R. v. Hallett-Smith, 2020 ONSC 684

COURT FILE NO.: 308/19

DATE: 20200131

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Liam Hallett-Smith

Defendant

G. Christakos, for the Crown

G. Snow, for the Defendant

HEARD: January 20-22, 2020

justice a. k. mitchell (orally)

Overview

1The defendant is charged with various offences in relation to events which took place at 847 Queens Avenue, London, Ontario (the “property”) during the early morning hours of Saturday, January 5, 2019. Specifically, Mr. Hallett-Smith is charged with 6 counts including, break and enter, assault, arson, uttering threats and damage to property.

2The complainant, Kenneth Klassen, is the owner of the property. The property is a duplex. On January 5, 2019, Kenneth resided in the rear unit of the property. The complainant, Marcus Klassen, is Kenneth’s younger brother. Marcus resided in the front unit of the property with his roommate, Miranda Thyssen.

3The defendant denies he was the perpetrator of these offences. The only issue at trial was whether the Crown had identified beyond a reasonable doubt the defendant as the person who committed these crimes.

4The defendant admits that, aside from identification, the evidence at trial proves beyond a reasonable doubt the essential elements of each of the six offences with which he has been charged.

Evidence

5In support of its case, the Crown called 8 witnesses – 4 lay witnesses and 4 police officers. On consent, a fire inspection report was admitted as evidence for the truth of its contents. Three photographs of the property, excerpts of the video recording of the police interview of Sarah Chitty conducted in March 2019 and the police interview of Ms. Thyssen conducted in January 2020 were made exhibits. The recordings of the 911 calls placed by Kenneth during and shortly after the incident were also filed as an exhibit.

6The defendant did not call any evidence.

7The evidence of the witnesses was largely undisputed. Eye-witness testimony was given by both Marcus and Kenneth. The focus of cross-examination was challenging the reliability of the evidence given by the various lay witnesses and, in particular, the identification evidence of Marcus.

Evidence of Marcus Klassen

8Marcus testified that at approximately 3 a.m. on January 5, 2019, he was awakened by loud thumping noises coming from the rear unit. He then heard Kenneth yelling for someone to “get out” and calling Marcus’ name. Marcus ran to the rear of the property and observed one of two assailants through the broken window of the door. He recognized this individual as the accused. Marcus could not identify the second assailant. Marcus opened the door whereupon he says the accused immediately grabbed him and placed him in a headlock.

9Marcus testified that his head was pressed against the accused’s stomach area and he was unable to see his face. He recalls the accused saying, “you want to join us too”. He also recalled this person threatening to hurt him if “Kenny did not pipe up”. It was not clear to Marcus whether the assailants were wanting money from his brother or wanting to harm him. He recalls that Kenneth was behind the bedroom door and not visible. The second assailant was threatening to break his legs and was kicking at his knees. He recalls being punched in the face area while he was held in a headlock. He says the accused was telling his partner to light the place on fire. Marcus observed the assailants toss lit material which ignited the stairs to the basement and the door.

10Marcus estimated the incident lasted approximately 20 minutes. However, nearby video surveillance of the perpetrators’ arrival and departure from the property indicates the incident lasted approximately 5 minutes. In cross-examination, Marcus admitted he was able to observe his assailant’s face for only 2-3 seconds before being placed in a headlock and for another 2-3 seconds as the assailant fled the scene.

11Marcus says he was able to identify the accused as the individual who placed him in a headlock because Mr. Hallett-Smith was familiar to him. Marcus testified he recognized his assailant because he had met him once before approximately 3 months’ prior. He described this previous encounter as follows:

(a) One evening in the Fall of 2018, he and Kenneth had just finished a yoga session and were exiting the studio whereupon they ran into the accused who was passing by on the street;

(b) Although dark outside, Marcus was able to see the individual including his face as the street was lit by streetlights;

(c) Kenneth told Marcus the individual owed him $400. Kenneth grabbed the individual by his coat from behind and began to punch him. The individual returned some punches;

(d) Marcus intervened in the altercation and pulled his brother away to avoid police involvement;

(e) Marcus testified that this previous encounter with the accused lasted no more than 20-30 seconds. He admitted it was a stressful, high-conflict encounter and that he did not have an opportunity to observe the individual’s face for more than 10-15 seconds.

12Marcus provided no description of the individual he observed during the prior encounter and no description of the assailant he identified as the accused during the events of January 5, 2019. Marcus provided no evidence with respect to the clothing worn, hairstyle, any distinctive facial or body features, or the height and weight of his assailant.

