Her Majesty the Queen v. White [Indexed as: R. v. White]

65 O.R. (3d) 97

[2003] O.J. No. 2458

Docket No. C35099

Court of Appeal for Ontario

Morden, Laskin and Feldman JJ.A.

June 20, 2003

Criminal law -- Confessions and admissions -- Voluntariness -- Police interrogating accused without recording interrogation or having witness present -- Significant discrepancies existing between detectives' accounts of interrogations and that of accused -- Accused stated that detective claimed to have photographs of him robbing banks and threatened that his wife would be charged and would lose her job and her child if accused did not confess -- Trial judge finding inculpatory statements by accused to be voluntary -- Trial judge not identifying indicia of reliability of officers' versions of interrogations -- Lack of indicia of reliability and fact that police set out to interrogate accused without using available recording equipment rendering voluntariness of accused's confession suspect.

Criminal law -- Evidence -- Identification -- Identification evidence against accused problematic -- Trial judge erring in instructing jury that stress was not strong factor to consider in assessing eyewitness identification and by suggesting to jurors that they close their eyes and consider if they might be able to describe juror sitting next to them -- Accused's appeal against conviction allowed and acquittals entered on four counts as verdict unreasonable without accused's statements -- New trials ordered on one count.

The accused was charged with four counts of bank robbery and one count of disguise with intent. Surveillance photographs taken at all four robberies showed a person wearing sunglasses, a baseball cap and, in one case, a wig. The accused was arrested along with his wife, who was handcuffed and taken away in a separate police car. On the voir dire to determine the admissibility of statements made by the accused, the arresting officer testified that the accused made inculpatory statements as soon as he was arrested. The accused denied making any of those statements. At the police station, the accused was strip searched. During the strip search, a detective asked him about the robberies and indicated that the police had photos of the robber, who appeared to be the accused. The detective acknowledged in his evidence that, in fact, the photos did not identify anyone. According to the detective, the accused made several inculpatory statements. The accused was subsequently interviewed by another detective in an interrogation room. The interview was not recorded and no witness was present.

The accused testified on the voir dire that the detective showed him pictures of hold-ups and said that the pictures were of him; that a deal would be made if he confessed to the robberies; and that if he did not confess, his wife would go down with him and would lose her job and her child. The accused's wife was a social worker who was in a custody battle with her former spouse. According to the accused, he agreed to provide a statement. His wife was released without charge shortly afterwards. The detective denied knowing anything about the accused's wife. On the voir dire, the trial judge would not allow the police to answer questions about the grounds they had for arresting the accused's wife. The trial judge also prevented a detective from answering questions about his knowledge of the developing case law criticizing the practice of not recording interviews. The trial judge ruled that the accused's statements were voluntary. The accused was convicted. He [page98 ]appealed, challenging the admissibility of the statements on the basis that they were not voluntary.

Held, the appeal should be allowed.

Because there were significant discrepancies between the accounts of the police officers and that of the accused, the trial judge's failure to identify the indicia of reliability of the officers' versions was a serious omission. The trial judge gave no specific reasons for his conclusion that the confession was true. Regardless of the existence of reasons, it would only be in exceptional circumstances, if ever, that a confession obtained involuntarily would be admitted into evidence because of its reliability. There were no such circumstances in this case. The voluntariness of the accused's statements was suspect because the police set out to interrogate him without using the available recording equipment and because there was nothing in the evidence on the voir dire which could satisfy the court of the reliability of the officers' account. The statements should not have been admitted.

The trial judge's charge to the jury on eyewitness identification contained a number of errors. The trial judge erred by instructing jurors that stress was not a strong factor to consider in assessing the eyewitness identification, and also by suggesting to the jurors that they close their eyes and consider if they might be able to describe the juror sitting next to them. Experiments of this nature were dangerous because they bore no relationship to the circumstances facing the bank tellers at the time of the robberies and because they asked jurors to describe someone with whom they were acquainted, rather than someone who was a stranger to them.

