R. v. Bent, 2024 BCPC 3

Citation: R. v. Bent 2024 BCPC 3 Date: 20240108 File No: 77214-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. SMITTY RALPH BENT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. MCDERMICK Counsel for the Crown: E. Yao Counsel for the Defendant: W. Perrin Place of Hearing: Prince George , B.C. Dates of Hearing: May 15, 16, October 24, 31, 2023 Date of Judgment: January 8, 2024 I Overview: [ 1 ] On April 24, 2022, Mr. Filteau was at his residence, [omit for publication], in Prince George. Mr. Ewan was also home at that

time. There was a knock on the door and Mr. Filteau answered. A man alleged by the Crown to be the accused, Smitty Bent, pointed ashotgun at Mr. Filteau and entered the premises. This individual indicated he was looking for “JJ”. Mr. Filteau showed him upstairs anddownstairs, explaining that “JJ” was not there. The man then struck Mr. Filteau over the head with the shotgun and a struggle ensuedwith respect to its possession. Mr. Filteau pushed him down the hallway and out the front door. During the encounter, the man produceda knife and disembowelled Mr. Filteau. The assailant then fled the scene. Mr.

Filteau later identified the accused, Mr. Bent, from a photoline-up. He also identified him in court. Mr. Bent did not testify in these proceedings which is a neutral feature per se, since at all times inthe criminal process he enjoys a constitutionally enshrined right to silence. He has been charged with aggravated assault. The sole issuein these proceedings is whether the Crown has proven identification to the rigorous standard of proof beyond a reasonable doubt. II What this trial isn’t about: [2] This trial isn’t about self-defence. Mr. Perrin on behalf of Mr. Bent submits that on Mr.

Filteau’s own account, self-defencearises. That is not true. The perpetrator attended to the premises in question and was at all times the aggressor. He brandished a shotgun,pointing it at Mr. Filteau. A struggle ensued over the gun where Mr. Filteau was clear in his evidence that he never obtained sole controlof it. He was then eviscerated, all in a context where there is no evidence before me that the perpetrator suffered any injuries. There is noair of reality to self-defence. [3] Notwithstanding the submissions of counsel, this trial isn’t about the police having tunnel vision.

They initially suspectedanother individual, then ruled him out based on descriptors provided to them by the witnesses including height, race and alias. Afterexcluding him as a suspect, they decided not to include him in the photo line-up. There is nothing untoward in any of this. They wereadvised by Mr. Filteau that the perpetrator was an individual known to him as “Ripper”. Other officers knew that Smitty Bent went bythat alias and from that point onwards, he became their prime suspect.

There is nothing wrong with that investigative approach. [4] Counsel criticized the preparation and presentation of the photo-lineup. Justice Romilly articulates the three legal requirementsfor a photo-lineup in R. v. Miller, 2003 BCSC 118 at para. 14: [14] In dealing with a photographic line-up at least three prerequisites should be followed: (

a) It should appear that there has been nothing whatever done to indicate to the witness the person in the line-up who is suspected by thepolice, either by showing the witness a photograph, or indicating the position of the suspect in the line-up; (

b) The selection of the other persons to form the line-up should be fairly made, so that the suspect will not be conspicuously differentfrom all the others in age or build, colour or complexion or costume or in any other particular: R. v. Goldhar (1941), (ON CA), 76 C.C.C. 270 (Ont. C.A.) ; (

c) The procedure must be fair: R. v. Cormier (1990), (NS CA), 95 N.S.R. (2d) 62 (N.S. C.A.) . In R. v.Shermetta (1995), 1995 NSCA 86 , 141 N.S.R. (2d) 186 (N.S. C.A.) Roscoe J.A. wrote at para. 20: In order to ensure that the line-up is fair and that it adequately tests the ability of the witness to recognize the suspect, there must beseveral photographs and the suspect must not be markedly different from the others in the line-up in respect of age and physicalappearance.

See Ewaschuk, Criminal Pleadings and Practice in Canada, 2nd Edition, paragraph 16:7170 and the cases cited therein. [5] Officer Warren built the photo-pack on the basis of the description Mr. Filteau gave: Indigenous male, between 20 and 30, withshort black hair. Mr. Filteau told police that the assailant was “Ripper”. Other officers told him that “Ripper” was Mr. Bent and so heincluded him in the photo-pack. I have carefully reviewed it and the video of the photo-pack presentation conducted by constableMoleski.

