R. v. Colwell, 2011 ONCJ 611

COURT FILE No.: Toronto 10014382/10 Citation: R. v. Colwell , 2011 ONCJ 611 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JONATHON COLWELL Before Justice Paul H. Reinhardt Heard on 12, 13 September 2011 Reasons for Judgment released on 25 November 2011 Nancy Laton .............................................................................................................. for the Crown Jonathan Shime & Megan Schwartzentruber ........................................................... for the accused REINHARDT J.: [ 1 ] Jonathon Colwell stands charged that on or about 10 July 2010, in the City of Toronto, in the Toronto Region, he did:

(1) Assault Cory Jonathan Litwin, causing bodily harm to him; and further,

(2) Assault Shaun Traister, Contrary to the Criminal Code [ 2 ] In this proceeding, the Crown proceeded summarily, and I heard evidence from five Crown witnesses on 12 and 13 September 2011: Shaun Traister, Constable Sean Bowers, Cory Jonathan Litwin, Robert Kansun and Rasheed El-Hindi.

Summary of the Evidence [ 3 ] Cory Litwin owns a marketing company and manages a night club in London, Ontario. In addition, he organizes, manages and assists with entertainment events in both Toronto and London, Ontario. [ 4 ] On the evening of 10 July 2010, he agreed to assist in an evening event at the “Mod Club” in downtown Toronto, on College Street, west of Spadina.

On the evening in question he enlisted the aid of his long-time friend, Shaun Traister, to help out. [ 5 ] On this evening the club was very busy, with roughly fifteen hundred people in attendance and as often happens, unfortunately, at such occasions, emotions and tempers flare, and incidents occur that require the intervention of either the staff of the club, or the police.

The club was located in a building which faced onto College Street, and included a front outdoor patio which led onto a sidewalk and then the street itself. [ 6 ] On this occasion, according to Shaun Traister, one of his friends, Joshua, received a punch from another patron, and that patron was escorted out of the club.

The matter did not end there, however, and the person who was asked to leave and another person remained outside of the front of the club, on the sidewalk, near the street, yelling and creating a scene and causing a crowd to gather. [ 7 ] Shaun Traister testified that on the street a “consensual fight” appeared about to begin between the person-who-had- been-asked-to-leave and another individual. [ 8 ] Shaun Traister testified that as the fight was about to commence, he observed Cory Litwin standing near the two individuals, and then saw Cory receiving a punch in the face and then “dropping” to the ground. [ 9 ] Shaun Traister testified that the same individual who punched Cory Litwin then came and attempted to punch Mr.

Traister at which time Mr. Traister grabbed the individual in a choke hold to subdue him.

[ 10 ] Shaun Traister, who described himself as 5’ 8” or 5’ 9”, described the person who punched Cory Litwin and then attempted to punch him as having a “shaved head” and “ear rings” and as being “thicker and taller” than he, Shaun, was. [ 11 ] Mr.

Traister testified that he was unable to identify his assailant in the courtroom. [ 12 ] Constable Sean Bowyers testified that he initially was called to the scene of a fight at the “Mana Club” which is located on the ground floor of the building in which the Mod Club occupies the second floor on the north-west side of College Street. [ 13 ] Constable Bowers testified that he first attended to Mr. Litwin, and then directed various assisting officers to take statements from witnesses at the scene, to try to ascertain who had assaulted Mr.

Litwin. [ 14 ] Constable Bowers testified that on the basis of the statements given to other officers, he arrested the accused Jonathon Colwell, at the scene. [ 15 ] Cory Litwin testified that he attended that evening with his college roommate’s younger brother, Nyunyuzi Tibagwa. [ 16 ] Cory Litwin testified that he came downstairs to the patio between 12:00 and 1:00 a.m. in the morning, and saw two individuals, apparently drunk and causing a disturbance on the sidewalk in front of the club. [ 17 ] Mr.

Litwin testified that he initially went back upstairs to speak to the bouncers employed by the club to ask them to assist in “removing” (Sic.) the two individuals from the sidewalk and street area in front of the club. When this request was unsuccessful, he returned downstairs to the street. On his return, he discovered that his roommate’s younger brother, Nyunyuzi, and one of the men who had been causing a disturbance outside on the sidewalk were calling each other names and challenging each other to a fight. [ 18 ] Mr.

