2016 ONCJ 194, 2016 ONCJ 194

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . .

486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; CITATION: R. v. T.W.-H. , 2016 ONCJ 194 DATE: 2016-04-07 COURT FILE No.: 15-Y144-00 BETWEEN: HER MAJESTY THE QUEEN — AND — T.W.-H., a young person Before Justice J. M. Copeland Heard on January 18, 19, and March 3, 2016 Reasons for Judgment released on April 7, 2016 Mr. P. Quilty ......................................................................................... counsel for the Crown Mr. K.

Jim ...................................................................... counsel for the defendant, T.W.-H. COPELAND J.: [ 1 ] T.W.-H.is charged with one count of sexual assault and one count of breach of probation. The allegations are that as he and the complainant walked home after getting off their school bus at the same stop, he grabbed her and pulled her to a “catwalk” near a park, tried to kiss her against her will, and put his hand down her pants and grabbed her buttocks.

The alleged breach of probation is based on the same conduct, alleged to breach a probation term requiring him to keep the peace and be of good behaviour. [ 2 ] Counsel for T.W.-H. does not challenge the honesty of the complainant’s evidence that she was sexually assaulted, and does not take issue that the acts she describes constitute the offence of sexual assault; rather, he challenges the reliability of her identification of the defendant as the perpetrator.

In addition, for different reasons, the defence challenges whether the Crown has proven the defendant’s identity as the person subject to the probation order at issue. The Evidence [ 3 ] In addition to the complainant’s evidence in court, Crown counsel tendered two videotaped statements made by the complainant to police. The first statement was made one day after the alleged incident. The second was made two weeks after. Defence

counsel consented to their admission under s. 715.1 of the Criminal Code. I was satisfied that the requirements of that

section were metfor both videotaped interviews, for reasons that I gave orally during the trial. [4] The complainant was 14 years old, almost 15, at the time of the incident, and in grade 9. Her evidence was that onFebruary 17, 2015, she took her school bus home from school as usual. She got off the bus at her usual stop and was walking home. She said that “T.W.-H.” came up beside and said, “hi”, and suggested they go and see who was in the park. She said no, that she justwanted to go home. He then pulled her towards the park. He pulled her by putting his arm around the back of her neck.

She tried to getaway, but he kept pulling her towards the catwalk. At one point she got partly away and tried to run, but he grabbed her again, this timearound her waist, and took her to the catwalk (which is before the park). [5] At the catwalk, T.W.-H. pushed the complainant against a fence and forced her to kiss him. She was telling him tostop, and asking him to please let her go home. He kept kissing her. Then he shoved his hand down the back of her leggings andgrabbed her buttocks. The complainant yelled and tried to push him away. He then asked her to flash her breasts for him.

When sherefused, he tried to pull her shirt up. She pulled his hand away. He then pushed her against the fence and started kissing her again. Hetried to put his hand down the front of her pants, but then a girl the complainant did not know came around the corner. T.W.-H. movedaway like nothing had happened. The complainant then walked away. Her evidence was that the whole incident lasted around 10minutes.

She told the police this time frame in her first interview, the day after the incident. [6] The complainant testified that on the bus prior to the incident she was sitting in the second or third row, and T.W.-H.was sitting “all the way at the back”. She testified that prior to the incident she had not had any conversations with T.W.-H. that day. She thought that five people got off at her stop that day, including her and T.W.-H.. Only she and T.W.-H. walk the same direction toget home after getting off the bus.

She said she normally she tries to either walk in front of or behind T.W.-H.. [7] In her first interview with police (which was also admitted as part of her trial evidence pursuant to s. 715.1), thecomplainant identified the perpetrator as “T.W.-H.”. She did not know his last name. She told police that he went to her school, but wasnot in the same grade. She said they took the same school bus, and that he used the same stop as she did. She said that he had talked toher “every now and then”, and that he lived a “two minute” walk away from her house.

She said she knew his name because she hadheard his father yell “T.W.-H.” to him. She had seen him shovelling the driveway at his home. She also said that a friend of hers haddated T.W.-H.. She testified that she did not speak to T.W.-H. until they started taking the same school bus. She said she did not hangout with him because he “creeped [her] out”. She did not know T.W.-H.’s age, but believed him to be 16 or 17. When asked by thepolice to describe T.W.-H., she described him as having short brown hair, pimples on his face, and peach fuzz around his mouth. Shesaid he was taller than her.

