COURT FILE NO.: CR-18-14740 AP DATE: 20190723

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Jevon White Appellant

Counsel: Oliver Fitzgerald, for the Respondent Michael Lacy, for the Appellant

HEARD: July 10, 2019

REASONS FOR DECISION

LEIBOVICH, J.

Overview

[1] Mr. White was convicted of breaching his bail order not to attend the Pickering Town Centre and breaching his probation order to keep the peace and be of good behaviour. Mr. White is appealing his conviction. The sole issue at trial was identity and whether the appellant was the individual present at the Pickering Town Centre. The Crown’s case rested on the testimony of the one witness at trial, the security guard.

[2] The appellant argues that given the frailties of the identification evidence the verdict was unreasonable or, in the alternative, that the trial judge erred in failing to critically assess the identification evidence. The respondent argues that the verdict was reasonable and that the trial judge’s reasons, while deficient in isolation, when read in conjunction with the evidence and submissions of counsel, show that she understood and grappled with all aspects of the identification evidence and reveal no error. For the reasons set out below, while I agree that the test for unreasonable verdict has not been met, I find that the trial judge erred in her analysis of the identification evidence. Unfortunately, it was the submissions of counsel that led the trial judge down the wrong path and to her failure to critically assess the reliability of the identification evidence. A new trial is required.

Evidence at Trial

[3] On February 8, 2017, the appellant was subject to a court order that prohibited him from attending at the Pickering Town Centre.

[4] Connor Houston, the mall’s security guard, testified that on February 8, 2017, he received a call at 2:58 p.m. from an unknown female who alleged that while she was in one of the bathrooms on the property, someone had come in and reached over the stall with their hand. The caller described the intruder as a black male, wearing all black and with a black and red toque topped by a red pompom.

[5] Mr. Houston and his supervisor began a patrol to locate the individual and they spotted someone matching the description just outside the doors of the building, near the corridor that the washrooms were located in. They were about 20-25 feet away when they first identified the individual. Mr. Houston was unable to recognize or identify the individual at this point.

[6] Mr. Houston and his supervisor split up. The supervisor headed to the door through which the individual was standing, while Mr. Houston went through another set of doors to cut off the individual in case he tried to escape. Mr. Houston surmised that the individual saw his supervisor approach and fled. While doing so, Mr. Houston lost sight of the individual. When he re-emerged from those doors, he testified that he was five feet away from the individual and saw his side profile and recognized him, “almost face-to-face” with the individual. It was at this point that Mr. Houston purported to recognize the individual. Mr. Houston and the individual were running as fast as they could. Mr. Houston and his supervisor continued to chase the individual across the street and through a set of apartment building parking lots, and then they lost sight of him.

[7] Mr. Houston testified that he recognized the individual as Jevon, whom he had seen working as part of a cooperative education program at an automotive shop owned by a friend of Mr. Houston’s. He saw Jevon at the shop twice a week from September to December 2016. He estimated that he saw Jevon 15 times during this time period but never spoke to him. Mr. Houston’s friend rented one half of the shop, and Jevon was helping the owner, so Jevon would be on one side of the shop while he was on the other. He testified that the shop was fairly small, so he would still be able to see him when he was on the other side. Prior to the incident, December 2016 was the last time he had seen Jevon.

[8] In court, Mr. Houston identified the appellant as Jevon, the individual that he knew from his friend’s shop, and from the February 8, 2017 incident at the Pickering Town Centre. He testified that, prior to court, he had last seen Jevon on February 8, 2017. While it was contemplated that Mr. Houston would be shown a photo lineup, it never occurred.

Submissions of Counsel at Trial

[9] It was the Crown’s position at trial that this was a recognition case and that there was no reason to doubt the credibility and reliability of Mr. Houston’s identification of the appellant.

[10] Defence counsel at trial argued that this was a case of mistaken identity. Defence counsel reminded the trial judge of the pitfalls of identification evidence and in-dock identification. Defence counsel also submitted to the trial judge that she should be guided by R. v. Anderson, a case from the British Columbia Supreme Court that addresses the admissibility of recognition evidence to allow a witness to view a video in court and give their opinion on why they recognize the individual seen in the video. Counsel brought the trial judge’s attention to the following passage from R. v. Anderson:

In summary, the case law suggests that the indicia for determining whether the threshold degree of familiarity for the reception of recognition evidence has been met is threefold: (i) the length of the prior relationship between the witness and the accused; (ii) the circumstances of the prior relationship between the witness and the accused; and, (iii) the recency of the contact between the witness and the accused prior to the event where the witness recognized the accused. The indicia also go to the weight to be assigned to the recognition evidence along with two other factors, namely: the cumulative effect of recognition evidence provided by more than one witness and the circumstances under which the witness recognized the accused.

