COURT OF APPEAL FOR ONTARIO
GILLESE, ARMSTRONG AND BLAIR JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
MOHAMUD GORAN
Appellant
Howard L. Krongold for the appellant
Greg Skerkowski for the respondent
Heard: February 29, 2008
On appeal from the judgment of Justice B.T. Ryan of the Ontario Court of Justice in Ottawa dated September 26, 2006.
Overview
1Mohamud Goran was convicted of robbery and assault causing bodily harm following an attack on Kevin Philipose in the parking lot of a Mac’s Milk convenience store in Ottawa. He was also convicted of assaulting Mr. Philipose’s cousin, Benjamin James. Mr. Goran was sentenced to a total of eight months in prison and one year probation. He was also made subject to a weapons prohibition and a DNA order.
2The assault on Mr. Philipose was particularly violent and involved repeated blows to the head and body, and choking and biting by at least three men. It resulted in a broken and dislocated nose, a swollen and black right eye, an injured jaw, and cuts to his left elbow and legs. Mr. James was struck on the face.
3The issue at trial was identification.
4The appellant attacks his conviction on two grounds. He submits, first, that the verdict is unreasonable given the frailties of the eyewitness identification evidence and, accordingly, that the conviction should be quashed. Secondly, he argues that the trial judge’s reasons for conviction are inadequate and that the trial judge failed to address and analyze the frailties in the eyewitness testimony, as a result of which he is entitled to a new trial. The appellant also seeks leave to appeal sentence and, if leave is granted, appeals the sentence imposed on the grounds that it was excessive for a youthful first offender and that a conditional sentence should have been granted.
5While I would not give effect to the unreasonable verdict ground of appeal and quash the conviction, I agree with the appellant that a new trial must be ordered on the second ground raised. It is accordingly unnecessary to deal with the question of sentence.
Facts
The Assaults and the Robbery
6The facts are not complicated.
7Mr. Philipose, Mr. James, and another companion attended at the Mac’s Milk store at around 10:30 p.m. on June 4, 2005. While Mr. James and the other companion went into the store to make a phone call, Mr. Philipose remained by the car in the parking lot. Mr. James testified that although the store itself was quite bright, it was “fairly dark” outside and “not very well lit”.
8Four other men were in the parking lot at the time, one sitting in another car, a second sitting on the curb, and two others standing in the lot. Mr. Philipose and his companions were initially approached by the latter two men while they were still in their vehicle and before Mr. James and the other companion went into the store. One of the men later identified himself to Mr. Philipose as “Mo G” (or “Mogi”).1 This man was tall (6’1”–6’2”) and skinny. Mr. Philipose could see his short, black hair was curly on the sides and longer as it went up under his black, beaked cap. He thought the man was “Somalian”, describing the man’s skin colour as brown and lighter than “African black”. The second man who approached the Philipose vehicle was shorter and stocky, about 5’6”–5’8” tall, and had a shaved head. He told Mr. Philipose he was “Irakee” and Mr. Philipose described him as “Arab looking”.
9After the two companions went into the store, an initially friendly conversation took place between Mr. Philipose and the two men portrayed above. The tall man identified himself as “Mo G” and Mr. Philipose heard the men say they were from Ramsey, a housing complex in the neighbourhood. The three men were very close to each other during this conversation, which lasted for three to four minutes. Mr. Philipose testified he was close enough to Mo G to smell alcohol on his breath, and following a comment to the man suggesting he may be drunk the nature of the encounter changed. Mr. Philipose had apparently “disrespected” Mo G. The man who identified himself as Mo G said, “why did you disrespect me?” and slapped Mr. Philipose on the face.
10Mr. Philipose then attempted to escape to the Mac’s Milk store but was swarmed by “at least three guys” and the attack began. He felt punching and grabbing in his pockets. He felt his nose break. The “Arab looking” man put his arm around Mr. Philipose’s neck and choked him. Mr. Philipose heard Mo G say “give me your … rings or I’m going to stab you”. A different voice said “take off the watch”. In the end, Mr. Philipose’s keys were taken.
11This attack lasted for some time and only ended when Mr. James re-emerged from the store. At that time Mo G and the “Arab looking” man ran away. Mr. James followed them around the corner of the building, where he was met with a blow to the face from a closed fist. Mr. James testified that the blow came from Mo G. Mr. James gave up his pursuit, the attackers eventually ran away, and the assaults and robbery ended.