She did not know his eye colour. She also described a baseball hat he wears. [8] In her examination-in-chief, the complainant said she knew that T.W.-H. lived near her. She knew which house helived in, but did not know the street address. Although she had seen him before, she did not actually talk to him until he was on herschool bus that year. He tried to talk to her, but she “wasn’t really into talking to him”. She knew who he was for a couple of monthsbefore the incident.

She said she would recognize him. [9] The complainant identified the defendant in court as the T.W.-H. who sexually assaulted her. [10] In cross-examination, the complainant agreed that, in general, she wanted to avoid contact with T.W.-H., and tried not towalk near him when she got off the school bus, because she thought he was creepy. She agreed that they did not have common friends. They would not sit together in the cafeteria, and if she saw him in the cafeteria, she would sit elsewhere. She agreed that she wanted toavoid him at all costs, and that she did not want to talk to him or look at him.

She agreed that if he tried to start a conversation with her,she would try not to look at him. She agreed that she had talked to him “maybe once”. She agreed that more than one boy at her schoolhad short brown hair, pimples on his face, and peach fuzz around his mouth. She also agreed that there was more than one boy at herschool named T.W.-H.. [11] In cross-examination the complainant said that during the incident she looked at T.W.-H.’s face when she was tellinghim to stop kissing her. But she also said she tried not to focus on his face. After she said “no”, she would immediately look down oraway.

But she said she tried to remember anything she could. She testified that the defendant looked roughly the same in court as hehad at the time of the incident. He still had short brown hair. She did not see pimples in court, she said because she did not look longenough (the complainant testified behind a screen, and came out from behind it only to identify the defendant).

She said she did not seeif he had peach fuzz in court, because she did not look at his mouth. [12] With respect to the time of the incident, although the complainant could not say the exact time she got on and off thebus that day, she testified that normally at the end of the day her bus would leave the school at 2:30 to 2:40 p.m., and that she would getoff the bus at her stop at about 2:55 p.m. She also testified in cross-examination that she did not recall anything that was later than usualon the day of the incident.

She testified that walking from the bus stop to the T-intersection seen on the home security video (describedbelow) would take two or three minutes (i.e., not long after she got off the bus). [13] I admitted into evidence a video obtained from a home on the route the complainant said she took that day after she gotoff the bus. The video is from a camera pointed towards the street. I outline its contents below as described by the complainant. Thetime stamp on relevant portion of the video runs from approximately 15:52 to approximately 16:04.

For oral reasons given during thetrial, I ruled that the video was admissible as potentially corroborative of the sequence of events testified to by the complainant. I ruledthat the video was clear enough for the complainant to authenticate it and give her evidence of how it related to the events at issue. However, I ruled that the video was not of sufficient quality for a trier of fact to use it as independent evidence of identification as hadbeen permitted in R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197. [14] The complainant viewed this video during the trial, and had previously been shown it by police.

She said that itshowed her and T.W.-H. as she was walking home. She said that at the T-intersection visible in the video it showed him leading hertowards the park and the catwalk, and her at one point getting away and running towards her house (towards the right), and then himrunning after her and pulling her back towards the catwalk. The two individuals then go out of view of the video to the left, which the

complainant testified is the direction of the catwalk. There is then gap of approximately 10 minutes where no-one is visible in the viewof the video. From the complainant’s evidence as a whole, it is clear she is saying the alleged sexual assault happened during this gap, atthe catwalk, which was out of sight of the video camera. After the 10 minute gap, two people return into view.

The complainanttestified at that point on the video she saw T.W.-H. trying to kiss her (at approximately 16:03:45 on the video time stamp). [15] As noted above, I am not considering the video as independent evidence of identification of the defendant as theperpetrator, but only as potentially corroborating the complainant’s evidence of the sequence of events. Most of the actions thecomplainant described seeing on the video I could also see on my own review of the video. Based on my viewing, the individuals on thevideo are identifiable as young people – likely teenagers and certainly not small children.

