COURT OF APPEAL FOR ONTARIO
Juriansz, Watt and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Chadwick Jack
Appellant
Chadwick Jack, acting in person
Jill Presser, as duty counsel
Eric Siebenmorgen, for the respondent
Heard: November 22, 2012
On appeal from the conviction entered on April 21, 2011 and the sentence imposed on June 10, 2011 by Justice Edward Belobaba of the Superior Court of Justice, sitting with a jury.
Overview
1The appellant appeals his April 21, 2011 convictions, after a trial by judge and jury, of two counts of robbery arising out of an incident that took place in January of 2010 at a car rental establishment known as AutoHire Rent-A-Car. The assailant, armed with a gun, entered the rental agency and robbed two men who were in the office at the time. The robber stole $2,500 from Mr. Syed Badar Munir, who owned AutoHire, and $50 from Mr. Abner Omar Zuniga, a customer and friend of Mr. Munir’s. The appellant was sentenced to ten years for each count, to be served concurrently. He appeals against conviction and seeks leave to appeal his sentence.
2The only issue at trial was identification and the only evidence on that issue was the eyewitness testimony of the two victims.
3Shortly after the robbery, the two victims described their assailant to the 911 operator. When the police arrived, Mr. Munir provided them with a copy of the appellant’s health card that was in the files of the car rental agency on the basis that he was the man who had robbed them. Several hours later, Mr. Munir again described the assailant during a police interview. At trial, both victims gave an in-dock identification.
4The appellant did not testify. A friend gave evidence in support of his alibi defence.
5In his conviction appeal, the appellant submits that the trial judge committed reversible error in his charge to the jury. He argues that the jury instructions with respect to the eyewitness identification evidence and the alibi defence were deficient. The appellant also contends that the sentence was harsh and excessive and the trial judge did not properly consider the potential for rehabilitation.
6For the reasons that follow, I agree that the jury was not provided with adequate instructions with respect to the identification evidence. On that basis I would allow the appeal and quash the convictions. In the circumstances of this case, I would direct that the appellant be acquitted of both charges.
FACTUAL BACKGROUND
7On January 11, 2010, Mssrs. Munir and Zuniga were at the rental car office when a man kicked the door in, pointed a gun at each of them, took their money, and left. The entire event took place quickly – around two minutes. In addition to giving details of the theft of their cash, the victims testified that during the brief encounter, the assailant picked up and smashed Mr. Zuniga’s two-way phone. Mr. Zuniga recalled that at one point during the robbery the assailant referred to him by his first name, “Omar”.
8Both complainants testified that they had previously seen the perpetrator when he came into AutoHire to rent a car. However, they were both clear that on these occasions their interaction was brief. Neither victim had assisted the man with his transaction. Both testified that the last time they had seen the appellant was more than two months earlier. Mr. Munir recalled the man with whom he had had this contact as a 5’8” “black guy”. He did not remember anything unusual about the man’s teeth or whether he had any visible scars or any tattoos. Mr. Zuniga described the man as “male black (sic), like 5’9”, medium build.” He too had no memory of observing anything unusual about his appearance.
9When the police arrived, Mr. Munir went into the car rental files and provided them with a photocopy of the appellant’s health card identification that was maintained as a result of his previous transactions with AutoHire. With the appellant’s picture in hand, Mr. Munir identified him as the assailant.
10A few weeks later the police located the appellant and laid the robbery charges.
ISSUES
11The appellant raises three issues:
The trial judge erred in failing properly to instruct the jury on the frailties of eyewitness identification evidence.
The trial judge erred in charging the jury on the permitted use of alibi evidence.
The trial judge erred by imposing a sentence that was harsh and excessive.
ANALYSIS
(1) The instruction to the jury regarding the eyewitness identification
Applicable Legal Principles
12The jurisprudence is replete with guidance about how the jury should be instructed in cases where identity is the issue and where, as here, the Crown’s ability to satisfy the jury that it was the accused who committed the crime depends on eyewitness identification.
13The dangers inherent in eyewitness identification evidence and the risk of a miscarriage of justice through wrongful conviction have been the subject of much comment: see for example R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283, at para. 19. Such evidence, being notoriously unreliable, calls for considerable caution by a trier of fact: R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197, at pp. 1209-10; R. v. Bardales, 1996 213 (SCC), [1996] 2 S.C.R. 461, pp. at 461-62; R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, at p. 498.
14It is essential to recognize that it is generally the reliability, not the credibility, of the eyewitness' identification that must be established. The danger is an honest but inaccurate identification: R. v. Alphonso, 2008 ONCA 238, [2008] O.J. No. 1248, at para. 5; Goran, at paras. 26-27.
15The jury must be instructed to take into account the frailties of eyewitness identification as they consider the evidence relating to the following areas of inquiry. Was the suspect known to the witness? What were the circumstances of the contact during the commission of the crime including whether the opportunity to see the suspect was lengthy or fleeting? R. v. Carpenter, [1998] O.J. No. 1819 (C.A.) at para. 1. Was the sighting by the witness in circumstances of stress?Nikolovski, at 1210; R. v. Francis (2002), 2002 41495 (ON CA), 165 O.A.C. 131, at 132.
