COURT FILE NO.: CR-21-70000436
DATE: 20221110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JOHN WILLIAM FISHER
Andrew Cox, for the Crown
Elham Ellen Jamshidi, for John Fisher
HEARD: September 12-16, 19-20 & 22, 2022
REASONS FOR JUDGMENT
P.J. Monahan J.
Introduction
[1] John Fisher was tried before me, sitting without a jury, on the following charges: (i) aggravated assault, contrary to s. 268 (2) of the Criminal Code of Canada;[^1] (ii) assault with a weapon, contrary to s. 267 (a) of the Criminal Code; (iii) carrying a concealed weapon without authorization, contrary to s. 90 (1) of the Criminal Code; and (iv) possession of a weapon for a dangerous purpose, contrary to s. 88.1 (1) of the Criminal Code.
[2] These charges arise out of a stabbing that occurred shortly after 2 a.m. on February 17, 2019, at a sports bar at the corner of Danforth Avenue and Carlaw Avenue in Toronto (the “Sports Bar” or the “Bar”). The Crown alleges that Mr. Fisher stabbed Joshua Maier-McKenzie (“Maier-McKenzie”) in the basement of the Sports Bar, and that the stabbing was captured on the Sports Bar’s surveillance video. That video shows a White male wearing a baseball cap bearing the Nirvana “smiley-face” logo thrusting his right arm forward and then down, in an attempt to strike Maier-McKenzie on the left side of his face with a bladed object that appears to be a knife.
[3] It is agreed that Maier-McKenzie was stabbed on the left side of his face at the Sports Bar on February 17, 2019. However, Mr. Fisher denies that he stabbed Mr. Maier-McKenzie. He says, first, that he is not the person depicted on the surveillance video who attempted to strike Maier- McKenzie in the face with the knife-like object in the basement of the Sports Bar. Second, even if he were that person, he says that Maier- McKenzie was not in fact stabbed in the basement but, rather, when he was midway up the stairs leading from the basement towards the lower level of the Sports Bar. He relies in particular on the preliminary inquiry evidence of Maier-McKenzie, who claimed he was stabbed by an unknown assailant as he was walking up the stairs, and not by the White male wearing the Nirvana baseball cap in the basement.[^2]
[4] For the reasons that follow, I find Mr. Fisher guilty of the four counts in the indictment. I find, first, that the surveillance video shows that Maier-McKenzie was stabbed in the basement of the Sports Bar by the White male wearing the Nirvana baseball hat, rather than by an unknown assailant as he was walking up the stairs. I reject Maier-McKenzie’s evidence that he was stabbed on the stairs rather than in the basement because it is contradicted by the surveillance video and is, in any event, entirely implausible given the surrounding circumstances and the evidence as a whole.
[5] I further find that there is overwhelming evidence that Mr. Fisher is the person wearing the baseball hat with the Nirvana logo captured on the surveillance video. Since this is the person who stabbed Maier-McKenzie, the Crown has proven beyond a reasonable doubt that Mr. Fisher committed an aggravated assault, as well as an assault with a weapon, upon Maier-McKenzie. It necessarily follows that he is also guilty of carrying a concealed weapon without authorization, and possession of a weapon for a dangerous purpose.
Crown Evidence
[6] The Crown’s evidence consisted primarily of the following:
i. the evidence of two uniformed Toronto police officers who attended at the Sports Bar on the early morning hours of February 17, 2019 in response to reports of a shooting at the Bar, and who interacted with a White male who identified himself as John Fisher;
ii. the evidence of the owner of the Sports Bar, who was working on the morning of February 17, 2019;
iii. photographs and surveillance video taken from inside and outside the Sports Bar at the relevant time;
iv. photographs of Mr. Fisher at the time of his arrest on February 19, 2019, admitted pursuant to an agreed statement of facts;
v. evidence arising from Maier-McKenzie’s attendance at the Centenary Hospital on February 17, 2019 for treatment for a wound to the left side of his face; and
vi. prior acquaintance recognition evidence from a police officer identifying Mr. Fisher as the person depicted on the Sports Bar’s surveillance video wearing the baseball hat with the Nirvana logo.
a. Evidence of Officers Nanton and El-Halabi, and related video
[7] Officers Jason Nanton (“Nanton”) and Leith El-Halabi (“El-Halabi”) testified that at approximately 2:20 a.m. on February 17, 2019, they received a radio call reporting gunshots at the Sports Bar. They arrived there in their scout car at approximately 2:24 a.m. The glass on the bar’s large front door and front window was shattered and patrons were hiding under tables inside the bar. Both officers indicated that their immediate concern was for officer and public safety. They soon ascertained that there was no shooter on the scene and no apparent victims. They secured the bar and waited for backup officers to arrive.
[8] Both officers described interacting with an extremely intoxicated and agitated White male outside the Sports Bar who was yelling and attempting to enter the Bar to retrieve his cell phone. They described this White male as being approximately six feet tall, wearing a dark jacket or sweater and a navy blue or black baseball cap. Nanton also said that the intoxicated male was wearing glasses and that his baseball cap had a Nirvana “smiley-face” logo on the front. Nanton was shown a photograph of a yellow “smiley-face” logo and said it was identical to the logo on the baseball cap worn by the White male.
[9] The officers advised the intoxicated male that he could not enter the Bar since it was being investigated as a crime scene. However, they also told him that once it was appropriate to do so, one of them would go into the bar and get his phone for him. The male became belligerent and demanded to be allowed in to get his cell phone immediately. He tried to push past El-Halabi to get into the Bar, but he slipped on some ice and fell into a snowbank. Nanton said that the male began yelling “my name is John Fisher and I run Danforth and Greenwood”, while El-Halabi said the White male was yelling “my name is John William Fisher and I run Danforth and Greenwood.” Both officers reported the male as yelling this three or four times.
[10] El-Halabi escorted the male back to the scout car parked nearby. A few minutes later, Nanton went into the bar, obtained the cell phone from the bar owner, and returned it to the male, who then left. Neither officer had any further interaction with this individual.
[11] The Crown also introduced video evidence that appeared to have been recorded from the window of a nearby building at the time. Nanton and El-Halabi testified that this video accurately depicted the scene outside the Sports Bar shortly after their arrival. The video showed a male person outside the Sports Bar who was repeatedly yelling, before being escorted by El-Halabi to wait by the scout car. It is not possible to clearly make out what this person was yelling from watching the video, but Nanton and El-Halabi testified that the video depicts the belligerent male yelling that he was John Fisher.
[12] On cross-examination, both officers agreed that, at the time of their interaction with him, the belligerent White male was not a person of interest in relation to the reported shooting. They also agreed that they regarded him as a mere nuisance who was complicating the investigation. Their interaction with him was brief, no more than a few minutes.
[13] Nanton agreed that, although his notes referred to the White male as wearing glasses, the notes did not describe the colour of the glasses. He also agreed that his notes described the White male as wearing a “Nirvana hat”, but did not say whether the hat was a baseball cap or note its colour. Nanton agreed that, at the preliminary inquiry, he had testified that the White male’s baseball cap was black. Nanton further agreed that he had previously seen the Nirvana logo on other items of clothing, including hats. Nanton said that the belligerent White male was the only person he observed at the scene wearing a baseball cap with the Nirvana logo.
b. Evidence of Xin Huo, the owner of the Sports Bar
[14] Xin Huo (“Huo”), the owner of the Sports Bar, was the only person working at the bar in the early morning Hours of February 17, 2019.
[15] Huo described the bar as consisting of three levels. The main floor, which one enters from the street, includes the bar area as well as some seating. At the rear of the main floor is a short set of stairs (the “First Stairs”) leading down to the bar’s middle level, where patrons can play pool or other table games (the “Gaming Area”). If you walk down the First Stairs and turn immediately to your left (without entering the Gaming Area), there is a second, narrower set of stairs leading down to the basement (the “Basement Stairs”), where the washrooms are located. There are seven steps on the Basement Stairs. In the basement itself, there are two men’s washrooms on the right, a women’s washroom on the left, and locked doors to two other rooms that can only be accessed by staff.
