COURT FILE NO.: CR-20-307-00
DATE: 20220324
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
C. Coughlin and P. Maund, for the Crown
- and -
PHILIP FITZPATRICK and EVAN WRIGHT
S. Caramanna and C. Laperriere, for Mr. Fitzpatrick
J. Goldlist and M. Bavaro, for Mr. Wright
HEARD: November 8, 2021
RULING ON PRETRIAL APPLICATION
Justice André
[1] The Crown brings an application for the admission of non-expert “recognition” evidence in its case against Mr. Evan Wright and Mr. Phil Fitzpatrick.
BACKGROUND FACTS
[2] On June 21, 2018, Brandon Hall was killed in his apartment by one or two assailants who kicked down his door and shot him repeatedly. The Crown’s theory is that the two persons responsible for the murder are both accused, one of who, Mr. Evan Wright, had previously accused Mr. Hall of stealing guns from him.
VIDEO EVIDENCE
[3] The police engaged in a fairly extensive canvass of the scene of the crime and recovered a significant amount of video surveillance evidence from both commercial and residential addresses.
[4] One such address was a plaza located at 428 Rutherford Road in Brampton. A business operating as “Brampton Convenience” had cameras in the parking lot area to the side / rear of the plaza.
[5] On the morning of June 21, 2018, at approximately 4:20 am, one camera showed two men walking down through the parking lot in the direction of the crime scene. A one-second clip shows one of the men stumbling over the edge of a raised concrete platform. Each was wearing dark clothing, hoods, and masks. One of the individuals, who the Crown maintain is Mr. Wright, was wearing a pair of black and white Nike Air Jordan shoes and carrying a large blue athletic bag. He wore red gloves. The second individual wore black pants, a black Raptors hoodie (Raptors logo in red), and black running shoes with white soles and what appeared to be red laces. The second individual appeared to be wearing a white latex glove on one hand and a yellow-green glove on the other. The Crown allege that this person is Mr. Fitzpatrick.
NON-EXPERT RECONITION EVIDENCE
[6] Shawn Wright is Phil Fitzpatrick’s father and Evan Wright’s uncle. Jordana Diamond is his common law spouse. At the time of the homicide, they lived at 32 Glengrove Court in Brampton. Phil was living in the family home, while Evan was spending evenings camped out in their backyard in a tent. He lived in this location during the months prior to the murder and up to August 2018.
[7] On November 2, 2018, police executed search warrants at the family homes of both Phil Fitzpatrick and Evan Wright. Shawn Wright was interviewed a number of times – twice on the same day and once a few weeks later after being told that Mr. Wright and Mr. Fitzpatrick had been arrested for Mr. Hall’s murder. During these interviews, Shawn Wright was shown the surveillance video described above. He was asked if he recognized the suspects and various questions relating to what was depicted in the video – questions about their appearances, stature, clothing, footwear, gait etc.
[8] Shawn Wright was clear that he was not prepared to definitively identify anyone from the surveillance video. However, he answered a significant number of questions which the Crown contends constitute recognition evidence which is probative of the identity of the two parties depicted in the video. These answers include:
a) The person carrying the blue bag looked like Evan – he had a swagger a little bit (thought he looked short on the video);
b) Fitzpatrick had a Raptors sweater;
c) Fitzpatrick used to wear old black running shoes with red laces;
d) The gloves worn by the suspect on the video looked similar to gloves distributed at his workplace – rubber on inside and green/yellow on the outside. Shawn also noted they had gloves similar to those at the family home (garage and basement);
e) When Shawn Wright watched the convenience store surveillance video, he thought it was his son after watching him stumble / trip. He thought so because he claimed, his son was “so clumsy”. However, despite the obvious similarities in clothes, shoes etc., he stated that he did not believe the party walked like Phil typically did.
ANTICIPATED EVIDENCE OF JORDANA DIAMOND
[9] Ms. Diamond is Shawn Wright’s spouse and Phil Fitzpatrick’s stepmother. At the time of the allegations, they had lived together at 32 Glengrove Court in Brampton for approximately 5 years. They lived there with Phil Fitzpatrick and Ms. Diamond’s daughter.
[10] On November 2, 2018, police executed search warrants at the family homes of both Phil Fitzpatrick and Evan Wright. Ms. Diamond was also interviewed twice on November 2, 2018, and once on November 21, 2018. During these interviews, the police showed her the surveillance video described above. She was asked if she recognized the suspects and varied questions relating to what was depicted in the video – questions about their appearances, stature, clothing, footwear, gait, etc.
[11] While Ms. Diamond was clear that she was not able to definitively identify anyone from the surveillance video, she answered a number of questions which the Crown contends, are relevant to the issue of the identity of the two parties shown in the surveillance video. These are:
a) “... it is the right height and size for them”;
b) Phil used to have black, white and red shoes that were “… in terrible shape”;
c) She was sure that Phil had / worn black pants / jeans;
d) The shoes on the video look like Phil’s old shoes, but she couldn’t be sure;
e) “When he came around the corner and tripped I automatically thought it was him, yes. There … he’s clumsy”.
f) It looks like Philip’s Raptors sweater – she bought it for him in March (2018) for his birthday – “was black with [a] red emblem”.
g) They had lots of work gloves from Shawn’s work in the garage – it was hard to find a matching pair.