Without the accused's confessions, the verdicts on four of the five counts were unreasonable based on only the identification evidence and the surveillance photographs. The surveillance photographs provided very weak, if any, identification evidence implicating the accused. The eyewitness identification was problematic. In the absence of the confessions, a properly instructed jury, acting reasonably, could have convicted the accused on only one count. On that count, although the evidence had some problematic aspects, it could not be said that a jury could not act on that evidence. A new trial was ordered on that count. The convictions were set aside on the other counts and acquittals were entered.

Cases referred to R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 184 D.L.R. (4th) 193, 252 N.R. 204, 143 C.C.C. (3d) 1, 32 C.R. (5th) 1; R. v. Francis, 2002 41495 (ON CA), [2002] O.J. No. 4010 (QL), 165 O.A.C. 131 (C.A.); R. v. Hibbert, [2002] 2 S.C.R. 445, 211 D.L.R. (4th) 223, 287 N.R. 111, 163 C.C.C. (3d) 129, 50 C.R. (5th) 209, 2002 SCC 39, [2002] S.C.J. No. 40 (QL); R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 56 O.R. (3d) 737, 160 C.C.C. (3d) 493, 47 C.R. (5th) 203 (C.A.); R. v. Reitsma, 1998 825 (SCC), [1998] 1 S.C.R. 769, 226 N.R. 367, 125 C.C.C. (3d) 1; R. v. Sweeney (2000), 2000 16878 (ON CA), 50 O.R. (3d) 321, 148 C.C.C. (3d) 247, 77 C.R. (2d) 327, 36 C.R. (5th) 198 (C.A.); Yebes v. R., 1987 17 (SCC), [1987] 2 S.C.R. 168, 17 B.C.L.R. (2d) 1, 43 D.L.R. (4th) 424, 78 N.R. 351, [1987] 6 W.W.R. 97, 36 C.C.C. (3d) 417, 59 C.R. (3d) 108 (sub nom. R. v. Yebes) APPEAL by the accused from a conviction for robbery and disguise with intent.

P. Andras Schreck and Karen Unger, for appellant. Susan G. Ficek, for respondent. [page99 ]

The judgment of the court was delivered by

[1] FELDMAN J.A.: -- The appellant appeals from his convictions on four counts of bank robbery and one count of wearing a disguise on two grounds: (1) the appellant's inculpatory statements to the police should have been excluded as being involuntary, and (2) the trial judge's charge to the jury on identification evidence was inadequate and in error. The appellant submits that if the statements were improperly admitted, the verdicts are unreasonable. The Crown concedes the second ground, which affects the verdicts on counts 1, 4 and 5, there being no identification of the appellant on counts 2 and 3.

[2] I would give effect to both grounds of appeal and set aside the convictions on all counts. In my view, without the statements, the verdicts on counts 1, 2, 3 and 5 are unreasonable. I would therefore order a new trial only on count 4.

I. The Statements

(a) Facts

[3] The appellant was charged in respect of four bank robberies committed on August 2, August 16, August 26 and September 4, 1996 and with having his face masked on August 16. Surveillance photographs were taken at all four robberies. They show a person wearing sunglasses, a baseball cap and, in one case, a wig.

[4] On September 13, 1996, in the morning, the appellant was in a car with his wife, Christine Knappett White, when the car was boxed in by several police cars. The appellant was arrested for the bank robberies and his wife was arrested as an accessory after the fact. The appellant saw his wife being handcuffed and taken away in a separate police car.

[5] Individual police officers who interacted with the appellant testified that the appellant made statements upon arrest, in the car on the way to the police station and at the station during a strip search. They also claimed that his videotaped confession was made without inducement.

[6] Detective Angle testified on the voir dire that he arrested the appellant and read him his rights, but acknowledged that he did not ask the appellant "Do you want to call a lawyer now", although at the preliminary inquiry, he had testified that he had. On the voir dire, Detective Angle's explanation was that when he asked the appellant if he understood his rights, and before asking if he wanted to call a lawyer now, the appellant interrupted him and said: "How did you find me?""Someone ratted on me, right?" and "My wife doesn't know anything about this." Detective [page100] Angle said he told the appellant he could call a lawyer when they got to the station. However, he agreed that at the preliminary inquiry, when recounting this sequence, he did not say that the appellant had interrupted him, but rather that he asked the appellant if he wanted to "call a lawyer now". The appellant testified that he told Detective Angle he did want to contact his lawyer and was told he would be able to do so at the station. He denied making any of the statements attributed to him by Detective Angle.