In my view, the foregoing Miller criteria are readily satisfied, and although not required at law, I conclude that the photo-packand its presentation are in substantial compliance with the recommendations of the Sophonow Report as summarized at para. 17 ofMiller. [6] Mr. Filteau’s record has been filed as an exhibit in these proceedings. Inter alia, He has a prior conviction for fraud. This is of nomoment under these circumstances. This case isn’t about the credibility of either of the civilian witnesses. Both were forthright andearnest in their engagement in both direct exam and cross-examination.

Neither had any apparent motive to lie. Considering the totality ofthe evidence before this Court, I have no concerns respecting their honestly. [7] The only issue in this case is the reliability of the witnesses with respect to identification. III Analysis: [8] There are interminable cases warning of the frailties of eyewitness testimony, see para 11 of Miller. A witness may be convincedand hence, convincing. Nevertheless, a trier of fact may convict on the testimony of a single witness provided their testimony istrustworthy, reliable and credible, see for example, para. 40 of R. v.

Hay, 2013 SCC 61: 40 The credibility and weight that should be given to eyewitness testimony is an issue committed to the ultimate trier of fact — here, thejury; .. It is well established that where the Crown relies on an eyewitness identification, the trial judge has a duty to caution the juryregarding the well-recognized frailties of identification evidence; … However, a properly instructed jury may conclude, notwithstandingthe frailties of eyewitness identification, that the eyewitness' testimony is reliable and may enter a conviction on those grounds.

This maybe so even where the Crown has relied on only a single eyewitness…. [9] Mr. Filteau told police that “Ripper” was the assailant. A brimmed hat was found in the residence with the writing “Ripper” onit. Another officer (who didn’t testify) told the investigators that “Ripper” was Smitty Bent. This is how he came to be the primarysuspect and why his picture was included in the photo pack, which is appropriate, as already analyzed.

Crown concedes that this is all oflimited probative value with respect to the ultimate issue of identification, and I agree: Officer Warren testified he was advised by anotherofficer of same, which makes his evidence on this point exceptionally limited, as it is mere rumour or hearsay, undeveloped by the actualofficer with knowledge. I would note for completeness sake, that eventually in cross-examination, Officer Warren gave a very

unconvincing body of testimony connecting “Ripper” and Mr. Bent in his own mind that hardly persuades me of anything. The officerused diffident phrasing. Here’s an example of his testimony on this topic: A: Before, when -- yeah. Initially hearing the -- just the nickname Ripper, I couldn’t put a face to the name.

However, whensomebody said, I believe that to be Smitty Bent, you kind of get that cycling, oh, yeah, you know, Smitty Bent is -- it’s just something inthe back of your mind that, you know, maybe is not always available, but then somebody kind of cues your memory, and that pops up. [Transcript, May 15, 2023, page 37, lines 34-42] [10] In essence then, the assertion that “Ripper” is Smitty Bent, and a hat with “Ripper” on it was found at the scene is not clear,independent evidence that could strongly bolster Mr.

Filteau’s account, but rather, since the connectivity between “Ripper” and theperpetrator all flows from Mr. Filteau himself, this evidence then is really mostly tied to his own ability to reliably identify him.Nevertheless, it does demonstrate a consistency in the evidence, which is relevant and somewhat probative. But all of this is materiallydiminished by the following: there is no evidence before me that the assailant wore such hat on the date in question: Mr. Filteau did nottell officers that any hat was worn, and Mr. Ewan described the assailant as wearing a black toque. [11] In

summary, this foregoing bundle of evidence surrounding the brimmed hat and the name “Ripper” is all of very limitedprobative value respecting the element of identification. [12] Mr. Filteau is schizophrenic. This is neither here nor there. He testified he was on Abilify injections, which controlled hiscondition. Under cross-examination, he eventually agreed he couldn’t say with 100% certainty that he was on his medication at thematerial time, but there is no body of evidence before me that he was in any way symptomatic.

This is of no moment. [13] I do have several concerns however with respect to the element of identification in this case. [14] There is a degree of uncertainty in the language Mr. Filteau used when selecting Mr. Bent’s picture from the photo line-up: SF “I think that’s him actually. I don’t know (indecipherable)…” [15] And shortly thereafter: SF “I…I…I’m pretty sure that’s him though. [16] And finally: SF “This is the one I thought was the one right?

Yeah, I think so.” [17] This is somewhat concerning for this Court. “I think that’s him” and “I’m pretty sure that’s him”, isn’t necessarily the same asassuredly just saying, “that’s him”. Additionally, he says “I don’t know” followed by something inaudible. It’s hard to know what tomake of that snippet since we don’t know exactly what follows thereafter. But it’s not irrelevant to the analysis. All in all, this causes adegree of concern. [18] This was a dynamic, high-risk situation. It is not controversial that memory distortion can occur during stressful or traumaticevents, see for example, R. v.