POSITION OF THE PARTIES
The Crown’s Position
[12] The Crown relies on the Supreme Court of Canada decision in R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393, and the Ontario Court of Appeal decision in R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 39 for the proposition that non-expert recognition evidence, “is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator.” He submits further, relying on R. v. Berhe, 2012 ONCA 716, 292 C.C.C. (3d) 456, at para. 22, that admissibility of such evidence does not require a witness to be able to pinpoint idiosyncrasies, physical appearance, or movement peculiar to an accused. Rather, such factors are properly considered by the trier of fact in assessing the ultimate reliability of such evidence.
[13] The Crown submits further that Shawn Wright had known his son Philip, and nephew, Evan, their whole lives and was, therefore, in an ideal position to opine about their physical appearance, mannerisms, clothing, and gait.
[14] Similarly, Jordan Diamond would have been in a unique position to know the accused, although not as long as Shawn Wright. She would have met Evan at family gatherings. Furthermore, he lived in her backyard in the months preceding the murder and stayed there until August 2018.
Position of Mr. Fitzpatrick
[15] On behalf of Mr. Fitzpatrick, Mr. Caramanna submits that:
a) The fatal flaw of the Crown’s argument is that unlike the cases it relies upon, neither Shawn Wright nor Jordana Diamond gave an opinion that the persons seen in the surveillance video were the accused. On the contrary, Mr. Wright testified during a preliminary hearing on March 17, 2019, that he was not purporting to identify anyone while Jordana testified at the same hearing that the “trip” she observed on the surveillance video was not an identifying feature of either of the accused. To that extent, there is no non-expert identification evidence in this case.
[16] Mr. Caramanna relies on the following reasons for the exclusion of non-expert identification evidence in R. v. Babbington, 2020 ONSC 1000, at para. 24, as supporting his position that the Crown should not be allowed to rely on this evidence to link the accused to the murder:
a) Ms. Lee made her identification on the basis of a video clip of approximately twelve seconds in duration. Having viewed the video clip, it is clear that Ms. Lee cannot see any of the facial features of the person she alleges is the accused. Her identification, therefore, is based on a combination of the person’s clothing and their gait.
b) The person identified as the accused is walking up stairs in the videotape. I heard no evidence that Ms. Lee saw the accused walking up a staircase at any point prior to watching this videotape. As a result, her assertion that she recognized the accused from his gait and his bowlegged walk is difficult to accept. I reach this conclusion both because of the length of the video, and the fact that it is possible that a person’s gait will change when they walk up and down stairs. I had no evidence that Ms. Lee ever saw the accused walking up and down stairs.
c) Instead, I am concerned that Ms. Lee recognized the accused primarily because of the distinctive jacket that was being worn by one of the alleged culprits the night of the murder. Certainly, it was the first identifying feature that Ms. Lee mentioned. This jacket appears to be very similar to one the accused was wearing at the time of the February 10th, 2017 incident. Identifying a person based on the clothing that they are wearing is not the intention of the principle in Leaney. Clothing is not a unique identifier.
d) Ms. Lee had limited exposure to the accused prior to the February 10th, 2017 incident. While the accused had been nicknamed “Kevin Hart”, Ms. Lee had interacted with the accused for minutes at a time (at most) over the couple of months prior to the murder. Her total exposure to seeing the accused would have been less than an hour.
[17] Second, the evidence of both witnesses was tainted by the investigating officers who, among other things, told them before interviewing them, that both accused had been arrested for the murder. Mr. Caramanna submits that by advising Shawn Wright that the video he was about to see would explain why Philip Fitzpatrick “is where he is tonight”, i.e. in custody, “he was directly shaping the way” Shawn Wright, “should view and approach the evidence”.
[18] Mr. Caramanna also submits that given the four-month delay between the incident and the statement given by Shawn and Jordana, they are in no better position than the jurors to identify the persons seen on the surveillance video.
Mr. Wright’s Position
[19] Ms. Goldlist adopts the submissions of Mr. Caramanna regarding the absence of identification evidence in this case and the tainting of the evidence of Shawn Wright and Jordana Diamond. She relies on the following admonition by the Ontario Court of Appeal in R. v. Smierciak (1946), 1946 CanLII 331 (ON CA), 87 C.C.C. 175, (Ont. C.A.), at page 158(citing R. v. Dickman (1910), 5 Cr. App. R. 135, at pp. 142-3) that,:
The police ought not, either directly or indirectly, to do anything which might prevent the identification from being absolutely independent, and they should be most scrupulous in seeing that it is so.
[20] See also R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419 (C.A.), and R. v. Sargeant, 2014 ONSC 4928, where the court held at para. 2 that identification evidence was so tainted it had no probative value.
