



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Benson, 2015 ONCA 827

DATE: 20151202

DOCKET: C58262

Gillese, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Orton Benson

Appellant

John Collins, for the appellant

John Pearson, for the respondent

Heard: May 5, 2015

On appeal from the conviction entered by Justice A.J.
    Stong of the Superior Court of Justice, sitting without a jury, on April 5,
    2013, and from the sentence imposed on January 28, 2014.

Tulloch J.A.:

A.

introduction

[1]

The appellant, John Benson, was convicted of four arson related charges.
    The charges arose out of a fire set to a truck located on his neighbours
    property on April 13, 2010. The neighbour, Brian Timmons, suffered minor burns
    and damage to his property.

[2]

The crucial evidence at trial was a video of a man approaching the truck
    with something in his right hand, reaching into the drivers side of the
    vehicle, igniting a fire, and quickly moving back in the direction he came
    from. Timmons recognized the appellant as the arsonist and testified to this at
    trial.

[3]

The appellant appeals his conviction, and raises three grounds of
    appeal. First, he contends that the trial judge did not consider the effect of
    the evidence of the Crowns expert forensic video analyst on the quality, as
    opposed to the admissibility, of the lay opinion recognition evidence.

[4]

Second, he submits that the trial judge failed or refused to engage in
    any analysis whatsoever concerning Timmons credibility based on his admitted
    animus towards the appellant, his history of criminal misconduct, and the fact
    that he lied about this misconduct to the trial judge.

[5]

Finally, the appellant submits that the trial judge drew an unwarranted
    negative inference against the credibility of the appellant in his assessment
    of the appellants videotaped statement to the police.

[6]

Although the appellants factum suggests that he sought leave to appeal
    sentence, he made no submissions, either oral or written, on the sentence
    appeal.

[7]

For the reasons that follow, I would dismiss the appeal.

B.

FACTS

[8]

The sole issue at trial was the identity of the person who set fire to
    the truck. The appellant did not testify.

[9]

At the time of the fire, the appellant and Timmons had known each other
    for at least six years. Timmons purchased his property from the appellant. At
    one point, Timmons and the appellant had a friendly, neighbourly relationship,
    in which the appellant would attend Timmons property regularly. Their relationship
    deteriorated and became acrimonious to the extent that the appellant made
    regular complaints to the Ministry of Natural Resources about the business
    activities, including sandblasting, that Timmons engaged in on his property.

[10]

On
    the day of the fire, Timmons had been working on fixing the drivers side
    window of a truck lent to him. During the six oclock news, Timmons heard
    percussion sounds and saw a cloud of smoke out his window. He saw the truck
    engulfed in flames. The truck was near a garage that contained chemicals for
    his business. He used a forklift that he had in his yard and backed the truck
    out of its position near his garage. A passerby called the fire department.

[11]

When
    the police arrived at the scene to investigate the fire, Timmons insisted that
    he was responsible for accidentally setting it. He testified that he did not
    want them to conduct an investigation because he did not want the hassle of
    having to deal with the authorities. Timmons did not call the fire department
    or the police when he realized his property was on fire.

[12]

A
    few weeks before the fire, Timmons had installed surveillance video cameras on
    his property. When the police arrived on the property to commence their
    investigation, he did not immediately disclose to them that there was a
    surveillance video.  Timmons later testified that he had actually forgotten
    that he had had the cameras installed.  Once the police became aware of the
    existence of the surveillance cameras, they asked about the cameras, but
    Timmons was reluctant to give them the tapes, believing that he had caused the
    fire and he did not hand the videos over to the police until he was threatened
    with a warrant. The surveillance video captured the image of the person setting
    the fire. Timmons saw the video while with the police and immediately
    identified the appellant.

C.

Discussion

(1)

The Evidence of the Expert Forensic Video Analyst

[13]

At
    trial, the Crown adduced video evidence. The police expert who testified to
    tender the video evidence was not called as an identification witness, but as a
    forensic video analyst. He was not asked to do a lengthy comparative analysis
    report. The expert prepared the video evidence introduced at trial, including
    the surveillance recording of the crime scene showing a person of interest
    reaching inside the victims truck when it erupted in flames.

[14]

The
    appellant argues that Timmons identification of the appellant should be viewed
    in light of the experts testimony about the low quality of the surveillance
    video evidence and the experts inability to identify the characteristics of
    the person captured by the video.

