R. v. Narayanapillai, 2013 ONCJ 324

Citation: R. v. Narayanapillai , 2013 ONCJ 324 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — ASHOK NARAYANAPILLAI and CONG QUOK TRAN ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) J. Bruno For the Crown D. Gosbee For the Defendant Narayanapillai M. Peck For the Defendant Tran Heard: July 11, 2012 and January 25 and April 18, 2013 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] Christopher Marcos was savagely beaten outside a club in Toronto’s Entertainment District as the bars were closing on June 18, 2011.

He recalls little of the incident and nothing about his assailants. There is no evidence of any historical animus or even association between Marcos and either of the two men charged with assaulting him. There is no evidence of motive or any other explanation for the assault. And there is no evidence of any prior acquaintance, let alone relationship, between the two defendants. [ 2 ] The defence concedes that Marcos was the victim of an assault and that his injuries amount to bodily harm.

The sole issue is the identity of the person or persons who perpetrated the assault or, more exactly, whether either or both of the defendants, Ashok Narayanapillai and Cong Quoc Tran, assaulted Marcos and thereby caused him bodily harm – the single offence with which both are charged.

[ 3 ] Four Toronto Police Service officers who were on uniformed bike duty in the Entertainment District on the night in question carry the Crown case in regard to the issue of identity. Neither defendant testified, nor was any other witness called by either of them. The onus of establishing that either or both of the defendants participated in the assault rests on the Crown and, as always, on a standard of proof beyond reasonable doubt. B. EVIDENCE (

a) Introduction [ 4 ] I first review the testimony of the complainant Marcos. As already noted, his evidence is ultimately unhelpful on the question of the identity of the person or persons who attacked him. I then turn to the evidence of the three officers (PCs Poole, Snow and Metzger) upon whose accounts the Crown relies to identify the defendant Narayanapillai as one of the assailants. Finally, I canvass the account of a fourth officer, PC Shin, whose testimony is the only evidence connecting the defendant Tran with the assault.

In assessing this evidence, I bear in mind that the presenting scenario is not one where only two persons – let alone the named defendants – had an opportunity to inflict the grievous harm suffered by Marcos, nor is it one where the injuries sustained by Marcos were necessarily caused by more than one person. (

b) The Complainant’s Account [ 5 ] The complainant Marcos and some friends were at the “Lot 332” club (also known as the “Live” nightclub) at 332 Richmond Street West in Toronto’s “Entertainment District” on the evening of June 18, 2011. The club is on the north side of Richmond. Marcos left the club between 1:30 and 2:00am and sat on the curb outside. He was admittedly “drunk”. He recalls being attacked – punched and kicked – by “multiple people” and then being led into an ambulance. He could not identify the number or gender or race of his assailants.

Marcos conceded having little if any memory of the material events, or of those in the hours preceding and following his assault. Nor could he reliably recall what he told the police when first interviewed. [ 6 ] Marcos was hospitalized. His face was cut and bruised and he was later told he suffered a concussion. His ribs and torso were also painfully contused. The healing process took time but, fortunately, there were no lasting injuries apart from some scars over his left eye and on the back of his head. (

c) The Evidence Respecting Narayanapillai (

i) Introduction [ 7 ] All four of the police witnesses were members of TAVIS (“Toronto Anti-Violence Intervention Strategy Rapid Response Team”) and all were assigned to enforcement duties in the Entertainment District as the bars emptied on June 18, 2011. Three claimed to have witnessed the defendant Narayanapillai kick Marcos in the head as he lay on the ground. He was arrested less than a minute later as he moved east on Richmond.

Each of the three officers described Narayanapillai’s clothes and appearance, but their recall is based on the opportunity to observe him after his arrest and, in any event, they are generic descriptions bereft of any distinguishing features. None of the four officers noted or recalled the presence of any blood on either of the two defendants.

One officer, PC Snow, agreed that he and the other three police witnesses “discussed what happened” before or as they recorded their notes. [ 8 ] I intend to independently review the evidence of each of these three police witnesses as their accounts differ in certain aspects. That provided by the fourth officer, PC Shin, also demonstrates some material variations from the evidence of his colleagues.

