Page 1

 


 

 

 

Case Name:

R. v. [REDACTED]

 

 

Between

Her Majesty the Queen, and

[REDACTED] and [REDACTED]

 

[2013] O.J. No. [REDACTED]

 

2013 ONCJ [REDACTED]

 

2013 CarswellOnt [REDACTED]

 

107 W.C.B. (2d) [REDACTED]

 

 

Ontario Court of Justice

Toronto, Ontario

 

[REDACTED]

 

Heard: July 11, 2012; January 25 and April 18, 2013.

Judgment: June 12, 2013.

 

(43 paras.)

 

Criminal law -- Criminal Code offences -- Offences against person and reputation -- Assaults -- Assault causing bodily harm -- Trial of accuseds charged with assault causing bodily harm -- Accuseds acquitted -- Four police officers testified to witnessing the assault -- There were inconsistencies in officers' evidence -- Officers collaborated in drafting their notes, compromising reliability of their recorded recollections and testimonial accounts -- There was no evidence of blood on defendants' shoes -- There was reasonable doubt as to the accuseds' guilt.

 

Criminal law -- Evidence -- Methods of proof -- Identification -- Trial of accuseds charged with assault causing bodily harm -- Accuseds acquitted -- Four police officers testified to witnessing the assault -- There were inconsistencies in officers' evidence -- Officers collaborated in drafting their notes, compromising reliability of their recorded recollections and testimonial accounts -- There was no evidence of blood on defendants' shoes -- There was reasonable doubt as to the accuseds' guilt.

 

Trial of accuseds charged with assault causing bodily harm. Both defendants were accused of attacking the complainant outside a nightclub. The sole issue was the reliability of the identification of the defendants as the persons who perpetrated the assault. The complainant had little memory of the material events. The defendants did not testify. Three police officers testified that they witnessed the first defendant kick the complainant in the head and arrested the first defendant less than one minute later. A fourth officer testified that he witnessed the second defendant kick the complainant and arrested him immediately, but he did not recall seeing the first defendant.

HELD: Accuseds acquitted. The testimony of the fourth officer was internally inconsistent. His observational view may not have been continuous and unimpeded. There was sufficient reasonable doubt as to the reliability of the fourth officer's account to preclude a finding of guilt. There were inconsistencies in the evidence of the three officers who claimed to have witnessed the first defendant attack the complainant. The fact that the officers discussed what happened before or in the course of drafting their notes provoked deeper concern. This collaboration compromised the reliability of the officers' recorded recollections as well as their testimonial accounts, which were largely dependent on those notes. The absence of any evidence of blood on the first defendant was also a cause for concern. Given the police witnesses' uniform descriptions of the complainant's severely bloodied face and head, it was almost inconceivable that none of his blood migrated to the shoes of the persons or persons who kicked him as violently as the police described. The absence of evidence of any blood on the first defendant left reasonable doubt as to his guilt when considered along with the other concerns identified.

 

Counsel:

[REDACTED], for the Crown.

[REDACTED], for the Defendant, [REDACTED].

[REDACTED], for the Defendant, [REDACTED].

 

 

 

 

REASONS for JUDGEMENT

 

                     [REDACTED]:--

A. INTRODUCTION

1 [REDACTED] 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 [REDACTED] 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 [REDACTED] 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, [REDACTED] and [REDACTED], assaulted [REDACTED] 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 establi[REDACTED]g 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 [REDACTED]. 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 [REDACTED], [REDACTED] and [REDACTED]) upon whose accounts the Crown relies to identify the defendant [REDACTED] as one of the assailants. Finally, I canvass the account of a fourth officer, PC [REDACTED], whose testimony is the only evidence connecting the defendant [REDACTED] 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 [REDACTED], nor is it one where the injuries sustained by [REDACTED] were necessarily caused by more than one person.

