Case Name:
R. v. Wong

Her Majesty the Queen, respondent, and
Anthony Wong, applicant

[2004] O.J. No. 3237

Ontario Superior Court of Justice
Toronto, Ontario
LaForme J.

Heard: June 15, 2004.
Judgment: July 29, 2004.
(28 paras.)

       Criminal law — Offences — Offences against person and reputation — Murder — Second degree — Appeals — From verdict — Grounds — Unreasonable verdict — Evidence — Methods of proof — Identification.

       Motion by Wong for a directed verdict. Wong was accused of shooting and killing Barnaby. The Crown relied on evidence from Young, the girlfriend of Barnaby's step father who had witnessed the incident. Shortly after Barnaby was shot, Young gave four names to the police. She identified the four, including Wong, in a line-up. At trial she testified that she had doubts about being correct about identifying Wong, as she did not know Wong as well as the others and she had a better view of the others during the incident. Young also agreed in testimony that there were at least 40 young black men who hung around the area, she did not recall the lighting and she viewed the individuals for a few seconds. Other Crown witnesses testified that Young was not at the scene of the shooting. Wong asserted that the Crown had failed to make a prima facie case against him, as there was insufficient evidence.

       HELD:  Motion allowed. Directed verdict granted and an acquittal entered. There was insufficient evidence for a jury, properly instructed and acting reasonably, to convict Wong. Young's evidence was discredited by her own doubts and other Crown witnesses. There was a complete absence of evidence that Wong was identified as the person being present at the shooting.


S. Hickey, for the respondent.

L. O'Connor, for the applicant.

       [Editor's note: A corrected version was released by the Court August 3, 2004. The changes were not indicated. This document contains the amended text.]


 1      LaFORME J.:— At the close of the Crown's case, defence counsel for Anthony Wong moved for a directed verdict on the outstanding charge of second-degree murder. I granted the motion, and provided brief reasons for doing so. Given that my decision is somewhat rare in murder cases, it has always been my intention to provide more detailed reasons for it. The following are those reasons.


 2      The theory of the case advanced by the Crown included that, Anthony Wong was one of four persons who shot and killed Damian Barnaby. In sum, the theory is that if Mr. Wong could be identified, beyond a reasonable doubt, as being one of the group of four, the jury could find him guilty either as a principle or a party to the offence. In support of its case against Mr. Wong, the Crown basically relies on the identification evidence of Ms. Nancy Young.

 3      Nancy Young lived in Unit #11 and had lived there since 1992. Her then boyfriend was Roy McLeod whose stepson was Damian Barnaby. Regarding the night in question, she testified as follows:


On July 12, 2001 Damian Barnaby had arrived at her residence early that morning and remained with her and Mr. McLeod throughout the day. In the evening they were sitting on a curb area just across from the parking lot - and just north of Unit #11 - when "Benji" (Mr. Allen) rode by on a bicycle. Benji said, "Are you still here" and proceeded on in an easterly direction. Roy McLeod called Benji to come back, but Benji said, "Soon come".


Moments later Benji and three other black men approached them on foot. Her testimony then is that Benji (Benjamin Allen) and Schoolie (Gebre Barnes) approached first, followed by Gizmo (Anthony Wong) and Froggy (Tyrone Crooks). She knew each of these four males because she had seen them in the neighbourhood over periods of months and years. Benji had been in the neighbourhood for a couple of years; the same with Froggy; and Gizmo visited his friend Screechy from time to time who lived in Unit #9.


On July 17th, she told the police that the assailants were known by her as, Benji, Schoolie, Froggy, and Gizmo; and on August 8th, 2001 she picked each of them out of separate photo line-ups. At this time, there is nothing to indicate that she is doubtful about any of the people she knew to have been involved in Mr. Barnaby's death. That is:


Shortly after the shooting, in the early hours of July 18th, 2001, she gave four names to the police. However, at the outset of the interview she did not mention Gizmo.


On August 8th, 2001 she picked each of the four in separate photo line-ups. While doing so on video she said the following: "#2 resembles Benji, but I'm not sure"; and "#10, that's the person I know as Gizmo".


Later on, at a MacDonald's she told Mr. Barnaby's best friend, Kevin Newman that the guys involved in Mr. Barnaby's death included Benji, Schoolie, Gizmo, and Froggy.

 4      However, at the trial she testified that she has doubts that she might not be correct about Gizmo. She says this is because: (i) she did not know Gizmo as well as the others at the time; (ii) she has heard from so many others that Gizmo was not involved; and (iii) she had a better view of the others at the time of the incident.

