Her Majesty the Queen v. Richards [Indexed as: R. v. Richards]
70 O.R. (3d) 737
[2004] O.J. No. 2096
Docket No. C37223
Court of Appeal for Ontario
Feldman and Sharpe JJ.A. and McCombs J. (ad hoc)
May 21, 2004
Criminal law -- Trial -- Charge to the jury -- Eyewitness identification -- Trial judge instructing jury generally regarding frailties of eyewitness identification but not specific issues arising in case -- Two witnesses did not select accused's photograph from line-up but made in-dock identification -- Third witness' description containing significant dissimilarities from other evidence of accused's appearance -- Problems with procedure during viewing of photographic line up by third witness -- Trial judge erred by failing to instruct jury on specific problems regarding identification evidence and review of identification evidence failed to adequately refer to defence evidence -- Appeal from conviction allowed.
Charter of Rights and Freedoms -- Remedies -- Exclusion of evidence -- Conscriptive evidence -- Evidence that accused, while detained but not given right to counsel, used particular alias before date of offence -- One of home invaders used same alias -- Trial judge erred in holding that admission of evidence regarding accused's prior use of alias would not bring administration of justice into disrepute and alternatively that protection against self-incrimination did not apply to future criminal acts -- Trial judge failed to address proper factors in determining admissibility of evidence obtained following Charter breach -- Conscriptive evidence about accused's prior use of alias should not have been admitted unless Crown showed on balance of probabilities that it would probably have been obtained through other non-conscriptive means -- Protection against self-incrimination applies to future criminal acts -- New trial ordered.
The accused was charged with a number of offences arising out of a home invasion. Three witnesses who were present in the home when the invasion occurred, S, G and P, identified the accused as one of the two robbers. G gave a very general description of the intruder shortly after the robbery, describing him as a clean-shaven black male with short hair. The accused, supported by his mother and ex-wife, claimed that he had a beard and long hair at the time of the offence. He had a beard when he was arrested. G later identified the accused in a photo line-up, but only after the officer in charge stated"You appear to be staring at a picture; which picture are you looking at?" G initially told the police that she had met the intruder in a bar the night before the offence and that he identified himself as "Steve". At the preliminary inquiry, she had abandoned the name Steve and referred to the intruder as "Romy" throughout her evidence, stating that Romy was the only name she knew for the intruder and that he never used any other name. At trial, she claimed that the intruder had used both Steve and Romy. She denied that the police had suggested the name Romy to her.
When interviewed after the home invasion, S denied that he had been robbed. He changed his story after being arrested on an immigration warrant, but gave no description of the intruders. He failed to pick the accused out of a photo line- up. His first identification of the accused came at trial. He acknowledged that the officer in charge had told him that he had spoken to immigration authorities on his behalf and had advised them that he was cooperating as a witness in this [page738] case. S testified that the man he met at the bar the night before the home invasion was introduced to him as Steve, not Romy, and that he first heard the name Romy from the officer in charge at the photo line-up. He testified that the officer corrected him when he called the robber Steve, telling him that the robber used the name Romy. Two police officers were permitted to testify at trial that the accused had identified himself as "Steve" and "Romy" prior to the home invasion.
P gave a very general initial description of the robbers. She failed to pick anyone from the photo line-up, commenting that "they all look the same to me." She identified the accused for the first time at the courthouse nine months later when she came to testify at the preliminary inquiry.
Defence counsel at trial applied unsuccessfully to exclude the identification evidence of the three eyewitnesses on the basis that it was so demonstrably unreliable that its prejudicial effect outweighed its probative value. In dismissing the application, the trial judge acknowledged the problems with the identification evidence, but indicated that he would provide a detailed and pointed charge on the frailties of identification evidence and the evidence of the witnesses being tainted. The accused was convicted. He appealed.
Held, the appeal should be allowed.
In his charge to the jury, the trial judge instructed the jury concerning the general frailties of eyewitness identification evidence. However, the charge as a whole did not adequately address the particular frailties of the eyewitness identification evidence in this case. The trial judge dealt in a cursory way with the discrepancy between G's initial description of the robber as clean-shaven and short-haired and the evidence of the accused that he had facial hair and long hair at the time of the offence. An eyewitness description that contains dissimilarities to the accused is either valueless or exculpatory. The trial judge failed to adequately convey the significance of this issue to the jury.
