R. v. Kipling, 2021 MBPC 11

CITATION: R. v. Kipling, 2021 MBPC 11 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) A. Millo for the Crown ) - and - ) ) Jerry Robert Kipling ) M. Cook for the Accused ) ) Judgment delivered March 5, 2021 ) M.P. Thompson, P.J. Introduction [ 1 ] This trial involved a hammer attack to the head of an unsuspecting teenager. The attacker fled the scene, but the incident was captured on video surveillance from multiple cameras. The sole issue at trial was identity of the attacker. [ 2 ] The accused, Jerry Robert Kipling, is charged with aggravated assault.

The fact that Jayden Ducharme was struck in the head on May 30, 2020 at a pizza restaurant in Winnipeg is not disputed. There is no doubt his injuries meet the definition of an aggravated assault. The attacker struck him with such force the handle broke off leaving the claw end of the hammer embedded in his skull.

At issue, is whether the Crown has proven beyond a reasonable doubt that the accused is the person who committed this offence. [ 3 ] There were no eyewitnesses at the scene who could identify the attacker: the victim did not testify as he was unable to recall details of the attack and the restaurant employee was unable to pick the accused out of a police photo-line up.

Because no forensic evidence was found, the Crown relies on the opinion evidence of two recognition witnesses as well as circumstantial evidence to prove identity. [ 4 ] Two weeks after the attack, police circulated a media release requesting the public’s assistance in identifying the person of interest in this attack. That bulletin included still images of the suspect taken from the video surveillance. [ 5 ] Relatives of Mary Kipling sent her those images via Facebook message, identifying her 30-year-old nephew, Jerry Kipling as the wanted suspect. She confirmed that it was Jerry Kipling, who she knew well.

She reported this information to police who located and arrested the accused on June 15, 2020. Her son, Darrel Kelly a first cousin of the accused, also identified to police, Jerry Kipling as the attacker shown in the person of interest bulletin. [ 6 ] The Crown called Marie Kipling and Darrel Kelly as witnesses to give opinion evidence as to the identity of the attacker shown in the surveillance footage and still images. [ 7 ] The lay opinion of a witness identifying a person in a photograph or video based on a prior connection with that person, may be admissible in certain circumstances.

The law recognizes that people more familiar with the accused can be in a better position than the trial judge to identify them. ( R. v Berhe , 2012 ONCA 716 ). [ 8 ] The Defence waived the necessity of a voir dire to establish threshold admissibility of the evidence of those two recognition witnesses, effectively conceding that the accused’s aunt and cousin were sufficiently familiar with the person whose identification was in question to enable them to provide valuable and otherwise unavailable identifying information. [ 9 ] Both witnesses testified they were certain that it was the accused, Jerry Kipling who is shown as the perpetrator in the video surveillance.

Defence Position : [ 10 ] Defence counsel argued that while those witnesses were steadfast and honest in their testimony, their evidence was ultimately unreliable as they were unable to articulate what details made them certain it was the accused shown on the video. [ 11 ] Defence also pointed to the absence of forensic evidence linking the accused to the crime or crime scene.

Despite testing, no DNA or blood was identified on the clothing of the accused, his backpack or its contents when he was arrested. [ 12 ] At the trial, from the prisoner’s box, the accused displayed large visible black/grey tattoos on his left forearm, the predominant one being the outline of a cross. The crime scene video surveillance clearly showed no such tattoos on the attacker’s left forearm. [ 13 ] In

summary, Defence argued the Crown had not met its burden of proof of identification beyond reasonable doubt. Crown Position :

[ 14 ] The Crown pointed to a constellation of circumstantial evidence to corroborate the opinion evidence of the recognition witnesses that proved identity of the accused as the perpetrator beyond a reasonable doubt. The Crown argued the absence of tattoos on the perpetrator’s left forearm did not exclude the accused, as there was evidence from police that the accused did not have tattoos on his left forearm when he was arrested on June 15: that those tattoos were recent and could have been obtained while in jail.

