R. v. Pavao, 2018 ONCJ 761

CITATION: R. v. Pavao, 2018 ONCJ 761 DATE : October 30, 2018 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — JERRY PAVAO ) ) ) ) ) ) ) ) ) ) ) ) ) ) S. McIntyre For the Crown D. Rendeiro For the Defendant Heard: August 29 and September 7, 17 and 25, 2018 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] Lena Deonarine withdrew $500 from her bank on Friday, July 7, 2017. A man rode a bicycle toward her as she walked home. His face was covered by a scarf or bandanna. He pulled Ms.

Deonarine’s purse from her shoulder, pushed her when she resisted, and made off with her money. The bicyclist’s face-covering slipped during their brief contact. Ms. Deonarine says she then recognized her assailant as Jerry Pavao, a man she has known for many years, both from the neighbourhood and as an occasional employee. [ 2 ] Jerry Pavao was arrested a couple of days later.

He has pled not guilty to three charges arising from the incident on July 7th: having his face masked with intent to commit an indictable offence, assault causing bodily harm, and theft. [ 3 ] The complainant, Lena Deonarine, testified, as has her son and a couple of uniformed and civilian members of the Toronto Police Service (TPS). Jerry Pavao, the defendant, also testified. He denied having any physical contact with the complainant on July 7th. His friend, Gianina Magaletta, followed him to the stand.

The defence, in essence, is that the defendant’s sworn denial of any involvement in the impugned events is worthy of belief while the reliability of the complainant’s identification evidence is compromised by her antagonism towards the defendant. [ 4 ] As in all criminal trials, the legal burden rests exclusively on the prosecution. The defence bears no evidentiary or legal onus.

It is the Crown that must prove the essential elements of each charge beyond reasonable doubt to secure a conviction for that offence. Any reasonable doubt necessarily results in an acquittal. [ 5 ] I add one additional introductory remark: Several gratuitous and disparaging comments were made respecting both the defendant and the complainant. These observations or historical anecdotes are very dated, fail to crest the threshold for admissible reputation evidence and, most importantly, are entirely irrelevant or of such attenuated probity to the issues before me that I disabuse myself of their prejudicial effect for purposes of the adjudication at hand. B. EVIDENCE (

a) Introduction [ 6 ] Before identifying the governing legal principles and addressing their application to this case, I first canvass the evidence called by the Crown respecting the complainant’s narrative and pertaining to a potential defence of alibi. I then survey the testimony of the defence witnesses. As I address more fully in due course, other than the defendant’s own testimonial claim that he was elsewhere at the time of the theft and assault, I am of the view that there is no independent evidentiary support for a defence of alibi. Nor, to be clear, does the law require corroborative evidence of such defence. (

b) Evidence Called by the Crown (

i) The Complainant 1. Background [ 7 ] Lena Deonarine was close to 70 at the time she was attacked. She had lived at the same address on Hallam Street, between Bartlett and Salem, in the Annex area of Toronto for more than 30 years. She has known the defendant, Jerry Pavao, for about 25 years. She also knows his mother, with whom he lived and whose home she had visited a number of times.

She often saw Jerry sitting on the front steps of his mother’s house as she walked by, and she frequently saw Jerry biking in the neighbourhood. [ 8 ] Jerry was a friend of Lena’s next door neighbour, Peter, with whose family she, Lena, and her family had long been very close. Peter had done renovation work on Lena’s home, and Jerry sometimes worked with him. She would often see the two of them in Peter’s adjoining backyard. Lena had also directly retained Jerry for a few smaller jobs. Lena always paid her contractors, including Jerry, in cash, sometimes by way of a partial advance.

In Jerry’s case, she would sometimes advance him money for a beer before he began a job at her home. [ 9 ] Jerry had worked on the roof at Lena’s home in the fall of 2016; there were some problems which he repaired in early 2017. She later retained him to assemble a computer desk and he helped fix her lawnmower. She says she offered him a job installing siding to her home in May or June but he said he lacked the proper tools and declined. She had given Jerry $100 for a small cement repair project. The job was never completed.

Lena says that Jerry returned the money a little before the incident, after she had several times attended at his house and spoken to his mother. She denied suggestions that Jerry had not repaid the money, that she and Jerry had exchanged harsh words in the days preceding the assault, that they had any outstanding financial disagreements on July 7 th , or that she bore him any sense of grievance. Lena testified that she had always had a good relationship with Jerry. [ 10 ] Lena had lived on her own for the previous five years.

She described herself a “very independent”, paying her own bills, helping care for a granddaughter, taking care of her own banking (including walks to the bank a couple of times a month to withdraw cash) and using Wheel Trans for longer excursions. Lena had fallen on black ice in 2014, leading to three knee surgeries and a lengthy recovery at a rehab centre. She fell again around January 2017, hitting her head. She “couldn’t remember anything” at the time, but she experienced an “85%” recovery within a couple of months. By April 2017, she was once again handling her own banking and paying her bills.

