



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Campbell, 2017 ONCA 65

DATE: 20170125

DOCKET: C61485

Simmons, van Rensburg and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cody Campbell

Appellant

Janani Shanmuganathan, for the appellant

Nadia Thomas, for the respondent

Heard: December 8, 2016

On appeal from the conviction entered on July 2, 2015 by
    Justice Patrick J. Flynn of the Superior Court of Justice, sitting without a jury.

By the Court:

[1]

This is a conviction appeal. The appellant was convicted of break and
    enter and robbery in a judge-alone trial. The only issue was identification.

[2]

Two people who wore hats and were masked with bandanas were involved in
    the offence. On May 13, 2011, they came to the door of Michelle Bowless
    residence, where they entered and robbed the father of one of her children,
    Zachary Brydges, of money he had received earlier that day. One assailant was
    Raymond Landry, known as little Ray-Ray. He was doing all the talking and
    waving a knife. The second individual, alleged to be the appellant, stood
    silently behind Landry holding a gun under his arm. Brydges gave Landry some
    money, but Landry insisted, I know you have more than that. Eventually, Brydges
    gave Landry $2,000 and both men ran away.

[3]

Both Bowles and Brydges testified that the appellant, whom they knew as
    Mack Truck, was the second assailant. They testified that they knew him from
    a group they used to hang out with that called themselves the Hamilton Blood
    Soldiers, or HBS. They testified that the only people who knew that Brydges had
    received money that day were his cousin and possibly an acquaintance named AJ
    and his girlfriend who were part of the group that hung out with the appellant
    and Landry. After the assailants left, Bowles called 911 and told police that
    an individual named Mack Truck and another male had robbed her, and that she
    recognized both. She said that Mack Truck was about 200 pounds and had brown
    eyes. At the police station, Bowles looked up photos from the appellants
    Facebook account and showed them to police. She identified both assailants
    among the people in the photos.

[4]

Landry was arrested shortly after the incident. He pleaded guilty and
    implicated the appellant in the agreed facts in his guilty plea. He testified
    at the appellants trial, admitting his involvement, but insisted that he could
    not remember anything about the events or who was with him.

[5]

The appellant testified. He admitted that his nickname was Mack Truck,
    that he used to hang around with Bowles and Brydges in the HBS group, and that
    he had seen them two or three times a week between 2007 and 2010. He denied
    being involved in the robbery, insisting he had distanced himself from the HBS
    and had not associated with the complainants since suffering an injury in 2009
    or 2010.

[6]

The trial judge rejected the appellants evidence, citing factors that
    affected the appellants credibility such as the evidence he did not accept
    that the appellant had distanced himself from the HBS years prior to the event
    and that he was not running from the police in the years between the incident
    and his arrest. The trial judge also disbelieved Landrys evidence that he did
    not remember the robbery, and he concluded that he was, in fact, lying to
    protect the appellant.

[7]

The trial judge accepted the evidence of Bowles and Brydges identifying
    the appellant. He confirmed his awareness of the frailties of identification
    evidence and the scrutiny required, but noted that this case was based on
    recognition. The trial judge was satisfied beyond a reasonable doubt that the
    appellant was the larger robber.

[8]

The appellant advances four arguments on appeal.

[9]

First, the appellant contends that the trial judge erred in his approach
    to the identification evidence. In saying this was a case of recognition and
    not the identification of a stranger, the trial judge ignored the requirement
    to approach such evidence with caution. We disagree.

[10]

This court has confirmed that recognition evidence is merely a form of
    identification evidence and, as such, [t]he same concerns apply and the same
    caution must be taken in considering its reliability as in dealing with any
    other identification evidence:
R. v. Olliffe
, 2015 ONCA 242, 322
    C.C.C. (3d) 501, at para. 39. This court also noted in that paragraph, however,
    that [t]he level of familiarity between the accused and the witness may serve
    to enhance the reliability of the evidence. Unlike cases involving the
    identification of a stranger, the reliability of recognition evidence depends
    heavily on the extent of the previous acquaintanceship and the opportunity for
    observation during the incident:
R. v. Miaponoose
(1996), 30 O.R. (3d)
    419 (C.A.), at p. 424, citing
R. v. Smierciak
(1946), 87 C.C.C. 175,
    at p. 177. Recently, in
R.
v. Charles
, 2016 ONCA 892, at
    paras. 50-51, this court noted the critical difference between recognition
    cases and cases involving identification by a witness of a complete stranger,
    and referred to the relevance of the timeline of the identification narrative.
    See also
R. v. Peterpaul
(2001), 52 O.R. (3d) 631 (C.A.), at p. 638.

