



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Lewis, 2022 ONCA 282

DATE: 20220408

DOCKET: C68399

Gillese, Brown and Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Courtney Anthony Lewis

Appellant

Maija Martin and Stephanie Brown, for the appellant

Sunil Mathai, for the respondent

Heard: April 1, 2022 by video conference

On appeal from the conviction entered on November 29,
    2019 by Justice Vanessa V. Christie of the Superior Court of Justice.

REASONS FOR DECISION

Overview

[1]

On June 25, 2012, Ryan Turcotte
    spent the evening at a bar in Muskoka. He returned to Barrie in the early
    morning hours of June 26, 2012, on a bus provided by the bar. Ryan Zaroski, a
    security person employed by the bar, was also on the bus with the passengers.
    During the ride back to Barrie, Mr. Zaroski noticed tension between Mr.
    Turcotte and another bus passenger, Aaron Lewis. Before the bus arrived in
    Barrie, Mr. Zaroski called the police to report that there was going to be a
    confrontation.

[2]

When the bus stopped at a strip
    plaza in Barrie, the police had not arrived. Mr. Zaroski was still on the phone
    with a 911 dispatcher when he witnessed Mr. Turcotte being set upon by
    three people in the parking lot of the plaza. Mr. Turcotte was pushed and
    punched. Upon falling to the ground, he was kicked. The assault happened
    quickly, but it left Mr. Turcotte with a significant brain injury.

[3]

The appellant and his cousin,
    Aaron Lewis, were tried on the offence of aggravated assault by a judge sitting
    without a jury.
[1]
The Crown alleged that the appellant had participated in the assault on Mr.
    Turcotte by punching him. The Crown relied on the evidence of three eyewitnesses:
    Mr. Zaroski; David Ribble, the bus driver; and Kiki Mukendi, a friend of Mr.
    Turcotte who was also on the bus. The trial judge convicted the appellant but
    acquitted Aaron Lewis.

[4]

The appellant argues on appeal
    that the trial judge erred in her assessment of the eyewitness evidence. We
    disagree. For the reasons below, we dismiss the conviction appeal.
[2]

The Identification Evidence

[5]

Mr. Mukendi and Mr. Zaroski
    testified that the appellant participated in the assault. Mr. Ribble did not
    identify the appellant as having participated. When the police arrived at the
    scene, Mr. Mukendi told them that the individuals who were responsible for the
    attack lived at an address on Rose Street. He took the officers to that address.
    The appellant was at the residence located at that address, and he was
    arrested.

[6]

Mr. Zaroski was an important
    witness for the Crown. He testified that, upon arrival in Barrie, he told Mr.
    Turcotte that it would be in his best interest to go home quickly. Mr. Turcotte
    exited the bus once it pulled into the parking lot of the strip plaza.

[7]

Mr. Zaroski testified that, from
    his position inside the bus, he saw the appellant waiting in the parking lot
    alone when the bus arrived at the plaza. He described the appellant as wearing
    a black hoodie and black pants. He recognized the appellant as soon as the bus
    stopped. He said that the appellant was a casual acquaintance with whom he would
    have spoken a few times before, and whom he had seen around the bar scene. He
    said that he had seen the appellant enough times before that day that he would
    have been comfortable saying hey to him, asking him hows it going?, and
    telling him to have a good night.

[8]

Upon exiting the bus, Aaron Lewis
    walked up to the appellant. They joined some others, who all then approached
    Mr. Turcotte.

[9]

According to Mr. Zaroski, Aaron
    Lewis pushed Mr. Turcotte, then the appellant punched Mr. Turcotte on the left
    side of his head. He testified that there were more punches that followed the
    first punch, but that he did not know who threw those punches. After the
    assault, the assailants fled the scene toward townhouses around Rose Street.

[10]

A brief cellphone video was taken
    of the altercation by an unknown individual. However, the video was of poor
    quality. Mr. Zaroski testified that he could not identify the appellant in this
    video.

The Trial Judges Reasons

[11]

The trial judge convicted the
    appellant but acquitted Aaron Lewis. The trial judge concluded that the Crown
    had established that the appellant had punched Mr. Turcotte on the left side of
    his head in the parking lot.

[12]

The trial judge found Mr. Mukendi
    to be neither a credible nor a reliable witness. She found that Mr. Zaroski and
    Mr. Ribble were credible, but that significant parts of their testimonies were
    unreliable.

