DATE: 20031022

DOCKET:C36287

COURT OF APPEAL FOR ONTARIO

GOUDGE, SIMMONS AND ARMSTRONG JJ.A.

B E T W E E N:

Joseph L. Bloomenfeld

HER MAJESTY THE QUEEN

Louis P. Strezos for the appellant

Respondent

• and -

CLEVE CLIFFORD WILLIAMS

Ian D. Scott for the respondent

Appellant

Heard: March 21, 2003

On appeal from the conviction by Justice William J. Morrison of the Superior Court of Justice dated April 9, 2001 and from the sentence imposed by Justice William J. Morrison dated April 9, 2001.

BY THE COURT:

[1] The appellant was convicted of three counts of robbery following a trial before a Superior Court judge sitting alone. The charges involved three bank robberies, two that occurred on April 11, 2000, and one that occurred on July 7, 2000.

[2] In all three robberies, a large black male wearing a jean jacket, sunglasses and a baseball type cap entered the bank, stood in line for a teller, and produced a tattered note that said, “Give me money. I have a gun”.

[3] Based on the similarities between the three robberies, the trial judge ruled that the evidence on each count was admissible as similar fact evidence on the other counts. The appellant does not challenge that ruling on appeal.

[4] In convicting the appellant, the trial judge relied primarily on three aspects of the evidence. First, the eyewitness evidence of a bank customer identifying the appellant as the perpetrator of the July 7 robbery. Second, police evidence of out-of-court statements made by the appellant’s sister that she recognized the appellant as the perpetrator shown in surveillance photographs of two of the robberies. Third, physical evidence linking the appellant to the robberies[^1].

[5] The appellant submits that the trial judge made two errors in relying on this evidence: i) he failed to consider whether the eyewitness identification evidence he relied on was contaminated as the result of flawed police procedures, and ii) he accepted the police evidence of the out-of-court statements for the truth of their contents in circumstance that did not permit him to do so.

[6] The Crown disputes the appellant’s submissions but also contends that, if we are satisfied that the trial judge erred, we should apply the proviso contained in s. 686(1)(b)(iii) of Criminal Code, R.S.C. 1985, c. C-46, to uphold the convictions.

i) The Eyewitness Identification Evidence

[7] Ms. Webb was a customer at an Oakville branch of the Bank of Nova Scotia on July 7, 2000. She testified that she noticed the eventual robber enter the bank and made eye contact with him while standing in line because she was hot and he was a wearing a jean jacket. She wrote down a description of the robber immediately after the event.

[8] When police arrived on the scene, one of the officers showed Ms. Webb three photographs, two that police knew were the appellant, marked “Toronto Police Service Mug Shot”; and a third that police suspected was the appellant, marked “Halton Regional Police Service, Male Wanted for Robbery”.

[9] Ms. Webb confirmed that all three pictures depicted the Bank of Nova Scotia robber.

[10] The trial judge cautioned himself strongly on the dangers of convicting based on eyewitness identification evidence. Despite those cautions, with respect, in our view, the trial judge made two errors relating to Ms. Webb’s evidence.

[11] First, in his reasons, the trial judge said that Ms. Webb testified that the officer simply showed her the three photographs and made no suggestions to her. Although that is an accurate reflection of Ms. Webb’s evidence-in-chief, the trial judge failed to advert to other evidence indicating that the officer told Ms. Webb that police suspected the photographs depicted the robber[^2].

[12] Second, early in his reasons, the trial judge noted that Ms. Webb identified the appellant after being shown photographs that police knew, or suspected, portrayed the appellant. However, the trial judge subsequently used the evidence that Ms. Webb identified the appellant from the photographs immediately following the robbery to bolster the reliability of her evidence without cautioning himself that failing to show Ms. Webb a photo line-up was clearly improper, and may have rendered her identification valueless: R. v. Smierciak, 1946 331 (ON CA), [1946] 87 C.C.C. 175 (Ont. C.A.) at p. 180.

[13] In our view, the cumulative effect of these two errors is substantial.

ii) The Statement Evidence

[14] The trial judge made the following findings concerning the evidence of Ms. Morrison’s out-of-court statements:

The detective testified Ms. Morrison identified her brother, the accused, as the man in the four still photos. I accept the evidence of Detective Wilson and Detective Leder that Ms. Morrison, on viewing these four photographs, three from the Bank of Nova Scotia robbery film and the one from the CIBC robbery film, (sic) that the man shown in these still photographs taken from the videos of the robberies on those two days was her brother. I do not believe her evidence that she said: “The man only looks like my brother” [emphasis added].

I also accept the evidence of Detective Wilson that Ms. Morrison identified the accused as her brother on the three still photos made from the film at the Bank of Nova Scotia during the robbery…I also accept the officer’s evidence that Ms. Morrison identified her brother from the photo made from the CIBC film.

