R. v. M.(D.), 2014 ONCJ 469

WARNING The court hearing this matter directs that the following notice should 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. Citation: R. v. M.(D.) , 2014 ONCJ 469 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — D.M. , A YOUNG PERSON Before Justice Borenstein Heard on July 23, 2014 Reasons for Judgment released on September 10, 2014 Mr. C. Coughlin ........................................................................................................ for the Crown Mr. T. Shoniker ................................................................................... counsel for the accused D.M.

BORENSTEIN J.: [ 1 ] The accused D.M. is charged with robbery and possession of stolen property. The only issue is identification. No defence was called. The complainant is S.V., but was referred to as S..

OVERVIEW [ 2 ] On June 19, 2013, 17 year S. was riding his bicycle. Two of his friends were a short distance behind. S. rounded a corner near a park. In that park were a young male and female. That male is allegedly the accused. The male called S. over. When S. approached, the male took a swing at S. knocking him off his bicycle. The male then assaulted S. and stole his IPhone. S.’s friends arrived and pulled the male off S.. The male and female left carrying a yellow beach blanket and red purse and S.’s. S. and his friends followed the male and female pleading with the male to return the phone.

S. even offered to buy it back but the male refused saying it was “his” phone now. The phone was in a white IPhone case that had a picture of a Hindu God on the case. The female told S. that the male had “anger issues” and she would try to get the phone back. S. and his friends followed the suspect to a nearby apartment building. They also called 911. The male and female entered a side entrance to the building. S. followed them into the building.

Video surveillance captured a male and female entering the building first, carrying a yellow blanket and red purse, followed by S.. [ 3 ] S. testified that the male threatened him in the stairwell if he kept following him. The male and female then walked up a stairwell. S. followed from a safe distance and peered out the second floor hallway door. He saw them enter the second to last apartment door on the right. S. left the building and immediately saw police officers.

He told them what happened and he and the officers went into the security room and watched the surveillance footage of their entry into the building. The police believed the male suspect was in apartment 214. They attended apartment 214 and arrested the accused who was the lone male in that apartment. A female was also in the apartment. The police escorted D.M. out of the building. S. and one of his friends were standing in front of the building when the accused was escorted out of the building in handcuffs. They testified that the male escorted out of the building was the suspect who had just robbed S..

They had never seen that male before that day. No line-up or other identification procedure was done in this case. [ 4 ] None of the witnesses were asked to identify the accused in dock other than one witness in re-examination and I discount that reply evidence entirely for reasons I will give shortly. [ 5 ] Police searched apartment 214 several hours later. Two officers testified that the did not locate the phone but found a white iPhone case in a garbage can and the case had a picture of a Hindu God.

They testified that they saw the yellow blanket that matched the one seen on the video. [ 6 ] No blanket or IPhone case was shown to S. or presented in Court. Nor was a photo of those objects. There was no evidence that apartment 214, the apartment the accused was arrested in, was the second to last apartment on the right. [ 7 ] No defence was called at this trial. [ 8 ] The only issue in this trial is identification.

Despite the cross examination suggesting that S. may have started a fight with the male and the male may have accidentally taken S.’s iPhone during the fight, there is no doubt that S. was robbed. [ 9 ] I found S. and his two friends credible and reliable. [ 10 ] Identification is the only issue in this case. If there is a reasonable doubt that it was D.M. who committed this robbery, he will be acquitted. [ 11 ] Let me turn to the evidence of S. and his friends focussing on the robbery and the events thereafter.

Evidence of the complainant, S.V. [ 12 ] S. was 17 years old and in Grade 12 by the time of trial. [ 13 ] When the male in the park called over to S., S. cycled over. The male asked S. what school he was going to and, as he did, he reached into S.’s pant’s pocket. S. grabbed the male’s arm and asked what he was doing. The male then took a swing at S., missing him, but this caused S. to fall off his bike. He now lay on the ground with his legs straddling the bicycle. The male punched S. repeatedly in the head and took his iPhone which was contained in a white case and had a photo of a Hindu God on the case.

