COURT FILE NO.: CR-18-0035-00 DATE: 2018-12-03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN A. Brown, for the Crown
- and -
LUKAS NGANGA NGUGI G. Joseph, for the Accused Accused
HEARD: November 13-15, 2018, at Thunder Bay, Ontario Mr. Justice W.D. Newton
WARNING AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.
Reasons For Judgment
Overview
[1] Lukas Nganga Ngugi stands charged with the following offences:
- That he, on or about the 23rd day of July in the year 2016 at the City of Thunder Bay in the said Region, did commit a sexual assault on E.L., contrary to Section 271 of the Criminal Code.
And further
- That he, on or about the 23rd day of July in the year 2016 at the City of Thunder Bay in the said Region, with intent to enable himself to commit the indictable offense of sexual assault, did attempt to render E.L. unconscious by choking E.L. with his hands, contrary to Section 246 (a) of the Criminal Code.
[2] The complainant and her common-law spouse testified as did the sexual assault examination nurse and the officer who first interviewed the complainant. The complainant identified the accused from a photo lineup. The investigating officer and the officers involved in the photo lineup testified. The officer who arrested the accused also testified.
[3] No forensic evidence was collected. The accused did not testify.
[4] Central issues in this trial are the reliability of the complainant’s testimony and the reliability of the photo lineup identification.
The Evidence
The Complainant
[5] E.L. is 31 years old. She openly acknowledged her problems with addiction, both alcohol and drugs, which has led to a number of convictions for theft and fraud. The issue is not her lifestyle; I acknowledge that her lifestyle may make her more vulnerable to attacks such as the attack alleged here. The issue is whether her drug use has affected her reliability as a witness. On many occasions, she has given different descriptions of the time and circumstances of the attack, the appearance of her attacker, her clothing, and her injuries. However, her description of the location of the attack has remained consistent. She is certain that the accused is her attacker.
[6] She described the attack as occurring “just after 2:00 a.m.,” “after bar running time.” She testified that she had left her apartment where she resided with her common-law spouse to retrieve money that she was owed from a bootlegger. Her intention was to get what she was owed and purchase more drugs. She had been home with her partner and testified that she had smoked “crack” about three or four hours before she left her apartment. She said that she watched a movie with her partner and then left to get her money.
[7] When she arrived at the bootlegger’s, she said, there were three other people plus the accused present at the window. She stood aside while the others bought their alcohol so she could receive her money in private. She described the lighting as “dark,” “not very bright.” She said the accused bought two bottles of beer. She testified that the man that she identified as the accused wanted her to go back to his apartment with him and that he was trying to offer her money to have sex. She responded that she did not want to do that. After the others left, she spoke to her friend and got her money and began walking back to her apartment.
[8] A short distance from the bootlegger’s she encountered the same man she identified as the accused. She said there was a streetlight at that location. She said that the man was waiting for her. She said that he was “drunk,” “smelled like alcohol,” and “like dirty old tobacco.” In her testimony, she described him as “5’6, 5’7”, “a little bit, I think taller than me” with a “thin muscular build.” She described his hair as black and “almost like pre-dreadlock, like little balls.” She said that he spoke with an accent. He told her his name, which was something that started with an “M,” and repeated his desire to have sex with her for money, but she declined. She said that he was smoking a cigarette and that she asked him for a cigarette. She testified that he told her that he did not have any with him but that he had some in his apartment close by so she went with him. She identified the house as a large red and brown brick house with multiple apartments surrounded by a chain-link fence. She identified a photograph of the house. She testified that she followed the accused up the stairs to the porch or veranda and then entered through the main door and followed the accused downstairs. When the accused opened the door, which she described as “his door,” the accused handed her a cigarette and, at the same time, grabbed her wrist and pulled her into the apartment.
[9] She described the door as “on the right-hand side,” and she did not know if there was one or two apartments downstairs. She thought that altogether there were four or five doors in the basement but did not recall “100% though.”
[10] When the man she identified as the accused grabbed her arm, he pulled her into the apartment, and they fought. She said that he got her to the ground and began choking her with both hands. She said that he got her pants partway down and choked her to the point that she blacked out. She said that he penetrated her with his penis, and “at that point, I gave up.” She testified that he “came” inside her.
[11] She said that she does not remember much after the assault other than walking away from the apartment.
[12] She said that she was wearing stretchy black pants that were ripped during the assault. She said that she threw the pants away sometime during the week following her attack. She said that she had bruising on her knees and on the lower part of her calves and bruising on her arms. She said that her finger was broken from the door being slammed on it.
