CORAM:
ACTING CHIEF JUSTICE BENNETT TROTTER J.A. PARDU D.J.A.
BETWEEN:
MASTER CORPORAL WAYNE SUTHERLAND
Appellant
and
HIS MAJESTY THE KING
Respondent
Heard at Ottawa, Ontario, on December 14, 2023.
Judgment delivered at Ottawa, Ontario, on June 3, 2024.
REASONS FOR JUDGMENT BY:
THE COURT
CORAM:
ACTING CHIEF JUSTICE BENNETT TROTTER J.A. PARDU D.J.A.
BETWEEN:
MASTER CORPORAL WAYNE SUTHERLAND
Appellant
and
HIS MAJESTY THE KING
Respondent
REASONS FOR JUDGMENT
Order restricting publication: The order of the Court Martial issued pursuant to section 179 of the National Defence Act , RSC 1985, c N-5 on 6 December 2021 remains in effect. No person shall publish or broadcast or transmit in any way any information that could identify any person described in these proceedings before the Court Martial Appeal Court of Canada as being a complainant.
Acting Chief Justice Bennett
1Master Corporal Wayne Sutherland appeals his conviction from the judgment of a Standing Court Martial for sexual assault. There is no issue that the complainant, V.R., was sexually assaulted. The issue at trial was the identity of the perpetrator. MCpl. Sutherland contends that the military judge did not properly apply the law in relation to eyewitness identification and made palpable and overriding errors of fact.
2I would dismiss the appeal.
I. Background
3The offence occurred onboard a Navy ship, deployed at sea on military duties during the COVID-19 lockdown. As a result, the members onboard the ship were not permitted to disembark, with few exceptions. V.R. was a member of the kitchen crew and served meals each day to non-commissioned members. She would have a brief daily interaction with each crew member. The onboard crew was composed of 234 people of whom 19 were members of the air crew (also referred to as “air det”). The air crew wore a distinctive flight uniform. The air crew came on board the ship in December 2019. MCpl. Sutherland was a member of the air crew. He was one of the 11 members of that air crew who would visit the mess for non-commissioned members.
4In the early morning hours of 22 April 2020, V.R. could not sleep because she was adjusting to a shift change. She went to the junior ranks mess around 1:00 a.m., intending to watch a movie. She sat at the bar, waiting for the seating to be arranged for the movie. She was not drinking.
5There were about ten to twelve members in the mess, including a group she recognized as members of the air crew. She said she recognized MCpl. Sutherland as a member of the air crew, although she did not know his name. She had seen him “a handful of times” coming through the food line. He approached her and sat beside her at the bar. He asked her if there was something she wanted to show him. She asked what he meant, and he repeated his question and put his hand on her right shoulder. He then touched her on the breast and moved his hand up her inner thigh. He seemed drunk.
6S1 Kester saw what was happening. He thought V.R. was upset. He said she looked like “a deer in the headlights, frozen”. He asked her if she was all right. V.R. testified that MCpl. Sutherland removed his hands when S1 Kester approached, and then put them back on her breast and thigh and suggested to V.R. that they should go somewhere private.
7V.R. was upset. She got up and went to the cook’s office. S1 Kester followed her and was joined by S1 Miner-Turner. They both tried to calm V.R.
8V.R. told S1 Miner-Turner that one of the “air det guys” had been getting “physical”. They went up to the flight deck to get some air. V.R. told S1 Miner-Turner that the assailant was a member of the air crew, that he had dark hair, was “relatively broad built” and that his facial features seemed “to sag slightly, like he had deep bags under his eyes.”
9After hearing this description and having been in the mess where the air crew members were reported to have been among the group of people in the mess at the relevant time, S1 Miner-Turner showed V.R. a photo on his phone. It was a full body picture and they had to zoom in to see the face. V.R. believed it was her assailant but was not sure because of the blurry quality of the image. S1 Miner-Turner told V.R. that the person in the photo was named Sutherland and V.R. provided the investigator with that name.
10V.R. testified that she recognized the offender as she has served him in the meal line when he was wearing his flight suit. She said he had distinctive facial features. She said that another member of the air crew, who was present in the mess, had similar features, but he had not approached her.