In the circumstances of this case, the trial judge was obliged to draw the jury's attention to the failure of P and S to identify the accused in a photo line-up and to emphasize that it seriously undermined the already tenuous identification evidence of those two witnesses. P's comment when she was viewing the photo line-up that "they all look the same to me" raised a concern that she was experiencing difficulty with cross-racial identification. Given the other frailties in her identification evidence, it was important to caution the jury that her difficulties with cross-racial identification may have further eroded the reliability of her evidence.
In his charge concerning the general frailties of eyewitness identification evidence, the trial judge told the jury that witnesses can be honest and convincing and yet be mistaken. Later, however, when discussing specific identification witnesses, the trial judge invited the jury to consider how sure they were of their identification. In reality, there is a very weak link between the confidence level of a witness and the accuracy of that witness. It was incumbent upon the trial judge to explain the tenuous relationship between the confidence level of the identification witnesses and the accuracy of their evidence. He did not do so.
The issue of the reliability of the police evidence that the accused used the aliases "Steve" and "Romy" was squarely raised at trial, and there was an air of reality to the defence assertion that the alias evidence was unreliable. Crown counsel, in his address to the jury, relied heavily on the alleged aliases as "unique identifiers" that bolstered the otherwise weak identification evidence. In his charge to the jury, the trial judge did not refer at all to the evidence of the accused, his mother and his girlfriend, each of whom swore that the accused [page739] never used the names Steve or Romy. It was incumbent upon the trial judge to review the conflicting alias evidence and to relate it to the issues from the perspective of the Crown and the defence. The trial judge's review of the evidence was unhelpful and unbalanced. He reviewed the evidence of the Crown witnesses in detail, made only passing reference to the evidence of the accused, and did not discuss the evidence of the other two defence witnesses at all. He did not review the evidence in a manner that related it to the issues in the case.
In pre-trial motions, the accused sought to exclude the evidence of his purported use of the aliases "Steve" and "Romy" on the basis that it was obtained in breach of his right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms. The trial judge found that the accused was not detained when he told the police his name was Steve and that, in any event, the introduction of the evidence would not bring the administration of justice into disrepute. He found that the accused was detained when he allegedly gave the name "Romy" and was not informed of his right to counsel but that the admission of the evidence would not bring the administration of justice into disrepute. He held that "s. 10(b) is a protection against self-incrimination as to an offence and . . . there is no protection against future criminal acts". The trial judge erred in holding that the protection against self-incrimination does not extend to future criminal acts. The evidence clearly supported the conclusion that the accused was detained and had not been informed of his right to counsel when he allegedly gave the name "Steve". The evidence was therefore properly viewed as conscriptive evidence obtained following a Charter breach. Such evidence in presumptively inadmissible as compromising trial fairness, unless it is shown that the evidence would probably have been obtained in any event, without the unlawful conscription.
APPEAL by the accused from convictions before a jury and Crane J. of the Superior Court of Justice on October 24, 2001 for robbery and other offences.
