DATE: 20021023
DOCKET: C35342

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) - and - MOSES WASHINGTON FRANCIS (Appellant)

BEFORE: FINLAYSON, MOLDAVER and FELDMAN JJ.A.

COUNSEL:
James Lockyer For the appellant
Alex Smith For the respondent

HEARD: October 11, 2002

RELEASED ORALLY: October 11, 2002

On appeal from the conviction by Justice John Hamilton of the Superior Court of Justice, sitting with a jury, on March 7, 2000 and on appeal from sentence imposed on April 10, 2000.

E N D O R S E M E N T

[1] After trial by judge and jury, the appellant was convicted of three bank robberies and sentenced to eight years imprisonment. He appeals against conviction and sentence.

[2] The case for the Crown consisted of eyewitness identification evidence, circumstantial evidence and a statement obtained from the appellant following his arrest. In the last analysis, however, the eyewitness identification evidence given by the bank tellers was critical to the Crown’s case. Without it, we doubt that any jury properly instructed and acting reasonably, could have convicted.

[3] The appellant has raised a number of issues relating to the trial judge’s instructions on the issue of eyewitness identification. We would give effect to several of these concerns.

[4] First, we think it was wrong for the trial judge to instruct the jury that stress is essentially a neutral factor when it comes to assessing the reliability and accuracy of eyewitness identification evidence. Absent evidence to the contrary, the instruction was erroneous. It flies in the face of common sense, human experience and established jurisprudence.

[5] Next, we think it was wrong for the trial judge to endorse the Crown’s suggestion, made to the jury in her closing address, that the jurors should close their eyes and see if they could accurately picture the juror sitting next to them. Experiments of this nature are always dangerous since they bear no relationship to the circumstances existing at the time of the offences, circumstances which may well have impacted on the ability of the bank tellers to accurately identify their assailant. To the extent that any of the jurors may have taken up the offer and performed the test, they would have done so in circumstances that bore no relationship to the circumstances facing the tellers at the time of the robberies. The results of the test would also be misleading since they would depend on the memory and recall faculties of the various jurors in relation to someone known to them, rather than that of the tellers in relation to a stranger. This could only serve to deflect the jury’s attention from the only thing that really mattered, namely, the accuracy of the evidence given by the eyewitnesses upon whom the Crown was relying to prove its case. Moreover, we think that the trial judge’s instructions concerning the absence of distinguishing features had the effect of undermining his earlier instructions on the inherent dangers associated with eyewitness testimony.

[6] We are also of the view that it was wrong for the trial judge to instruct the jury, in so many words, that they should not subject the eyewitness testimony to a level of scrutiny that would result in its rejection simply because all of the “i’s” were not dotted and the “t’s” crossed. This instruction was not necessary and it was capable of leaving the jury with the impression that any doubt arising from the testimony of a particular eyewitness should be resolved in favour of the witness and not the accused.

[7] Standing alone, we are satisfied that these errors were fatal and they necessitate a new trial.

[8] Turning to a different issue, we also think that in admitting the appellant’s statement, the trial judge failed to give adequate consideration to the investigating officer’s failure, in the circumstances, to tape record the conversation, thereby setting up a credibility contest between himself and the appellant. This court’s decision in R. v. Moore-McFarlane (2001), 2001 ONCA 6363, 160 C.C.C. (3d) 493 bears directly on this issue and we believe that if the trial judge had had the benefit of that decision, he may well have come to a different conclusion on the admissibility of the statement.

[9] The other issues raised by the appellant relate essentially to evidentiary matters which, in our view, are best left for the trial judge at the new trial.

[10] In the result, we would allow the appeal, quash the convictions and order a new trial. In view of this, we need not address the issue of sentence.

Signed:
“G. D. Finlayson J.A.”
“M. J. Moldaver J.A.”
“K. Feldman J.A.”