[16] Huo was shown various clips from different surveillance videos recorded at the Sports Bar that morning. There are timestamps on these videos, which Huo testified were accurate.
[17] One video, which commences at 2:17:01 a.m. on February 17, 2019, shows Huo working behind the bar and a Black male wearing a black jacket and a hat who is sitting at the bar. Although Huo did not know this person’s name at the time, it is now acknowledged that this Black male is Maier-McKenzie.
[18] Huo testified that the person we now know to be Maier-McKenzie had arrived at about midnight with a female companion and that they had ordered some drinks. At around 2 a.m., the female had said she was going downstairs to the washroom. Huo testified that Maier-McKenzie waited at the bar for his female companion to return for approximately 15-20 minutes, at which point he got up and went downstairs towards the washrooms.
[19] Huo was shown surveillance video taken from various angles on the main floor of the bar. She provided the following description of events shown on these videos, at the specific times indicated below:
• 2:17:12 a.m.: Maier-McKenzie gets up from the bar and heads towards the rear area where the two sets of stairs down to the washrooms are located.
• 2:17:46 a.m.: the Black male returns from the rear area of the bar. He is walking very quickly, glancing backwards toward the rear area, and holding his left hand to his face. He exits the Sports Bar through the front door.
• 2:18:48 a.m.: Huo testified that earlier that evening, one of the patrons had asked her to charge his cellphone. At 2:18:48, this patron walks at a normal pace from the rear of the bar and towards the front entrance. The patron, who is wearing a baseball cap, puts down a beer bottle near the front of the bar and walks outside through the front door.
• 2:19:20 a.m.: Huo testified that a few moments later, she heard some noises from outside the bar. At first, she thought it was someone knocking on the window of the bar. However, within a few seconds the glass on the front door and window shattered and she realized that what she had heard were actually gunshots. Surveillance video shows the glass on the front door of the bar shattering at 2:19:20 and everyone inside scrambling to take cover.
• 2:19:40 a.m.: the patron wearing the baseball cap who had asked Huo to charge his phone walks back into the bar through the shattered front door and heads towards the rear of the bar.
• 2:21:10 a.m.: the patron wearing the baseball cap returns from the rear area and heads back outside through the front door.
• 2:32:50 a.m.: Police have arrived on scene. One of the officers approached Huo and asked her whether she was charging a cell phone for one of her customers. Huo reached under the bar and gave the cell phone to the officer.
[20] Huo also identified surveillance videos taken from a camera in the basement of the Sports Bar from a camera just outside the washrooms (the “Basement Surveillance Video Clips “). Those video clips are described in more detail below.
[21] In cross-examination, Huo said that Maier-McKenzie and his female companion had gone in and out of the bar a few times to smoke. She also recalled seeing a tall, bald, light-skinned Black male at the bar that evening. Huo said that this tall, bald individual was taller and bigger than Maier-McKenzie. Huo also indicated that the tall, bald, light-skinned Black male had arrived late, maybe around 1:30 a.m., with the patron who had asked Huo to charge his cell phone. Huo agreed that she had seen the tall, bald, light-skinned Black male go in and out of the bar a few times, perhaps in order to smoke.
[22] Huo agreed that the bar was very busy that evening because it was a Holiday weekend. She also agreed that there was an exit door from the Gaming Area on the bar’s middle level, and that she could not see this exit door if she was standing behind the bar on the main floor. Huo agreed that if that exit door from the Gaming Area was propped open, she would not have been able to see anyone entering or leaving the bar through that door.
[23] In re-examination, Huo was asked whether there was more than one person at the bar that evening who fit the description of a tall, bald, light-skinned Black male. Huo said the only person who fit that description was the person who arrived at the bar with the patron who asked her to charge his cell phone.
c. The Basement Surveillance Video Clips
[24] The Basement Surveillance Video Clips show the area at the foot of the Basement Stairs, immediately outside the men’s and women’s washrooms, between approximately 2:07 a.m. and 2:19 a.m. on February 17, 2019. The following sequence of events is captured:
• 2:09 a.m. to 2:14 a.m.: various individuals are standing around talking in the area between the men’s and women’s washrooms, including a tall, bald, light-skinned Black male. At 2:14 a.m., this individual walks up the Basement Stairs and is not seen again on the Basement Surveillance Video Clips.
• 2:16:10 a.m.: the patron identified by Huo as having asked her to charge his cell phone comes down the Basement Stairs. He is wearing a baseball cap and thick black glasses and is carrying a beer bottle in his left hand. He joins a group of others standing outside the women’s washroom with his back to the camera. However, a few seconds later, he turns back towards the camera. On the front of his baseball cap is a “smiley-face” logo that is identical to the logo identified by Nanton as the Nirvana logo.
• 2:17:20 a.m.: Maier-McKenzie comes down the Basement stairs and engages in conversation with other individuals standing outside the women’s washrooms. Maier-McKenzie is standing with his back to the camera, and it is not possible to see with whom he is speaking.
• 2:17:40 a.m.: Maier-McKenzie is punched or pushed back by a person who is standing in front of him, out of view of the surveillance camera. However, as Maier-McKenzie steps back, the person who punched or shoved him steps forward. The video shows that the person shoving Maier-McKenzie is the individual wearing the baseball cap with the “smiley-face” Nirvana logo. He has shoved or punched Maier-McKenzie with his left hand, in which he is still holding a beer bottle.
• 2:17:41 a.m.: the person wearing the Nirvana baseball cap then thrusts his right hand towards the left side of Maier-McKenzie’s face, in a downward or slashing motion. He is holding something in his right hand. When the video is played at regular speed it is not possible to identify precisely what the object is, but when the video is played frame by frame (which was done in court by the Crown), it shows that he is holding a sharp-edged object that resembles a knife.
• 2:17:42 a.m.: Maier-McKenzie turns on his heel and runs up the Basement Stairs, taking two steps at a time.
• 2:17:43 a.m.: As Maier-McKenzie flees, the person wearing the Nirvana baseball hat is pushed into one of the men’s washrooms by an unidentified female.
• 2:18:36 a.m.: the person wearing the Nirvana baseball hat comes back out of the men’s washroom and walks up the Basement Stairs.
d. Evidence of Sergeant Daniel Cheung
[25] Sergeant Daniel Cheung (“Cheung”) was responsible for documenting and photographing the scene at the Sports Bar on the morning of February 17, 2019.
[26] He identified bullet fragments and blood in many locations on the main floor of the Sports bar. However, the only blood located in the basement was on the door to one of the men’s washrooms.
[27] Cheung testified that the blood on the men’s washroom door appeared to be fresh. However, in cross-examination he agreed that he knows neither how the blood came to be on the door, nor whose blood it might be. Cheung said that a swab of this blood was taken, but he does not know whether it was analyzed or what the results of any such analysis might have been. There was no other blood found in the basement or on the Basement Stairs.
e. Prior Acquaintance Recognition Evidence of PC Daniel Lymer
[28] The Crown sought to admit the evidence of PC Daniel Lymer (“Lymer”) who recognized John Fisher as the person wearing the Nirvana baseball hat in the Basement Surveillance Video Clips. The Crown argued that Lymer’s evidence meets the test for the admission of prior acquaintance recognition evidence, as established in R. v. Leaney.[^3]
[29] At the conclusion of a voir dire, I ruled that Lymer’s evidence was admissible, with written reasons to follow. His evidence, and the basis for its admissibility, is set out below.
i. Lymer’s Evidence
[30] Lymer testified that in February 2019, he was working in the Toronto Police Service Major Crime Unit. He arrived for his regular shift at approximately 1 p.m. on February 17, 2019.
[31] He was advised that there had been a shooting and a stabbing overnight at the Sports Bar. Lymer was asked to view some surveillance video from the Sports Bar to see if he could identify the person who was believed to have committed the stabbing, namely, the individual wearing the Nirvana baseball cap on the Basement Surveillance Video Clips. Lymer was not provided with any information about this person’s identity.