The individual on the right at the start isidentifiable as a girl. The individual on the left is taller and of a larger build, and could be either a boy or a girl (both individuals are inwinter dress. This, as well as the quality of the video prevents it from being useful as independent evidence of identification by the trierof fact). There was one aspect of the action on the video described by the complainant that I was unable to see myself in reviewing thevideo.

That was the portion in the last minute, where after the two youths return to the view of the camera after the 10 minute gap, wherethe complainant said she saw the T.W.-H. try to kiss her. The action at this point on the video is very near the top of the screen anddifficult to see. I was able to see that at the time identified by the complainant as T.W.-H. trying to kiss her, the two individuals stopwalking and appear to come close together. But I was unable to discern it as a kiss.

What is visible is not inconsistent with thecomplainant’s evidence, but neither does it corroborate the complainant’s evidence (as the earlier portions of the video do). The lastportion is simply not clear enough. [16] Cst. Virginia Armour was also called as a Crown witness. She testified as to the process that led to the police obtainingthe house surveillance video that the complainant testified showed the events before and after the sexual assault.

She also testified thattwo days after the incident, she and another officer attended at the complainant’s home, and with the complainant and her aunt, drovearound the neighbourhood to have the complainant identify various places relevant to the incident. The complainant showed police thecatwalk, the school bus stop, and the streets she and T.W.-H. had walked on in the incident.

She also showed the police where T.W.-H.lived. [17] On the breach of probation count, the Crown filed as evidence a certified copy of a previous Information and probationorder, showing that a person named T.W.-H., of a particular address and date of birth, was placed on probation for a period of two yearson December 13, 2013, for an offence committed in December 2012. [18] As noted above, defence counsel does not challenge the credibility and honesty of the complainant’s evidence, but onlythe reliability of her evidence identifying the defendant as the perpetrator. I will turn to reliability in a moment.

But I find that thecomplainant was honest and credible in her evidence. She was consistent in the details of the alleged sexual assault and events leadingup to it in her statements to police, her evidence in examination-in-chief, and in cross-examination. Her evidence was a logical narrative. And she did not appear to seek to exaggerate events. [19] Further, the complainant’s evidence is corroborated to a significant degree regarding the events before and after thesexual assault by the home security video.

In her first statement to police, she described the events leading up to the incident asinvolving the perpetrator grabbing her and pulling her in the direction of the catwalk, of her breaking free briefly and walking andrunning away, and of the perpetrator then grabbing her again and taking her to the catwalk. She also described the incident as takingabout 10 minutes. This was before the police had seized the home security video and before the complainant had seen it.

The videocorroborates the complainant’s description of the initial grabbing and pulling of her, her breaking free, and her being grabbed and pulledagain. It also corroborates her estimate of the incident taking 10 minutes. As I have described, in the video, after the initial pulling ofthe girl by the other youth, they both leave the view of the video image for approximately 10 minutes. Then the girl is seen walkingback into view from the left, followed by the other youth.

The video is very consistent with the description of events that thecomplainant gave to police before either she or the police knew of the video’s existence. [20] Thus, I accept that the complainant is a credible and honest witness. However, as is clear from the case law, a witness’honesty does not end the matter when dealing with identification evidence. I must also consider the reliability of the complainant’sevidence, and the circumstances of the identification, because honest witnesses can be mistaken in relation to identification.

The Sexual Assault Count [21] The Crown bears the burden to prove all of the elements of each offence charged beyond a reasonable doubt. In thiscase, the defendant did not testify. That does not change the burden of proof or relieve the Crown of its heavy burden. [22] As noted above, counsel for T.W.-H. does not challenge the honesty of the complainant’s evidence that she wassexually assaulted. Rather, the defence argues that her identification is not reliable. This argument is based essentially on two points.

First, the defence argues that although the complainant testified that she was acquainted with the defendant, her past involvement withhim was limited, and generally she tried not to look at or speak to him. Second, the defence argues that the complainant tried not to lookat the perpetrator during the attack, and that she was unable to give much of a description of what the perpetrator looked like. [23] Crown counsel argues that the complainant is a credible witness, and a reliable witness. He argues that she testified in astraight-forward manner, and was not shaken in cross-examination.