The Attempts to Identify the Attacker Known as “Mo G”
12The initial attempts by Mr. Philipose and Mr. James to identify their attackers were unproductive. Eleven days after the assault, Mr. Philipose looked at police photo lineups. He did not positively identify any of the men in the lineups but picked out one named Mohamed Guled saying, “This guy looks similar. I’m about 75% sure.” The next day, after viewing 200-300 photos in an electronic “mug book” prepared by the police, Mr. Philipose commented on yet another individual – Abdullahi Nur – saying, “I think this might be him. That definitely looks like him, Mo G.” About a month later, Mr. James viewed more lineups and positively identified one of the men in the lineups as the man who attacked them, stating “That’s him. That’s Mo G.” The man that Mr. James positively identified was Mr. Nur – the same individual whom Mr. Philipose had picked out earlier.
13About six weeks after the robbery – seemingly unhappy with the progress of the police investigation – Mr. Philipose and Mr. James took it upon themselves to try to locate the man who identified himself to them as Mo G. They went to Ramsey, where they suspected Mo G might live. Ramsey is an area of Ottawa with city housing and a large population of teenagers and young adults of East African descent. Mr. Philipose intended to identify Mo G at a distance and then call the police.
14Mr. Philipose and Mr. James went to a community centre in Ramsey known as the Boys and Girls Club. There they spoke to a group of men at a picnic table and asked if they knew Mo G. One of the men indicated he did and offered to call Mo G on his cell phone. The call was made and the phone handed to Mr. Philipose. The man on the phone told Mr. Philipose that he was “out back”. Mr. Philipose and Mr. James looked around the side of the building and saw someone “raise their hand up” in the distance. The man who raised his hand was with two other men and was “distinctively taller” than both of them. Mr. Philipose testified that, although he was still too far away to see the man’s face, he was “pretty sure” the person who raised his hand was Mo G, his assailant.
15They arranged to meet the person on the phone elsewhere in the park and Mr. Philipose and Mr. James got back into their car and drove to the arranged spot. They were eventually approached by three men whom they described as “Somalian”. Mr. Philipose testified that, as the men got closer – twenty to thirty feet away – he recognized one of the three as Mo G from the Mac’s Milk incident. The lighting was good, he said, as it was only around seven thirty in the evening and “still fairly bright”. Mr. Philipose said in his examination-in-chief that he was stunned for a second to see Mo G because he recognized him as the man at the Mac’s Milk that night. On cross-examination, however, he said he “wasn’t expecting to see Mo G necessarily”.
16At about the same time, Mr. James asked the men, “Where is Mo G?” and the man whom Mr. Philipose said he recognized responded either “I’m Mo G” or “I’m right here”. Mr. Philipose testified that when the man spoke he recognized his voice. Rather than confront the three individuals, Mr. Philipose and Mr. James immediately drove away.
17Mr. Philipose conducted one further piece of investigation. Acting on information he had learned from the men at the Boys and Girls Club that Mo G might attend Laurentian High School, he obtained a copy of the high school yearbook. Looking through the pictures – not the names – of students in grades 9 through 12, he identified a person in one of the photographs as his assailant, Mo G. It was agreed at trial that the photograph in question was the appellant’s grade 10 yearbook photo.
Analysis
18As mentioned above, the sole significant issue at trial was identification. Was the appellant, Mohamud Goran, the man who attacked Mr. Philipose and Mr. James and who identified himself at the time of the incident as Mo G?
19There is no dispute between the parties as to the inherent frailties of eyewitness identification evidence. Such evidence is inherently unreliable. It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses, and is difficult to discredit on cross-examination for those same reasons. Studies have shown that triers of fact place undue reliance on such testimony in comparison to other types of evidence. As a result, many wrongful convictions have resulted from faulty, albeit convincing, eyewitness testimony, even in cases where multiple witnesses have identified the same person. See R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 at 450-451 (Ont. C.A.), and R. v. A.(F.) (2004), 2004 CanLII 10491 (ON CA), 183 C.C.C. (3d) 518 at para. 39 (Ont. C.A.).