McCallum, 2022 BCPC 261 at para. 95: [95] As for Mr. McCallum having had an opportunity to calm down prior to his statement, respectfully, this misses the point. Theconsideration of the impact of anxiety and fear on memory primarily involves the anxiety and fear at the time the event is witnessed, notat the time of the statement. The courts have recognized the common sense understanding that the distortion of memory canoccur during stressful or traumatic events: R. v. Perlett, (2006), 212 C.C.C. (3d) ONCA at para. 103. [19] See also R. v.

Millington, 2016 BCCA 293 at para. 40: [40] The judge concluded, moreover, that he had grave reservations about whether the evidence could satisfy the necessity criteria. Inhis view, a trier of fact is capable of understanding that stress associated with fast-moving events may lead to misperception andinaccurate memory of what happened: see for example, R. v. Perlett (2006), (ON CA), 212 C.C.C. (3d) 11 (Ont.C.A.) at paras. 102-108. In my opinion, this conclusion was open to the judge. Cst. Millington has not pointed out any error in thatconclusion and I do not think it can be criticized.

Cognitive science may explain why the phenomenon occurs, but the fact of thephenomenon is well known. A scientific explanation of a commonly known matter may be of little assistance, as the judge recognized,to a trier of fact. The trial judge was entitled to conclude in substance that a trier of fact is capable of assessing the relevance of thephenomenon in the particular circumstances of this case. [20] Of course, I don’t presumptively discount the evidence because of this, but I am mindful of these principles as I analyze theevidence. [21] Mr. Filteau agreed he was mostly focused on the gun.

He agreed it was an extremely fast-paced encounter. He testified he was“in shock.” [22] This culminates with the following important evidence in cross-examination where there had just been an exchange respectingdark jeans that leads into key identification evidence: A Right, and -- or something I don't know, dark is what I said after -- too, 'cause I couldn't distinguish exactly 'cause he had ashotgun in my face and I wasn't picking up fine details. But it just looked like a dark, shadowy man, but I could pick -- distinguish hisface, so. [Transcript, May 16, 2023, page 60, lines 29-34]

[ 23 ] He also testified along similar lines as follows: Q And you didn't get a good opportunity to take note of this person's features? A No time to notice the details of him, no. Well, other than seeing his face, but I wasn't looking for beauty marks at that point. Recognized him and then it was strictly taking action. [Transcript, May 16, 2023, page 54, lines 7-12] [ 24 ] In

summary, he acknowledged focussing on the shotgun during this dynamic encounter. He wasn’t observing details, which is unsurprising, but may impact the overall quality of his identification evidence. Finally, however, he stood his ground and said that he had a core recognition of the perpetrator’s face. [ 25 ] Mr. Filteau testified that he recognized his assailant, having interacted with him on two previous occasions. Firstly, he gave evidence that they had a lengthy peaceful encounter at his home where they talked about a variety of subjects approximately two years before the stabbing.

Secondly, there was a violent encounter between the two of them where his assailant came at him with a knife and repeatedly tried to stab him while Mr. Filteau blocked these attempts with a chair. According to Mr. Filteau, this took place in his kitchen roughly a month prior to the incident in question. [ 26 ] This is what is referred to as recognition evidence. R. v. Virk , 2015 BCSC 981 thoroughly analyzes R. v .Smith 2011 BCCA 362 and R. v. Pierce 2011 BCCA 485 with respect to this topic at paras. 113-117: [113] The Crown relies upon the decisions of our Court of Appeal in R. v. Smith , 2011 BCCA 362 and R. v.

Pierce , 2011 BCCA 485 which both note that while recognition identification evidence can be more reliable than stranger identification evidence, it should still be approached with caution… [114] In Smith , Nielson J.A. addressed the dangers of identification evidence and the need for caution both in stranger identification and in recognition identification evidence…. At para. 28 of Smith Neilson J.A. went on to state that even in recognition cases the trier of fact must "be aware that mistakes in identifying an accused may still occur.

The key is the quality of the identification evidence." [115] At paras. 30-31 of Smith , Neilson J.A. went on to address the issue of recognition identification evidence, writing: [30] The appellant's first argument suggests that "recognition" evidence falls in a different legal category than identification evidence, and the trial judge erred in placing Mr. Chieng's evidence in that category. With respect, that misconceives the concept of "recognition" in this context. In R. v. Bardales …, Mr.

Justice Wood, while dissenting in the result, provided this useful and accurate description of the role of recognition in cases where the identity of the accused is at issue: [102] With respect, I am of the view that there is no legal distinction between eye-witness identification cases on the one hand, and so- called "recognition" cases on the other.

