd was not really his intention that evening.

Cst. Eric Anderson

[36] Constable Anderson has been employed by the Peel Region Police for just less than ten years. He conducted a photo line-up with Mr. John in this case. It was the second photo line-up that had to be conducted. The photo line-up was videotaped, and counsel for the Defence does not take any issue with the integrity of this part of the identification process.

[37] During the course of this photo line-up, which was conducted on February 14th, 2007 at approximately 11 pm, Cst. Anderson testified that Mr. John identified a photo of the accused as the perpetrator of the attack on him.

Cst. Amanda Drexler

[38] Constable Drexler has been with the Peel Regional Police for approximately twelve (12) years. She was the Officer in Charge of this investigation. She was assigned this investigation on December 11th, 2016 by her Sergeant.

[39] Constable Drexler testified about how she determined that the accused was the perpetrator of this crime. She first obtained descriptions from the witness statements, including the statements from Mr. John and from Mr. Marks. Those statements indicated that the accused was a biracial male with light skin a goatee and buzzed hair. He was also identified as slim.

[40] With that information, one day Mr. John came into the police station and identified that the perpetrator of the crime had the nickname “Killa”. Based on that nickname, Cst. Drexler conducted a database search and obtained six results. None of these six results matched the description of the perpetrator that Cst. Drexler had.

[41] As a result, she asked the Guns and Gangs group to provide her with any photos that they had. They provided a photo of the accused for inclusion in the line-up.

[42] Cst. Drexler testified that there were actually two photo line-ups that were conducted. The first could not be used because it had been completed by an inexperienced officer who forgot to have the photographs signed, dated and numbered. As a result, a second one was done.

[43] When Mr. John attended for the second photo line-up, he was told that there had been a mistake with the first photo line-up and that it had to be redone.

[44] Prior to preparing the photographs for the photo line-up, Cst. Drexler was provided with a photograph that was taken from the Firkin. She testified that she had received this photograph a day or two after the incident took place. It had been collected by a Cst. Van Rolte, who did not testify before me. It was taken off of the security system in the bar, and shows a person wearing a hoodie and a “We the North” t-shirt. It is date stamped December 10th, 2016, around the time that the incident took place, although I did not hear any direct evidence about the security system or the photo. This photo was marked as an exhibit for identification purposes, but is hearsay.

[45] Cst. Drexler also testified that she also received the photo that Mr. John identified from Masta’s Lounge prior to completing the line-up, but that she did not use this photo in preparing the pictures for the line-up.

[46] Finally, Cst. Drexler confirmed that only security guards at the Firkin were interviewed. She also testified that she visited the Firkin and spoke to one of the bartenders while attempting to download the video from the bar, but that this bartender did not want to provide a statement or become involved.

c) The Defence’s Evidence

The Accused

[47] The accused testified in his own defence. He testified that, at the time of this incident, he was living with his partner and their two kids. At the time, the children would have been two years old and an infant.

[48] The accused was not completely sure what he was doing on December 10th, 2016, but recalls being home that evening. He was not working at that point, but would be responsible for daycare drop-offs and pick-ups, as well as other activities around the house.

[49] He also testified that he had been to the Firkin as well as Masta’s Lounge, but that he had never been to 52nd Street. Of the three bars, 52nd Street was the one closest to the accused’s house. He testified that, when he went, he would go by himself and meet up with friends. He denied that he was a “regular” at the Firkin, but acknowledged that he had been there a number of times in the six months before the incident.

[50] Crown counsel suggested to the accused that he was in the bar on the night that the incident happened, and that he was the perpetrator of the assault. The accused denied these suggestions.

Nathan Thompson

[51] Mr. Thompson is a friend of the accused. He is currently employed at the Firkin, and has worked there for the past eighteen (18) months. He was at the Firkin on December 10th, 2016 and recalls seeing the fight take place. He was at the bar on his own, waiting for his turn to play pool.

[52] He stated that he was standing on a raised platform just above the pool tables at the back of the Firkin when the fight broke out, and that he saw a person in a red shirt start to throw punches at the victim right near the pool tables. Mr. Thompson confirmed that the lighting in this area was bright.

