R v P 1988

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Between
Between Her Majesty The Queen, Applicant, and P, Respondent Ontario
Judgments: [1988] O.J. No. 1099 Ontario District Court- York Judicial
District, Toronto, Ontario Borins D.C.J. June 24, 1988

S. Merenda, for the Crown.
C. Fromstein, for the Accused.

BORINS D.C.J.:—In this case P has pleaded not guilty to an indictment charging him with robbing Vincent D of a sum of monies on or about February 13, 1988, at the Municipality of Metropolitan Toronto. The essential issue in this case is whether the Crown has proved to the satisfaction of the Court, beyond a reasonable doubt, the identity of Mr. P as the person who took a sum of money from Mr. D.

The essential evidence of Mr. D was that on February 13, 1988, at about 10:30 p.m., he was walking home from a tavern along Queen Street West. While walking along the sidewalk he was accosted by a black man who first asked him if he wanted to buy some drugs; Mr. D declined. He went on to testify that this man then said he wanted to show him something, and for reasons which Mr. D was not able, in my view, to explain satisfactorily he said he agreed to follow this man, and did so to a residence about two blocks away. From something Mr. D said in his evidence, the likelihood is that this stranger had suggested to him that there was a woman that might be available for a sexual encounter.

Mr. Doyley said he walked two blocks along a street leading from Queen Street, but was not able to recall the name of that street. He said that he walked behind the man he had met on Queen Street all the way to a house. He described a woman standing in the doorway of the house, and said that while he was looking at her the man that he had met on Queen Street pushed him forward on to a couch and held his head down. While doing this, the man removed D's wallet from his back pocket and took $140.00 from it; then he returned the wallet to the pocket and he and the woman ran away. Mr. D said that there was another man on the porch who he presumed had seen the incident.

Mr. Do said that he then ran down to the sidewalk and saw the man running north, but did not chase him. However, he did see a police cruiser parked around the corner and went and told police officers that he had been robbed. He did not provide a description of the person who took his money. It seems, from his evidence, that he relied on the other man who was on the porch to provide such a description, because he testified that the other man did give a description to the police of the man who took the money. That man did not testify at this trial.

The police officers that he encountered, shortly after the encounter, took Mr. D to a house on O'Hara Street, where there were three black men. Mr. Doyley was unable to identify any of these men as the person who took his money.

Mr. D, who is himself a black man from Jamaica, gave a description of the thief to the Court. He said that the thief was a black man, and like himself that he had a Jamaican accent. He testified that the man had sideburns that came down and formed a beard with hair under the chin, and that the man had a moustache. Mr. D, who said he is five feet eight inches, said the man was taller than him. He said that he was maybe five feet nine inches or five feet nine and a half inches. He described the man as neither heavy nor skinny. He said that he was a hundred and fifty pounds, and that the thief was maybe twelve or fifteen pounds heavier than him, which would make the thief about a hundred and sixty-two or a hundred and sixty-five pounds. He said the thief had short hair which was not curly. He said that the thief walked fast and that he "stepped stylish." He said that the expression "step stylish" is one that Jamaicans use to describe a certain manner of walking. Mr. D was unable to provide the Court with the colour of the eyes of the thief. Nor could he provide an age, but stated that the person was not a boy and that he was younger than himself; Mr. D is 48 years of age. Finally, he testified that nothing about the man's face stands out.

Later, on March 6, 1988, at a police station, Mr. D identified Mr. P as the thief. I will later return to the procedure that was followed at the police station at that time. However, it is significant, in my view, to note that Sgt. Haunts, in his evidence, described Mr. P, who had been arrested and was at the station on March 6, as being black, having a beard, being about six feet in height and weighing about a hundred and eighty-five pounds, and being well developed muscularly. He said that Mr. P is 33 years of age. Constable Jacques, who arrested Mr. P on March the 6th, said that on that day Mr. P had brown curly hair.

Mr. D testified that on March the 6th he received a telephone call from a police officer, who said "They have the guy. I must come and identify him". Mr. D was taken to the police station by a police officer. In cross-examination Mr. D said that when he went to the station he understood that the person who robbed him would be there.

The following procedure was adopted by Sgt. Haunts during the identification process. It took place in the C.I.B. office, which was described as being a large office, about thirty-five feet in length. At one end of the office there is a smaller office known as the staff sergeant's office. There is a glass window between the main C.I.B. office and the staff sergeant's office. Mr. D and Sgt. Haunts remained in the staff sergeant's office. The lights in that office were turned out. The first two rows of fluorescent lights closest to that office were also turned out. Mr. P was instructed to walk into the office, which he did alone. He walked thirty-five feet to one end of the office, turned around and walked thirty-five feet back to the door from which he had entered and then left the office. Mr. D said "That's the guy". Later he was to identify Mr. P as the thief at the preliminary hearing.

It is, in my view, significant that in his evidence in-chief Mr. D said the person he identified at the station on March the 6th was clean-shaven. He also said that this person was wearing the same loafers as the man who had robbed him. He further testified that he was able to identify the defendant as the person who robbed him from his manner of walking. However, it is clear from the evidence of Sgt. Haunts, and confirmed by the evidence of Constable Jacques, that what Mr. D said at the identification procedure was "That's him, but he didn't have a beard then; that's him, just the beard is different." Sergeant Jacques, who took a written statement from Mr. D after the identification procedure, testified that the following is contained in that statement: "It was the same guy, but he had grown a beard. The guy that robbed me had a moustache but not a beard." I would also observe that Mr. D signed that statement.