In both, the identification of the accused is based on the evidence of one or more witnesses who offer the opinion: "That is the person who I saw." Where it is a factor, recognition is a circumstance which does no more than enhance the weight to be attributed to that opinion by the trier of fact. ... [106] As suggested in the McIsaac case, where recognition is a factor, considerable weight may attach to the opinion of an eye-witness, depending on the intimacy of the relationship between that witness and the accused and the length of time it has subsisted.

Indeed, the nature of the relationship may be such as to obviate the need for all but the most cursory of cautions. On the other hand, where the "recognition" is based on a casual relationship characterized by infrequent contact, the potential weight of the opinion may not be much greater than that offered by a complete stranger. [31] Thus, "recognition" evidence is not a distinct category. The concept of recognition in the context of eyewitness identification simply intimates the witness's evidence is based in part on his or her dealings with the accused before the crimes were committed.

The extent and quality of those encounters is but one factor to be considered in weighing the witness's evidence…. [117] Accordingly, the applicable principles from Turnbull, Smith and Pierce as they relate to the case before me can be distilled to the following: 1. as the trier of fact, I must be alive to the caution needed in considering the identification evidence of the Crown witnesses, even in a recognition case, and I bear these principles in mind in analyzing the evidence in this case; 2. as the trier of fact, I must engage in a critical review of the evidence of the identification witnesses; 3. a number of factors should be considered in assessing recognition identification evidence including: (

a) the duration and conditions under which the witnesses who made their observations including whether anything impaired their ability to make their observations; (

b) the extent of any earlier dealings between the witness and the accused; (

c) the time elapsed between the incident and subsequent identification of the accused by the witness; (

d) whether there were any intervening factors between the sighting and the statements to the police such as tainting or contamination through discussion with friends; (

e) whether the witnesses provided detailed descriptions or merely generic, vague descriptions of the assailant;

(

f) whether there was any material discrepancy between the description of the assailant given by the witness and the appearance of the accused; and (

g) any other factors such as possible independent confirmatory evidence (for instance, forensic evidence such as DNA, fingerprints or positive police photo pack identification evidence). [ 27 ] Crown submits that the recognition evidence in this case is somewhere “in the middle” with respect to its probative force. [ 28 ] Here, there are only two prior encounters in total. While the first interaction between Mr.

Filteau and the individual was lengthy and peaceful, it was approximately two years prior to the altercation, which significantly reduces its value. [ 29 ] There are some concerning internal and external inconsistencies in the evidence, which will be analyzed presently, but for the moment, I intend to address problems respecting the recognition evidence. [ 30 ] Mr. Ewan was a witness called by the Crown. He said that besides marijuana use, he was not a drug user. He was inside the home at the material time and witnessed a portion of the encounter. He was upstairs doing dishes.

There was a knock at the door and Mr. Filteau answered it. Mr. Ewan went towards the door, to the staircase landing. An individual and Mr. Filteau went downstairs. Mr. Ewan went back to doing dishes. He heard a commotion, which sounded like people fighting. Mr. Ewan watched as Mr. Filteau ejected this person from the premises. The two went outside. Mr. Filteau then returned and it became clear that he’d been eviscerated. Mr. Ewan went for help. He testified that he recognized the assailant as an individual who was at the residence the day before, fighting with Mr. Filteau. Mr.

Filteau however testified that there was an altercation between him and the same person about a month before. A month and a day are quite different, and it’s not on a collateral or inconsequential point: It ties directly into the value of the recognition evidence. I cannot determine which version to prefer - perhaps they’re both wrong. But either way, this negatively impacts the quality of the recognition evidence adduced by the Crown. [ 31 ] With respect to that prior altercation, Mr.

Filteau initially testified on May 15, 2023, that the assailant was talking to “JJ” down at the front doorstep, then attacked him randomly while Mr. Filteau was in the kitchen. The altercation arose when he asked the individual for a “hoot” of heroin. During cross examination, on May 16, 2023, the very next day, he testified that the attack occurred because the assailant had thought that Mr. Filteau had “called him down” and\or disrespected him. When counsel reminded Mr. Filteau that he testified just the day before that the fight occurred because Mr.

Filteau had asked for a “hoot” of heroin, he could not recall giving that evidence. Eventually he testified that he just had no idea why this man attacked him. This is all moderately concerning to this Court, and again, it’s not on a collateral point, but cuts into the recognition evidence, restraining its value and force. [ 32 ] In

summary then, the recognition evidence is of limited value: There are only two prior interactions asserted. As just analyzed, there are some reliability problems with respect to the evidence of the prior physical encounter. As to the lengthier peaceful interaction, while this has more probative force, nevertheless it is quite dated, having occurred two years before the assault at hand. [ 33 ] There are other inconsistencies between Mr. Ewan’s account and Mr. Filteau’s evidence. Mr. Filteau described the assailant as six feet tall while Mr.