[15] The Crown concedes that it was not open to the trial judge to accept the evidence concerning Ms. Morrison’s out-of-court statements for the purpose of proving the truth of their contents based on the principles relating to eyewitness identification evidence set out in R. v. Tat (1997), 1997 2234 (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.). We agree. Leaving aside any issue concerning whether Tat creates an exception to the hearsay rule[^3], Ms. Morrison was not an eyewitness.

[16] However, the Crown contends that it was open to the trial judge to accept the evidence of Ms. Morrison’s out-of-court statements for the truth of their content on two alternate bases.

[17] First, the Crown points out that, while testifying at trial, Ms. Morrison described her comments to the investigators as follows, “I said it looked like my brother. I wasn’t certain if it was my brother or not.” However, she also testified, “I’m satisfied that it looks like my brother, but I’m not certain that it is my brother”.

[18] The Crown submits that by rejecting Ms. Morrison’s evidence that she told investigating officers, “the man only looks liked my brother”, the trial judge effectively also rejected her in-court testimony that she was not certain whether the man in the photographs was her brother. Accordingly, the trial judge left intact Ms. Morrison’s in-court evidence, “I’m satisfied that it looks like my brother” and must have found that she adopted the officers’ version of her out-of-court statement while testifying.

[19] We reject this submission. Ms. Morrison’s evidence at trial was “I’m satisfied that it looks like my brother, but I’m not certain that it is my brother”. She did not say, “I’m satisfied that it is my brother” nor did she acknowledge that that is what she told police. Moreover, the trial judge expressly rejected Ms. Morrison’s evidence that she told police that the man looked like her brother.

[20] Assuming that it was open to the trial judge to find that Ms. Morrison adopted the police version of her out-of-court statements, in our view, the trial judge did not make that finding.

[21] Second, although Ms. Morrison’s evidence is not eyewitness identification evidence, the Crown submits that this court should adopt a rule, similar to Tat, for accepting out-of-court statements of witnesses who give “recognition” evidence relating to photographs.

[22] Again, leaving aside the question of whether Tat creates an exception to the hearsay rule, we reject this submission. In our view, the admissibility of the statement evidence for the truth of its content is governed by the principles set out in R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531; R. v. Smith 1992 79 (SCC), [1992] 2 S.C.R. 915 and R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740. No application was made to admit the evidence at trial on the basis of those principles and the Crown did not ask that we do so on appeal.

iii) Application of the Proviso

[23] The Crown submits that, even if we are satisfied that the trial judge erred, we should apply the proviso, and uphold the convictions, for three reasons. First, Ms. Webb’s evidence was of some value, even though the police failed to use a proper photo line-up. Second, even if we conclude that the trial judge did not make a finding that Ms. Morrison adopted the police version of her out-of-court statements while testifying, that finding was available on the evidence and flowed from the trial judge’s reasons. Third, the physical evidence linking the appellant to the robberies was overwhelming.

[24] We disagree. First, on the basis of this record, if Ms. Webb’s evidence had any remaining value, it was minimal.

[25] Second, since the trial judge did not find that Ms. Morrison adopted the police version of her out-of-court statements, it is not appropriate that we make that finding on appeal.

[26] Third, it was open to the trial judge to make a finding that the physical evidence was conclusive, based on either his review of the physical evidence when compared to the surveillance tapes or his assessment of the cumulative effect of the physical evidence in conjunction with the general description evidence given by several eyewitnesses. He did not do so, nor did he make a finding, based on his own observations, that the appellant was the person portrayed on the surveillance tapes.

[27] We also note that, of the eleven eyewitnesses who testified at trial, six were shown a proper photo line-up prior to trial. None of those eyewitnesses positively identified the appellant from the photo line-up and two of them excluded him.

[28] In light of the foregoing circumstances, and our own review of the physical evidence, we are unable to conclude that, absent the errors made by the trial judge, it was inevitable that the appellant would have been convicted.

Disposition

[29] For the foregoing reasons, the appeal is allowed, the convictions are set aside and a new trial is ordered.

Released: October 22, 2003 “STG”

“S.T. Goudge J.A.”

“Janet Simmons J.A.”

“Robert P. Armstrong J.A.”

[^1]: This evidence included a baseball type cap with a diamond logo, a jean jacket, several pairs of sunglasses, and part of a wig. These items were found in a car owned by the appellant’s mother to which the appellant had access. The July 7 eyewitness described a diamond-shaped logo on the robber’s cap. However, although the word “Toronto” appeared in the logo on the cap found in the car, and the trial judge was unable to determine from the video whether the same word appeared on the robber’s cap.

[^2]: Ms. Webb acknowledged as much in cross-examination; the officer, who was testifying based on notes, gave evidence to the same effect.

[^3]: In Tat, Doherty J.A. states at paragraph 34 that “the circumstances in which such statements are admitted do not involve a hearsay use of the out-of-court statements”. However, see R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at paragraph 221.