[15]

The
    officers evidence was technical in nature and relevant to whether or not the
    video evidence was in any way compromised or altered. Once it has been
    determined that the video was not altered or changed and that it accurately
    depicts the scene, the video may indeed be a silent, trustworthy, unemotional,
    unbiased and accurate witness who has complete and instant recall of events:
R.
    v. Nikolovski
, [1996] 3 S.C.R. 1197, at para. 28.

[16]

The
    trial judge noted the pixilation of the video and that it could not be further
    enhanced. Whether the video recordings were of sufficient quality to form the
    basis for the identification was a question of fact for the trial judge. This
    courts jurisdiction to review that finding is limited:
R. v. Abdi
,
    2011 ONCA 446, [2011] O.J. No. 2639, at para. 6.

[17]

The
    quality of the recording was relevant to the trial judges consideration of the
    content of the video. It pertained to the question of whether or not it was
    clear enough for the trial judge to review and place any weight on the video or
    on Timmons observations and identification. But there was no need for the
    trial judge to further refer to the testimony of the expert, as his testimony on
    the content of the video was of minimal probative value. Those who are not
    acquainted with the accused are in no better position than the trial judge to
    identify persons in video evidence:
R. v. Leaney
, [1989] 2 S.C.R. 393,
    at para. 33. The experts description of the arsonist and evidence on the
    content of the video would not assist the trial judge on the ultimate
    identification issue.

[18]

It
    is clear from the reasons that the trial judge examined the video. He provided
    a detailed description of what he was able to glean from it despite its
    pixilation. A review of the surveillance video confirms that the trial judges
    assessment of it was reasonable. Of note, the trial judge did not make a
    positive identification from his viewing of the video. He relied on the
    recognition evidence of the complainant and his own supporting observations in
    making his decision on the appellants guilt.

(2)

The Credibility of the Identification Witness and the Reliability of the
    Recognition Evidence

[19]

In
    light of the quality of the surveillance video, the appellant argues there was
    an increased need for an analysis of Timmons credibility, and submits that the
    trial judge failed or refused to engage in any credibility analysis whatsoever.

[20]

I
    disagree. It is clear from a reading of the reasons as a whole that the trial
    judge accepted Timmons testimony, found him to be credible, and found his
    identification of the appellant to be reliable.

[21]

While
    appellate courts retain the power, pursuant to s. 686(1)(a)(i) of the
Criminal
    Code
to reverse trial courts verdicts where the assessment of credibility
    made at trial is not supported by the evidence,  this is done sparingly. 
    Appellate courts show great deference to findings of credibility made at trial,
    and will only interfere with findings of credibility in exceptional
    circumstances:
R. v. W. (R.)
, [1992] 2 S.C.R. 122, p. 131;
R. v.
    Burke
, [1996] 1 S.C.R. 474, at paras. 5-7. Trial judges are in a special
    position to assess credibility issues as they have the advantage of seeing and
    hearing the evidence of witnesses.


[22]

The
    appellants main issue is that the trial judge did not consider Timmons
    admitted animus toward the appellant, his history of criminal misconduct, or
    that he lied about his criminal misconduct, in considering his credibility and
    the reliability of his identification.

[23]

All
    of these issues were raised by the defence and acknowledged by the trial judge
    at the beginning of his decision. He noted the history of the relationship
    between the appellant and Timmons and the clear animosity between the two. He
    also engaged in a lengthy discussion about Timmons actions and motivations on
    the evening of the fire. The trial judge concluded: I accept his explanation.
    He had had his hassle with the authorities. He was conducting his business and
    did not want to have more problems. At this point he believed that he was
    responsible for the fire.

[24]

With
    respect to the reliability of the identification and the weight to be assigned
    to it, the trial judge reviewed Timmons testimony and compared it to his own
    observations of the video. The trial judge summarized Timmons testimony as
    follows:

[H]e said he was one hundred percent sure that it was John
    Benson on the video by the way he moved his arms, by the way he walked, by the
    way he limped as he was moving, by his hairstyle, his face, his body shape, his
    thinning hair, his age, his build, the extended body that he saw, meaning his
    enlarged stomach, the clothing that he always wore, meaning his plaid shirt, particularly.
    He referred to the person depicted in the video as Mr. Benson and described Mr.
    Bensons hairstyle as an Einstein hairstyle.