[11]

Contrary to the appellants submission, the trial judge did not ignore
    the need for scrutiny because this was a case of recognition; indeed, he
    adverted specifically to the dangers of eyewitness identification and the need
    to scrutinize the evidence carefully. He considered the potential weaknesses in
    the complainants identification of the appellant raised by the defence, in
    particular that the victims were involved in a traumatic event, that they were
    focused on the smaller knife-wielding assailant, and that their view of the
    assailants faces was limited to the portion not covered by the bandanas. The
    trial judge considered the victims prior association with the assailants and
    their ability to recognize the appellant, and he accepted their evidence that
    the larger of the two assailants had reacted when Bowles used his nickname. Brydges
    testified he was 70% sure about the larger robbers identity when he saw him,
    but became 100% certain after Bowles called out Mack Trucks name and he
    reacted. There was nothing in the identification process to call into question
    the reliability of the identification. Bowles identified the appellant
    immediately in her 911 call and at the police station. The appellant admitted
    that he knew the complainants and used to hang around in the same group,
    although he suggested he had not associated with them in the past year.

[12]

Also in support of his argument regarding identification evidence, the
    appellant contends that the trial judge erred in refusing to take note of his
    eye colour, which he says is blue, and in failing to use that evidence in his
    assessment of the reliability of Bowless identification evidence. The
    appellant submits that, given that the assailants were masked and there were
    very few identifiers, the fact that Bowles may have been mistaken about his eye
    colour was a critical part of the identification that the trial judge refused
    to consider. Again, we do not give effect to this argument.

[13]

In her 911 call, Bowles said that she believed the two assailants were
    wearing red or black bandanas, that the larger assailant was Mack Truck, and that
    he was about 200 pounds and had brown eyes. She stated I looked him right in
    the face. In cross-examination, she was asked about the colour of the bandanas
    the assailants were wearing. She confirmed that, while she testified they were
    wearing red bandanas, she was uncertain both in the 911 call and at trial about
    the colours. She agreed with counsels suggestion that she had a lot going on
    that day so it was easy not to be able to pick up on particular details. She
    was also asked about her statement in the 911 call that the bigger person had
    brown eyes. She stated that, without hearing the call, she wouldnt know the
    appellants eye colour. Bowles admitted that there were no other details, other
    than his size, that she recalled about the larger of the two assailants
    involved in the robbery.

[14]

There was no evidence during the trial about the appellants eye colour,
    nor was any potential inconsistency put to Bowles in her cross-examination. In
    closing submissions, however, the appellants counsel argued that Bowless
    evidence was unreliable because she had said her assailants eyes were brown
    when the appellants eyes were blue. The appellants counsel relied on
R.
    v. Nikolovski
, [1996] 3 S.C.R. 1197 as permitting the trial judge to
    compare an accuseds appearance with the evidence. The trial judge refused to
    do so. He noted that no one had raised the issue of the appellants eye colour in
    evidence and that [i]t would have been something that somebody could have
    asked a question about.

