



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)   Every person
    who fails to comply with an order made under subsection 486.4(1), (2) or (3) or
    486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4),
    (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an
    order is made under section 486.4, on application of the prosecutor in respect
    of a victim or a witness, or on application of a victim or a witness, a judge
    or justice may make an order directing that any information that could identify
    the victim or witness shall not be published in any document or broadcast or
    transmitted in any way if the judge or justice is of the opinion that the order
    is in the interest of the proper administration of justice.

(2)     On application
    of the prosecutor in respect of a justice system participant who is involved in
    proceedings in respect of an offence referred to in subsection (2.1), or on
    application of such a justice system participant, a judge or justice may make
    an order directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the interest
    of the proper administration of justice.

(2.1) The offences for
    the purposes of subsection (2) are

(a) an offence under
    section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence
    committed for the benefit of, at the direction of, or in association with, a
    criminal organization;

(b) a terrorism offence;

(c) an offence under
    subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of
    Information Act
; or

(d) an offence under
    subsection 21(1) or section 23 of the
Security of Information Act
that
    is committed in relation to an offence referred to in paragraph (c).

(3)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice if it is not the purpose of the
    disclosure to make the information known in the community.

(4)     An applicant for
    an order shall

(a) apply in writing to
    the presiding judge or justice or, if the judge or justice has not been
    determined, to a judge of a superior court of criminal jurisdiction in the
    judicial district where the proceedings will take place; and

(b) provide notice of
    the application to the prosecutor, the accused and any other person affected by
    the order that the judge or justice specifies.

(5)     An applicant for
    an order shall set out the grounds on which the applicant relies to establish
    that the order is necessary for the proper administration of justice.

(6)     The judge or
    justice may hold a hearing to determine whether an order should be made, and
    the hearing may be in private.

(7)     In determining
    whether to make an order, the judge or justice shall consider

(a) the right to a fair
    and public hearing;

(b) whether there is a
    real and substantial risk that the victim, witness or justice system
    participant would suffer harm if their identity were disclosed;

(c) whether the victim,
    witness or justice system participant needs the order for their security or to
    protect them from intimidation or retaliation;

(d) societys interest
    in encouraging the reporting of offences and the participation of victims,
    witnesses and justice system participants in the criminal justice process;

(e) whether effective
    alternatives are available to protect the identity of the victim, witness or
    justice system participant;

(f) the salutary and
    deleterious effects of the proposed order;

(g) the impact of the
    proposed order on the freedom of
expression
of those affected by it; and

(h) any other factor
    that the judge or justice considers relevant.

(8)     An order may be
    subject to any conditions that the judge or justice thinks fit.

(9)     Unless the judge
    or justice refuses to make an order, no person shall publish in any document or
    broadcast or transmit in any way

(a) the contents of an
    application;

(b) any evidence taken,
    information given or submissions made at a hearing under subsection (6); or

(c) any other
    information that could identify the person to whom the application relates as a
    victim, witness or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c. 13, s. 19

486.6 (1)  Every
    person who fails to comply with an order made under subsection 486.4(1),
    (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary
    conviction.

(2)  For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to
    proceedings taken against any person who fails to comply with the order, the
    publication in any document or the broadcasting or transmission in any way of
    information that could identify a victim, witness or justice system participant
    whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Keating, 2020 ONCA 242

DATE: 20200401

DOCKET: C65506

Doherty, Watt and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dwayne Keating

Appellant

Michael Pasquale, for the appellant

Adam Wheeler, for the respondent

Heard: In-writing appeal submitted to the panel
    on March 23, 2020

On appeal from the convictions entered by
    Justice Paul T. OMarra of the Ontario Court of Justice, dated April 12, 2018.

Doherty J.A.:


I



overview

[1]

This is an appeal from conviction only.

[2]

The appellant was charged with three pimping
    related offences. The trial judge convicted on all three counts.

[3]

The appellant acknowledges that the conduct and
    events described by the complainant, and accepted as factually accurate by the
    trial judge, established the requisite elements of the three offences charged.
    The appellant submits, however, that the trial judge erred in finding that the
    appellant was the person who committed the offences.