Although the reason was not explored, Lena sees a social worker at CAMH every other week. She has used a cane to help her walk since her knee injury, and did so on July 7, 2017. She wears bifocals, but only to read and was not wearing glasses at the time of the incident. 2. The Incident [ 11 ] Lena was having new siding installed. It was obvious that work was being done at her home. She went to the bank on July 7 th to withdraw money to pay the man who was doing the work.

From her previous employment of the defendant, Lena believed he would know that it was her practice to attend at her bank to withdraw cash to pay those with whom she contracted. Although she ordinarily withdraws from two to three hundred dollars when she visits the bank, she has taken out as much as $10,000 in cash to pay a major contractor. [ 12 ] Lena put her recycling bin by the curb before heading to her bank on July 7 th . She saw Jerry on his bike about eight or nine houses away and waved at him. She does not think he saw her.

Then, at about 2:00pm, she began walking to her bank, a branch of the TD Canada Trust in the Galleria Mall on Dupont at Dufferin. It usually takes her about 12 minutes to walk to the bank, although it could take a little longer. She withdrew $500 at 2:21pm, as recorded on the bank withdrawal slip that she identified and that the parties accept as accurate. The teller put the money in an envelope and Lena put the envelope in her purse. The bank, she says, was not busy. She completed her banking in about five minutes and then retraced her steps home.

She was about a half-block from her destination, on the north side of Hallam, just west of its intersection with Bartlett, when a man on a bike rode directly at her from the other side of the

crosswalk at Bartlett. He was moving “really fast”. It was about 2:45 to 3:00pm. There was no one else around. [ 13 ] The man, says Lena, wore a straw hat the colour of dry grass. But for his eyes, his face was covered with a piece of cloth. His hair did not extend below his ears. He wore grey jogging pants and a short-sleeve jersey. The bicycle, said Lena, was not like “a big mountain bike”; it had dark handles and what she described as thin wheels. Lena could not recall the colour of the bike. She was focused on the speed with which it approached her. [ 14 ] The man rode up onto the sidewalk.

He stopped his bike as he grabbed Lena’s purse with his left hand and pulled its strap off her shoulder. The cloth covering his face fell, unmasking the bicyclist as he bent over to seize the purse. Lena immediately recognized Jerry. He had recently completed some repairs at her home. She was shocked. [ 15 ] The man – the defendant Jerry Pavao, in Lena’s evidence – punched or pushed Lena’s left shoulder with sufficient force that she fell against the wall of an adjacent school and then onto the sidewalk, bruising her knee and shoulder.

The man biked a short distance west on Hallam, dropped the purse and then biked further west towards Dufferin. Lena recalls seeing a black man circling on a bike at the intersection of Hallam and Gladstone, the next street west of Bartlett. He appeared to be summoning Jerry. The two biked north together. [ 16 ] From the time Lena first saw the man on the bike to the time he dropped the purse on the sidewalk was “less than three minutes”. She described the man as having a black and grey beard of about two inches length. Although “maybe not” as long as two inches, Jerry, says Lena, always had a similar beard.

She pointed out several distinctions when asked to compare the defendant Jerry Pavao in court with the man who stole her money more than a year earlier: the defendant was better groomed; he had shorter hair; and while he was clearly unshaven, his beard was shorter than that of the man who mugged her. She is confident the defendant was her assailant. [ 17 ] Lena retrieved her purse from the sidewalk. The only thing missing was the envelope containing her money. She was crying. She called 911. Then she called her adult children.

Her daughter quickly responded and drove her to a nearby hospital where she spent approximately four hours being treated for a bruised knee and shoulder. Her attendance and trauma were confirmed by hospital records. Several weeks of physiotherapy followed. At their request, she pointed out the defendant’s home to the police the next day. (ii) The Complainant’s Son [ 18 ] Lena’s son, Shawn Deonarine, is 36 and employed as a discrimination and harassment officer by the Canada Revenue Service. He maintained a close and positive relationship with his mother.

Shawn confirmed that Lena was “completely independent – physically and cognitively”. He allowed that she had experienced “memory issues” after a fall in early 2017, but her memory recovered and she resumed independent decision-making within a few weeks. There had been no recurrences of impaired memory. [ 19 ] Shawn knew the defendant. He had had seen him working at his mother’s home sometime before 2010 and had subsequently hired him to work on his own home. (iii) The Defendant’s Arrest [ 20 ] TPS Constable Doug Leonard arrested Jerry at his mother’s home on July 8 th .

The defendant was then wearing a hat that, as it appears in the relevant photo exhibits, can be fairly described as unstructured and “dry-grass”- or straw-coloured. While its rim appears woven, the hat is made of a cloth fabric rather than straw. Its shape is similar to a style traditionally associated with fishermen or, in the defendant’s words, a “Gilligan’s Island” hat. Photos of a bicycle located in the defendant’s mother’s backyard were also entered into evidence. The bike is a Raleigh with dark handlebars.

