R. v. J.Ch., 2018 ONCJ 236

WARNING The court hearing this matter directs that the following notice 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 IDENTITY OF OFFENDER NOT TO BE PUBLISHED —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 IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —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 OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. ONTARIO COURT OF JUSTICE CITATION: R. v. J.Ch. , 2018 ONCJ 236 DATE: 2018 03 27 COURT FILE No.: Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — J.Ch. a young person Before Justice E.B. Murray Reasons for Judgment released on March 27, 2018

Mr. Ed Stimec....................................................................................... counsel for the Crown Mr. Paul Quance................................................................... counsel for the young person MURRAY, E. B. J.: [ 1 ] J.

Ch. is charged with five offences: • Robbery with a firearm (victim A.P.) • Robbery with a firearm (victim D.Cl.) • Point firearm (victim A.P.) • Disguise with intent to commit and indictable offence (masked wearing a bandana) • Threaten death (victim D.Cl.) [ 2 ] All offences relate to a robbery which took place on September 13, 2017 in Toronto. [ 3 ] Ch. was also charged with failure to comply with a recognizance in that he was in possession of a weapon that day.

No evidence was offered establishing that Ch. was on a recognizance, and I dismiss that charge. [ 4 ] At trial l heard evidence from A.P., D.Cl., C.H., and S.J., four young people who are former classmates of Ch. at Forest Hill Collegiate. Evidence from a surveillance tape inside the Cl. home a few final seconds of the robbery. The defendant called no evidence.

The robbery [ 5 ] There is consensus about the basic events in the backyard of the Cl. home on September 13, 2017. • P., Cl., H., and J. had arranged during the day to meet after school at Cl.’s home. • At about 5 p.m. they sat on the back porch of the house, playing cards. • Two masked/hoodied young men came around corner of house. One man was a tall Asian and one man was a shorter black (the black guy). The Asian man (the gunman) was holding a gun.

He said “don’t move”. • The gunman took the clip out of gun and showed everyone the bullets, confirming that it was a real gun. • The gunman pointed the gun around at everyone. • The gunman told the black guy to get the backpack located next to P. • The black guy went over to A. and tried to grab the backpack. There was a struggle. The gunman threatened to shoot P., who gave up the backpack. • The gunman stepped forward and tried to grab a gold chain hanging around Cl.’s neck. Cl. stepped back and the gunman threatened to shoot him. • The gunman ripped the chain from Cl.’s neck. • Both robbers fled.

Cl. ran into the house, leaving the others on the porch. • The entire incident took a minute or less, perhaps as little as 30 seconds. • During the action the robbers were close to the witnesses—within 10 feet or less. • Police attended and interviewed all four young people. They all said that Ch. was the gunman. • At 3:40 a.m. the next day a search warrant was executed at Ch.’s house. He was not there. Nothing was found. Ch. was arrested later that day at 1:20 p.m. [ 6 ] There is no doubt that the gunman in this incident is guilty of the five charges above. The only question in this trial is identity.

Is Ch. the gunman? [ 7 ] The Crown submits that Ch.’s identity as the gunman has been established beyond a reasonable doubt. The defence argues that the witnesses are mistaken (or perhaps lying) in their identification, and that the court should have reasonable doubt as to whether Ch. is the gunman.

Evidence [ 8 ] All four young people agree on their description of the gunman -- a tall (5’11-6’) Asian man wearing a dark track suit or dark sweats and a dark hoodie, pulled up to cover the head and sides of the face. They say the neck and lower part of his face (up to the tip or mid-point of the bridge of his nose) was covered by a bandana. They all say they identified the gunman as Ch. by reference to his voice. They agree that he spoke few words; estimates range from 2-15 words.

Some witnesses also reference the gunman’s eyes and movements in making the identification. [ 9 ] All witnesses testified that they were scared and shocked when they saw the gunman with the gun. [ 10 ] There is disagreement among the witnesses about whether there was music playing on the porch that afternoon. All the witnesses, except J., agree that they smoked marijuana at some point; J. has no recollection of whether this occurred. Evidence of A.P.

Before the robbery [ 11 ] P. testified that he went to school that morning with a large amount of cash in his backpack, intending to go shopping for clothes downtown after school. [ 12 ] At lunch time in the school yard P. talked about his plans and the fact that he had cash with him. He admits that he told some friends--- perhaps 5-8 people-- about the cash. P. flashed the wad of cash to some of them, including H. and Ch.. [ 13 ] After school P. encountered Ch. at a bus stop. Ch. invited him to go shopping at Yorkdale. P. declined.

