Court File and Parties

Court File No.: CR-18-100003820000 Date: 2019-06-27

Ontario Superior Court of Justice

Between: Her Majesty The Queen

• and - Tekle Tamzean Ogbamichael, Defendant

Counsel: Jennifer Stanton, for the Crown David Parry, for the Defendant

Heard: June 3-14, 2019

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and THE SIMILAR FACT WITNESSES AND any information that could disclose such identity shall not be published in any document or broadcast in any way.

Reasons for Decision

Spies J. (orally)

Introduction

[1] Tekle Tamzean Ogbamichael is charged, with sexual interference contrary to s. 151 of the Criminal Code and sexual assault contrary to s. 271 of the Criminal Code in relation to K.P. (“K.P.” or the “Complainant”) and four charges of failing to comply with his probation order. The offences are alleged to have taken place on one occasion while K.P. was riding on a Toronto Transit Commission (“TTC”) bus on October 3, 2016. Mr. Ogbamichael re-elected trial before me and pleaded not guilty to all charges.

[2] At the outset of the trial, the Crown brought two applications. The first was to permit Annette Deger, Mr. Ogbamichael’s probation officer, testify regarding her recognition of Mr. Ogbamichael on TTC video footage and other transit video and photographs. I granted that application for reasons set out in R. v. Ogbamichael, 2019 ONSC 3789. That decision also sets out my reasons for dismissing the Crown’s second application, which was to introduce, as similar fact evidence on this trial, the evidence of two young women.

[3] At the close of the Crown’s case, I heard an application by Mr. Ogbamichael to introduce into evidence certain statements made by Chris Hall, who is now deceased. I granted that application for oral reasons given on June 18, 2019. Although Mr. Ogbamichael testified briefly on this application, he did not give further evidence on the trial proper and no other evidence was called by the defence.

Summary of the Evidence

Background

[4] The offences allegedly occurred on a TTC bus after the Complainant, K.P., and a man the Crown alleges was Mr. Ogbamichael, boarded the bus at Dundas Street West Subway Station in Toronto.

[5] Four videos of the interior of the TTC bus that the Complainant and, allegedly Mr. Ogbamichael rode during the alleged offences were entered into evidence (the “TTC Videos”). Each depicts different camera angles taken from inside the bus.

[6] In addition, media releases created by the Toronto Police Service (“TPS”) and released on October 5, 2016 (“October 5 Media Release”) and on October 11, 2016, (“October 11 Media Release”) depict screen shots from the aforementioned TTC Videos at moments when allegedly Mr. Ogbamichael is visible. The October 11 Media Release also contains two photographs of a man who is alleged to be Mr. Ogbamichael taken by Keron Suren (“K.S.”) on another occasion when she was suspicious about a male passenger’s behaviour aboard a TTC subway train. Both Media Releases gave a description of the alleged offender and that this person had sexually assaulted a 12 year old female, namely K.P. Only the October 11 Media Release is relevant to this trial and I will provide a more fulsome description of it below.

[7] Mr. Ogbamichael contests that he is the person depicted in the aforementioned videos, stills and photographs.

The Evidence of K.P.

[8] The Complainant, K.P., was 12 at the time and she provided a video recorded statement to the police on October 4, 2016 wherein she described the events constituting the offences before the court. K.P. adopted her video recorded statement at trial pursuant to section 715.1 of the Criminal Code and was examined by both the Crown and the Defence.

[9] K.P. testified that on October 3, 2016, she got on a TTC bus at Dundas West station in Toronto. While waiting for the bus to come she noticed a man was staring and looking at her body and this made her feel uncomfortable. Their eyes locked and she turned away and did not look at him again. When the bus arrived, K.P. moved to the back of the bus and sat in a seat next to the window. This same male, who the Crown alleges is Mr. Ogbamichael, sat down on the seat next to K.P. to her right. For now I will refer to this person as the “Man”.

[10] K.P. testified that the Man put a bag that appeared to be a laptop bag, on his lap that partially covered her lap. She then felt a thumb touching her for a few seconds on her right thigh, approximately three inches from her vagina. The Man said he was sorry. K.P. moved closer to the window, away from the Man. Then, the Man "got … a little bit closer" and she "felt it again." K.P. testified she felt uncomfortable because the Man touched her close to her “private part – my vagina”. K.P. accessed the request stop button on the bus and got off at her usual stop for school. She told the principal what happened who in turn reported the incident to the TPS.

[11] K.P. provided a description of the Man and at trial identified Mr. Ogbamichael as the man she complains of, while he was seated at counsel table next to Mr. Parry.

The Evidence of Keron Suren

[12] On October 11, 2016, Ms. Suren contacted the TPS after seeing the October 5 Media Release. Although the image she saw was not very clear, she believed the male in the Media Release to be a man that she photographed on September 26, 2016, while riding the TTC subway. Although she did not see exactly what occurred she believed that a young female student in uniform sitting next to this man was uncomfortable. Ms. Suren moved closer to these parties to make further observations. She did not witness any inappropriate touching but she did discreetly take two photographs of this man (the “Suren Photographs”).

[13] Ms. Suren provided a description of the man that she saw but of course she took photos of this man and so her ability to describe the man is hardly surprising. The evidence she gave about the man’s height and weight would not have been visible to Ms. Deger when she viewed these photographs.

[14] Ms. Stanton conceded that Ms. Suren could not be a similar fact witness but she submitted that because the Suren Photographs are clearer than the TTC video images, that I could use them to identify Mr. Ogbamichael as the Man who assaulted K.P.