It appears blue in the photographs. (The defendant, who acknowledged ownership of the bike, described its colour as “purplish” in his evidence.) The bike’s tires, to my somewhat experienced but inexpert eye, appear of conventional width – neither thick or thin. (The defendant testified the tires were “thick”.) (

c) Police Evidence Bearing on Alibi (

i) Introduction [ 21 ] If somewhat belatedly, the defendant notified the Crown of a potential alibi. I am not privy to the contents of the notice, but it prompted the Crown to call evidence pertaining to police patrols in the vicinity of the Galleria Mall on the afternoon of July 7, 2017. It is unclear to me whether this evidence was called to preemptively rebut the proposed alibi or solely at the request of the defence. [ 22 ] The evidence at issue has two components. The first draws upon routine police activity data maintained by the TPS.

The second is the testimony of a police officer who had contact with the defendant on the afternoon of July 7th. While the evidence assembled from the TPS data is arguably hearsay, the defence takes no objection to its substantive admission. Put otherwise, the evidence tendered under the first head is admitted effectively by way of stipulation. (ii) The Professional Standards Data [ 23 ] Lisa Herron is a civilian employee of the TPS. She works as an analyst in the Information Security Unit of the Service’s Professional Standards Division. Ms. Herron’s duties include the protection of police files.

Among the data bases to which she has access

are those that record police queries and responses made through the mobile terminals installed in TPS cruisers. With some exceptions, the TPS also maintains a detailed, time-stamped record of the whereabouts of its motorized fleet and the names of the police personnel assigned to each vehicle. Using GPS technology, each cruiser routinely transmits information respecting its exact position every 125 metres, if in motion, and every four minutes, if stationary.

These precise readings can then be used to plot the direction, speed and motion, if any, of any police vehicle on a map of the city and as well, as in the instant case, visually recreate the vehicle’s routing through animation. [ 24 ] In response to a series of requests from the officer in charge of the case, Ms. Herron determined that there had been no police queries respecting the defendant between 1:00pm and 3:00pm on July 7, 2017 and, other than a single parking enforcement vehicle, no mobile police units had been in the area of the Galleria Mall in that same timeframe.

Expanding the search window to the entire calendar date, she located three mobile-terminal queries concerning the defendant, all made close to 6:06pm and in the vicinity of the Galleria Mall. The first query was in regard to “Jerry Pavao” and included his date of birth. The second was a CPIC query for Mr. Pavao by the same 11 Division officers, for which a response, including a mug shot, was provided. And the final query was for any “occurrences” involving Mr. Pavao. There were two officers in the police cruiser from which the three queries were made, one of whom was PC Daniel Morel.

At the time the officers were “available”, or on patrol, as opposed to responding to a dispatch. Ms. Herron agreed that her division would have no record of a TPS officer’s interaction with a citizen if the officer had not made a relevant query. (iii) The Police Stop of the Defendant [ 25 ] On the afternoon of July 7, 2017, PC Daniel Morel was on mobile patrol in an area of Toronto that includes the Galleria Mall. He and his escort conducted a “subject stop” in the area of the Mall’s parking lot, which extends south of the Mall to Lappin Avenue.

DC Morel kept no notes of the incident but he had an independent recollection, reinforced by the case manager contacting him a few weeks after the incident to advise him that the person he had stopped was alleged to have been involved in a theft or robbery. [ 26 ] Morel recalled stopping the defendant, although he could not recall the exact time. He had initiated the stop due to a minor bylaw or HTA infraction involving a bicycle the defendant was riding.

As is his universal practice with those he stops, Morel requested identification documents from the defendant and then did a quick check on CPIC through the mobile terminal in his cruiser. If the TPS returned a photo of the person about whom he made a query (as here documented in the TPS query data records), he would compare the photo with the person to confirm his or her identity. Having completed his inquiry, he cautioned the defendant and released him. The entire interaction lasted between two and five minutes. No physical search was involved. Indeed, Morel never got out of his vehicle. (

d) Evidence Called by the Defence (

i) The Defendant [ 27 ] Jerry Pavao was 48 when he testified. He lived with mother, then 81, on Bartlett Avenue, a couple of blocks from Lena’s home on Hallam. He had spent his entire life in the same neighbourhood. Jerry’s mother was in poor health and Jerry spent his days caring for her, including accompanying her by taxi to appointments and shopping. He used a mountain bike to get around. His routine income was the $20 his mother gave him every day to take care of his personal needs, like cigarettes, beer and wine.

He supplemented this stipend working as a handyman and on some renovation and construction jobs in the area. Occasionally he borrowed money to get by (including once borrowing $20 from Lena), which he always paid back. He had continuing back problems due to a serious car accident he suffered in 1996, and smoked marijuana to manage the pain. Jerry drinks beer and, at home, about four or five glasses of wine a day – a moderate consumption pattern in his estimation.

He denied the suggestion that he is an alcoholic. [ 28 ] Jerry testified to having a variety of baseball hats and the fishing, or “Gilligan’s Island”, hat he wore when arrested by the police. He wore the same fishing hat on July 7, 2017. He denied ever having a straw hat.

Gerry always sported what he described as a “¼-inch” beard. (While there is no evidence as to the measured length of the defendant’s facial hair, I estimate his beard was at least ½- inch in length throughout the trial and can be fairly described as a scruffy mix of light grey and darker facial hair.) [ 29 ] Jerry had been friends with Gianina and Peter Magaletta, her older brother, for 30 years. Until about a year before the incident, the Magaletta family lived next door to Lena. Jerry had occasionally worked on construction jobs with Peter, including renovations to the outside of Lena’s home.