Before embarking on this evidentiary review, I note that each of the four officers had a somewhat different optic on a brief, dynamic and quickly evolving situation that, for at least some of them, was interrupted or partly obstructed. I note, as well, that the police witnesses consistently speak of crowds of racially and ethnically diverse persons in the immediate vicinity of the assault. (ii) PC Candice Poole [ 9 ] PC Poole was on her bike on the south side of Richmond when she observed a fight or melee in front of the club at 332 Richmond West.

There were throngs of people on the street and gridlock traffic on Richmond. A man was lying on the street – not the sidewalk – in front of the club. Poole saw a brown-skinned man kick the head or face of the man on the ground. She testified the blow was “like a soccer kick” as the kicker extended his leg backwards and then swung it forwards with “quite a lot of force”. Poole was on her bike when she made these observations, although she could not recall whether she was then moving or in a static position.

She was also uncertain how far she was from the assault other than that she “could distinguish that there was a male laying on the ground” and that she “then … could distinguish there was a male kicking him”. In cross-examination, Poole was certain that she was less than 100 metres from the assault she described, but she could not say if she was less than 50 metres distant. She also could not say if the man on the ground was moving or still at the time of the kick, or whether he moved as a result of the blow.

She could also not say whether the kick “made contact or if it didn’t make contact”. “Maybe my view was obstructed”, she allowed, by way of explaining her uncertainty. [ 10 ] There were a number of mounted officers in the vicinity. One of them knocked the brown-skinned man off balance as he wound up for a second kick. The man then ran east on Richmond, his back to Poole. She got off her bike and followed the man, intending to effect his arrest. She did not, she says in direct examination, lose sight of the man she pursued at any point during the incident.

In cross-examination, however, Poole conceded that she could not recall if her focus was interrupted, if only momentarily, as she dismounted. A second officer, PC Snow, grabbed the man within a block of the Live club. She could not recall whether she or Snow first made contact with the man, whether she or Snow took him to the ground or whether she or Snow handcuffed the man. She was sure, however, that she was a participant in the man’s apprehension.

The defence concedes that the arrested man is the defendant Ashok Narayanapillai. [ 11 ] Poole remained with the defendant Narayanapillai until he was transported to the station. Apart from her notes, Poole claimed an independent recollection of the events that evening. She could not recall seeing an Asian male hit the prostrate man, nor could she

recall seeing anyone other than the man she identified as the kicker assault that man. She could not recall what her partner PC Metzger “was doing at that time”. She had no recall of seeing Metzger during the assault or, soon after, during the apprehension of Narayanapillai. Poole agreed that the presence or absence of blood was “a pretty significant point”, but she had neither a notation nor an independent memory of whether there was any sign of blood on Narayanapillai. (iii) PC Royan Snow [ 12 ] PC Snow saw a crowd of dozens forming around what appeared to be an altercation in front of the Live nightclub.

He was about 50 to 70 feet distant at the time. As Snow approached to within about 20 to 25 feet, he saw a man lying on his back on the sidewalk near the curb. The man had a “significant amount” of blood on his face. A “male brown” then kicked the man on the ground in the head; “like a soccer kick”, is how Snow describes the blow. The kicker appears to have lost his balance on a second kick, his foot failing to make contact with the man on the ground. The kicker (who Snow identified as the defendant Narayanapillai) then walked east along Richmond as Snow moved west in his direction.

Narayanapillai moved hastily, but he was not running nor, in Snow’s view, did he look like someone escaping from the scene of a crime. Narayanapillai shrugged off the effort of a mounted officer to grab his shirt and continued walking eastbound. Snow physically grounded Narayanapillai as he came within an arm’s length. This was within a “very few seconds” of the kick Snow had observed. Other officers then arrested Narayanapillai and he remained in Snow’s company for the next 10 or 15 minutes. [ 13 ] Snow never lost sight of the kicker. He could not recall the victim moving.