[13]

Although the Crown relied on
    eyewitness identification from all three individuals to prove its case against
    the appellant and Aaron Lewis, the trial judge noted that the circumstances of
    the case against the appellant were different. She comprehensively reviewed the
    law on identification evidence and then discussed the specific frailties with
    respect to the eyewitness evidence against each accused. Although she found the
    identification evidence regarding Aaron Lewis to be replete with problems, she
    found the identification evidence of the appellant to be very strong. Ultimately,
    largely relying on Mr. Zaroskis evidence, the trial judge was satisfied beyond
    a reasonable doubt that the appellant was in the parking lot waiting for the
    bus to arrive, that he approached Mr. Turcotte, that another individual pushed
    Mr. Turcotte, and that the appellant then punched Mr. Turcotte in the
    head. She further concluded that other people were also involved in punching
    Mr. Turcotte, and that he went down to the ground and was not moving.
[3]

Discussion

[14]

The appellant takes issue with the
    trial judges approach to the identification evidence in this case. He makes four
    main submissions.

[15]

First, the appellant argues that
    the trial judge erred by treating Mr. Zaroskis evidence as recognition
    evidence. According to the appellant, the nature of Mr. Zaroskis
    observations fell short of being recognition evidence, and the trial judge
    should have subjected Mr. Zaroskis purported identification to a more stringent
    analysis. We disagree.

[16]

It is not disputed that triers of
    fact are entitled to take into account whether a witness is acquainted with an
    accused when assessing the reliability of that witnesss identification
    evidence:
R. v. Chafe
, 2019 ONCA
    113, 145 O.R. (3d) 783, at para. 31, citing
R. v. Olliffe
, 2015 ONCA 242, 331 O.A.C. 12, at para. 38. In her
    reasons, the trial judge correctly noted that recognition evidence, as a
    subcategory of identification evidence, has the same frailties and risks as
    identification evidence, demands the same cautious approach as identification
    evidence, and requires the same level of reliability as identification evidence:
Chafe
, at paras. 29, 30, and 32;
Olliffe
, at paras. 39-40.

[17]

We are not persuaded by the
    appellants submission that the trial judge erred in her approach to Mr. Zaroskis
    evidence. The trial judge succinctly explained why she accepted Mr. Zaroskis testimony
    as powerful evidence of recognition:

Mr. Zaroski provided a detailed account of the assault, one
    that appears to me to be corroborated by the video evidence. In my view, Ryan
    Zaroski, having had previous interactions with [the appellant], had ample
    opportunity to observe him on June 26th, 2012. Mr. Zaroski recognized [the
    appellant] from the moment they parked in the parking lot. While this was a
    fast-moving event without a lot of light, Mr. Zaroski clearly saw [the
    appellant] punch Mr. Turcotte, sending him to the ground. Mr. Zaroski saw who
    he believed to be [the appellant] going toward the townhouses. He gave the name
    of [the appellant] to police at the scene, however, he wanted to verify with a
    photo. That very morning he was able to find a picture of [the appellant], who
    he already believed the person to be, and confirmed it was him. There was no
    suggestion that Mr. Zaroski colluded or worked with anyone when coming up with
    that photo. [The appellant] was arrested in the area of  Rose Street, having
    been associated with that address.

[18]

It was open to the trial judge to
    find that Mr. Zaroskis evidence was recognition evidence. As described
    earlier, Mr. Zaroski testified that the appellant was a casual acquaintance,
    that he saw him around the bar scene, and that he had spoken with him enough
    times prior to the assault that he would have felt comfortable making small
    talk with him.

[19]

The trial judges finding that Mr.
    Zaroski was a recognition witness was firmly rooted in the evidence. It was for
    the trial judge to assign weight to this evidence, and we see no error in her
    approach.

[20]

Nor do we agree with the
    appellants argument that the trial judge erred in relying on Mr. Zaroskis
    evidence because she failed to comment upon what the appellant submits is his distinctive
     lazy eye. Counsel on appeal acknowledge that this was never put to Mr.
    Zaroski, and that it was only raised during closing submissions. The respondent
    points out that the trial judge observed that one of the eyes of [the
    appellant] opens larger than the other, yet there was no evidence on this
    point, and the pictures of the appellant filed as exhibits at the trial did not
    demonstrate that the appellant did, in fact, have a lazy eye.