[32] Upon viewing the video, Lymer said that he identified the person wearing the Nirvana baseball cap as John Fisher. Lymer said that he knew John Fisher from certain prior dealings he had had with him in 2018. He recognized the person in the video as John Fisher based on his recollection of John Fisher’s appearance, particularly his thin face and nose, thin to medium build, his height (which Lymer estimated to be 5’10”), his ‘chinstrap beard’, and thick black glasses with a gold symbol where the glass frames meet the lenses.
[33] Lymer said that he had met John Fisher in person on one prior occasion about a year earlier. He and two other police officers had met with Mr. Fisher in an attempt to obtain information from him in connection with another investigation. Lymer says that he and the two TPS colleagues met with Mr. Fisher for about 30 minutes, seated around a table in a small room. Lymer was engaged with Mr. Fisher and his attention was focused on him throughout the meeting. Lymer noted that Mr. Fisher had a thin stature, was about 5’10” tall, had a thin chinstrap beard, a chiseled jaw line and a thin nose.
[34] At around the same time, Lymer undertook some investigative social media searches on John Fisher. He came across an open-source Facebook account belonging to “Casper Mac”. Lyman was aware that Mr. Fisher had an alias “Casper”. Based on his previous interaction with Mr. Fisher as well as his viewing of the Facebook account, he believed Mr. Fisher to be Casper Mac.
[35] Lymer was able to study Casper Mac’s Facebook photos. He captured some of these photos and saved them in a Word document. One of those photos showed Mr. Fisher with a ‘chinstrap’ beard and dark glasses.
[36] Lymer later obtained further photos from the Casper Mac Facebook account in May of 2021. One of these photos shows ‘Casper Mac’ in a gym. Lymer said he recognized this person as John Fisher based on his stature and the shape of his face. He was wearing a baseball cap with a Nirvana “smiley-face” logo in this photo. Lymer also noted that the Facebook account of ‘Casper Mac’ shows his date of birth as June 1, 1987, the same as John Fisher’s.
[37] Lymer was involved in the arrest of Mr. Fisher on February 19, 2019, and also identified him at the preliminary inquiry in June 2021.
[38] On cross-examination, Lymer was asked about an email he had received from the Crown in April 2021, asking him whether he was able to identify the person wearing the Nirvana baseball cap in the basement of the Sports Bar, based on photographs of that individual. Lymer responded by stating that, based on the photos, the person “appears to be John Fisher”. Defence counsel put to Lymer that he had used different language in his “will say”, prepared in anticipation of his testimony at trial, in which he had stated that he “was able to identify the individual as John Fisher”. Lymer was asked why he had used different language on these two occasions, and whether the statement in his email that the individual “appears to be John Fisher” reflected some equivocation or doubt on his part.
[39] Lymer responded that he saw no difference between the two statements. When he told the Crown in April 2021 that the person “appears to be John Fisher”, he was confident that the person was in fact John Fisher and that he was able to identify him as such.
[40] Lymer also acknowledged that he has no notes of his prior meeting with John Fisher in early 2018. He knows the meeting took place between January and April 2018, but is not sure of the precise month. Lymer also acknowledged that John Fisher was not a person of interest or a suspect at that time.
[41] Lymer said that when he arrived for work on February 17, 2019, he knew that there had been an altercation in the basement of the Sports Bar. However, prior to viewing the surveillance video, he had no knowledge of the possibility that John Fisher might have been there, or that there had been a belligerent male outside the Sports Bar yelling that he was John Fisher.
[42] Lymer was also cross-examined as to how he had been able to recognize John Fisher, given that the individual in the video was wearing a baseball cap. Lymer said that although the baseball cap obscured the top of his head, it was still possible to see his stature, glasses, the shape of his face, and his chinstrap beard.
ii. Test for Admission of Prior Identification Evidence
[43] It is settled law that non-expert opinion evidence that a witness recognizes the image of a person seen in a photograph or videotape may be admissible, provided that the witness has a prior acquaintance with the accused and is in a better position than the trier of fact to identify the alleged perpetrator.
[44] The test is sometimes referred to as the “prior acquaintance/better position” test.[^4] The two prongs of the analysis consist of the following:
the witness must be sufficiently familiar with the person to be identified to have some articulated basis for the opinion; and
the evidence must be helpful to the trier of fact, such that, due to their prior acquaintance, the witness has some advantage that can shed light on identification. Relevant non-exhaustive factors include the duration of the prior relationship between the witness and the accused; the circumstances of the prior relationship, including whether the witness had an opportunity to engage with the accused up close; and the time elapsed between the prior contact and the offence date.
[45] It is not necessary at the threshold admissibility stage for the witness to point to some unique identifiable feature or idiosyncrasy of the person to be identified. Evidence can be admissible even when there are a limited number of distinctive features identified by the witness, although this can impact the ultimate weight given to the evidence by the trier of fact.[^5]
[46] The ‘prior acquaintance’ branch of the test can be met even when the prior contact was brief and relatively insignificant.[^6] R. v. Harty illustrates the low threshold that must be met in order to admit prior recognition evidence. [^7] In Harty, Dambrot J. admitted the evidence of two police officers who had identified an accused from surveillance footage. The first officer had reviewed photographs of the accused and met with him for a period of five minutes, pursuant to a bail compliance check performed more than a year before the incident that gave rise to the charge. Significantly, that officer had been advised, prior to reviewing the surveillance footage, of the presumptive identity of the accused. The second officer recognized the accused based on the fact that he had spoken to him approximately a year prior for about 8 minutes.
[47] Despite these limited prior contacts, Dambrot J. held that these police witnesses easily met the threshold for giving non-expert opinion evidence, since each of them was “sufficiently familiar [with the accused] to provide some basis for his opinion.”[^8] Dambrot J. also noted that there were certain shortcomings or frailties in their identification, but that these were matters going to weight and did not so undermine the evidence as to make it inadmissible.
iii. Analysis
[48] I find, first, that Lymer had a clearly articulable basis for identifying Mr. Fisher in the surveillance video. Lymer had interviewed Mr. Fisher for 30 minutes approximately a year prior to the alleged stabbing. Lymer was there not there simply to deliver documents or to conduct a compliance check but, rather, to obtain information in connection with an open investigation. Lymer’s attention was focused exclusively on Mr. Fisher during this meeting, and he noted a number of distinctive features in his appearance.
[49] Lymer subsequently undertook investigative searches on social media which led him to identify ‘Casper Mac’ as being Mr. Fisher. The fact that Lymer not only reviewed photos of Mr. Fisher but had then saved those photographs into a separate Word document tends to show that he had paid particular attention to Mr. Fisher’s physical appearance.
[50] I also place emphasis on the fact that, despite Lymer not having any information as to the identity of the person wearing the Nirvana baseball cap, he was able to quickly identify the person as John Fisher. Moreover, although it is not necessary at the threshold admissibility stage for Lymer to have identified any distinctive features in Mr. Fisher’s physical appearance, he was able to point to a number of features that he regarded as distinctive, including Fisher’s build, chinstrap beard, and glasses. Notably, Lymer was familiar enough with Mr. Fisher’s appearance that he was able to detect later that Mr. Fisher’s appearance had changed somewhat since he saw him in 2019.
[51] I further find that Lymer is in a better position than am I to identify Mr. Fisher. Lymer’s prior interactions with Mr. Fisher began one year prior to the incident in question, whereas my observations of Mr. Fisher occurred during this trial, three-and-a-half years after the fact. Moreover, Lymer’s face-to-face meeting with Mr. Fisher in 2018 is buttressed by both his review of Mr. Fisher’s Facebook page in 2018 and 2021, and his identification of Mr. Fisher at the preliminary inquiry. Lymer further indicated that Mr. Fisher’s appearance has changed somewhat since he saw him in 2019, which is another reason that his evidence will be of assistance in identifying the person on the video.
[52] Finally, the probative value of Lymer’s evidence is high, since the Crown has the burden of proving the identity of the perpetrator of the stabbing. Counsel for Mr. Fisher has not identified any risk of moral or reasoning prejudice that would arise if the identification evidence were admitted.