Cases referred to Chartier v. Attorney-General for Quebec, 1979 17 (SCC), [1979] 2 S.C.R. 474, 104 D.L.R. (3d) 321, 27 N.R. 1, 48 C.C.C. (2d) 34, 9 C.R. (3d) 97; R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, 118 D.L.R. (4th) 83, 23 C.R.R. (2d) 193, 92 C.C.C. (3d) 289, 33 C.R. (4th) 1, 6 M.V.R. (3d) 1 (sub nom. R. v. Pozniak); R. v. Boucher (2000), 2000 3270 (ON CA), 146 C.C.C. (3d) 52 (Ont. C.A.); R. v. Cook, 1998 802 (SCC), [1998] 2 S.C.R. 597, 57 B.C.L.R. (3d) 215, 164 D.L.R. (4th) 1, 230 N.R. 83, [1999] 5 W.W.R. 582, 55 C.R.R. (2d) 189, 128 C.C.C. (3d) 1, 19 C.R. (5th) 1; R. v. Harper, 1994 68 (SCC), [1994] 3 S.C.R. 343, 97 Man. R. (2d) 1, 118 D.L.R. (4th) 312, 172 N.R. 91, 79 W.A.C. 1, 23 C.R.R. (2d) 291, 92 C.C.C. (3d) 423, 33 C.R. (4th) 61, 6 M.V.R. (3d) 138; R. v. Hibbert, [2002] 2 S.C.R. 445, 211 D.L.R. (4th) 223, 287 N.R. 111, 163 C.C.C. (3d) 129, 50 C.R. (5th) 209, 2002 SCC 39, [2002] S.C.J. No. 40; R. v. Hieronymi (1995), 1995 1109 (ON CA), 25 O.R. (3d) 363, 101 C.C.C. (3d) 31, 42 C.R. (4th) 69 (C.A.) (sub nom. R. v. Hachez); R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, 157 N.S.R. (2d) 161, 143 D.L.R. (4th) 433, 207 N.R. 246, 462 A.P.R. 161, 113 C.C.C. (3d) 1, 4 C.R. (5th) 280; R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378, 132 C.C.C. (3d) 545 (C.A.); R. v. Maugey (2000), 2000 8488 (ON CA), 146 C.C.C. (3d) 99 (Ont. C.A.); R. v. McIntosh (1997), 1997 3862 (ON CA), 35 O.R. (3d) 97, 117 C.C.C. (3d) 385 (C.A.); R. v. Quercia (1990), 1990 2595 (ON CA), 75 O.R. (2d) 463, 41 O.A.C. 305, 60 C.C.C. (3d) 380, 1 C.R. (4th) 385 (C.A.); R. v. Richards, unreported, December 8, 2000, #C34156 (C.A.); R. v. S. (R.J.), 1995 121 (SCC), [1995] 1 S.C.R. 451, 21 O.R. (3d) 797n, 121 D.L.R. (4th) 589, 177 N.R. 81, 26 C.R.R. (2d) 1, 96 C.C.C. (3d) 1, 36 C.R. (4th) 1; R. v. Tebo (2003), 2003 43106 (ON CA), 175 C.C.C. (3d) 116, 13 C.R. (6th) 308, [2003] O.J. No. 1853 (C.A.)
Statutes referred to Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2) [page740]
Jamie Klukach, for respondent. James Lockyer and Leslie Maunder, for appellant.
The judgment of the court was delivered by
[1] MCCOMBS J. (ad hoc): -- The appellant appeals his convictions for forcible entry, unlawful confinement, robbery and use of an imitation firearm, arising out of a home invasion in Hamilton on March 29, 1999. This was the second trial for the appellant following a re-trial ordered by this court on December 8, 2000. The central issue at both trials was the appellant's identity as one of the two robbers.
[2] The appellant raises four grounds of appeal, alleging that the trial judge, Crane J.:
(a) failed to adequately caution the jury regarding the evidence of identification;
(b) failed to review the defence evidence;
(c) erred by rejecting the defence motion to exclude the evidence regarding the appellant's purported use of the aliases"Steve" and "Romy"; [and]
(d) erred by permitting the Crown to introduce as an exhibit, the notes of a police officer, Constable Mbakulo, after the conclusion of his evidence.
[3] I would allow the appeal and order a new trial.
Factual Background
[4] Three witnesses, present in the home when the invasion occurred, gave evidence at trial. They were Gerald Stanton, Jessica Garnett, and her mother, Laurie Pacsai. Each identified the appellant as one of the two robbers. Garnett also testified that she believed that he was the same man whom she and Stanton had met briefly in Roxie's, a local tavern, the previous night, and who had identified himself with two names"Steve" and "Romy". Stanton substantially confirmed Garnett's evidence on this point, but said that the appellant had used only the name "Steve" at Roxie's the night before the robbery. [page741]
[5] After a voir dire, the trial judge permitted the Crown to call the evidence of two police officers that the appellant had previously used the names "Steve" and "Romy" as aliases. This evidence was important to the Crown's case. Indeed, in his address to the jury, Crown counsel relied heavily on the confirmatory value of the evidence of the aliases, which he called "unique identifiers" that, in his submission, confirmed the reliability of the identification evidence.