S. called out to his friend A.S. to help. A.S. arrived quickly. S. left his bike and began following the male and female asking for his phone back. He offered to pay for the phone. The female said the male had anger issues and that S. should leave him alone and she would get his phone back. S. kept following but the male said: “that’s too bad, this is my phone now”. S. followed the male and female into the stairwell but the male warned him that he would hurt him if he followed any further. The female said – don’t worry, I’ll get it back for you. S. did not believe her and followed her to the second floor.

He opened the door to the hallway a crack and saw the male and female open the door of the second to last apartment on the right. The male was carrying a yellow blanket and the female had a purse. [ 14 ] S. exited the building. When he did, the police were in front of the building. [ 15 ] S. spoke to the officers. He and several officers then entered the building’s security room and watched the footage of S. and the male and female entering the building. Two officers then left the room security room. [ 16 ] The video was played in court.

S. identified himself and the male and female carrying a yellow blanket and red purse as the individuals he encountered on June 19 th . [ 17 ] S. testified that the he had never seen the suspect previously whom he described as male, black, approximately five foot eight, 16-18 years old, wearing red and black shorts and a red T -shirt with an afro. [ 18 ] He was not asked to identify the accused in Court. [ 19 ] In cross-examination, it was repeatedly suggested to S. that he was the aggressor; that he told the male and female that

they were in “his” park; that he struck the male first and that the suspect simply scooped up the yellow blanket after a consensual fight and that is when he may have inadvertently picked up the S.’s cell phone which must have dropped during the fight. S. rejected those suggestions resolutely. He was also consistent and detailed in his material evidence. J.H. [ 20 ] 17-year-old J.H. testified that he and A.S. heard S. screaming for A.S. to help. [ 21 ] They quickly turned the corner and saw a male hitting and kicking S.. In his police statement, he only mentioned the male punching S., not kicking him.

A.S. pulled the male off S.. S. yelled that the male had his IPhone and asked for help to get it back. The female said the male had anger issues, to leave the male alone and she would get the phone back. Someone threatened to call the police and the suspect replied: “yeah, call the police, see what I do”. The male and female then left. J.H., A.S. and S. followed. S. asked for the phone back and offered to buy it back. The male jumped a fence. S. followed. J.H. called 911. He and A.S. walked through a parking lot to the apartment building and waited outside.

He did not see the suspect again until the police brought him out of the building in handcuffs. This was only 5-7 minutes after the suspect jumped the fence. No line-up or other identification procedure was every conducted. [ 22 ] J.H. testified that the suspect was a light skin black male with an afro, 5-7 to 5-8 tall whom he had never seen before that day. He testified that the accused D.M. appeared darker in Court than the suspect did in June. He was not asked to identify the accused.

A.S. [ 23 ] 18 year old A.S. testified that, when he heard S. yelling out his name, he went over and saw a male on top of S. repeatedly punching him. He separated the two. Sujuaran said the male had his phone. The female said the male had anger problems and she would help get the phone back. The three walked alongside the male and female and tried to get the phone back. S. was saying the phone was a gift from his grandmother. The case had a picture of a God on it. S. offered to buy the phone back.

The suspect replied: “do you know what kind of phone this is and how much I can get for it”. [ 24 ] A.S. had not seen the male before that day. He described him as having short or buzzed hair, fair skin which was not too light or dark. He described it as caramel colour. The male was wearing shorts and a T -shirt. That was the only description he could remember. In his description given to the police that day, he described the suspect as black, fair skinned, wearing cream colour shorts with red basketball shorts underneath, bald with no facial hair, space between his teeth.

He testified that the accused before the Court looked darker than the suspect he saw in June but added that he could have become darker. He explained that he himself was darker during the summer as a result of being outdoors. [ 25 ] In re-examination, the Crown asked A.S. if the accused was the male he had seen that day. The question was objected to. The Crown justified the question on the basis that he was clarifying his evidence which suggested that the accused had a different skin tone than the suspect. The question was allowed on that basis.

The witness testified that the accused was the male seen that day but no further explanation of the skin tone was explored. P.C. Yee [ 26 ] P.C Yee testified that he received a radio call regarding this robbery at 7:22 pm. He arrived at the apartment building at 7:30 pm where he met S. and two officers. S. described the male who robbed him. Yee and S. went into the security office to watch the video. The description of the suspect contained in P.C. Yee’s notes was a combination of what he had seen on the video and information he received. P.C. Yee was directed to the second floor where officers already were.