[21]

In our view, the trial judge dealt
    with this purported omission. In any event, the absence of extensive commentary
    on this single feature, about which no evidence was filed at the trial, does
    not demonstrate that the trial judge fell into error.

[22]

Second, the appellant submits that
    the trial judge erred by failing to consider that Mr. Zaroskis identification
    evidence was tainted two times: first, when he apparently heard someone say the
    name Lewis at the scene; and again, later that morning after the assault, when
    he retrieved a photograph of the appellant from a Facebook page and gave that
    picture to the police. The appellant argues that the trial judge did not
    consider the possibility that the utterance at the scene and the retrieval of
    the photograph did not strengthen Mr. Zaroskis identification of the appellant,
    but rather served as confirmation of Mr. Zaroskis inaccurate belief that the
    appellant participated in the assault.

[23]

We do not accept this submission.
    We see no error in how the trial judge treated these pieces of evidence. Mr.
    Zaroski confirmed that, at the time of the assault, the appellants name was
    on the tip of [his] tongue already and that hearing the name Lewis simply
    connected the dots in his mind about the appellants identity. Significantly,
    the trial judge reviewed this testimony and noted that she had to be extremely
    cautious about relying on it. Moreover, the trial judge noted that it was
    unclear whether the word Lewis was uttered before or after Mr. Zaroski spoke
    to the police at the scene. This was important because it was not disputed that
    the appellant had told the police that the appellant was possibly involved in
    the assault, and hearing the name Lewis after making this report would rebut
    the allegation of tainting.

[24]

With respect to the Facebook photograph,
    we do not share the concern urged upon us by the appellant. Mr. Zaroski immediately
    recognized the appellant from the moment the bus entered the parking lot, and then
    gave the name of the appellant to the police at the scene following the assault.
    Only after all of that did Mr. Zaroski decide to retrieve a Facebook picture to
    verify what he already believed to be true. Importantly, we note that the trial
    judge concluded that there was no suggestion that Mr. Zaroski colluded or
    worked with anyone to find the Facebook page on which he viewed the photograph
    of the appellant. As a result, the only way the Facebook photograph could have
    tainted Mr. Zaroskis identification of the appellant is if it bolstered his
    confidence in a false identification, such that the trial judge was unable to meaningfully
    rely on the identification evidence.

[25]

The trial judge
s reasons demonstrate that she did not commit this
    error as alleged by the appellant. To begin, the trial judge reviewed
jurisprudence
in
    which viewing Facebook photographs formed part of the identification process:
R. v. T.A.H.
, 2012 BCCA 427;
R. v. Mohamed
, 2014 ABCA 398, 588 A.R. 89, leave to appeal to S.
C.C. refused, 37404 (April 13, 2017). In addition, she
    provided herself with an extensive self-instruction against using confidence as
    a proxy for correctness, as this court has repeatedly endorsed: see e.g.,
R.
    v. Deakin
, 2021 ONCA 823, at paras. 16, 18;
Olliffe
, at para. 43;
R.
    v. Goran
, 2008 ONCA 195, 234 O.A.C.
    283, at para. 27. Taken together, we are confident that the relevance and
    impact of the Facebook photograph was properly assessed and addressed in the
    trial judges reasons.
This ground of
    appeal is therefore dismissed.

[26]

Third, the appellant contends that
    the trial judge erred by failing to consider the cross-racial nature of Mr.
    Zaroskis identification because Mr. Zaroski is white and the appellant is black.
    According to the appellant, Mr. Zaroskis description of the appellant was so
    generic that the trial judge was required to self-instruct on the frailties
    inherent in cross-racial identification: see e.g.,
R. v. Bao
, 2019 ONCA 458, 146 O.R. (3d) 225, at para. 23;
R.
    v. Richards
(2004), 70 O.R. (3d) 737
    (C.A.), at para. 32. We reject this submission.

[27]

Trial counsel for the appellant did
    not provide any meaningful submissions on this issue before the trial judge.
    Trial counsel focused on what he perceived to be a tainted identification that
    was replete with confirmation bias. At one point during his closing submissions,
    trial counsel simply said:

An additional complicating factor for Mr. Zaroski is that its
    a cross racial identification, and  thats a notorious additional complicating
    factor that I ask Your Honour to instruct yourself about. Hes only able to say
    that  [the appellant] was wearing dark pants and a dark top, nothing else. So
    thats  another problem.