His evidence is that he told Ch. that he was going to Cl.’s to socialize. (P. acknowledged that he told police in the interview on the day of the robbery that he did not tell Cl. where he was going. P., when asked on cross-examination, had no explanation for this inconsistency.) P. boarded a southbound bus. When he left Ch. at about 3:30 p.m., Ch. was standing at a stop for a northbound bus. He was wearing clothes different than those worn by the gunman at the Cl. home an hour and a half later. [ 14 ] At trial P. said he carried $5,000-6000 that day.

In his statement to police immediately after he was robbed, P. said that he was carrying $500-600. P., when asked, had no explanation for the inconsistency. Relationship to Ch. [ 15 ] P. had a close relationship with Ch. prior to the robbery. They had attended Forest Hill together starting in Grade 9, seeing each other at school and socializing outside school. P. testified that he had considered Ch. among his closest friends, at one time “almost a brother”. He said that Ch. had defended him from attacks by other students twice earlier in 2017.

Identification of the gunman [ 16 ] P. testified that he knew the gunman was Ch. “the minute he stepped in…I know his body, the way he looks, his eyes, the way he talks, the sound of his voice”. [ 17 ] P. gave the following description of the gunman. • Face—blue bandana covered lower face; could see face from upper cheekbones to eyebrows—couldn’t see his forehead • Glasses—burberry—hadn’t seen Ch. wear them before, but he had asked me for a similar model (P.’s family owns a glasses store) • Clothes, dark hoodie, up, and dark pants (told police black, but I think it was gray), not baggy • What gunman said: o “Yo, nobody move”; o To Cl. : “don’t move, I’ll blam your foot” • Voice-I know Ch.’s voice very well—I’ve heard his normal, raised, and a deeper raspy voice—the gunman had a thuggish voice, aggressive, threatening, different than Ch.’s usual voice—he tried to disguise it, but I know it was Ch. —I’ve heard Ch. talk aggressive, as a joke, and talk “thuggish” • Accent—I don’t think gunman had one—Ch. doesn’t • Eyes—“Asian”—there are different kinds of Asian eyes, I know these were Ch.’s —I don’t know the eye colour of gunman; I don’t know Ch.’s eye colour, either After the robbery, before police interview

• We talked on the porch before police came — not about identity, but asking ourselves “what just happened?” • Inside the house, I think it was Cl. who said first it was Ch. — but we all thought so, we were “certain” and speechless Evidence of C.H. Before the robbery [ 18 ] P. had a habit of flaunting his money at school and on social media. On the day in question, he told me he had $5-6,000 with him. At lunch he showed me the cash in his backpack. He showed the money to some other people. There were at least 20 people in the school yard at lunch time who heard him brag about the money.

Relationship to Ch. [ 19 ] H. testified that he knew Ch. as a classmate at Forest Hill since they began Grade 9; the robbery took place at the start of their Grade 12 year. H. said he was very familiar with Ch.’s way of speaking and moving from seeing him in class, in the halls, in cafeteria and in the schoolyard. They did not socialize outside school.

Identification of the gunman [ 20 ] H.’s evidence is that he suspected the gunman was Ch. when he saw his eyes, and was “certain” when he heard him speak. [ 21 ] H. gave the following description of the gunman. • Face—bandana covered face up to tip of the nose—I saw the bridge—to the hairline —I could see a bit of dark hair—couldn’t see ears, neck, sides of face • Glasses— yes • Clothes, dark hoodie, up; dark pants • What gunman said: o “Nobody move” o To Cl.: Give me your chain, or I’ll shoot you in the leg • Voice-“yelling”; “slight” accent, but can’t say what; he didn’t try to disguise voice After the robbery, before police interview • All four of us talked, but not about who it was—we all thought the same, it was Ch., no disagreement about that—it was more about why he would do this crazy thing—I don’t remember who said it was Ch. first Evidence of D.Cl.

Relationship to Ch. [ 22 ] Ch. and Cl. have a history of conflict. Cl. met Ch. when they started Grade 9 at Forest Hill. Cl. changed schools in Grade 10, but continued to have some contact with Ch. outside school that year. Cl. testified that in 2016 he was attacked by a group including Ch. Cl. did not report this to police; he wanted to deal with the incident on his own. Cl. testified that in approximately February of 2017, he visited Forest Hill, where he fought with Ch. Cl. considered himself the winner of this fight. [ 23 ] Ch. reported the fight to police, and Cl. was charged.

The charge was eventually diverted, but it was outstanding in September 2017. Cl. admitted on cross-examination that he “hated” Ch. for reporting the incident to police, but maintained that he had no desire to revenge himself on Ch.; in his view his beating of Ch. evened the score between them. However, in his interview with police about the robbery, Cl. offered to give the police information about what he said was Ch.’s involvement in another offence. [ 24 ] Ch. had no contact with Ch. after the 2016 fight, except for the day of the fight in 2017.

Cl. testified that Ch. had been to his house at least once on a previous occasion. Identification of the gunman [ 25 ] Cl. testified that he knew the gunman was Ch. “almost immediately”. The gunman’s movements were suggestive, but his voice “clinched it”. [ 26 ] Cl. gave the following description of the gunman.

