R. v. V.(V.), 2011 ONCJ 563

Citation: R. v. V.(V.) , 2011 ONCJ 563 ONTARIO COURT OF JUSTICE (Central East Region) BETWEEN: HER MAJESTY THE QUEEN and V.V. Accused JUDGMENT Counsel for the Crown Mr. M. Holme Counsel for the Defence Mr. M. Simrod KENKEL J., Introduction 1 . V.V. is a young person charged with two counts of assault. Identification was the sole issue at trial. These reasons consider identification evidence at trial where the witness had access to Facebook photos of the accused prior to reporting the matter to the police. Evidence at Trial 2 .

The complainant was in the parking lot of the Promenade Mall with friends when he was approached by two young men he didn’t know. Those two men were subsequently joined by 4 other young men who had been waiting in a nearby car. The complainant suffered a cigarette burn to the neck and was kicked and punched by members of the group. The complainant managed to get into a friend’s car and they drove away from the mall.

3. Later that night a friend of the complainant’s who had been with him when the two strangers first approached called the complainantand told him he knew the men and knew their names. Rather than contact the police the complainant checked Facebook under the namesgiven and found an open page with photos of the accused. There were numerous other photos which the complainant believed includedphotos showing the other members of the group who attacked him. 4. The following day the complainant spoke with police.

He gave a brief statement to an officer who attended his home, then gave avideo statement at the police station. 5. At trial the complainant identified V.V. as the member of the assailant group who kicked him. The Crown did not call the friend whosaid he knew the assailants. It appears that the friend has moved out of the province. The Identification Evidence 6. The complainant did not know his assailants nor had he seen them before. The attack took place in a dark area of the mall parking lot.The circumstances described best fit the brief time frame described by the Crown’s second witness. 7.

The complainant identified the accused before the court as the person who kicked him during the attack. I find I’m unable to attachany weight to that conclusion for the following reasons: - The description of the accused given to the officers even after seeing a photo of V.V. was brief and generic. - The complainant had only a short time in dark conditions to observe the assailant who kicked him. During that short time hisattention would have been more focused on another assailant who was trying to get the complainant to walk away from his friends.

Afterhe was kicked and the punches began, the complainant had no opportunity to observe his assailants as he was protecting himself withboth arms over his face in what he described as the “fetal position”. - Once back inside his friend’s car the complainant left the scene quickly without making further observations. - As events unfolded there was no record of what, if any, identifying characteristics either Crown witness could have rememberedwithout first seeing the photo on Facebook - The fact that the witnesses were directed towards a particular suspect and shown a photograph of him prior to any independentattempt to identify the person involved I find precludes any weight being attached to the subsequent identification.

See: R. v.Miaponoose (ON CA), [1996] OJ No.3216 (CA) 8. Apart from the identification of V.V. via the photograph, the remaining evidence would not identify any particular person much lessthis particular young person. 9. While it’s understandable that the young witnesses thought Facebook might assist in identifying the attackers, it’s unfortunate thatthey did not contact the police first and leave the investigation to them. The police are specially trained to preserve the original value ofidentification evidence. Conclusion 9.

Considering the evidence as a whole, while I accept that the complainant was attacked by a group in the vicious manner described, Ifind that the Crown has not proved the alleged involvement of V.V. beyond a reasonable doubt. Count 1 will be dismissed. As theCrown concedes there is no evidence on count #2 and that charge will be dismissed as well. Delivered at Newmarket,

October 27, 2011 Hon. Justice Joseph F. Kenkel