[15] Ms. Suren also identified Mr. Ogbamichael in the prisoner’s dock. She was not proffered as a Leaney witness and Ms. Stanton admitted that I could not rely upon her evidence that the person in the prisoner’s dock was the person that she saw on the TTC or in the Media Release. In any event as Mr. Ogbamichael was seated in the prisoner’s dock and was the only black male in the courtroom; this identification was of no value.

The October 11 Media Release

[16] The October 11 Media Release has a heading, under the main heading that states it is a TPS News release “NEW PHOTO UPDATE: Sexual assault Suspect for Identification”. The first page of the release states that the male suspect the police need help identifying sat beside a 12 year old female and sexually assaulted her. It goes on to describe the Man as wearing a “distinctive black baseball cap with a “15” emblem in the centre front of the hat in red numbers and a white border trim as well as an unknown white emblem at the back of the hat”. In bold it is stated that this male was seen on September 26, 2016 “deliberately moving to sit beside a teenage female on the TTC Subway...”. Three pages of photos are then attached; the two Suren Photographs and a picture of the Man facing into the camera in the TTC Videos related to K.P.

The Evidence of Officer Nikola Drazic

[17] Officer Drazic arrested Mr. Ogbamichael on June 12, 2017 and he described his appearance at that time as dark skinned, middle aged in his 50s, shaved head, about 5’5”, average weight of 150 pounds for height, a little mustache, no glasses, brown eyes. This was eight months later and so I find this evidence of limited value. Office Drazic identified Mr. Ogbamichael in court but I do not believe jurisdiction was in issue.

The Evidence of Annette Deger

[18] Annette Deger is a probation and parole officer employed by the Ministry of Community Safety and Correctional Services. Ms. Deger has specialized in supervising sexual offenders since 2005. She was initially assigned supervision of Mr. Ogbamichael in December 2012 and she met with him for the first time in January 2013 in jail when he was in custody for the purpose of preparing a Pre-Sentence Report. Ms. Deger was his probation officer from then until the preliminary inquiry of this matter in May 2018. Upon intake of Mr. Ogbamichael, Ms. Deger reviewed probation and other assessments and she admitted that she was aware that Mr. Ogbamichael has an extensive criminal history for sexual offending of the same nature as the allegations before this Court; what she called his “offensive behaviour”.

[19] Ms. Deger testified that she met with the Mr. Ogbamichael at least every other week or twice a month at her office for a period of approximately one hour on every occasion. She determined that this totalled 40 meetings. She had conversations with Mr. Ogbamichael during those meetings, with Mr. Ogbamichael seated across from her on the other side of her desk only three feet away. During those meetings Ms. Deger said that Mr. Ogbamichael was really engaged and she had opportunities to see him up close and review his mannerisms and demeanor.

[20] As a result Ms. Deger provided a description of Mr. Ogbamichael in some detail at trial including the fact that he appeared to be in his 40’s to early 50’s, his skin was a medium shade of black, he was five feet five inches to five fee six inches tall, he had a shaved head or was balding at the top of his head and any hair was dark brown, bordering on black and that he typically had facial hair; usually a goatee and that when his goatee was longer it looked white along the ends along the jaw line but the rest was darker and a close cropped mustache. She also said that his face and neck were rounder and fuller after he had been in custody but for the most part he was slim and trim. Ms. Deger’s description of Mr. Ogbamichael’s face included lines on his face and around his eyes, bags under his eyes, pouches of fat under his eyes, the way he smiled which caused the wrinkles around his eyes to “crinkle”, and lines around his mouth that were more pronounced when he smiled. Ms. Deger also said that she could recognize Mr. Ogbamichael the way he moved his hands and the way that he spoke and even the way he walked – she said he almost “loped”.

[21] Ms. Deger also testified about how Mr. Ogbamichael normally dressed and testified that he always wore slacks with a buttoned shirt, which sometimes had small squares on it, sometimes with a T-shirt under it, a baseball cap that she said was predominantly dark but not solid black and it had a front bill in a different colour and a white patch on the back. She identified a black lap top bag that he often brought to their meetings.

[22] Mr. Ogbamichael came to their meeting in July 2016 with his right arm in a sling and he told her told that he had injured his shoulder. Ms. Deger recalled Mr. Ogbamichael wearing that sling until at least October 2016. She said it was a darker colour with a cream or white pointing or piping around it and that the strap was lighter in colour.

[23] Ms. Deger receives media releases from the TPS looking for suspects because of the nature of her work. She received the October 11 Media Release by email and testified that she identified the black male in the release, as Mr. Ogbamichael, based only on the images attached to the release. As a result she emailed the Officer in Charge, DC Bowry stating in part:

I saw the Toronto Police News Release dated October 14, 2016 [1] asking for assistance in identifying a man wanted in a sexual assault on the TTC . I am a probation officer assigned supervision of Tekle Temesgen Ogbamichael …… I am writing because the picture in the news release looks very much like Mr. Ogbamichael. Tekle Ogbamichael was released from custody June 29, 2016. When he reported to me on July 6, 2016 I noted that his right arm was in a sling. He wore the sling at each subsequent probation appointment until October 11 th . Mr. Ogbamichael’s offending history is comprised of sexually assaulting unknown female victims of various ages while on transit systems. …. [Emphasis added]

[24] Ms. Deger testified about this release in chief without being taken to a copy of it. She stated that she advised police that the person in the pictures “strongly resembled – I believed it to be” Mr. Ogbamichael, that the picture with the side profile of his face (the close up of the Suren Photographs) “looked very much like him” – enough so that she believed it was Mr. Ogbamichael and that this image showed a person wearing a sling with a lap top bag and clothing that looked very similar to what Mr. Ogbamichael wore to her office. She denied the suggestion that she was influenced by the description of the offence as set out in the Media Release and even denied remembering any of the content of the release although she admitted that she would have read it before contacting DC Bowry.