The absence of DNA or blood on the accused or his clothing, they argued, was a neutral piece of evidence given there was no struggle, only one blow, after which the perpetrator fled, taking with him the broken hammer handle. Analysis : [ 15 ] The two recognition witnesses were qualified to testify based on the nature of their past relationship with the accused.

The law recognizes that people more familiar with the accused can be in a better position than the trial judge to identify someone based on video or still photographs, yet it is up to the trial judge to determine the ultimate reliability and weight to be placed on their opinion evidence. [ 16 ] In R v. Hudson, 2020 ONCA 507 , 2020 CarswellOnt 11406 at para. 33 the Ontario Court of Appeal articulated a list of factors to consider when assessing reliability: Where a trial judge finds the requirements for threshold admissibility have been met, the recognition witness will be permitted to testify.

It will then be the role of the trier of fact to assess the witness’ testimony to determine its ultimate reliability and the weight that can be properly attributed to it, if any. In doing so, the trier of fact should consider the following non-exhaustive list of factors as indicia of reliability: 1) the circumstances of the identification, including whether it was independent or suggested; and 2) the level of detail provided in the description, including the ability of the witness to “point to some unique identifiable feature or idiosyncrasy of the person to be identified”: Berhe , at para. 22 .

However, the “importance of unique identifiable features varies with how well the witness knows the person he or she identifies” (the better a person knows the accused, the less important the articulation of identifiable features becomes): R. v. M.B ., 2017 ONCA 653 , 356 C.C.C. (3d) 234 (Ont.

C.A.) , at para. 46 ; 3) the quality of the video or photographic evidence upon which the witness is making their identification (the witness’ testimony will be more reliable as the quality increases); and 4) the circumstantial or direct evidence available that can corroborate or undermine the reliability of the witness’ description. [ 17 ] The Crown submitted the particularization of detail required from recognition witnesses rests on a continuum of familiarity, citing R. v. Panghali , 2010 BCSC 1710 , [2010] B.C.J. No. 2729 (BCSC) .

At paragraph 42 of that case, Justice Holmes commented as follows: Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail.

But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition. [ 18 ] The Crown noted that previously, courts have held that police officers who are acquainted just a handful of times with an accused are qualified to give recognition evidence. The weight to be given to their opinion evidence is closer to the end of the spectrum requiring that they articulate particular features to give it value.

However, this case is at the opposite end of that spectrum as the Crown’s recognition witnesses were people who knew the accused best, literally having known him all of his life. Their recognition evidence has substantial value even if they are unable to articulate particular features or idiosyncrasies. [ 19 ] As the Crown pointed out, Marie Kipling, aunt to the accused, contacted police, not the other way around. She was emphatic that she was a hundred per cent certain that it was the accused shown in the video and on the still photos. She was not budged on cross- examination in the slightest.

Her emotions in testifying against her nephew were palpable, at one point she was moved to tears. It was clear she did not at all enjoy the prospect of testifying against her nephew and that she had no ill will towards him whatsoever. [ 20 ] While there are inherent risks in eyewitness identification, the evidence at this trial was not a case of stranger identification or of a fleeting or momentary opportunity to view. Marie Kipling had time to look at still photographs and video surveillance of a significant duration from several cameras prior to and during her testimony.

She was certain that it was the accused shown in the video. Attempts during cross-examination by Defence to suggest that it looked like him but she could not be certain, were firmly rejected. [ 21 ] She was not a witness who wanted to be present. If there was any doubt of that she was asked by the Crown, “If there was any doubt, would you have been here to testify today?” She answered “No.” She went on to say that she loved the accused but that the victim needed justice and that she was also there because the accused needed help. [ 22 ] I also noted physical signs of her reluctance to be here as a witness.