He did not see anyone stomp the man on the ground, nor did he see anyone other than the defendant Narayanapillai have any physical contact with him. Snow’s observations of the incident lasted mere “seconds”. Further, crowds and traffic obstructed his view. Snow did not note or recall seeing any blood on Narayanapillai or his clothes; he would have noted the presence of blood had he seen any. (iv) PC Kati Metzger [ 14 ] PC Metzger saw a man with a bloody face on the ground in front of 332 Richmond. A brown man standing over him kicked the prone man in the face.

The man on the ground was using his hands and feet to defend himself and disturb the standing man’s effort to land a second kick. The kicker broke free of a mounted officer’s attempt to grab him and was ultimately grounded by PC Snow, less than a minute after the kick. Metzger assisted in the man’s arrest. She could not recall her position or how far away she was from the kick when she observed it. Nor did she have a good recollection of the kicker’s appearance. She could not identify the kicker in court.

She was sure, however, that the man Snow apprehended was the same man she saw kick the man on the ground. [ 15 ] It was very congested in front of the club but Metzger insisted she had a “clear view”. She did not see any other brown males or any Asian male involved in the assault. (

d) The Evidence Respecting Tran [ 16 ] PC Jay Shin was PC Snow’s partner on June 18, 2011. He was the only witness to implicate the defendant Tran. [ 17 ] Shin saw a large crowd spill out from the front of the Live club to the street. As he biked towards the scene he observed a white man lying face up on the ground. The man was “covered in blood”. The crowd started to clear as Shin approached on his bike leaving only a “male brown” and a “male Asian” over the man on the ground.

Although his estimates varied, Shin believes he was approximately 10 to 20 feet distant when he saw the Asian man violently stomp his right foot down onto the prostrate man’s face. Without pausing, the Asian man then violently kicked the head of the man on the ground “like it was a soccer ball”. Shin immediately got off his bike, pulled the Asian man back about five to seven feet from the man on the ground and arrested him “right there at the scene”. Only seconds had passed since Shin witnessed the assault. He identified the person he arrested through his driver’s licence as the defendant Tran.

Shin also identified him in court. [ 18 ] Although he had been on patrol with PC Snow, Shin was unable to recall his partner’s location. Nor could he recall seeing any of the other officers on his patrol during the incident. He explained several times that he experienced “tunnel vision” which limited his focus to the assaultive conduct he testified to witnessing that evening. His focus was so narrow that his only observation of the “male brown” (the second man) was that “he was also there in the melee”.

Although he later noted a physical description of a “second accused” after he was taken into custody and processed, he could not say if this person was the same brown man he had seen during the incident. Shin did not know if any mounted units were involved in the events. [ 19 ] Shin made no notation of the defendant Tran’s shoes. Nor did he note any injuries or blood on Tran. Shin said he “didn’t look for blood”, but he recalled that there was none on Tran’s shirt.

Shin described the man on the ground as “very bloody”. [ 20 ] Shin’s examination extended over two widely separated court days, July 11, 2012 and January 13, 2013. On the first day, he testified that he made a beeline straight to the scene as soon as he first witnessed the assault. He was not impeded by traffic as “there were no cars” in the vicinity, a circumstance he attributed to the police shutting down certain streets in the Entertainment District to help clear the area as the bars closed.

On re-entering the witness box some six months later, Shin recalled that the four lanes of vehicular traffic in front of the club were virtually at a “standstill”. Confronted with his earlier testimony, Shin endeavoured to reconcile the two accounts by explaining that he had earlier meant that no cars had obstructed his view of the assault. [ 21 ] Although the “male brown” was in the vicinity, Shin initially testified that he did not see this man, or any other person other than the defendant Tran, have any physical contact with the bloodied man.

As earlier noted, Shin, in direct examination, situated the bloodied man on the ground when he first saw him. Months later, Shin testified that his first observation of the three men – the white man he had earlier described lying face-up on the ground, the “male brown” and the “male Asian” – was as all three emerged from the crowd. They were standing and grabbing at each other. Shin could not recall how the white male victim ended up on the ground, but he was sure that he did not see the brown man strike or kick anyone.