16As well, the jury must be instructed to carefully scrutinize the witnesses’ description of the assailant. Was it generic and vague, or was it a detailed description that includes reference to distinctive features of the suspect? R. v. Ellis, 2008 ONCA 77, [2008] O.J. No. 361, at paras. 5, 8; R. v. F.A. (2004), 2004 10491 (ON CA), 184 O.A.C. 324, at para. 64; R. v. Richards, (2004) 2004 39047 (ON CA), 70 O.R. (3d) 737, at para. 9. R. v. Boucher, 2007 ONCA 131, [2007] O.J. No. 722, at para. 21. In some cases, a failure to mention distinctive characteristics of a suspect is sufficiently important, especially where there is no other inculpatory evidence, to reduce the case from one of identification effectively to one of no identification.
17Finally, the charge must caution the jury that an in-dock or in-court identification is to be given negligible, if any, weight: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at pp. 468-69; R. v. Tebo (2003), 2003 43106 (ON CA), 172 O.A.C. 148, at para. 19.
Application of the legal principles to this case
18Here, the identification evidence was not without its problems. The eyewitness identification evidence was that of two victims who had but a few minutes to observe their assailant. Their encounter – facing a man in close range pointing a gun at them – was highly stressful. Moreover, their descriptions of the robber can only be described as generic. Notwithstanding their evidence about how close they were to the assailant, neither Mr. Munir nor Mr. Zuniga noticed any distinctive features. The appellant has two permanent gold front teeth, a 7” scar on his jaw, and a 3.5 cm tattoo he sports on his left hand.
19To add to the Crown’s challenge of proving identity beyond a reasonable doubt was the absence of any physical evidence tying the appellant to the crime. There was no surveillance footage and no DNA from the appellant. Although the victims testified that the assailant picked up and smashed Mr. Zuniga’s phone with his bare hands, the appellant’s fingerprints were not found on the phone. Mssrs. Munir and Zuniga also provided an in-court identification of the appellant as the person who committed the crimes. Thus, the entire prosecution case rested solely on the identifications of the appellant by the Zuniga and Munir.
20The trial judge addressed the frailties of the identification evidence as follows:
The case against Mr. Jack depends entirely on eyewitness testimony. You must be very careful when relying on eyewitness testimony. In the past there have been miscarriages of justice and persons have been wrongly convicted because eyewitnesses have made mistakes in 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. An apparently convincing witness can be mistaken.
21The deficiencies in this instruction upon which the appellant relies focus on the trial judge’s failure to adequately deal with the reasons why, on the evidence in this case, the identification evidence had to be scrutinized with considerable care. The most notable of these problems was that the victims’ contact with the robber was brief and stressful and their descriptions of him were generic in nature, lacking any mention of any distinctive features. The appellant also relies on the trial judge’s failure to provide any caution regarding the use of in-dock identification.
22The Crown argues that the reliability of the identification evidence was strengthened by a number of factors. The Crown contends that this is a recognition case, not an identification case. The victims recognized the robber as someone with whom they had had contact – evidenced by their independent recollection and the fact that his health card was in AutoHire files. As well, the jury had Mr. Zuniga’s testimony that the robber referred to him by his first name.
23The Crown submits that while the charge was brief and perhaps not as tailored to the case as it could have been, there was evidence linking the appellant to the robbery. The jury did receive instructions that contained a caution about the identification evidence – instructions that came at the end of a short trial preceded by strong defence submissions. The Crown therefore maintains that the jury was adequately equipped to determine whether the prosecution had proven identity beyond a reasonable doubt.
24As I will explain, I do not agree.
25First, I do not see this as a recognition case. I see it as an identification case. The previous contacts between the victims and the appellant took place months earlier, were brief, and were in the normal course of business such that the men would have no particular reason to have made note of the appellant’s features. The best evidence of this is that neither witness remembered observing anything distinctive about the man’s face.
26Furthermore, any impact from this previous contact became negligible in the light of the brief, stressful contact during the robbery. As Charron J.A. observed in R. v. Miller (1998), 1998 5115 (ON CA), 116 O.A.C. 331, at pp. 338-39, despite the fact the complainant testified that she knew the accused “reasonably well”, the “limited time” she had to observe the assailant diminished the reliability of her identification evidence.
27Second, the charge did not provide the jury with adequate assistance on how to assess the reliability of the victims’ description of the robber given that their descriptions were generic and did not contain any reference to the appellant’s distinctive features – the gold teeth, the scar and the tattoo, features that would have been apparent given the proximity of the contact between the perpetrator and his victims.
28Admittedly, the trial judge did instruct the jury to consider the victims’ failure to notice the appellant’s distinctive features. After summarizing the evidence relevant to this issue, including the fact that the arresting officer testified that he did not notice these features when he located the appellant several weeks after the robbery, the trial judge instructed the jury as follows:
Are the gold teeth, facial scar, or hand tattoo something that the two eyewitnesses should have noticed if indeed the robber was Mr. Jack? Does the failure to do so raise a reasonable doubt about whether Mr. Jack was the robber? This is for you to decide.