[6] The trial focused on the credibility and reliability of the witnesses, both as to their purported eyewitness identification, and also as to their evidence about the appellant's alleged use of the aliases. In my view, there were sufficient problems with the evidence on both these issues that it was incumbent upon the trial judge to provide clear and specific instructions as to how to approach this evidence. Unfortunately, the trial judge's instructions on these issues fell short of what was required in the circumstances of this case.
The Eyewitness Identification Evidence
(a) The motion to exclude the identification evidence
[7] Defence counsel at trial (not Mr. Lockyer) applied unsuccessfully to exclude the identification evidence of the three eyewitnesses on the basis that it was so demonstrably unreliable that its prejudicial effect outweighed its probative value. There were serious problems with this evidence. Indeed, in dismissing the applications, the trial judge acknowledged those problems, and indicated that he would provide a "detailed and pointed charge on the frailties of identification evidence and the evidence of the witnesses being tainted".
[8] It is necessary to outline some of the problematic features of the identification evidence in order to provide an understanding of the issues raised on appeal.
(b) The identification evidence of Jessica Garnett
[9] Jessica Garnett identified the appellant as the intruder who forced Gerald Stanton into the basement. Her initial description, given shortly after the robbery, was very general. She described the person she later identified as the appellant as a clean-shaven black male about 23 years old, with short hair, around 5'6" to 5'8" tall, weighing approximately 160 pounds, who spoke with a Jamaican accent. She provided no description of facial features or any other distinguishing features. When shown a photo line-up about six weeks later, she "stared" at the line-up for ten to 15 minutes before Detective Rees, the officer in charge, stated "you appear to be staring at a picture; which picture are [page742] you looking at?" Ms. Garnett then picked the photograph of the appellant, and said"it's his face." The defence position was that the action of Detective Rees had tainted the identification process and undermined the reliability of Ms. Garnett's identification.
[10] There was other evidence capable of supporting the defence claim of tainting. Ms. Garnett testified that about a week after the photo line-up, Detective Rees showed her a blown-up colour photograph of the appellant, told her they had caught the man she identified, and said that she had picked out the "right" picture. Detective Rees denied deliberately showing Ms. Garnett the blown-up colour photo of the appellant, but acknowledged that she may have "glimpsed" it in his file.
(c) The identification evidence of Ms. Pacsai
[11] Ms. Pacsai, like her daughter Ms. Garnett, also gave a very general initial description of the robbers. She described both intruders as black, 5'6" to 5'7" and approximately 160 pounds. Six weeks later, she failed to pick anyone from the photo-line-up, and commented that "they all look the same to me." She identified the appellant for the first time at the courthouse nine months later when she came to testify at the preliminary inquiry. Although Ms. Pacsai denied it, there was evidence capable of supporting the conclusion that her courthouse identification was further tainted by the fact that it came after she saw her daughter's emotional reaction upon seeing the appellant.
(d) The identification by Gerald Stanton
[12] When interviewed after the home invasion, Mr. Stanton denied that he had been robbed. After his refusal to cooperate, he was arrested on an immigration warrant, and shortly thereafter he changed his story and acknowledged that he had indeed been robbed. He gave no description of the intruders except to say that one of them was wearing a light khaki- coloured hat. Six weeks later, he failed to pick the appellant out of a photo line-up and was described as "un- cooperative" by Detective Rees. Mr. Stanton's first identification of the appellant came at the first trial, more than a year after the robbery. At that trial, Mr. Stanton testified that he first saw the appellant on the seventh floor of the courthouse at the courtroom door. At the second trial, Mr. Stanton said that he first saw the appellant at the entrance to the courthouse; he also acknowledged in cross- examination that Detective Rees had told him that he had spoken to immigration authorities on his behalf and had advised them that he was cooperating as a witness in this case. [page743]
The "Aliases Evidence"
[13] Jessica Garnett and Gerald Stanton both testified that they had briefly met the appellant the night before the robbery at Roxie's, a local tavern. Garnett said that the appellant used two names"Steve" and "Romy", while Stanton said he used only the name "Steve".
