R. v. Odette, 2017 ONCJ 71

ONTARIO COURT OF JUSTICE CITATION: R. v. Odette , 2017 ONCJ 71 DATE: January 5, 2017 BETWEEN: HER MAJESTY THE QUEEN — AND — ADAM ODETTE Before Justice F. Javed Heard on November 22, December 8, 2016 Reasons for Judgment released on January 5, 2017 D. Slessor ......................................................................................... counsel for the Crown M. Wyszomierska .............................................................................. counsel for Mr. Odette F. Javed J.: Introduction [ 1 ] Adam Odette is charged on an information alleging the following criminal offences contrary to the Criminal Code :

(1) Robbery with a knife – s.343(d);

(2) Possession of a knife for a dangerous purpose – s.88(1); and

(3) Unlawfully in a dwelling house – s.349(1). [ 2 ] The Crown proceeded by indictment. Mr. Odette elected to have a trial before me. [ 3 ] The allegations involve a “home invasion” style robbery of the victim Doug Baker by two assailants. The live issue in the case is the identification of the perpetrators. The Crowns’ theory is that Mr. Odette was one of the two parties involved in the home invasion.

Procedural History [4] The trial, through no fault of either counsel, took many detours before it was completed. The detours are important to theresolution of this case. [5] First, Mr. Odette was in custody at the time the trial started. I ruled on a defence application to remove his hand restraints and legshackles. The Crown opposed the application citing security concerns. The law is clear that there is a presumption that accused personsappearing in court should not be restrained unless the need for restraints has been justified by the Crown: R. v.

McNeill (1996), (ON CA), 29 O.R. (3d) 641 (C.A.) In support, the Crown called Cst. Brian Concepcion of the Durham Regional PoliceService (DRPS). After hearing evidence on the issue, I ordered that Mr. Odette’s hand restraints be removed while he was in the prisonerbox but his leg shackles remain. I was satisfied that any security concerns could be mitigated by such an order. [6] Second, the Crown called the complainant, Doug Baker who could not identify his assailants. I will discuss his evidence below.The Crown then called their second witness, Peter Mischanuk. Mr.

Mischanuk was in custody at the time at Central East CorrectionalCentre (CECC). A judges’ order was secured by the Crown to procure his attendance at the trial. On the trial date, I was advised by Mr.Slessor that CECC had indicated that Mr. Mischanuk refused to leave the facility citing medical issues, namely, he didn’t get his dose ofmethadone. Mr. Slessor applied for a material witness warrant under s.705 of the Criminal Code. This application was resisted by thedefence. On the voir dire, Mr. Slessor tendered the 911 recording of Mr. Mischanuk to establish that he had material evidence to give.

Atranscript of the 911 recording was filed as an exhibit on the voir dire. I agreed with the Crown’s position that Mr. Mischanuk whoidentified himself on the 911 recording, did have material evidence to give, namely, providing the name of Mr. Odette as a person whomay be involved. The material witness warrant was granted returnable in the near future. [7] To alleviate any prejudice, Mr. Slessor, quite reasonably in my view, agreed to release Mr. Odette on stringent bail conditions. [8] On the return date, Mr. Mischanuk refused to attend court, yet again.

With the consent of the parties, I compelled him to appearthrough video (on the same date) as I was concerned about three things: (

a) potential medical issues that he cited on the last occasion and(

b) the refusal of the authorities to bring him to court as required by the judges’ order and (

c) the material witness warrant. I advised Mr.Mischanuk that he was entitled to get independent legal advice from his counsel, Mr. Affleck about his position on failing to attend andpossibly being cited for contempt. I remanded him to the continuation date for the trial. I was concerned about the possiblecontemptuous actions of the authorities as well in failing to execute the courts’ orders. I asked that a representative attend to determine ifI should cite the authorities for contempt “in face of the court”. [9] On the continuation date, a representative of the CECC appeared.

Based on the explanation provided, the reasons for which arenot germane to this trial, I was satisfied that there was no contempt in face of the court. The matter was remanded to November 22, 2016for continuation of the trial. [10] On November 22, 2016, Mr. Mischanuk, still in custody, appeared in court and was called by the Crown. In

summary, hetestified that he could only “vaguely” identify Mr. Odette based on what he was told by a third party while he made observations fromthe peep hole of his apartment across that of Mr. Baker. Mr. Slessor applied under s.9(1) of the Canada Evidence Act (CEA) to have Mr.Mischanuk declared an adverse witness as well as under s.9(2) to cross-examine him on inconsistencies between his trial and out of courtevidence (the 911 call/videotaped statement). In brief reasons, I allowed the s.9(2) application but did not immediately grant the s.9(1)application as he had not proven “adverse”. Mr.