 

(b)         The Complainant's Account

5 The complainant [REDACTED] 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. [REDACTED] 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. [REDACTED] 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 [REDACTED] 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 [REDACTED]

 

(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 [REDACTED] kick [REDACTED] 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 [REDACTED]'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 [REDACTED], 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 [REDACTED], 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 [REDACTED]

9 PC [REDACTED] 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. [REDACTED] 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". [REDACTED] 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, [REDACTED] 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 [REDACTED]. 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, [REDACTED] conceded that she could not recall if her focus was interrupted, if only momentarily, as she dismounted. A second officer, PC [REDACTED], grabbed the man within a block of the Live club. She could not recall whether she or [REDACTED] first made contact with the man, whether she or [REDACTED] took him to the ground or whether she or [REDACTED] 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 [REDACTED].

11 [REDACTED] remained with the defendant [REDACTED] until he was [REDACTED]sported to the station. Apart from her notes, [REDACTED] 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 [REDACTED] "was doing at that time". She had no recall of seeing [REDACTED] during the assault or, soon after, during the apprehension of [REDACTED]. [REDACTED] 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 [REDACTED].

 

(iii)       PC [REDACTED]

12 PC [REDACTED] 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 [REDACTED] 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 [REDACTED] 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 [REDACTED] identified as the defendant [REDACTED]) then walked east along Richmond as [REDACTED] moved west in his direction. [REDACTED] moved hastily, but he was not running nor, in [REDACTED]'s view, did he look like someone escaping from the scene of a crime. [REDACTED] shrugged off the effort of a mounted officer to grab his shirt and continued walking eastbound. [REDACTED] physically grounded [REDACTED] as he came within an arm's length. This was within a "very few seconds" of the kick [REDACTED] had observed. Other officers then arrested [REDACTED] and he remained in [REDACTED]'s company for the next 10 or 15 minutes.

13 [REDACTED] 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 [REDACTED] have any physical contact with him. [REDACTED]'s observations of the incident lasted mere "seconds". Further, crowds and traffic obstructed his view. [REDACTED] did not note or recall seeing any blood on [REDACTED] or his clothes; he would have noted the presence of blood had he seen any.

 

(iv)        PC [REDACTED]

[para14] PC [REDACTED] 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 [REDACTED], less than a minute after the kick. [REDACTED] 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 [REDACTED] apprehended was the same man she saw kick the man on the ground.

15 It was very congested in front of the club but [REDACTED] 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 [REDACTED]

16 PC [REDACTED] was PC [REDACTED]'s partner on June 18, 2011. He was the only witness to implicate the defendant [REDACTED].

17 [REDACTED] 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 [REDACTED] approached on his bike leaving only a "male brown" and a "male Asian" over the man on the ground. Although his estimates varied, [REDACTED] 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". [REDACTED] 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 [REDACTED] witnessed the assault. He identified the person he arrested through his driver's licence as the defendant [REDACTED]. [REDACTED] also identified him in court.

18 Although he had been on patrol with PC [REDACTED], [REDACTED] 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. [REDACTED] did not know if any mounted units were involved in the events.

19 [REDACTED] made no notation of the defendant [REDACTED]'s shoes. Nor did he note any injuries or blood on [REDACTED]. [REDACTED] said he "didn't look for blood", but he recalled that there was none on [REDACTED]'s shirt. [REDACTED] described the man on the ground as "very bloody".

