r v. Chris Ron, 2014 QCCQ 1712

R. c. Haywood 2014 QCCQ 1712 JP 2213 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N o : 500-01-055062-118 DATE: January 22, 2014 BEFORE THE HONOURABLE YVAN POULIN, J.C.Q. HER MAJESTY THE QUEEN Prosecutor v. Chris Ron HAYWOOD Accused REASONS FOR JUDGMENT [ 1 ] The accused was initially charged with four counts of attempted murder (s. 239 Cr.c.), possession of a loaded prohibited firearm (s. 95 Cr.c.), discharging a firearm into or at a place (s. 244.2(1)

a) Cr.c.), and pointing a firearm at another person (s. 87(2)

a) Cr.c.). At the end of the prosecution's case, a directed verdict of acquittal was entered on the count of attempted murder (count 1). [ 2 ] These are the reasons for judgment concerning the remaining charges. I - OVERVIEW [ 3 ] In the late afternoon of April 20, 2011, three bullets were fired at a car driven by Mrs. A. L.. The three shots were fired at close range. One bullet hit the driver's side mirror; another bullet hit the back door on the driver's side; and a third bullet hit a tire on the same side. The shooting occurred on the street in front of the apartment building where Mrs. L. resided at the time.

The shooting happened after a dispute between Mrs. L. and an individual in the parking lot of her apartment building. [ 4 ] Expert evidence confirmed that the three shots were fired by the same firearm. The firearm was seized by the police eight weeks after the shooting, in a backpack found on top of a pergola in the backyard of a residence in the Côte-des-Neiges area. The backpack also contained documents in the name of an individual whom had been seen in the past with the accused. [ 5 ] At trial, the prosecution led evidence from an eyewitness - Mrs.

Nancy Dubois - that saw the dispute in the parking lot and that identified the accused as the individual that had the argument with Mrs. L.. Mrs. L. gave evidence for the prosecution, but recanted the videotaped statement she had given to the police just after the shooting. In that videotaped statement, she gave details about the shooting and the shooter.

Pursuant to the principled exception to the hearsay rule, the videotaped statement was ruled admissible in evidence. [1] Police officers and an expert witness also gave evidence for the prosecution. [ 6 ] The accused did not testify and called no evidence. [ 7 ] The issue in this case is the sufficiency of the evidence of identity. The question that must be decided is the following: Does the evidence show beyond a reasonable doubt that the shooter was Mr. Haywood? [ 8 ] The Crown submits that the evidence is sufficient to support that conclusion.

The Crown argues that the testimony of the neighbor who saw the dispute is reliable and credible. The Crown pleads that the evidence, considered as a whole, establishes beyond a reasonable doubt that Mr. Haywood pulled the trigger. [ 9 ] The Defense argues that the Court must be very cautious with the identification evidence and submits that one cannot conclude that the Crown has met its burden. The defense submits that there is more than one reasonable inference to be drawn from the proven facts.

II - THE CROWN'S CASE

A) Mrs. L.'s testimony at trial [ 10 ] In her testimony before the Court, Mrs. L. explained that on April 20, 2011, she got into an argument with another driver and that someone shot at her. Right from the outset of her testimony, she stated that she could not tell who shot at her nor could she give any details, whatsoever, concerning the shooter's identity or the vehicle he was driving. It is obvious that during her testimony before the Court, Mrs.

L. was reluctant to provide answers to questions regarding the identity of the shooter. [ 11 ] The Crown attempted to refresh the witness' memory with a videotaped statement she made a few hours after the shooting. Mrs. L. watched part of her videotaped statement, but was still reluctant and unable to answer the questions regarding the vehicle and the driver with whom she had an argument. She basically said that she did not remember anything. [ 12 ] The Crown then sought leave to cross-examine Mrs.

L. regarding the circumstances under which her videotaped statement was made, pursuant to para. 9(2) of the Canada Evidence Act and the procedure described in the case of Milgaard [2] . Based on a finding of inconsistencies on important matters between Mrs. L.'s testimony and the videotaped statement given on the night of the shooting, the Court granted leave and permitted cross-examination by the Crown. In cross-examination, Mrs. L. mentioned that she was afraid for her kids. She mentioned that she was harassed by the police; and added that she did not want to come to court to testify.