[7] Detective Angle also searched the appellant on arrest. He first patted him down and found nothing. Then, after talking to the appellant in the police car, he removed him from it, searched him again and said he found several syringes in his socks and back pocket, some of which were used. However, the officer never recorded finding these items, nor were they retained.

[8] Detective Greenwood arrived after the arrest and joined Detective Angle and the appellant on the ride back to the station. During the ride, Detective Angle initiated conversation with the appellant about his heroin addiction. The appellant asked about his wife and was told she was being charged. There was an issue as to whether the appellant said she was on sick leave. The appellant said they asked him why he committed the robberies and suggested it was because he was doing drugs. The appellant denied taking drugs.

[9] The two detectives collaborated at the station on their notes, which were in topic point form only.

[10] At the station the appellant was paraded before the desk sergeant, who testified that the appellant was given his right to counsel and that his handcuffs were removed so that he could sign confirming that he did not want to call a lawyer. The appellant denied signing anything at that point, as he was still handcuffed behind his back. Also, he did want to speak to his lawyer. Both Detectives Angle and Greenwood agreed that they did not remove the handcuffs until the appellant was in an interview room upstairs at the station. Neither recalled the appellant signing anything in front of the sergeant.

[11] Detective Greenwood took the appellant into an interrogation room to be strip-searched and to obtain information for a show cause report. Detective Angle came in and asked the appellant about the robberies saying they had photos of the robber who appeared to be him. Detective Angle acknowledged in evidence that in fact, the photos did not identify anyone. Detective Angle also agreed that he asked the appellant investigative questions at that time and that the appellant responded: "I guess I'm done again. I don't know why people rat on me. I never hurt anybody." [page101] Detective Angle then told the appellant he could speak to them if he wished and the appellant said: "I'm done." The detective then asked the appellant if he wished to speak to a lawyer and he answered "no", and asked about his wife. Both officers said they understood this inquiry to refer to her whereabouts and about how she was, not to her arrest status.

[12] Detective Greenwood did not recall the appellant being asked about specific offences or any of the specific utterances attributed to the appellant by Detective Angle. Again, neither officer made contemporaneous notes about what was said during the strip search. Detective Greenwood's note, made after the fact, contained three topics: the offences discussed by Detective Angle but nothing from the appellant; the right to counsel including a notation that Detective Angle asked the appellant if he wanted to speak to a lawyer "now" and that he said "no"; and concerns raised by the appellant about his wife.

[13] The appellant testified that he asked to speak to his lawyer, Mr. McGee, and was told he could do so later. It was at that point that the detectives asked him to sign the record of arrest and to acknowledge that he had been advised of his right to call counsel. He said he signed on the basis that they assured him they would be allowing him to make the call, although he denied placing the "x" in the box marked "call not desired". He also denied making any incriminating statements during the strip search.

[14] Following the strip search, the appellant was alone in an interrogation room when Detective Earl entered for the purpose of interrogating him. Detective Earl did not bring recording equipment or a witness. In accordance with his practice, he wanted first to develop a rapport with the appellant. On the voir dire, the trial judge protected him from answering questions about his knowledge of the developing case law criticizing this practice. Detective Earl said that he wrote down in his notebook each question and answer, but he did not have the appellant sign the notebook. He said this was also his practice because his writing is difficult to read. He said that the appellant confessed to the four robberies, identified himself in the surveillance photographs and agreed to provide an audio statement. Detectives Earl and Angle then returned to the interview room and recorded the appellant's confession.