He argues that this is not a stranger identification case, but ratherthat the complainant had prior acquaintance with the defendant, living near him, attending the same school, taking the same school bus,and getting off at the same stop. She was able to tell the police his first name, and provide some specificity in her description of him. Crown counsel argues that the complainant had a good opportunity to observe the perpetrator during the sexual assault, as it wasdaylight, his face was uncovered, and the events took approximately 10 minutes.

Crown counsel also referred to the cases of R. v.Leaney, (SCC), [1989] 2 S.C.R. 393, R. v. Brown, [1999] O.J. No. 4865 (S.C.), affirmed (ONCA),and R. v. Berhe, 2012 ONCA 716, for the proposition that where an identification is made by someone who knows the allegedperpetrator, it is recognition evidence, rather than identification evidence, and the witness is not required to give the same degree ofdetail in their description of the perpetrator. He further argues that the security camera video, obtained after the complainant gave herfirst statement to police, corroborates her evidence of the sequence of events.

[ 24 ] I start by observing that the Leaney line of cases referred to by Crown counsel has no application here. Leaney and its progeny deal with the situation where a witness who did not witness the offence, but who knows the defendant, is tendered to testify that based on their knowledge of the defendant, he or she is the person in a photo or video depicting the offence (i.e., where the photo or video is not of such quality that the trier of fact could determine themselves per Nikolovski, supra , that the defendant is the person in the photo or video).

The Leaney line of cases is not applicable here for two reasons. First, the complainant did witness the events at issue. She is not a recognition witness of the type considered in Leaney . Second, the Crown is not seeking to use the video alleged to show the time surrounding the sexual assault in order to have the complainant make her identification of the defendant from the video.

Rather the Crown’s evidence and argument that the complainant identifies the defendant as the perpetrator of the sexual assault is based on the fact that she told police by name who he was, and provided various details about how she knew him, and then identified him in court.

The video is tendered by the Crown only as corroborative of the sequence of events testified to by the complainant, not as freestanding evidence of identification, and my mid-trial ruling admitting the video was limited in that respect. [ 25 ] I caution myself with respect to a number of issues in relation to identification evidence, well-established in the case law. Identification evidence is evidence which the courts must exercise caution in relying on. Erroneous identifications have been the cause of many wrongful convictions. Honest identification witnesses can be mistaken.

A witness who feels certain of the identification he or she is making can be mistaken. The level of a witness’ certainty about an identification does not increase reliability.

As a result, in assessing identification evidence, a court must go beyond considering the honesty of a witness, and must also consider all the circumstances in which the identification was made, in order to assess whether the identification evidence is sufficiently reliable to prove the charge beyond a reasonable doubt. [ 26 ] Some of the factors a court may consider in assessing the reliability of identification evidence include: the witness’ opportunity to observe at the time of the alleged offence (duration of the observation, light conditions, whether there was a face covering, etc.); whether the witness has prior knowledge of the person being identified – although with the caveat that even a person who knows someone can make a mistake about identification; the time lapse between the event and the identification; the presence of distinctive features and the amount of detail in the description provided by the witness; the presence or absence of corroborative evidence; the possibility of contamination by improper identification procedures.

This is not an exhaustive list. [ 27 ] In all of the circumstances, I accept that the complainant had seen defendant sufficiently in past to be able to recognize him as the perpetrator of the sexual assault, particularly because he regularly took her school bus and got off at the same stop, they attended the same school, and because he lived near her. Although she did not talk to him frequently, perhaps not more than once, it was clear that she knew who he was, since he was on her school bus, he lived near her, and she was able to take steps to avoid him because she found him creepy.

In order to try and avoid a person, it is necessary to know who they are and be able to identify them. [ 28 ] I also find that the complainant had sufficient opportunity to observe the perpetrator of the sexual assault during the attack. The sexual assault occurred in daylight. It took place over a period of approximately 10 minutes. In addition to the time of the actual assault, there was the time prior which can be seen on the home surveillance video where the complainant says she was walking next to the perpetrator for a couple of minutes. The events occurred in daylight.

There is no suggestion that the perpetrator’s face was masked or obscured in any way – indeed, the complainant’s description of pimples and peach fuzz make clear that his face was not covered. [ 29 ] I also note that the complainant’s evidence of the sequence of events is to a significant extent corroborated by the home security video. At the time the complainant gave her first statement to police, she told them that the whole incident took about 10 minutes. She also told them that the perpetrator grabbed her and pulled her once, and then she briefly got away and he ran after her and grabbed her again.