[25] Ms. Deger also provided to the police still images from surveillance cameras from the probation office in which she works from October 11, 2016. There is no dispute that within those stills are images of her then client Mr. Ogbamichael in the reception area of the probation office on October 11, 2016. (“Probation Office Stills).

[26] Ms. Deger reviewed not only the TTC Videos related to K.P. and the Suren Photographs at trial, she also watched videos related to the two similar fact witnesses. As I did not grant the Crown’s application I have ignored her evidence with respect to the proposed similar fact application although I have considered the fact that she did review them in advance of testifying in this case and on the voir dire .

The Hearsay Evidence

[27] Through Ms. Deger, police learned that Mr. Ogbamichael was residing at Maxwell Meighen Centre, (“Maxwell Meighen”) a homeless shelter for men in downtown Toronto and that he had been residing there for several months. On October 18, 2016, DC Bowry sent an email to Cameron Hall, manager at Maxwell Meighen. He attached five stills of the bus surveillance video that the Crown alleges show Mr. Ogbamichael. DC Bowry did not state in his email that he believed the person in the stills to be Mr. Ogbamichael. Rather, he stated that “the person may” be staying at the shelter and asked that Mr. Hall to “have your staff members view the photos to see if they recognize the individual in the photos” and that this was in relation to a sexual assault. DC Bowry added that this person had distinctive clothing in terms of a hat and luggage bag that he carried and that his right arm was in a sling which he might have been removed recently as a result of news releases. He ended his email by stating that “perhaps via internal email, you could forward to staff members there in hopes someone recognized the male”.

[28] On October 20, 2016, DC Bowry followed up and a couple of hours later Mr. Hall replied, “I have shown it [to] some of our staff members. So far there has been no one who recognized him. I will continue to ask”. Although he did not expressly say so, I find that the only logical conclusion from this statement was that Mr. Hall was including himself as someone who did not recognize anyone in the photos.

[29] DC Bowry called Mr. Hall to follow up on November 11, 2016. He did not record or take notes of the exact conversation but testified that the “gist” of the call was that Mr. Hall had shown the photos and was unable to identify any persons in the photos. Mr. Hall did not indicate who he showed the photos to, how they were shown or how many times he showed the photos to any particular staff member.

[30] Based upon this information, DC Bowry “parked” the investigation pending further information. It was still an ongoing investigation. Although he testified that he felt he had grounds to consider Mr. Ogbamichael a suspect, he was not arrested until May 2017 after further information was received.

[31] Mr. Hall died on June 2, 2018. No formal statements beyond the email and phone call exchange were ever taken from him.

[32] Mr. Ogbamichael provided an affidavit and testified on the application. Since I granted the application I will consider his evidence in this regard. He deposed that he resided at the shelter from July 2, 2016 to May 9, 2017 and he described his interaction with staff and with Mr. Hall over that period. Records from the shelter confirm that he was a resident for this period of time save for a few single nights when he did not return in time and was readmitted the next day.

[33] I admitted Mr. Hall’s statement for the truth of its contents as evidence Mr. Hall was unable to make an identification from the surveillance stills, that Mr. Hall showed the surveillance stills to other staff members at Maxwell Meighen; and that none of the unidentified staff members were likewise able to make any identification – not of Mr. Ogbamichael or of anyone for that matter.

The Issues

[34] There are as many as three issues that I must consider in determining whether or not the Crown has proven beyond a reasonable doubt that Mr. Ogbamichael is guilty of sexual interference and sexual assault of K.P. There is no dispute that the four probation breach charges stand or fall on whether or not I find that Mr. Ogbamichael was the Man on the TTC identified by K.P. In fact that is really the central issue that I must determine.

[35] Mr. Parry did not argue that K.P did not honestly believe that the Man she identifies on the TTC video touched her inappropriately but he asserts that the Crown has not proven beyond a reasonable doubt that he did so intentionally. He suggested that K.P. could have felt something in the Man’s lap top bag touching her. Mr. Parry further argued that if the Man did touch K.P. as she alleges, the Crown has not proven beyond a reasonable doubt that he did so for the specific intent of touching for a sexual purpose.

[36] Accordingly the three issues I must decide are as follows:

a) Is the Man who sat beside K.P. on the bus Mr. Ogbamichael; b) If so, did he intentional touch K.P. and c) If so, did he do so for a sexual purpose and/or was the touching of a sexual nature such that the sexual integrity of K.P. was violated?

