R. v. Hume, 2011 ONCJ 535

Citation: R. v. Hume , 2011 ONCJ 535 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN Ñ AND Ñ BRUCE HUME ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) W. Thompson For the Crown A. Wine For the Defendant Heard: September 7, 2011 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] Bruce Hume, the defendant, is charged with assaulting three strangers (one of whom suffered bodily harm) in three separate late-afternoon attacks on a short stretch of Bloor Street West in Toronto in the early evening of May 21, 2010.

All three of the assaulted persons testified, as did the first attending officer. The defendant also testified; he denied having any contact with any of the three complainants. The defence accepts that each of the three complaints was assaulted and that one of the complainants, Lubna Haywat, suffered bodily harm. The central issue, then, is one of identification: was the defendant the perpetrator of any of these assaults? As in all criminal prosecutions, the burden of persuasion rests on the Crown on a standard of proof beyond reasonable doubt.

B. EVIDENCE (

a) Introduction [ 2 ] None of the complainants knew each other prior to the events of May 21, 2010. Each was going about their routine affairs on those several blocks of Bloor West that stretch between Ossington, to the west, and Montrose, to the east, when each was independently assaulted by an unknown man who two of the three complainants positively identify as the defendant. None of the three complainants witnessed any assaults that day other than the one each endured. I review the evidence of each of the three complainants below, followed by the evidence of the attending officer and, then, the defendant. (

b) Arnold Borges [ 3 ] Arnold Borges stopped for a red light at the southwest corner of Bloor West and Ossington after dropping his son off at a nearby martial arts class. At the time, Borges had a broken right arm that was resting in a sling. He was walking east along Bloor and waiting for the light to change. He glanced towards another pedestrian standing next to him, a large man, slightly taller than the complainant (who stands 5Õ 11Ó), with a beard and wearing a jacket and blue jeans. When he turned to watch the light he felt a sudden blow to the right side of his face, near his jaw.

He immediately looked in direction of the blow. The same man, who was now standing over him, loudly said, ÒWhat?Ó There was no one else around. The man walked east along Bloor. Borges briefly attended his sonÕs class and then left, got into his car and drove in the same easterly direction as the man had been walking. About a block away he saw some people surrounding someone on the ground on the south side of Bloor. About a block further east, near the intersection of Christie and Bloor, he saw the police arresting a man. Borges stopped his car.

He ran to the police and said, ÒThat guy hit meÓ. [ 4 ] Borges claims he got a good look at the arrested man as he was being placed in the police car and from across the street as the man sat in the scoutÕs rear seat. The defendant had shaved off his beard and severely trimmed his long hair between the time of his arrest and his trial, and Borges did not claim to identify the defendant in court as either the man who attacked him or the man he saw being arrested. Nonetheless, he ÒguaranteedÓ that the man who hit him was the same man he saw being arrested. (

c) Lubna Haywat [ 5 ] Lubna Haywat was walking east with her husband on the south side of Bloor West. She was near Christie when a tall man wearing a jacket and with bushy hair and a bushy beard passed her while walking in the same easterly direction. Suddenly, the man turned and punched Haywat in the face. She fell to the ground, and as her husband went to her aid the unknown assailant tried to attack one or both them. LubnaÕs husband said, ÒAre you crazy?Ó Haywat could not recall if the man replied. The man left. She never saw him again and did not recognize anyone in the courtroom as her assailant.

It took some four to six weeks for broken cartilage in HaywatÕs nose to heal. She continues to be afraid of strange men. (

d) Peter Wright [ 6 ] Peter Wright was pushing his three-year old son in a stroller while walking westbound on the south side of Bloor. Just east of Montrose, and about a block west of Christie, he glanced at an approaching man for three or four seconds, and then away. As they passed each other Wright saw a blur out of the corner of his eye and then felt a blow to his chin that knocked him to his knees. As he looked behind he could see the man continue to walk east on Bloor. There was no one else within a 30 to 50 foot radius. Wright called 911.