[11] Counsel submitted that Mr. Houston’s evidence should be given little weight based on the above criteria. Counsel subsequently submitted that Mr. Houston’s brief view of the individual while the individual was running was not reliable.

Reasons for Judgment

[12] The trial judge found the accused guilty. She stated:

I turn now to the legal analysis. Counsel provided me with a number of helpful cases: R. v. Anderson, 2005 BCSC 1346, [2005] B.C.J. No. 3053; R. v. Campbell, 2017 ONCA 65, [2017] O.J. No. 380; R. v. M.B., [2017] O.J. No. 4477; and R. v. P.T.C., 2000 BCSC 342, [2000] B.C.J No. 446.

These cases support the following principles: Recognition evidence is a form of identification evidence, courts must therefore be cautious in assessing its reliability. See R. v. Campbell.

The factors to consider are: “The length of the prior relationship between the witness and the accused; the circumstances of the prior relationship between the witness and the accused; the recency of the contact between the witness and the accused prior to the event where the witness recognized the accused.” See: R. v. Anderson.

In this case, Mr. Houston briefly saw a suspect in the mall on February 8th, 2017, as he and his supervisor cased the male. Mr. Houston testified he was approximately five feet away and saw the suspect in profile when he recognized him as “Jevon”. Mr. Houston further testified that his recognition was based on seeing Jevon at his friend’s auto body shop one or two times per week between September to December 2016. During this time, Jevon was working at the shop as a co-op student placement. The two did not chat, but the shop is small and there were not a lot of customers at any one time. Mr. Houston estimates that he previously saw Jevon about 15 times.

In my view, the basis for Mr. Houston’s recognition of Jevon meets the three criteria. He saw him weekly over a four-month period, and about six weeks before the incident. When he saw him on February 8th, it was a brief observation but not one that occurred in a traumatic circumstance. I therefore conclude that based on Mr. Houston’s recognition, the Crown has proven identification beyond a reasonable doubt.

The Law and Analysis

Issue 1: Did the trial judge err in her assessment of the identification evidence?

[13] As stated at the outset, it is my view that she did. Unfortunately, the trial judge’s focus was shifted away from the witness’ observation of the individual at the time of the incident to the evidence of the witness’ prior relationship with “Jevon”. There was also no analysis of the reliability of the witness’ in-dock identification of the appellant as the person he knew as Jevon.

[14] Recognition evidence is a form of identification evidence. As stated recently in R. v. Chafe, 2019 ONCA 113 at para. 32:

It is crucial to remember, though, that recognition evidence is a form of identification evidence. The same level of assessment of the evidence must apply. Continuing on in Olliffe at para 39:

It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply, and the same caution must be taken in considering its reliability as in dealing with any other identification evidence.

[15] The trier of fact must assess the evidence of the witness’ observation of the individual as critically as if there was no prior recognition. The circumstances of the observation of the individual matter irrespective of whether the person is known or not known to the witness. Again, as stated in R. v. Chafe at para 29 and 30:

……….Recognition evidence is not “different” from identification evidence. It is subject to the same frailties and the same risks. This is significant where, as here, a jury may be quick to assume that, because the witness knows the person, the identification must be correct. A trier of fact could intuitively place undue reliance on the evidence of recognition without a clear instruction outlining the frailties. The trier of fact, whether judge or jury, must approach the evidence of recognition with the same caution as identification evidence and the evidence must have the same level of reliability.

Even though the witness knows the person identified, the time to observe, the circumstances of the observation, and the conflicting evidence constitute factors which the trier of fact must grapple with in order to determine reliability. The usual dangers of eyewitness identification exist in a case of alleged recognition: see R. v. Miller (1998), 131 C.C.C. (3d) 141 (Ont. C.A), at para. 27. [emphasis added]

Also see R. v. Jack, 2013 ONCA 80 at paras. 25, 26.

[16] The trial judge properly stated that recognition evidence is a form of identification evidence and the court must approach its use with caution. However, the bulk of her brief analysis focused on the evidence of Mr. Houston’s past relationship with Jevon. The trial judge quoted from the criteria set out in R. v. Anderson and found that Mr. Houston’s past relationship with Jevon met the three criteria set out in Anderson. However, Anderson deals with the admissibility of recognition evidence to allow a witness to view a video in court and give their opinion on why they recognize the individual seen in the video [1]. The difficulty with using Anderson in a case such as this, is that it diverts the trier of fact, as it did in this case, from an inquiry into the circumstances of the actual observation of the witness of the individual in question.

