Ontario Court of Appeal decision affirms identification of accused

By John L. Hill

Law360 Canada (April 25, 2023, 8:55 AM EDT) --
John Hill
John L. Hill
There is no doubt that a man named “Jordan” shot another man, Sean Smith, in a rooming house in Peterborough in March 2017. According to a news report published in the Peterborough Examiner at the time the matter went to trial, Smith was in town selling drugs.

The rooming house where the shooting occurred was occupied by Smith’s friend Jessica Stammis. While Smith was with Stammis, two men known as “Jordan” and “Little Moe” came by. Stammis recognized “Jordan” because he had sold Stammis cocaine 10 to 20 times in the past few years. “Jordan” pulled a gun attempting to rob Smith. In the struggle, Smith was shot in the leg and abdomen. The newspaper report notes that Smith survived, underwent several surgeries and remained in hospital for six weeks.

The main item of contention at trial was the identification of “Jordan” as being the man arrested and charged with attempted murder and several weapons offences, Julian Graham. Ontario Superior Court Judge Stephen Bale found beyond a reasonable doubt that the identification evidence presented at trial was sufficient to conclude that “Jordan” was indeed Julian Graham.

Graham was convicted and consented to a dangerous offender designation with a global 10-year sentence followed by a 10-year long-term supervision order. Graham appealed. A three-judge panel of the Ontario Court of Appeal handed down its decision on April 20 (R. v. Graham 2023 ONCA 273).

The Appeal Court agreed that the weapons charges for which Graham had been given concurrent terms of imprisonment ought to be stayed as being lesser offences for the same criminal wrong or transaction in accordance with the principle set out in R. v. Kienapple [1974] 1 S.C.R. 729. Nonetheless, the court held that the identification evidence had been properly admitted, and the trial judge did not err in considering its credibility and reliability.

The Crown had relied upon the testimony of Stammis. She had known “Jordan” for a lengthy period; she provided a physical description to police; she had identified “Jordan” from a photo lineup. But defence counsel on the appeal, Craig Zeeh, was able to point out that when asked to make an in-court identification at trial, she was unable to do so. She didn’t have her glasses. She had picked out Graham in a photo lineup, but it was admitted she had previously seen media coverage that included Graham’s photo.

The Appeal Court acknowledged the potential unreliability of eyewitness identification and that it must give greater scrutiny to findings based on it than would be necessary on other findings (R. v. Hersi, [2000] O.J. No. 3995, R. v. Tat, [1997] O.J. No. 3579 and R. v. Goran 2008 ONCA 195). The court found that the trial judge was aware of the limited weight to be given to in-court identification and the flawed procedures in conducting the photo lineup. He was also aware of inconsistencies in the evidence given by Stammis and Smith and the dangers presented when both were under the influence of drugs.

The Appeal Court seemingly overlooked these valid objections and held that the trial judge’s assessment ought to be accepted because Stammis had picked out Graham at once during the photo lineup. The Appeal Court rejected the appellant’s position that the photo lineup was fatally flawed because of the manner in which it was conducted. This was a proposition that had been established in R. v. Phillips 2018 ONCA 651.

However, this court has thrown doubt on the precedential value of Phillips.

Phillips does not stand for the proposition that recognition evidence is automatically worthless if a witness has seen a photograph of the accused prior to examining a photo line-up,” the court stated. The court continued, “… the trial judge showed his appreciation that recognition evidence is still a form of identification evidence and the need for caution does not go away when the witness identifying the accused knows the accused.” However, the court found the trial judge was entitled to take into account Stammis’ familiarity with Graham based on numerous interactions with him.

The Appeal Court found no reason to doubt that the trial judge erred in his assessment of credibility or reliability of the witnesses identifying Graham as being “Jordan.” The conviction stands.

The Peterborough Examiner noted at the time when the dangerous offender designation was made on Sept. 9, 2020, that Graham was credited with seven years for time served. In 2023, after having served his final three years in penitentiary, the Correctional Service of Canada will oversee the 10-year-long term supervision in the community.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  

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