 5      In addition, she agrees that: (i) there are at least 40 young black males that hang around the Chester Lee Complex; (ii) she does not recall the lighting that night and at the time; (iii) for brief moments her back was to the four males; and (iv) the time from the approach of the four males until they all ran off was mere seconds.


 6      On the essential element of the identity of Anthony Wong as a party to the second-degree murder of Damian Barnaby, the defence asserts that the Crown has failed to make out a prima face case. That is, at the close of the Crown's case, Mr. Wong submits that:

There is insufficient evidence on the issue of the identity of Mr. Wong to support a verdict of guilty beyond a reasonable doubt. And because of that, any decision by the jury to the contrary would be unreasonable.

 7      In such motions by the defence, the court does not weigh the evidence per se, or test its quality or reliability; rather it must decide whether there is any evidence where a jury - properly instructed, and acting reasonably - could convict Mr. Wong?

 8      The extent to which a judge weighs evidence on a directed verdict, is very limited. The weighing of evidence is done merely to assess whether it is rationally possible to prove the fact in issue beyond a reasonable doubt through the evidence. That is to say, could a properly instructed jury reasonably convict on it? [See Note 1 below]

   Note 1: See R. v. Charemski [1998] 1 S.C.R. 679 per McLachlin J. as referenced in Delisle, Evidence: Principle & Problems, 5th ed. (Toronto: Carswell, 1999) at 1745.

 9      The absence of any evidence is a question of law, whereas the insufficiency of evidence is a question of fact. Directed verdicts are questions of law: that is, an absence of evidence. An absence of evidence in the test for directed verdict does not equate to "no evidence" or even "some evidence", rather it means, "whether there is sufficient evidence to permit a properly instructed jury to reasonably convict". [See Note 2 below]

   Note 2: Ibid.

 10      Thus, the question for the court on a directed verdict is to decide whether there is an absence of evidence. And, an absence of evidence means, there is not sufficient evidence capable of supporting a conviction?


 11      My analysis of the within issue begins with a reminder that, in the administration of criminal justice, and especially in the prosecution of criminal trials, it is important to always be mindful that:

Evidence as to identity based upon personal impressions, however bona fide, is perhaps of all classes of evidence the least to be relied upon, and therefore, unless supported by other facts, an unsafe basis for the verdict of a jury. [See Note 3 below]

   Note 3: Report of a Committee of Inquiry into the case of Adolph Beck, dated November 14, 1904.

 12      It has been previously noted numerous times that innocent men and women have on too many occasions been mistakenly identified and convicted of crimes. Moreover, many of these injustices have been on the basis of direct eyewitness identification evidence.

 13      Because of the recognized frailties of eyewitness identification, and the consequences that arise from it, courts have moved toward instructions that are perhaps the most carefully crafted of all jury instructions. Indeed, where identification of an accused person depends solely on the evidence of a single witness, it is the duty of the trial judge to deal carefully with the evidence and to draw the attention of the jurors to any weakness, and to warn them to weigh it with the greatest care. In this regard, these instructions - if they are to be considered proper - must include:


Informing the jury that, they should bear in mind that there have been a number of instances in the past where witnesses, whose honesty was undisputed and whose opportunities for observation were adequate, made positive identifications, which were subsequently shown to be wrong.


The jury should be warned to be especially cautious before accepting identification evidence, though they are at liberty act upon it, if after careful examination of it, they feel satisfied beyond reasonable doubt as to its accuracy.


The jury should be told to examine closely the circumstances in which the identification came to be made. Examples of what the jury should examine should be recited, some of which includes: (i) how long was the observation; (ii) at what distance and in what light; (iii) under what circumstances; and (iv) was the observation impeded in any way? And finally, the jury should be reminded of any specific weaknesses that appeared in the evidence. [See Note 4 below]

   Note 4: R. v. Turnbull (1976), 63 Cr. App. R. 132 (C.C.) at pp. 137-8

 14      At the very least, the foregoing is what a properly instructed jury would hear from the trial judge. These instructions on the principles of law would then be accompanied by a review of the evidence related to them. What then is the evidence?

Identification Evidence:

 15      As I said above, the evidence in this case against Anthony Wong amounts to the testimony of Nancy Young. In general, her evidence is ultimately discredited by her own admission of doubts, as well as by other Crown evidence. For example, there is the testimony of two sisters, Sheryl and Patricia De Las Alas.

[The Court did not assign paragraph number 16.]

 17      Sheryl De Las Alas was 18 years old at the time and lived in Unit #10. She lived there with her mother, her sister Patricia and several other children. She had lived there for 12 years. She and Patricia were sitting in front of Unit #10 when she heard "lots of yelling and screaming" from where Nancy and Roy were sitting. A couple of seconds later Damian - whom she knew - runs past, through the wall opening, and south along Victoria Park. He was followed by three or four other black males who remained on the residence side of the wall, and while leaning over it, shot at Damian.