It is clear from her demeanor and answers that she was reluctant to testify before the Court. [ 13 ] She further said in her testimony that she identified picture number four in a photo lineup, which was shown to her two days after the shooting, because the police put pressure on her. She also stated that the police kept telling her that the neighbors had identified the person in photo number four. [ 14 ] The defense cross-examined Mrs. L. at length. In cross-examination, she again stated that she gave her statement to the police because they were putting pressure on her.

She said that her version of events was influenced by the police and by what she heard outside the building that night. [ 15 ] In the circumstances, the Crown moved to have the out-of-court statements of Mrs. L. admitted as substantive evidence. A voir dire was held by the Court in that regard. [ 16 ] On December 17, 2013, the Court admitted into evidence the videotaped statement pursuant to the principled exception to the hearsay rule, as it was necessary and reliable.

This statement now forms part of the record and can be relied upon, by the Court, for the truth of its content, in the context of the entirety of the evidence. It is clear, however, that the ultimate weight of that statement, like any other evidence, must be assessed by the Court pursuant to the applicable principles. [3]

B) Mrs. L.'s videotaped statement of April 20, 2011 [ 17 ] Mrs. L. was interviewed by the police from 11:28 p.m. to 11:53 p.m. on April 20, 2011. Her statement was given just a few hours after the shooting and was recorded on video. Sgt. Detective Robinson led the interview and his colleague Sgt. Detective Rozon took notes in a separate room. [ 18 ] It is clear from the video that during the interview, the police did not put any pressure nor asked any leading questions regarding the event.

The police simply asked the alleged victim of the shooting to describe the circumstances of the incident that had just happened. Mrs. L. did so in a clear and comprehensive manner. [ 19 ] In her statement, Mrs. L. explains that on April 20, 2011, she was driving back from the grocery store with her ex-boyfriend Gershon Moore in her rental car, a burgundy Mazda 6. When they were about to pull in the parking lot of her apartment building, she noticed that a car was tailgating them. She pulled to the side and let the car pass. The car proceeded in the parking lot and parked in a spot. Mrs.

L. pulled behind, got out of her car and went to talk to the driver. She told him to stop tailgating. According to her, the driver was still sitting in his car at this point. [ 20 ] Mrs. L. says, in her statement, that Mr. Moore got out of the car as well and spoke to the driver. He told him that he shouldn't be tailgating, that this is dangerous, and that if he doesn't know how to drive, he should get off the road. According to Mrs. L., the driver of the car was "getting heated". [ 21 ] Mrs. L. says that she did not hear all the words that were exchanged between Mr.

Moore and the driver because she was speaking to someone on her phone. She mentions that there was screaming and yelling. [ 22 ] Mrs. L. says that she decided to move her car from the outside parking lot to the garage. She proceeded to turn around in the parking lot. She says that when she did that, the driver pulled off, drove in the direction of the exit and stopped. When she got to the exit, the driver was blocking her way towards the garage, which is located on the left. Since he wouldn't move, Mrs. L. turned to the right. The driver turned left on the same street.

She made a u-turn in the middle of the street on the right to get back to the garage. The driver did the same further down the street on the left. The two cars were now moving towards each other. [ 23 ] Mrs. L. states that when the two cars crossed each other, the driver shot at her three times. She saw a hand sticking out the window. Both cars were moving when the shots were fired. She ducked as soon as she heard the first shot, and eventually pulled in front of the garage, shaken.

After finding the key to the garage, she pulled in and noticed that the three bullets had hit the driver's side mirror, the back door on the driver's side, and a tire on the same side. The driver continued on his way after the shots were fired. [ 24 ] Mrs. L. mentions that the driver was a black male that spoke English. She adds that he was driving a four door white car with tinted windows. [ 25 ] It is important to note that during her interview, Mrs. L. differentiates and distinguishes her own observations from those that

might have been made or reported by others. For example, she states without hesitation that it was a four door white car with tinted windows. However, when asked if she knew what model, she mentions that she was told it was a Nissan. [ 26 ] In her videotaped statement, Mrs. L. also says the driver was a black male that spoke English, but couldn't give more details about "how he looked like". She further states that she was told that he lived in the same building, but could not confirm this herself. She states that she wouldn't recognize him in a photo lineup.

C) Mrs. Nancy Dubois' testimony [ 27 ] On the day of the shooting, Mrs. Nancy Dubois was living with her girlfriend in an apartment on the second floor of the building where the incident took place. Mrs. Dubois' apartment overlooked the parking lot where the dispute occurred. Mrs. Dubois had been living there since October 2010. Because she was disabled, she mentions that she was at her apartment almost all the time, and that she often went on the balcony to smoke cigarettes. [ 28 ] Mrs. Dubois explains that around suppertime on April 20, 2011, she heard people outside that were screaming at each other.