Litwin testified that he became concerned at this point, because Nyunyuzi was much smaller than the other person, and he, Cory, had promised his roommate to take care of his younger brother that night. [ 19 ] Mr. Litwin testified that he started going to where the fight was about to commence, with the following objective: I start...I then jog towards it. In my mind, I’m going to pull Nyunyuzi away, or split the two of them up. I’m going to go break u the fight because Nyunyuzi and this guy were fighting. Nyunyuzi, I never described his physical attributes.

He is very short, probably around five foot six, and he is excessively skinny, probably around 100 to 120 pounds. I don’t think he could withstand much of a punch from anybody. So ... [ 20 ] Mr. Litwin testified that as he reached the curb, but not quite to the spot on the street where the two persons had faced each other to commence a fight, he felt a blow from the back and fell to the ground. [ 21 ] Mr. Litwin testified that as he tried to pull himself up, he felt another blow to the side of his face, causing him to collapse to the ground once again. [ 22 ] Mr.

Litwin testified that as he got to his feet, successfully this time, he realized that he was bleeding excessively from his face and when he tried to move his mouth, his jaw would “crack”. He testified that he couldn’t really talk well and there was blood all over the road from his mouth as it would not stop dripping. [ 23 ] Mr. Litwin testified that he never saw any blow to his face but felt a blow to his face twice, one while he was running, and one while he was on the ground, trying to get back up. [ 24 ] Mr.

Litwin also testified that he saw a “good twenty people pointing to a cab” and he concluded that the person who had hit him was getting away. [ 25 ] The resultant injuries, as documented in his Medical Record, Exhibit 1, photographs, Exhibits 4A through 4C, 5A through 5H, and in Mr. Litwin’s testimony, were substantial, required surgery, and meet the definition of “bodily harm”, without question, as conceded by the defence. [ 26 ] Part of the material in the Medical Record, Exhibit 1, was a report from Oral Surgeon E. I.

Reinish, dated 19 October 2010, directed to Detective Worth at 14 Division, which described Mr. Litwin as having sustained a fracture of the left mandibular bone in his jaw, which required corrective surgery. [ 27 ] Robert Kansu testified that he was out on the patio when the fight broke out. He testified that he saw Cory Litwin being hit by a “very stocky white gentleman” about 5’ 10’ tall with a goatee who was wearing cargo shorts and had a tattoo on his leg. He described the person as having dark, normal hair. [ 28 ] Mr. Kansu testified that he couldn’t identify the person who assaulted Mr.

Litwin in the courtroom. [ 29 ] Rasheed El-Hindi testified that he was on the patio when the fight broke out and that he watched Cory Litwin first being punched and then, when he fell to the ground, kicked by the same individual. He said that the same individual who punched and kicked Cory Litwin also punched a second and third individual in the fight. [ 30 ] Mr. El-Hindi testified that the perpetrator of these assaults was a “bigger guy” with massive calves, tattoos and a goatee. He testified that the tattoos were on his arms and one of his legs.

He described this man as wearing shorts and a black tee-shirt and having “stretcher” ear-rings. He described the man as having a sort of “Mohawk” with long hair, shaven on the sides. [ 31 ] Mr. El-Hindi testified that he was questioned by the police and he was “100%” sure that the person he pointed out to the police was the person who attacked Mr. Litwin.

Issues Before the Court [32] The defence submits that the Crown has failed to prove the identity of the person who attacked Mr. Litwin and Mr.Traister. In reply, the Crown submits that although the identification evidence from the three Crown witnesses who say they saw theassault on Mr. Litwin is not consistent, it has some elements that match the accused, and therefore, taken as a whole, on all the evidence,the Crown has made its case. The Legal Framework [33] There is a great deal of appellate authority which cautions trial judges on the frailty of identification evidence.

They arecited by the defence in their factum and include: R. v. Goran, 2008 ONCA 195 , [2008] O.J. No. 1069 (Ont. C.A.) at paras. 19& 20, R. v. Tat (ON CA), [1997] O.J. No. 3579 (Ont. C. A.), at paras. 99 &100, R. v. Biddle (ONCA), [1993] O.J. No. 1833 (Ont. C. A.) at paras. 30 to 35, R. v. Miaponoose (ON CA), [1996] O.J. No. 3216 (Ont. C.A.) at paras. 9 to 13 and R. v. Smierciak (ON CA), [1946] O.J. No. 290, (Ont.