[17] Had the trial judge gone on to provide an explanation of why she thought that the circumstances of Mr. Houston’s observation were sufficiently reliable to ground a conviction then the discussion of Anderson would be of no moment. However, the trial judge’s only comment that reveals an assessment of the reliability of Mr. Houston’s observation on February 8, 2017 was that it “was a brief observation but not one that occurred in a traumatic circumstance.” It is correct that the observation was brief. It is also correct that there was no evidence that this was a traumatic incident for Mr. Houston. But it was an adrenaline-charged incident for him as he was running and chasing a person of interest. Furthermore, the individual was also in flight, making the observation more difficult. On the other hand, the incident occurred during the day and they were only five feet apart when the observation was made. The trial judge was required to wrestle with all of these factors in assessing if the identification was sufficiently reliable.

[18] I agree with Crown counsel’s submissions on appeal that I must look at the submissions of counsel and the interaction with the trial judge to determine if the trial judge fully appreciated all the issues with the respect to the identification evidence. I have done so. However, it was defence counsel who brought Anderson to the trial judge’s attention and diverted her from the task of critically assessing the circumstances of the identification.

[19] Another difficulty is that there was no analysis of the reliability of the witness’ in-dock identification of the appellant. Mr. Houston was not shown a photo lineup, nor was there any other evidence led from other sources that the appellant in fact attended Mr. Houston’s friend’s car shop. The only evidence led at trial that Jevon was the appellant was Mr. Houston’s in-dock identification of the appellant. In-dock identification of an accused at trial, as the person previously observed is, standing alone, of negligible or no probative value: R. v. Phillips, 2018 ONCA 651 at paras. 22, 23, R. v. Lewis, 2018 ONCA 351 at para. 23, and R. v. Biddle, 2018 ONCA 520 at para. 32. In this case, at trial, Mr. Houston had not seen the appellant, if he was the individual at the Pickering Town Centre, since almost a year earlier and had not seen Jevon at the car shop for slightly over a year. Mr. Houston’s past relationship with Jevon could enhance his in-court identification of him but the trial judge was required to conduct such an analysis to see if she was so satisfied.

Issue 2: Is the verdict reasonable?

[20] The test for vacating a conviction and entering an acquittal requires the appellate court to determine “whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.” The weighing of evidence looks beyond mere sufficiency to whether the evidence can support a finding of guilt beyond a reasonable doubt, “through the lens of judicial experience”. This test applies equally to verdicts rendered by a jury, or by a judge alone, although the scope of review is expanded in judge alone cases because of the existence of written reasons; R. v. Yebes, [1987] 2 S.C.R. 168, R. v. Biniaris, 2000 SCC 15 at paras. 36-37, 40-41, R. v. Labonte, 2016 ONCA 426 at paras 50-55, R. v. W.H., 2013 SCC 22 at para. 26; R. v. Phillips, at paras. 49-52.

[21] In my view, the verdict was not unreasonable. A properly instructed trier of fact, fully aware of the difficulties with identification evidence, could find that circumstances of Mr. Houston’s observation of the individual known as Jevon sufficiently reliable to ground a conviction. The incident occurred during the day. Mr. Houston was close to the individual, only five feet away. There appears to be no issue with respect to lighting. Mr. Houston described the viewing as a side profile but also as “face to face”, at least implying that he had a decent view of the individual’s face. The in-dock identification was standing alone of negligible value but Mr. Houston’s past association with the person he knew as Jevon enhanced that identification. The test is simply whether a reasonable trier of fact could have convicted the appellant.

[22] While not necessary to address this ground, I wish to make it clear that I do not agree with Crown counsel’s submission that the fact that the individual fled from security corroborates the identification evidence because the appellant had a reason to flee since he was not permitted by court order to be at the Town Centre. This submission was not made at trial. More importantly, while it might be logical for the appellant to have fled if he was at the Town Centre, that does not mean that the individual at the Town Centre must be the appellant because he fled. There are a whole host of reasons why the individual may have fled from mall security. The flight does not assist in identifying the individual. Similarly, I do not accept Crown counsel’s submission that the appellant’s address on a court document indicating that he lived in Pickering corroborates the identification. Again, this argument was not raised at trial and other court documents filed at trial indicate that the appellant lived in Brampton.

Disposition

[23] For the reasons given, the convictions are set aside and a new trial is ordered.

The Honourable Justice H. Leibovich

Released: July 23, 2019

[1] It is correct that Anderson also states that the same factors that address admissibility should also be used in weighing the evidence if admitted.