Slessor ultimately abandoned the s.9(1) application. [11] On December 8, 2016, I heard submissions on the admissibility of the 911 recording. In an oral judgment, I ruled that that it wasadmissible as a res gestae exception to the hearsay rule and to the extent that it was necessary, threshold reliability had been met underthe principled exception to the hearsay rule. The question of weight, if any, would be left with the trier of fact. I then heard finalsubmissions and reserved judgment. [12] Within this backdrop, these are my reasons on whether the Crown has proven beyond a reasonable doubt that Mr.

Odette wasinvolved in the offences. For completeness, my reasons on the admissibility of the 911 recording should be read in conjunction withthese reasons. The Positions of the Parties

[13] Mr. Slessor made brief and focused submissions in support of his position that the offences have been proven. He submits thatthe 911 call is a “key” piece of evidence in which Mr. Misanchuk identifies Mr. Odette as being involved. He anchored his position onthe submission that this is a recognition, not identification case as Mr. Mischanuk knows Mr. Odette. [14] Ms. Wyszomierska submits that the 911 call does not assist in proving that Mr. Odette was involved as it suffers from the samefrailties inherent in identification evidence.

Analysis [15] In my view, this is both a case of identification and recognition evidence. That said, I agree with the defence submission thatrecognition evidence can suffer from the same frailties as identification evidence. Accordingly, I must proceed with caution. I haveguided myself on how to assess the evidence pursuant to the controlling principles in R. v. Gough, [2013] O.J.

No. 713 (C.A.), whereEpstein J.A. on behalf of the Ontario Court of Appeal wrote as follows beginning at paragraph 35: 35 Being notoriously unreliable, eyewitness identification evidence calls for considerable caution by a trier of fact: R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197, at pp. 1209-10; R. v. Bardales, (SCC), [1996] 2 S.C.R. 461, at pp. 461-62; R. v. Burke, (SCC), [1996] 1 S.C.R. 474, at p. 498. It is generally the reliability, not the credibility, of theeyewitness' identification that must be established. The danger is an honest but inaccurate identification: R. v.

Alphonso, 2008 ONCA238, [2008] O.J. No. 1248, at para. 5; Goran, at paras. 26-27. 36 The trier of fact must take into account the frailties of eyewitness identification in considering such issues as whether the suspectwas known to the witness, the circumstances of the contact during the commission of the crime (including whether the opportunity to seethe suspect was lengthy or fleeting) and whether the circumstances surrounding the opportunity to observe the suspect were stressful; R.v. Carpenter, [1998] O.J. No. 1819 (C.A.), at para. 1; Nikolovski, at 1210; R. v.

Francis (2002), (ON CA), 165O.A.C. 131, [2002] O.J. No. 4010, at para. 8. 37 As well, the judge must carefully scrutinize the witnesses' description of the assailant. Generic descriptions have been considered tobe of little assistance; R. v. Boucher, 2007 ONCA 131, [2007] O.J. No. 722, at para. 21. The same can be said of in-dock or in-courtidentification; R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at 468-69; R. v. Tebo (2003), (ON CA), 172 O.A.C.148 (Ont. C.A.), at para. 19. [16] These principles were recently affirmed in R. v. Oliffe, 2015 ONCA 242 which dealt with recognition evidence.

Hourigan J.A.wrote at para. 39 … “recognition evidence is merely a form of identification evidence. The same concerns apply and the same cautionmust be taken in considering its reliability as in dealing with any other evidence: R. v. Spatola, (ON CA), [1970], 3O.R. 74 (C.A.), at p.82; R. v. Turnbull, [1977] Q.B. 224 (Eng. C.A.) at pp.228-229.” [17] Applying the above principles, I must consider whether on the whole of the evidence, I can conclude that the Crown has provenMr. Odette’s identification.

I am reminded by defence counsel that the record upon which I must conduct my analysis, including,credibility assessments is the evidence of Mr. Baker, Mr. Misanchuk’s in court evidence and the 911 recording. The Crown did not seekto tender Mr. Misanchuk’s videotaped statement to the police for its truth. (

i) Evidence of Doug Baker [18] The outcome will largely turn on the evidence of Mr. Misanchuk as Mr. Baker couldn’t identify his assailants. He testified thathe lives at 304 Simcoe St. in unit 11. At around 11:00 pm/12:00 am, he was watching television and using oxycontin, which was on histable. He had just used one pill. He left the front door unlocked, which he would sometimes do for his girlfriend. He heard a knock onthe door and before he could open the door, two men barged in. They tackled him and pinned him to his recliner. Both said “looking forthe pills”. He directed them to the oxycontin on the table.