20 [REDACTED]'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, [REDACTED] recalled that the four lanes of vehicular traffic in front of the club were virtually at a "standstill". Confronted with his earlier testimony, [REDACTED] 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, [REDACTED] initially testified that he did not see this man, or any other person other than the defendant [REDACTED], have any physical contact with the bloodied man. As earlier noted, [REDACTED], in direct examination, situated the bloodied man on the ground when he first saw him. Months later, [REDACTED] 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. [REDACTED] 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 a defendant's failure to do so. Realistically, however, where a defendant, as here, does not testify and where, again as here, no evidence of a 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 the evidence led by the Crown establishes to the requisite criminal standard that either or both of the two defendants assaulted the complainant [REDACTED] on June 18, 2011. Given concerns naturally arising from certain inconsistencies in the police testimony and the judicial vigilance required in all cases involving identification evidence, I first turn to the legal principles that govern these inquiries and then 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 of the credibility -- in the sense of both the veracity and, in particular, reliability -- of the police testimony. (See, for example, the discussions of these two axes of testimonial trustworthiness in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at 205, and, more recently, in R. v. Thomas, 2012 ONSC 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), 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, as said in R. v. B.D. (2011), 266 C.C.C. (3d) 197 (Ont. C.A.), at para. 114, to "credibility findings ... arising out of 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 the assessment 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), 231 C.C.C. (3d) 302], at para. 10; R. v. Francois, [1994] 2 S.C.R. 827, at para. 14; R. v. M.R., 2010 ONCA 285, at para. 6; R. v. Abdallah, 125 C.C.C. (3d) 482 (Ont. C.A.), at paras. 4-5. I can, again with reason, also accord different weight to different parts of the evidence that I do accept: R. v. Howe, 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44.

25 As several times earlier noted, the sole issue in this case is the reliability of the identification of each defendant as a perpetrator of the assault suffered by the complainant [REDACTED]. The risk of mistake in the identification of strangers is well recognized. Indeed, it is a notorious fact, well understood by jurists, that erroneous identification evidence is the largest single cause of factually wrongful convictions: 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), 60 C.C.C. (3d) 380, at 389, "The spectre of erroneous convictions based on honest and convincing but mistaken eyewitness identification haunts the criminal law". (See, also, R. v. Trochym (2007), 216 C.C.C. (3d) 225 (S.C.C.); R. v. Burke (1996), 105 C.C.C. (3d) 205 (S.C.C.); R. v. Spatola, [1970] 3 O.R. 74 (C.A.); R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.); R. v. Tat and Long (1997), 117 C.C.C. (3d) 481 (Ont. C.A.) and R. v. F.A. (2004), 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 or where an alleged perpetrator is previously unknown to the witness. Further, beyond gender and ethnicity or skin colour, the police witnesses' pre-arrest descriptions of the alleged perpetrators are here entirely generic. While acknowledging the inherent frailties of identification evidence, it must be noted that, unlike some more notorious examples, this case is not one involving a witness being asked to identify a suspect or defendant as the person he or she may have only momentarily glanced weeks or months earlier. Here, the police witnesses claim to have personally seen the attack on the victim, maintained their observations of the assailant and effected his detention almost immediately in one case and in well under a minute in the second. Further, there is no issue but that the defendants before me were, 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 seen commit 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 [REDACTED]'s participation in the assault is entirely contained in PC [REDACTED]'s testimonial account. I begin, then, with my assessment of [REDACTED]'s narrative in proving the Crown's case against [REDACTED]. I later return, if somewhat obliquely, to [REDACTED]'s account when addressing the strength of the evidence of the three officers whose testimony implicates the defendant [REDACTED]. As should be clear from my earlier review of their testimony, it is sometimes difficult to reconcile the two sets of evidence - that of [REDACTED] and that provided by the three other officers.

 

(ii)         The Defendant [REDACTED]

28 In PC [REDACTED]'s recall, from a distance of only 10 to 20 feet he saw a "male Asian" person he later identified as the defendant [REDACTED] stomp on and then kick the head of a man as he lay on the ground. [REDACTED] grabbed [REDACTED] (clearly, a male of Asian descent) within seconds of this assault, pulled him a few feet aside and promptly arrested him. If believed, [REDACTED]'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 [REDACTED] witnessed someone assault the complainant [REDACTED] as he lay on the ground and accepting, as well, that [REDACTED] arrested the defendant [REDACTED] believing that he was the man who stomped and kicked [REDACTED], the only residual burden on the Crown is to satisfy me beyond reasonable doubt that [REDACTED] was indeed the man [REDACTED] witnessed perpetrate the assault. Put otherwise, is there any doubt that [REDACTED] apprehended the right man?