11V.R. reported the assault the next day and Chief Petty Officer 1st Class DeJong (“Chief DeJong”) commenced an investigation. Chief DeJong was not a trained investigator, but because of the COVID-19 lockdown, he was required to conduct the inquiry into the complaint. He was guided throughout the process by the Canadian Forces Naval Investigation Services (“CFNIS”). Based on V.R.’s statement that it was a member of the air crew who had touched her, he showed V.R. a photo pack lineup composed of headshots of all 19 members of the air crew, concealing their names and ranks. The photos were displayed on a computer one after the other. V.R. viewed all the photos and identified MCpl. Sutherland as the assailant. She was certain in her identification. She confirmed that an air crew member looked similar, but said it was not him. She also identified MCpl. Sutherland at trial as the assailant.
12S1 Kester was intoxicated when the incident occurred and at trial did not remember whom he had seen touching V.R. S1 Miner-Turner did not observe the assault but said he had seen MCpl. Sutherland in the mess. He said he saw MCpl. Sutherland socializing with V.R. and may have seen him sitting with her. He knew MCpl. Sutherland from their work and had lived next door to him on the ship.
13MCpl. Sutherland testified that he had been in the mess at the relevant time, with a group of air crew members, but said he had no contact with V.R. that evening. He acknowledged that he had been drinking throughout the evening. He agreed that he went to the bar late in the evening on more than one occasion to get more drinks for himself when the others had had enough and stopped buying rounds.
II The Military Judge’s reasons for judgment
14The military judge was satisfied that this was a case in which V.R. recognized MCpl. Sutherland. They had both been on the same ship from mid-January 2020 to late April 2020, a period of three and a half months. She served meals to the non-commissioned officers every day. She would take their requests for food, put the food on their plates and pass the plate to them. She was face to face with them. The air crew members stood out because of their distinctive uniforms.
15The military judge concluded that MCpl. Sutherland downplayed the amount of alcohol he had consumed, and that his level of alcohol consumption raised questions about the reliability of his evidence. When asked by the prosecutor if he did not think that unwanted sexual touching would be investigated, MCpl. Sutherland answered that he did not think “it would get that far.”
16The military judge found that MCpl. Sutherland’s denials were not credible or reliable. She analyzed the identification evidence to assess whether guilt had been proven beyond a reasonable doubt.
17The military judge concluded that V.R. recognized MCpl. Sutherland from previous encounters, and that this was not a case of a “fleeting glance” identification. Indeed, V.R. testified that the incident lasted about five minutes before she left with S1 Kester.
18The military judge addressed the potential weaknesses in the prosecution’s case with the identification evidence but was convinced that MCpl. Sutherland was the perpetrator of the assault. Her conclusion was based in part because he was the only one in the air crew group who went to the bar at the relevant time, that V.R. recognized him and that S1 Miner-Turner had seen them speaking to each other at some point in the evening. She was alive to the issue of potential “tainting” of the identification because of S1 Miner-Turner showing V.R. a single photo of MCpl. Sutherland.
II. Issues on Appeal
19MCpl. Sutherland raises two issues on appeal. He submits that the military judge made a palpable and overriding error of fact with respect to V.R.’s evidence; and that she erred by failing to correctly apply the law in relation to eyewitness identification.
III. Standard of Review
20The standard of review with respect to an error of fact is palpable and overriding. Findings of fact cannot be reversed on appeal unless it can be demonstrated that the trial judge made a “palpable and overriding error”: Housen v Nikolaisen, 2002 SCC 33. The standard “employ[s] a high level of appellate deference to findings of fact” and will only be met when a finding is “clearly wrong”: Housen at paras. 10, 22. The test of palpable and overriding error applies to both findings of fact and inferences of fact: Housenat paras 10, 19.
21In Benhaim v St-Germain, 2016 SCC 48, Wagner J. (as he then was) quoted Stratas J.A. and Morissette J.A. in his review of the meaning of palpable and overriding error:
It is equally useful to recall what is meant by “palpable and overriding error”.
Stratas J.A. described the deferential standard as follows in South Yukon Forest Corp. v. R., 2012 FCA 165, 4 B.L.R. (5th) 31, at para.46:
Palpable and overriding error is a highly deferential standard of review . . . . “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.
Or, as Morissette J.A. put it in J.G. v. Nadeau, 2016 QCCA 167, at para. 77, [translation] “a palpable and overriding error is in the nature not of a needle in a haystack, but of a beam in the eye. And it is impossible to confuse these last two notions.”
[Emphasis added.]
22The standard of review on a question of law is that of correctness:Housenat para 8. No deference is owed to a judge’s findings on questions of law.