13When questioned during cross-examination about his ability to see and observe, Marcus said that he must have been wearing his contact lenses because he could see clearly. He said the porch light was on and illuminated the back porch and the entrance to the rear unit. He said the kitchen light was off but believes the light in the living room was on. He described the back unit as being “reasonably lit”.

14He admitted he had smoked marijuana before both the prior encounter and before falling asleep on January 5, 2019. When suggested to him, he agreed marijuana “numbs his power of perception”.

15Marcus testified that he was able to observe his assailant’s face and hear his voice on January 5, 2019. He acknowledged that he had never been in the presence of the accused before the prior encounter outside the yoga studio, nor had he ever seen the accused in a photograph before or after the incident, and nor had he ever observed the accused at the property before. Aside from the previous encounter and the incident occurring on January 5, 2019, Marcus had not observed the accused or been in his presence at any other time.

16During the trial, Marcus pointed out the accused sitting in the prisoner’s dock as his assailant on January 5, 2019. He testified that he is absolutely certain it was the accused who committed these offences.

Evidence of Kenneth Klassen

17Kenneth testified as to his recollection of the events of January 5, 2019. He recalled being asleep in his bed when he was awakened by breaking glass and the sound of someone breaking into his home. Initially he testified that the kitchen and porch light were both on. He said he could see the assailants in his house so assumed the kitchen light was on. However, later in his testimony, Kenneth testified that the kitchen light was off. He claims his visibility was poor because he was not wearing his glasses and it was dark. He was unable to see his assailants’ faces.

18Kenneth says he exited the bedroom and a physical altercation ensued. He proceeded to barricade himself in his bedroom. He said the assailants attempted to break into the bedroom. He recalls them asking him “where the money was” and asking, “you think its funny to beat up your girlfriend” and threatening to “burn his house down”. Kenneth called 911 while barricaded in the bedroom. While on the phone with the 911 dispatcher he jumped from the bedroom window and, wearing only his pyjama bottoms, ran to a nearby bar where he sought refuge. He recalls being chased by his assailants.

19In his frantic 911 call, Kenneth is asked by the dispatcher to identify the person or persons who broke into his home and who were chasing him. Without hesitation, Kenneth identified Sammy Hudeki and spelled his surname. He described Mr. Hudeki to the dispatcher as being white, slim and having blond dreadlocks. He then explained to the dispatcher that Hudeki is the brother of his former girlfriend who in January 2019 he stood charged with assaulting.

20Believing his assailant to be Sammy Hudeki, Kenneth called Mr. Hudeki’s residence and spoke with Mr. Hudeki’s father about the incident.

21While at the bar, Kenneth called Marcus. During this call and before either Kenneth or Marcus gave their statement to police, Marcus advised Kenneth that the perpetrator was the individual they had encountered outside the yoga studio a few months prior. Kenneth identified that individual as the accused and advised Marcus of his name – Liam Smith.

22Kenneth testified that he and the accused were former friends and that the accused would have attended at the property approximately 12 times in the past and knew where he resided. He said that he held a birthday party for the accused at his house a couple of years before the incident. However, at the time of the incident, the relationship had soured because the accused owed him money for drugs.

23Kenneth admitted that in January 2019 he was selling drugs and was addicted to alcohol and cocaine, although denies he had consumed any alcohol, marijuana or other drugs on January 5, 2019.

24Until speaking with Marcus, Kenneth was absolutely certain his assailant was Sammy Hudeki.

Evidence of Sarah Chitty

25Sarah Chitty is the former girlfriend of Kenneth having dated him off and on for 7 years. She recounted an incident in December 2018. She was at a local bar celebrating her birthday with friends. She was outside the bar smoking a cigarette when a male approached her and addressed her by the name “Sarah May”. This individual introduced himself as “Liam” and asked if she still lived at her address. He then asked her if Kenneth still resided at the Queens Avenue property. He said that she should tell Kenneth that he intended to “pay him a visit when he least expected it”.

26Ms. Chitty described the individual as friendly and non-threatening. She says she recognized him as someone she had met and had partied with once before at a birthday party at Kenneth’s home months or years prior. She claims she sent a text to Kenneth following the encounter but could not locate the text. No text message corroborating Ms. Chitty’s evidence was introduced at trial and Kenneth was never questioned about receiving her text message.

27Ms. Chitty says the birthday party thrown by Kenneth for the accused was during the “warmer months”.

