



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cleland, 2020 ONCA 837

DATE: 20201223

DOCKET: C65950

MacPherson, Lauwers and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Theo Cleland

Appellant

Frank Addario and Wesley Dutcher-Walls,
    for the appellant

Michael S. Dunn, for the respondent

Heard: December 15, 2020 by
    video conference

On appeal from the conviction entered by
    Justice David A. Broad of the Superior Court of Justice, sitting with a jury, on
    June 7, 2018.

REASONS FOR DECISION


[1]

Theo Cleland appeals his conviction by jury of
    aggravated assault. He argues that the jurys verdict was unreasonable and
    requests that the conviction be set aside, and an acquittal be ordered. In the
    alternative, Mr. Cleland seeks a new trial, claiming that the trial judge
    misdirected the jury by providing a confusing jury direction relating to the
    identification evidence against Mr. Cleland, thereby overstating the
    significance of the Crowns identification evidence. For reasons that follow, we
    would dismiss Mr. Clelands appeal.

THE MATERIAL FACTS

[2]

The complainant, Mitchell Wotton, was at a
    university house party (the house party) when an uninvited group of young men
    arrived and attempted to enter the house, leading to an altercation. It is not
    disputed that Hussein Karshe was one of those uninvited young men and was
    involved in the scuffle that ensued. Mr. Karshe received an injury to his hand,
    which bled.

[3]

It is also agreed that Mr. Cleland was part of Mr.
    Karshes group of friends and was present outside the house party. There was no
    evidence that Mr. Cleland was involved in the scuffle.

[4]

Shortly after the uninvited men left the house
    party, Mr. Wotton, Andrew Zaduban, and Sean Redmond also left. At the time, the
    three young men were roommates and good friends. Each of them had consumed
    approximately five beers, or more. Mr. Wotton may have consumed eight beers. Shortly
    after leaving, the three men met up with Gabrielle DAmelio and they walked
    together.

[5]

Before long, Mr. Wottons group encountered several
    young men, including Mr. Karshe. It was conceded before us, and supported by
    trial evidence, that Mr. Cleland, who is white and 510, was part of Mr. Karshes
    group. Mr. Cleland was wearing a white t-shirt, and his hair was tied in a bun.

[6]

Mr. Wotton and Mr. Karshe exchanged words and then
    began to fight. Others became involved, including Mr. Zaduban and Mr. Redmond.
    Mr. Zaduban and Mr. Redmond testified that they were not striking anyone but were
    merely attempting to protect Mr. Wotton, who had been knocked to the ground and
    was being kicked and punched. The fight ended shortly after it began, when the
    police arrived. Mr. Karshe and his group fled.

[7]

During the fight, Mr. Wotton was badly cut and
    his jaw was broken. Mr. Zaduban and Mr. Redmond accompanied him to the hospital.
    It was only later, after they had discussed what had happened, that their
    police statements were prepared.

[8]

Approximately 15 minutes after the police arrived,
    Mr. Cleland was arrested nearby. He broadly met the on-scene description that
    Mr. Wotton had provided to the police.

[9]

At the time of his arrest, Mr. Clelands hair
    was in a bun. There was blood on the left side of his white t-shirt, in the
    area of his left pectoral muscle. His shirt was also stained with dirt. His
    knuckles were slightly swollen, and he had a scratch on his face, blood on his
    ring, and what appeared to be blood on his arm.

[10]

The blood from the shirt and the ring was subjected
    to DNA analysis. Mr. Karshe was the source of the blood on the ring, and his
    DNA was also extracted from the blood on the shirt. The blood on Mr. Clelands
    shirt was from more than one source, but the amount of DNA that remained after
    Mr. Karshes DNA was isolated was too small for analysis.

[11]

Mr. Karshe was not arrested on the night of the
    fight. He was identified the next day by Rachel Gluek, a witness from the house
    party, with the assistance of social media, and subsequently arrested.