20For these reasons, although identification is a matter of fact, appellate courts will subject such findings to closer scrutiny than is generally the case with findings of fact. Justice Doherty summarized this concept in the context of an unreasonable verdict argument in R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 117 C.C.C. (3d) 481 at paras. 99-100 (Ont. C.A.), where he said:
While recognizing the limited review permitted under s. 686(1)(a)(i), convictions based on eyewitness identification evidence are particularly well suited to review under that section. This is so because of the well-recognized potential for injustice in such cases and the suitability of the appellate review process to cases which turn primarily on the reliability of eyewitness evidence and not the credibility of the eyewitness: e.g. see R. v. Miaponoose, supra; R. v. Biddle (1993), 1993 CanLII 8506 (ON CA), 84 C.C.C. (3d) 430 (Ont. C.A.) at 434-5; reversed on other grounds (1995), 1995 CanLII 134 (SCC), 96 C.C.C. (3d) 321 (S.C.C.); R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 60 C.C.C. (3d) 380 (Ont. C.A.).
The extensive case law arising out of the review of convictions based on eyewitness identification reveals that the concerns about the reasonableness of such verdicts are particularly high where the person identified is a stranger to the witness, the circumstances of the identification are not conducive to an accurate identification, pre-trial identification processes are flawed and where there is not other evidence tending to confirm or support the identification evidence.
Unreasonable Verdict
21Although I accept the appellant’s argument that the eyewitness identification of the appellant as the perpetrator of the crimes against Mr. Philipose and Mr. James is flawed and frail in this case, I am not satisfied that disposing of the appeal on unreasonable verdict grounds is the appropriate route in the circumstances. To do so I would have to be persuaded that, on the record before the trial judge, no properly instructed trier of fact acting judicially could reasonably have convicted the appellant: see R. v. Tat at para. 98 and R v. A.(F.) at para. 35. In the end, I do not think the record supports such a conclusion.
22The eyewitness identification of the appellant by Mr. Philipose and Mr. James is undoubtedly fraught with frailties. I shall return to those frailties in the next portion of these reasons when I discuss the trial judge’s decision and his lack of analysis of the difficulties with this evidence. However, there was some evidence bolstering the identification which, in my view, is sufficient to take the case out of the unreasonable verdict category.
23For example, there is no question that Mr. Philipose had sufficient opportunity to observe his assailants prior to the assault and robbery, and to do so at very close quarters and in a then non-confrontational atmosphere. The tall “Somalian” identified himself to Mr. Philipose in a friendly fashion as Mo G and spoke to him at some length. This lends some credence to Mr. Philipose’s testimony that he later recognized the voice of the man in the park as that of his assailant. Secondly, Mr. Philipose testified on cross-examination that he wasn’t necessarily expecting to see the man who attacked him in the park at Ramsey. Had a trier of fact, properly instructed and acting reasonably, accepted the foregoing evidence he or she could have put some faith in the reliability of Mr. Philipose’s identification and convicted.
24Accordingly, I would not give effect to the unreasonable verdict ground of appeal.
The Trial Judge’s Reasons and Analysis
25The central problem with the convictions, in my view, is the trial judge’s failure to instruct himself properly about the eyewitness testimony and to direct his mind to its inherent frailties. In reasons that are barely four pages long, his sole reference to the law on this point is the following:
I have heard a lot of evidence in this matter in dealing with the identification issue. The Court must address itself as to the dangers of the identification evidence of witnesses to a crime. I have tried to direct myself to that point, and consequently I have listened to the evidence particularly closely in respect to identification.
26If I were able to ascertain from the trial judge’s reasons that he did in fact “address [himself] as to the dangers of the identification evidence of witnesses to a crime”, there would be no substance in this ground of appeal. Respectfully, however, I cannot do so, and I am not confident that the trial judge truly addressed his mind to the frailties in the eyewitness identification testimony of Mr. Philipose and Mr. James. Specifically, in this case, the trial judge failed to instruct himself properly about the fallacy of mistaking certainty for accuracy; the remarkable coincidence of both Mr. James and Mr. Philipose picking Mr. Nur out as the perpetrator; the weaknesses of Mr. James’ testimony; and the fundamental flaws in the park and yearbook identifications. In this respect, the cautionary note expressed by Justice Doherty in R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 60 C.C.C. (3d) 380 at 383 (Ont. C.A.) must be kept in mind:
This is a case in which the conviction of the appellant depends entirely on the identification of him by the victim. Where the Crown’s case rests on eyewitness identification, one is always very concerned about the reliability of a finding of guilt. Legal history and data compiled by behavioural scientists demonstrate the validity of that concern: see “Pretrial Eyewitness Identification Procedures”, Law Reform Commission of Canada Study Paper (1983), at p. 7-15. The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law. That ghost hovers over this case. [Emphasis added.]