C. ANALYSIS (

a) Introduction [22] There is no legal obligation on a defendant to testify at his or her trial, nor may any adverse inference be drawn from adefendant’s failure to do so. Realistically, however, where a defendant, as here, does not testify and where, again as here, no evidence ofa prior exculpatory statement is adduced, there is no basis to locate reasonable doubt, if at all, in the defendant’s account of the events. Nonetheless, there is no reduction or transfer of the burden of proof borne by the Crown.

The ultimate question remains whether theevidence led by the Crown establishes to the requisite criminal standard that either or both of the two defendants assaulted thecomplainant Marcos on June 18, 2011. Given concerns naturally arising from certain inconsistencies in the police testimony and thejudicial vigilance required in all cases involving identification evidence, I first turn to the legal principles that govern these inquiries andthen move to their application in the circumstances of the case before me. (

b) The Governing Law [23] I shall soon address the significance, if any, of a number of internal and inter-officer inconsistencies in the police evidence. These alleged inconsistencies, along with the circumstances surrounding the police witnesses’ observations, compel a close analysis ofthe credibility – in the sense of both the veracity and, in particular, reliability – of the police testimony. (See, for example, thediscussions of these two axes of testimonial trustworthiness in R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193(Ont. C.A.), at 205, and, more recently, in R. v.

Thomas, 2012 ONSC 6653 , 2012 ONCS 6653, at para. 13.) This is not a he-say/she-say case. Nonetheless, the essential credibility assessment finds purchase in the logic of R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.). Reprising my comments in R. v. Myrtaj, [2012] O.J. No. 178, at para. 31: [T]he W.(D.) formulation applies not only to the resolution of directly conflicting evidence between an accused and a complainant but, assaid in R. v. B.D. (2011), 2011 ONCA 51 , 266 C.C.C. (3d) 197 (Ont.

C.A.), at para. 114, to “credibility findings … arising outof evidence favourable to the defence in the Crown’s case”. (See, also, R. v. Robinson, [2011] O.J. No. 4854 (Sup. Ct.), at para. 35.) [24] Further, as I commented at para. 32 in Myrtaj by way of summarizing important principles of general application to theassessment of credibility and the finding of facts based on that exercise: Like any trier of fact I may, with reason, accept none, some or all of the evidence of any witness: R. v. J.H.S. [(2008), 2008 SCC 30, 231 C.C.C. (3d) 302], at para. 10; R. v. Francois, [1994] 2 S.C.R. 27, at para. 14; R. v.

M.R., 2010 ONCA 285, at para. 6; R. v.Abdallah, (ON CA), 125 C.C.C. (3d) 482 (Ont. C.A.), at paras. 4-5. I can, again with reason, also accord differentweight to different parts of the evidence that I do accept: R. v. Howe, (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), atpara. 44. [25] As several times earlier noted, the sole issue in this case is the reliability of the identification of each defendant as a perpetratorof the assault suffered by the complainant Marcos. The risk of mistake in the identification of strangers is well recognized.

Indeed, it is anotorious fact, well understood by jurists, that erroneous identification evidence is the largest single cause of factually wrongfulconvictions: R. v. Hanemaayer, 2008 ONCA 580, at para. 29. As eloquently said by Doherty J.A. for the Court of Appeal in R. v.Quercia (1990), (ON CA), 60 C.C.C. (3d) 380, at 389, "The spectre of erroneous convictions based on honest andconvincing but mistaken eyewitness identification haunts the criminal law". (See, also, R. v. Trochym (2007), 2007 SCC 6 , 216C.C.C. (3d) 225 (S.C.C.); R. v. Burke (1996), (SCC), 105 C.C.C. (3d) 205 (S.C.C.); R. v.