[12]

Ms. Gluek also selected a photograph of Kwasi
    Adjei. Mr. Wotton, Mr. Zaduban, and Mr. Redmond were convinced that Mr. Adjei
    had been involved, and Mr. Adjei was interviewed by police as a suspect.
    Ultimately, Mr. Adjei provided an alibi and was not charged.

[13]

During the trial, Ms. Gluek testified that she
    had seen Mr. Cleland on the lawn at the house party and had learned his
    identity from photographs on social media. Three police officers involved in
    Mr. Clelands arrest identified him in court as the person they arrested. None
    of the witnesses to the fight in which Mr. Wotton was injured purported to identify
    Mr. Cleland prior to trial or in court. The case against Mr. Cleland was built
    on descriptions provided by Mr. Zaduban, Mr. Redmond, and Mr. Wotton, and Mr.
    Clelands condition and appearance when arrested.

[14]

When Mr. Zaduban described the fight, he
    testified that after Mr. Wotton punched Mr. Karshe, Mr. Karshes whole group
    went after Mr. Wotton really quickly. He said the members of the group were
    punching and kicking Mr. Wotton. When asked if anybody from Mr. Karshes group
    was not involved, he said, Its hard to say, cause its a blur, but it felt
    like the whole group was attacking [Mr. Wotton].

[15]

He also testified that he remembered three of
    the people who were kicking Mr. Wotton, including a white guy with a man-bun,
    wearing a white shirt with blood on it, who seemed pretty average height, Id
    say 511, 510, 511. When asked where the blood was on this mans shirt,
    he said, Its on his left side of his torso, and he agreed it was on the
    mans pec.

[16]

Mr. Zaduban testified that he saw the blood when
    the man was right beside him, kicking Mr. Wotton. When confronted with his
    earlier statement that he had observed the blood on the man wearing his hair in
    a bun when he first encountered the group, he said he could not remember when
    he first saw the blood, but agreed that he had been attempting to be truthful
    in that statement and that his memory was fresher at the time.

[17]

Mr. Redmond testified that shortly after Mr.
    Karshe and Mr. Wotton began fighting, the rest of their group starts punching
    [Mr. Wotton]. He remembered three of the people in Mr. Karshes group,
    including a white male, about 58, with a white t-shirt and long, brown hair
    in a bun. When asked why he remembered these three men, he explained that they
    were the most aggressive and were punching and kicking Mr. Wotton.

[18]

Mr. Wotton testified that after meeting Mr. Karshes
    group, and before the fight began, he recognized a guy from the party that had
    a man-bun, and a light shirt. He also testified that while he was fighting
    Mr. Karshe, Mr. Karshes group all rush in and jump me. He said he could not
    see specifically who was punching and kicking him, but he said, I have a
    specific recollection of all members of their party coming in.

[19]

The jury ultimately found both Mr. Karshe and
    Mr. Cleland guilty of aggravated assault.

WAS THE VERDICT UNREASONABLE?

[20]

Mr. Cleland argues that the verdict of guilty against
    him was unreasonable. He argues that the inculpatory evidence is so unreliable
    that guilt is not a verdict that a properly instructed jury, acting judicially,
    could have rendered. He urges that when the evidence is reviewed and weighed through
    the lens of judicial experience, the verdict can be seen to be flawed in light
    of the unreasonable result that it produced:
R. v. Biniaris
, 2000 SCC
    15, [2000] 1 S.C.R. 381, at paras. 39-40.

[21]

In his argument, Mr. Cleland focused on six
    flaws in the evidence: (1) each witness was under the influence of alcohol; (2)
    Mr. Zaduban, Mr. Redmond, and Mr. Wotton had each misidentified Mr. Adjei as
    present that evening, and were therefore demonstrated to be unreliable
    identification witnesses; (3) these three witnesses were friends who had
    discussed the case; (4) the fight was brief and chaotic and these three
    witnesses were involved, compromising their opportunity to observe who else was
    involved in the fight; (5) Mr. Zadubans description of his memories as a blur
    with flashes or impressions shows his evidence to be unreliable; and (6) the
    evidence of the blood on Mr. Clelands shirt is neutral because evidence shows
    that the blood came from Mr. Karshe, and Mr. Clelands shirt may well have been
    stained from the injury Mr. Karshe had sustained during the house party
    altercation, before the fight in which Mr. Wotton was injured.