[15] The appellant said that Detective Earl entered the interview room, showed him pictures of hold-ups at various banks and said they were pictures of him. The appellant said he was not the man in the photos and that he wanted to call a lawyer. The detective said if he confessed to the robberies, they would [page102] make a deal with him. The appellant again denied the robberies. Detective Earl then said if he did not confess, his wife would go down with him, that her name would be in the newspapers, she would lose her job and the Children's Aid Society would take her child away.

[16] The appellant's wife was a social worker with the Family Benefits Office in Brampton. She was a single mother in a custody battle with her former spouse over their child. That is why the appellant agreed to provide the statement. He said Detective Earl told him that he committed the robberies because of his heroin addiction, that he should make up the details and his wife would then be released. He said that after he made the statement, his wife was brought into the room for a few minutes although this was denied by the officers. His wife was released without charge shortly thereafter.

[17] On the voir dire, the trial judge would not allow the police to answer questions about the grounds they had for arresting his wife in the first place, although the officers did not have any knowledge of any involvement by her.

[18] The appellant testified on the voir dire and denied committing the robberies.

[19] In his ruling, the trial judge reviewed the evidence of the police in a summary way, including their reasons for not making notes, Detective Earl's denial that he knew about the appellant's wife, the appellant's evidence regarding the inducement and his denial that he committed the robberies, and the fact that his wife was released shortly after his taped confession was taken. The trial judge then concluded:

I propose to deal with the issues this way. I am satisfied beyond a reasonable doubt that the statements given to Detectives Earl and Angle were voluntary. There were no inducements from pressure tactics about the accused's wife being charged or not.

In a perfect setting, there should be a witness officer with Earl, but I do not find that the oral statement given to Earl, and later confirmed on tape, is nothing [sic] but reliable. I am satisfied beyond a reasonable doubt as to its voluntariness.

I find that Mr. White was given his rights to counsel and elected not to avail himself of counsel at the time of the interview.

In regard to Detective Angle, it would have been better to take his notebook into the strip-search at the time, but I find his recollection of a conversation with the accused is reliable, and I am satisfied beyond a reasonable doubt as to its reliability and as to its voluntariness.

Accordingly, the statements are admissible. [page103]

(b) Analysis

[20] At trial the appellant raised two issues regarding his statements: the denial of counsel and the voluntariness issue. On appeal, he challenges the admissibility of the statements on voluntariness alone.

[21] The law with respect to unrecorded police interrogations has recently been stated by this court in R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 56 O.R. (3d) 737, 160 C.C.C. (3d) 493 (C.A.), where Charron J.A. said at para. 65:

. . . it is my view that that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non- recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.

[Emphasis in original omitted]

And at para. 67:

. . . in my view, the completeness, accuracy and reliability of the record have everything to do with the court's inquiry into and scrutiny of the circumstances surrounding the taking of the statement. Indeed, it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed.

The trial judge did not have the benefit of the Moore-McFarlane decision at the time of this trial. He acknowledged the deficiencies in the procedures used by the officers, but was prepared to overlook them because he believed the officers' recollection of the events and, perhaps more importantly, he believed that the confession was true.

[22] Both Detectives Earl and Angle acknowledged that they set out to interrogate the appellant without recording equipment. Detective Earl had also first approached the appellant without a witness and Detective Angle interrogated the appellant without taking notes. In those circumstances, the trial judge was required to determine whether there was a sufficient substitute for a recording to satisfy the "heavy onus on the Crown to prove voluntariness beyond a reasonable doubt".

[23] Rather than do that, the trial judge made bald findings that Detective Earl gave no inducement for the appellant's confession and that Detective Angle's version of the appellant's statements was reliable. Because there were significant discrepancies between what Detective Greenwood recalled and noted of what the appellant said during the strip search and Detective Angle's [page104] version, and because there were also issues raised questioning Detective Angle's credibility regarding his claim that he found syringes on the appellant, the trial judge's failure to identify the indicia of reliability of Detective Angle's version is a serious omission. A similar observation can be made about Detective Earl's denial that he offered an inducement. In the face of the appellant's expressed concern about his wife to other officers, her arrest when she had no involvement in the robberies, and her release shortly after the confession, the trial judge did not explain the basis of his finding in terms of indicia of reliability to satisfy the Crown's onus.