[53] Mr. Thompson confirmed that he saw approximately 12 people involved in the fight with the victim, and that security also became involved. Mr. Thompson saw security breaking the fight apart as well. As the fight was ending, Mr. Thompson was involved in crowd control, and encouraging people to either leave or to stay away from the fight. Mr. Thompson left the bar before the police arrived as he did not want to be involved.

[54] Mr. Thompson confirmed that he was friends with the accused, and had met him at the Firkin sometime in the year prior to the fight. Mr. Thompson testified that he did not see the accused at the Firkin the night of the fight, and that if the accused was at the Firkin, he would usually come over and say hello to Mr. Thompson.

[55] Mr. Thompson also confirmed that he found out that this matter was going to trial in the summer of this year. Mr. Thompson was visiting his cousin, who is also a friend of the accused, and the subject of this proceeding came up.

The Relevant Law

[56] As can be seen from the factual summary set out above, this is a case where identity is the sole issue. It is uncontroverted that Mr. John was the victim of a serious assault at the Firkin in the early morning hours of December 10th, 2016. The question is whether the accused was the perpetrator of that assault.

[57] In answering that question, there are two key areas of the law that I must remember. First, this is a credibility case. Therefore, I must be mindful of the instruction in R. v. W.D., [1991] 1 S.C.R. 742, where Cory J. stated (at 758):

First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[58] This analysis is not a formula. Instead, it is a framework for conducting credibility assessments. In addition, it has been modified to include a fourth possible outcome. Specifically, if I do not know whether or not to believe the accused but I am nonetheless in a state of reasonable doubt based on the evidence that I have heard, then I must acquit the accused.

[59] Second, there is the issue of witness identification. This is perhaps one of the most difficult areas in fact-finding in the criminal law, as it goes to both the credibility and reliability of witnesses, which are separate concepts (see, for example, R. v. H.C. 2009 ONCA 56). In this case, I am more concerned with the reliability of the witnesses rather than their credibility. I accept that the Crown witnesses who identified the accused as the assailant were testifying in a credible manner, meaning that they were honestly trying to convey the truth as they remember it to me. The question is whether they did so reliably.

[60] Both parties provided me with case-law on the issue of witness identification. The Crown provided me with R. v. Jimaleh (2018 ONCA 841), and the defence provided me with R. v. Carrol (2014 ONSC 616), R. v. Dhillon ([2005] O.J. No. 2565), and R. v. Alexander (2012 ONSC 7117).

[61] I start from the proposition that I have to approach witness identification evidence carefully, as the dangers of this evidence are well-known in criminal law. I also acknowledge that as the trier of fact I must engage in a critical review of this evidence.

[62] The decision in R. v. Alexander sets out a list of factors that should be considered in determining the weight to be given to identification evidence (see paragraph 27). The decision in Jimaleh, supra. cites to R. v. Virk (2015 BCSC 981), which sets out a list of helpful factors to consider in weighing this evidence. All of these cases contain many of the same factors. The ones that are most relevant to this case are as follows:

a) The duration and conditions under which the observations were made, including whether any of the witnesses’ ability to make observations were impaired. b) What emotional state was the witness in when he or she saw the person they were observing? c) Did the witness have previous dealings with the person that they have identified? d) How much time passed between the incident and the subsequent identification? e) Have there been any intervening factors between the incident and the witness’s statements to the police? Was the witness shown images of the accused prior to making the identification? f) How detailed was the witness’s description of the assailant? Were the descriptions detailed or merely generic? g) Are there any material discrepancies between the description of the assailant given by the witness and the appearance of the accused?

[63] I will analyze each of those factors in the next section.

Analysis and Conclusions

[64] Since identity is the sole issue, then the question is whether the Crown has proven the identity of the assailant beyond a reasonable doubt. In my view, the Crown has not met this burden.

[65] First, I start with the identification evidence of Mr. John. On the day the assault took place when the assailant identified himself to Mr. John, he did not remember his assailant at all. On the day of the assault, Mr. John would have had a short period of time from the moment that the assailant approached him the first time and said “tonight is your night” and the moment when the assault happened.

[66] In terms of the assault itself, it must be remembered that there were between 6 and 12 people assaulting Mr. John at once. He was struck with the beer bottle at the end of the fight, while he was standing behind security. Mr. John testified that he was zipping his hoodie up when his assailant ran towards the line of security staff and slashed at his face with the beer bottle. He would only have had a moment to look at his assailant, and it would have been in very trying circumstances.