[15]

The appellant argues that the trial judge erred in refusing to consider
    his eye colour and its possible effect on Bowless identification evidence. We
    disagree. First, while
Nikolovski
permits a trial judge to compare an
    accuseds appearance with the trial evidence, this is not mandatory. In
R.
    v. Rae
, 2013 ONCA 556, at paras. 5-6, this court held that the trial judge
    was entitled to rely on the strong identification evidence of the two witnesses
    without assessing its reliability with reference to the appellants appearance
    in the courtroom. Similarly, here the trial judge was entitled to refuse to use
    his own observation of the appellants eye colour, particularly when it was
    only referenced in closing argument and where the issue of a possible error had
    not been pursued in Bowless cross-examination. In any event, in the
    circumstances of this case, if such evidence had been admitted, and if it had
    indicated that the appellants eye colour was in fact blue, this would not
    reasonably have affected the outcome of the trial. Bowles admitted on
    cross-examination that she did not rely on specific features of the intruders
    appearance other than his size in identifying him as the appellant. The
    identification was based on the witnesses recognition of him through their
    prior association in the HBS group, with the defining features being his size
    and physical appearance and his reaction to being addressed as Mack Truck.
    The appellants prior association with Landry, who admitted his own involvement,
    and the appellant and Landrys prior association with people who knew about
    Brydgess money, supported the reliability of the identification.

[16]

We therefore do not give effect to the first ground of appeal respecting
    the trial judges treatment of the identification evidence.

[17]

Second, the appellant says that the trial judge improperly relied on his
    disbelief of Landrys evidence as positive evidence of the appellants guilt.
    We disagree.

[18]

Landry testified that, although he had pleaded guilty to the offences
    and he was the robber with a knife, he had no recollection of the details or
    who he was with that night. The trial judge noted that Landry at one point
    testified that he did not remember anything and that he did not want to
    incriminate anyone else, which the trial judge interpreted to mean the
    appellant. Notwithstanding the trial judges passing comment that Landry was
    referring to the appellant, his reasons as a whole do not suggest that he
    relied on the rejection of Landrys evidence as proof of the appellants guilt.
    The trial judge was aware that the transcript of Landrys guilty plea was not
    evidence against the appellant, but was used only to refresh Landrys memory.
    He did not permit the Crown to cross-examine Landry on the agreed facts. There
    is nothing in the trial judges reasons to suggest that he used any evidence
    with respect to Landrys plea or his failure to implicate the appellant in his
    evidence at trial as evidence of the appellants guilt. Rather, the decision
    was based on the evidence of the complainants identifying the appellant, which
    he found to be credible and reliable, and his rejection of the appellants
    evidence that did not raise a reasonable doubt.

[19]

As a third ground of appeal, the appellant says that the trial judge
    erred in finding that the appellant intentionally evaded police. The appellant
    says that it was unreasonable for the trial judge to find the appellant knew
    the police were looking for him and intentionally avoided them when the Crown
    advanced no evidence of steps taken by the police to find him or that the
    appellant knew about those steps. We disagree. It was open on the evidence for
    the trial judge to say that the appellants statement that he did not know the
    police were looking for him defies logic and undermined his credibility. The
    appellant admitted that he knew the police had attended at his mothers house
    looking for him, that he knew others believed he was involved in the robbery,
    and that he made no attempt to contact Brydges or to otherwise clear his name.
    The trial judge also noted that the appellants close relationship with Landry
    was difficult to reconcile with the appellants claim that he did not know the
    police were looking for him. As such, there was evidence to support the trial
    judges conclusion that the appellant was evading the police and his rejection
    of the appellants evidence to the contrary.

[20]

Finally, the appellant argues that the trial judge erred in using bad
    character evidence, or engaged in improper propensity reasoning, based on the
    appellants association with HBS (which was a gang or gang-like group). We
    disagree. The evidence of the appellants affiliation with HBS was relevant
    because it increased the likelihood that the complainants would have recognized
    him based on their prior association within the group. It also suggested that the
    appellant was and remained connected to Landry at the time of the robbery and
    that he knew about Brydgess money, and was relevant to the appellants
    credibility regarding his claim that he had no contact with HBS since around 2009.
    There is no indication that the trial judge engaged in any form of propensity
    reasoning. Rather, he used the evidence of the appellants affiliation with HBS
    for the proper and relevant purpose of determining whether his involvement in
    HBS supported the complainants identification evidence and whether the
    appellant was connected to Landry at the time of the robbery.

[21]

The appeal is accordingly dismissed.

Released: KMvR January 25, 2017

Janet Simmons J.A.

K. van Rensburg J.A.

B.W. Miller J.A.