[13] After the assault she said that she took some medication that she had and then took drugs which made her “incoherent for a week so I did not have to think about it.” She said that she only remembered “like bits and pieces of the whole week after this.” She said that she called her common-law spouse, that he picked her up from a motel room, and that she did not remember what she was doing during that week.
[14] In her testimony, she was certain that the accused was her attacker: “100% I would be able to say who he is. I have his face engraved in my mind.” She identified the accused in the courtroom as the “black male” with the “nappy dreaded hair.” She testified that he shaved his hair after the attack and that his appearance in the courtroom was exactly how his hair was when she was attacked. She described it as like “little pre-dreadlocks.” Although it was dark in the basement apartment where the attack took place, she said that she was not going to forget what he looked like: “I looked at him once and then I did not look at him again.”
[15] She was arrested on outstanding warrants and taken to the correctional facility. She told the facility nurse about her attack and then was taken to the hospital and met with a police officer.
[16] When she first spoke to the police, she testified that she described her attacker as “a black male, in maybe like his late 30s, mid 30s, black, very dark, the nappy hair that is almost like in dreadlocks… very short though, and where he lived…”
[17] In cross-examination, she said that she had called the police to report this assault before she was arrested and said that the police told her that she would have to come down to the station to make a report but that she did not attend.
[18] When questioned about the appearance of her attacker, she said that he was about her height (5’6”), maybe a little bit taller. She said that he was wearing a white shirt with a grey jacket over top and that he had a thin athletic build probably 180, 170 pounds. She was confronted with her testimony at the preliminary inquiry where she testified that the attacker was shorter than her “so maybe 5’5”.”
[19] In cross-examination, she testified that her attacker was wearing a white shirt with yellow lining, blue jean shorts, and black shoes or boots. At the preliminary inquiry, she thought he was wearing a black shirt, “camo” pants, and light coloured boots.
[20] In her video statement taken August 5, 2016, she said that her attacker was wearing a black sweater with yellow stripes, perhaps on the sleeve, with a flower symbol on the chest and black or dark green shorts or pants. At that time, she told the police that she did not know what her attacker was wearing on his feet.
[21] In cross-examination, she said that she might have had a pair of silver jeans on top of her black stretchy pants. In her statement to the police, she said that she was wearing a pair of jeans.
[22] When asked about apartments on the lower level, she said that she did not remember but thought that there were maybe four or five. She stated that his apartment was “definitely on the right-hand side.”
[23] When cross-examined about her examination by the sexual assault nurse she said that she did not believe that her attacker used a condom and disagreed with the assertion that the sexual assault nurse did not find a visible injury to her labia.
The Complainant’s Common Law Spouse
[24] Her common-law spouse testified that she left their apartment in the afternoon and was sober and had not consumed any drugs. “Roughly five days later,” he got a telephone call from her and picked her up at a motel.
The Sexual Assault Examination (SAE) Nurse
[25] The SAE nurse examined E.L. about 10:00 p.m. on August 2, 2016, for approximately two hours. The nurse recorded that the complainant said that the assault occurred on July 23, 2016, between approximately 11:30 p.m. and 2:00 a.m. She admitted to drug use (“crack”) three to four hours before the assault.
[26] On physical examination, pre-existing scars were noted on the complainant’s lower legs. Light bruises were observed on her lower legs. Her upper body was not assessed as per her wishes. No visible physical injuries were noted to the head. A separate assessment was done of the head and neck due to the allegation of strangulation. No injury was observed, but it was noted that the complainant complained of neck pain after the assault, voice changes, and a sore throat.
[27] The examination of her external genitalia was within normal limits. An internal examination was declined. It was noted that the complainant said that “for two – three days post assault, small tear to the labia minora at 1 o’clock area”.
[28] Due to the passage of time since the alleged assault, no forensic evidence was collected other than vaginal swabs. In response to questions, it was recorded that the complainant did not know whether a condom was used or whether the assailant ejaculated in or on her. With respect to alcohol or drugs consumed by the assailant the answer is recorded as “unknown.”
PC Lambert – First Report to Police
[29] Constable Lambert testified that she interviewed the complainant at the hospital. E.L. gave Constable Lambert a description of the building where E.L. said the sexual assault occurred. E.L. also gave a description of her attacker.
[30] Constable Lambert said that the complainant described her attacker as male, very dark skinned, short in stature and thin build.