Analysis

Caution Re Recognition Evidence

[37] Before considering the identification evidence, I caution myself in the same way that I would a jury, that eyewitness identification evidence is notoriously unreliable and in the past, there have been miscarriages of justice; persons have been wrongly convicted of an offence, because eyewitnesses have made mistakes in identifying the person whom they saw committing a crime; see R. v. Jack, 2013 ONCA 80 at para. 13. As the court noted in R. v. Miaponoose, [1996] O.J. No. 3216 at para. 10 (Ont. C.A.), it has long been recognized that of all types of evidence, eyewitness identification is most likely to result in a wrongful conviction, even in cases where multiple witnesses have identified the same accused. Observation and memory are often unreliable when it comes to the identification of people. This is an area where people often make honest mistakes. A mistaken witness can be an honest and very convincing one and there is little connection between the confidence of the witness and the accuracy of the identification; see R. v. Hanemaayer, 2008 ONCA 580, [2008] O.J. No. 3087 at para. 21 (Ont. C.A.).

[38] I have also carefully reviewed paras. 29-34 of R v. MB, 2017 ONCA 653 where the court goes into further detail from the cases of the Court of Appeal on this subject. In particular, I have cautioned myself as directed by the Supreme Court of Canada in R. v. Nikolovski, [1996] 3 S.C.R. 1197 (S.C.C.) at para. 23 that I can find that the Man is Mr. Ogbamichael based on video evidence alone but I must be satisfied that it is of sufficient clarity and quality that it would be reasonable for me to identify Mr. Ogbamichael as the Man referred to by K.P., beyond a reasonable doubt.

[39] In addition, as stated by the court at paras. 33 and 34, recognition evidence is a subset of eyewitness identification evidence and the same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence. In R. v Olliffe, 2015 ONCA 242 at para. 43 the court held that a trial judge must approach a recognition witnesses' evidence with caution and grapple with any problems in her evidence to determine whether or not it is reliable.

[40] Despite these cautions, I acknowledge that I must consider the question of Mr. Ogbamichael’s guilt in light of the law that I must apply and the evidence that I have heard. If I am satisfied by the evidence called by the Crown, even if it is based on a single witness, that Mr. Ogbamichael is the Man identified by K.P., then I must move on to consider the other issues raised by Mr. Parry in determining whether or not Mr. Ogbamichael is guilty of the offences charged.

Has the Crown proven beyond a reasonable doubt that the Man who sat beside K.P. on the bus was Mr. Ogbamichael?

[41] Turning to the first issue: is the Man who sat beside K.P. on the bus Mr. Ogbamichael? There are four sources of evidence that are relevant to this issue:

a) the evidence of K.P.; b) the TTC Videos and the Suren Photographs; c) the recognition opinion evidence of Annette Deger, which includes the Probation Stills of Mr. Ogbamichael; and d) the hearsay evidence from Mr. Hall called by the defence.

The identification evidence of K.P.

[42] There is no doubt that the Man that K.P. clearly and consistently identified as the Man that she alleges touched her, whom the Crown alleges is Mr. Ogbamichael, can be seen on the TTC Videos from October 4, 2016, getting on the bus after K.P., moving to the back of the bus, taking a seat next to K.P. and then looking and moving around after she exited the bus and then eventually exiting the bus.

[43] This Man is a black male wearing a black baseball cap, with a red and white logo on the front, a white design of some sort on the back of the cap, a blue checked shirt, a black jacket, black pants, black shoes. He has his right arm in a black sling and he is carrying a black rectangular lap top bag.

[44] K.P. testified that she noticed the Man while she was waiting for the bus because he was staring at her. She locked eyes with him momentarily and then looked away. She also testified that once the Man was sitting next to her on the bus, she attempted to avoid looking at him. K.P. was not able to say much about the Man's appearance. She testified that the Man was dark skinned and in his mid-30s. She also said that the Man, was wearing a hat that had some red on it but its primary colour was black, a black jacket with a zipper that was not done up and a rectangular bag. She made no mention of the sling.

[45] Mr. Parry submits that this description is exculpatory because there is no dispute that Mr. Ogbamichael looked his age; namely mid-50s. He also submitted that although one might expect a 12 year old child to think that a person is older than they in fact are, DC Wiseman who was conducting the interview asked K.P. how old she thought he was and she correctly guessed his age.

[46] The evidence of K.P. that the Man was in his 30s could provide some support for Mr. Parry's argument that the Man in the TTC Videos also looks younger than Mr. Ogbamichael, although I am not able to detect that from my own viewing of the videos.

[47] Although K.P. gave evidence from another room via CCTV technology, she was brought into the court room to the witness stand behind a screen so she could be seen but she could not see Mr. Ogbamichael. Ms. Stanton asked her to step out from behind the screen and asked if she would recognize the Man if she saw the man again. K.P. not surprisingly said that she could and she identified Mr. Ogbamichael. At this time however he was seated next to Mr. Parry at counsel table and he was the only black male in the court room. In addition, K.P. admitted that after she gave her statement to police and when she received the summons to attend the preliminary inquiry she went on the internet and searched Mr. Ogbamichael's names. She admitted that she saw images of Mr. Ogbamichael and in my view this could also have influenced her ability to identify him. In my view the identification of Mr. Ogbamichael as the Man is so manifestly unreliable that it is of no value in my determining this issue. The only assistance K.P.'s evidence has in terms of identifying Mr. Ogbamichael is her clear identification of the Man that she alleges is the person who touched her on the videos.

The TTC Videos and the Suren Photographs

[48] Early on in the trial I permitted Mr. Ogbamichael to move to sit to the left of Mr. Parry at counsel table. This put him to my far right. As the trial judge I was generally focused on a witness who is testifying or counsel who are making submissions, although I made eye contact with Mr. Ogbamichael at various points during the trial, knowing that I needed to see his face so that I could determine if he is the Man in the TTC Videos.