II



the evidence

[4]

The Crowns case rested almost exclusively on
    the evidence of the complainant. She testified and, on consent, the trial judge
    admitted a video statement made by the complainant pursuant to s. 715.1 of the
Criminal
    Code
. That statement, once admitted, became part of her testimony.

[5]

In April 2017, the complainant was destitute,
    abusing drugs and trying to survive on the streets by herself. She was 17. Her
    parents had ordered her out of the house earlier.

[6]

The complainant found herself alone in a Tim
    Hortons in Thornton, Ontario. She was under the influence of the drug Xanax. The
    complainant contacted a person she knew as Chicken on her Instagram. They had
    communicated over Instagram previously. They had never met.

[7]

Eventually, Chicken, at the complainants
    request, picked her up at the Tim Hortons. Over the next four or five days, the
    complainant and Chicken were constantly together, first, at his mothers home and
    later at various hotels. They had sexual intercourse on various occasions. They
    were joined by another woman, who the complainant knew as Shanice. The
    complainant soon realized that Shanice worked as a prostitute for Chicken.

[8]

Chicken quickly began to pressure the
    complainant to work as an escort. He assured her that she could make some easy
    money. Chicken prepared and placed an advertisement offering the complainants
    sexual services on a website known as Backpage. Chicken controlled all
    inquiries generated by that advertisement.

[9]

Having  lived on the streets for about two years, 
    the complainant had some familiarity with the world of escorts. She did not
    want to become involved in prostitution and did all she could to avoid meeting
    the clients who answered the advertisement placed by Chicken. She and Chicken
    quarrelled over her reluctance to work as an escort. He became very angry.

[10]

During the  four or five days the complainant
    was with Chicken, she had little sleep and was constantly under the influence
    of drugs that he provided.

[11]

The complainant met only one client. He paid her
    the agreed upon amount for sex, but apart from some awkward kissing, they only
    talked. The complainant gave the money to Chicken after the client left.

[12]

On the fourth or fifth night that the
    complainant was with Chicken, she and Shanice got into a heated argument in a
    hotel room. Eventually, the complainant went to the front desk and asked the
    clerk to call the police. Chicken and Shanice fled before the police arrived.

[13]

The police took the complainant to the police
    station. A police officer conducted a video interview with the complainant
    later that night. This was the video eventually admitted at trial under s.
    715.1 of the
Criminal Code
.

[14]

In the course of the video interview, the
    complainant was shown screenshots taken from the complainants Facebook page,
    containing photos of a Facebook friend who used the name Teff Dot. The
    complainant told the police officer that the person in the photos was the same
    person she had been referring to as Chicken when describing the events of the
    previous four or five days.

[15]

The complainant did not know the identity of the
    person she knew as Chicken at the time she was interviewed by the police. The
    appellant was eventually arrested about six weeks later.

[16]

In her trial testimony, the complainant again
    identified the person in the Facebook photos as the person she knew and
    referred to as Chicken. The complainant also made an in-court identification of
    the appellant as that person. The complainant, who testified by closed circuit
    tv, indicated, however, that she could not see the appellant clearly on the
    camera, although she did notice that his hair was shorter than it had been.

[17]

The Crown also introduced into evidence a
    photograph of the appellant taken when he was arrested, about six weeks after
    the complainant spoke to the police.

[18]

The appellant did not testify or call any
    evidence.


III



Did the trial
    judge err in his consideration of the identification evidence?

[19]

There is no gainsaying the risks inherent in
    eyewitness identification. Equally, there can be no doubt that care must be
    taken by a trier of fact when assessing, and before relying on, eyewitness
    evidence.

[20]

It is important, however, that the risks be
    assessed in the context of the specific facts of the case. Here, the
    complainant testified that she met a person she knew as Chicken through
    Instagram. She had pictures of that person on her Facebook page. In her video
    statement, she identified the photographs as pictures of the person she knew as
    Chicken, the very same person she had been with continually over the previous
    four or five days. She gave the same evidence at trial.

[21]

The Facebook photographs, which the complainant
    identified as Chicken, were exhibits at trial. The trial judge compared those
    photographs to the mugshot photograph of the appellant taken some six weeks
    after the relevant events. He said:

I have examined Exhibit Number 3, the Facebook
    pages, and the mugshot taken in May 2017. Although they were black and white
    photocopies, the Facebook pages were dated January and October. I am satisfied
    they were of good quality. They have sufficient clarity for me as a trier of
    fact to identify the accused beyond a reasonable doubt.