29However, I agree with the appellant that this instruction did not go far enough. As discussed in R. v. Gonsalves(2008), 2008 17559 (ON SC), 56 C.R. (6th) 379 (Ont. S.C.J.), at para. 39, “eyewitness identification evidence has taught us to use discriminating scrutiny for badges of unreliability.” One such “badge” is whether a witness’ description of the suspect fails to include mention of “a distinctive feature of the accused”: Ellis, at para. 5, 8; F.A., at para. 64. The caution contained in the above paragraph simply advises the jury to consider the impact of the evidence that the victims did not notice the appellant’s distinctive features. It does not caution them to take this factor into consideration together with the generic description they provided to the police in performing their critical analysis of assessing the reliability of the identification evidence upon which the Crown’s case wholly depended.
30Compounding the problems associated with the insufficient instruction about the reliability of the identification provided by the victims prior to the trial is the trial judge’s failure to caution the jury about their use of the victims’ in-court identification. The charge, in fact, contains no reference to this evidence at all let alone a warning about the inherent unreliability of such evidence, particularly a caution about the diminished correlation between a witness’ confidence level and his or her accuracy.
31The jury should specifically have been given what is known as a Hibbert instruction. The seeming persuasiveness of eyewitness identification can be misleading as there is a “very weak link between the confidence level of a witness and the accuracy of that witness”: Hibbert, at p. 469. This was further discussed in Richards, at para. 33, in which this court noted that “certainty on the part of an honest identification witness is part of the reason that eyewitness identification evidence is dangerous.”
32The portion of the charge set out above does contain a caution that “[a]n apparently convincing witness can be mistaken”, but this was in the context of a discussion of generic descriptions in eyewitness testimony in general and fell short of the requirements established in Hibbert and reinforced by many decisions that followed.
33Of importance is the fact that the Hibbert caution that certainty is not to be taken as an indicium of accuracy was not tailored to the specific concerns in this case – the certainty apparent from Mr. Munir’s retrieval of the health card and Mr. Munir’s and Mr. Zuniga’s in-dock identification. It was in these two areas where the victims’ conviction that the appellant was the perpetrator was palpable and specific instructions were required.
34Mr. Munir testified that he knew the appellant and that the appellant was the robber. For this reason, right after the robbery he pulled the appellant’s identification from his files and presented it to the police as being a picture of the assailant.
35Defence counsel was justifiably concerned that this conduct – retrieving the appellant’s ID immediately after the crime is the precise type of conduct that may add to the creation of a witness’s perception rather than confirm it. The trial judge was put on notice that this was an issue. Defence counsel requested the trial judge instruct the jury that the pulling of the photocopy of the health card was, for this reason, problematic and not, as suggested by the Crown, confirmatory of the victims’ identification of the appellant as the robber.
36The trial judge, however, declined to give such an instruction and further declined to call the jury back to instruct them after defence counsel objected again following the charge.
37The transcript clearly demonstrates the degree of confidence the victims had in their identification of the appellant as the robber. In court they both said they were certain that the person in the prisoner’s box was the man who robbed them. The charge contained no instruction at all about the jury’s use of this evidence.
38In my view the danger posed by the in-dock identification evidence in this case was even greater than that in Hibbert as here, two eyewitnesses gave an in-dock identification that the appellant was the assailant. The heightened risk was that, with two in-court identifications, the jury would attach increased unwarranted weight to this evidence. There was therefore a need for the jury to be specifically cautioned in a manner that not only conveyed the untrustworthiness of in-dock identification evidence but also brought home to the jury the danger of allowing the fact that there were two witnesses who testified, each with considerable confidence, that the man in the prisoner’s box was the robber, to bolster the reliability of evidence the nature of which is so fundamentally unreliable.
39In my view, the deficiencies in the charge, deficiencies that can be described in a general fashion as a failure to connect the standard instruction on the frailties of eyewitness identification to the specific concerns raised by the evidence in this case, in a case devoid of other evidence linking the accused to the crime, amounts to a reversible error.
40I would therefore give effect to this ground of appeal and allow the appeal, making it unnecessary for me to deal with the appellant’s arguments concerning the instructions relating to alibi or, obviously, the sentence appeal.
CONCLUSION
41As I have said, the victims’ identification provided to the police immediately following the robbery was problematic. The victims’ subsequent in-dock identification of the appellant as the assailant did not add any weight to this initial identification. And, the Crown led no other direct or circumstantial evidence connecting the appellant to the robbery.
42In these circumstances, I conclude that the identification evidence was insufficient to support the verdicts. A properly instructed jury, acting reasonably, could not have found that the identification evidence in this case met the requisite criminal standard of proof.
DISPOSITION
43Given my view that the verdicts are unreasonable, the appropriate order is an order quashing the convictions and entering an acquittal on each charge.
Released:
“FEB -7 2013” “Gloria Epstein J.A.”
“RGJ” “I agree R.G. Juriansz J.A.”
“I agree David Watt J.A.”