[14] The aliases evidence had been the basis for the retrial ordered by this court on December 8, 2000. At the first trial, the Crown sought to prove by means of a CPIC record that the appellant had previously used the aliases "Steve" and "Romy". This court quashed the conviction and ordered a retrial on the basis that, in the circumstances, the CPIC record was inadmissible: R. v. Richards, unreported (case file #C34156), Endorsement, released December 8, 2000.
[15] At the second trial, Crown counsel called two police officers to demonstrate that the appellant used these aliases on other occasions, and relied heavily upon the evidence as "unique identifiers" that confirmed the reliability of the eyewitness identification evidence.
[16] The value of the aliases evidence as confirmation of the identity of the appellant as one of the robbers was hotly contested at trial on two bases. The defence claimed, firstly, that the police officers' evidence as to the appellant's use of the aliases was unreliable, and secondly, that Ms. Garnett's recollection of the appellant using the name Romy was a result of Detective Rees telling her that the appellant was known to use that alias.
(a) Jessica Garnett's evidence about the intruder's use of the names "Steve" and "Romy"
[17] In a videotaped statement to police given a few hours after the robbery, Ms. Garnett referred to the person she met at Roxie's the night before the robbery as "Steve" throughout her statement. She never referred to him as Romy, nor did she claim in that statement that he had ever identified himself as Romy.
[18] By the time of the preliminary inquiry, however, Ms. Garnett had abandoned the name Steve and referred to the intruder as Romy throughout her evidence. She said that Romy was the only name she knew for the intruder and that he never used any other name.
[19] When confronted at the preliminary inquiry with the transcript of her video statement in which she had used the name Steve 29 times, Ms. Garnett insisted that the transcript was incorrect, and that she had used the name Romy, not Steve, in her original videotaped interview. [page744]
[20] By the time of the second trial, Ms. Garnett claimed that she had been confused, and that the appellant had used both Steve and Romy. She also claimed that she could not remember whether she had said "Steve" or "Romy" in her original videotaped statement. She nevertheless denied that Detective Rees or anyone else had suggested the name Romy to her.
[21] Detective Rees denied telling Ms. Garnett that Romy was a name used by the robber, or ever talking to her about her evidence on this point. When confronted with his testimony at the first trial wherein he acknowledged that he probably did speak to Ms. Garnett about this issue, he said that counsel had confused him at the first trial.
(b) The evidence of Gerald Stanton regarding the robber's use of the names Steve and Romy
[22] Mr. Stanton testified that he was introduced to the man at Roxie's as Steve, not Romy, and that Ms. Garnett referred to him exclusively as Steve before and after the robbery. Mr. Stanton testified that the first time he heard the name Romy was from Detective Rees at the photo line-up six weeks after the robbery. Stanton testified that when he called the robber Steve, Detective Rees corrected him, telling him that the robber used the name Romy. Detective Rees testified that he could not recall the conversation. Detective Rees acknowledged that by the time of the photo line-ups, he did have information from the CPIC printout, associating the name Romy with the appellant.
(c) The evidence of the police officers concerning the appellant's purported use of the names "Steve" and "Romy"
[23] A police officer testified that the appellant had identified himself using the name "Steve" on another occasion four months prior to the robbery. A second police officer testified that he investigated the appellant on May 30, 1994, more than seven years earlier, and that through reference to his notes, he recalled the appellant identifying himself as "Romy".
The Defence Evidence
[24] The appellant testified. He acknowledged four prior criminal convictions, the most serious being a drug conviction for which he was sentenced to eight months' imprisonment. He denied involvement in the home invasion and testified that he did not know where he was that night because he did not learn he was a suspect until two and one-half months later, and because nothing exceptional had occurred that night. He swore that at [page745] the time of the robbery, he had not been clean-shaven with short hair, as Jessica Garnett had claimed, but instead had a beard, a moustache and long hair. He also swore that he had never used the aliases Romy or Steve.
[25] The appellant's mother and his former wife both testified and confirmed his evidence.
Analysis
[26] I will deal with each ground of appeal in turn.