He then met the police a little east of Christie where, for about five or ten minutes, he saw the side profile of a man he believed to be his assailant in the back seat of a parked police car. This was about 15 to 20 minutes after he was struck and he was ÒsureÓ it was the same man. [ 7 ] Wright described the man as a white male who stood about 6Õ2ÕÕ and weighed about 200 pounds. He wore jeans and a sweater and had a beard and long hair. Wright identified the defendant in court as his assailant, noting that, Òhe had longer hair thenÓ. (

e) PC Steven Lee [ 8 ] PC Steven Lee received a police dispatch about an assault at Bloor West and Montrose at 6:55pm on May 21, 2010. He later learned the alleged victim was a woman. The assailant was described as a six-foot, fully bearded white male in his 30s who was wearing a blue sweatshirt, blue jeans and a grey hat. Lee attended the area within a few minutes and saw a man matching this description. He approached the man and asked, ÒWhy did you hit the girl?Ó According to Lee, the man replied, ÒI did not mean to. I tried to hit her boyfriend but he dodged itÓ.

Lee arrested the defendant who identified himself as Bruce Hume. The defendant looked disoriented and confused; otherwise, he showed no emotion and had flat affect. Lee recorded his notes on returning to his station. [ 9 ] Soon after, Arnold Borges drove up in his truck, pointed at the defendant, who was by then in cuffs, and said, ÒThis man assaulted meÓ. (

f) The Defendant Bruce Hume [ 10 ] The defendant was living in a rented room on Lappin Avenue, a few blocks north of Bloor West and a little west of Ossington, on May 21, 2010. He sported a beard at that time. In the late afternoon, after consuming five or six beers, he was Òwindow shoppingÓ in an easterly direction along Bloor West, while heading downtown. He denied ever hitting or even seeing any of the three complainants.

He was arrested at some point but denied saying the words attributed to him by PC Lee. [ 11 ] The defendant acknowledged that police photos taken after his arrest accurately reflected his attire that day, although he noted that he was also wearing a blue hat. These photos show a man wearing blue jeans and a blue jacket over a white t-shirt; he has scruffy, longish hair and a mustache and beard.

The defendant also acknowledged that police photos of his right hand exhibited a small cut on one knuckle and some scrapes on the top of the same hand, but vaguely suggested that they may have been occasioned earlier when he was fixing a door handle. At the time, the defendant weighed approximately 220 pounds and was six feet tall. He denied having been in an angry mood on May 21, 2010.

C. ANALYSIS (

a) Introduction [12] This compact evidentiary scenario gives rise to a number of legal issues. While the defendant, through his counsel, concedesthe voluntariness of any verbal exchanges he may have had with PC Lee, the defendant himself denies making the potentiallyincriminatory statement noted by the officer. This inconsistency is here subsumed by those rules governing the proper legaldetermination of factual disputes where, as in the instant case, a complainant says one thing and a defendant says something entirelycontradictory.

The defendantÕs denials also compel regard for the law directing a cautionary approach to the identification evidence ledin this case and, ultimately, to my determination of whether the defendant was or was not the perpetrator of each or any of the threeassaults. In addition, there is the question of the application, if any, of the evidentiary doctrine of similar fact evidence. I address each ofthese legal considerations below, and then apply, where appropriate, the relevant principles to the evidence led at this trial. (

b) The Rule in R. v. W.(D.) [13] The defendantÕs testimonial account of what occurred on May 21, 2010 is radically different from that of the complainantswho purport to identify him. Needless to say, an assessment of credibility of the witnesses at trial Ð in terms of both their honesty andreliability Ð is critical to a proper adjudication in this case. This exercise is controlled by the guidelines set out by the Supreme Court inR. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397. As explained by the Supreme Court in R. v.

J.H.S. (2008), 2008 SCC 30, 231 C.C.C. (3d) 302, at para. 9, W.(D.) Òsimply unpacks what reasonable doubt means in the context of evaluating conflictingtestimonial accountsÓ. Put otherwise, even where a case presents as a bald contest of credibility, the adjudicative focus must remainfixed on the standard of reasonable doubt. Further, as the Court of Appeal recently made clear, the W.(D.) rule applies not only toresolution of directly conflicting evidence between a defendant and a complainant but, as said in R. v. B.

D., 2011 ONCA 51, at para.114, to Òcredibility findings É arising out of evidence favourable to the defence in the CrownÕs caseÓ. The Court of Appeal has furtherheld that acceptance of contradictory evidence may itself be a proper basis for rejecting a defendantÕs account. As put by Doherty J.A.for the Court in R. v.

D. (J.J.R.), unreptÕd, Nov. 30, 2006, at para. 53, An outright rejection of an accusedÕs evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth ofconflicting credible evidence is as much an explanation for the rejection of an accusedÕs evidence as is a rejection based on a problemidentified with the way the accused testified or the substance of the accusedÕs evidence. (See also, R. v.