IV. Law in Relation to Identification Evidence
23The inherent dangers with eyewitness identification are well known. An honest witness may be firm and confident in her evidence regarding identification but be mistaken. The witness may be “deceptively credible” in that they are honest and sincere but wrong: R v Hibbert, 2002 SCC 39 at para 50.
24Particular care must be given when the witness has what is referred to as a “fleeting glance”. In contrast, if the witness recognizes the person, that identification evidence may be given more weight: R v Bardales, (1995) , 101 CCC (3d) 289; CanLII 2518 (BCCA); decision aff’d , [1996] 2 SCR 461; CanLII 213 (SCC).
25Another source of difficulty with eyewitness identification is when a witness has been shown a single photo of a suspect. Identification arising from a witness viewing a single photo rather than a properly constructed photo pack lineup is “prejudicial and given little weight”. On the other hand, if the suspect is known to the witness, the concern is lessened: R v Bob, 2008 BCCA 485 at para 16.
V. Issues on Appeal
A. Did the Military Judge make a palpable and overriding error of fact
26V.R. testified that she had seen MCpl. Sutherland a “handful of times” coming through the food line. She had only spoken to him in the context of serving food. In cross-examination, she adopted her prior statement where she said she had only seen him around the ship once or twice before the incident.
27In her reasons for judgment, the military judge concluded that:
…In my view, there is evidence beyond the photo lineup to support V.R.’s evidence. You were familiar to her. She testified with certainty from the very beginning that the perpetrator was a member of the air det because she had seen you in your distinctive flight suit in the mealtimes on some occasions from the moment you moved onboard in December to the night of the event late April. She had many months to know your face. She obviously could not say with precision how many times this happened and accepted in cross-examination that she told the MP she saw you only once or twice. Of course, if she was to serve one meal every day to the crew excluding the officers, she most likely had seen you more often.
I give little credence to this minor discrepancy. The complainant did express some doubt to the coxswain at some point, saying that one other member could have fit the description she provided, however, once she saw a clear photo of you, she was consistent in her evidence saying that you were the perpetrator, with no hesitation. She wanted to be thorough in finding out your name and excluded all other possibilities.
She was in your presence in a very close proximity of you at the mess for a good five minutes at least, during which the offence lasted. She had all this time to observe the perpetrator. She also described you to the MP as a big guy, with dark hair, with a saggy face. And she said that she found you had unique facial features and you stood out for her not only because of your distinctive uniform, but also because of your unique facial features. Her description was consistent, even when accounting for the minor variations of hair tone, whether it was brown, dark or black hair, all point out to roughly the same hair colour…
28The military judge concluded that “the complainant knew exactly who touched her inappropriately; all that was missing was to put a name on the face she recognized.” Thus, the military judge treated the case as one of recognition.
29MCpl. Sutherland submits that the military judge committed a palpable and overriding error by concluding that V.R. recognized him. He submits that there were over 250 people on board the ship. He contends that it does not matter how many times she saw him over the three-month period, but how many times she noticed him. He submits that by committing this error, the military judge committed the second error, by failing to give proper scrutiny to the eyewitness evidence of the V.R.
30The prosecution contends that the conclusion drawn by the military judge is supported by the evidence as a whole.
B. Discussion
31In my view, the military judge was entitled to draw the inference that the complainant recognized MCpl. Sutherland as the person who assaulted her. She recognized him when she entered the mess as a member of the air crew, despite not wearing the distinctive flight suit. She served meals daily to those onboard the ship “face to face” when providing them with food. V.R. did testify that she saw MCpl. Sutherland a handful of times, and in her statement, she said she saw him “once or twice.” She also said, “it’s a small ship, you see everybody once a day or so.” She testified she could not give an “exact number” in terms of the times she had seen him.
32The military judge considered not only V.R.’s evidence, but also the circumstantial evidence surrounding the deployment and the offence. The personnel had been deployed on the ship for over three months. It was not a large crew. S1 Miner-Turner testified that he knew 90% of the people on the ship. V.R. testified that the assault lasted five minutes, and the assailant was very close to her. MCpl. Sutherland was indeed in the mess with other members of the air crew and had gone to the bar. This was all evidence from which the military judge was entitled to draw the inference that this was a situation of recognition as opposed to a fleeting glance or the identification of a stranger.
33In my opinion, she did not commit a palpable or overriding error of fact.
C. Did the Military Judge err with respect to the application of the law in relation to eyewitness identification?
34MCpl. Sutherland submits that the military judge erred in three ways: treating the evidence as recognition evidence, failing to recognize the tainting effect of the photo shown to V.R. by S1 Miner-Turner and failing to recognize the poor quality of the photo pack line-up. He submits that the evidence does not support a conviction and thus, the verdict is unreasonable. I have already addressed the first issue in relation to recognition.