One male held a three-inch pocket knife to his neck while the other went forthe pills. He tried to hit one male but got punched. [19] He testified that a friend across the hall (Mr. Misanchuk) heard the commotion and heard a bang on the door, which was closed.

The two men locked the door to prevent him from coming in. A voice said “calling the police”. The two men left. He said Mr.Misanchuk saw their backs as they left. [20] He stated that he didn’t have his eyeglasses on but recalled the first assailant who pinned him down as wearing “ a dark winterjacket, other dark clothing with a toque on his head”. He was wearing winter gloves but couldn’t say what colour his hair was. He was inhis “early 30’s around 160 pounds, 5’8”. This male was rubbing his gloves in his face. [21] He couldn’t identify the second person – the individual who took the pills.

He thought that this person had a pellet gun or BBgun in his waistline. It wasn’t pulled out and looked fake. [22] The whole ordeal happened fast, possibly, 5 minutes. [23] The police arrived and spoke to Mr. Misanchuk. He recalled Mr. Misanchuk’s brother being present as well. (ii) Evidence of Peter Misanchuk [24] Mr. Misanchuk was a reluctant witness to say the least. As noted above, he didn’t attend on the first date when subpoenaed as hewas in custody and indicated that he hadn’t been administered his methadone.

While I have some concerns with the veracity of thisclaim, given the health risks associated with such a claim, I proceeded cautiously. In any event, I contemplated citing Mr. Misanchuk forcontempt in the face of the court, but the issue dissolved with him receiving legal advice from his counsel, Mr. Affleck. I permitted theCrown to cross-examine him under s.9(2) of the CEA based on his inconsistencies between his in court evidence and his statements tothe 911 operator and the police. In particular, the significant omission from both was his evidence that he was given the identification ofMr.

Odette from his brother’s girlfriend who was present with them. He had not seen Mr. Odette himself. As noted, Mr. Slessor didn’tpursue the application under s.9(1) of the CEA. [25] The concepts of reliability and credibility are intertwined and bear repeating given their application to this case. In R. v. H.C.,2009 ONCA 56, Watt J.A. explained the difference between credibility and reliability. At paragraph 41 he noted that the concepts aredifferent. “Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony.

Accuracy engagesconsideration of the witness’s ability to accurately observe, recall and recount events in issue. Any witness whose evidence on an issue isnot credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a crediblewitness may give unreliable evidence: R. v. Morrissey (1995), (ON CA), 22 O.R. (3d) 514, at 526 (C.A.)”. [26] As a general observation, there were significant concerns with both the reliability and credibility of his account. [27] First, Mr.

Misanchuk testified that prior to making the 911 call, he was on a “bender” for a few days smoking heroin and crack.Accordingly, he was high when he made his observations. There is nothing on the record that contradicts the veracity of this assertion. Infact, he acknowledged his criminal record, which contains convictions for drugs. He didn’t tell this to the 911 operator or the police forthat matter, but I can’t take anything from that. He was responding to a home invasion as it occurred. It would be unrealistic to make thisfront and center to a 911 operator.

In any event, that is the lens from which I must assess the reliability of his observations when he madethe 911 call and his in court evidence. Clearly, this would constitute a “stressful” opportunity to make an accurate observation. [28] Second, Mr. Misanchuk waffled in his in court testimony identifying Mr. Odette. He went from not seeing him at all to“vaguely” identifying him. He explained that he was told of his identity from his brother’s girlfriend, Erin who he had no reason todisbelieve. He did not tell this to the 911 operator and was cross-examined by Mr.

Slessor under s. 9(2) of the CEA on this omission. Ihave grave difficulty in accepting the credibility of this account and find that he did identify Mr. Odette on the 911 call. As such, I rejecthis in court testimony for the following reasons:

(1) Mr. Misanchuk had a clear motive to lie about his identification as it’s clear that heknew Mr. Odette and didn’t want to be “a rat” and put his life in danger,

(2) Ms. Wyszomierska submits that the 911 call makes it clearthat Mr. Misanchuk made all observations in the past tense – after the home invasion had taken place. I disagree, in part. The callerclearly tells the operator in language using present tense. He says: “We have them, they can’t get out the door because we got stuff in it”.

(3) Ms. Wyszomierska submits that his account is supported by the call as one could hear the voice of a woman, ostensibly, Erin. I haveheard the 911 call several times and can’t be clear one way or the other that a voice of a woman is heard. The audio is not ideal as thereis some interference. Further, there is no corroborating evidence to support this assertion. There’s no evidence that the police met with awoman upon arrival or no evidence from Mr. Baker that he too saw a woman, unlike seeing Mr. Misanchuk’s brother. It’s clear from the911 call that the police arrived as Mr. Miscanhuk was still speaking to the 911 operator.