When she got to the window, she saw that three people were having an argument in the parking lot. She says that Mrs. L. and a man unknown to her were both arguing with the accused. They were yelling and screaming. [ 29 ] According to Mrs. Dubois, Mrs. L. and the unknown man were beside their car, a dark colored Mazda, while the accused was beside his car, a white Nissan Maxima. The accused could not pull out from his parking spot because Mrs. L.'s car was blocking his way. [ 30 ] Mrs. Dubois recognized both the accused and Mrs. L. because she had seen them before.

She knew them because they were both living in the apartment building where she lived. She knew Mrs. L. because she had had conversations with her before. Although she never spoke with the accused, she knew him by sight because she had seen him often. [ 31 ] In her testimony, Mrs. Dubois gave specific and precise details concerning the accused.

More particularly, she mentioned that: ➢ She had seen him more than 30 times before the incident; ➢ He often changed cars; ➢ Prior to the incident, and on the date of the incident, he was driving a white Nissan Maxima with license plate number [...]; ➢ The car had tinted windows; ➢ The accused had a key to enter the building and was living there; ➢ He was usually alone; ➢ He was often wearing a hoodie and a pair of low-rise jeans that let his boxers show; ➢ On the day of the incident, he was wearing a hoodie and jeans; ➢ He had a tattoo on the arm. [ 32 ] Mrs.

Dubois watched the dispute from inside her apartment and eventually went outside to smoke a cigarette. She continued observing from her balcony. She observed the scene for several minutes. She mentions without hesitation that the man that had the dispute with A. L. is the accused. She positively identified him in Court. [ 33 ] At one point, she saw an unknown man come to briefly speak to the accused; the man went back inside the building. [ 34 ] Mrs. Dubois mentions that the dispute between the accused and Mrs. L. lasted several minutes. When the dispute ended, she went back inside.

She came back a few moments later to see what was happening. She then saw both cars leaving and went back inside again. [ 35 ] Moments later, she heard three shots that sounded like bursting tires, but she quickly realized that they were gunshots. Either she or her girlfriend called the police. She went down and spoke to Lucie, the janitor, and continued her way to the indoor garage. She saw Mrs. L. in the garage. She also noted that bullets had been fired at the car. [ 36 ] Mrs. Dubois was interviewed by the police later that evening. On the following day, she was shown a photo lineup.

She was able to positively identify the accused as the driver of the white Nissan Maxima that was involved in the dispute with Mrs. L.. When she circled photo number four, she mentioned: Si c'est pas lui! Bien c'est bien proche . [ 37 ] In cross-examination, she said that it was easy for her to recognize Mr. Haywood because she had seen him often before. She explained that she took two minutes to identify him in the photo lineup because she wanted to take her time to identify the right individual. She said it was the first time she had pressure like this on her shoulders and wanted to take her time.

She said that when she saw the picture, it was clear that it was him. In reference to her comment Si c'est pas lui! Bien c'est bien proche , she explained that it was an expression that she used. When asked again by the police when she was shown the photo lineup, she confirmed that the individual that had the dispute was in photo number four.

D) Crime scene [ 38 ] Material evidence seized at the crime scene confirm the following:

➢ Three bullets were shot at Mrs. L.'s car; ➢ The shooting took place on the street (mirror fragments were located on the street); and ➢ The shooter was at close range (two casings were located on the street close to the mirror fragments).

E) Search of apartment 306 [39] On the evening of April 21, 2011, the day after the shooting, the police searched apartment 306 of the building where the disputetook place. They found documents in the name of the accused, i.e. medical prescriptions, a small container containing a prescriptioncream, a cardboard box containing a Formedica toilet seat and a Scotia Bank envelope. No lease was found.

F) The initial arrest [40] On April 27, 2011, the accused was intercepted by the police at the corner of Jean-Talon and Drolet in Montreal. He was drivinga black Mazda with tinted windows that was registered to a woman. [41] Following verification in the database, the police learned that the accused was sought for attempted murder. The accused wasimmediately placed under arrest and brought to the police station. During the booking procedure, police noted that he had a tattoo on theleft hand.