[49] Although you can easily follow the movement of this Man on the TTC bus by watching the videos and there are times when the Man's face is facing the camera, it is not possible for me to make out his facial features because of the poor and grainy quality of the TTC videos. As a result the details of this Man's face are not visible. I say this despite the fact that I have reviewed these TTC videos several times, including freezing the video and zooming in on the Man’s face. Furthermore, this Man is wearing a baseball cap that covers the upper part of his face making his identification that more difficult.

[50] If I had to rely only on the images of this Man in the TTC videos, I would not be able to find beyond a reasonable doubt that this Man was in fact Mr. Ogbamichael. In fact, I do not know that I would even say that the Man looks similar to Mr. Ogbamichael save of course that he is a black male. The shape of the face of this Man that can be seen below the baseball cap on the TTC videos is rounder than the shape of Mr. Ogbamichael's face that I can and have observed in court and as can be seen on the Probation Stills. Those Probation Stills were only taken eight days after the alleged assault of K.P. Those stills, perhaps not surprisingly do look like Mr. Ogbamichael as he has appeared before me in court.

[51] Ms. Stanton submitted that the fact that Mr. Ogbamichael has a goatee elongates his face and that this explains why the face of the Man in the TTC Videos who is clean shaven looks fuller. I have considered that possibility in looking at the images but I am not able to accept that submission.

[52] I have also considered the evidence of Ms. Deger that after Mr. Ogbamichael was released from jail in the past that his face and neck looked fuller. That however could not explain this either because Mr. Ogbamichael had been released on July 6, 2016. I would not expect this to be the case three months later. Certainly the Probations Stills take eight days after the alleged assault show a face that is slimmer and like the one I see in court.

[53] In summary I would not be able to rely on these TTC videos alone to identify the Man as Mr. Ogbamichael. In fact because the face of the Man in the videos looks rounder to me, if anything, I would say that based on the TTC videos alone that the Man does not appear to be Mr. Ogbamichael. This on its own raises a reasonable doubt in my mind that the Man is Mr. Ogbamichael. That however is before considering the evidence of Ms. Deger.

[54] As for the Suren Photographs, all that can be seen is the side profile of a black male who is seated on the subway, wearing a baseball cap that could be similar to the one worn by the Man in the TTC videos. The jacket the man in the Suren photographs is wearing appears to be different although this man in the Suren Photographs does have his right arm in a sling and he is wearing black pants and black shoes.

[55] Ms. Stanton argued that the man in the Suren Photographs is the Man seen on the TTC video and that since those photos are clearer, I can use them to identify the Man as Mr. Ogbamichael. This presumes of course that the man in the Suren Photographs is the Man in the TTC Videos. I could only conclude that is likely based on the colour of the man’s skin and the clothing that he is wearing. This presumes that there is something distinctive about a black baseball cap with a red and white logo on the front and a white design in the back; not a conclusion that comes easily in my view. There is however the fact that in both sets of images the black male has his right arm in a black sling. Assuming that is sufficient to suggest that the Man and the male in the Suren Photographs are one and the same, the difficulty with my using the Suren Photographs to assist in identifying Mr. Ogbamichael as the Man in the TTC Videos is that although these photos are clearer, because they only show a profile, the Suren Photographs do not assist me in identifying the Man as Mr. Ogbamichael. I have not been able to observe and study Mr. Ogbamichael's profile as he is always facing towards me.

[56] For these reasons, a Nikolovski type analysis by this Court of the Man in the TTC Videos, even if I use the Suren Photographs to assist, does not permit me to conclude that the Man is Mr. Ogbamichael.

The Evidence of Annette Deger

[57] That brings me to the evidence of Ms. Deger.

[58] Mr. Parry has made a number of submissions as to why the evidence of Ms. Deger is not reliable and that in fact it would be dangerous to rely on her evidence to find that the Man in the TTC Videos was in fact Mr. Ogbamichael.

[59] When I decided the Leaney Application I did not accept Mr. Parry’s submission that I was in just as good a position to determine if Mr. Ogbamichael is the Man even though he had been in my court for almost three weeks. In deciding to permit the evidence of Ms. Deger I agreed with Ms. Stanton that the degree of her familiarity with Mr. Ogbamichael is strong. She acquired her familiarity with Mr. Ogbamichael through regular one hour meetings over a span of years. I found that the other advantage Ms. Deger has was my belief that Mr. Ogbamichael’s appearance had changed since the time of these offences. Before me Mr. Ogbamichael has a goatee that is greying and a mustache whereas at the material time the evidence at trial was that the Man was clean shaven, possibly with a mustache that if present, was not very visible.

[60] Ms. Deger testified that she had seen Mr. Ogbamichael’s beard at various stages of growth over the years and she testified that as his goatee gets longer it looks white along the ends along the jaw line but that the rest looks darker . What I realized however is the Probation Stills show Mr. Ogbamichael with a goatee that appears white at the chin. I raised this issue with Ms. Stanton and she agreed but submitted that it is possible that Mr. Ogbamichael was clean shaven at the time of the alleged assault and that this just reflected a short beard that was starting to grow. As I have no evidence as to how fast Mr. Ogbamichael’s goatee would grow, I decided to ignore this possible distinction between him and the Man but certainly the fact he now has a beard makes it more difficult to compare him to the Man.