At the time of that interview, the police had not yet obtained the home security video showing the street the complainant and the perpetrator walked along, and the complainant was not aware of its existence. As outlined above, the video shows a two youths, one of whom I find I can see is a girl, walking up a street. Then at the intersection one youth leads the other to the left. The girl breaks free and runs back across the intersection the right. The other youth then runs after her, grabs her again and pulls her to the left, and ultimately out of the view of the camera.

There is then a period in the video when the two youths leave the view for approximately 10 minutes, and then return into view from the left. I find that the video corroborates the complainant’s version of events. In my view this is further support for the reliability of her evidence. [ 30 ] In all the circumstances I accept the complainant’s evidence identifying the defendant as the perpetrator of the sexual assault as reliable.

I find that the complainant’s evidence of identification is sufficiently reliable that I am persuaded beyond a reasonable doubt that the defendant committed the sexual assault described by the complainant. [ 31 ] I have considered the defence argument that the complainant testified that she had only spoken to the defendant once prior to the incident. In my view, this evidence must be considered in the context of all of the evidence.

Although she may only have spoken to him once, it is clear that she had seen him repeatedly, because he took the same school bus, went to the same school, and he lived near her house. [ 32 ] I have also considered the defence argument that the complainant did not get a good look at the perpetrator during the incident, because she was trying not to look at him. With respect, I find that the defence is failing to consider the complainant’s evidence in context. As outlined above, the incident took place over a time of approximately 10 minutes, in broad daylight, and the perpetrator’s face was uncovered.

The complainant said that at various times she looked at the perpetrator’s face, although she looked away at other times. I find in all the circumstances that she had seen the defendant a sufficient amount in the past, and saw the perpetrator sufficiently during the incident to identify them as the same person. [ 33 ] I have considered the fact that the time stamp on the video, if taken at face value, shows a time that is not consistent with the timeline testified to by the complainant, in that she would have gotten off the bus at approximately 2:55 p.m., and certainly well before 3:52 p.m.

I do not accept the Crown’s argument that I should speculate as to the reasons the times do not match, for example, possibly a failure to change to or from daylight savings time at some point in the past. I have no evidence either way regarding the accuracy or not of the time stamp on the video. The video was admitted based on the authentication of its contents by the complainant, as a witness to the events (see my oral mid-trial ruling). Because this method of authentication was used, I have no evidence as to

whether the time stamp on the video is accurate or not. I have considered that the time stamp at the start of the relevant portion of the video of 13:52 is inconsistent with the complainant’s evidence of the time line of events.

But in the absence of any evidence one way or the other as to the accuracy of the time stamp on the video, it does not change my finding that the complainant was truthful and that her evidence identifying the defendant as the perpetrator was reliable. [ 34 ] I have considered the cases relied on by defence counsel for the proposition that even where an alleged perpetrator is known to a witness, the circumstances of an identification may render it insufficiently reliable to prove guilt beyond a reasonable doubt: R. v. Graham , [2014] O.J. No. 4448 (S.C.) ; R. v. Thorne , 2007 BCSC 784 ; R. v.

Virk , 2015 BCSC 981 . I do not question the legal analysis in those cases. But I find that each of those cases is distinguishable on its facts. In general, they involve much briefer opportunities to observe at the time of the offence than this case, often in poor lighting conditions, inconsistencies in the identification witness’ evidence, and often witnesses whose capacity to observe is affected by impairment by alcohol and/or drugs.

None of those factors is present in this case. [ 35 ] I have also considered that there is no evidence before the court of a photo line-up being conducted with the complainant prior to her making her identification of the defendant as the perpetrator in court. Defence counsel argues that this in-dock identification is unreliable. I accept that the case law holds that in-dock identifications without a prior line-up are very suspect and of little probative value as evidence in a stranger identification case.

But given the complainant’s prior knowledge of the defendant, and her ability to provide information about him in her statement to police such as that he took her school bus and used the same stop, that he attended her school, that she knew where he lived, and that she knew his first name was T., I find that her identification of the defendant as the perpetrator is sufficiently reliable for me to find the identification proven beyond a reasonable doubt. [ 36 ] Before turning to the breach of probation count, I will address one more issue in relation to the sexual assault.