28Ms. Chitty admitted she had been drinking the night of the encounter and that her conversation with the accused lasted the amount of time it took to smoke half a cigarette. She could not recall the friends who were outside with her during her conversation with the accused.

29Ms. Chitty admitted she did not speak with police about the December 2018 incident until March 2019. She also candidly admitted she had spoken “many, many times” with Kenneth about the incident prior to speaking to police.

30During the trial, Ms. Chitty pointed out the accused sitting in the prisoner’s dock as the person she spoke to outside the bar in December 2018. She was absolutely certain of his identity.

Evidence of Miranda Thyssen

31Ms. Thyssen testified that although she spoke to both Kenneth and Marcus after the incident on January 5, 2019, she was not advised by either Marcus or Kenneth of the identity of the assailant. She testified that she did not see the assailants and the accused is not known to her. The Crown candidly conceded that Ms. Thyssen’s evidence does not assist the court in determining whether the accused committed these crimes.

Evidence of the Police Constables David McKay, Adam Perry, Daniel Mantler and Aaron Begin

32The evidence of the four police officers who testified at trial confirmed that no one other than the accused was investigated for these crimes. Police did not investigate Sammy Hudeki, although they did speak with him by phone. Mr. Hudeki was not called as a witness at trial.

33No physical, DNA or fingerprint evidence tying the accused to the property was found. Furthermore, police confirmed that no photo line-ups were provided to Marcus or to Ms. Chitty from which to identify the accused, explaining they proceeded in this manner because both complainants were familiar with the accused. Only the photo of the accused was provided to them for identification purposes.

Analysis

34Crown and defence counsel agree on the relevant legal principles.

35As the Ontario Court of Appeal noted in R. v. Jack¹, “it is essential to recognize that generally it is the reliability, not the credibility, of the eyewitness’ identification that must be established. The danger is an honest and inaccurate identification.” In R. v. Olliffe² Hourigan J.A. speaking for the court pointed out the dangers inherent with identification evidence. He wrote:

The focus of the concern is not the credibility of the witness providing the identification evidence; rather, it is the reliability of the evidence and the potential for it to be given undue weight. Identification evidence is often deceptively reliable because it comes from credible and convincing witnesses. Triers of fact place undue reliance on such testimony in comparison to other types of evidence. Our courts recognize that they must vigilantly guard against convicting based on honest and convincing, but mistaken, eyewitness identification: R v. Quercia (1990), 1990 2595 (ON CA), 75 O.R. (2d) 463 (C.A.), at p.465; R. v. Goran, 2008 ONCA 195, at para. 33.

36When assessing the reliability of a witness’ identification evidence, it is important to consider the following factors:

(a) Was the suspect known to the witness?

(b) If familiar to the witness, what is the extent of the previous interaction between the witness and the suspect?

(c) What were the circumstances of the contact during the commission of the crime and was the opportunity to see the suspect lengthy or fleeting? and

(d) Did the sighting by the witness occur in circumstances of stress? ³

37When considering whether the accused is known to the witness, it has been recognized that recognition evidence is merely a subset of identification evidence. However, the familiarity between the accused and the witness may serve to enhance the reliability of the evidence⁴.

38Defence counsel points out that Marcus did not provide any detail regarding his assailant’s appearance. Mr. Snow submits that I must also instruct myself on the frailties associated with the in-dock identification of the accused by Marcus and Ms. Chitty. In this regard, he referred me to the following passages from Jack⁵. At paras. 16 and 17, the court writes:

16 As well, the jury must be instructed to carefully scrutinize the witnesses’ description of the assailant. Was it generic and vague, or was it a detailed description that includes reference to distinctive features of the suspect? R. v. Ellis, 2008 ONCA 77, [2008] O. J. No. 361 (Ont. C. A.), at paras. 5, 8; R. v. A. (F.) (2004), 2004 10491 (ON CA), 184 O.A.C. 324 (Ont. C.A.), at para. 64; R. v. Richards (2004), 2004 39047 (ON CA), 70 O.R. (3d) 737 (Ont. C.A.), at para. 9. R. v. Boucher, 2007 ONCA 131, [2007] O.J. No. 722 (Ont. C.A.), at para. 21. In some cases, a failure to mention distinctive characteristics of a suspect is sufficiently important, especially where there is no other inculpatory evidence, to reduce the case from one of identification effectively to one of no identification.