He had also assembled a computer desk for her. He denied that Lena had asked him to work on the siding repairs to her home. [ 30 ] Jerry testified that he and Lena had been “friends”. They had never had an argument until a week or so before July 7, 2017. In his recall, Lena advanced him $100 for a cement parging job at her home. When rain prevented him from fulfilling the contract, Lena came by his mother’s home, cancelling the contract and demanding he return the money. She later threatened to call his mother when he delayed repayment.

He told Lena that he would pay her back when he got the money but to stop bugging him, and, ultimately, a few days before July 7 th , he told her to “fuck off”. He had not, he says, repaid the $100 by that day. [ 31 ] Jerry testified he did not leave his home on July 7 th until 3pm. When interviewed by the police two days after his arrest, he said he could not recall when he left his home on July 7 th other than that it was after noon.

He explained that he thought more about the exact time after he left the police station and recalled that it was immediately after he had turned on his mother’s favourite show, “Days of Our Lives”, for her – thus fixing the 3pm time of his departure. [ 32 ] Jerry left his house to visit his friend Gianina Magaletta, who lived on Lappin Avenue, just south of the Galleria Mall, about a three-minute direct bike ride from his home. He was going to help her install some paving stones. He saw Lena at a distance as he biked north on Bartlett. She was walking on the north side of Hallam.

Because of their earlier financial disagreement, he biked west on the south side of the street to avoid her. This, he says, is the only time he saw Lena that day.

[ 33 ] As he does almost every day, Jerry stopped at the LCBO at the Galleria Mall to buy a can of beer. Although his mom gave him, in effect, a $20 allowance every day, she did not do so on July 7 th . He paid for the beer with the remaining change in his pocket. He then continued to his friend Gianina’s home on Lappin. He drank the beer and worked for about 20 minutes. [ 34 ] The weather appeared threatening, so he biked back to the liquor store to buy more beer before it began to rain. He was stopped by the police before he got to the LCBO. He identified one of the officers as PC Morel.

The police ran Jerry’s identification and released him after about five minutes. In Jerry’s estimation, the police stop occurred at about 3:40pm. It was his only contact with the police that day. [ 35 ] He then bought beer with credit vouchers Gianina had given him and returned to her house before it began raining. They drank beer together until he biked home around 7 or 8pm. As Jerry does not wear a watch, he allowed that his timing for the events on July 7 th could be to off by 10 to 15 minutes.

Jerry did not mention either Gianina or being stopped by the police during the course of his video- taped interview at 14 Division on July 9 th . He testified that he later recalled having visited Gianina and so advised the police. [ 36 ] Jerry volunteered that he had “never robbed anyone in his life”. It was “impossible”, he added, to simultaneously push someone down and grab her purse.

It was also impossible, he explained, for him to have done what Lena alleged given the severity of his back injuries. (ii) The Defendant’s Friend: Gianina Magaletta [ 37 ] Gianina Magaletta worked as student escort to the Toronto Island school. She had lived at 178 Lappin with her friend Margaret for the past seven years. She grew up at her parents’ home on Hallam, next door to the home of Lena and her family. Her brother Peter continued to live in her childhood home until a year or so before the incident. She had known Gerry Pavao all her life. They had a good relationship.

Jerry was a handyman and he would visit Gianina and help out around her house. She had been to Jerry’s home and observed him care for his mother. [ 38 ] Gianina was not working for the few weeks in the summer of 2017 when the camp at the Toronto Island school was cancelled due to flooding. Jerry had been coming over every day to help her install patio stones. The stones were made of concrete and were approximately two-and-a-half by one-and-a-half feet in size. Gianina, an admittedly “fairly strong” woman, laid the stones with Jerry. [ 39 ] Jerry arrived between 3:00 and 3:30pm on July 7 th .

Gianina gave him a couple of gift cards to buy beer and he left on his bike for the LCBO at the Galleria Mall between 3:30 and 4:00pm. The LCBO is very close to Gianina’s home. Jerry was gone for about 10 to 15 minutes, returning with the beer just before it began raining. [ 40 ] Gianina identified the bike in the police photo taken in Jerry’s backyard as the bike he was riding on the 7 th . Looking at another police photo, she recognized the hat Jerry was wearing that day – a beige- or butter-coloured “Gilligan” fishing hat that Jerry wore nearly all the time, including July 7 th .

Although he sometimes wore a baseball hat, Gianina had never seen Jerry with a straw hat. As always, Jerry sported a couple of days growth of beard. She had never seen him with a two-inch beard. C. ANALYSIS (

a) Introduction [ 41 ] The complainant’s purse was stolen. She was assaulted in the course of the theft and suffered some physical harm as a result. Her assailant was masked when he first approached and made contact with her. The same person perpetrated all three offences. These matters are not in dispute. [ 42 ] What is in dispute is whether, as the Crown alleges, the defendant was the assailant. Proceeding, then, on the basis that the alleged crimes occurred, the evidence gives rise to three lines of consideration: First, the complainant fabricated her identification of the defendant as her assailant.