35The prosecution submits that the Facebook picture shown to V.R. by S1 Miner-Turner did not taint the complainant’s evidence, in part, because it did not have the imprimatur of authority. It did not show that the authorities suspected MCpl. Sutherland. The prosecution further submits that the photo pack line-up was fair and presented properly.
36I agree with MCpl. Sutherland that there were two main difficulties with the way V.R.’s identification evidence was developed. The first is that she was essentially shown a one-person lineup by S1 Miner-Turner when he showed her the Facebook photo. The difficulty with the one-person lineup is that it tends to cement the person’s memory and taints their recollection – are they remembering the person who committed the offence or are they remembering the photo when subsequent identifications are made.
37The second is the content of the photo pack line-up. Chief DeJong had been told that the offender was a member of the air crew, so he put together a photo pack line-up consisting solely of air crew members, rather than a lineup of people who looked similar to the description of the assailant given by V.R. Having said that, the photo pack does contain individuals who are similar in appearance to MCpl. Sutherland.
38The issue on appeal becomes whether the military judge was alive to the issues in relation to the identification and applied the law correctly, as well as whether, despite the concerns, there was sufficient evidence to support the identification.
39The military judge carefully assessed the evidence. She was alive to the issue of whether the Facebook photo tainted the subsequent identification. The military judge instructed herself on the frailties of eyewitness identification. She said:
…Further, in R. v. Mohamed, 2014 ABCA 398 (Alta. C.A.), shortly after a shooting, a witness showed an eyewitness of the offence a Facebook page containing the image of the accused and drew the witness’s attention to the image. The witness recognized the image of the individual as the shooter. Although this informal procedure did not provide the same probative value as a police photo lineup, the lack of formal procedures did not render the identification inadmissible.
That said, identity is a not a live issue except where there are frailties in the identification evidence, for example when the witnesses only had a fleeting moment to observe the perpetrator who was a stranger to them. The same goes for recognition as described in R. v. Ryan, 2011 NLCA 53 at para 25. Recognition evidence is when the witness is able to verify the identification of the accused from recognizing the voice or appearance of the accused based on their familiarity and interaction with each other. The difference from identification evidence is that the perpetrator is known to the eyewitness who is asked to provide the opinion of the identity of the perpetrator from a video tape or photo for example. See R. v. Brown (2006), , 215 C.C.C. (3d) 330 (Ont. C.A.)…
40The evidence supporting identification included the fact that V.R. had served food to MCpl. Sutherland on an almost daily basis for over a period of three months. She recognized him as a member of the air crew. MCpl. Sutherland was in the mess with other members of the air crew on the night in question. He acknowledged going up to the bar in the mess. S1 Miner-Turner knew MCpl. Sutherland and saw him in the mess and saw him socializing with V.R. The military judge accepted that observation, even though neither V.R. nor MCpl. Sutherland described a similar incident. V.R. provided a detailed description of her assailant. The inference that she recognized him was one that is supported by the evidence.
41As noted above, the military judge’s conclusion that V.R. recognized the offender was grounded in the evidence. She was alive to the difficulties with respect to identification evidence. In my view, she committed no error of law, thus the issue of sufficiency of eyewitness identification is a finding of fact to which deference is owed: R v Keshane, (BCCA).
42Therefore, I would dismiss the appeal.
“Elizabeth A. Bennett”
Acting Chief Justice
“Gary T. Trotter”
J.A.
“Gladys I. Pardu
D.J.A.
COURT MARTIAL APPEAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:
CMAC-634
STYLE OF CAUSE:
MASTER CORPORAL WAYNE SUTHERLAND v. HIS MAJESTY THE KING
PLACE OF HEARING:
Ottawa, Ontario
DATE OF HEARING:
December 14, 2023
REASONS FOR JUDGMENT:
ACTING CHIEF JUSTICE BENNETT TROTTER J.A. PARDU d.J.A.
DATED:
JUNE 3, 2024
APPEARANCES:
Major Francesca Ferguson
For The Appellant
Lieutenant-Colonel Natasha Thiessen Lieutenant-Commander Jennifer Besner
For The Respondent
SOLICITORS OF RECORD:
Defence Counsel Services Gatineau, Quebec
For The Appellant
Canadian Military Prosecution Services Ottawa, Ontario
For The Respondent