As noted above, on the breach of probation charge, Crown counsel filed a certified copy of a probation order in the name of T.W.-H. issued on December 13, 2013. The underlying offence for that probation order was a charge of sexual assault, for which there was a guilty plea [1] .

Although not specifically addressed in submissions, I have instructed myself not to consider the evidence of a prior conviction for sexual assault as evidence of bad character on the part of the defendant, or as evidence that he is more likely to be guilty of the offences for which he is currently charged because he has a previous finding of guilty for the offence of sexual assault. [ 37 ] For all of these reasons, I find that the Crown has proven the count of sexual assault beyond a reasonable doubt.

The Breach of Probation Count [ 38 ] Just prior to the Crown closing its case, defence counsel put Crown counsel on notice that although he was consenting to the admissibility of the certified copies of the court documents in relation to the December 2013 probation order, he would still have submissions about identification in relation to the breach of probation count, unless the Crown was calling further evidence.

Crown counsel did not call further evidence, and closed its case. [ 39 ] Defence counsel argues that the Crown cannot rely on the court process on the current charge (the arraignment and the current Information) as a substitute for evidence. He argues that the Crown needs some evidence apart from the court process to show that the defendant before the court is the same person who was placed on probation in December 2013. He bases this submission on the decisions of R. v. Levene , [2008] O.J. No. 5964 (S.C.) , affirming [2007] O.J. No. 103 (O.C.J.) ; R. v. Ali , 2011 ONCJ 760 ; and R. v. Gill , [2015] O.J.

No. 5915 (O.C.J.) . [ 40 ] Crown counsel argues that I can simply compare the information included on the current Information with the 2013 probation order and the Information underlying that charge, to conclude that the defendant before the court is the person subject to the December 2013 probation order, based on their containing the same name, the same address, and the same date of birth.

In addition, Crown counsel points out that the defendant answered to the arraignment in this case in a name that matches the December 2013 probation order, and that name is not a common or generic name when the last name is included.

In the alternative, Crown counsel argues that there is evidence apart from the court’s process on the current charge to prove that the defendant is the person subject to the December 2013 probation order. [ 41 ] There is no dispute that the Crown has proven with the certified documents from the December 2013 finding of guilt that someone named T.W.-H. was on probation in February 2015, and that that person has a particular date of birth and lived at a particular address, which are specified in the 2013 court documents.

In light of my finding that the Crown has proven the sexual assault count beyond a reasonable doubt, it follows that the Crown has proven that defendant committed

an act that would constitute a breach of that probation order, if the Crown has also proven that the defendant was the person placed on probation in the December 2013 court documents . The live issue then, is then whether Crown has proven that this defendant is the person who was subject to the December 2013 probation order. [ 42 ] After I reserved judgment in this matter, but before judgment had been delivered, the Ontario Court of Appeal released judgment in R. v. St. Pierre , 2016 ONCA 173 . I requested submissions from counsel on the relevance of the St.

Pierre decision to the identification issue regarding the breach of probation count. I heard those additional submissions on March 3, 2015. [ 43 ] In St. Pierre , the Court of Appeal considered an appeal from the denial of a directed verdict on a charge of failure to attend court. One aspect of the decision is relevant to this case.

The Court of Appeal held that evidence that the name and date of birth on the promise to appear filed as evidence, and the name and date of birth on the current Information before the court were the same, was some evidence to establish that the defendant before the court was the person named in the promise to appear: St. Pierre at paras. 9, 10 .

The clear holding that emerges from this decision is that a trial court can consider the similarity of information on the current Information before the Court as compared to information in previous court documents filed as evidence, in assessing whether the Crown has proven that the person before the court is the same person named in the previous court documents. I note as well that the effect of this decision is that the current Information before the court is treated as evidence, and not only as a pleading. [ 44 ] Counsel for the defendant correctly points out that St.

Pierre involves an appeal from the denial of a directed verdict, and for that reason that standard of proof is different than the standard of proof I must consider in assessing whether the Crown has

proven its case at the end of trial. However, despite the different standard of proof, I find that I am bound by the holding of St. Pierre that a trier of fact can compare information in the current Information before the court to information in previous court documents filed as evidence, in assessing whether the person before the court is the same person as in the previous court documents. [ 45 ] I must then turn to what the comparison of the current Information before the court and the certified copy of the December 2013 probation order and associated documents shows in this case.