Second, due to the taint of animus and/or other factors impacting on the reliability of her identification, the complainant is mistaken. And third, the defendant is, in fact, guilty of the three offences with which he is charged. To be clear, the defendant has no legal obligation to subvert confidence in the honesty of the complainant or the reliability of her identification evidence. He testified and denied any participation in the impugned events.

No matter how compelling the complainant’s testimony, the defendant cannot be convicted unless I accept her evidence, reject the defendant’s, and find no reasonable purchase elsewhere for doubt. (

b) Relevant Legal Considerations (

i) Introduction [ 43 ] The prosecution’s case rests primarily on the probative force of the complainant’s identification of the defendant as her assailant. The defendant testified and denied any participation in the offences. Again, any reasonable doubt, from whatever source, compels the defendant’s acquittal. The complainant, in essence, says I have known the defendant for many years and recognize him as the man who stole my purse. The, defendant, in turn, says he was somewhere else at the time the complainant was attacked.

A proper adjudication commands close attention to the content and consistency of the complainant’s identification evidence, along with any fragilities that may impair reliance on her account. The defendant’s narrative is subject to equally close scrutiny. Credibility assessment is thus an essential part of this review.

(ii) Alibi Timeline [44] To the degree that the defence amount to one of alibi – that is, the claim that the defendant was elsewhere at the time theoffences occurred – and that evidence was called in support of this defence, a timeline will prove helpful. [45] As earlier canvassed, the complainant’s evidence that she walked to a nearby branch of her bank on July 7, 2017 to withdrawcash to pay a contractor is unchallenged. The exact time of the withdrawal – 2:21pm – is also undisputed.

Although the complainantestimates that it typically takes her about 12 minutes to traverse the distance between the bank and home, she did not resist defencecounsel’s suggestion that it might sometimes take a few minutes longer. In any event, she estimates that she was “mugged” between 2:45and, at latest, 3:00pm – approximately 25 to 40 minutes after she completed her bank withdrawal. [46] In my view, the value of the defendant’s alibi is exclusively dependent on his own credibility or the doubt it may evoke. Thecomplainant testified she was victimized no later than 3:00pm.

The defence, in the course of the complainant’s cross-examination, neverchallenged this assertion or suggested a longer or later window of opportunity. The defendant tendered an alibi for this aperture: on hisevidence, he was caring for his mother until just after 3:00pm, when he first left his house, and by which time the assault on thecomplainant would have been completed. On this timeline, there is no evidence other than that of the defendant that he was elsewherewhen the complainant was mugged.

If, in fact, the assault occurred at or before 3:00pm, Gianina’s recall of his being with her for muchof the afternoon after 3:00pm does not avail the defendant or support his alibi. [47] However, the defendant’s evidence contradicts that of the complainant as to the time she was assaulted. He says he propped hismother in front of her favourite television show at 3:00pm and then left the house for the first time that day. As he biked to the home ofhis friend Gianina, he saw (and avoided contact with) the complainant who was walking near her home.

On the defendant’s account,whatever trauma befell the complainant could not have occurred until at least a couple of minutes after he biked by her – some fewminutes, at least, after 3:00pm. The defendant does not testify as to his arrival time at Gianina’s home, but it was sometime after he sayshe stopped to buy a beer at the LCBO at the Galleria Mall. He does afford a time, about 3:40pm, to mark the occasion when he says hewas stopped by the police on his return trip to the same LCBO, and that he left Gianina’s on this excursion approximately 20 minutesafter he first arrived at her home.

That would fix his arrival at Gianina’s to around 3:15 to 3:20pm – consistent with Gianina’s estimate ofhis arrival between 3:00 and 3:30pm and with what may be reasonably inferred from the defendant’s own description of the time he lefthis mother’s, his route, and a quick intermediate stop to buy a beer.

Put otherwise, Gianina’s testimony could help confirm thedefendant’s exculpatory account if the complainant’s trauma was not sustained until some minutes after 3:00pm. [48] Either way, the defendant’s claim that he was briefly detained by the police at 3:40pm while on his return trip from Gianina’sto the LCBO cannot assist him. I have no difficulty accepting the defendant’s assertion that he had a single encounter with the police thatday and, in particular, with PC Morel. Indeed, the officer’s own testimony, which I equally accept, is to like effect.

What I do not acceptis the defendant’s suggestion that their meeting occurred at 3:40pm. I find, rather, that the defendant’s brief detention was more than twohours later and, accordingly, cannot avail him in regard to his claim that he was elsewhere when the complainant was assaulted and herpurse stolen. [49] As urged by the defence, the TPS Professional Standards data was admitted for its substantive utility.

That GPS portions of thisrecord make clear that, on July 7, 2017, the cruiser driven by PC Morel first entered the Galleria Mall area at approximately 6:05pm andthat Morel’s sole encounter with the defendant immediately followed. Their exchange is confirmed by Morel’s testimony and the precisetiming of the event is confirmed by the police record of the officer’s queries during his questioning of the defendant.