Ewan described him as five foot six inches, which is not an insignificant difference. Mr. Filteau did not tell the police that the assailant wore anything on his head, while Mr. Ewan described him wearing a black toque. Importantly, Mr. Ewan said the fight took place downstairs, and then the assailant was ejected. He was clear that they never came upstairs. Conversely, Mr. Filteau testified that he showed the assailant every room in the house, taking him upstairs as well as downstairs. Individually, these discrepancies are minor, but collectively they are moderately significant.

In my view, this funnels directly into a McCallum and Millington analysis as set out above: memory distortion can occur during stressful or traumatic events. As previously noted, I don’t discount the evidence per se because of this, but I am mindful of this as I analyze the civilians’ evidence. And here, we see that there are indeed discrepancies in the accounts of the two eyewitnesses. This is important, because the entire case depends upon the subtle, delicate, identification evidence of Mr.

Filteau, standing alone, in this dynamic context where there are some predictable reliability problems with the full body of evidence. [ 34 ] Mr. Filteau described himself as a heavy drug user at the material time which included heroin and methamphetamine use. Eventually in cross-examination, he agreed that (at least generally) this probably affected his memory. In R. v. Hooper , 2023 BCSC 1871 , the complainant was addicted to drugs at the material time. The Court thoughtfully analyzed this at paras. 83 to 86 and ultimately concluded that her testimony was reliable notwithstanding her health challenges.

I am mindful of this analysis. And here, there’s no evidence that Mr. Filteau was high at the material time to any appreciable extent. I am of the view that his drug addiction at the material time is not devastating to his account, but nor is it totally irrelevant to me. It is slightly concerning. [ 35 ] Finally, the description of the perpetrator that Mr. Filteau provided was relatively generic and lacked detail. He described his assailant as “Native”, provided a broad age range, and testified he was “maybe six feet”.

He told police there was nothing distinct about him, describing him as “an average Native kid.” He then went on and stood his ground noting that he recognized his face. [ 36 ] It is difficult to know exactly what to make of this relatively bare-bones description within the context of his overarching firm assertion that he nevertheless recognized him. This basic description doesn’t erode his identification evidence, but nor does it give the Court an additional layer of assurance or comfort with respect to his identification. IV Final analysis and conclusions: [ 37 ] The only issue in this case is identification.

Mr. Filteau picked Mr. Bent out of a fair photo-lineup and identified him in court. The Crown at all times bears the burden of proof to the rigorous and strict standard of proof beyond a reasonable doubt. As explained in R. v. Starr , 2000 SCC 40 , at para. 242 , it lies along that measure "much closer to 'absolute certainty' than to 'a balance of probabilities'". Proof beyond a reasonable doubt is achieved if, after considering the totality of the evidence, the court is sure that the accused committed the offence charged.

The frailties of identification evidence are well recognized. [ 38 ] Most of the issues raised were not relevant to my ultimate analysis. Mr. Filteau claims to have recognized his assailant, having dealt with him twice previously. Ms. Yao for the Crown submits this bolsters his identification evidence. But as already analyzed, there were some problems with this recognition evidence and accordingly, it is of limited value to me. There are a number of issues with

respect to the evidence. As already analyzed, this was a dynamic encounter and so errors in perception can occur ( see Millington and McCallum ). I don’t discount the evidence per se because of this, but there were in fact several inconsistencies between the accounts of Mr. Ewan and Mr. Filteau. This is to be expected under the circumstances (up to a point), and does not affect the credibility of the witnesses, but it does impact the reliability of the evidence. [ 39 ] There was at least a degree of uncertainty in the language used by Mr. Filteau during the photo line-up process. Mr.

Filteau was a drug addict at the time and he agreed that this would’ve (at least in general) probably affected his memory. His description of the assailant was generic, referring to him as “an average Native kid”. None of these problems when considered in isolation are fatal to the Crown’s case, but collectively, they do cause this Court concerns with respect to the reliability of the full body of evidence before me.

Beyond a reasonable doubt is a rigorous standard and at the end of the day, I must say that these collective concerns synergistically add up, and cumulatively cause me to have a reasonable doubt with respect to the element of identification. [ 40 ] Accordingly, I acquit Mr. Bent of the charges. The Honourable Judge P.A. McDermick Province of British Columbia