[24] The trial judge gave no specific reasons for his conclusion that the confession was true. Regardless of the existence of reasons, this court has held in R. v. Sweeney (2000), 2000 16878 (ON CA), 50 O.R. (3d) 321, 148 C.C.C. (3d) 247 (C.A.) that it would only be in exceptional circumstances, if ever, that a confession obtained involuntarily would be admitted into evidence because of its reliability. There are no such circumstances in this case.

[25] In my view, this is a case where the voluntariness of the appellant's statements is suspect. This is because the police set out twice to interrogate the appellant without using the available recording equipment, and because there is nothing in the evidence on the voir dire which could satisfy the court of the reliability of the account of the officers. In those circumstances, the statements during the strip search and the recorded confession following the unrecorded interview with Detective Earl should not have been admitted.

II. The Identification Evidence

(a) The evidence

[26] The only witness to the first robbery (count 1) was the bank teller, Mr. Badillo. He observed the robber from one and one-half to two feet away, for a minute or less. He gave a description which included a goatee that was light brown, reddish, almost blonde. He acknowledged that the appellant's beard shadow was not blonde. He was shown a photo line-up three and one-half months after the robbery. He picked the photo of the appellant saying it looked "similar" to the robber because of his jaw and lip-line. He identified the appellant in-dock at both the preliminary inquiry and the trial.

[27] There were two teller witnesses to the second robbery (counts 2 and 3), Ms. Pacek and Ms. DaSilva. The first was the teller approached by the robber. She was very nervous and was unable to see his eyes because of the sunglasses. She observed a square chin and his height. The second witness, the customer [page105] service manager, observed his height and said she could not say if the robber was male or female because of the disguise. On this occasion, the robber wore a wig, makeup, sunglasses and a baseball cap. Neither of these witnesses picked any photo from the photo line-up nor made an in-dock identification.

[28] There were also two witnesses to the third robbery (count 4). One was the teller, Ms. Duarte. She denied that the robber was wearing a hat or sunglasses, although the surveillance camera shows that he was. She picked the appellant's photo out of a photo line-up, saying it was "something like" him. She was satisfied because of the deep sunken eyes. She made an in-dock identification. The other witness was another bank employee, Ms. Souza. She also maintained that the robber never wore sunglasses. She picked the appellant's photo from the photo line-up and she identified the appellant in-dock, based on the shape of his jaw and his hair.

[29] There was one witness to the fourth robbery (count 5), Ms. Waizi. She agreed that she only had a glimpse of the robber because the event was sudden and because she was shocked and scared. She picked the appellant's photo from a photo line-up and maintained that she could identify him from his eyes, although she acknowledged that he was wearing sunglasses. She also identified the appellant in-dock.

(b) The charge on identification

[30] It is conceded by the Crown that the trial judge's charge to the jury on eyewitness identification contained the same errors as in R. v. Francis (2002), 2002 41495 (ON CA), 165 O.A.C. 131, [2002] O.J. No. 4010 (QL) (C.A.). Consequently, the convictions on counts 1, 4 and 5 must be set aside. As in Francis, the trial judge erred first by instructing jurors that stress was not a strong factor to consider in assessing the eyewitness identification, and second by suggesting to the jurors that they close their eyes and consider if they might be able to describe the juror sitting next to them. As stated in Francis, experiments of this nature are always dangerous because they bear no relationship to the circumstances facing the bank tellers at the time of the robberies and since they ask jurors to describe someone with whom they are acquainted, rather than someone who is a stranger to them.

III. Unreasonable Verdicts

[31] The next issue is whether, without the confessions, the verdicts are unreasonable based on only the identification evidence and the surveillance photographs. [page106]

[32] The test for unreasonable verdict is whether, on the evidence that was before the trial court, a properly instructed jury, acting reasonably, could have convicted the accused. In making this determination the appeal court must re-examine the evidence and, to some extent, re-weigh and consider its effect. See Yebes v. R., 1987 17 (SCC), [1987] 2 S.C.R. 168, 43 D.L.R. (4th) 424 at paras. 23 and 25 and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, 184 D.L.R. (4th) 193.