(a) The adequacy of the charge to the jury regarding the evidence of identification
[27] In his initial charge, the trial judge instructed the jury concerning the general frailties of eyewitness identification evidence as follows:
You must be very cautious about relying on eyewitness testimony to find anyone guilty of a criminal offence. In the past there have been miscarriages of justice. Persons have been wrongly convicted because eyewitnesses have made mistakes identifying the person whom they saw committing a crime. Eyewitness testimony is an expression by a witness of his or her belief or impression. It is quite possible for an honest witness to make a mistake in identification. Honest people do make mistakes and apparently convincing witnesses can be mistaken.
[28] The trial judge also addressed some of the specific frailties of the eyewitness evidence, and referred to others in his recharge. However, in my opinion, the charge as a whole did not adequately address the particular frailties of the identification evidence in this case. It is incumbent upon a trial judge to not only instruct the jury as to the general frailties of identification evidence, but also as to the specific problems presented by the case before the court: See for example, R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, 163 C.C.C. (3d) 129, per Arbour J. at para. 50; R. v. Tebo, 2003 43106 (ON CA), [2003] O.J. No. 1853, 175 C.C.C. (3d) 116 (C.A.), per Feldman J.A. at paras. 18, 19.
[29] Although there were multiple errors in the charge on identification, I will discuss only the four that I regard as most serious:
(i) Jessica Garnett's initial description of the robber as clean-shaven
[30] Jessica Garnett initially described the robber who forced Gerald Stanton into the basement (allegedly the appellant) as a clean-shaven man with short hair. When the appellant was arrested, he had facial hair. The appellant, his mother, and his former wife all testified that at the time of the offence, the appellant had a moustache, a beard and long hair. Obviously, if the [page746] robber was clean-shaven with short hair, and the appellant at that time had a beard, a moustache and long hair, then he could not have been the robber. An eyewitness description that contains dissimilarities to the accused is either valueless or exculpatory: Chartier v. Attorney-General for Quebec, 1979 17 (SCC), [1979] 2 S.C.R. 474, 48 C.C.C. (2d) 34, at pp. 493-95 S.C.R., pp. 51-52 C.C.C.; R. v. Quercia (1990), 1990 2595 (ON CA), 75 O.R. (2d) 463, 60 C.C.C. (3d) 380 (C.A.) at pp. 468-70 O.R., pp. 386-87 C.C.C.; R. v. Boucher (2000), 2000 3270 (ON CA), 146 C.C.C. (3d) 52 (Ont. C.A.) at p. 58. Although the trial judge dealt with this issue, he did so in a cursory way, and failed, in my view, to adequately convey its significance to the jury. Moreover, he did not review the defence evidence and remind the jury that the appellant, his mother and his sister, all testified that the appellant had long hair, a moustache and a beard at the time of the robbery.
(ii) The circumstances surrounding the identification of the appellant by Ms. Pacsai and Mr. Stanton: their failure to identify the appellant in a photo line- up, and their identification of the appellant at the courthouse many months after the robbery
[31] The trial judge reminded the jury that Ms. Pacsai and Mr. Stanton identified the appellant for the first time at the courthouse. In the case of Ms. Pacsai, the identification came at the preliminary hearing, and in the case of Mr. Stanton, at the trial. Although he offered a mild caution to the jury about the danger of relying on their identification in those circumstances, the trial judge made no mention of the fact that both witnesses had failed to identify the appellant when they were shown photo line-ups six weeks after the robbery. In my opinion, in the circumstances of this case, the trial judge was obliged to draw the jury's attention to this failure, and to emphasize that it seriously undermined the already tenuous identification evidence of these two witnesses.
(iii) The problem of cross-racial identification -- Ms. Pacsai's statement when viewing the photo line-up that "they all look the same to me"
[32] Where cross-racial identification is an issue, it may be appropriate to caution the jury about the difficulties that can present for a particular witness: R. v. McIntosh (1997), 1997 3862 (ON CA), 35 O.R. (3d) 97, 117 C.C.C. (3d) 385 (C.A.) at pp. 105-06 O.R., p. 395 C.C.C. The comment of Ms. Pacsai when she was viewing the photo line-up that "they all look the same to me" raises a concern that she was experiencing difficulty with cross-racial identification. Given the other frailties in her identification evidence, it [page747] was important to caution the jury that her difficulties with cross-racial identification may have further eroded the reliability of her evidence.
