DATE: 20030225

DOCKET: C39042

COURT OF APPEAL FOR ONTARIO

WEILER, ABELLA AND CHARRON JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Shawn Porter, for the respondent

Respondent

• and -

CHRISTOPHER DORSEY

James Lockyer, for the appellant

Appellant

Heard: January 7, 2003

On appeal from the conviction imposed by Justice Harvey M. Salem of the Ontario Court of Justice dated September 10, 2002.

BY THE COURT:

[1] The appellant was convicted of robbery on September 10, 2002 after a trial before a judge without jury. The conviction was based solely on the eyewitness identification of the complainant. The appellant appeals his conviction on the basis that the verdict was unreasonable.

[2] The complainant is a taxi driver. On August 26, 2000, at about 2:00 p.m., he picked up two people. The male passenger sat in the front seat and the female passenger in the back. The complainant estimated that the taxi ride lasted for ten minutes, with the man sitting next to him. On arrival at their destination, the man brandished a knife and demanded money from the complainant. There was a brief struggle, during which the complainant managed to escape. The man and woman then both fled into a nearby building and the police arrived within five to ten minutes.

[3] The complainant initially described his assailant to the police as “somewhat white looking” and then revised this to “olive skinned.” At trial, the complainant’s testimony was that he had initially described his assailant as being “Hispanic colour”. The appellant is black. He also told the police that the man weighed 195 pounds, while the appellant is closer to 160-165 pounds. At trial, the complainant testified that his attacker was 170-180 pounds. Two days after the robbery, the complainant selected the appellant from a photo line-up stating: “this guy looked like him a lot”. He picked out the appellant after about five minutes. When asked by the police, “on a scale of 1 to 10, would you say that this is him or that it looks like him a lot?” he answered “99.9 per cent. If I see him again, I will recognize him even ten years from now.” The complainant later identified the appellant in the prisoner’s box as his assailant, stating that now that he saw the appellant, he was 110% sure that he was the assailant.

[4] The complainant also testified that his attacker had a prominent tattoo on his arm. No description of any tattoo had been given in the earlier description to the police. When asked why he had not given this information to the police, the complainant responded that he had not been asked. The appellant had a prominent tattoo on his arm that was clearly visible on the appellant in the prisoner’s box.

[5] The appellant submits that the verdict was unreasonable and unsupported by the evidence, given the frailties in the identification evidence of the complainant. Close appellate scrutiny is required where a conviction is based solely upon honest put potentially mistaken eyewitness evidence. R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.); R. v. Harvey (2001), 160 C.C.C. (3d) 52 (Ont. C.A.). In this case, there are a number of difficulties with the identification evidence which, taken together, support a finding that the conviction was unreasonable and cannot stand.

[6] First, the deficiencies in the complainant’s opportunity to observe his assailant before and during the attack appear not to have been fully considered by the trial judge. The trial judge did note that the incident took place in daylight and that the complainant had the opportunity to observe his assailant for ten minutes before the actual confrontation took place. There was, however, no evidence that the complainant had paid any attention to his assailant before the attack commenced. The attack was a brief and violent one, in which the complainant was punched twice in the head. Evidence of the complainant’s efforts to observe his assailant apart from this stressful encounter was therefore an important factor in evaluating the reliability of his identification evidence.

[7] Second, the descriptions given by the complainant to the police and at trial were limited and described no distinguishing characteristics of the assailant. The description given during the examination-in-chief was simply that his attacker was muscular and was wearing a white t-shirt, blue jeans and running shoes. While the Crown did not call the officer or officers who took the initial description from the complainant, details about the initial description elicited during cross-examination related only to the weight, height and skin colour of the assailant. Accordingly, the descriptions were of little value for measuring the reliability of both the in- court and the photo line-up identification of the appellant.

[8] Even more problematic is the fact that the complainant’s description of his assailant at trial was inconsistent with his initial description. As set out above, there were discrepancies regarding the assailant’s weight and skin colour. There was also confusion about whether the complainant had observed a tattoo on his attacker’s arm. That the descriptions given at trial more closely resembled the appellant as he appeared in the prisoner’s box undermines the reliability of both the in-court identification of the appellant and the pre-trial description of the assailant.

[9] The strongest aspect of the Crown’s case was the positive identification of the appellant in the photo line-up. The appellant submits that the line-up was flawed, as several of the photos were not sufficiently similar in appearance to the appellant. We note that the officer who conducted the line-up agreed at trial that at least three of the photographs were unsatisfactory.

[10] The trial judge also failed to consider the qualified nature of the complainant’s initial identification of the appellant in the line-up. It took the complainant five minutes to select the appellant’s photo, after which the complainant initially gave a qualified identification, “this guy looks like him a lot”. This initial, qualified statement cannot, without more, be elevated into a positive identification. By focusing on the complainant’s subsequent statement that he was “99.9%” certain he had selected his assailant, the trial judge failed to consider the frailty of the initial photo identification. The tenuous initial identification, coupled with the problems with the composition and conduct of the photographic line-up, undermine the reliability of this aspect of the evidence against the appellant.

[11] The Crown’s case rested entirely on the identification evidence of the complainant. For the reasons outlined above, the identification is not sufficiently reliable to support a conviction.

[12] The appeal is therefore allowed, the conviction is set aside, and an acquittal is entered.

RELEASED: “FEB 25 2003” “K. M. Weiler J.A.”

“R. S. Abella J.A.”

“Louise Charron J.A.”