C.A.) at para. 7. [34] The courts have repeatedly recognized that eyewitness identification evidence is inherently unreliable and is a significantcontributor to wrongful convictions, even when multiple witnesses have identified the accused. As stated by the Ontario Court of Appealin the case of R. v. Goran, at paras.19 & 20: 19 There is no dispute between the parties as to the inherent frailties of eyewitness identification evidence. Such evidence is inherentlyunreliable.

It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses, and is difficultto discredit on cross-examination for those same reasons. Studies have shown that triers of fact place undue reliance on such testimony incomparison to other types of evidence. As a result, many wrongful convictions have resulted from faulty, albeit convincing, eyewitnesstestimony, even in cases where multiple witnesses have identified the same person. See R. v. Miaponoose (1996), (ON CA), 110 C.C.C. (3d) 445 at 450-451 (Ont. C.A.), and R. v.

A. (F.) (2004), (ON CA), 183 C.C.C. (3d) 518 atpara. 39 (Ont. C.A.). 20 For these reasons, although identification is a matter of fact, appellate courts will subject such findings to closer scrutiny than isgenerally the case with findings of fact. Justice Doherty summarized this concept in the context of an unreasonable verdict argument inR. v. Tat (1997), (ON CA), 117 C.C.C. (3d) 481 at paras. 99-100 (Ont. C.A.), where he said: While recognizing the limited review permitted under s. 686(1)(a)(i), convictions based on eyewitness identification evidence areparticularly well suited to review under that section.

This is so because of the well-recognized potential for injustice in such cases and thesuitability of the appellate review process to cases which turn primarily on the reliability of eyewitness evidence and not the credibilityof the eyewitness: e.g. see R. v. Miaponoose, supra; R. v. Biddle (1993), (ON CA), 84 C.C.C. (3d) 430 (Ont. C.A.) at434-5; reversed on other grounds (1995), (SCC), 96 C.C.C. (3d) 321 (S.C.C.); R. v. Quercia (1990), (ON CA), 60 C.C.C. (3d) 380 (Ont. C.A.).

The extensive case law arising out of the review of convictions based on eyewitness identification reveals that the concerns about thereasonableness of such verdicts are particularly high where the person identified is a stranger to the witness, the circumstances of theidentification are not conducive to an accurate identification, pre-trial identification processes are flawed and where there is not otherevidence tending to confirm or support the identification evidence. (Emphasis added) [35] The defence submits that, for the reasons set out in R. v.

Tat, supra, the evaluation of identification evidence must beassessed primarily as to reliability, based on the totality of the circumstances in which the identification is made and cannot be reduced tothe credibility of the witness providing the identification. [36] The defence submits that the key factors in this case relevant to a determination of the reliability of eyewitnessidentification evidence are: 1) Description:

a) Is the description general or vague and does it include distinctive features?

b) Has the witness described distinguishing features of the suspect not shared by the accused or omitted from the description of thesuspect features that the accused does possess?

c) What was the witness’ opportunity to observe?

d) Are there factual underpinnings of the description? 2) Familiarity of the Suspect; 3) Conditions under which the description was given:

a) Was the identification made in dark or well-lit conditions?

b) What was the time of day?

c) Was the witness under stress at the time of the identification?

d) Was there a fair identification process?

e) Was the description put in writing or reported to police in a timely manner? 4) Contamination; and 5) Confirmation by others or independent evidence. (Defence Factum, paragraph 15) Analysis & Findings [ 37 ] In my view, the defence submission on reliability, on the facts of this case, must prevail. Let’s look at the testimony of the Crown witnesses. [ 38 ] Mr. Litwin did not see who punched him. [ 39 ] Mr. Traister could not identify Mr. Colwell as the person he said was the puncher. However, he testified that the same person who hit Mr. Litwin also hit Nate and attempted to hit him. [ 40 ] Mr.

Traister described the “puncher” as having: A shaved head, a little of a thicker build … than me … taller than me … maybe same build as me but taller than me, two/three inches on me and I’m 5’8, 5’9 … he had earrings [ 41 ] He was unsure whether the man had two earrings or just one and also believed he may have had some tattoos, although he did not provide any description of the tattoos. [ 42 ] Mr. Traister also indicated that the “puncher” or first individual was with a second person, who he assumed was his friend. The second person was the person who was engaging in a consensual fight with Mr.