[29] On the whole of the evidence, I conclude that the 911 call represents a more credible account of Mr. Misanchuk’s purportedidentification. But does this mean that his identification of Mr. Odette to the 911 operator is also reliable? For the following reasons, Ifind it is not. [30] First, I harbor a doubt that Mr. Misanchuk was not high on drugs when he made the 911 call. While little evidence was leadabout the effect of drugs on Mr. Misanchuk, I can reasonably infer that a lengthy “bender” of heroin and crack would impact one’sability to make accurate observations. [31] Second, Mr.

Baker’s evidence does not assist in corroborating Mr. Misanchuk’s account. While there are similarities in thedescription of the dark clothing and toque, there is a major difference between the height of who is purportedly Mr. Odette (as the firstassailant). Mr. Baker said the individual was 5’8 and Mr. Misanchuk told the 911 operator, he was “about 5 foot”. In my view, this is asignificant difference. I agree with the defence that it’s exculpatory in its reach and must be assessed along with the rest of the evidence:Oliffe, supra at para. 46.

There’s such a significant discrepancy in height that I’m not even sure it can be chalked up to a resemblance asopposed to a positive identification. As noted by Pigeon J. in Chartier v. Quebec (Attorney General), (SCC), [1979] 2S.C.R. 474 (SCC) at p.494: … [R]egardless of the number of characteristics, if there is one dissimilar feature there is no identification.… The witness did therefore did not identify him; he merely noted a resemblance. [Emphasis added] [32] I have considered Mr. Slessor’s submission that on the 911 call, Mr.

Misanchuk described the second assailant with a beardwhich leads to an inference that he must have seen faces of both assailants. I have difficulty in accepting the reliability of this account. Ido so because there is also a discrepancy in what exactly occurred with Mr. Baker. Mr. Misanchuk told the 911 operator that “they hadhim tied up” which was not the evidence of Mr. Baker who said one assailant tended to him while the other tended to the drugs.

Theimportant implication of this would mean that if true, both assailants would be free to roam around providing more opportunity to be seenby others as opposed to Mr. Baker’s account. There is no independent or other evidence that Mr. Baker was tied up. The implication ofthis is that Mr. Misanchuk’s recollection was not reliable on this issue, which also calls into question the accuracy of his ability to recalldetails, such as the facial features of the parties. In any event, Mr. Baker did not say the second assailant had a beard, which is adistinctive feature and reasonably not to be missed. Mr.

Slessor did not suggest that I should also reject the evidence of Mr. Baker. I haveno reason to do so and found him credible in his account. [33] Third, the circumstances of the observations were less than ideal. Mr. Misanchuk told the 911 operator that “they took off”implying the past tense. He later said “Like I just caught it as it happened. I was coming up”. This also implies that Mr. Misanchuk didn’tsee all of the events as they unfolded and pieced it together. This is consistent with the account of Mr. Baker who said Mr.

Misanchuksaw their backs as they were leaving after he had banged on the door and said “calling the cops”. Accordingly, it’s unclear when and howMr. Misanchuk would have made a reliable facial recognition. [34] It would be an error to treat the evidence of Mr. Misanchuk, in that he knew Mr. Odette and therefore made a facial recognition,with less caution. Again, the law is clear that the same level of caution must be applied as it would be to identification evidence.Regardless, there is little evidence as to the circumstances in which they knew each other.

For example, I do not know if they werefriendly or passing acquaintances. I do not know the last time they met or spoke to each other. On the whole of the evidence, even afterrejecting Mr. Misanchuk’s explanation that he didn’t identify Mr. Odette, the weight of the authorities on recognition evidence also leadme to conclude that it would be unsafe to place reliance on the identification based on the 911 call. The identification was made instressful circumstances as Mr.

Misanchuk’s friend was being robbed, he himself was high on drugs and on the evidence that I accept,made a fleeting observation of the assailants’ backs. It may be that Mr. Misanchuk made an honest but mistaken identification to the 911operator. While there may be other reasons to doubt this, the honestly held but mistaken belief is equally consistent with his reluctancebased on the record before me. Accordingly, the identification evidence is unreliable. Conclusion [35] For the foregoing reasons, it would be unsafe to convict based on the identification/recognition evidence in this case.

Since thereis no other evidence that proves Mr. Odette was involved, he will be found not guilty of the offences. Released: January 5, 2017

“F. Javed J.”