[53] I therefore admit Lymer’s evidence identifying the person wearing the Nirvana baseball cap in the basement of the Sports bar as John Fisher, with the proviso that the ultimate weight to be attached to this evidence remains to be determined.
f. Evidence arising from Maier-McKenzie’s attendance at the Centenary Hospital on February 17, 2019
i. The Evidence
[54] At approximately 2:45 a.m. on February 17, 2019, Maier-McKenzie attended at Centenary Hospital in Scarborough to receive treatment for a large laceration he had received on the left side of his face. Shortly after he arrived, he was joined by a female, later identified as Cassandra Beckett-Benjamin (“Beckett-Benjamin”).
[55] Sometime after the arrival of Maier-McKenzie and Beckett-Benjamin, hospital staff became concerned that they were causing a disturbance and called police. When police attended at the hospital, they undertook certain inquiries, which caused them to begin investigating Maier-McKenzie in connection with the shooting that had taken place earlier that morning at the Sports Bar. Maier-McKenzie was subsequently arrested and charged in connection with that shooting.
[56] He initially gave police a false name and date of birth but, after being cautioned for obstructing justice, he identified himself as Joshua Maier-McKenzie with a date of birth of November 15, 1993. That information matched records relating to Maier-McKenzie in a police database. Maier-McKenzie was also asked by one of the attending officers how he had received the laceration to his face. At this point, Maier-McKenzie was shaking, his eyes were closed, and he appeared to the officer to be unable to answer verbally. However, Maier-McKenzie wrote on a magazine cover that he had been injured as a result of falling on a tree in Morningside Park.
[57] Beckett-Benjamin was also arrested in connection with the shooting at the Sports Bar. She initially gave police a false name and date of birth but subsequently identified herself as Cassandra Beckett-Benjamin and provided a date of birth of July 17, 1996. Based on database checks, the arresting officer satisfied herself that the female was in fact Cassandra Beckett-Benjamin.
[58] The Crown sought to adduce various items or types of evidence relating to Maier-McKenzie’s and Beckett-Benjamin’s attendance at the Centenary Hospital. A voir dire was held to determine its admissibility.
[59] Certain of the evidence was admitted without difficulty. This included hospital medical records relating to Maier-McKenzie’s diagnosis and treatment (the “Medical Records”). The Medical Records were created in the usual and ordinary course of business by the Centenary Hospital and were admitted as “business records” pursuant to s. 30 (1) of the Canada Evidence Act.[^9] The Medical Records recorded the fact that “Joshua Mair-McKenzie, aka Michael Klostranek” had suffered a large laceration on the left side of his face, extending from above his lip down to his chin. The Medical Records also recorded both a subjective and an objective assessment of his injury. The “Subjective Assessment” set out what Maier-McKenzie told hospital staff regarding the source of his injury:
States was out walking and slipped and fell face first. Very large lac above left side of lip down to chin straight through to teeth. No loose teeth. Bleeding. Feels faint and in pain. Straight to acute 1.
[60] I note that these statements by Maier-McKenzie regarding the cause of his injury are not being admitted for the truth of their contents (and are thus not hearsay), since the Crown’s position is that Maier-McKenzie was lying to hospital staff when he claimed to have been injured while he was walking. For the same reason, the note that Maier-McKenzie wrote on the magazine cover is also admissible, since the Crown’s position is that Maier-McKenzie was lying when he wrote the note. The Crown sought to utilize these statements in order to challenge the credibility of Maier-McKenzie’s evidence at the preliminary inquiry, in which he had claimed that he had been slashed on the face while walking up the Basement Stairs at the Sports Bar.[^10]
[61] What was far from straightforward was the Crown’s proposed introduction of the statements made to police by Maier-McKenzie and Beckett-Benjamin, in which they identified themselves (the “Self-Identification Evidence”). The Crown sought to introduce this evidence in order to establish that Maier-McKenzie was the victim of the stabbing at the Sports Bar. However, the Crown advised that it did not intend to call either Maier-McKenzie or Beckett-Benjamin as part of its case at trial. Instead, the Crown sought to introduce the Self-Identification Evidence by calling the police officers to whom the utterances were made.
[62] For the reasons that follow, I would not have admitted the Self-Identification evidence of Maier-McKenzie and Beckett-Benjamin through the officers, but for the fact that the Crown has since been unable to locate Maier-McKenzie. Given this fact, I would admit his evidence under the self-identification exception to hearsay, and because it fulfills the requirements of necessity and reliability under the principled approach to hearsay. However, Beckett- Benjamin’s Self-Identification Evidence is not admissible, given that she was still able to be called by the Crown to testify.
ii. Analysis of the Admissibility of the Self-Identification Evidence
[63] The Crown concedes that the Self-Identification Evidence is hearsay and is thus presumptively inadmissible, since it is being introduced for the truth of its contents. However, the Crown argues that this evidence is nevertheless admissible, since statements of self-identification are a well-established exception to the hearsay rule. The Crown cites a number of recent decisions of this court in which statements of self-identification have been admitted on this basis.[^11]
[64] In the alternative, the Crown argued that the Self-Identification Evidence is admissible for a non-hearsay purpose, namely, as circumstantial evidence of Maier-McKenzie’s and Beckett-Benjamin’s identities.
[65] Considering, first, whether the Self-Identification Evidence can be admitted on the basis of a recognized exception to the hearsay rule, I would note that in all of the cases relied upon by the Crown, the declarant’s evidence was not available. In this case, in contrast, the Crown says it is entitled to choose not to call these witnesses and, instead, introduce their hearsay statements made to police on the basis that these statements fall within the self-identification exception to the hearsay rule.[^12] The Crown wishes to proceed in this matter since it anticipates that, even if the witnesses correctly identify themselves, there are other aspects to their testimony that would not be helpful to the Crown’s case.
[66] I would not accede to the Crown’s submissions on this point, for two reasons.
[67] First, introducing hearsay evidence in circumstances where a declarant’s viva voce evidence on the matter is available offends the “best evidence” rule, which does not permit a litigant to give evidence which “from its very nature shows that there is better evidence within reach, which is not produced.”[^13] Although generally applied so as to require the production of the originals of documents, it is applicable to other forms of evidence as well.[^14] Moreover, although the best evidence rule is of less practical significance in the modern context, given the obvious advantage to a party to adducing the best evidence available, it remains relevant, albeit in a more flexible form. As Charron J.A. (as she then was) stated in Shayesteh, “[t]he parties (usually the Crown) should endeavour to put forth the best evidence ‘that the nature of the case will allow’ … for consideration by the triers of fact. Such evidence can then be supplemented by secondary evidence to the extent that such secondary evidence remains relevant.”[^15] Charron J.A. also stated that the objective of producing the best evidence available “should be viewed simply as a proposition of common sense rather than any strict application of a rule of evidence.”[^16]
[68] A second difficulty with the Crown’s position is that, in my view, it would broaden and extend the reach of the self-identification exception to the hearsay rule. In developing exceptions to the principle that hearsay is presumptively inadmissible, courts have generally permitted such evidence only where direct evidence on the matter was otherwise unavailable.[^17] This boundary around the self-identification exception to the hearsay rule reflects the continuing importance of parties tendering evidence in its best available form and, further, ensures that an accused person has an opportunity to test the reliability and credibility of evidence tendered by the Crown through cross-examination[^18]
[69] In light of these concerns, I find that the self-identification exception to the hearsay rule does not permit the Crown to tender hearsay evidence merely because it seeks to avoid calling a potentially non-cooperative witness who is otherwise available to testify. I therefore decline to extend the existing exception in the manner proposed by the Crown. The Crown also cannot, in these circumstances, adduce self-identification evidence as “circumstantial evidence” of identity, since this would amount to doing indirectly what it could not do directly.
[70] Of course, there is no obligation on the Crown to call any particular witness. But, if it does intend to rely on hearsay evidence establishing a person’s identity, it can only do so if direct evidence from that person is not otherwise available.