[31] With the description of the building, Constable Lambert attended 126 Court Street in Thunder Bay. As a former beat officer in that area, she recognized the description of the building provided by the complainant. She entered the building and obtained the name of the landlord from a tenant and spoke to the landlord by telephone. Objected to as hearsay, but admitted as part of the narrative, the officer testified that the landlord told her that he had one tenant in the basement who he identified by name. She looked that name up on the police computer system and discovered a picture of the accused, a description, and an address of 126 Court Street, basement apartment.
[32] In cross-examination, Constable Lambert noted that the complainant first thought that the assailant might have been part of an Ottawa “gang” and that his name might have started with the initial “M.” She advised that the description that was first given was that the assailant was in his mid-to-late 20s, was 5’4” and “short.” She advised that the complainant told her that the assailant had a “shaved head.”
[33] Constable Lambert acknowledged that the complainant had said that she began remembering this incident on Thursday, July 28, 2016. This was the day before the complainant was arrested.
Detective Constable Biloski – Video Interview and Investigation
[34] Detective Constable Biloski interviewed the complainant on August 5, 2016, at the correctional facility where she was incarcerated. After the interview, the Detective Constable had a civilian member of the police service assemble photographs for the photo lineup and requested the assistance of other officers to conduct the lineup which occurred on August 11, 2016.
[35] Follow-up investigation included attempting to speak to the woman who was operating the bootlegging operation on the evening that the complainant and her attacker were present. Despite attempts to contact that woman, the Detective Constable did not hear back from her.
[36] Detective Constable Biloski also acknowledged that, despite the complainant’s assertion, there is no indication that she had complained to the police by telephone before. In cross-examination, he confirmed that it would be unlikely that the police service would have failed to respond to a call about a sexual assault. He confirmed Mr. Ngugi’s actual description, as contained in police files, which stated that Mr. Ngugi is a black male, age 39, 5’8” tall, and weighing 122 pounds. The address was listed as Basement – 126 South Court Street, Thunder Bay.
The Photo Lineup
[37] The photo lineup was conducted on August 11, 2016, by Constables Middleton and Rider, both of whom, in accordance with policy, had no other involvement with this investigation. The procedure for the photo identification is reduced to writing in a one page document entitled “Photo Identification Session Officer Procedure.” With that procedure is a script of instructions which the officer reads to the witness. Both the procedure and the script documents were filed as an exhibit. Constable Middleton conducted the session. Constable Rider videotaped the session. The audio videotape of the session was also played and filed as an exhibit.
[38] It is not contested that Constable Middleton, who had not conducted a photo lineup before, did not follow the procedures and instructions. Although the photo lineup package consisted of 12 photographs, he did not show all photographs to the complainant but stopped after the complainant identified the person depicted in photograph number nine as the person who assaulted her. It is also acknowledged that the complainant’s comments were not recorded on the appropriate form as discussed in the procedure.
Photo Lineup Video
[39] The duration of the video depicting the photo lineup from the commencement of instructions until the complainant identified the image in photograph number nine as her attacker is less than five minutes.
[40] E.L. responded “no” without hesitation to the photographs numbered 1, 3, 4, 6, and 8. To photograph number 2, she responded, “I do not think so.” To photograph number 5, she said with some hesitation, “no.” To photograph number 7, she said, “no, that is not him.” To photograph number 9, she said, “pretty sure that is him… almost positive that is him” and then after some hesitation “yes, that’s him.”
[41] All photographs are of black males. Some have shaved heads or are balding. Some have some facial hair. Most have shorter hair. Photograph nine, the accused, is one of two photographs that feature men with longer hair. It is difficult to judge the age of the males in the photographs other than that the males range in age from perhaps mid-20s to early 40s.
The Arresting Officer
[42] Constable Brennon arrested the accused on August 20, 2016, at a bar close to his residence. Police had received information from bar staff that the accused was present. The bar staff was provided with a description of the accused as a black male, 39 years old, 5’8” tall, weighing 122 pounds with an address of 126 Court Street, basement apartment, Thunder Bay. The accused was arrested without incident. Possessions seized from him include a lighter and wallet.
[43] Officers did not attend at the accused’s apartment or the basement of the apartment building.
[44] In cross-examination, the officer admitted that the accused’s hair was similar to what was depicted in the photograph she had been provided through the information systems. The officer confirmed that the accused’s head was not shaved when arrested.
Position of the Parties
[45] The Crown acknowledges that there are some inconsistencies in the complainant’s identification evidence but that those inconsistencies are not material and understandable given the surrounding circumstances including lighting, the passage of time, and the trauma of the attack.