[21] Ms. Goldlist also submits that the Crown bears the onus of establishing the admissibility of the non-expert identification evidence. The police failed to record Jordana Diamond’s November 2, 2018, statement as in Sargeant, and to that extent, has failed to meet its burden of establishing admissibility of the evidence.
ANALYSIS
[22] The test for the admissibility of non-expert recognition evidence has been set out, as already noted, in Brown and Leaney and been affirmed in Berhe at para. 14. These decisions have not required familiarity with an accused’s unique features to enable a witness to identify an accused for non-expert identification evidence to be admissible (see Berhe, at para. 19).
[23] Mr. Caramanna relies on the Court of Appeal decision in R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, at para. 46, for the proposition that the trier of fact “must determine the ultimate reliability and what weight, if any, can be properly attributed to the recognition evidence.” One of the factors which the trier of fact would consider as an indicium of reliability would be the ability of the witness “to point to some unique identifiable feature or idiosyncrasy of the person to be identified.”
[24] M.B. does not deviate from the decision in Berhe. M.B. states at para. 46, that Berhe “confirmed the continued importance of unique identifiable features in determining the ultimate reliability of the evidence.” This type of evidence is not important to the issue of threshold admissibility to be determined by a trial judge. Indeed M.B. at para. 46 endorses the following statement: R. v Panghali, 2010 BCSC 1710, at para. 42:
[T]he bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.
[25] Additionally, questions over the tainting of a witness by state agents may affect the ultimate weight to be given to non-expert identification evidence rather than affect the issue of threshold admissibility. However, as indicated in Sargeant, such tainting may be relevant to the issue of threshold admissibility where the evidence was so tainted that the court held that it lacked any probative value.
[26] Ms. Goldlist also relies on Sargeant for the proposition that where an officer made no notes, no audio, and no video record of who was shown photos of possible suspects during a meeting with a witness, the prejudicial effect of the loss of this identification evidence is detrimental to trial fairness because it could not be tested by cross-examination and was, therefore, inadmissible. Ms. Goldlist submits that to the extent that one of Ms. Diamond’s statements was not recorded, her evidence regarding the video evidence should similarly be excluded. However, in response to Ms. Goldlist’s submission about the “lost” statement, the Crown has indicated that far from being lost, the statement was disclosed to defence counsel. To that extent, this submission fails.
[27] Is there any non-expert identification evidence adduced in this hearing which is admissible at trial? Both witnesses commented on the clothing worn by Mr. Fitzpatrick in the video surveillance as being similar to that owned by the accused. However, as noted by Justice LeMay in Babbington, at para. 24, clothing is not unique identifier.
[28] I am not prepared to conclude, as Justice LeMay does in Babbington, that clothing is not a unique identifier. It could well be, in certain circumstances. For example, a person may be wearing unique bespoke attire, or otherwise regular clothing, but with a unique stain, mark, tear, or with initials stitched on it. These characteristics could be probative of the identity of the person seen in the video.
[29] Second, even if the clothing worn by the persons seen in the videos is ubiquitous among a certain group in the community, the combination of items worn by a person may be probative of the issue of identify. For example, a Raptors shirt may be quite commonplace and may, on its own, have no identification significance. However, the combination of the items of clothing worn, including the wearing of a Raptors shirt, a distinctive pair of black shoes with red laces, gloves that are similar to that in Shawn Wright’s garage and the evidence that the wearer was of the right height and build as Philip Fitzpatrick, may well have a probative value regarding the issue of non-expert identification evidence.
[30] Finally, Babbington is distinguishable from the facts of this case given that as Justice LeMay concluded, the witness had limited exposure to the accused prior to the incident. Her total exposure to seeing the accused, would have been less than an hour. This is quite unlike the facts in this case.
[31] Further, Mr. Shawn Wright and Ms. Diamond both commented on the trip or stumble seen on the video as an identifier of Philip Fitzpatrick because, in the words of Ms. Diamon, “he’s clumsy.”
[32] In my view, however, this alleged clumsiness, on its own, is insufficient to be regarded as non-expert identification evidence, particularly given the evidence of Shawn Wright that he was not purporting to identify anyone on the video and Jordana Diamond’s testimony that she was not able to definitely identify anyone from the surveillance video. A trip or stumble is not the same as a limp or characteristic of walking. Tripping over a raised concrete platform cannot form the basis for identifying anyone.
[33] That said, both witnesses have given limited identification evidence, based on their long knowledge of both accused, that may be relevant to the issue of the identification of those involved in Mr. Hall’s murder. The question as to the weight to be given to this evidence will be the responsibility of the jury, not the judge hearing this motion. According, the Crown’s motion is granted.
André J.
Released: March 24, 2022
COURT FILE NO.: CR-20-307-00
DATE: 20220324
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
PHILIP FITZPATRICK and EVAN WRIGHT
RULING ON PRETRIAL MOTION
André J.
Released: March 24, 2022