• Face—bandana came to a little above tip of nose, across cheekbones, to mid-forehead—could see eyes, as well as eyelashes, a bit of nose, a little bit to side of the eyes (didn’t speak of more than eyes to the police) • Hair—saw short black tendrils poking out by forehead (didn’t tell this to police) • Glasses—don’t remember any • Eyes—Asian, brown, short lashes (told police eyes looked black, but that is scientifically impossible—light was low, made his eyes look black) • Clothes, dark hoodie, up; dark pants, gloves, gray/white Nikes • What gunman said: o Points gun, then “Be quiet, don’t move” o Told black guy to get the bag and to stab P. (not exact words—said after P. refuses to give up bag) o Said he would shoot me in my kneecap after I backed away when he tried to grab the chain • Voice—Can’t describe, but “one of a kind”; Asian accent (not reported to police); gunman was disguising voice • Movement—when he went for my chain, shrugged shoulders up to ears, arms straight down, puffed chest out—I had seen same movements when he fought me earlier (movements not reported to police) After the robbery, before police interview • We didn’t talk about identity of gunman before police arrived.

We gave them statements individually. Evidence of S.J. Relationship to Ch. [ 27 ] J.’s relationship to Ch. was similar to that of H.; he knew Ch. because they both attended Forest Hill from Grade 9, but did not socialize outside school.

Identification of the gunman [ 28 ] J. testified that he was “in shock” during the incident, and that after the robbers left he thought that the gunman’s voice “sounded familiar”, but he only identified him as Ch. after he heard P. and H. say it was him. [ 29 ] J. gave the following description of the gunman. • Face—black bandana covered face up to middle of nose—couldn’t see ears, neck, sides of face—don’t remember if could see eyebrows or forehead • Glasses—yes • Eyes, Asian • Clothes, dark hoodie, up; don’t remember pants • What gunman said: at outset, “don’t move”; don’t remember anything else • Voice—no accent—don’t remember if it was in Ch.’s normal voice or disguised After the robbery, before police interview • H., P., and I were on the porch; they talked about who it might be and I listened • I wasn’t 100% sure it was Ch. until someone (I don’t remember who) said “I know who it is” • We “kind of agreed” who it was The law [ 30 ] The Crown’s case rests on the identification of Ch. as the gunman made by P., Cl., H. and J. [ 31 ] As Justice Trafford sated in R. v.

Tesfai , “Although principles of reasonable doubt do not apply to the fact finding processes of the Court…. where a particular circumstance is central to or a necessary and integral part of proof of an element of an offence beyond a reasonable doubt, such a finding of fact is essentially governed by principles of reasonable doubt”. [1] If the Crown does not establish that Ch. was the gunman, then it has no case. The Crown must prove identification beyond a reasonable doubt.

[ 32 ] Over 20 years ago, the Ontario Court of Appeal observed as follows about eyewitness evidence: The inherent frailties of identification evidence are well known to the law and have been the subject of frequent judicial consideration and comment…. Eyewitness testimony is in effect opinion evidence, the basis of which is very difficult to assess.

The witness's opinion when she says "that is the man" is partly based on a host of psychological and physiological factors, many of which are not well understood by jurists [2] . [ 33 ] Mistaken identification by witnesses has been responsible for wrongful convictions.

Eyewitness identification is particularly dangerous because often witnesses are sincere and confident [3] . [ 34 ] It is a mistake for a court to confuse a witness’s certainty and speed of recognition with accuracy [4] . [ 35 ] Some cases are characterized as cases of “recognition” rather than identification, because the witness has had prior contact with the defendant. The fact of a prior relationship between a witness and a defendant is “a factor that may serve to enhance the reliability” (of an identification).

The reliability of recognition evidence depends heavily on the extent of the previous acquaintanceship and the opportunity for observation during the incident”. [5] [ 36 ] There are cases in which mistaken identification has been made by friends or neighbors. Recognition evidence should still be assessed as to the same factors which strengthen or weaken the identification in other cases [6] . [ 37 ] The witnesses here say that the gunman’s voice played a significant

part in their identification of Ch. as the gunman.

Courts have warned that “voice identification is even more difficult than visual identification requiring an even more stringent warning of the dangers of such identification”. [7] [ 38 ] Courts have identified a number of factors to be considered in weighing voice identification evidence. [8] I list below factors applicable to this case, drawn from a number of cases. [9] • Is the witness sufficiently familiar with the subject’s voice to identify it • The size or length and repetition of exposure to the voice of the subject • The length of time the witness heard the voice • Condition of the witness when hearing the voice—groggy, alert, stressed? • Physical proximity of the witness to the speaker • Outside auditory influences • Was the identification process compromised—e.g. outside assistance in identifying the voice • Is there some peculiarity, mannerism or distinctive feature to the subject’s voice that would make it more readily identifiable • Was there a voice identification parade • Confidence level of the witness—while confidence does not substantially correlate to reliability, the witness’s lack of confidence is probative • Might the subject have disguised his voice?