[67] Then, there is the description that Mr. John gave the police of his assailant. It was not detailed and rich, but a more vague description as a slim, fair skinned person with a beard. This is a description that is both subjective (fair skinned and slim), and generic, in that there are a lot of people who could fit this description. It is of limited value in establishing identity.

[68] It was not until a month later that Mr. John obtained information that might allow him to identify the accused as his assailant. This is a very long period of time between the assault and the identification. Then, even when Mr. John obtained this information, it is not clear to me what he obtained or how. His story on how he came to be able to obtain a photograph of the accused in Masta’s Lounge is not clear or consistent.

[69] I accept that Mr. John was given a photograph of someone who looked like his assailant by a friend, and that this photograph came from Facebook. The problem is that I do not have the photograph in evidence. It is not even clear on the evidence whether this was a photograph of the alleged assailant’s face, or just his hand. There is also no detailed evidence before me as to what led Mr. John’s friends to conclude that this was his assailant. In other words, it is possible that this photo tainted Mr. John’s identification evidence, and there is no way for me to measure that taint.

[70] Then, there is the identification that takes place at Masta’s Lounge. It is based on Mr. John seeing someone from some distance away in the dark, following that person to a gas station and then confirming identity under the lighted canopy at the gas station. This identification would have been made at some distance, and for a limited period of time. Again, it is not entirely reliable.

[71] While there is no dispute that Mr. John identified the accused in the photo line-up, it is not clear to me that this evidence is reliable, given the circumstances of the attack on Mr. John, the manner in which he came to learn that the accused might be his assailant, and the large gap in time between the assault and the photo line-up. Mr. John’s identification evidence, on its own, clearly raises a reasonable doubt.

[72] The question then becomes whether the other evidence tendered by the Crown eliminates that reasonable doubt. It does not. That evidence amounts to two things. First, there is the photograph of a person who may have been at the Firkin wearing a “We the North” T-shirt. Second, there is the evidence of Mr. Marks. I will deal with each in turn.

[73] The photograph of the person wearing the “We the North” T-shirt was not tendered into evidence for the truth of its contents. Counsel for the Crown argued that this evidence would assist me in finding that the photo line-up was reliable. I reject that assertion for two reasons. First, the photograph is not clear enough for me to be able to establish more than a general, generic resemblance to the accused. Second, the photo was not used to create the line-up.

[74] This brings me to the evidence of Mr. Marks. While credible, it also has problems with reliability. Mr. Marks testified that he had spoken with the assailant on a number of occasions prior to the assault, and had seen him in the Firkin on a number of occasions prior to the day of the assault. This is a factor that enhances Mr. Marks’ identification of the accused.

[75] The problem, however, is that Mr. Marks first made his identification of the accused at trial. This is almost two years after the assault took place. Further, Mr. Marks agreed that he had not seen the assailant at all since the assault took place. The very lengthy gap, in and of itself, raises significant concerns. In addition, however, there is the fact that the accused was sitting where the accused would be expected to be at a criminal trial. As a result, it is possible that Mr. Marks’ identification of the accused was tainted by this fact.

[76] Even when taken together, the evidence that the Crown tendered in this trial does not establish, beyond a reasonable doubt, that the accused was the person who assaulted Mr. John.

[77] Finally, there is the evidence tendered by the defence. The accused’s denial that he was at the Firkin on December 10th, 2016 was challenged on the basis that he was out regularly on weekend nights and that the Firkin was one that he had frequented regularly in the months prior to the assault. The challenges to this evidence, and the answers that the accused gave, raise questions as to whether the accused was actually at the Firkin on the evening the assault took place. However, any problems with this evidence do not come close to overwhelming the reasonable doubts that I have.

[78] In addition, there is Mr. Thompson’s evidence. Although he is a friend of the accused, he was also a credible witness. His version of events was consistent, he was not evasive on cross-examination, and he conceded relevant points when asked about them by the Crown. In addition, some of his particulars about the assailant in the red sweatshirt match the evidence of Mr. Marks.

[79] Therefore, Mr. Thompson’s evidence that the accused was likely not at the Firkin on the evening of the assault adds to the reasonable doubts that I already have.

[80] Accordingly, for the foregoing reasons, I find the accused not guilty of counts 1 and 3.

LEMAY J Released: November 13, 2018