The accused and a female were in apartment #214. [ 27 ] At 9:00 p.m., at the police station, following the accused’s consultation with counsel, the accused consented to a search of apartment 214. The apartment was searched. P.C. Yee did not locate anything himself but was present when an iPhone case with a picture of a Hindu God was found in the garbage. However, there was nothing in the P.C. Yee’s notes whatsoever about the iPhone case. P.C. Carter [ 28 ] P.C. Shawn Carter testified that he was dispatched to the apartment building at 7:22 pm. He arrived at 7:30. He went to the video room.

He received a description of the suspect. He then went to the second floor where several officers were already waiting. He spoke to an irate female in the hallway who said her son was inside the apartment. That was the accused. He was the only male in that apartment. P.C. Carter testified that the accused matched the description of the male seen on the video although he was wearing different clothes than seen on the video. P.C. Carter testified that the accused was clearly seen on the video. He maintained this even under cross examination.

I have seen the video many times and I cannot identify anyone with any degree of particularity. P.C. Carter explained that he watched the video on a bigger screen than the one played in court or on my computer. At 9:40 p.m, P.C. Carter participated in the search of the apartment and saw the white IPhone case with a picture of a Hindu looking God. The case was apparently seized and printed. P.C. Carter also saw the yellow blanket and red bag seen on the video. No phone was seen during the search.

He agreed he did not know who went in and out of the apartment between the time of the robbery until the police arrived. [ 29 ] That was the evidence called in this case. [ 30 ] The defence submits that identification is the only issue and that the Crown has not proved its case beyond a reasonable doubt. The Crown submits that the circumstantial evidence together with the view of the accused on the video and S.’s identification of that male in the video establishes its case.

[ 31 ] I am satisfied that S. was robbed in exactly the manner he described. I found him to be credible and reliable. I had no concerns whatever about his honestly or the reliability of his evidence. I found A.S. and J.H. credible as well. I had a few reliability concerns where there were contradictions between their descriptions and their statements to the police such as whether the suspect kicked S..

I can only reliably find that the suspect repeatedly punched S. when he robbed him. [ 32 ] I cannot reliably rely upon Officer Yee’s evidence that he saw the iPhone case in the apartment but did not make note of it. While notes are an aide memoire and are used for disclosure, I would expect a note of seeing an iPhone case with a picture of a Hindu God on the case given its significance. This is not a credibility concern but a significant reliability one. [ 33 ] P.C. Carter testified that the iPhone case was seized.

Yet the case was never shown to S., or to the Court nor was a photo produced in evidence. [ 34 ] S. testified that the suspect entered a particular apartment; namely, the second apartment from the end. D.M. was arrested in apartment 214, presumably on the second floor, but there was no evidence if that is the same apartment. [ 35 ] The fact that S. and A.S. testified that the male they saw escorted from the apartment building was the male that had just robbed S. is direct evidence of identification.

The fact that that male, the accused, lived on the second floor and was seen so soon after the robbery is corroborative of that identification. [ 36 ] However, the reliability of the identification evidence is diminished by the fact that the accused was in different clothing shortly after the robbery and is said to be somewhat darker than the suspect. [ 37 ] Moreover, the fact that he was in handcuffs in police custody detracts from the reliability of that identification. [ 38 ] In dock identification is notoriously unreliable.

More so in the circumstances of this case given the discrepancy in skin tone and the fact that the identification was adduced in re-examination apparently to clarify the discrepancy related to skin tone but that was never done. Given the frailties of in dock identification and the manner in which this particular in dock identification was made, I cannot reliably place any weight on that identification. [ 39 ] The IPhone case, or the identification of the apartment or the yellow blanket and red purse would have been critical proof in this case.

It would establish a connection between the apartment D.M. was found in and this robbery. It would cure any difficulty with the discrepancies in the descriptions or any difficulties with the identification of D.M. as the suspect made while he was handcuffed and walking out of the building. [ 40 ] That evidence was not called and it is that absence, in the context of the evidence as a whole, that leaves me unable to be satisfied beyond a reasonable doubt that the accused D.M. was in fact the person who committed this robbery. [ 41 ] Accordingly, he will be found not guilty.

Released: September 10, 2014 Signed: “Justice Borenstein”