[71] Applying these principles to the issue at hand, it was initially assumed that neither Maier-McKenzie nor Beckett-Benjamin was available to testify. However, it turned out that the Crown was unable to locate Maier-McKenzie, despite having made significant efforts to do so over the past month. Therefore, since his self-identification evidence is not available, it is admissible on the basis of the self-identification exception to the hearsay rule, and also because it satisfies the necessity and reliability requirements of the principled exception to the hearsay rule.
[72] However, the Crown accepts that Beckett-Benjamin is available to testify, and that there is no reason to believe that if called as a witness she would deny that she correctly identified herself to Hospital staff on February 17, 2019. Therefore, I find that her self-identification evidence is not admissible.
Defence Evidence
[73] Although Maier-McKenzie was not available to testify at trial, he had been called as a Crown witness at the preliminary inquiry. Counsel for Mr. Fisher sought to introduce a transcript of his evidence pursuant to s. 715 of the Criminal Code. The Crown opposed the admission of Maier-McKenzie’s preliminary inquiry testimony on the basis that s. 715 may only be utilized by the Crown and not by an accused.
a. Maier-McKenzie’s Preliminary Inquiry Evidence
[74] In his preliminary inquiry evidence, Maier-McKenzie acknowledged that he had been stabbed in the face at the Sports Bar on February 17, 2019. He said that he had gone downstairs to the basement to check on a female companion who had gone to the washroom about 20 minutes earlier. Maier-McKenzie said that, when he got downstairs, there was a male blocking his access to the bathroom. He pushed that male in an attempt to get to the washroom, at which point the male pushed Maier-McKenzie back and swung at him with his cell phone. However, the person who swung at him did not connect. Maier-McKenzie decided to leave because he “felt the hostility” and started walking up the Basement Stairs. When he was halfway up the Basement Stairs, a tall, bald, light-skinned Black male stabbed him in the face. Maier-McKenzie said that he believes that this person stabbed him because, earlier that evening, they had gotten into an argument while outside smoking, over the fact that the light-skinned Black male had made a pass at his female companion.
[75] Maier-McKenzie did not know whether the person who stabbed him had continued down the Basement Stairs or went in a different direction, or where this person had come from. Maier-McKenzie also did not remember the name of his female companion that evening. He was also shown a number of clips from surveillance video recorded on February 17, 2019 at Centenary Hospital. These videos show a Black male entering the emergency ward at about 2:45 a.m., holding some clothing on the left side of his face. He is wearing a distinctive dark t-shirt with a large letter “H” across the back.
[76] This individual puts a piece of clothing into a garbage bin near the entrance. Various other videos show the same individual walking around the emergency area and being wheeled into an examination area on a wheelchair. Maier-McKenzie acknowledged that he is the Black male captured in some of the videos. However, in others (including the video of the person putting clothing into a garbage bin), he thinks it might be him, but he can’t be sure because the person isn’t facing the camera. Maier-McKenzie also couldn’t remember what he did with his clothes as he entered the hospital, despite being shown the video of the Black male with the distinctive t-shirt putting some clothing into a garbage bin near the emergency entrance.
b. Admissibility of Maier-McKenzie’s Preliminary Inquiry Evidence
[77] Mr. Fisher argues that Maier-McKenzie’s preliminary inquiry evidence is admissible pursuant to s. 715, which provides in relevant part as follows:
- (1) Where, at the trial of an accused, a person whose evidence was given at…the preliminary inquiry into the charge, refuses to be sworn or to give evidence, … and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have the full opportunity to cross-examine the witness.
[78] Section 715 would appear to apply if the following three conditions are satisfied:
i. a witness gave evidence at the preliminary inquiry into the charge;
ii. that witness refuses to give evidence at trial; and
iii. the witness testified in the presence of the accused and the accused had full opportunity to cross-examine the witness.
[79] Mr. Fisher argues that Maier-McKenzie’s preliminary inquiry testimony satisfies these three conditions and is thus admissible under s. 715. In the alternative, Mr. Fisher argues that Maier-McKenzie’s preliminary inquiry testimony is admissible pursuant to the principled exception to the hearsay rule. He argues that the evidence is necessary since it is probative on the key issue of identity, and it satisfies the requirement of “threshold reliability” because evidence given at a preliminary inquiry under oath is, by definition, procedurally reliable.[^19]
[80] The Crown opposes the introduction of Maier-McKenzie’s preliminary inquiry testimony on the basis that s. 715 is only available for use by the Crown. Although there is nothing in the text of the provision that expressly so restricts its application, the Crown argues that such a limitation arises by necessary implication from the closing words of the provision. By requiring that the witness testify in the presence of the accused and that the accused have full opportunity to cross-examine the witness, s. 715 contemplates that the application to admit evidence under this provision is at the request of the Crown rather than the accused. Otherwise, why would the provision require the presence of the accused and the opportunity by the accused to cross-examine the witness before that witness’s evidence can be introduced at trial?
[81] The Crown further argues that Maier-McKenzie’s preliminary inquiry evidence is not admissible under the principled exception to the hearsay rule because it does not meet the test for threshold reliability. His preliminary inquiry evidence as to how he sustained his injury is contradicted by the surveillance video. Moreover, Maier-McKenzie was evasive and was unable to remember any details of what occurred that night, other than the fact that he was stabbed on the Basement Stairs rather than in the basement area outside the women’s washroom.
[82] I accept Mr. Fisher’s interpretation of s. 715 and conclude that Maier-McKenzie’s preliminary inquiry testimony is therefore admissible on this basis. Had Parliament wished to limit the application of the provision in the manner suggested by the Crown, it could have used express language to that effect. Instead, Parliament simply provided that, where the preconditions set out in the provision have been met, the evidence “may be admitted as evidence in the proceedings without further proof…”. On its face, therefore, s. 715 contemplates that either Crown or an accused may utilize the provision.
[83] Not only is the interpretation of s. 715 suggested by the Crown unsupported by the text of the provision, but it would also create unfairness for an accused person. The Crown wishes to exclude Maier-McKenzie’s preliminary inquiry evidence because it contradicts the Crown’s theory of the case, namely, that Maier-McKenzie was stabbed by the person wearing the Nirvana baseball cap in the basement of the Sports Bar. But if Maier-McKenzie’s testimony had assisted the Crown — for example, if he had identified the assailant as the person wearing the Nirvana baseball cap in the basement — the Crown would, no doubt, have sought to introduce that evidence pursuant to s. 715. Surely fairness requires that if the Crown wishes to claim the benefit of the provision in certain cases, it must also be prepared to bear any associated burden that may arise in others.
[84] It is true that the closing words of s. 715 require that the accused be present with an opportunity to cross-examine the witness before that witness’s preliminary inquiry evidence can be admitted at trial. But this simply reflects the fundamental principle that the accused has the right to be present at all stages of his trial, and to cross-examine any Crown witnesses. In other words, the closing words of s. 715 are intended to guarantee trial fairness, and should not be construed so as to create unfairness by providing an opportunity to the Crown that is denied the accused.
[85] Even if, contrary to the above analysis, Maier-McKenzie’s preliminary inquiry evidence is not admissible pursuant to s. 715, I would nevertheless admit it on the basis of the principled exception to the hearsay rule. There is no doubt that the evidence is necessary. As for the issue of threshold reliability, as Karakatsanis J. noted in Bradshaw, this requirement can be satisfied either procedurally or substantially. Procedural reliability is established when there are “adequate substitutes for testing truth and accuracy”, given the manner or the circumstances in which the evidence was obtained.[^20] As Charron J. observed in R. v. Khelawon, evidence given at a preliminary inquiry would seem to be the “optimal way” to satisfy this procedural requirement:[^21]
Recall that the optimal way of testing evidence adopted by our adversarial system is to have the declarant state the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination. This preferred method is not just a vestige of past traditions. It remains a tried-and-true method, particularly when credibility issues must be resolved. It is one thing for a person to make a damaging statement about another in a context where it may not really matter. It is quite another for that person to repeat the statement in the course of formal proceedings where he or she must commit to its truth and accuracy, be observed and heard, and be called upon to explain or defend it. The latter situation, in addition to providing an accurate record of what was actually said by the witness, gives us a much higher degree of comfort in the statement’s trustworthiness.