G) The white Nissan Maxima and the accused [42] On May 7, 2011, the white Nissan Maxima bearing license plate number [...] was intercepted by Constable Mathew Hyppolite atthe corner of de la Montagne and Ste-Catherine. Three people were in the car. The driver was identified as Chris Ron Haywood. Thepassenger in the front seat was identified as Maxween Myers. The passenger in the back seat was confirmed to be Stéphanie Bonneau-Champagne. The car was registered to another woman. [43] It is noted that this is the same vehicle as the one referred to by Mrs. Dubois as being the car used by the accused on the day ofthe shooting.

H) The firearm used for the shooting [44] On June 20, 2011, the firearm used for the shooting on April 20, 2011, was seized in a backpack found on top of a pergola in thebackyard of a residence situated at 6772 Légaré, Montréal. [45] In the night of June 19 into June 20, 2011, police were called in the Côte-Des-Neiges area as gunshots were heard. Policeattended the scene and saw an unknown male walking on Côte-des-Neiges street with a backpack. They noted that he was actingbizarre. They lost sight of him. They tried to locate him and eventually found him as he was coming from the backyard of a residence.

He took off running through the backyard when he saw the police. The police chased after him but were unable to locate him at thistime. The police searched the premises and located the backpack sitting on top of the pergola. They searched it and found a gun in themiddle pocket. They also located a document in the name of Maxween Myers in the front pocket. A few hours later, the unknown malewas located and arrested. He was identified as Maxween Myers. [46] Unchallenged expert evidence confirmed that the firearm located that night was the same firearm that was discharged on April20, 2011, at Mrs. L.'s car.

III – ISSUE [47] As already stated, the question that must be decided in this case is the following: Does the evidence show beyond a reasonable doubt that the shooter was Mr. Haywood? IV - ANALYSIS

A) General principles regarding eyewitness identification evidence [48] It is well recognized that eyewitness identification evidence calls for careful consideration by a trier of fact. [4] [49] Eyewitness identification has been described as an interpretive expression of opinion based on a host of psychological andphysiological factors. [5] [50] When identification is in issue, like in the present case, special caution is necessary to avoid a miscarriage of justice. [6] [51] In the recent case of R. v.

Hay, the Supreme Court states that notwithstanding the frailties of eyewitness identification, aconviction may be based on a single eyewitness whose testimony is reliable: [40] The credibility and weight that should be given to eyewitness testimony is an issue committed to the ultimate trier of fact ― here,the jury; R. v. Mezzo, (SCC), [1986] 1 S.C.R. 802, at pp. 844-45. It is well established that where the Crown relies on aneyewitness identification, the trial judge has a duty to caution the jury regarding the well-recognized frailties of identification evidence;see Mezzo, at p. 845, citing R. v.

Turnbull, [1976] 3 All E.R. 549 (C.A.); R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 78-79 (Bastarache J., dissenting, although not on this point); R. v. Canning, (SCC), [1986] 1 S.C.R. 991. However, aproperly instructed jury may conclude, notwithstanding the frailties of eyewitness identification, that the eyewitness’ testimony isreliable and may enter a conviction on those grounds. This may be so even where the Crown has relied on only a single eyewitness; seeMezzo, at p. 844; R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197, at para. 23.[7]

[52] In R. v. Goncalves, Hill J. of the Ontario Superior Court of Justice, mentions relevant factors and criteria that the trier of factcan consider when assessing of the reliability of eyewitness identification evidence: [39] Our experience with eyewitness identification evidence has taught us to use discriminating scrutiny for badges of unreliability.Judicially created checklists, based on long experience with the inherent dangers of eyewitness identification evidence, assist inassessment of the circumstances of a specific identification: The Queen v. Nikolovski, at 409, 412; Mezzo v.

The Queen, at 129-132 perWilson J. Was the suspect a complete stranger or known to the witness? Was the opportunity to see the suspect a fleeting glimpse orsomething more substantial? (a fleeting glance of a suspect by an eyewitness is generally setting in the darkness of night or in well-illuminated conditions? Was the sighting by the witness in circumstances of stress (R. v. Nikolovski, at 412, 418; R. v.Francis, (ON CA), [2002] O.J. No. 4010 (C.A.) at para. 4)? Did the witness commit the Did the witness commit the description towriting or report the description to the police in a timely way?