Is the subject’s voice not “normal” because of illness, stress, emotional state? • Is there circumstantial evidence, whether from content, surveillance or otherwise, tending to confirm the identified subject as the speaker?

Analysis [ 39 ] The frailties of the identification evidence in this case are numerous. • The witnesses saw the gunman for a very brief time, during which they were shocked and scared. • Most identifying features of the gunman were hidden by the bandana and the hoodie • The description offered of the gunman’s eyes (“Asian”) and other features was by and large generic, and applicable to many young people in Toronto schools. • The gunman said very few words. • Although one witness said that the gunman’s voice was “distinctive”, no distinctive features were identified. • Three witnesses said that the gunman was trying to disguise his voice. • Two said he had an accent, and two did not. • Music may have been playing during the incident. • I find that at least for three witnesses, the process of identification was compromised.

I find it unlikely that the witnesses did not discuss among themselves the identity of the masked gunman before police arrived. These witnesses are young people who have had no

experience with criminal investigations, and they would have no reason to refrain from such a discussion.

I accept J.’s evidence that he, H., and P. “tried to figure out” who the gunman was before being interviewed by police. • With respect to J.’s identification in particular, I find that it is unreliable, given his candid statement that his final identification relied upon his acceptance of the opinion of H. and P. [ 40 ] At first blush, Cl.’s evidence about identification appears more robust than that of the other witnesses, in that he offered a detailed description of the gunman’s distinctive movements, movements that he said were the same as those he had observed in Ch. when they were fighting.

His evidence is weakened by the fact that he reported nothing of this movement pattern to police when he was asked why he knew the gunman was Ch. His evidence is further weakened because, although he said the gunman’s voice “clinched’ his identification, he could give no description of the voice (e.g., tone, speed, unusual vocabulary) aside from saying it was “Asian”. [ 41 ] There is also evidence that Cl. had animus against Ch. I do not suggest that Cl. intentionally misrepresented any facts.

However, I find it likely that because of his “hatred” of and negative experience with Ch., Cl. was pre-disposed to “fill in the gaps” in his picture of the gunman with Ch.’s image. [ 42 ] I do not find Cl.’s evidence on identification reliable. [ 43 ] The evidence of P. and H. remains to be considered. Most of the difficulties noted in paragraph 39 above applies to their evidence. H. says it was the gunman’s voice that convinced him it was Ch., but he did not testify; as to anything distinctive about the voice, other than to say it had a slight accent that he could not identify.

P.’s identification rested on the eyes, which he could only describe as Asian, and the voice, which he said was disguised. [ 44 ] Also troubling is the inconsistency in what P. told the police and what he told this court on two points—the amount of money he carried that day and whether he told Ch. where he was going after school. P. has no rational explanation for these incon​sistencies. [ 45 ] Balanced against the frailties of the identification evidence of P. and H. there are two factors. [ 46 ] First, this is a case of recognition, not identification of a stranger.

P. and H. knew Ch. over a three-year period of time and saw and heard him in a variety of situations [10] .

They had no motive to lie about Ch. to be pre-disposed to see him as a robber. [ 47 ] Second, the circumstantial evidence can support a finding that Ch. was the gunman. • A limited number of people knew that P. carried a large amount of money in his backpack that day. • P.’s evidence, if accepted, establishes that Ch. knew where P. was going after school. • Ch. had been to Cl.’s house at least once before. • The gunman almost immediately directed his associate to get the backpack, demonstrating that he knew it contained something of value. • The gunman’s gratuitous grab of Cl.’s necklace is consistent with the bad blood which existed between Cl. and Ch.. [ 48 ] For the court to rely on circumstantial evidence to support a finding that Ch. was the gunman, the Crown must prove beyond a reasonable doubt that his identity as such is the only r ational inference which can be drawn from the facts. [11] [ 49 ] I do not make that finding.

The inconsistency in P.’s statement as to whether he told Ch. where he was going that afternoon is sufficiently concerning that I cannot find that Ch. knew that P. would be at Cl.’s home. Although P. may have had no animus against Ch. at the time of the robbery, by the time of trial he may have been motivated to punish him for the loss of the money. Further, there are other non-speculative inferences that can be drawn from the facts in this case, other than the inference that Ch. was the gunman.

There were at least 5-20 others, if not more, that heard P. brag and show off his money that day in school, who could have taken steps to seize the money. [ 50 ] I find Ch. not guilty of the charges. Released: March 27, 2018 Signed: Justice E. B. Murray