R. v. Missyabit, 2024 MBPC 3

CITATION: R. v. Missyabit, Michael, 2024 MBPC 3 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) J. Ham ) ) for the Crown - and – ) ) ) Michael Missyabit ) ) M. Munce for the Accused ) ) ) Judgment delivered: ) January 22, 2024 HARVIE, P.J. INTRODUCTION [ 1 ] The accused is charged with aggravated assault and robbery arising out of an incident on May 14, 2023 at the Hudson Bay store in Winnipeg, Manitoba. The central issue in the case is identification, and more specifically, “recognition evidence”.

Crown counsel called the complainant, an employee of the store, whose evidence was uncontested and did not involve any identification. The Crown also called the mother of the accused who provided the recognition evidence upon which the Crown relies, and who also testified as to a conversation between herself and the accused, purportedly in reference to the incident. All other aspects of the case were the subject of agreements between counsel. THE FACTS [ 2 ] On May 14, 2023, a male wearing unremarkable clothing, a baseball cap and sunglasses entered the Hudson Bay store in Winnipeg, Manitoba.

His actions were captured by a security video, which shows him briefly walking out of the view of the camera, and then returning to the men’s clothing section, selecting several pairs of men’s pants. As the male headed towards the exit he was approached by the complainant, who testified that she confronted him and asked him what he was doing, as the store had already closed. The male is seen shoving the complainant, causing her to fall against the exit security screening devices and to the ground.

It is conceded that because of this incident the complainant had to be transported to the hospital where she underwent surgery for a broken hip. She remained in the hospital for seven days and has since been recovering from her injuries. [ 3 ] Genevieve Missyabit is the mother of the accused. She testified that she saw still photos taken from the security video that had been posted on the Winnipeg Police Service (“WPS”) Facebook page.

Because she concluded that the male in the photos was her son, she attended to the WPS headquarters and spoke to officers, who showed her several still photos taken from the surveillance video. Two of those photos were identified by her during her testimony, and she confirmed that she told officers that she believed the person in the photo to be her son, the accused Michael Missyabit. She spoke again to officers approximately two weeks later when she reviewed the video of the incident. [ 4 ] At some point the accused was arrested, the circumstances and details of which were not provided. Ms.

Missyabit testified that her son called her while he was in custody at the Winnipeg Remand Centre. During that conversation she told him that it was she who had called the police. She testified that the accused said words to the effect that he remembered being “there” but didn’t remember what he did. No further details of the conversation were adduced in direct examination. [ 5 ] Ms. Missyabit agreed in cross-examination that the still photos only show that the perpetrator is wearing general clothing, such as jeans, a t-shirt, and a hat which, in one of the photos, obscures the individual’s face.

She agreed that from the images it was not possible to assess weight, body type or hair length. She agreed that there are no distinctive tattoos, jewellery, or other distinguishing items confirming the identification. While the second photo showed more of the perpetrator’s face, she agreed that it was partially blocked by the hat he was wearing. Ms.

Missyabit was not asked to provide any details, nor did she say anything other than she was able to recognize the individual because he was her son and “a mother knows her son’s face”. [ 6 ] In respect to the comments made by the accused to his mother, there was no clarification as to what the accused was referring to when he used the words “I was there”. Taking judicial notice that all inmates’ telephone conversations are recorded, no recording or transcript of the call was introduced into evidence.

THE CASE LAW/IDENTIFICATION EVIDENCE [7] At the urging of the Court, the matter was adjourned for counsel to provide authorities on recognition evidence. It is wellrecognized that “recognition evidence” is a specific type of identification evidence. Where there is video or photographic evidencerespecting an offence, a witness can give opinion evidence as to the identification of the perpetrator, as long as the witness is sufficientlyfamiliar with the individual to recognize the person: (see R. v. Leaney, (SCC).

While it is accepted that caution must stillbe taken, “recognition evidence is generally considered to be more reliable and carry more weight that identification evidence:” (see R. v.Bob, 2008 BCCA 485 (emphasis added)). [8] Determining the admissibility of recognition evidence often begins with a voir dire, during which the trial Judge considers the“threshold” or “prior acquaintance/better position” test to assess whether: 1) the witness is sufficiently familiar with the accused to have“some basis” for their identification opinion; and 2) the witness, as a result of their prior acquaintance with the accused, must be in abetter position than the trier of fact to identify the perpetrator, in the sense that they have “some advantage that can shed light on theevidence in question” (see R. v.

Berhe, 2012 ONCA 716, paras.14 and 21). [9] Once the requirements for threshold admissibility are met, a trial Judge must assess the evidence to determine its ultimatereliability. In doing so, the Court can consider the following non-exhaustive list of factors as indicia of reliability: (see R. v.

Hudson,2020 ONCA 507 para. 33) 1) the circumstances of the identification, including whether it was independent or suggested; 2) the level of detail provided in the description, including the ability of the witness to “point to some unique identifiable feature oridiosyncrasy of the person to be identified”: Berhe, at para. 22. However, the “importance of unique identifiable features varies with howwell the witness knows the person he or she identifies” (the better a person knows the accused, the less important the articulation ofidentifiable features becomes): R. v.

M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234 para. 46; 3) the quality of the video or photographic evidence upon which the witness is making their identification (the witness’ testimony willbe more reliable as the quality increases); and 4) the circumstantial or direct evidence available that can corroborate or undermine the reliability of the witness’ description. [10] In R. v.