Obviously there is a serious contradiction in D's evidence in regard to a significant feature of identification: the beard. At the trial he said that the thief had a beard on March the 6th. During and after the identification procedure he said that the thief did not have a beard but had grown one since the incident.

I am, of course, aware of the frailties of eyewitness identification evidence, and the care which must be taken before a conviction can be based on eyewitness identification evidence alone. Considering the evidence of Mr. D, I am not satisfied beyond a reasonable doubt that Mr. P was the person who took his money. The serious contradiction in the relation to the presence or absence of a beard on the face of the thief is enough, in itself, to cast doubt on the accuracy of Mr. D's identification of Mr. P as the thief. No doubt Mr. D, in his own mind, was honestly convinced that Mr. P was the thief, but in the absence of any confirmatory evidence, as I have indicated, I am not prepared to convict on the basis of that evidence alone. The question then becomes whether the identification which took place at the station resolves the doubt inherent in Mr. D's evidence. In my view it does not. The procedure followed, in this case, was an invitation by the police to Mr. D, in their phone call to him, to identify the person in custody as the person who had taken his money.

In my view, as well, the procedure that was followed in this case runs foul of the procedure recommended and commented upon by the Ontario Court of Appeal in R. v. Todish (1985) 18 C.C.C. (3d) 159. This case involved identification evidence consequent upon a robbery. After the robbery a witness was called by the police and told they had a suspect in custody. At the station they told her that they had a suspect upstairs in an office, and she was to walk past the office and see if the person in custody was the person who had robbed her. She identified the accused. At page 162 - 3 Mr. Justice Martin stated:

"Evidence of identification may be strengthened where the identifying "witness has picked out the person who he claims to have seen on a "previous occasion from a properly conducted line-up in which the "suspect is placed with other persons of similar height, age and "general appearance. In this way, an additional assurance is obtained "that the witness was forced to rely upon his own unaided recollection "in picking out the person whom he claims to have seen on the previous "occasion and was not unconsciously influenced by the fact that when "he identified the suspect he knew he was viewing a person who was "already under suspicion by the police. Those conditions did not "obtain in this case ...

The identification of the appellant by [the victim] was greatly weakened as a result of the procedure adopted and which would have rendered her identification virtually worthless had it not been for her evidence that she had previously seen the appellant on a prior occasion and recognized the robber as the same man, together with her somewhat detailed description of the robber and his clothing."

In my view, in this case, there is no admissible evidence in addition to that given by Mr. D which is independent and which supports the correctness of the identification which he made at the station. Unlike the facts in the Todish case, the defendant was a stranger to Mr. D. It is also to be noted that the evidence of Sgt. Haunts and Constable Jacques, to which I have referred, with respect to certain characteristics of Mr. P, differed significantly from the description which Mr. D gave in his evidence of the thief. Thus, in my view, the identification made by Mr. D of Mr. P at the police station was seriously tainted and cannot be relied upon as evidence confirmatory of the identification which Mr. D made in Court. In my opinion this taint continued and adversely affects the identification which Mr. Do made of Mr. P at the preliminary hearing.

It should also be noted that the explanation given for not conducting a proper line-up was that it would be difficult on a Sunday night to locate eleven other men similar in age height, weight and skin colour to Mr. P. Sgt. Haunts conceded that the "ideal procedure" would have been to conduct a proper line-up, but he said he decided not to follow this procedure because he believed that Mr. D was so confident in his ability to recognize the thief, that he believed that Mr. D would be a good witness, notwithstanding the adoption of less than an ideal identification procedure. Constable Jacques testified that he told Mr. P that the victim was being brought to the station for an identification procedure, and said to him that it would take some time for a line-up to be organized. He asked Mr. P if he was willing to let the victim see him one on one, to which Mr. P replied: "I didn't do it, so I don't mind him looking at me."

With respect to the participation of the accused in the line-up, if a lawyer had been given the opportunity to come and advise him, it is possible that his response might have been different. From the viewpoint of the Charter of Rights, it may well be that in circumstances where the accused is to be viewed by a prospective witness he should be given the opportunity to have counsel present during the line-up or other method used for identification. This question, of course, was not argued in this case.

Before concluding, I would refer to an observation which I made in R. v. Martin (1986) 15 W.C.B. 495 in which the following was said:

"Finally, the Metropolitan Police Force recognizes the need to follow a procedure which would ensure that a line-up is conducted in a way which is fair to the suspect and fair to the administration of justice. Indeed, its own Administrative Procedure, Number 23, dated February, 1978, carefully details the procedure that must be followed where it is determined that a line-up is to be held in order to assure that the line-up is conducted in a manner which would satisfy the legal requirements as discussed in such cases as R. v. Todish. In this case the police officers completely disregarded their own administrative procedure and proceeded in a manner that was unfair to the accused and, ultimately, to the administration of justice." Because the prosecution must fail on the issue of identification, it is not necessary for me to decide whether, in the circumstances of this case, the taking of Mr. D's money constituted a robbery or a theft.

In the result, Mr. P is found not guilty and is acquitted.

CERTIFIED CORRECT
LINDLEY-TAYLOR-WRIGHT
OFFICIAL COURT REPORTER

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