[46] The Crown also acknowledges that the lineup procedures were not followed to the letter but that any noncompliance with procedure did not affect the integrity of the process. Any deviation, the Crown submits, goes to the weight to be given to that evidence.
[47] The Crown points to the uncontradicted evidence linking the accused to the location of the attack as conclusive of his guilt.
[48] Mr. Joseph, on behalf of the accused, points to the frailty of the complainant’s identification evidence and submits that the complainant’s evidence is not reliable given her contradictory statements about the attacker’s appearance, age, and clothing.
[49] He emphasizes that photo identification evidence must be scrutinized carefully and reminds me that certainty does not equate to accuracy. He submits that I should give the photo identification evidence little weight given the failure to compose a lineup similar to the original description given by the complainant and the failure to show all the lineup photographs.
[50] Mr. Joseph points to the failure of the Crown to satisfy me that the accused was the only black male present in the basement of the building at the time of the assault.
The Law
Presumption of Innocence and Proof Beyond a Reasonable Doubt
[51] Every person charged with an offence is presumed to be innocent unless and until the Crown proves guilt beyond a reasonable doubt.
[52] The phrase “beyond reasonable doubt” is a very important part of the criminal justice system. It is not enough for the trier of fact to believe that the accused is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. David Watt J. in Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thomson Reuters, 2015), at p. 262, describes the reasoning process as follows:
If, at the end of the case, after considering all the evidence, you are sure that [the accused] committed the (an) offence, you should find [the accused] guilty of it, since you would have been satisfied of [the accused’s] guilt of that offence beyond a reasonable doubt.
If, at the end of the case, based on all the evidence or the absence (lack) of evidence, or the credibility of one or more of the witnesses or the reliability of his or her evidence, you are not sure that [the accused] committed the (an) offence, you should find the accused not guilty of it.
Credibility and Reliability
[53] In R. v. M. (A.), 2014 ONCA 769, at paras. 12-13, the Court of Appeal succinctly set out the following principles which are particularly relevant to this case:
[12] Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.
[54] As was noted by the Court of Appeal in R. v. O.(L.), 2015 ONCA 394, at para. 35, “an isolated, minor inconsistency in a sea of otherwise consistent descriptions of the relevant events would have far less impact on… credibility and reliability than would several material inconsistencies going to the heart of her allegations.”
Eyewitness Identification
[55] The standard jury instruction on the frailties of eyewitness identification evidence emphasizes that an apparently convincing witnesses can be mistaken and that confidence and accuracy are “two different things.” [1] In R. v. Hibbert, 2002 SCC 39, at para. 52, Abour J. stated that it is “prudent to emphasize … the very weak link between the confidence level of a witness and the accuracy of that witness.”
[56] In R. v. Pelletier, 2012 ONCA 566, at paras. 90-95, Watt J.A. cautioned triers of fact as follows:
90 First, countless authorities acknowledge the inherent frailties of eyewitness identification evidence, especially in cases that involve fleeting glimpses of unfamiliar persons in stressful circumstances: R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.), at pp. 450-451.
91 Second, the weight to be assigned to evidence of eyewitnesses is a variable, not a constant. The weight of such evidence is for the trier of fact to determine and will vary according to the circumstances of individual cases: Miaponoose, at p. 452.
92 Third, the reliability of eyewitness testimony is not determined by or coextensive with the actual or apparent honesty of, or the confidence in correctness expressed by, the identification witness: R. v. Izzard (1990), 54 C.C.C. (3d) 252 (Ont. C.A.), at p. 255.
93 Fourth, as a general rule, in-dock identifications are entitled to little weight in the assessment of the adequacy of the prosecution’s proof on the issue of identity: Izzard, at p. 256; R. v. Williams (1982), 66 C.C.C. (2d) 234 (Ont. C.A.), at p. 235; R. v. A.(F.) (2004), 183 C.C.C. (3d) 518 (Ont. C.A.), at para. 47; and R. v. Nguyen (2000), 132 O.A.C. 354, at para. 41.
94 Fifth, the recommendations of the Sophonow Inquiry about the manner in which photo line-ups should be conducted are persuasive tools to avoid wrongful convictions arising from faulty eyewitness identification, but they are neither conditions precedent to the admissibility of eyewitness testimony nor binding legal dictates for the assignment of weight: R. v. Goulart-Nelson, [2004] O.J. 4010 (C.A.), at para. 11; R. v. Grant, 2005 ABCA 222, (2005), 198 C.C.C. (3d) 376, at para. 6; and R. v. Doyle, 2007 BCCA 587, at paras. 12-13.