The defendant’sfaulty recall of the timing of this encounter raises unsettling questions to which I later return. (iii) Identification Evidence [50] Erroneous identification evidence is a notorious cradle of wrongful convictions. (See, for example, the cautionary words of theCourt of Appeal in R. v. Quercia (1990), (ON CA), 60 C.C.C. (3d) 380, at para. 5, and in R. v. Hanemaayer (2008),2008 ONCA 580 , 234 C.C.C. (3d) 3, at para. 29.) The concerns associated with visual identification are not lessened by virtueof this being a judge-alone trial as opposed to one in which the ultimate trier is a jury.

The dangers attaching to such evidence requireconstant attention to time-honoured cautions and their rationales. Two of many helpful surveys of the frailties and appropriate instructions – instructions with which I have refamiliarized myself – are those set out in R. v. Whitman, 2005 BCSC 1574, 35 C.R. (6th) 12, at paras. 37-45 and R. v. Gonsalves, (ON SC), [2008] OJ No. 2711, 56 C.R. (6th) 379, at paras. 35-53.

I remain,as well, mindful that any generic canvass of the risks must be complimented by particularization of the case-specific concerns and thefactual crucible in which they arise. [51] Although not exclusively so, miscarriages of justice attributable to eye-witness misidentification generally occur in casesinvolving persons of whom the witness has had no prior contact or of whom he or she is only vaguely or slightly familiar. The “fleetingglance” of a stranger from the window of a moving bus affords one extreme, but not unheard of, illustration of a forensically hazardousidentification.

History has painfully demonstrated that even multiple eye-witnesses can identify “the wrong person”. Factors impingingon opportunity, exposure, attention, lighting, eyesight, distractions, perception, recall and post-incident identification protocols can allcompromise the probative value of eye-witness identification. Each of the elements in this partial catalogue of considerations impact onthe reliability of a witness’ identification. As jurists have long observed, even honest, confident and convincing witnesses may still bemistaken. [52] The instant case attracts a different order of concern.

The complainant and defendant have known each other for decades. Theylive in the same close neighbourhood. They have been to each other’s homes on multiple occasions. One, the defendant, worked for theother, the complainant, in the weeks prior to the incident. Put otherwise, Jerry Pavao and Lena Deonarine were familiars, not strangers.The complainant did not merely form and recall an impression of her assailant and later purport to identify the defendant as that person.

Rather, she immediately recognized her assailant as the defendant, someone she knew well. While reliability remains a concern, it is therisk of dishonesty, of a false allegation motivated by spite or vindictiveness, that, in defence counsel’s submission, principally jeopardizesthe integrity of the complainant’s identification evidence. (iv) Credibility [53] The complainant and defendant both testified.

That, and the defence position, bring into sharp focus the issue of credibility.While not a classic he-say/she-say scenario, the proper resolution of this case mandates an assessment of the two fundamentaldimensions of credibility: honesty and reliability. I may, with proper reason, accept all, some or none of any witness’s testimony. I assesseach witness’ testimony in the context of all of the evidence called at trial. I of course apply the settled doctrine enunciated in R. v.

W.(D.), , [1991] 1 S.C.R. 742 to the relationship between credibility and reasonable doubt, while reminding myself thatlogically inherent in the W.(D.) formulation is the instruction that I must acquit if I am unable to decide which of the two protagonists tobelieve. (

c) Applying the Law [54] I begin with the complainant. Her evidence, in my view, was straightforward, lucid and consistent throughout direct and cross-examination. She was forthcoming as to her earlier medical trauma and, in particular, about the loss of memory she suffered earlier thesame year as the incident that brought her to court. There was no indication of medical compromise when she testified. She was coherentand responsive. Her demeanour, while never dispositive of a witness’ creditworthiness, was balanced and situationally appropriate. Shedid not appear emotional or vindictive.

While the complainant expressed some fear of the defendant inspired by occasional sightings ofhim in the neighbourhood over the intervening months, this was mixed by what I read as a sense of regret stemming from her ownmisjudgment and loss of someone she had come to trust. [55] In sum, there is nothing in the content or delivery of the complainant’s account that calls into question her honesty – that is, thesincerity of her conviction that the defendant was her assailant.

She did not, in my view, fabricate, dissemble, seek to mislead or wasotherwise reckless with what she believed to be the truth. [56] I appreciate that the evidence is contradictory as to whether there was an outstanding dispute regarding a $100 advance to thedefendant at the time the complainant was mugged. She says the money, after some effort on her part, had been repaid. The defendantsays he had not returned the money and, further, that he and the complainant had had an escalating verbal dispute about the obligation. Ido not know who is telling the truth about the $100.

However, I am satisfied that it makes no difference to my assessment of thecomplainant’s credibility. To be clear, whether or not the advance had been recovered I am convinced that any dispute, no matter howheated, regarding the $100 had no impact on the complainant’s honest identification of the defendant as the man who mugged her on July 7th. [57] Of course, that determination of the defendant’s honesty hardly ends any W.(D.)-informed analysis. There is the defendant’ssworn narrative to carefully consider, a matter to which I soon turn.