[61] Having considered Ms. Deger’s evidence now for the purpose of this trial as opinion recognition evidence, I do find that the reliability of her evidence is a real concern. Mr. Parry made a number of submissions as to why I should have concern about the reliability of Ms. Deger’s evidence.

[62] First of all Mr. Parry argued that I should be concerned about the manner in which Ms. Deger testified and that in many ways she was a “dangerous witness” because she was “overly confident”. He submitted that she left no room for equivocation or for the potential frailties of her identification of the Man in the TTC Videos as Mr. Ogbamichael. Mr. Parry is correct that Ms. Deger seemed extremely confident in her identification of Mr. Ogbamichael and to some extent, as I will come to, she overstated her evidence. Generally speaking however, the problem with Mr. Parry’s criticism, as pointed out by Ms. Stanton, is that had Ms. Deger equivocated at all he would have reasonably argued that she could not be sure of her identification and that therefore I could not rely on her evidence to conclude beyond a reasonable doubt that the Man was Mr. Ogbamichael. It is a bit of a Catch 22.

[63] Ms. Deger did overstate her evidence at times. When shown the last page of the October 11 Media Release that shows the Man facing forward she testified that he was wearing a checked shirt and that she recalled Mr. Ogbamichael wearing “this shirt” to her office. Although I accept that the shirt the Man is wearing is a light blue with lines that form checks on it, it is hardly unique and there is no way that Ms. Deger could honestly say that it was “the” shirt that Mr. Ogbamichael wore. She also testified that the bag shown in the images was “the” laptop bag that Mr. Ogbamichael would bring to her office. There is no doubt in my mind however that Ms. Deger would not have been able to distinguish this black fabric rectangular lap top bag from any number of similar bags she would often have seen people carrying. It is not unique in any way whatsoever.

[64] Later in her evidence when Ms. Deger saw the back of the cap the Man was wearing she testified that what appears to me to be a white smudge looked the same as the white design she saw on the back of the cap that Mr. Ogbamichael wore to her office. Given that all one can see is that there is something small and white on the back of the cap worn by the Man, I do not see how Ms. Deger could reliably give this evidence. Also of concern is to what extent the fact that Mr. Ogbamichael dressed this way when he attended her office and had a laptop bag influenced Ms. Deger’s belief that the Man in the TTC Videos is Mr. Ogbamichael. Apart from perhaps the sling I would not want to base my identification of Mr. Ogbamichael based only on his clothing. It seems to me that the way to address this concern is to consider, as best I can, the reliability of the reasons that Ms. Deger gave for her opinion evidence.

[65] Mr. Parry also submitted that there should be some concerns about the credibility of Ms. Deger’s evidence. He gave some examples that Ms. Stanton satisfactorily responded to. However I do find, as I will come to, that I believe that Ms. Deger was alive to certain issues when she testified. On the whole however, I would not say that Ms. Deger seriously resisted reasonable suggestions such that I have a concern about her credibility.

[66] Mr. Parry submitted that the most troubling concern with the credibility of Ms. Deger was her expanding list of distinguishing features that she relies upon to identify Mr. Ogbamichael. Ms. Deger admitted that the first time she was shown any of the videos that she reviewed on the voir dire before me, was at the preliminary inquiry when she was shown the TTC Video taken from the time K.P. was on the bus. Although it is not clear what portion was shown to her, at that time when she was asked for her reasons for why she believed that the Man was Mr. Ogbamichael she testified that it looked like him when he was walking although she added that she appreciated that he was walking on a moving bus. She also said that his clothing looked “familiar” and that she could “clearly see his face and I … would say that that is him.”

[67] When asked at trial, why she gave fewer details then than she had at trial, Ms. Deger explained that she was not aware when she attended to give evidence at the preliminary inquiry that she was going to be asked to do this, that she had not had a chance to think about why she believed the images to be of Mr. Ogbamichael and that it was hard to articulate why she believed the images to be of him. I accept that this may be the case but it is another reason for me to carefully consider the evidence that Ms. Deger gave at trial as her reasons for believing that the black male in the various videos and images is Mr. Ogbamichael. The reasons that she gave at the preliminary inquiry were given before the events that followed, that I will come to, and to that extent her evidence at the preliminary inquiry might be the most reliable.

[68] Before I do so however, I want to begin with what is perhaps my biggest concern about the reliability of Ms. Deger’s evidence and that is what happened right at the beginning when she opened the email that contained the October 11 Media Release. Mr. Parry submitted that her insistence that she identified Mr. Ogbamichael as the person in the images contained in that release before she read the text is not reasonable particularly when the whole first page of the release is text. I have reviewed Ms. Deger’s evidence carefully on this point and I share his concern. First of all I note that when Ms. Deger first testified about receiving TPS media releases in chief she said that based on her work the alerts she received indicated a person was wanted because of “an alleged offence”. She did not volunteer what she admitted later which was that she would look first to see if the release related to a sexual assault as she took a special interest in those. This is a small point but it seems that Ms. Deger was anticipating that her evidence would be challenged because of what was in the text of the October 11 Media Release and her knowledge of Mr. Ogbamichael’s background and so she avoided volunteering this information. I also found it difficult to believe that she did not remember any of the content of the October 11 Media Release although she admitted that she had read it before emailing DC Bowry and some of the details are definitely referred to in her email. Again it seemed that she was anticipating a challenge to her evidence that she identified Mr. Ogbamichael as the Man based only on the images.

