Court File and Parties
COURT FILE NO.: CR-19-70000014-00AP
DATE: 2019-10-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
HERVE KALONJI
Accused
Counsel:
Grace Hession David, for the Crown
Sonya Shikhman, for the Accused
HEARD: September 26, 2019
BEFORE: B. Davies J.
REASONS FOR JUDGMENT
A. Overview
[1] Mr. Kalonji appeals his conviction on two counts of breaching his bail.
[2] Having received a tip that Mr. Kalonji was not complying with his bail, the police set up surveillance on him. On June 19, 2018, the officers saw Mr. Kalonji in Dundas Square talking on the phone in the presence of another person. Mr. Kalonji was subject to a recognizance of bail with two sureties. He was not allowed to use a cell phone or to be out of his residence except in the presence of one of his sureties. The main issue at trial was whether the evidence proved beyond a reasonable doubt that Mr. Kalonji was not with his surety at the time he was seen by the police.
[3] Surveillance officers testified that they were given a photograph of Mr. Kalonji and his two sureties during a briefing on June 19, 2018. The officers testified that, in their opinion, the person with Mr. Kalonji in Dundas Square was not one of his sureties. As a result, they arrested Mr. Kalonji for breaching his bail. The police did not detain or question the person who was with Mr. Kalonji at the time of his arrest.
[4] Mr. Kalonji testified and said that the person he was with was one of his sureties. That surety was not called as a witness by either the Crown or the defence.
[5] The trial judge accepted the evidence of the officers. He drew an adverse inference against Mr. Kalonji’s credibility because he failed to call the surety as witness and rejected Mr. Kalonji’s evidence that he was with his surety.
[6] Mr. Kalonji raises three related grounds of appeal:
a. The trial judge erred in accepting the evidence of the surveillance officers that they received photographs of the sureties as part of the briefing;
b. The trial judge erred in accepting the opinion evidence of the surveillance officers that the individual with Mr. Kalonji was not one of his sureties; and
c. The trial judge erred in drawing an adverse inference against Mr. Kalonji.
[7] For the reasons that follow, I find that it was open to the trial judge to find that the officers received photographs of the sureties during their briefing. However, I find that the trial judge’s reasons for accepting the officers’ opinion that the individual with Mr. Kalonji was not his surety are insufficient in light of the conflict in the evidence. On that basis, I would set aside the conviction and order a new trial.
a. The Evidence of the Surveillance Officers
[8] A central issue at trial was whether the officers were given a photograph of Mr. Kalonji’s sureties during the briefing before they started surveillance on June 19, 2018. The Crown called four of the five members of the surveillance team. The briefing officer testified that he gave the other team members a photograph of Mr. Kalonji and a photograph of each surety. Each team member also testified that he received a photograph of Mr. Kalonji and his sureties during the briefing. Each officer had a copy of the photographs in his notebook when he testified at trial.
[9] The defence cross-examined each officer extensively on this evidence and established the following:
• Each officer had reference in his notebook to providing or receiving a single photograph of the person of interest, Mr. Kalonji;
• None of the officers, including the officer who conducted the briefing, had any reference in his notes to providing or receiving photographs of the sureties;
• The photographs of Mr. Kalonji and the sureties that the officers say were distributed at the briefing were not provided to the Crown for disclosure purposes with any of the officers’ notes;
• Each officer used a three-ring binder to make his notes and could have inserted the photographs into his binder after the investigation was over; and
• The three photographs were disclosed to the Crown for the first time shortly before the trial, but after the Officer-in-Charge met with the Crown to prepare for trial.
[10] Defence counsel urged the trial judge to reject the officers’ evidence that they received the photographs of the sureties before conducting surveillance on Mr. Kalonji. The trial judge found that the officers were given the photographs as part of the surveillance briefing:
In my view, logic and common sense dictate that a surveillance team, tasked with surveilling a suspected bail violator, would be given this material. Their task would be nonsensical if they were unable to recognize the different parties involved; the accused, the surety. This would be an essential component of the task. And I accept the evidence of the officers, each of them, that this material was put together for this specific purpose and was given to each of them.
[11] The trial judge did not commit any palpable and over-riding error in his assessment of the credibility of the surveillance officers. He considered all of the evidence and addressed the defence submissions. Having done so, it was open to the trial judge to accept the officers’ evidence that they received the photographs of the sureties as part of the briefing materials. I reject this ground of appeal.
b. Opinion Evidence of the Officers
[12] As set out above, the officers testified that the individual with Mr. Kalonji on the day of his arrest was not, in their opinion, one of his sureties. The trial judge accepted their evidence on this point. However, the trial judge did not address the reliability of the officers’ evidence about the identity of the person with Mr. Kalonji. Nor did the trial judge provide reasons for accepting the officers’ evidence in the face of contradictory evidence suggesting that the person with Mr. Kalonji may indeed have been his surety.