And before leaving the complainant’s account, there are also somereliability considerations to address – in particular, certain arguably material discrepancies between the complainant’s testimonialdescription of her assailant and other evidence bearing on the same three features said to thereby distinguish the defendant from the manwho assaulted her: the assailant’s bike, beard and hat. [58] As to the first: The defendant testified that, at the time, he rode a mountain bike with thick tires. The complainant painted asomewhat different picture of her assailant’s bike.

She said the bike had “thin” wheels and, to repeat her words, that it was not like “a bigmountain bike”. Defence counsel did not ask the complainant what she meant by “thin” or “big”. He did not show ask her to compare hermemory of the event with a photograph of the bike found in the backyard of the defendant’s mother’s home and which the defendanttestified was his.

As I have earlier observed, the width of the bike’s tires, as captured in the photographic exhibits, looks quiteconventional to me: neither “thin” (as I have seen on professional racing bikes) or “thick” (as I have seen on all-terrain bicycles).Similarly, while the photographed bicycle is patently not an urban cruiser, it does not appear to my, again, inexpert eye as a “big”mountain bike of the kind that I imagine one might take on a dirt- or off-road expedition. To be clear, I am not drawing on my limitedbiking experience to suggest that I possess any advanced or discerning knowledge in this arena.

My point, rather, is that absent any cross-interrogation of the complainant’s knowledge of such matters or other conspicuous reason to question her recall of the offender’s bike’sdesign or hardware, I cannot identify any material reason to decide other than that the complainant has fairly and honestly described thebicycle with which she was confronted on the afternoon of July 7, 2017.

She may not have drawn the same fine distinctions as thedefendant, but I find no basis to conclude, nor do I, that she was describing a different bike than the one he testified to riding that day.The complainant could not recall the colour of her assailant’s bike. Had she testified that the bike was a bright yellow when thedefendant’s bike was, as here, a dark blue, there might well be reason for concern. As the evidence lies, there is none. [59] The contrast between the complainant’s description of her assailant’s beard and that displayed by the defendant is of equallysmall moment.

The complainant says the defendant had a black and grey beard. He does. She estimated it was about two inches inlength, although it was “maybe not” that long at other times. The defendant’s evidence, and that of his friend Gianina, is that he alwaysmaintained a shorter beard, like that he exhibited in court. No exact calculation of its length was tendered. As earlier noted, thedefendant’s beard appears to me to extend about a half-inch from his face. It is scruffy and of uneven length. His beard is not merelystubble or the hirsute shadow of a failure to shave for a few days.

It is a short, unshorn beard – certainly consistent with, if not meetingthe precise dimensions of that described by the complainant. [60] The complainant says her assailant wore a straw hat the colour of dry grass. The defendant says he wore a tan-coloured, clothfishing hat that day, and that he has never owned a straw hat. His millinery bias is confirmed by his friend Gianina. There is, to my mind,no difference of substance between the colour descriptors “tan” and “dry-grass”; each accurately describes the colouration of the hat in

the photograph of that worn by the defendant on the day he was arrested. It is clear from the same photograph that the hat at issue ismade of a cloth fabric rather than straw although, as I have earlier noted, its brim is woven in what can be readily characterized as astraw-like fashion. As with the bike, defence counsel did not ask the complainant to review a photograph of the defendant’s hat, nor was she asked to testify as to the shape of the defendant’s head-covering.

I accept the defendant’s evidence as to the hat he wore on July 7th.Assuming the defendant was the mugger, the complainant incorrectly described his hat as “straw”. Given the unanticipated, dynamic andnear-momentary nature of the complainant’s exchange with her assailant, I assign very little weight to the inconsistency between herrecall of the fabric from which the hat was made and that actually worn by the defendant that day. [61] As Hill J. said in R. v.

Gonsalves, supra, at para. 49: The significance of any discrepancy is essentially a matter of fact in considering the totality of the circumstances of the identification: R.v. Savoury and Shaw (2005), (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.) at para. 13; R. v. Langille (1990), (ON CA), 59 C.C.C. (3d) 544 (Ont. C.A.) at para. 21-6. The discrepancies the defence here seeks to exploit are, in my view, of inconsequential import. The identification evidence is founded ona claim of recognition of a very familiar acquaintance, not the reliability of a witness’ limited perception and processed recollection of astranger.

The defence’s alternative position (and implicit at that) is, in essence, that if the complainant did not consciously misidentifythe defendant as her assailant then her identification evidence was prejudicially tainted by an unconscious animus disclosed the factualdiscrepancies.

While mindful that the defence bears neither a legal or evidentiary burden, there is, in my view, no evidence of eithertheory sufficient to cast any doubt on the integrity of the complainant’s identification of the defendant. [62] The defendant’s account of his perambulations on July 7th is, for the most part, an exculpatory denial of the complainant’sallegation – or, in the legal vernacular, an alibi. Wherever it was the complainant was mugged, he wasn’t there. He did not leave hismother’s house until a little after 3:00pm.

He then biked directly to the LCBO at the Galleria Mall – about a three-minute ride away –and then to his friend Gianina’s home where he arrived at about 3:15 or 3:20pm. But for a return trip to the LCBO to replenish supplies,he stayed at Gianina’s until it began to grow dark. His account in cross-examination hewed to the same geographical and sequentialtrajectory. [63] There are, however, factual impediments to wholly accepting the defendant’s narrative. The complainant testified that she wasassaulted between 2:45 and, at latest, 3:00pm. I accept her evidence in this regard.