Hudson, 2020 ONCA 507 CanLII (at paras. 33-34), the Court noted that in determining the ultimate reliability of theevidence, the trier of fact must also be cognizant that recognition evidence is a form of identification evidence, and as such the “sameconcerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence”:(See M.B. para. 34, quoting R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39; R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d)783, at paras. 29-32; R. v. McCracken, 2016 ONCA 228, 348 O.A.C. 267, at para. 25).

ANALYSIS [11] There are several unusual aspects respecting the evidence in this case. The first relates to the threshold assessment of therecognition evidence of the accused’s mother. At first blush, the ability to meet this requirement would seem straightforward,particularly given the relationship between the parties. Indeed, counsel agreed during the case management process that a voir dire couldbe waived, and her evidence was heard during the trial proper.

However, it became clear during cross-examination that even thoughdefence counsel conceded that the threshold test had been met, he still challenged the weight to be given to the identification. Ms.Missyabit was cross-examined extensively on the amount and recency of the contact between her and her son, and it was determined thatthe relationship between the two has been fraught with challenges. The accused’s experiences with addictions, homelessness and mentalhealth issues have resulted in long periods where there was little if any contact between the two.

I do not say this to cast blame on eitherthe accused or his mother, but rather to say that the weight of her evidence is impacted by the frequency of the contact between the two.It eventually became clear that while she did not have consistent or on-going contact with the accused, she did see him in late 2022. Thissupports the concession that threshold reliability is made out. [12] Assessing the ultimate reliability of the identification evidence using the factors outlined in Hudson, I note that thecircumstances of the identification are unusual and compelling. Ms.

Missyabit clearly believes her son to be the perpetrator and tooksignificant steps to notify the police. Her initial opinion was based on a Facebook posting of still images taken from the security footage.Crown counsel filed copies of two still images and the witness confirmed them to be two of the three images she was initially shown bypolice. I do not consider the quality of these images and of the video evidence to be particularly high quality. Both the video and thephotos are not high resolution, and the individual depicted has his face shaded or blocked either by glasses, a hat, or the shading of thelight.

There is one still image that does show a side view of the individual, but it is quite darkened. It is not possible for me to identifythe accused as the perpetrator simply by looking at the still photos or the video. I do not consider the quality of the images to be such asto bolster the reliability of the witness’ testimony. [13] In Hudson, the Court identified as a factor the details of the description, including any “unique identifiable feature” of theperson, recognizing however that this varies in importance depending on how well the person identified is known to the person.

Crowncounsel argues that the Court must assess the totality of her observations, including the size, stature, and manner of walking of theperpetrator, as observed by Ms. Missyabit on the video. The difficulty with this suggestion is that there is no evidence whatsoever tosuggest that those matters factored into her conclusion, as her evidence on the point was exclusively in relation to the “face” of theoffender, a face difficult to see in the still images.

Further, it is clear from the evidence that she did not view the actual video until severalweeks after making her initial identification, the details of which are not available as the Court did not hear from the officers whofacilitated the viewing. Ms. Missyabit conceded that there is absolutely nothing distinctive about the clothing, hat or footwear worn bythe individual in the video, nor are any scars, tattoos, or distinctive jewellery seen. More significantly, when asked why she thought theperpetrator was her son, she stated “His face.

How could a mother forget his face—her kid’s face…Like I said you don’t forget a child’sface.” This statement must be objectively assessed in light of the available evidence. While I recognize that a need for “uniqueidentifiable features” may be lessened in some circumstances, it is difficult to conclude that a complete lack of detail with no identifiablefeatures articulated by the witness is sufficient to ground an identification based on poor quality images.

[ 14 ] Crown counsel relies on a conversation between the accused and his mother, occurring sometime after his arrest, when he called her from the Remand Centre advising that he was in custody, as evidence which corroborates the identification evidence. As indicated earlier, Crown counsel did not seek to tender a recording or transcript of the conversation. Ms. Missyabit testified that she told her son that she had reported him to police, to which he said words to the effect that he remembered being “there” but didn’t remember what happened.

I have difficulty relying upon this exchange as an admission which corroborates identification given the vague nature of Ms. Missyabit’s evidence regarding the conversation and the evidence adduced as to the mental health and memory issues suffered by the accused. In her moving evidence, Ms. Missyabit described the multi-decade challenges she has faced trying to access mental health support for her son, and that in late 2022 she assisted in having him admitted to the psychiatric ward of the hospital, where he spent four months.

When the comments attributed to the accused, which are general at best, are weighed considering the mental health and cognitive challenges of the accused, I cannot conclude that they are sufficient to act as corroboration of the accused’s identity as the perpetrator of the offence. CONCLUSION [ 15 ] There is no issue that the complainant was the victim of a robbery and an assault which caused significant injuries. It is also clear that Ms. Missyabit believes her son was the individual depicted in the surveillance video. That the recognition evidence comes from the mother of the accused is a compelling factor.

However, the totality of the evidence must be considered. When assessing the reliability of the identification evidence, I have significant concerns about the quality of the images which provided the foundation for the identification, the general nature of the reason for Ms.

Missyabit’s opinion as to identity, the lack of any unique or identifiable features sought out in examination or offered by the witnesses and the unclear nature of the comments made by an individual with clear mental health issues. [ 16 ] Considering all of the foregoing, I must conclude that it would be unsafe to convict the accused of the charges. He is therefore acquitted of both counts in the information. “Original signed by” M.K. Harvie, P.J.