[69] Ms. Deger said that the picture that stood out for her in the October 11 Media Release was the picture that shows the man’s profile i.e. the Suren Photograph that shows the boots of the lady seated next to the man. Ms. Deger gave no evidence at any time about what was recognizable from Mr. Ogbamichael’s profile and when she referred to this image that stood out she referred to the fact that the man’s arm was in a sling and the fact that she could see piping and that the edge around the sling was darker. Ms. Stanton submitted that the sling itself was a unique identifying feature and I accept that seeing people with their arm in a sling is not a common sight. However so many people use the TTC that I would not want to identify the Man as Mr. Ogbamichael only on this basis.

[70] Ms. Stanton and I got into a debate about what Ms. Deger was referring to when she said that she could see piping in the Suren Photographs and eventually with full magnification in my office I was able to see a darker line running horizontally across the front of the sling. I disagree with Ms. Stanton however, that this is what Ms. Deger must have been referring to as “piping” as she referred to the “edge” of the sling. These concerns prevent me from assessing this evidence myself by looking at the pictures. In any event what Ms. Deger described as the sling Mr. Ogbamichael wore and piping on the sling that she saw Mr. Ogbamichael wear in her office is very different from the sling in the Suren Photographs and the TTC Videos that seem to be simply black. Of more concern however is that she gave no other reasons for recognizing this man as Mr. Ogbamichael until cross-examination when she said that she could see a line on his face. I asked her what it was she was referring to and she pointed to the line next to her mouth which is a line anyone of that age would have. In any event it is not a line that I am able to see in the photograph.

[71] When asked in later in chief if she made her identification of Mr. Ogbamichael based on the images in the release Ms. Deger did not seem as certain as she professed to be later in cross-examination. She said that “I want to say” it was the images and that initially she looked at the images and “I will say that I always believed that to be Mr. Ogbamichael” trying to suggest that she was not influenced by the text in the release, but these responses seemed to suggest some equivocation in that regard.

[72] For all of these reasons I do have some concern that Ms. Deger was influenced by the written information in the October 11 Media Release. It is impossible now to know to what extent as by the time she sent her email to DC Bowry she had made up her mind that the Man in the TTC Videos and in the Suren Photographs was Mr. Ogbamichael. What is important is that by the time of this email, Ms. Deger’s belief that Mr. Ogbamichael was the Man in the TTC Videos and the Suren Photographs had to be impacted by what she knew about Mr. Ogbamichael’s past offensive behaviour and how it fit the latest allegations by K.P. because she admitted that she read the release before sending the email.

[73] Before leaving the October 11 Media Release, Ms. Deger testified that she sent the Probation Stills to DC Bowry to show him the “likeness” and that Mr. Ogbamichael was in fact the individual they were looking for. As I have already said, the pictures of Mr. Ogbamichael in the Probation Stills looks like the man who has appeared before me but the picture of the Man from the TTC Videos is of a man with a fuller face. The other thing I find odd from the Probation Stills that Ms. Deger sent to DC Bowry to corroborate her position, is that Mr. Ogbamichael in those stills is carrying a two colour back pack, not a lap top bag, he has no hat on at all and his shoes are brown. I appreciate that Mr. Ogbamichael would not always wear the same clothing to the office but clothing was clearly part of the way in which Ms. Deger identified him from the TTC video.

[74] In that regard I also find it surprising that if the baseball cap that the Man is wearing in the TTC Videos is the cap that Mr. Ogbamichael often wore to the office that Ms. Deger would have no recall of a red and white design on the front of the cap. Although I accept that walking behind Mr. Ogbamichael, as she described, when taking him to her office would allow her to see the back of any baseball cap, surely she had ample opportunity to see the front of Mr. Ogbamichael. The fact she does not raises a concern in my mind although I appreciate as Ms. Stanton submitted that it would have easily been a detail that Ms. Deger could have added to her evidence.

[75] As Mr. Parry submitted, after Ms. Deger’s initial identification of Mr. Ogbamichael as the suspect in question I must also be concerned about events that took place that confirmed her identification; something he called confirmation bias. After the Preliminary Inquiry Ms. Deger watched all the videos that were shown to her again on the voir dire as well as certain stills, with DC Bowry, to see if she could recognize anyone. She admitted that she knew that if the detective was telling her to look at some images that those images must be related to the case Mr. Ogbamichael was involved in. One of my concerns in this regard is that DC Bowry was showing the various videos to Ms. Deger and he was the one stopping them at various points to draw her attention to certain still shots and yet he made no notes of specifically what he did or what he asked her and what her responses were. Mr. Parry referred to my decision of R v. Mohamed, 2014 ONSC 165 at paras. 37 and 53 where I referred to the recommendations from the Sophonow Inquiry, Winnipeg: Manitoba Justice, 2001 which included the recommendation that during photo lineups everything should be recorded on video or audiotape from the time that the officer meets the witness and that an officer who is not involved in the investigation should conduct the photo lineup to avoid the risk of the officer inadvertently influencing the process. The manner in which Ms. Deger was shown the videos as part of her trial preparation is accordingly of concern.

[76] Furthermore, although I have decided I cannot consider Ms. Deger’s evidence about these other videos as trial evidence, the fact that she viewed all of these videos knowing that she was looking for Mr. Ogbamichael, both with DC Bowry and on the voir dire is a concern as I don’t know how it may have impacted the evidence she did give about the TTC Videos involving K.P. For example in one of those other videos that are not in evidence I would say the man alleged to be Mr. Ogbamichael looks like the Mr. Ogbamichael in court before me. Did that impact Ms. Deger’s resolve that he was the person alleged to be Mr. Ogbamichael in the other videos? It is impossible to say.