[28]

The trial judge can hardly be
    faulted for failing to mention cross-racial identification in her reasons given
    that trial counsel almost exclusively focused on other matters. Trial counsel
    specifically
argued that Mr. Zaroskis
    identification of the appellant suffered from the following frailties: (1) Mr.
    Zaroski did not identify the appellant during his call to the police; (2) Mr.
    Zaroski heard the name Lewis at the scene and then searched Facebook for the
    identity of the person; (3) Mr. Zaroski was not certain that the appellant
    was involved, advising police that it was possibly the appellant; (4) no
    witness identified the appellant from the cellphone video; and (5) Mr. Zaroski
    and Mr. Mukendi did not identify the appellants lazy eye. Yet all of these
    issues were covered by the trial judge in her reasons.

[29]

Considered in light of the way the
    matter was argued and the trial judges reasons as a whole, the absence of this
    self-instruction is not fatal.

[30]

The reasons reveal that the trial
    judge quite properly took an extremely cautious approach to Mr. Zaroskis
    identification evidence. She clearly noted the frailties in his evidence and commented
    that his description of the appellant as wearing dark pants and a dark hoodie was
    not particularly helpful.

[31]

This was not a case such as
Bao
, on which the appellant relies, where the Crown
    purported to rely on the description of a suspect by a police officer who only
    had a few seconds to observe who he described as an Asian male with dark
    hair. The trial judge in this case specifically found that Mr. Zaroski
    recognized the appellant as the bus pulled into the plaza; knew the appellant by
    name; and told the police that name. She found it would make sense that Mr.
    Zaroski would tell the police that it was possibly the appellant as opposed
    to providing physical characteristics, since he had some familiarity with the
    appellant. The trial judge also noted that the appellant was standing ahead of
    the bus and not among a crowd of people, giving Mr. Zaroski a clear view of the
    appellant. Although the assault was a fast-moving event, Mr. Zaroski described
    the appellant punching Mr. Turcotte on the side of his head in an area
    which was consistent with the photographs tendered at trial depicting the injuries
    that Mr. Turcotte suffered.

[32]

To summarize, there was no
    suggestion in this case that Mr. Zaroski had any difficulty identifying the
    appellant because of race. He knew him from around the bar scene and the trial
    judge accepted that this was sufficient recognition evidence. Trial counsel only
    briefly raised the issue of cross-racial recognition challenges in passing. In
    our view, absent specific evidence of cross-racial identification concerns, the
    absence of that self instruction was not an error:
R. v. Hird
, 2021 ONCA 881, at para. 21. This ground of appeal therefore
    fails.

[33]

Finally, the appellant argues that
    the trial judges reasons were insufficient and do not permit meaningful
    appellate review. We reject this submission, which appears to be a repackaging
    of the previous grounds of appeal. The trial judges reasons are thorough,
    comprehensive, and more than sufficient for appellate review. She clearly
    grappled with the live issues at trial as presented to her by counsel. The
    trial judge admirably reviewed the law, set out the strengths and weaknesses of
    each witness, and provided cogent reasons explaining why she was satisfied
    beyond a reasonable doubt of the appellants guilt. Indeed, it was this same
    thorough and cautious approach that led her to acquit Aaron Lewis. The evidence
    with regard to the appellant was different, largely due to Mr. Zaroskis
    recognition evidence. The trial judge was entitled to treat the appellants
    situation differently as a result, and her reasons do not demonstrate any
    insufficiency. This ground of appeal is dismissed.

Disposition

[34]

For these reasons, the conviction appeal
    is dismissed.
The sentence appeal is
    dismissed as abandoned.

E.E.
    Gillese J.A.

David Brown J.A.

S. Coroza J.A.





[1]
Both accused had originally been tried and convicted of the offence by a judge
    sitting with a jury, but that conviction was set aside on appeal because of
    deficiencies in the trial judges charge to the jury:
R. v. Lewis
,
    2018 ONCA 351. A new trial was conducted by a judge alone.



[2]
The appellant has abandoned his sentence appeal by filing a notice dated October
    1, 2021.



[3]
The trial judge found that the punch was a contributing cause of Mr. Turcottes
    injuries. The appellant has not taken issue with this finding on appeal.