 18      She knew Gizmo (Anthony Wong) from the neighbourhood and specifically said; she did not see him there that night.

 19      Patricia De Las Alas was with Sheryl that night and was 13 years old at the time. She confirmed the general account given by her sister and added that, she only recognized one person and not the others. Regarding the person she recognized, she told the police, "He's around a lot and most likely lives in the area. If I see him again I'll probably recognize him". A police officer brought to her attention the name Gizmo and she said she, "thought it was most likely him".

 20      Sometime between the incident and the Preliminary Hearing in November 2002 she was with her sister Sheryl who pointed out Gizmo to her. Patricia then realized that he was not the person she recognized that night and whom she said was Gizmo. She then corrected herself at the Preliminary Hearing and testified that, "The person I saw was Froggy (Tyrone Crooks)". She agrees with that testimony today. That is, the person she saw and recognized that night was Froggy and not Gizmo.

 21      The testimony of each of them was forthright, honest and went completely unchallenged. There would be no reason for a trier of fact to disbelieve either of them on this point, and it would be unreasonable to do so.

 22      In the end, the jury would have evidence from two eyewitnesses to the shooting who knew Mr. Wong from the neighbourhood. Each of them said they did not see Mr. Wong among those persons who were present and who were shooting at Mr. Barnaby. The only evidence that is then capable of placing Mr. Wong at the scene and among the shooters comes from Nancy Young.

 23      At this trial - and further to her evidence set out above - other portions of Nancy Young's testimony include the following:


Regarding the photo line-up of Mr. Wong in chief:

she says, "it's who I thought may be involved in it ..."


She said, "I think I first noticed Gizmo when [the group] was running past me".


Crown: "Do you have a recollection of seeing Gizmo as part of the group approaching ..."? Answer: "I don't recall". Although at the Preliminary Hearing she testified that she did notice him approaching.


And finally she agrees that, she told the police on the day in question that one of the four males she saw was Gizmo. At trial her answers to these same questions asked in chief became, "I believe" and "I think" and I thought".


On cross-examination she says; she's "not sure" Gizmo was involved, and "there's doubts in my mind".

On the other hand she has "no doubts" about the other 3 being there.


On other occasions she says, "I have doubts Gizmo was there". As for originally telling the police it was Gizmo and picking him out of the line-up she says that, on reflection she may "have mistaken him for somebody else".


Regarding her testimony at the Preliminary Hearing she says her answers were true then but only, "to the best of her recollection".


On re-examination by the Crown she says that when she gave her answers at the Preliminary Hearing, "there could have been a faint doubt [about Gizmo] at that time".

 24      In addition to the above, there is some suggestion in her evidence that she did not know the person she believed she saw that night was named Gizmo. Although her testimony on this point is rather confusing, she says that she asked someone who the person was and she "was told his name is Gizmo". She adds that she does not know who she asked or when. On my understanding of the evidence, this at least occurred prior to her conducting the photo line-up.

 25      The whole of Ms. Young's evidence at this trial - that would be recited to the jury in my instructions to them - would include: (i) Nancy Young's testimony illustrates clearly that she has doubts about her accuracy in identifying Mr. Wong as being among the group who appeared and shot Mr. Barnaby; (ii) she is "not sure Gizmo was involved", and "there's doubts in [her] mind" about this; (iii) she now believes she "may have mistaken [Mr. Wong] for someone else"; and finally, (iv) she says that when she gave her answers at the Preliminary Hearing, "there could have been a faint doubt [about Gizmo] at that time".


 26      I find that in the end, Ms. Young's evidence amounts to a complete absence of evidence that Mr. Wong has been identified as being present at the shooting. This is contrasted with evidence from the De La Salas sisters who testified he was not present.

 27      The totality of this evidence, if accepted, could not result in a reasonable conviction of Mr. Wong. Any conviction would be unreasonable. More importantly, even if the testimony of the De Las Alas sisters is rejected, the evidence of Ms. Young alone is manifestly unreliable such that no reasonable jury, properly instructed and acting reasonably could safely convict on it. Moreover, to rely on her evidence is to achieve the same result.

 28      It would be a grave miscarriage of justice if the evidence - such as it can be called - relevant to Anthony Wong being among the group who shot at Mr. Barnaby were left with a jury and it resulted in a conviction. It would be unsafe in the extreme to permit a jury to consider this because no reasonable jury could convict, and a guilty verdict was not possible.

 29      Accordingly, the motion for a directed verdict is granted. The case will be withdrawn from the jury and an acquittal will be entered.


QL UPDATE:  20040816