It is rationally consistent with the time-stamp on thewithdrawal slip and the walking distance between her bank branch and the point near her home where she says she was mugged. Theupper boundary of the complainant’s estimated range was also unchallenged in cross-examination – either by way of suggestedinterruptions on her return home or, if more baldly, a later ETA.

If, then, the complainant was mugged no later than 3:00pm, thedefendant’s only alibi is that he was then at his mother’s and the only evidence in its support is that of the defendant himself. [64] As said earlier, there is no legal necessity for confirmation of an alibi. What is at least curious, however, is the nature of thedefendant’s effort to call evidence in aid of one – first through his friend Gianina and, second, through his claim that he was stopped andquestioned by the police in the area of the Galleria Mall at about 3:40pm.

This makes sense only if, as the defendant claims, he passedthe complainant on his bike a few minutes after 3:00pm and the incident during which she was assaulted occurred sometime thereafter. [65] Even then, however, there are uncomfortable hitches in the defendant’s account. First, he was interviewed by the police forover an hour some two days after the incident. He testified his memory was fresher then than at trial, yet he told the police he could notrecall when he left his home that day other than that it was after noon.

He also neglected to mention visiting his friend Gianina during thecourse of the videotaped interview, although he says he did tell the police about Gianina when he later recalled this. He also said nothingabout being stopped by the police in the area of the Galleria Mall.

Most curious is the complainant’s insistence that his exchange withthe police – indeed, with the Crown witness PC Morel – occurred at approximately 3:40pm (thus arguably confirming the alibi premisedon his own time-line) when in fact (as the TPS data establishes) this encounter did not occur until almost two and a half hours later.Further, if (as I find) he was not confronted by the police until a little after 6:00pm, his evidence that he left Gianina’s to buy more beerabout twenty minutes after he initially arrived at her home is reduced to nonsense – unless, of course, he did not first get to Gianina’suntil sometime well after 5:00pm, an explanation that effectively destroys the alibi he testimonially proffered. [66] There are further suspect elements of the defendant’s account.

He claims it “impossible” to simultaneously push someonedown while grabbing her purse. I fail to see any physical impossibility, particularly as the complainant testified to her assailant stoppinghis bike as he perpetrated the theft. I find his assertion that the severity of his back injuries rendered it equally impossible for him tocommit the offences even more fanciful. The complainant, on his own evidence, constantly rode a bike, worked on construction andrenovation projects, including roof-work, and installed heavy patio stones.

The level of exertion the complainant attributed to the personwho stole her purse was not, as I comprehend the allegations, beyond the defendant’s physical capacity. [67] There are also several diverse pieces of evidence that lend circumstantial credence to the complainant’s account. Irrespective ofthe diameter of its tires and design of its frame, the man who attacked the complainant was on a bicycle. The defendant, again on hisown evidence, goes everywhere on a bicycle. The assailant wore a face-covering, as would anyone who the complainant might otherwiserecognize.

The defendant knew the complainant paid her contractors in cash and (as I infer from his evidence) knew that she handled herown banking. The defendant was financially pressed. He survived on $20-a-day handouts from his mother, as occasionally supplemented by odd jobs as a handyman. His mother gave him no money on July 7th. He was a regular, indeed reasonably heavy, daily consumer ofbeer, wine and marijuana. He used all the loose change in his possession to buy a single beer at the LCBO.

He was resentful of thecomplainant, angry that she had caused him embarrassment with his mother, and resented, on his account, her demands that heimmediately repay her. On their own, these circumstances are inadequate to support an inference of guilt. They do, however, uniformlybuttress the Crown theory and the complainant’s allegations by affording evidence of motive, opportunity awareness, and the risk ofrecognition. [68] Even in cases founded on to the identification of strangers, there are occasions when a trier-of-fact is justified in convicting onthe evidence of single eye-witness: Pelletier v.

The Queen, , [1996] 3 S.C.R. 601, at 601 (aff’g. [1995] A.Q. No. 1129(C.A.); The Queen v. Nikolovski, , 111 C.C.C. (3d) 403 (S.C.C.), at 413. The quality of the identification evidence here

is of a different order, that of recognition. I accept the complainant’s testimony: she was mugged by the defendant who she recognizedduring the course of being mugged. I do not believe the defendant’s denials, nor do they leave me with any reasonable doubt as tovalidity of her identification evidence. My acceptance of the contradictory account (here, the complainant’s incriminatory testimony)itself serves as a proper basis for rejecting that advanced by the defendant: see R. v. D. (J.J.R.), , 215 C.C.C. (3d) 252(Ont. C.A.), at para. 53; R. v.

M. (R.E.), 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.), at para. 66; and R. v. Thomas, 2012 ONSC 6653, atpara. 26. D. CONCLUSION [69] For the reasons set out, I find the defendant guilty of the three counts on which he was arraigned: having his face masked withintent to commit an indictable offence, assault causing bodily harm, and theft. Released on October 30, 2018 Justice Melvyn Green