Is the witness' description general, generic or vague or is there adescription of detail including distinctive features of the suspect and his or her clothing (R. v. Ellis, 2008 ONCA 77 , [2008] O.J.No. 361 (C.A.) at para. 5, 8; R. v. F.A., at para. 64; R. v. Richards, at para. 9)? Were there intervening circumstances, capable of taintingor contaminating the independence of the identification, between the witness' initial sighting of the suspect and the rendering of thedescriptive account to the police or the court?

Has the witness described a distinguishing feature of the suspect not shared by the accusedor conversely has the witness' description of the suspect failed to include mention of a distinctive feature of the accused? Is theeyewitness identification unconfirmed? [8] [53] As stated by Doherty J.A. in R. v. Quercia, "[t]he existence of confirmatory circumstantial evidence can go a long way tominimizing the dangers inherent in eyewitness identification". [9]

B) Application to this case [54] The Court must consider any factors that could potentially undermine the reliability of the identification of the accused made byMrs. Dubois. The Court must consider the totality of the circumstantial evidence when determining the issue of identity. [55] The circumstances of the present case provide significant support for a reliable and positive identification of the accused. Theevidence shows the following. [56] Mrs. Dubois had ample opportunity to observe the man that was involved in the dispute with Mrs. L. in the parking lot. She hada direct point of observation.

She was at close quarters and watched the scene for several minutes. Her observation was much morethan a brief and fleeting glimpse. Her view was not obstructed. She was not involved in the dispute nor had any motive or interest in thecase. [57] Mrs. Dubois previously knew the accused by sight. Although she did not know his name, she had seen him more than 30 timesbefore. She knew he was driving a white Nissan Maxima, and even remembered the license plate number because it was particular. Shealso noted that he usually parked at the same spot.

She often saw him late at night when she was out on her balcony smoking. [58] Mrs. Dubois pointed to a distinctive feature on the accused, a tattoo on his arm, a fact that is corroborated by independentevidence. [59] Mrs. Dubois had seen the accused with a key for the building's main entrance and inferred, from her observations, that he wasliving in the building, a fact corroborated by the presence of personal documents in apartment 306. [60] Mrs. Dubois often saw the accused in the white Nissan Maxima bearing license plate number [...].

This fact is corroborated ason May 7, 2011, the police intercepted the same vehicle. It was being driven by the accused and Maxween Myers was a passenger. Further, it is to be noted that on June 20, 2011, Maxween Myers was seen with a backpack that contained the gun in the incident at bar. [61] Mrs. Dubois positively identified the accused in a photo lineup the day after the shooting. The Defense argued that the weight ofher identification is diminished because she took two minutes to identify the accused and because she made the following comment: Sic'est pas lui! Bien c'est bien proche.

As stated above, Mrs Dubois explained that she took two minutes, as she wanted to take her time toidentify the right individual. She further said that it was the first time she had pressure like this on her shoulders and wanted to take hertime. She said that when she saw the picture, it was clear that it was him. She explained that her comment was an expression that sheused. When considered in the totality of the circumstances, the Court concludes that the comment made by Mrs. Dubois does not impacton the reliability of her identification. [62] Observations made by Mrs.

Dubois are confirmed by the videotaped statement of Mrs. L.. Both narratives of the events arestrikingly similar and complementary. On the night of the shooting, Mrs. L. unequivocally stated that the shooting happened right afterthe dispute and confirmed that the shooter was a black male that spoke English and drove a white car with tinted windows. Thatstatement was videotaped and given only a few hours after the event, when all the facts were fresh in her memory. In her statement, Mrs.L. distinguishes and differentiates her own observations from those that might have been made or reported by others.

On the night inquestion, Mrs. L. had no reason or motive to lie when she was interviewed by the police. The Court concludes that her videotapedstatement is reliable. [63] In

summary, Mrs. Dubois identifies the accused as the person who was arguing with Mrs. L. on the day in question. Mrs. L.states in her videotaped statement that the black male she was arguing with is the same person who shot at her moments after theargument. In all the circumstances, considering all the facts, including the corroborative and confirmative circumstantial evidence, theCourt accepts this evidence and is satisfied, beyond a reasonable doubt, that it was the accused who fired the gun on April 20, 2011. V - CONCLUSION For all those reasons, the accused is found guilty on counts two, three and four.

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S) Yvan Poulin __________________________________ YVAN POULIN, J.C.Q. Me Marie-Josée Thériault For the prosecution Me Patrick BouletFor the accused Date of hearing: December 10, 11, 12 and 17, 2013 [5] R. v. Miaponoose (1996), (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.), 451.