M. (R.E.), (2008) 2008 SCC 51 , 235 C.C.C. (3d) 290 (S.C.C.), at para. 66.) Finally, in this introductory regard, Inote that, like any trier of fact, I may, with reason, accept none, some or all of the evidence of any witness. (

c) Identification Evidence [14] Much of the CrownÕs case rests on eyewitness identification evidence. The reliability of such evidence is notoriously suspect. Indeed, eyewitness misidentification is generally recognized as the greatest single cause of factually wrongful convictions. The Court ofAppeal famously observed in R. v. Quercia (1990), (ON CA), 60 C.C.C. (3d) 380, at 389, that "[t]he spectre oferroneous convictions based on honest and convincing but mistaken eyewitness identification haunts the criminal law".

As a result of itsinherent frailties, special care must be taken in the assessment of such evidence. This is not to say that eyewitness identification evidenceÐ even standing alone Ð can never serve as a proper foundation for a conviction. Judicial wisdom, however, directs that the exercise ofadjudication in this type of case must be especially cautious. (See, e.g., R. v. Trochym, 2007 SCC 6 , [2007] S.C.J. No. 6, atpara. 46; R. v. Burke, (SCC), [1996] S.C.J. No. 27, at para. 52; R. v. Spatola, (ON CA), [1970] 3 O.R.74 (C.A.), at 82, R. v. Miaponoose (1996), (ON CA), 110 C.C.C. (3d) 445 (Ont.

C.A), at 450-1; R. v. Tat and Long(1997), (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.), at 516; and R. v. F.A., (ON CA), [2004] O.J.No. 1119, at para. 39 (C.A.).) This is particularly the case where, as here, the two identification witnessesÕ initial window ofobservation is extremely narrow and the confirmative opportunity for both occurred while the defendant, the alleged perpetrator of theassaults, was under arrest and in police custody: see R. v. Smierciak (1946), (ON CA), 87 C.C.C. 175 (Ont. C.A.).

Indeed, the position of the defence is not that any of the three complaints were dishonest but, rather, that the circumstances defining theobservational opportunities of the two witnesses who purport to identify the defendant as their assailant raise real concerns about thereliability of their identification evidence. (d) ÒSimilar Fact EvidenceÓ [15] A final preliminary consideration arises from the multiple counts and the similarity of the various allegations in so far as they allinvolve apparently unprovoked acts of violence against vulnerable persons within a relatively short span of space and time.

No formalapplication was brought by Crown counsel at any point requesting that I employ Òsimilar actÓ reasoning in determining the validity ofthe various counts, although, in closing submissions, he suggested that it was ÒopenÓ to me to do so. While pointing to some potentiallymaterial distinctions between the three events resulting in criminal charges, defence counsel did not argue that the CrownÕs failure togive notice worked any procedural unfairness.

I note, as well, that unlike many other cases where this doctrine is advanced, the evidencehere arguably capable of similar act consideration is not extrinsic to the evidence supporting the charges before the court. Nonetheless, itis long settled that such evidence is presumptively inadmissible even in exclusively multi-count applications of the doctrine: Makin v.A.G. New South Wales, [1984] A.C. 57 (P.C.); R. v. Handy, 2002 SCC 56 , [2002] 2 S.C.R. 908, at paras. 31-40.

Accordingly,the burden with respect to its admission and cross-count similar fact use (that is, of demonstrating that the probative value of the evidenceexceeds its prejudicial effect, in both ÒmoralÓ and ÒlegalÓ senses) falls to the Crown: R. v. Arp, (SCC), [1998], 3S.C.R. 339, at para. 52; R. v. Handy, supra, at para. 55.

Despite the general exclusionary rule, the authorities have long recognized, assaid in Handy, supra, at para. 41, that, É an issue may arise in the trial of the offence charged to which evidence of [other] misconduct may be so highly relevant and cogentthat its probative value in the search for truth outweighs any potential for [prejudicial] misuse.

[ 16 ] Proper determination of the probity-versus-prejudice assessment turns on the issue for which the evidence is tendered. Here, the sole issue is that of identification of the defendant as the person who committed the three assaults. Identification of the perpetrator was also the focal issue in the case of Arp .

Cory J., on behalf of a unanimous Supreme Court, there reviewed the law relevant to the threshold admissibility test respecting this issue in the following passages (at paras. 42, 44, 45, 48 and 51): É in considering whether similar fact evidence should be admitted the basic and fundamental question that must be determined is whether the probative value of the evidence outweighs its prejudicial effect.