Spatola, (ON CA), [1970] 3 O.R. 74 (C.A.); R. v. Miaponoose (1996), (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.); R. v. Tatand Long (1997), (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.) and R. v. F.A. (2004), (ON CA),183 C.C.C. (3d) 518 (Ont. C.A).) [26] The risk of misidentification is heightened where a witness’ observational opportunity is narrow or influenced by trauma orwhere an alleged perpetrator is previously unknown to the witness. Further, beyond gender and ethnicity or skin colour, the policewitnesses’ pre-arrest descriptions of the alleged perpetrators are here entirely generic.

While acknowledging the inherent frailties ofidentification evidence, it must be noted that, unlike some more notorious examples, this case is not one involving a witness being askedto identify a suspect or defendant as the person he or she may have only momentarily glanced weeks or months earlier. Here, the policewitnesses claim to have personally seen the attack on the victim, maintained their observations of the assailant and effected his detentionalmost immediately in one case and in well under a minute in the second.

Further, there is no issue but that the defendants before mewere, in each case, not only the man ultimately arrested but, as well, the same man who, in each case again, the police claim to have seencommit the offence of assault. It is the reliability of this claim that commands closer scrutiny. (

c) Applying the Law (

i) Introduction [27] The evidence bearing on the defendant Tran’s participation in the assault is entirely contained in PC Shin’s testimonialaccount. I begin, then, with my assessment of Shin’s narrative in proving the Crown’s case against Tran. I later return, if somewhatobliquely, to Shin’s account when addressing the strength of the evidence of the three officers whose testimony implicates the defendantNarayanapillai.

As should be clear from my earlier review of their testimony, it is sometimes difficult to reconcile the two sets ofevidence – that of Shin and that provided by the three other officers. (ii) The Defendant Tran [28] In PC Shin’s recall, from a distance of only 10 to 20 feet he saw a “male Asian” person he later identified as the defendant Tran

stomp on and then kick the head of a man as he lay on the ground. Shin grabbed Tran (clearly, a male of Asian descent) within seconds of this assault, pulled him a few feet aside and promptly arrested him. If believed, Shin’s uncontradicted account leaves no room for any risk of factual error: the officer personally witnessed a vicious assault and immediately apprehended the assailant who was always within his field of vision.

Accepting, as I do, that Shin witnessed someone assault the complainant Marcos as he lay on the ground and accepting, as well, that Shin arrested the defendant Tran believing that he was the man who stomped and kicked Marcos, the only residual burden on the Crown is to satisfy me beyond reasonable doubt that Tran was indeed the man Shin witnessed perpetrate the assault. Put otherwise, is there any doubt that Shin apprehended the right man? [ 29 ] There is, it must be said, some cause for concern, both with respect to Shin’s general reliability and with his specific recall of the events on the evening at issue.

Shin’s evidence in direct examination conveys the impression that he had a continuous and unobstructed view of and access to the events, reducing the possibility of error, on his original narrative, to zero. However, further examination and Shin’s renewed testimony after a six-month interruption significantly amends this impression. [ 30 ] First, the facial integrity of Shin observations were aided by, as he originally testified, the absence of any cars in front of the club as he approached it on his bike.

This recall is clearly inconsistent with that proffered by other witness officers but, more importantly, with Shin’s own evidence as advanced some six months later when he testified not only that he observed four lanes of vehicular traffic in front of the club but that the traffic was so congested as to be at a “standstill”. These are very different descriptions of the presenting street scene. Pressed, Shin, as earlier recounted, tried to reconcile his two accounts by explaining that on his first testimonial appearance he had only meant to say that no cars obstructed his view.

Shin, I find, was disingenuous in this regard. When he first testified, Shin expressly stated that “there were no cars” in the area of the club. He then went much further, explaining that the absence of cars was due to the police suspending vehicular traffic on streets in the Entertainment District around closing time to facilitate their clearing of the area. Shin’s two accounts are simply irreconcilable, and his futile persistence in endeavouring to demonstrate otherwise does not reflect well on his general creditworthiness.