[25]

Recognition
    evidence such as Timmons evidence in this case is a form of identification
    evidence. The caution with respect to the frailties of eyewitness
    identification evidence still applies:
R. v. Olliffe
, 2015 ONCA 242,
    322 C.C.C. (3d) 501, at para. 39. However, as the court in
Olliffe
noted, the level of familiarity between the accused and the witness may enhance
    the reliability of the identification evidence. This applies here. The trial
    judge considered that the two men had known each other for a long period of
    time and had interacted on a regular basis. Their relationship and familiarity
    with one another certainly served to enhance the reliability of the
    identification.

[26]

This
    court in
R. v. Berhe
, 2012 ONCA 716, 113 O.R. (3d) 137, discussed the
    threshold admissibility for recognition evidence from the examination of a
    photograph or video. The court held, at para. 22, that the ability of a witness
    to point to a unique identifiable feature or idiosyncrasy of the person to be
    identified was a concern better resolved when determining the ultimate
    reliability of the evidence, and not its admissibility.

[27]

Timmons
    clearly noted the unique, distinctive, and recognizable features of the
    appellant in his testimony. These were, in the trial judges opinion, the
    badges of reliability of identification. That he was not able to identify the
    particular features of the appellants face or eye colour was not fatal to his
    identification.

[28]

The
    distinctive features relied upon by the complainant are easily observed upon
    viewing the video. In
Leaney
, the main identification evidence against
    the accused was a video of the break-in and the testimony of five police
    officers. The Supreme Court of Canada held that the evidence of four police
    officers was inadmissible. The identification evidence and testimony of a
    sergeant who had known the accused since childhood and who gave evidence about
    features and idiosyncrasies of the accused that were identifiable on the video
    was admissible.  The trial judge made his own observations of the video made
    and compared the identifiable features of the accused. The conviction was
    upheld despite the inadmissible evidence on the basis of the trial judges own
    observations of the video and his comparison of the tape to the accused.

[29]

Here,
    the identification evidence was supported by the trial judges own
    observations.  As mentioned, the quality of the surveillance video was low and
    the trial judge could not positively identify the appellant based only on his
    viewing of the tape. However, he noted in particular the appellants limp from
    his left side and the predominant use of his right arm, that the contours of the
    face in the video were that of an older male with full cheeks, and that the
    arsonist had disheveled hair that was standing up.  All of this was consistent
    with Timmons testimony.  It was also consistent with the video of the
    appellant at the police station, seemingly wearing the same plaid shirt as the
    arsonist in the surveillance video, and with the same hairstyle and puffy
    cheeks.

[30]

The
    trial judge in the present case considered all the evidence, including the lack
    of physical evidence to corroborate the identification.  It was open to him to
    accept those parts of Timmons evidence that coincided with his own
    observations and which identified the person depicted in the video as the
    appellant.  This was particularly so in the absence of any evidence to the contrary
    from the appellant.

(3)

The Credibility of the Appellant

[31]

The
    trial judge reviewed the videotaped statement made by the appellant to the
    police on the day after the fire. He found the appellant to be polite,
    unrehearsed, and consistent in his denial.  However, the trial judge also noted
    an inconsistency with respect to whether the appellant had gone over to the
    complainants property after the fire began and before the fire department
    arrived.  The trial judge found that he changed his story to include that he
    ran up there out of concern for his dogs.  This comment was made after the
    appellant was questioned by police and confronted with the possibility that
    there were surveillance cameras on Timmons property.

[32]

The
    trial judge was entitled to consider the inconsistency in the appellants
    statement and the comment about him running, despite his mobility and health
    issues.  I agree with the Crown that the trial judge did not violate the
    principle in
R. v. W. (D.)
, [1991] 1 S.C.R. 742, in his analysis of the
    evidence.  The appellant did not testify at his trial, and the trial was not a
    credibility contest between the appellant and the identification witness.  The
    trial judge was satisfied beyond a reasonable doubt that it was the appellant
    who was depicted on the video setting fire to the truck.  The trial judge
    considered the appellants denial to police, but based his conclusion on
    Timmons identification and his own observation of the video in light of
    Timmons testimony on the distinctive features of the appellant. This was
    appropriate in the circumstances.

D.

Disposition

[33]

For
    the reasons above, I would dismiss the conviction appeal.  In the total absence
    of submissions on sentence, I would not grant leave to appeal sentence.

Released: EEG DEC 2 2015

M. Tulloch J.A.

I agree. E.E. Gillese
    J.A.

I agree. P. Lauwers
    J.A.


