COURT OF APPEAL FOR ONTARIO
Sharpe, Simmons and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kaylei Marie MacDonald
Applicant (Appellant)
Robert Sheppard and Lakin Afolabi, for the appellant
Sean Doyle, for the respondent
Heard: August 14, 2014
On appeal from the conviction entered on October 20, 2011 by Justice T. David Little of the Superior Court of Justice sitting with a jury and from the sentence imposed on July 5, 2012 by Justice A.J. Goodman of the Superior Court of Justice.
1The appellant was convicted following a trial by judge and jury of forcible confinement, robbery with a weapon, and break, enter and theft. She was sentenced to 48 months imprisonment (45 months after credit for 95 days pre-trial custody). She appeals her conviction and seeks leave to appeal her sentence.
2These charges arose from a home invasion robbery committed by two individuals at the home of Stephanie Reeves. The prime robber was male and the other female. Reeves and her female friend were threatened with a knife and confined on the floor. The male assailant asked the victims to tell them where to find the pills and the money. No pills were found but an electronic gaming system, the cell phones of each of the two victims and a safe box containing $500 in coins were stolen. No male suspect was apprehended or identified.
3Approximately six weeks after the robbery, Reeves saw the appellant in a 7/11 store and identified her as one of the robbers. The store clerk took down the license plate number of the car the appellant was driving and the appellant was later arrested and charged by the police. A few days later, Reeves picked the appellant’s photograph from a photo lineup. She reacted with some shock or surprise when she saw the photograph and identified her both as the person she saw at the 7/11 store and as the person who committed the robbery.
4Reeves first described the female assailant as, inter alia, 5’9” tall, thin to average build, light brown hair, big brown eyes, good complexion and 18 to 24 years old. In a subsequent statement to the police, she described the assailant as having long dark hair, very dark eyes and a clear complexion. When she saw the appellant at the 7/11, she noted her height as at least six feet tall and stated that she recognized her dark eyes and cocky attitude. At trial, Reeves testified that the robber had light brown or dirty blonde hair, dark eyes and some marks on her face, which may have been acne or sores.
5At trial, Reeves made an in-dock identification of the appellant. In her evidence, she stated that her assailant’s dark eyes were her most distinguishing feature. She testified that she encountered the appellant at the 7/11 store and that she was struck by the appellant’s cockiness, both during the robbery and at the 7/11 store.
6The appellant gave a video-taped statement to the police after her arrest denying any involvement in or knowledge of the robbery. Her Corbett application, seeking to exclude her criminal record (which included a conviction for a drug offence), was dismissed and she did not testify at trial.
7Evidence was led that the appellant has blue eyes. The defence pointed to inconsistencies in Reeves’ descriptions as to hair colour, height and complexion. The defence also took the position that the video tapes of the meeting at the 7/11 store were inconsistent with Reeves’ recollection. The video tapes suggested the meeting was very brief, there was no direct confrontation and there was nothing from which one could infer a “cocky” attitude on the part of the appellant.
8The trial judge died before sentence was imposed and another Superior Court judge sentenced the appellant pursuant to the Criminal Code, s. 669.2.
9The appellant raises three grounds of appeal:
the trial judge erred in his Corbett ruling;
the trial judge’s instruction to the jury in relation to identification evidence was deficient; and
the sentencing judge erred by ignoring mitigating factors and placing undue weight on other factors.
10As I have concluded that the trial judge’s jury instruction was flawed and would set aside the convictions and order a new trial on that ground, it will not be necessary for me to deal with the Corbett issue or the sentence appeal.
11The sole issue at this trial was identification and the only evidence linking the appellant to the alleged offences was that of the witness Reeves. In these circumstances, a careful instruction on identification evidence was required. In my view there were several significant deficiencies in the trial judge’s instruction to the jury on the issue of identification and the cumulative effect of those errors is fatal to the convictions.
12First, the trial judge failed to warn the jury of the limited weight to be accorded to the in-dock identification. As explained in R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 50: “[T]he danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it.” The respondent points out that at trial, the Crown did not rely on the in-dock identification in his closing address to the jury. In my view, that did not absolve the trial judge of the duty to give the usual instruction.
13Second, the trial judge failed to warn the jury that the photo lineup identification could have been contaminated by the identification at the 7/11 store. Reeves did the photo lineup within days of the meeting at the 7/11 store and the jury should have been cautioned that the reliability of her identification of the appellant as the robber could be undermined by the more recent encounter. The respondent points out that this issue was raised by defence counsel in his closing submissions. Again, however, that did not absolve the trial judge of the duty to explain the risk of contamination.
14Third, while the trial judge did explain that it is possible for an honest witness to make an identification error and that an apparently convincing witness can be mistaken, his instruction fell short of a caution along the lines mandated by R. v. Hibbert, at para. 52, as to the “very weak link between the confidence level of a witness and the accuracy of that witness”. See also R v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at para. 31. In my view, such a caution was required in the circumstances of this case, where the entire case against the appellant rested on the reliability of Reeves’ evidence.
15Fourth, even the caution that the trial judge did give was undermined when he instructed the jury to “use your common sense” and to look at Reeves’ “reaction” to the photo lineup when considering the significance of what he described as certain “considerable differences” in the description she had given of the assailant. While juries are generally encouraged to use their common sense, the very reason for special caution with respect to identification evidence is that such evidence poses problems that fall outside the common experience and knowledge of jurors. There is a risk that by using what appears to be “common sense”, jurors will give eyewitness identification weight that it does not deserve. In my view, in the circumstances of this case, the jury could have understood this part of the trial judge’s instruction to be an invitation to put weight on the level of Reeves’ confidence in her identification of the appellant, which is the very matter that the jury should have been cautioned against.
16Fifth, the trial judge failed to instruct the jury that the fact the appellant has blue eyes could be sufficient to exclude her as the assailant given the emphasis placed by Reeves on the strikingly dark eyes of the assailant.
17The cumulative effect of these shortcomings in the jury instruction undermines the fairness of the trial and requires that the convictions be set aside.
18The failure of defence counsel at trial to object to the charge cannot justify refusing appellate intervention in the circumstances of this case.
19I do not accept the respondent’s submission that we should apply the curative proviso. These errors were not minor and the Crown’s case rested solely on the identification evidence that was far from overwhelming. This was not a case like R. v. Manley, 2011 ONCA 128, 269 C.C.C. (3d) 40, at para. 25, where the error was minor and the identification evidence “amounted to no more than one small piece of a much larger puzzle.”
20Accordingly, I would allow the appeal, set aside the convictions and order a new trial.
“Robert J. Sharpe J.A.”
“I agree Janet Simmons J.A.”
“I agree G. Pardu J.A.”
Released: August 26, 2014