(iv) The confidence of the identification witnesses is not an indication of the accuracy of their evidence
[33] In his charge concerning the general frailties of eyewitness identification evidence, the trial judge told the jury that witnesses can be honest and convincing and yet be mistaken. Later, however, when discussing specific identification witnesses, the trial judge invited the jury to consider how sure they were of their identification. In reality, there is "a very weak link between the confidence level of a witness and the accuracy of that witness": R. v. Hibbert, supra, per Arbour J. at pp. 468-70 S.C.R., pp. 147-48 C.C.C. Indeed, certainty on the part of an honest identification witness is part of the reason that eyewitness identification evidence is dangerous. In my opinion, in the circumstances of this case, instead of mentioning certainty as a measure of reliability, it was incumbent upon the trial judge to explain the tenuous relationship between the confidence level of the identification witnesses and the accuracy of their evidence. Unfortunately, he did not do so.
(b) The failure to adequately review the defence evidence and to relate the issues to the theory of the defence
[34] There was considerable emphasis during the trial upon the appellant's alleged use of the aliases"Steve" and "Romy". The issue of the reliability of the police evidence that he used these aliases was squarely raised at trial, and in my view, there was an air of reality to the defence assertion that the alias evidence was unreliable. Furthermore, Jessica Garnett (the only witness who picked the appellant out of a photo line-up) referred to the robber as Steve 29 times in her interview with police, and never mentioned the name Romy. There was a real question, founded in the evidence, as to whether Ms. Garnett's recollection had been tainted by Detective Rees. The reliability of the alias evidence was an important issue in the trial. Indeed, in his address to the jury, Crown counsel relied heavily on the alleged aliases as "unique identifiers" that bolstered the otherwise weak identification evidence. The trial judge, early in his charge, said this:
the case against Lenford Richards depends to a large extent on eyewitness testimony. The other factor is the use of the names and I will discuss that part separately. [page748]
[35] Unfortunately, however, the trial judge did not review the evidence of the use of names by the appellant, except briefly when discussing the positions of the Crown and the defence.
[36] Following objection by defence counsel, the trial judge made brief reference in his re-charge to the conflict between Mr. Stanton's evidence and that of Detective Rees as to where Stanton heard the name Romy. The trial judge did not refer at all to the evidence of the appellant, his mother and his girlfriend, each of whom swore that the appellant never used the names Steve or Romy.
[37] With respect, given the importance of this issue, it was incumbent upon the trial judge to review the conflicting alias evidence and to relate it to the issues from the perspective of the Crown and the defence.
[38] Unfortunately, the trial judge's review of the evidence was unhelpful and unbalanced. The trial judge reviewed the evidence of the Crown witnesses in detail over approximately 20 pages of transcript. For the most part, the trial judge read from his notes, which were in point form and at times confusing. He made only passing reference to the evidence of the appellant, and did not discuss the evidence of the other two defence witnesses at all. He did not review the evidence in a manner that related it to the issues in the case.
[39] There is no formula concerning the extent to which a trial judge is obligated to review the evidence and relate it to the issues at trial, but the charge must, at a minimum, ensure that the jury understands the factual issues, the relevant law applicable to those issues, the positions of the parties, and the evidence relevant to those positions. See: R. v. MacKinnon (1999), 1999 1723 (ON CA), 43 O.R. (3d) 378, 132 C.C.C. (3d) 545 (C.A.) at p. 386 O.R., p. 555 C.C.C.; R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, 113 C.C.C. (3d) 1, at pp. 326-27 S.C.R., p. 11 C.C.C.; and R. v. Maugey (2000), 2000 8488 (ON CA), 146 C.C.C. (3d) 99 (Ont. C.A.) at pp. 108-11. Unfortunately, the charge to the jury in this case fell short of what was minimally required.
[40] The conclusions that I have reached concerning the adequacy of the charge to the jury are sufficient to require a new trial. However, since the remaining two issues would affect a third trial, it is appropriate to comment on them.
(c) Did the trial judge err by rejecting the defence motion to exclude the evidence regarding the appellant's purported use of the aliases"Steve" and "Romy"?