Her head was down, she tried to avoid looking at the accused to make eye contact. Despite being a physically reluctant witness, she was firm in her identification. Her identification evidence is founded on her lengthy relationship with the accused. She knew the accused his entire life. His mother is her sister. Although she was his aunt, she had acted in place of a parent previously. She testified that the accused had come to live with her when he was 9 years old for the better part of two years, following which she had an ongoing relationship with him. She would see him regularly.

Up until the time of the incident he was coming to her home on a weekly basis, if not more frequently, to eat, to shower, to wash his clothes and to spend time visiting with her and her six children. [ 23 ] She was able to articulate some of the features she recognised in the video; his eyes and the thickness of the structure on the bridge of his nose were features that helped her identify him.

She also identified that he wore baggy pants and a ball cap backwards, as familiar clothing features. [ 24 ] She conceded she had not seen him wear a bandanna before and that she could not say whether he had tattoos before or not

because she didn’t pay attention to them. When pushed on cross-examination as to whether this just was a person that looked like her nephew, Jerry Kipling, she said that she was a hundred per cent certain because his face wasn’t generic. [ 25 ] When applying the Hudson (supra) four factors as to indicia of reliability to Marie Kipling’s recognition evidence: Circumstances of Identification including whether it was independent or suggested: [ 26 ] It was suggested to her by relatives who forwarded her the Person of Interest Bulletin and photos that it was indeed Jerry Kipling.

However, she was the one who called police with this information about the accused, a person she loved. Level of detail provided in the description, including the ability to identify unique features or idiosyncrasy (the requirement of which can be diminished with familiarity): [ 27 ] She recognized the eyes and the thickness of the structure on the bridge of the suspect’s nose as unique features. Her description of his clothing was unremarkable.

However, she was almost as familiar with him as his mother, given their blood ties and the fact that she helped raise him and had regular, recent and continued extended contact with him at her home. Quality of Video or Photographic Evidence (reliability increases as quality increases): [ 28 ] The quality of the video surveillance was reasonably good. While not high definition, there were multiple cameras that captured the suspect’s face and movements. There were no noticeable gaps in the video, it showed live motion. It was for extended periods of time. The images could be enlarged to zoom in on specific details.

Circumstantial evidence available to corroborate or undermine the reliability of the witness’ description: [ 29 ] The suspect did not have visible tattoos on his left forearm but that was explained by Constable Dunphy’s testimony that those tattoos were new since his arrest. That evidence was echoed by Cst. Rand who testified that the tattoos seemed new as he did not recall seeing them at the time of arrest.

A comparison of shoes, backpack, bandanna and the presence of a black handled knife in his backpack all corroborate identity. [ 30 ] I note that this was a prolonged and close relationship over a period of approximately 30 years. Given the totality of these factors, I am satisfied that I ought to give considerable weight to her identification. [ 31 ] Marie Kipling’s son, Darrel Kelly, a first cousin to the accused also testified.

Circumstances of Identification including whether it was independent or suggested: [ 32 ] He testified that when he received a picture of the suspect in the hammer attack from his mother, he recognised it as his cousin Jerry. He gave a voluntary statement to the police after he dealt with his own outstanding arrest warrants. He signed the back of still photos from the video surveillance of the crime scene found at Exhibits 4 and 5 indicating his identification of the accused.

Police testified he was not offered any inducement for his identification as he had dealt with his matters and was going to be released regardless as it was an endorsed warrant. Level of detail provided in the description, including the ability to identify unique features or idiosyncrasy (the requirement of which can be diminished with familiarity): [ 33 ] At 28 years old, he is two years younger than the accused. He has known the accused his entire life. He would see him regularly one or two times per month.

He identified the way the perpetrator moved, the way he put his hands in his pockets and how he carried himself, as things that he recognised on the surveillance video as familiar to his cousin. Quality of Video or Photographic Evidence (reliability increases as quality increases): [ 34 ] As the Court found, the quality of the video surveillance was reasonably good. The fact that it showed live motion was significant as it allowed the witness to recognize his movements.