29 There is, it must be said, some cause for concern, both with respect to [REDACTED]'s general reliability and with his specific recall of the events on the evening at issue. [REDACTED]'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 [REDACTED]'s renewed testimony after a six-month interruption significantly amends this impression.

30 First, the facial integrity of [REDACTED] 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 [REDACTED]'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, [REDACTED], 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. [REDACTED], I find, was disingenuous in this regard. When he first testified, [REDACTED] 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. [REDACTED]'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 [REDACTED]'s observational window may not have been nearly as continuous and unimpeded as he was initially at some pains to present.

31 [REDACTED]'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, [REDACTED], 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, [REDACTED] has no recall of how this occurred, thus permitting the inference, which I draw, that [REDACTED]'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, [REDACTED] on several occasions attributed to "tunnel vision" his apparent inability to recall anything other than the conduct of the defendant [REDACTED]. "Tunnel vision" is a somewhat peculiar, but perhaps here all too accurate, turn of phrase to describe the contraction of [REDACTED]'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 [REDACTED]'s use of "tunnel vision" reads like revisionist alchemy, transforming investigative bias into a forensic virtue. In effect, [REDACTED] 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 -[REDACTED] 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 [REDACTED], from a distance of no more than seven feet by his own account, could somehow have entirely "missed" the kicking of [REDACTED] attributed to [REDACTED] by several of his TAVIS team members. What is more perplexing is how all three of [REDACTED]'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 [REDACTED]. [REDACTED] described the white man on the ground as "covered in blood" even before he witnessed the man he identifies as [REDACTED] 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. [REDACTED] says he "didn't look for blood", yet he made no notation nor did he recall any appearance of blood on the defendant [REDACTED]. Further, no evidence has been tendered by the Crown of any discolouration, let alone blood (let alone blood matched to [REDACTED]' blood type or DNA profile) being detected on [REDACTED]'s shoes.

35 Did [REDACTED] witness a vicious assault on a defenceless 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 [REDACTED] 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 [REDACTED]'s account to preclude the entry of a finding of guilt. In view of [REDACTED]'s opportunities for error, his strained testimonial revisions, the gaps I have identified in his evidence and the improbability of [REDACTED]'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 [REDACTED]

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 the defendant [REDACTED].

37 At the risk of spoiling the suspense, I find that the evidence is no more conclusive of the guilt of [REDACTED] than is the Crown case against the defendant [REDACTED]. Each of the three officers' accounts undoubtedly tracks the same narrative arc. Given the dynamic nature of the events, it is hardly surprising to find a number of inconsistencies among these accounts. Some, however, give pause. For example:

 

*               [REDACTED] insists the victim was lying on the sidewalk in front of the Live club during the assault. [REDACTED] is just as insistent that he was on the street - not the sidewalk - as his head was kicked.

*               [REDACTED] says [REDACTED]'s second kick was frustrated by the physical intervention of a mounted officer. [REDACTED], on the other hand, says the man he identifies as [REDACTED] appeared to have lost his balance in attempting to execute his second kick, and that the interaction with the mounted officer occurred as he was already walking eastbound, away from the assault.

*               [REDACTED] says [REDACTED] ran east on Richmond immediately following his exchange with the mounted officer. [REDACTED] says [REDACTED] did not run from the scene; he walked, if hastily, and not in the manner of someone who was escaping from a crime.

*               [REDACTED], who otherwise claimed a minutely detailed recollection of the incident, had no recall of the prone victim ever moving. [REDACTED] says the victim, undoubtedly [REDACTED], was vigorously using his hands and feet to defend himself from his assailant's kicks. [REDACTED] could not say whether [REDACTED] did or did not move at any point.

*               [REDACTED] says she participated in the arrest of the man who kicked the face of the man on the ground. [REDACTED], who says she was actively involved in the man's apprehension and arrest, had no recall of the whereabouts of her partner [REDACTED] at any time during [REDACTED]'s takedown. [REDACTED], meantime, simply made no substantive mention of [REDACTED] in his testimony.