Litwin’s friend, Nyunyuzi. Mr. Traister was clear that it was the first individual not the second individual, who hit Mr. Litwin, Nate and tried to hit Mr. Traister. [ 43 ] Although Mr. Traister testified that his ability to observe the “puncher” assault Mr. Litwin was unobstructed, his description of the puncher was vague and did not include any distinctive features. He described the person as having earrings and tattoos but he could not describe the number of earrings or tattoos or their colour, shape or size. He also did not indicate the location of the tattoos.

His description did not include anything about the puncher’s style or type or colour of clothing or that he had facial hair (as opposed to Messrs. Kansun and El-Hindi, who described a goatee). [ 44 ] Mr. Kansun also gave a description of the person who hit Mr. Litwin: A man who was … who had a goatee. He was wearing, I believe, cargo shorts and I remember a tattoo on his leg, I think his right leg, but I’m not 100 per cent sure. And he was a very stocky gentleman [ 45 ] Mr. Kansun stated that Mr. Colwell looked similar to the man who he described, but was unable to identify him as the man he saw assaulting Mr.

Litwin. [ 46 ] Mr. El-Hindi never specifically identified Mr. Colwell as the man who assaulted Mr. Litwin. [ 47 ] Mr. El-Hindi described the perpetrator as: A bigger guy, with some tattoos, and he had a goatee or a beard of some sort … a beard, goatee [ 48 ] Mr. El-Hindi testified that the “puncher”, the man who hit Mr. Litwin, was white, with big earrings “that stretch your ears” and massive calves. He thought the man was wearing shorts and a black shirt or a tank top with cut off sleeves. Mr.

El-Hindi also stated that the man’s hair was longer and may have been in a Mohawk style with it shaved at the side and longer on top with a “longer kind of goatee-style beard.” [ 49 ] Mr. El-Hindi described the puncher’s friend as the “bigger guy”, indicating that the puncher was the smaller of the two individuals. [ 50 ] The circumstances of the identification witnesses also pose difficulties for the Crown. [ 51 ] The “puncher” was a stranger to all of the witnesses. Mr.

Traister testified that the first time he actually saw the puncher himself was a few minutes before the altercation when he was outside on the patio and the puncher was on the sidewalk with his friend. Similarly, there is no evidence that Mr. Litwin, Mr. Kansun or Mr. El-Hindi had met the puncher before that night. [ 52 ] The incident occurred between approximately 1:00 a.m. and 2:00 a.m. and in the middle of a crowd of upward to 900 people that were gathering to watch a fight that was taking place in the middle of the street outside of a bar. [ 53 ] Mr. Traister, Mr. Kansun and Mr.

El-Hindi all stated that they had been consuming alcohol prior to the incident. Mr. Traister had had approximately three alcoholic beverages prior to the incident. Mr. El-Hindi had a few drinks and readily admitted that he was having a hard time remembering several aspects of the events that night. Mr. Kansun, who had between 6-15 drinks, was

absolutely intoxicated and admitted in cross-examination that he did not have a perfect recollection of the events of that night. [ 54 ] The defence submits and I accept that this was a fast and emotionally charged conflict taking place in the early hours of the morning in the middle of the street, involving many individuals who had been consuming alcohol and who were expecting and then involved in a fight.

The defence submits and I accept that this is precisely the type of situation where identification evidence is prone to be faulty. [ 55 ] This is a circumstance, as well, where there was ample opportunity for witness contamination. [ 56 ] Mr. Traister left the area after the assault occurred to find his friend Josh. After approximately five minutes he returned and provided a statement to the police. However, before he spoke to the police he heard that other people in the area had told the police that the puncher and his friend had gotten into a taxi cab. Mr.

Traister saw the police speaking to two individuals in a cab. [ 57 ] Like Mr. Traister, Mr. Kansun testified that there were some other people standing on the corner with him after the incident that had also pointed the police in the direction of the taxi cab which was occupied by the puncher and his friend. Mr. El-Hindi confirmed this as well. [ 58 ] None of the witnesses ever participated in a police photo line-up or any other identification process at any time. [ 59 ] None of them identified Mr.

Colwell in court. [ 60 ] In addition, there was no other reliable evidence to confirm or support the flawed identification evidence. [ 61 ] In my view, the Crown has not established beyond a reasonable doubt that the accused was the person who assaulted Mr. Litwin and Mr. Traister that night. [ 62 ] In the result, both counts before the court are dismissed. Released: 25 November 2011 Signed: “Justice Paul H. Reinhardt”