More specifically, it suggests that Shin’s observational window may not have been nearly as continuous and unimpeded as he was initially at some pains to present. [ 31 ] Shin’s revised account of his first observations of the scene in front of the Live club only adds to this concern. As originally tendered, his first view of any trouble was the sight of a white man, covered in blood, who was lying on the ground, with a “male brown” and “male Asian” hovering over him.

Near the very end of his testimony, and only in response to my effort to secure some clarification, Shin, for the first, time disclosed that his initial view of these three men was as they – all standing – emerged from the crowd in front of Live. All three were grabbing at each other as they stood. Somehow the white man ended up on lying on the ground.

Significantly, Shin has no recall of how this occurred, thus permitting the inference, which I draw, that Shin’s observation of the dynamic in front of the club was not nearly as continuous or unobstructed as the impression he had initially conveyed. [ 32 ] Third, Shin on several occasions attributed to “tunnel vision” his apparent inability to recall anything other than the conduct of the defendant Tran. “Tunnel vision” is a somewhat peculiar, but perhaps here all too accurate, turn of phrase to describe the contraction of Shin’s observational focus.

As conventionally understood, “tunnel vision” is a pejorative descriptor of a species of investigative or prosecutorial bias associated with subscribing to a single suspect at the expense of a fair or objective consideration of alternative theories. Like the risk of misidentification, it is one of the major recognized causes of factually wrongful convictions, as evidenced by such notorious Canadian miscarriages of justice as those suffered by Donald Marshall Jr., David Milgaard and Guy Paul Morin.

As defined by Justice Kaufman at p. 1134 of the report concluding his Commission on Proceedings Involving Guy Paul Morin , tunnel vision is “the single-minded and overly narrow focus on a particular investigative or prosecutorial theory, so as to unreasonably colour the evaluation of information received and one’s conduct in response to that information”. [ 33 ] Shin’s use of “tunnel vision” reads like revisionist alchemy, transforming investigative bias into a forensic virtue.

In effect, Shin says he was so completely laser-focused on the man he arrested that he has no idea what the members of his team were doing or where they were or anything the “brown male” did or whether the second arrestee –Narayanapillai who, coincidentally enough, is a “brown male” – was indeed the same second man he saw standing over the body of the fallen and bloody white man. This degree of circumscribed recall conveniently minimizes the risk of inter-officer testimonial variability. It also, it appears to me, to be inconsistent with both police professionalism and common sense.

I do allow for the possibility that Shin, from a distance of no more than seven feet by his own account, could somehow have entirely “missed” the kicking of Marcos attributed to Narayanapillai by several of his TAVIS team members. What is more perplexing is how all three of Shin’s teammates could have entirely missed seeing him if he was indeed where he situates himself. [ 34 ] Finally, there is the issue of blood – or, more accurately, its absence – on the defendant Tran.

Shin described the white man on the ground as “covered in blood” even before he witnessed the man he identifies as Tran both stomping on the man’s bloodied head and then kicking it “like it was a soccer ball”. It is a reasonable inference, and one I do not hesitate to draw without resort to scientific expertise, that some of the victim’s blood would have been transferred to the person who both stomped on and violently kicked his head. Shin says he “didn’t look for blood”, yet he made no notation nor did he recall any appearance of blood on the defendant Tran.

Further, no evidence has been tendered by the Crown of any discolouration, let alone blood (let alone blood matched to Marcos’ blood type or DNA profile) being detected on Tran’s shoes. [ 35 ] Did Shin witness a vicious assault on a defenseless man? I am prepared to accept that he did? Did he then arrest a man he personally believed perpetrated that assault? Again, I am prepared to accept this proposition. Was the man Shin arrested the man he believed committed the assault? Maybe. Perhaps even probably.

But I am in the end left with sufficient reasonable doubt as to the reliability of Shin’s account to preclude the entry of a finding of guilt. In view of Shin’s opportunities for error, his strained testimonial revisions, the gaps I have identified in his evidence and the improbability of Shin’s invisibility to the other TAVIS officers, the prosecution has simply fallen short of meeting the requisite standard of proof. It is adherence to that standard – the “golden thread”, as famously said in Woolmington v.