27The trial judge was clearly impressed with the Crown witnesses, which is his prerogative. But, in the circumstances he should have been more cautious about their identification evidence, in my view. He was particularly impressed with Mr. Philipose, the victim of a violent beating, whom he commended for pursuing the issue of locating the assailant when the police investigation seemed to be flagging. However, the trial judge appears to have placed considerable emphasis on the fact that Mr. Philipose “was absolutely certain that that was the man”, and that “there was no doubt in Mr. Philipose’s mind” that the man in the park who identified himself as Mo G was his assailant. As Miaponoose and other authorities such as Quercia indicate, however, it is often the very certainty with which impressive and credible witnesses give their eyewitness testimony that causes triers of fact to mistake confidence with accuracy.
28The trial judge did refer to the appearance and the voice of the man in Ramsey park as underpinning Mr. Philipose’s “absolute certainty”. However, he neglected to put his mind to the remarkable coincidence of both Mr. Philipose and Mr. James identifying Mr. Nur as the perpetrator. He made passing reference to the fact that Mr. Philipose had mistakenly identified Mr. Nur as the perpetrator from the police photo lineup. But he appears to have viewed the fact that Mr. Nur and the appellant were “very similar” in appearance as a factor supporting the identification of the appellant as the perpetrator, rather than as a factor potentially undermining the reliability of the identification. No consideration was given to the latter possibility by the trial judge.
29In addition, the trial judge appears to have given little, if any, thought to the specifics of Mr. James’ testimony. In particular, he failed to note that Mr. James too had mistakenly identified Mr. Nur as the perpetrator from the police photo lineup, and, unlike Mr. Philipose, had done so positively. Even at trial, Mr. James acknowledged that it was “very possible” the person whom he identified in the photo lineup was the assailant. Moreover, there was no consideration by the trial judge as to whether Mr. James’ identification of the man in the park as the assailant was triggered by the almost instantaneous identification by Mr. Philipose rather than resulting from Mr. James’ independent recognition.
30Most importantly, in my view, there was no analysis by the trial judge about whether the park identification was fundamentally flawed from the outset because of the potential pre-conceived mindset of Mr. Philipose and Mr. James when they went there. They had clearly gone to Ramsey hoping to find Mo G, their assailant. They felt – from what their attackers had said at the time of the assaults – that their assailant lived in the Ramsey area. That was their frame of mind upon arrival. When they went to Ramsey, they asked about Mo G, and whether the men to whom they spoke knew Mo G. They were put in contact with Mo G by cell phone. The tall person with whom they spoke waved and identified himself as Mo G. The tall man who approached them later in the park, as arranged – remember, the assailant was tall – identified himself as Mo G. At the very least, in my opinion, this evidence called out for careful and critical analysis by the trial judge in order to satisfy himself that the identification of Mo G in the park was not the result of a pre-conceived expectation or disposition on the part of both Mr. Philipose and Mr. James. It received none. As the appellant submits, an identification in which the witness anticipates seeing the assailant, particularly when presented with only one meaningful option, is significantly flawed.
31Finally, the trial judge placed some reliance upon the fact that Mr. Philipose subsequently picked the appellant’s photo out of the Laurentian High School yearbook. Counsel agree, however, that the subsequent yearbook identification is of little value if the prior Ramsey park identification was itself tainted: see R v. Spatola, 1970 CanLII 390 (ON CA), [1970] 4 C.C.C. 241 at 250-251 (Ont. C.A.), Laskin J.A. and R v. Whittle, [1984] A.J. No. 563 at para. 15 (Alta. C.A.).
32Keeping in mind the caution expressed in Tat to the effect that there are particular concerns with eyewitness testimony in circumstances where the person identified is a stranger to the witness, the pre-trial identification process is flawed, and where there is little other evidence tending to confirm or support the identification evidence – all factors of concern here – the trial judge was required to conduct a more careful and thorough critique of the eyewitness testimony than he did.
33To repeat what Justice Doherty said in Quercia at 383: “The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law. That ghost hovers over this case.”
Sentence
34Given the foregoing, it is unnecessary to deal with the sentence appeal, although I would have been hesitant to interfere with the sentence imposed by the trial judge, given the violent nature of the offence and its admittedly “swarming” characteristics.
Disposition
35For all of the foregoing reasons, I would allow the conviction appeal on the second ground advanced by the appellant, and direct a new trial. Leave to appeal sentence is refused, as the sentence appeal would be moot.
“Robert A. Blair J.A.”
“I agree E.E. Gillese J.A.”
“I agree R.P. Armstrong J.A.”
RELEASED: March 19, 2008