95 Finally, each case that includes eyewitness testimony as part of the prosecution’s case requires the trier of fact, mindful of its frailties both inherent and patent, to consider it in its entirety, along with and in the context of the balance of the evidence, in deciding whether an accused's guilt has been proven beyond a reasonable doubt: Goulart-Nelson, at para. 11; Grant, at para. 6; Doyle, at para. 13.
[57] The importance of enhanced scrutiny of eyewitness identification and photo lineup is underscored by the tragic wrongful conviction in R. v. Hanemaayer, 2008 ONCA 580, 234 CCC (3d) 3. To avoid a penitentiary sentence, Hanemaayer pleaded guilty to a rape that years later was determined to have been committed by the “Scarborough rapist,” Paul Bernardo. In that case, a confident eyewitness and a flawed photo lineup (presentation in array rather than in sequence, officers conducting the lineup were involved in the investigation, confirmation by the officers that the witness was correct) were factors that led to this wrongful conviction.
Analysis and Disposition
[58] The starting point is the evaluation of the reliability of the complainant’s testimony in light of her testimony at trial and on other occasions as set out in the chart below:
| Testimony at Trial | Other Occasions |
|---|---|
| Age of attacker late 30s, mid 30s | mid to late 20s to PC Lambert, actual 39 |
| Hair nappy, pre dreadlocks | shaved head to PC Lambert |
| Height my height, little taller | little shorter at Preliminary Inquiry (PI), 5’4” to PC Lambert, actual 5’8” |
| Weight 170, 180 lbs. | thin build to PC Lambert, actual 122 lbs. |
| Shirt white shirt, yellow lining | black shirt at PI, black sweater with yellow stripes and flower at video statement |
| Pants blue jean shorts | “camo” pants at PI, black or dark green shorts at video |
| Condition “drunk,” smelled like alcohol” | “unknown” to SAE nurse |
| Condom no | “unknown” to SAE nurse |
| Ejaculation yes | “unknown” to SAE nurse |
| Injuries injury to Labia on examination | no injury to labia on examination by SAE nurse |
| Time of assault after 2:00 a.m. | between 11:30 p.m. to 2:00 a.m. |
[59] While some inconsistencies are less significant and perhaps understandable, such as the difference between a “little taller” and a “little shorter,” others such as “shaved” head and “nappy” hair and mid-to-late 20s and late 30s to mid-30s are not and raises suspicion that the description has been altered to conform to the appearance of the accused. These together with other inconsistencies with respect to clothing, injury, and ejaculation “demonstrate a carelessness with the truth about which the trier of fact should be concerned:” See M. (A.).
[60] These inconsistencies are from a witness who was certain that the accused was her attacker, “100% I would be able to say who he is. I have his face engraved in my mind.” This underscores the fact that “confidence and accuracy are two different things.” [2]
[61] However, the complainant picked out the accused’s photograph in the photo lineup. While the photo lineup was not executed in accordance with procedure, I do not find that it is so tainted as to be disregarded. Having reviewed the video of the photo lineup and the photographs, I accept that there was nothing in the conduct of the officers or in the selection of the other subjects sufficient to cast serious doubt on the reliability of the photo lineup evidence. It would have been better had all 12 of the photographs been shown to the complainant. I find the composition of the lineup suitable for its purpose and in accordance with the principles adopted post Sophonow.
[62] The most compelling part of the Crown’s case is that the location of the assault appears to match the accused’s address. Although the accused’s address is noted as “basement,” there is no evidence before me confirming that his apartment was the only apartment in the basement. The landlord did not testify. The complainant testified that she did not know if there were one or two apartments in the basement and “maybe four or five” in cross-examination. No other evidence was offered regarding the presence of black males in this apartment building.
[63] I am mindful of the caution that “absolute certainty is a standard of proof that is impossibly high.” [3] There are three sources of evidence with respect to the identity of the attacker: the complainant’s description, the photo lineup, and the linking of the accused to the location of the attack. While it is tempting to rely only upon the photo lineup and the linking of the accused to the location of the attack and to disregard the frailty of the identification evidence, that is not my task. I must consider all the evidence.
[64] “Proof of probable or likely guilt is not proof beyond a reasonable doubt.” [4]
[65] While I may have been satisfied of guilt on a balance of probabilities, I find that frailty of the identification evidence, notwithstanding the photo lineup and the linking of the accused to the location of the attack, leaves me with a reasonable doubt.
[66] Accordingly, I find the accused not guilty on both counts of the indictment.
“Original signed by”
The Hon. Mr. Justice W.D. Newton