D.P.P. , [1935] UKHL 1 – that serves as the common law’s ultimate safeguard against the risk of wrongful conviction. (iii) The Defendant Narayanapillai [ 36 ] Three TAVIS officers testified to seeing a brown man kick a bloodied, prone man in the head or face and, in less than a

minute, all three participated in that same man’s arrest as he left the scene of the assault. It is conceded that the arrested man is thedefendant Narayanapillai. [37] At the risk of spoiling the suspense, I find that the evidence is no more conclusive of the guilt of Narayanapillai than is theCrown case against the defendant Tran. Each of the three officers’ accounts undoubtedly tracks the same narrative arc. Given thedynamic nature of the events, it is hardly surprising to find a number of inconsistencies among these accounts. Some, however, givepause.

For example: • Snow insists the victim was lying on the sidewalk in front of the Live club during the assault. Poole is just as insistent that he wason the street – not the sidewalk – as his head was kicked. • Poole says Narayanapillai’s second kick was frustrated by the physical intervention of a mounted officer.

Snow, on the other hand,says the man he identifies as Narayanapillai appeared to have lost his balance in attempting to execute his second kick, and that theinteraction with the mounted officer occurred as he was already walking eastbound, away from the assault. • Poole says Narayanapillai ran east on Richmond immediately following his exchange with the mounted officer.

Snow saysNarayanapillai did not run from the scene; he walked, if hastily, and not in the manner of someone who was escaping from a crime. • Snow, who otherwise claimed a minutely detailed recollection of the incident, had no recall of the prone victim ever moving. Metzger says the victim, undoubtedly Marcos, was vigorously using his hands and feet to defend himself from his assailant’s kicks. Poole could not say whether Marcos did or did not move at any point. • Metzger says she participated in the arrest of the man who kicked the face of the man on the ground.

Poole, who says she wasactively involved in the man’s apprehension and arrest, had no recall of the whereabouts of her partner Metzger at any time duringNarayanapillai’s takedown. Snow, meantime, simply made no substantive mention of Metzger in his testimony. These are inconsistencies of some moment and they command cautious consideration.

Given the violence attending the situation and theimprobability of perfect recall, these inconsistencies alone do not, in my view, prohibit a reasonable trier from concluding that the Crownhas met the requisite standard of proof in regard to Narayanapillai’s alleged commission of the assault. There are, however, two otherfacets of the police evidence respecting Narayanapillai that provoke deeper concern. [38] The first is the manner in which the police accounts were constructed and recorded.

As earlier noted, PC Snow testified that heand his three colleagues “discussed what happened” before or in the course of drafting their notes. This type of collaboration is theantithesis of independent note-making and inevitably compromises the reliability not only of the officers’ recorded recollections but, ofcourse, their testimonial accounts which, more than a year later, are largely dependent on those notes. The Court of Appeal forcefullyaddressed this issue in Schaeffer v. Wood (2011), 2011 ONCA 716 , 107 O.R. (3d) 721 (leave to appeal granted: [2012]S.C.C.A. No. 6).

Sharpe, J.A., writing for the Court, commented, at paras. 69-70 (emphasis added): Reliable independent and contemporaneous police officer notes are central to the integrity of the administration of criminal justice. … The police officer's notes are also used to assist the officer in testifying at trial. When used for that purpose, it is vitally important to thereliability and integrity of the officer's evidence that the notes used record the officer's own independent recollection. In R. v. Green,[1998] O.J. No. 3598 (O.C.J. (Gen.

Div.) at para. 20, Malloy J. stated: An officer's notes perform a valuable function at trial. It is usually many months, sometimes years, from the time of an occurrence to thetime that the officer is called upon to testify at trial. Without the assistance of notes to refresh his or her memory, the evidence of theofficer at trial would inevitably be sketchy at best.