[13] The appellant submits that the trial judge erred by failing to reconcile this evidence and failing to adequately explain why he accepted the officers’ evidence that the person with Mr. Kalonji was not one of his sureties. I agree.
[14] The officers arrested Mr. Kalonji in Dundas Square while he was in the presence of the person they described as an “unknown” individual. There was a factual dispute at trial about whether the individual walked away when the police approached Mr. Kalonji or the police told him to leave. Either way, the officers did not stop the individual or make any efforts to identify him. As a result, the Crown’s case depended entirely on the accuracy of officers’ evidence that the individual was not one of Mr. Kalonji’s sureties.
[15] None of the surveillance officers had any prior dealings or familiarity with the sureties. Two of the four officers testified they did not recognize the person with Mr. Kalonji. Another officer testified that there was discussion among the surveillance officers about whether the person with Mr. Kalonji was one of his sureties and “this male did not match the description of those sureties.” These officers did not describe the person with Mr. Kalonji or any features that distinguished him from the people in the briefing pack. Their evidence essentially amounted to a bald assertion that the individual was not one of the sureties.
[16] The fourth officer also described the person with Mr. Kalonji as an “unknown male”. Again, he did not provide any explanation for his opinion that the person with Mr. Kalonji was not one of his sureties. However, he did provide a description of the individual with Mr. Kalonji:
It was a male black, dark complexion, about six foot, 170 pounds, approximately 30 years of age, floral pattern T-shirt, dark coloured jeans.
[17] The briefing package received by the officer contained a photograph and information from the Ministry of Transportation for each surety. One of the sureties is a black male with a dark complexion who was 33 years old. It is not possible to tell from the photograph the height or weight of that surety. In other words, the only description given of the person with Mr. Kalonji on the day of his arrest – black man with a dark complexion approximately 30 years old – matches the information in the briefing package about one of the sureties. None of the officers was asked to explain this potential inconsistency in the evidence.
[18] In his reasons, the trial judge did not advert to or resolve this apparent conflict between the observations that match the description of one of the sureties and the evidence of the officers that the person with Mr. Kalonji was not his surety. Having found the officers to be credible on the issue of receiving the photographs as part of the briefing, the trial judge simply accepted their evidence about the identity of the person with Mr. Kalonji without addressing the reliability of that evidence.
[19] To be fair, the reliability of the officers’ identification evidence was not argued in great detail by counsel at trial. The primary focus of submissions was on the credibility of the officers. Nonetheless, counsel for Mr. Kalonji did argue that the trial judge should consider whether the officers might be wrong in their identification of the individual with Mr. Kalonji even if the court found them to be credible witnesses.
[20] Reviewing courts must take a functional approach to assessing the sufficiency of reasons. The relevant question is whether the reasons respond to the live issues in the case, having regard to the evidence as a whole and the submissions of counsel. Trial judges do not have to resolve every inconsistency in the evidence or address every argument advanced by counsel. However, a failure to address and explain major inconsistencies in the evidence may constitute reversible error: R. v. Slatter, 2019 ONCA 807 at paras. 58 – 60.
[21] The Crown argued that the trial judge’s finding on credibility and reliability are entitled to deference. As a general legal principle, that is true: R. v. Gagnon, 2006 SCC 17 at para. 23. However, the trial judge did not make any findings about the contradictory evidence in this case. On the one hand, it is possible that the trial judge considered the description given by the one officer and decided the apparent conflict was insignificant in light of the testimony of the other officers that the person with Mr. Ndaye was not one of his sureties. On the other hand, it is also possible he simply overlooked this apparent contradiction in the evidence.
[22] Given that the Crown’s case relied entirely on the accuracy of the identification evidence, the trial judge was required to at least consider the evidence that suggested that the person with Mr. Kalonji might have been his surety and resolve the apparent conflict. This is particularly true in light of the frailties associated with identification evidence and the recognized shortcomings of human observations: R. v. Candir, 2009 ONCA 915 at para. 109.
[23] The reasons in this case do not disclose that the trial judge considered the conflict in the evidence and the impact, if any, it had on the reliability or accuracy of the officers’ evidence that the person with Mr. Kalonji was not one of his sureties. For this reason, the appeal is allowed and a new trial is ordered.
[24] Having come to the conclusion a new trial is required, I will not address the issue of whether the trial judge erred in drawing an adverse inference in the circumstances of this case.
B. Davies J.
Released: October 17, 2019
COURT FILE NO.: CR-19-70000014-00AP
DATE: 2019-10-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
HERVÉ KALONJI
Appellant
REASONS FOR JUDGMENT
B. DAVIES J.
Released: October 17, 2019