Circumstantial evidence available to corroborate or undermine the reliability of the witness’ description: [ 35 ] A comparison of shoes, backpack, bandanna and presence of a black handled knife in his backpack all corroborate identity. [ 36 ] As Defence pointed out, this witness was very soft spoken and mumbled. Although it was difficult to hear his testimony, he was equally certain he recognized the perpetrator as the accused. [ 37 ] He conceded on cross-examination he had not seen Jerry wearing that blue bandanna before and did not know him to wear a backpack.

He was squinting to see from the witness box the video screen across the room, conceding he had less than 20-20 vision. However he was adamant that he was able to identify the accused, not just from the video screen in court but from the Crown’s computer screen which he was close to and no difficulty viewing prior to his court appearance.

When asked if he had any doubts that it was his cousin Jerry, he said no. [ 38 ] In addition to the recognition testimony from the two family members of the accused, the Crown noted the evidence from Constable Dunphy that went unchallenged that the accused did not have tattoos on his left forearm when he was arrested on June 15 th .

The Crown asked the Court to consider the inference that it was possible for the accused to get a tattoo while in jail and that this is not evidence that excludes identification. [ 39 ] The Crown also pointed to a lack of forensic evidence as being neutral in the context of these facts. The video showed the assailant striking one blow with a hammer which remained in place. This was not a struggle or a situation involving multiple strikes. The

assailant picked up the hammer handle and took it with him, it should not be surprising that there was no DNA found on the accused’s backpack, shoes or bandanna. [ 40 ] The Crown made detailed submissions carefully comparing several items the suspect was wearing or carrying in the surveillance video with items seized from the accused upon arrest. [ 41 ] The Crown was able to stop the video and zoom in, enlarging the images at several points in time. All of the details shown clearly on video surveillance match those of the backpack seized from the accused upon arrest.

From the square silver patch on each of the backpack straps, the three-wave silver striping in the middle of the backpack to the colour and size of the zippers as well as the multiple parts of grey expansion pocketing: all are readily apparent on the surveillance video. I have no doubt the backpack seized from the accused when arrested is identical to the backpack shown on video surveillance. [ 42 ] A blue bandanna with a paisley pattern and red and white markings was seized from the accused upon arrest.

A very similar, if not identical bandanna is worn by the attacker and can be seen in the video surveillance with the same pattern and flecks of red. [ 43 ] The shoes seized from the accused upon arrest appear to be identical to the shoes worn by the suspect on the video surveillance. They are both dark black shoes with thick lighter black soles as well as matching side stripes and toe patch.

I am satisfied that the markings on the accused’s shoes are identical to those shown on the video surveillance. [ 44 ] In addition to items visible on surveillance video, found in the accused’s backpack upon arrest was a black handled folding knife.

It is an agreed fact that the assailant showed the victim some items from his backpack including a knife with a black handle that the store clerk was able to observe ( Exhibit 1 Agreed Statement of Facts, paragraph 9 ). [ 45 ] When I consider the opinion evidence of the recognition witnesses, I am satisfied that they are both in a better position than the trial judge to provide identification evidence regarding Mr. Kipling given their familiarity with him over three decades on a regular basis. They are family to him and they were adamant that he was the person shown on the video surveillance.

In saying that, I certainly have more confidence in the testimony of Marie Kipling as she was a much better focused and more articulate witness than was Darrel Kelly whose evidence wasn’t as cogent. [ 46 ] However, it is not solely their recognition evidence upon which I am able to rely. It is the constellation of facts that include the matching backpack, the matching shoes, the matching bandanna and the black handled knife in the accused’s backpack that corroborate the opinion evidence of the recognition witnesses.

When I combine all that evidence, I am left with no doubt that the accused, Jerry Kipling is the person whose image was captured on video surveillance as the attacker of Jayden Ducharme on May 30, 2020. [ 47 ] As I am satisfied that the Crown has proven identity beyond reasonable doubt, I find the accused guilty of the charge of aggravated assault. “Original signed by:” _________________________ M.P. Thompson, P.J.