If the officer's notes are prepared without any indication of which is the officer'sindependent recollection and which is somebody else's recollection, there is every likelihood that that officer at trial will be "refreshing"his or her own memory with observations made by someone else. In effect, the officer will be giving hearsay evidence as if it was his orher own recollection rather than the observations of somebody else written into the notes without attribution. [39] The same concern was very recently revisited in R. v. Thompson, 2013 ONSC 1527 , [2013] O.J. No. 1236 (Sup. Ct.).

By way of a deliberately instructive “postscript” Hill J. there notes, at para. 212, that “as a general rule”, [W]here multiple officers participate in investigation of an incident, their notes should be made independently and not as a collective andnot after a (de)briefing where the incident is discussed as a group. This “general rule” was not observed in this case, and there was no reason grounded in logic or urgency for any departure from itsinjunctive force.

Does, I ask, PC Poole’s and PC Snow’s use of the identical metaphor “like a soccer ball” to describe the mechanics ofNarayanapillai’s purported kick truly reflect independent recollection or is it a product of the shared and cumulative recall of the officersbefore preparing their notes? More troubling still is PC Shin’s adoption of the very same soccer metaphor to capture the dynamics of thekick at Marcos’ head he ascribes to the defendant Tran.

Are the officers, in the end, testifying about what they really saw or borrowingthe observations of each other to fill lacunae in their individual observations and memory and thereby, even if entirely unconsciously,tendering a confabulated account of the events that occurred in front of the Live club? [40] It is always possible, of course, that Snow and Poole both saw Narayanapillai, and no one else, “soccer kick” Marcos’ head andthat Shin saw Tran, and no one else, perpetrate an identical assault.

However, Snow’s evidence, which I accept, that the police witnessesdiscussed their observations before and/or during their note-taking compromises that “possibility” and impairs my faith not only in theiraccount of the kick they describe but the reliability of the police testimony more generally. The police evidence simply fails to meet theessential Schaeffer standard of “independent recollection”. [41] A second source of concern arises from the absence of any evidence of blood on Narayanapillai.

The failure to detect anyevidence of blood forms part of my analysis of the prosecution’s case against the co-defendant Tran. It plays an even more significantrole in my assessment of the Crown’s case against Narayanapillai. Both Poole and Snow recognized the forensic importance of blood

residue. Despite ample opportunity for observation, neither had a note or recollection of seeing any blood on Narayanapillai. Defencecounsel directly questioned both Poole and Snow about the presence of blood. The potential significance of this line of cross-examination could not have been lost on Crown counsel. Nonetheless, no evidence was called from the officers who transportedNarayanapillai (or Tran, for that matter) or from any of those officers who had dealings with the defendants at the station.

Given thepolice witnesses’ uniform descriptions of Marcos severely bloodied face and head, it is almost inconceivable that none of his bloodmigrated to the shoes of the persons or persons who kicked him as violently as the police described. [42] In R. v. Lifchus (1997), (SCC), 118 C.C.C. (3d) 1, at para. 36, the Supreme Court defined a reasonable doubtas one that is “logically connected to the evidence or absence of evidence” (emphasis added). (See, also, R. v. Starr (2000), 2000 SCC40 , 147 C.C.C. (3d) 449 at para. 231 (S.C.C.) and R. v.

E.(P.C.) (1998), 1998 ABCA 180 , 126 C.C.C. (3d) 457 (Alta.C.A.).) The “absence of evidence” of any blood on Narayanapillai leaves me with a reasonable doubt as to his guilt, particularly whenthis factor is considered along with the other concerns I have endeavoured to identify. The probative value of evidence regardingNarayanapillai’s participation in the beating of Marcos, like that pertaining to the defendant Tran, rests somewhere along a spectrum ofprobable culpability, but it falls short of that standard of proof beyond reasonable doubt necessary to ground a finding of guilt. D.

CONCLUSION [43] For the reasons I have earlier developed, I find the defendants Narayanapillai and Tran not guilty of the single offence withwhich they are both charged. Released on June 12, 2013 __________________________ Justice Melvyn Green