[22]

The trial judge concluded that the complainants
    identification of the Facebook photographs as pictures of Chicken, the man who had
    tried to force her into prostitution, combined with the trial judges own
    observation that the Facebook pictures were indeed pictures of the accused as
    shown in his mugshot, was sufficient to prove beyond a reasonable doubt that
    the appellant and the person who the complainant referred to as Chicken were
    one in the same person.

[23]

The appellants primary submission arises out of
    the trial judges reliance on his own observation of the Facebook photographs
    to conclude that they were photographs of the appellant. The appellant argues
    that
R. v. Nikolovski
, [1996] 3 S.C.R. 1197 limits a trier of facts
    ability to identify an accused as a person depicted in a photograph or video to
    situations in which the photograph or video is a depiction of the accused
    committing the crime or acting in close proximity to the commission of the
    crime.

[24]

There is nothing in
Nikolovski
, the
    case law flowing from it, or logic which supports the limitation advanced by
    the appellant. In cases like
Nikolovski
, in which the photograph or
    video is relied on as the exclusive evidence to establish an accuseds guilt,
    it follows that the photograph or video must be sufficiently probative to carry
    the evidentiary burden on all essential elements of the offence. In practical
    terms, it must show the accused committing the offence.

[25]

In this case, the Crown did not depend exclusively
    on the identification by the trial judge of the appellant as the person in the Facebook
    photographs tendered by the Crown. The Crowns case had two planks. First, the
    Crown relied on the complainants evidence that the person shown in the
    Facebook photographs was the same person she had lived with the preceding four
    or five days, and the same person who had attempted to coerce her into acting
    as an escort. Second, the Crown relied on the trial judges comparison of the
    photographs of the person in the Facebook photographs with the person shown in
    the appellants mugshot. Based on that comparison, the trial judge was
    satisfied that the appellant, who was obviously the person shown in the mugshot,
    was also the person shown in the Facebook photographs identified by the
    complainant.

[26]

The Facebook photographs, on their own, could
    not prove that the accused committed any crime. The complainants evidence,
    which the trial judge accepted after careful analysis, established that the
    person in the Facebook photographs, known to the complainant as Chicken,
    committed the crimes alleged. The trial judges in-court observations,
    including his assessment of the complainants credibility and acceptance of her
    testimony, allowed him to conclude that the person in the Facebook photographs who
    had committed the crimes, was the same person who was before him in court. The
    trial judges reliance on his own observations to forge the connection between
    the perpetrator of the crimes and the accused before the court did not offend
    the analysis in
Nikolovski
or any other evidentiary principle.

[27]

The other submissions advanced by the appellant
    effectively challenged the reasonableness of the convictions. The appellant
    makes many of the same arguments that were made at trial. For example, he
    submits that the police failed to take basic and necessary investigative steps,
    that the trial judge failed to consider the lack of corroborating evidence, and
    that the complainant had a motive to fabricate the allegations against the
    appellant.

[28]

The trial judge considered these arguments and
    the other submissions made at trial. He rejected all of them. In doing so, he was
    clearly alive to the dangers associated with identification evidence. His
    analysis reveals neither legal nor factual error.

[29]

Nor can it be said that the evidence could not
    reasonably support the trial judges findings. In assessing the complainants
    evidence that Chicken was the person shown in the Facebook photographs, it is significant
    that when the complainant identified the picture as a picture of Chicken, she
    had been living with that person on intimate terms over the previous four or
    five days. Her identification of Chicken as the person in the photographs was
    hardly based on a fleeting glance.

[30]

The trial judge gave careful and thorough
    reasons for accepting the complainants evidence, including her evidence that
    Chicken, the person who attempted to coerce her into prostitution, was the
    person depicted in the Facebook photographs. In concluding that the appellant
    before the court was the person in the photographs, the trial judge had regard
    to the quality of the photographs and carefully took into account certain
    differences between the appellants courtroom appearance and the appearance in
    the photographs. The trial judges findings were reasonably open on the
    evidence and reasonably arrived at by him.

[31]

I would dismiss the appeal.

Released:
DD
APR 01 2020

Doherty J.A.

I agree David Watt J.A.

I agree M.L. Benotto J.A.