[22]

We would dismiss this ground of appeal.

[23]

There was ample, reliable evidence that Mr.
    Cleland was part of Mr. Karshes group at the time of the fight in which Mr.
    Wotton was injured, a fact that was conceded before us. Based on the evidence
    of Mr. Zaduban, Mr. Redmond, and Mr. Wotton, the jury could reasonably have
    found that all members of Mr. Karshes group, including Mr. Cleland, joined in
    the assault on Mr. Wotton, which led, foreseeably, to his aggravated injuries.
    On that basis alone, there was sufficient evidence to support the conviction.

[24]

Moreover, there was circumstantial evidence that
    would permit a jury to reasonably conclude beyond a reasonable doubt that Mr.
    Cleland was the assailant with his hair in a bun described by Mr. Zaduban and
    Mr. Redmond. Mr. Cleland was known to be present during the fight, he fit the
    description of the assailant, including wearing his hair in a bun, and he
    proved to have blood on his shirt in the very location that Mr. Zaduban described.
    That bloodstain evidence is not neutral, regardless of its source or when that
    stain occurred. Its relevance as identification evidence derives from the
    improbability that both the assailant and Mr. Cleland would have similar stains
    on their shirts and be in the same general area at the same time.

[25]

Further, when Mr. Cleland was arrested nearby,
    shortly after the fight, his appearance indicated that he had been involved in a
    recent altercation, most likely outdoors.

[26]

We are not of the view that the flaws that Mr.
    Cleland identifies in the incriminating evidence furnished by Mr. Zaduban, Mr.
    Redmond, and Mr. Wotton are significant enough that judicial experience would
    require its rejection, particularly given that Mr. Cleland proved to have blood
    on his shirt exactly where Mr. Zadubans evidence indicated it would be. The
    trial judge in his careful charge, with the assistance of defence counsel, alerted
    the jury to each of the material challenges to the credibility and reliability
    of these witnesses, and assisted the jury in understanding their evidence. It
    was for the jury to decide whether to accept the evidence and to determine
    whether the circumstantial case against Mr. Cleland proved his guilt beyond a
    reasonable doubt. We are far from persuaded that the jury verdict was beyond
    the reasonableness limit:
R. v. Lira
, 2017 ONCA 214, at para. 7.

DID THE TRIAL JUDGE MISDIRECT THE JURY?

[27]

Mr. Cleland argues that the trial judge
    misdirected the jury by providing a misleading picture of the identification
    evidence. The police officers involved in Mr. Clelands arrest identified Mr.
    Cleland in court. Ms. Gluek testified that she saw Mr. Cleland on the lawn at
    the house party and later identified him from photographs she viewed on social
    media. None of the witnesses to the fight in which Mr. Wotton was injured
    purported to identify Mr. Cleland. Mr. Cleland contends that the trial judge
    failed to point this out in his charge, instead treating both categories of
    witnesses  those who identified Mr. Cleland as Mr. Cleland, and those who
    merely gave descriptions of an assailant wearing his hair in a bun  the same,
    creating the real risk that the jury would be misled into believing that there
    was evidence that Mr. Cleland had been identified as having been involved in
    the fight. He says that, as a result, the jury charge was misleading and did
    not leave the jury with a sufficient understanding of the facts as they relate
    to the relevant issues:

R. v. Jacquard
, [1997] 1 S.C.R. 314, at
    para. 14.

[28]

Mr. Cleland relies specifically on two passages
    from the jury charge.

[29]

First, when summarizing the Crown position, the
    trial judge recounted the Crown submission that Mr. Cleland was identified by
    his matching the description at the time of his arrest of one of the
    participants in the fight, by his condition upon arrest, and by the place of
    his arrest. The trial judge then continued, In addition to this strong
    uncontradicted evidence of identity, Mr. Cleland was identified in dock or in
    court by several Crown witnesses.