[86] I therefore admit Maier-McKenzie’s preliminary inquiry evidence. Of course, the admission of this evidence (whether under s. 715 or through the principled exception to the hearsay rule) does not mean that evidence will necessarily be believed, since the threshold admissibility of evidence is separate from the weight to be attached to it.
Positions of the Parties
a. Crown Theory of the Case
[87] The Crown argues that Maier-McKenzie was stabbed by the male wearing the Nirvana baseball cap in the basement of the Sports Bar. The Crown says the surveillance video shows the male with the Nirvana baseball cap striking Maier-McKenzie with a knifelike object on the left side of his face. The Crown further argues that Maier-McKenzie could not have been stabbed by a heavyset, bald Black male while he was running up the Basement Stairs, since the only person fitting that description in the bar that evening was on the main floor of the Sports Bar at the precise moment that Maier-McKenzie was attacked.
[88] The Crown goes on to argue that the male with the Nirvana baseball cap is John Fisher. In support of this conclusion, the Crown relies upon the prior acquaintance recognition evidence of Lymer; the fact that the male wearing the Nirvana baseball cap identified himself as John Fisher to Nanton and El-Halabi; and the photographs of John Fisher taken at the time of his arrest, in which he closely resembles the person depicted in the Basement Surveillance Video Clips.
b. Defence Theory of the Case
[89] Relying on the preliminary inquiry evidence of Maier-McKenzie, Mr. Fisher argues that the stabbing occurred on the Basement Stairs rather than in the basement area outside the women’s washroom, as alleged by the Crown. Mr. Fisher says that the assailant was an unknown heavyset, bald, Black male, rather than the male wearing the Nirvana baseball cap.
[90] Mr. Fisher acknowledges that the surveillance video from the Sports Bar only shows one person who matches the description of the attacker given by Maier-McKenzie, and that this person could not have been the assailant. Mr. Fisher also did not challenge Huo’s evidence that she only saw one person who matched this description at the Sports Bar that evening. However, Mr. Fisher argues that it is possible that a second person matching the description given by Maier-McKenzie may have entered the Sports Bar through an exit door located in the Gaming Area, and that this person would not have been seen by Huo. On this basis, Mr. Fisher argues that the Crown has failed to prove beyond a reasonable doubt that he was the assailant and, accordingly, he is entitled to a verdict of not guilty on all counts in the indictment.
Applicable Legal Principles
a. The Presumption of Innocence and Proof Beyond a Reasonable Doubt
[91] The presumption of innocence is a cornerstone of our criminal justice system, guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. Thus, Mr. Fisher is presumed innocent of the charges brought against him, and this presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.
[92] A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for, or prejudice against, anyone involved in this trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or absence of evidence. It is not enough for me to believe that Mr. Fisher is probably or likely guilty. In that circumstance I am required to give the benefit of the doubt to Mr. Fisher and acquit him, because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.
[93] I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I recognize that I must consider all of the evidence and be sure that Mr. Fisher committed an offence with which he is charged before I can be satisfied beyond a reasonable doubt of his guilt in relation to that offence.
b. Assessing Credibility and W.(D.)
[94] Although Mr. Fisher did not testify, the well-known framework in R. v. W.(D.) [^22] is not confined to the testimony of an accused. Rather, it applies to “any exculpatory evidence on vital issues that arises in the case and that turn on the credibility or reliability of a witness”.[^23] In this case, Maier-McKenzie’s preliminary inquiry testimony was that he was stabbed by a heavy-set, bald, Black male as he was walking up the Basement Stairs, rather than by the male wearing the Nirvana baseball cap in the basement. Since the Crown’s theory is that Maier-McKenzie was stabbed by the male wearing the Nirvana baseball cap (who, the Crown says, is John Fisher), Maier-McKenzie’s evidence tends to support an inference that Mr. Fisher did not stab Maier-McKenzie.
[95] This means that if I believe Maier-McKenzie’s evidence that he was stabbed on the Basement Stairs, I must find Mr. Fisher not guilty. Second, even if I do not believe Maier-McKenzie’s evidence, but it leaves me with a reasonable doubt as to whether Mr. Fisher stabbed Maier-McKenzie, I must find Mr. Fisher not guilty. Third, even if Maier-McKenzie’s evidence does not leave me with any reasonable doubt as to Mr. Fisher’s guilt, I must still consider whether the evidence I do accept satisfies me beyond a reasonable doubt that Mr. Fisher stabbed Maier-McKenzie. In making these findings, I am obliged to assess Maier-McKenzie’s evidence in the context of the evidence as a whole, as opposed to considering his evidence in isolation.[^24]
c. Principles Governing the Use of Videotape Evidence
[96] It is well established that triers of fact are entitled to make findings based on observations from videotape evidence, and that such factual findings may extend beyond just identification of an accused.[^25] That said, caution is required when a trial judge considers visual images as evidence of identification, particularly if the video is the only evidence of identification.
[97] The weight to be accorded to such evidence depends upon factors such as the clarity and quality of the tape. While the length of time that a person appears on the videotape may also be an important consideration, even a few frames that clearly show the perpetrator may be sufficient to identify the accused if the trier of fact has stopped the videotape to study the pertinent frames.[^26]
Analysis
a. Maier-McKenzie was stabbed by the male wearing the Nirvana baseball cap in the basement of the Sports Bar, rather than by an unknown assailant on the Basement Stairs
[98] It is agreed that Maier-McKenzie was stabbed on the left side of his face in the Sports Bar on February 17, 2019. We also know from the surveillance video that Maier-McKenzie was stabbed in the six-second interval between 2:17:40 a.m. (when he is pushed back by the male wearing the Nirvana baseball cap) and 2:17:46 a.m. (when we see him on the main floor of the Sports Bar clearly injured, holding his hand to the left side of his face and rushing toward the front of the restaurant).
[99] Given this narrow window of time in which the stabbing could have occurred, the assailant had to have been one of the following two persons:
i. the male wearing the Nirvana baseball cap, who is shown at 2:17:41 a.m. attempting to strike Maier-McKenzie on the left side of his face just outside the women’s washroom in the basement of the Sports Bar; or
ii. an unidentified tall, bald, heavy set, light skinned Black male, whom Maier-McKenzie claims stabbed him when he was halfway up the Basement Stairs at 2:17:42 a.m.
[100] I find that careful attention to the surveillance video, as well as other relevant evidence, shows that the assailant had to have been the male wearing the Nirvana baseball cap in the basement, rather than an unidentified tall, bald, heavy set, Black male, who allegedly attacked Maier-McKenzie when he was halfway up the Basement Stairs.
[101] The observations supporting this finding include the following:
i. when Maier-McKenzie got up from the bar on the main floor to go and find his female companion, it took him eight seconds to walk from the bar to the basement washroom area (i.e., from 2:17:12 a.m. to 2:17:20 a.m.);
ii. after walking down the Basement Stairs, Maier-McKenzie stood just outside the women’s washroom for about 20 seconds talking with one or more persons, including the male wearing the Nirvana baseball cap;
iii. at 2:17:40 a.m., the male with the Nirvana baseball cap suddenly pushes Maier-McKenzie back with his left hand and then swings at him with his right hand, attempting to strike Maier-McKenzie in the face with a bladed object that resembles a knife. He swings his right arm forward and then down in a slashing motion. This is consistent with both the location and the nature of the injury suffered by Maier-McKenzie, which is a large laceration on the left side of his face;
iv. Maier-McKenzie does not attempt to engage any further with the male wearing the Nirvana baseball cap who has swung at him. Instead, he turns and runs up the Basement Stairs as quickly as he can. This is consistent with Maier-McKenzie having been struck by the bladed-object in the right hand of the male with the Nirvana baseball cap;
v. Maier-McKenzie runs up the stairs two steps at a time. He passes out of the view of the basement surveillance camera as he takes his second step, which would have placed him on the fourth step of the seven-step Basement Stairs. This is already more than halfway up the Basement Stairs;
vi. even though Maier-McKenzie’s body disappears from the direct view of the basement surveillance camera at 2:17:42 a.m., his shadow continues to be visible on the right wall of the Basement Stairs. That shadow continues up the Basement Stairs and disappears from view at 2:17:43 a.m.. This shows that Maier-McKenzie ran up the Basement Stairs without stopping.
vii. three seconds later, at 2:17:46 a.m., Maier-McKenzie can be seen running through the bar area on the main floor of Sports Bar towards the front exit. He glances backward as if fearful of being pursued.