É Because similar fact evidence is admitted on the basis of an objective improbability of coincidence, the evidence necessarily derives its probative value from the degree of similarity between the acts under consideration. The probative value must, of course, significantly outweigh the prejudice to the accused for the evidence to be admissible. É É a principled approach to the admission of similar fact evidence will in all cases rest on the finding that the accusedÕs involvement in the alleged similar acts or counts is unlikely to be the product of coincidence.

É Where, as here, similar fact evidence is adduced on the issue of identity, there must be a high degree of similarity between the acts for the evidence to be admitted. For example, a unique trademark or signature will automatically render the alleged acts Òstrikingly similarÓ and therefore highly probative and admissible. In the same way, a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence.

Where identity is at issue ordinarily, the trial judge should review the manner in which the similar acts were committed Ð that is to say, whether the similar acts involve a unique trademark or reveal a number of significant similarities. This review will enable him or her to decide whether the alleged similar acts were all committed by the same person. This preliminary determination establishes the objective improbability that the accusedÕs involvement in the alleged acts is the product of coincidence and thereby gives the evidence the requisite probative force.

Thus, where the similar fact evidence is adduced to prove identity, once this preliminary determination is made, the evidence related to the similar act (or count, in a multi - count indictment [as in the instant case]) may be admitted to prove the commission of another act (or count). É Thus, where similar fact evidence is adduced to prove a fact in issue, in order to be admissible, the trial judge should evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established.

Only then will the evidence have sufficient probative value to be admitted. Where the fact in issue is the identity of the perpetrator of the crime, then in the usual course of events the trial judge must assess the degree of similarity demonstrated by the manner in which the acts in question were committed to determine whether it is likely the same person committed the alleged similar acts.

Once it is determined on a balance of probabilities that the same person committed the alleged similar acts, the similar fact evidence may be admitted to prove that the accused committed the offence or offences in question. [Emphasis in original.] É The test for admissibility of similar fact evidence adduced to prove identity is the same whether the alleged similar acts are definitively attributed to the accused, or are the subject of a multi-count indictment against the accused. [ 17 ] In assessing the probative value of purported similarities, the caselaw suggests that reference may be had to following considerations: 〈 the temporal proximity of the incidents; 〈 the physical or spatial proximity of the events; 〈 the similarity in detail between the various acts; 〈 the number of putatively similar acts; 〈 the circumstances surrounding the incidents at issue; 〈 distinctive features unifying the incidents; and 〈 the occurrence and nature of any intervening events. (See, e.g., R. v.

Arp , supra , at para. 50 ; R. v. Handy , supra, at para. 82 ; WattÕs Manual of Criminal Evidence , Thomson Reuters, 2010, at p. 503.) The prospect of collusion among the complainant witnesses is also a factor to be borne in mind in appraising probative value. (

e) Applying the Law to the Evidence (

i) Considering Each Count Individually [ 18 ] The occurrence of each of the three assaults is conceded by the defence. Nor is any challenge made to the honesty of the three complainants or the reliability of their respective accounts of the nature of or circumstances surrounding the facially bizarre attacks each suffered.

The sole challenge to their narratives, or more precisely those of Borges and Wright, is directed to the reliability of their identification of the defendant as the perpetrator of their individual victimization. [ 19 ] I am mindful of the empirically and historically grounded rationales for caution in assessing the strength of identification evidence premised, as here, on brief apertures for observation and the reinforcement, sometimes mistaken, that likely accompanies

seeing a suspect under arrest soon after the occurrence of a criminal act. Nonetheless, I here have no doubt as to the integrity of bothBorgesÕ and WrightÕs identification of the defendant as their assailant. Each observed the perpetrator before and immediately after thepunch or blow directed to them. Each had an opportunity to observe the facial and sartorial characteristics of their assailant. Eachindependently identified the defendant as their assailant. In each case, their descriptions were consistent with police photographs of thedefendant taken soon after his arrest (as was that of the complainant Haywat).

And each was certain that the man they saw in policecustody Ð the defendant Ð was the same man who attacked them minutes earlier. Further, BorgesÕ and WrightÕs exposure to thedefendant in police custody is substantially distinct from the police Òshow upÓ that typically gives rise to well-founded reservationsabout the reliability of identification evidence founded on such contrivances.