[30]

Mr. Cleland appears to be suggesting that this
    passage elides the descriptive evidence and the identification evidence,
    obscuring the important distinction between these two kinds of proof.

[31]

Second, when summarizing specific shortcomings
    in the Crowns evidence, the trial judge said:

Ten, certain of the witnesses made in court
    identifications of Theo Cleland and Hussein Karshe. In court identification
    occurs when a witness identifies an accused person during the trial in the courtroom.
    It is well established in the law that in court identification is to be given
    negligible, if any, weight.

Eleven, in addition to the four eyewitnesses
    to the altercation on University Avenue that I referred to, there was another
    witness, Rachel Gluek, who offered identification evidence. She identified Theo
    Cleland as having been among the group that had attempted to gain entry to the
    party on the lawn afterwards. Her identification of Theo Cleland derived from
    an observation of a photograph posted on Facebook. No photos supporting
    identification of Theo Cleland were provided to police and identification on
    Facebook deprived the police of the opportunity to conduct a photo line-up with
    the various witnesses to support a positive identification. Moreover, Rachel
    Glueks description of Theo Clelands hairstyle when she observed him on the
    lawn differed from other witnesses. She confirmed that the individual she
    identified did not have a ponytail or a man-bun.

[32]

As indicated, Ms. Gluek testified to seeing Mr.
    Cleland on the lawn at the house party. Mr. Cleland contends that, together,
    points ten and eleven, above, once again obscure the distinction between
    witnesses who identified Mr. Cleland and those who merely described the
    assailant.

[33]

We would dismiss this ground of appeal, as well.
    The jury would not have been misled by the jury charge. The trial judge drew a
    clear distinction in his charge between descriptive evidence and identification
    evidence.

[34]

The trial judge began his charge relating to the
    issue of identity by explaining the risks of eyewitness identification and
    how it is to be evaluated. He made clear in his comments that eyewitness
    identification evidence involves observations and descriptions. The trial judge
    then identified the four witnesses who gave eyewitness evidence relating to the
    incident, namely, Mr. Wotton, Mr. Redmond, Mr. Zaduban, and Ms. DAmelio. At no
    time did he suggest that they had identified Mr. Cleland as the bun-wearing
    assailant.

[35]

In point ten, quoted above, the trial judge
    defined in-court identification evidence as occurring when a witness
    identifies an accused person during the trial in the courtroom. In this way,
    he equipped the jury to identify who the in-court identification witnesses
    were. It would have been apparent to the jury, applying that definition, that
    none of the witnesses to the fight were in-court identification witnesses.

[36]

Nor would the jury have been confused by the
    description of Ms. Gluek as an eyewitness who offered identification evidence,
    in point eleven, quoted above. It was not inaccurate to describe Ms. Gluek in
    this way. As the impugned passage makes clear, Ms. Gluek identified Mr. Cleland
    in the circumstances described, and she also gave eyewitness evidence relevant
    to his identification as having been at the house party. Given the clear
    description by the trial judge of the nature of the evidence given by the
    eyewitnesses to the fight in which Mr. Wotton was injured, we see no realistic
    risk that the way he described Ms. Glueks evidence would cause the jury to
    mistakenly believe that Mr. Cleland had been identified by witnesses as having
    participated in the fight.

[37]

Finally, no objection on this issue was taken to
    the charge. Although we take Mr. Clelands point that Mr. Cleland would have
    received no tactical benefit from a charge that created confusion about whether
    eyewitnesses to the incident had identified him in court, the failure to object
    says something about both the overall accuracy of the jury instructions and
    the seriousness of the alleged misdirection:
Jacquard
, at para. 38.

[38]

We are satisfied that the charge as a whole
    enabled the trier of fact to decide the case according to the law and the
    evidence:
R. v. Calnen
, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 8.

CONCLUSION

[39]

Mr. Clelands appeal is dismissed.

J.C. MacPherson J.A.
P. Lauwers J.A.
David M. Paciocco J.A.