[33] Dealing first with the surveillance photographs, opinion evidence was given by Detective Earl that the appellant could be identified from the photographs. Detective Angle, on the other hand, acknowledged at trial that nobody, including the appellant, could be identified from the photographs. Based on these discrepancies and the fact that the Crown does not urge in its factum that the photos provide identification evidence implicating the appellant, I conclude that the surveillance photographs provide very weak, if any, evidence, on the issue.

[34] As the verdicts on counts 2 and 3 are based only on the appellant's statement and the photographs, it is clear that without the statements, those verdicts are unreasonable and must be quashed.

[35] The eyewitness identification evidence on each of the three remaining counts is problematic. On count 1, the appellant submits that the situation is factually similar to that in R. v. Reitsma, 1998 825 (SCC), [1998] 1 S.C.R. 769, 125 C.C.C. (3d) 1. The Crown distinguishes Reitsma on the basis that in that case the witness only saw the robber for 15 seconds and his reasons for not choosing the accused's picture from the photo line-up were not consistent with what could be seen in the line-up. Here, Mr. Badillo made his in-dock identification based on the appellant's jaw line and lips and picked out the appellant's photo from the photo line-up as looking most similar to the robber. He saw the robber for approximately one minute or less. However, the description he provided to the police did not match the appellant in terms of hair colour and length, and facial hair at the time of the appellant's arrest.

[36] On count 4, the teller, Ms. Duarte, gave a detailed description of the robber, including dark shoulder-length hair, long oval face, unshaven and dark sunken eyes. Although the surveillance camera showed the robber with sunglasses, she insisted that he was not wearing sunglasses when she served him at the counter. She identified him in the photo line-up from the length of his face and chin, the length of his hair and the sunken eyes, although she said the photo was "something like him". She identified him in-dock based on the same features. Ms. Souza saw the robber over a period of two minutes. She insisted as well that he was not [page107] wearing sunglasses although she acknowledged that the surveillance photograph showed the robber wearing sunglasses as he approached the wicket. She picked the appellant's photo from a photo line-up and was definite in her choice.

[37] On count 5, the only witness was the teller, Ms. Waizi. She was very scared throughout. She described the robber as having brown eyes, unshaven, long black curly hair, a gray jacket or a baseball cap. She never said he wore sunglasses although she acknowledged that the surveillance tape showed that he was wearing them while she served him. She picked the appellant's picture from a photo line-up based on the eyes, the unshaven face and the long hair.

[38] In my view, a properly instructed jury, acting reasonably, could not convict the appellant on count 1 based only on the evidence of Mr. Badillo. His description did not match the appellant and he could not positively pick out the appellant from the photo line-up. The in-dock identification is of virtually no weight (R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, 211 D.L.R. (4th) 223). Similarly, on count 5, the only witness's description of the robber with no sunglasses is clearly an error. She also identified the appellant, in part based on his eyes. In those circumstances her evidence alone could not form the basis for a conviction by a jury acting reasonably.

[39] On count 4, although the evidence has some problematic aspects, in my view it cannot be said that a jury could not act on that evidence, given the consistency between the two witnesses.

IV. Conclusion

[40] I would therefore allow the appeal, set aside the convictions, enter acquittals on counts 1, 2, 3 and 5 and order a new trial on count 4.

[41] The Crown's position on this appeal was that the statements were properly admitted, and that the convictions based on the statements on counts 2 and 3 should stand as the error in the charge on eyewitness identification evidence did not affect these counts. On that basis the Crown suggested that the sentence of ten years in prison, one-half [to] be served before the appellant is eligible for parole, should be varied to time served of just over four years. As those convictions have been set aside with the others and a new trial ordered on only one count, if the same sentence of time served is viewed as appropriate if the appellant were to be convicted of that count, the Crown may choose not to proceed with a new trial.

Appeal allowed.

[page108]