Here, the two complainants independently pursued theirassailant, recognized him within minutes of their attacks and, at least in BorgesÕ case, immediately and spontaneously identified him asthe man who had assaulted him and who, it transpired, is the defendant.

In sum, I completely accept the evidence of both Borges andWright with respect to their identification of the defendant as the man who punched them east of Christie on Bloor Street West. [20] Applying D.(J.J.R.), supra, my acceptance of the identification evidence tendered through Borges and Wright leads me to rejectthe defendantÕs exculpatory testimony and, as well, his repudiation of the statement attributed to him by PC Lee.

In completelyrejecting the defendantÕs denials, I also rely on his evidence placing himself in the immediate vicinity of the three assaults in therelevant time-frame and, further, the fresh-looking cut and scrapes on the back of his right hand and reject as fanciful the hesitantexplanation he advanced for these abrasions. I also have no doubt as to essential veracity of LeeÕs recall of his initial exchange with thedefendant.

While the relatively short delay in recording the defendantÕs words may have compromised the verbatim accuracy of LeeÕsaccount, I am satisfied that the defendant admitted striking out at a man and woman, thus implicating himself in the assault on Haywat. The absence of any serious or effective defence challenge to LeeÕs testimony further supports my confidence in LeeÕs recall. [21] Considering each count individually, as directed by the Court of Appeal in R. v.

Howe (2005), (ON CA), 192C.C.C. (3d) 480, and accepting the identification evidence of Borges and Wright, I have no doubt that the defendant assaulted each ofthese two men.

Given the close similarity between the defendantÕs physical appearance on his arrest and HaywatÕs description of herassailant, the temporal proximity between that assault and his arrest, the cut and scratches on the back of his hand and his admission thathe at least threw a punch in the direction of a man accompanied by a women (as mirrors HaywatÕs account), I am similarly convinced tothe appropriate standard that the defendant assaulted the complainant Haywat. (ii) The Application of ÒSimilar FactÓ Reasoning [22] In the alternative, and lest I have failed to properly apply the law governing the assessment of identification evidence, I reachthe same verdict through the application of the doctrine of Òsimilar factÓ reasoning. [23] As conceded by the defendantÕs counsel, all three assaults occurred within a very brief period of time: less than an hour and,as counsel seems prepared to allow, perhaps no more than half an hour.

They all occurred on a relatively short stretch Ð no more thanfive or six blocks Ð on the same southern side of Bloor Street West in Toronto. The spatial and temporal sequencing of the assaults isconsistent with the defendantÕs own account of the direction and location of his walk down Bloor on May 21, 2010. Each of the threeassaults, as independently described by each complainant, was unprovoked, otherwise unexplained and occurred in broad daylight on apublic thoroughfare. The assailant in each case was a stranger to the complainant.

Each of the three complainants was a vulnerablepedestrian: Borges had his right arm in a sling; Haywat is a woman of modest dimensions; and Wright was wheeling his toddler son in astroller. In each case the contact assault consisted of a single punch to the head of the victim. And the assailant, as described by eachcomplainant, was similarly hirsute and attired. [24] Signature or uniquely distinctive features are not essential to the cross-count admission of similar fact evidence.

Here, thesignificant probative force of the constellation of factors I have just reviewed satisfies me, on at least a balance of probabilities, that thesame man committed all three assaults. Repeating the language of Arp, at para. 44, Òan objective improbability of coincidenceÓ isadequately established and, further, in my view, one of sufficient probative value to overcome any risk of prejudice, particularly as noextrinsic evidence need here be examined or weighed.

In reaching this conclusion I note that there is no evidence in the instant case ofintervening events and not even a suggestion of collusion or any other potential source of cross-witness contamination. [25] Instructing myself, then, as to the appropriate and ultimate standard of proof, I find that this same collection of strongsimilarities persuades me beyond reasonable doubt that the same man assaulted each of the complainants.

Anchored in BorgesÕidentification of the defendant as his assailant, I am convinced that the man who assaulted Borges is the same man who assaulted each ofthe two other complainants Ð that is, Bruce Hume, the man who is the defendant in this trial. The defendantÕs incriminatory statementonly adds to the strength of my personal conviction in this regard. Accordingly, I find him guilty of the two common assaults and theassault causing bodily harm on which he was arraigned. D.

CONCLUSION [26] In the result, and for the reasons I have just explained, I find the defendant guilty of each of the three assaults with which he wascharged. Released on November 1, 2011

__________________________ Justice Melvyn Green