[102] If Maier-McKenzie had been attacked halfway up the Basement Stairs as he claimed, he could not have continued up the Basement Stairs unimpeded. Yet, the surveillance video shows that Maier-McKenzie ran right up the Basement Stairs without stopping. Moreover, Maier-McKenzie took only three seconds to travel between the Basement Stairs and the bar area on the main floor (as opposed to the eight seconds it took him when he was going downstairs). The fact that he was able to cover this significant distance in just three seconds reinforces the conclusion that he could not have encountered an assailant on the narrow Basement Stairs, who would have impeded his progress.
[103] In short, the surveillance video on its own shows that Maier-McKenzie could not have been attacked halfway up the Basement Stairs, as he claimed.
[104] Quite apart from the surveillance video, the remaining evidence is also inconsistent with Maier-McKenzie’s claim that he was stabbed by a tall, bald, heavy-set, light-skinned Black male, with whom he had gotten into an argument earlier that evening when he was outside smoking.
[105] Huo said that she had seen Maier-McKenzie go outside a few times, presumably in order to smoke. Although there was an exit door from the Gaming Area on the middle level of the Sports Bar, Huo could not see that exit from her vantage point on the main floor of the bar. Therefore, when she saw Maier-McKenzie go out to smoke, he must have gone out through the front door of the bar.
[106] Huo also testified that there was only one person at the Sports Bar that evening who fit the description of a tall, bald, heavy-set, light-skinned Black male. A heavy-set, bald, light-skinned Black male is visible on the basement surveillance video between 2:09 and 2:14 a.m.. Yet, this individual could not have been the assailant, since he can be seen on the main floor of the Sports Bar at 2:17:43 a.m., the precise moment when Maier-McKenzie said he was stabbed while running up the Basement Stairs. Maier-McKenzie rushes past this individual at 2:17:50, paying no attention to him whatsoever, on his way to the front door of the Sports Bar.
[107] Mr. Fisher acknowledges that the heavy set, bald Black male visible on the surveillance video could not have been the assailant. Mr. Fisher also did not challenge Huo’s evidence that she only observed one person who fit this description at the Sports Bar that evening. However, Mr. Fisher argues that there may have been a second person fitting this description (an “Alternate Suspect”), who entered the Sports Bar through the exit door into the Gaming Area without being seen by Huo, and who then stabbed Maier-McKenzie on the Basement Stairs. On this theory, the assailant never entered the main floor of the Sports Bar and for this reason was never seen by Huo.
[108] Yet, if Maier-McKenzie’s evidence as to who stabbed him is correct, the scenario involving the Alternate Suspect cannot be correct. Consider the following:
i. Assuming there was in fact an Alternate Suspect present, he would have had to have arrived at the Sports Bar well in advance of the attack on Maier-McKenzie. Maier-McKenzie claimed he had gotten into an argument with the Alternate Suspect while they were outside smoking earlier that evening. Maier-McKenzie had been sitting at the bar for 15-20 minutes waiting for his female companion to return from the washroom. Thus, any argument between Maier-McKenzie and the Alternate Suspect while Maier-McKenzie was smoking must have occurred at least 15-20 minutes prior to the stabbing.
ii. Even if the Alternate Suspect had entered the Sports Bar through the Gaming Area, he would still have had to walk through the main floor of the Sports Bar and exit through the front door, since that is where Maier-McKenzie went to smoke and where the alleged argument with the Alternate Suspect occurred.
iii. In order to get back to the Basement Stairs the Alternate Suspect would then have had to walk back through the main area of the bar.
iv. The surveillance video shows that there were relatively few patrons at the bar at that point in the evening. Maier-McKenzie is the only person sitting at the bar as he waits for his female companion to return, and there are only about a dozen other patrons on the main floor of the bar at that time. Huo had a good vantage point to observe all the patrons in the bar, and she did not notice anyone (other than the individual captured on the surveillance video and who, it is acknowledged, could not be the assailant) who matched the description that Maier-McKenzie provided of the assailant.
v. If Maier-McKenzie was, in fact, stabbed by the Alternate Suspect, that person must have been walking down the Basement Stairs at the very moment that the male with the Nirvana baseball cap was attempting to strike Maier-McKenzie.
vi. The Alternate Suspect must have used a weapon similar to that in the right hand of the male with the Nirvana basement cap, and he must have slashed Maier-McKenzie on the left side of his face, the precise location where the male with the Nirvana baseball cap had attempted (but allegedly failed) to strike Maier-McKenzie just seconds before.
[109] As Cromwell J. noted in R. v. Villaroman, the line between a “plausible theory” and “speculation” is not always easy to draw.[^27] Nevertheless, the sequence of events outlined above is sufficiently implausible as to easily fall on the “speculation” side of the line referred to by Cromwell J. Not only must the Alternate Suspect have walked through the sparsely-populated main area of the Sports Bar twice without being observed by Huo, he also must have then essentially replicated the failed attack that that we see the male with the Nirvana baseball cap attempting just seconds before.
[110] In considering whether Maier-McKenzie’s claim that he was stabbed on the Basement Stairs is credible, I also note that he told staff at the Centenary Hospital as well as one of the attending police officers that he was injured when he fell and hit his face. We know that Maier-McKenzie was actually stabbed at the Sports Bar. This means that he lied to both hospital staff and the police as to how he sustained the injury.
[111] I also note that Maier-McKenzie’s preliminary inquiry evidence was vague and evasive. I take note of the following:
i. Maier-McKenzie “didn’t really remember” the name of his female companion that evening;
ii. he claimed the male with the Nirvana baseball cap swung at him with a cell phone, when in fact it was a bladed weapon that resembles a knife.
iii. he said he turned and ran from the male with the Nirvana baseball cap because he “felt hostility”, but Maier-McKenzie also said that he had pushed the male first, thereby initiating the physical exchange, rather than the other way around.
iv. Maier-McKenzie couldn’t say where the assailant had come from, or in what direction he went after attacking him on the Basement Stairs.
v. Maier-McKenzie couldn’t recall in what direction he and his female companion went when he left the Sports Bar.
vi. he was shown surveillance video from the Centenary Hospital in which he is depicted stuffing a piece of clothing into a garbage receptable near the entrance to the Emergency ward at 2:45 a.m. on November 17, 2019.[^28] Maier-McKenzie said he thought the person on the video might be him, but he couldn’t be sure because he couldn’t see the person’s face head on. He said this despite the fact that the person in the video was wearing a distinctive t-shirt, and there was other video of this same person taken at the hospital that Maier-McKenzie acknowledged was him.
[112] Taking all of the above considerations into account, I find that there is simply no air of reality to Maier-McKenzie’s preliminary inquiry evidence as to where he was stabbed and who stabbed him. His claim that he was stabbed halfway up the Basement Stairs is contradicted by the surveillance video, which shows him running straight up the Basement Stairs without stopping or being impeded by an assailant. The sequence of events that would have had to occur in order for the stabbing to have taken place as claimed by Maier-McKenzie is implausible and speculative. Moreover, Maier-McKenzie had previously lied twice as to how he was injured, and his evidence at the preliminary inquiry was vague and evasive.
[113] I therefore reject Maier-McKenzie’s evidence that he was stabbed by an unknown assailant on the Basement Stairs. Nor does his evidence leave me with a reasonable doubt on the matter.