The name on both sets of documents is the same. Although the first name is common, when it is combined with the hyphenated last name, it is quite unique. The specific street address on both sets of documents is the same.

The specific date of birth on both sets of documents is the same. [ 46 ] In light of the specificity of the three identical pieces of information – the same unusual name once the last name is included, the same specific street address, and the same date of birth – I find that the only explanation for the identity of this information in both sets of documents is that the defendant before the court is the person who was placed on probation in December 2013. I find that the comparison of the documents proves this fact beyond a reasonable doubt. [ 47 ] Although I find that I am bound by the decision in St.

Pierre , I must confess to being troubled by the fact that in its brief endorsement in St. Pierre , the Court of Appeal gives no express consideration to case law holding that the current Information before the court (and related documents such as release documents) cannot be treated as evidence, nor can the attendance of the defendant for arraignment be treated as evidence.

The Court of Appeal does not expressly consider whether there is a distinction between a copy of a previous court document formally tendered as evidence (certified or not), and the current Information before the court, which is not filed as evidence.

I refer in particular to the reasons of Justice Belobaba of the Superior Court and of Justice Nakatsuru of this court in Levene, supra , holding that attendance for the arraignment process or attorning to the court’s jurisdiction is not evidence of a defendant’s identity as a particular named person, nor is the name and other information in the current Information before the court evidence of the identity of the defendant as a particular named person. However, I must proceed on the basis that the Court of Appeal in St.

Pierre was aware of this line of authority in coming to the decision it came to. [ 48 ] For the reasons set out in paragraphs 45-46, I find that the comparison of the current Information before the court and the certified copy of the December 2013 probation order and the Information that order relates to are sufficient to prove the defendant’s identity as the person placed on probation in December 2013 beyond a reasonable doubt. [ 49 ] Had I not found based on St.

Pierre that I could compare the name, address and date of birth on the current Information with the certified copy of the December 2013 probation order, I would have found that the remaining evidence the Crown relied on as evidence of identification was insufficient to prove identification beyond a reasonable doubt. [ 50 ] Crown counsel argues that the following evidence apart from comparison of the current Information and the certified copies of the previous documents, and the defendant’s attendance for arraignment proves the defendant’s identity as the person placed on probation in December 2013: first, that his first name, T.W.-H., as given in the complainant’s evidence, is the same as the person placed on probation in December 2013; and second, that there is evidence from which the court could find that the defendant lives on the same street as the person placed on probation in December 2013.

I note that the latter evidence is arguably subject to a hearsay problem, because the complainant did not testify herself what street the defendant lived on; rather, Cst. Armour testified that shortly after the sexual assault, the complainant pointed out to police the house of the defendant.

The complainant testified that she had shown the police various locations associated with the incident, but she could not recall if she had shown them T.W.-H.’s house. [ 51 ] Setting aside the possible hearsay issue, I find that the other circumstantial evidence Crown points to is not sufficient to prove identity beyond a reasonable doubt.

What it amounts to is evidence that the defendant has the same first name as the person placed on probation in December 2013, T.W.-H., a relatively common name at present for teenage boys, and lives on the same street as the person placed on probation in December 2013 (but importantly, not confirmation that the defendant lives at the same number on the street as the person placed on probation in December 2013).

I find that evidence that the defendant has the same first name, and lives on the same street as the person placed on probation in December 2013 is not sufficient circumstantial evidence to prove beyond a reasonable doubt that he is the person who was placed on probation in December 2013. [ 52 ] However, for the reasons set out above, I find that the comparison of the name, address, and date of birth on the current Information and associated documents to the certified copy of the December 2013 probation order and associated documents proves the identity of the defendant as the person placed on probation in 2013 beyond a reasonable doubt.

There is no issue that the probation order was still in force on February 17, 2015, and that the acts which constitute the sexual assault also constitute a breach of the probation term to keep the peace and be of good behaviour. I find that the Crown has proven the breach of probation count beyond a reasonable doubt. Conclusion [ 53 ] I find T.W.-H. guilty of both counts. Released: April 7, 2016 ______________________________ Justice J. M. Copeland