 

                     These are inconsistencies of some moment and they command cautious consideration. Given the violence attending the situation and the improbability of perfect recall, these inconsistencies alone do not, in my view, prohibit a reasonable trier from concluding that the Crown has met the requisite standard of proof in regard to [REDACTED]'s alleged commission of the assault. There are, however, two other facets of the police evidence respecting [REDACTED] that provoke deeper concern.

38 The first is the manner in which the police accounts were constructed and recorded. As earlier noted, PC [REDACTED] testified that he and his three colleagues "discussed what happened" before or in the course of drafting their notes. This type of collaboration is the antithesis of independent note-making and inevitably compromises the reliability not only of the officers' recorded recollections but, of course, their testimonial accounts which, more than a year later, are largely dependent on those notes. The Court of Appeal forcefully addressed this issue in Schaeffer v. Wood (2011), 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 the reliability 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 the time that the officer is called upon to testify at trial. Without the assistance of notes to refresh his or her memory, the evidence of the officer at trial would inevitably be sketchy at best. If the officer's notes are prepared without any indication of which is the officer's independent recollection and which is somebody else's recollection, there is every likelihood that that officer at trial will be "refre[REDACTED]g" 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 or her 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] 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 and not 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 its injunctive force. Does, I ask, PC [REDACTED]'s and PC [REDACTED]'s use of the identical metaphor "like a soccer ball" to describe the mechanics of [REDACTED]'s purported kick truly reflect independent recollection or is it a product of the shared and cumulative recall of the officers before preparing their notes? More troubling still is PC [REDACTED]'s adoption of the very same soccer metaphor to capture the dynamics of the kick at [REDACTED]' head he ascribes to the defendant [REDACTED]. Are the officers, in the end, testifying about what they really saw or borrowing the 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 [REDACTED] and [REDACTED] both saw [REDACTED], and no one else, "soccer kick" [REDACTED]' head and that [REDACTED] saw [REDACTED], and no one else, perpetrate an identical assault. However, [REDACTED]'s evidence, which I accept, that the police witnesses discussed their observations before and/or during their note-taking compromises that "possibility" and impairs my faith not only in their account of the kick they describe but the reliability of the police testimony more generally. The police evidence simply fails to meet the essential Schaeffer standard of "independent recollection".

41 A second source of concern arises from the absence of any evidence of blood on [REDACTED]. The failure to detect any evidence of blood forms part of my analysis of the prosecution's case against the co-defendant [REDACTED]. It plays an even more significant role in my assessment of the Crown's case against [REDACTED]. Both [REDACTED] and [REDACTED] recognized the forensic importance of blood residue. Despite ample opportunity for observation, neither had a note or recollection of seeing any blood on [REDACTED]. Defence counsel directly questioned both [REDACTED] and [REDACTED] 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 [REDACTED]sported [REDACTED] (or [REDACTED], for that matter) or from any of those officers who had dealings with the defendants at the station. Given the police witnesses' uniform descriptions of [REDACTED] severely bloodied face and head, it is almost inconceivable that none of his blood migrated to the shoes of the persons or persons who kicked him as violently as the police described.

42 In R. v. Lifchus (1997), 118 C.C.C. (3d) 1, at para. 36, the Supreme Court defined a reasonable doubt as one that is "logically connected to the evidence or absence of evidence" (emphasis added). (See, also, R. v. Starr (2000), 147 C.C.C. (3d) 449 at para. 231 (S.C.C.) and R. v. E.(P.C.) (1998), 126 C.C.C. (3d) 457 (Alta. C.A.).) The "absence of evidence" of any blood on [REDACTED] leaves me with a reasonable doubt as to his guilt, particularly when this factor is considered along with the other concerns I have endeavoured to identify. The probative value of evidence regarding [REDACTED]'s participation in the beating of [REDACTED], like that pertaining to the defendant [REDACTED], rests somewhere along a spectrum of probable 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 [REDACTED] and [REDACTED] not guilty of the single offence with which they are both charged.

[REDACTED]

 


 

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