[41] In pre-trial motions, the appellant sought to exclude the alias evidence, alleging that in each case, it was obtained in [page749] breach of his right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms. The appellant argued that in both cases, his alleged use of the aliases came after he was detained and before he was informed of his right to counsel. The appellant argued that accordingly, the evidence was "conscripted" and should be excluded under s. 24(2) of the Charter because its introduction would compromise trial fairness and thus bring the administration of justice into disrepute.
(i) The "Steve" voir dire
[42] The trial judge initially ruled that he was "prepared to assume" that the appellant was detained when he told the police his name was Steve. A week later, in what he called an "addendum" to his ruling, he held that the appellant was not detained when he used the name "Steve". He concluded that in any event, the introduction of the evidence would not bring the administration of justice into disrepute, and it was therefore admissible.
[43] The trial judge also concluded"in the alternative" that:
It is my view that the decision in R. v. Hanneson, 49 C.C.C. (3d) 467, at page 472, is applicable to this case in that s. 10(b) is a protection against self-incrimination as to an offence committed and that there is no protection against future criminal acts.
(Emphasis added)
[44] The trial judge was in error in holding that the protection against self-incrimination does not extend to future criminal acts. It is well-established that the protection against self-incrimination can extend to protect an accused from the use in a subsequent proceeding of material previously obtained from an accused by state compulsion: See R. v. S. (R.J.), 1995 121 (SCC), [1995] 1 S.C.R. 451, 96 C.C.C. (3d) 1.
[45] In my opinion, the evidence clearly supports the conclusion that the appellant was under detention and had not been informed of his right to counsel when he allegedly gave the name "Steve". The evidence is therefore properly viewed as conscriptive evidence obtained following a Charter breach: See R. v. Cook, 1998 802 (SCC), [1998] 2 S.C.R. 597, 128 C.C.C. (3d) 1, per Cory J. at pp. 634-36 S.C.R., pp. 31-32 C.C.C. Such evidence is presumptively inadmissible as compromising trial fairness, unless it is shown that the evidence would probably have been obtained in any event, without the unlawful conscription: See R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, 92 C.C.C. (3d) 289, at p. 218 S.C.R., p. 320 C.C.C.; R. v. Harper, 1994 68 (SCC), [1994] 3 S.C.R. 343, 92 C.C.C. (3d) 423, at pp. 354-55 S.C.R., p. 430 C.C.C.; [page750] R. v. Hachez (1995), 1995 1109 (ON CA), 25 O.R. (3d) 363, 101 C.C.C. (3d) 31 (C.A.) at pp. 375-77 O.R., pp. 44-46 C.C.C. Unfortunately, the trial judge did not address this latter issue, having held that the appellant was not detained when he allegedly gave the police the name "Steve".
(ii) The "Romy" voir dire
[46] In ruling the "Romy" evidence admissible, the trial judge assumed a violation of the appellant's 10(b) rights and relied on s. 24(2) for his conclusion that the evidence was admissible. He ruled:
I find the breach, if one, not to be serious. I find the societal interest in a trial to be high. I find the individual interest of the accused to fail in the balance . . . I find that at the time and in the circumstances, the s. 10(b) breach, on the basis that it occurred for this analysis, is not one that requires the evidence to be excluded, as it has not been established that the admission of it in these proceedings would bring the administration of justice into disrepute.
[47] With respect, the trial judge erred in the manner in which he applied s. 24(2) to the evidence. As I noted above, if the evidence was obtained in violation of the appellant's s. 10(b) rights, it was conscriptive evidence, and it is therefore presumptively inadmissible unless the Crown can show on a balance of probabilities that the evidence would have been obtained in any event, without the Charter breach. The trial judge did not address this issue in accordance with established legal principles.
(d) Did the trial judge err by permitting the Crown to introduce as an exhibit, the notes of a police officer, Constable Mbakulo, after the conclusion of his evidence?
[48] Ms. Klukach conceded in oral argument that the trial judge erred in permitting the officer's notes to be adduced in evidence but submitted that their admission occasioned no substantial wrong or miscarriage of justice. In light of my conclusion that a new trial must be ordered, it is not necessary to consider the significance of this error.
Conclusion
[49] I would allow the appeal and order a new trial. It will be for the Crown to determine whether it is in the interests of justice to proceed with a third trial.
Appeal allowed. [page751]