[77] Another concern raised by Mr. Parry is that often Ms. Deger simply testified that “I know him” without giving any specifics. He submitted that she only knew Mr. Ogbamichael in a very specific context, while he was seated in her probation office and that it was a lower degree of familiarity that required her to say more in terms of distinguishing features. In my view given all of the detail that Ms. Deger did give about how Mr. Ogbamichael appeared to her when she met with him, her inability to articulate reasons for why she was confident that the black male was Mr. Ogbamichael at certain times is likely a function of the poor quality of the TTC Videos. This includes her failure to give further reasons for why she recognized the man in the Suren Photographs as Mr. Ogbamichael.

[78] In fact, when Ms. Deger did give reasons for why she believed the Man in the TTC Videos was Mr. Ogbamichael, I have a concern about the reliability of her evidence. Ms. Deger fairly acknowledged at the preliminary inquiry that anything she noticed about the way the Man walked on the bus could be due to the fact that the bus was moving. Although Ms. Deger said that she could clearly see the Man’s face when she first viewed the TTC Videos at the preliminary inquiry, she gave no evidence about what it was about his face that led her to conclude it was Mr. Ogbamichael. At trial Ms. Deger was shown a lengthy section of the TTC Videos and she testified that in the longest video, which I believe was the one from Camera 3, she could see the Man when he initially sat in what I believe was the seat next to K.P. and that she could see that it was “him” and that when he tilted his head back she could clearly see his face. She then went on to describe the clothing. She also referred to what I believe is a section from the Camera 4 video, which I believe is from the time after K.P. left the bus. Ms. Deger said that she could see the Man smiling while he was talking and interacting with other people and that in another portion she could clearly see the Man’s face. She also commented on the way the Man’s hands moved as he was talking.

[79] Unfortunately Ms. Stanton did not ask Ms. Deger to ask to stop the TTC Videos when she noticed these various parts of the videos but I believe that I identified what Ms. Deger was referring to and I have looked at those portion very carefully. After K.P. left the bus, the Man can be seen looking around and then moving one seat back and sitting next to another woman. I can see a bit of white in the area of his mouth which must be the Man’s teeth, which would suggest that he was smiling, but to suggest that Ms. Deger could see anything in particular about the smile allowing her to recognize that it was the way Mr. Ogbamichael smiled would be a stretch. It is impossible to see any facial features of the Man and in my view based on this part of the TTC video there is no way that one can determine anything about the way the man smiled that could allow someone to reliably identify him as any particular person. As for the movement of the Man’s hands, I do see that but it is fleeting and although I accept it may be similar to the way Ms. Deger saw Mr. Ogbamichael move his hands, in my view this is not a reliable basis upon which Ms. Deger could confidently conclude the Man is Mr. Ogbamichael.

[80] As the court noted at para. 67 in M.B . I must consider if Ms. Deger’s confident identification of the Man as Mr. Ogbamichael was mistaken because she unintentionally filled-in details of Mr. Ogbamichael who was familiar to her when looking at a fuzzy image of someone in fact unknown. Given the poor quality of the TTC Video images and the fact that the Man was wearing a cap that covered half of his face, this in my view is a very real concern in this case.

[81] Mr. Parry also raised the fact that this was a case of cross-racial identification. That is true but it is not necessary for me to consider this issue given the other concerns that I have identified about the reliability of Ms. Deger’s evidence. In any event, any concern in this regard is lessened by the fact that I accept that Ms. Deger knew Mr. Ogbamichael well and that she did not rely on a generic description when she described him.

[82] Finally Ms. Deger did correctly identify Mr. Ogbamichael as the black male sitting at counsel table next to Mr. Parry but this is of no value as I accept that she knows Mr. Ogbamichael well and in any event the only other darker skinned man in the courtroom at that time was a male court officer in uniform.

The Hearsay Evidence

[83] Finally I come to the hearsay statements that DC Bowry testified to and that are recorded in the email from Mr. Hall. I would not say that this evidence has the exculpatory value that Mr. Parry ascribes to it but it certainly is some evidence that the person in the TTC Videos and the Suren Photographs could not be recognized as Mr. Ogbamichael by someone who had some dealing with him. It may however also be further evidence of the fact that these images are of very poor quality making it difficult to reliably say that a person in them is recognizable.

Conclusion

[84] Given all of the concerns I have with the reliability of the evidence of Ms. Deger and given that I am not able to conclude based on my own eyes that the Man in the TTC Videos is Mr. Ogbamichael, I find that the Crown has not proven beyond a reasonable doubt that it was Mr. Ogbamichael who touched K.P. It is therefore not necessary for me to consider the other issues raised by Mr. Parry.

[85] I will say however, that I have no reason not to believe the evidence of K.P. Although I might have been persuaded that there was a chance that what she felt was the lap top bag and not the Man’s thumb, as she did not actually see what it was that touched her, I don’t doubt that she honestly believed that it was the Man’s thumb that touched her.

Disposition

[86] Mr. Ogbamichael please stand.

[87] For the reasons I have given I find you not guilty of all Counts.

Spies J.

Released: June 27, 2019 Written Reasons Released: July 2, 2019

[1] Ms. Deger identified the October 11 Release as the one she saw and I presume October 14th is simply the date she looked at is as there was no release on that date.