[114] Having excluded the possibility that Maier-McKenzie was stabbed while running up the Basement Stairs, the only possible assailant is the male wearing the Nirvana baseball cap. The surveillance video overwhelmingly supports this conclusion. The video shows that person attempting to strike Maier-McKenzie with a knife-like object on the left side of his face, the very location where Maier-McKenzie was actually stabbed. The male with the Nirvana baseball cap thrusts this weapon forward and down in a slashing motion, which is precisely the type of motion that would have caused Maier-McKenzie’s injury. Maier-McKenzie then immediately turned on his heel and ran away, rather than resisting or fighting back, which is consistent with him having been struck by the male wearing the Nirvana baseball cap, and inconsistent with the male having swung and missed.
[115] In short, not only do I reject Maier-McKenzie’s evidence, but I also further find that the Crown has proven beyond a reasonable doubt that he was actually stabbed by the male wearing the Nirvana baseball cap.
b. The male wearing the Nirvana baseball cap is John Fisher
[116] There is overwhelming evidence that the male wearing the Nirvana baseball cap is John Fisher. The evidence in support of this conclusion is the following:
i. I accept Lymer’s prior acquaintance recognition evidence to the effect that he recognizes the male wearing the Nirvana baseball cap as John Fisher. I note that Lymer identified the male as John Fisher immediately upon viewing the surveillance video. Moreover, Lymer had no information connecting John Fisher to the stabbing prior to viewing the video. I also note that Lymer was able to point out a number of distinctive features of the male depicted in the video, including his build, his ‘chinstrap’ beard and his thick glasses, all of which were consistent with his observations of Mr. Fisher.
I also accept Lymer’s evidence that his statement in an email to the Crown that the individual in question “appears to be John Fisher” was not intended to reflect any equivocation or uncertainty in his identification. In cross-examination, Lymer explained that he would not have said that the person “appears to be John Fisher” unless he was confident in that conclusion. On cross-examination he never wavered from that position, which I accept.
ii. Lymer’s recognition evidence does not stand alone. I also accept El-Halabi’s and Nanton’s evidence that a person wearing a Nirvana baseball cap outside the bar identified himself as John Fisher.
iii. The person who identified himself to El-Halabi and Nanton as “John Fisher” must be the same person shown in the Basement Surveillance Video Clips wearing the Nirvana baseball cap, based on the following:
Nanton said that the person who was asking for his cell-phone outside the bar was wearing a baseball cap with a Nirvana ‘smiley face’ logo;
that logo is identical to the logo on the baseball cap of the male in the Basement Surveillance Video Clips;
when approached by Nanton, Huo confirmed that one of the patrons at the bar had asked her to charge his cell phone, and she gave it to Nanton to return to the patron;
when shown surveillance video recorded on the main floor of the Sports Bar, Huo identified the person who had left the cell-phone with her to be charged;
the person identified by Huo was wearing a baseball cap, identical clothing, and was otherwise similar in appearance to the person in the Basement Surveillance Video Clips wearing the Nirvana baseball cap.
Therefore, the person wearing the Nirvana baseball cap in the basement of the Sports Bar is the same person who identified himself as “John Fisher” to El-Halabi and Nanton.
iv. Finally, photographs taken of John Fisher at the time of his arrest show him to be very similar in appearance to the person depicted in the Basement Surveillance Video Clips wearing the Nirvana baseball cap.
[117] The Crown has therefore established beyond a reasonable doubt that the male wearing the Nirvana baseball cap in the Basement Surveillance Video Clips is John Fisher.
[118] Because I have already found that this is the person who stabbed Maier-McKenzie, the Crown has proven beyond a reasonable doubt that John Fisher stabbed Maier-McKenzie.
Disposition
[119] It is agreed that if Mr. Fisher stabbed Maier-McKenzie with a knifelike object in the basement of the Sports Bar, that would constitute an aggravated assault as well as an assault with a weapon causing bodily harm.
[120] I therefore find Mr. Fisher guilty of counts 1 and 2 in the indictment.
[121] It is further agreed that if Mr. Fisher stabbed Maier-McKenzie with a knifelike object, he would have been carrying a concealed weapon without authorization, as well as possessed a weapon for a dangerous purpose.
[122] I therefore find Mr. Fisher guilty of counts 3 and 4 in the Indictment.
P. J. Monahan J.
Released: November 10, 2022
COURT FILE NO.: CR-21-70000436
DATE: 20221110
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JOHN FISHER
REASONS FOR JUDGMENT
P.J. Monahan J.
Released: November 10, 2022
[^1]: RSC 1985, c. C-46 (the “Criminal Code”).
[^2]: As is described below, Maier-McKenzie could not be located and thus was not available to testify; his preliminary inquiry evidence was admitted pursuant to s. 715 of the Criminal Code.
[^3]: 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393 (“Leaney”).
[^4]: Leaney, at para. 33; R. v. Brown, 2006 CanLII 42683 (ON CA), [2006] O.J. No. 5077 (C.A.), at para. 39; and R. v. Berhe, 2012 ONCA 716 (“Berhe”), at para. 14.
[^5]: Berhe, at para. 22.
[^6]: R. v. Gouveia, [2013] O.J. No. 3373 (S.C.J.), at para. 79.
[^7]: 2019 ONSC 404 (“Harty”).
[^8]: Harty, at para. 16.
[^9]: RSC 1985, c. C-5.
[^10]: As is described below, a transcript of Maier-McKenzie's preliminary inquiry evidence was introduced as part of the defence case, pursuant to s. 715 of the Criminal Code.
[^11]: R. v. Henry, [2006] O.J. No. 4167 (S.C.J.); R. v. Brown, 2003 CanLII 27393 (ON SC), [2003] O. J. No. 2152 (S.C.J.); R. v. Davani, 2017 ONSC 2326; and R. v. Farah, 2016 ONSC 2081.
[^12]: The voir dire proceeded on the basis that the evidence of both Maier-McKenzie and Beckett-Benjamin was available and that the Crown was simply electing not to call them. However, as is discussed below, at the conclusion of the voir dire it became evident that the police had been unable to locate Maier-McKenzie and that only Beckett-Benjamin’s evidence was available. As a practical matter, therefore, the analysis set out below only applies to the evidence of Beckett-Benjamin.
[^13]: This is the ‘classic statement’ of the rule by Baron Parke in Doe d. Gilbert v. Ross (1840), 7 M. & W. 102, 151 E.R. 696 (Exch.).
[^14]: See R. v. Shayesteh, 1996 CanLII 882 (ON CA), [1996] O.J. No. 3934 (C.A.) (“Shayesteh”) (applying the “best evidence” rule to tape recordings).
[^15]: Shayesteh, at para. 91 (emphasis added).
[^16]: Shayesteh, at para. 94.
[^17]: See the discussion by Chief Justice McLachlin of the evolution of exceptions to the hearsay rule, in R. v. Mapara, 2005 SCC 23, at para. 14.
[^18]: See R. v. Couture, 2007 SCC 28; R. v. Starr, 2000 SCC 40, at para. 199. See, more generally, S. Moen, “Seeking More Than Truth: A Rationalization of the Principled Exception to the Hearsay Rule” (2011) 48 Alta. L. Rev. 753, at pp. 765-768.
[^19]: See R. v. Bradshaw, 2017 SCC 35 (“Bradshaw”), at paras. 26–28.
[^20]: Bradshaw, at para. 28, quoting R. v. Khelawon, 2006 SCC 57 (“Khelawon”), at para. 63.
[^21]: Khelawon, at para. 63.
[^22]: 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
[^23]: See R. v. D.M., 2022 ONCA 429, at para. 58.
[^24]: R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 (C.A.), at para. 5.
[^25]: See R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197 (“Nikolovski”), at para. 28; R. v. C.B., 2019 ONCA 380, at paras. 99-101.
[^26]: Nikolovski, at para 29.
[^27]: R. v. Villaroman, 2016 SCC 33, at para. 37, quoting R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8.
[^28]: We know the person depicted on the video was Maier-McKenzie because he later identified himself as such to hospital staff as well as to police.