17 Finally, the charge must caution the jury that an in-dock or in-court identification is to be given negligible, if any, weight: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445 (S.C.C.), at pp.468-69; R. v. Tebo (2003), 2003 43106 (ON CA), 172 O.A.C. 148 (Ont. C.A.), at para. 19.

39Here, the Crown’s case hinges entirely on the reliability of Marcus’ evidence. Without Marcus’ eyewitness testimony identifying Mr. Hallet-Smith as the perpetrator, the Crown’s case could not succeed against the accused.

40As is quite often the case with eyewitness identification witnesses, I found Marcus to be an honest, forthright and, therefore, credible witness. He was responsive to questioning. He candidly admitted to smoking marijuana both before the yoga studio encounter and before going to bed on January 5, 2019.

41While a credible witness, I have grave concerns with respect to the reliability of Marcus’ identification evidence for the following reasons:

(a) Marcus acknowledged he had very little time to observe the accused during either of the two occasions he interacted with the accused. During the encounter outside the yoga studio he observed the accused’s face for 10-15 seconds and during the incident he had an opportunity to observe his assailant’s face for 2-3 seconds before being placed in a head lock and a further 2-3 seconds to observe the assailant as he was running from the scene;

(b) Marcus admitted both encounters were stressful for him; and

(c) Marcus admitted his powers of perception were “numbed” by the marijuana he had consumed and admitted he was groggy and in a haze when he went to help his brother.

42Ms. Chitty’s corroborating evidence is similarly unreliable:

(a) She had little opportunity to observe the accused’s face – the time it takes to smoke half a cigarette;

(b) She admitted she had consumed alcohol that evening and could not recall which of her friends was with her at the time she spoke with the accused;

(c) Before giving her statement to police she spoke with Kenneth many times about the events of January 5, 2019 and he told her the accused was the person responsible for committing the crimes and that she had met the accused at the birthday party thrown for him;

(d) Although she believed she texted Kenneth about her conversation with the accused, she was unable to locate the text; and

(e) She recalled attending the accused’s birthday party in the “warmer” months, yet Mr. Hallett-Smith was born in November.

43This case is easily distinguishable from the factual scenarios of the cases I was referred to by counsel. Unique to this case is the fact we have two eye witnesses to the events of January 5, 2019 with each eye witness identifying someone different as the assailant. Marcus is absolutely certain the assailant was the individual he and Kenneth had encountered 3 months prior outside the yoga studio. Kenneth was equally as confident the assailant was Sammy Hudeki when speaking to the 911 dispatcher as the incident was taking place, and before speaking to Marcus.

44Marcus says he saw his assailant and says he recognized his face as someone he met and observed on one occasion for 10-15 seconds 3 months prior. Kenneth, although unable to see the faces of his assailants, could describe the build, hair colour and hair style of his assailant to the 911 dispatcher. Unlike Marcus, Kenneth was very familiar with both Mr. Hudeki and the accused. It may be reasonably inferred that Kenneth would have been familiar with the physical characteristics and appearance of both men and familiar with their voices. The comments made by the assailant during the commission of the offence were consistent with Kenneth’s issues with Mr. Hudeki’s sister. These comments were not consistent with any debt owed to Kenneth by Mr. Smith.

45I give little weight to the in-dock identification of the accused by Marcus, Kenneth and Ms. Chitty. He was the only person sitting in the prisoner’s dock at trial. Moreover, I have very serious concerns regarding the reliability of the evidence of all of the lay witnesses. Marcus and Kenneth spoke about the incident before giving their statement to police. Ms. Chitty did the same. Their evidence is a collective narrative. I am concerned that the holes in their memory of the incident have been filled with the information provided by the others. The evidence of the lay witnesses appears to have been creative rather than corroborative. In particular, Kenneth’s evidence does not corroborate Marcus’ evidence as he simply adopts the identification evidence of Marcus without question or scrutiny.

Disposition

46For these reasons, I am left in reasonable doubt as to the identity of Marcus’ and Kenneth’s assailant and, therefore, I must acquit the accused of these crimes. Consequently, I find Liam Hallet-Smith not guilty of all counts on the indictment.

Footnotes

1. 12013 ONCA 80 at paras. 14.
2. 22015 ONCA 242, [2015] O.J. No. 1803 (C.A.) at para. 37.
3. 3R. v. Jack, supra, at para. 15.
4. 4See R. v. Campbell, 2017 ONCA 65, [2017] O.J. No. 380 (C.A.) at para. 10.
5. 5Supra, at paras. 16 and 17.