DATE: 20030514

DOCKET: C35319

COURT OF APPEAL FOR ONTARIO

LASKIN, FELDMAN and GILLESE JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

KOFI TEBO

Appellant

Brian Snell for the appellant

Nadia Thomas for the respondent

HEARD: October 23, 2002

On appeal from conviction by Justice Rose Boyko of the Superior Court of Justice, sitting with a jury, on February 22, 2000.

FELDMAN J.A.:

[1] The appellant appeals from his convictions by a jury of one count each of robbery, possession over $5,000 and possession under $5,000 contrary to ss. 344(b), 355(a) and 355(b) of the Criminal Code. The two main grounds of appeal involve errors made by the trial judge in her charge to the jury on the issues of whether a lack of evidence can raise a reasonable doubt, and the value of in-dock identification. For the reasons set out below, I would give effect to these grounds and allow the appeal.

FACTS

[2] Because a new trial will be ordered and because extensive details are not necessary to deal with the grounds of appeal submitted, I will give only a brief sketch of the facts. On October 5, 1999 at about 1:00 a.m., a Honda Civic stopped near a taxi stationed in a parking lot at a Markham mall. Two men exited the Honda and approached the taxi. One man asked if the taxi was free then entered the front seat while the other man got into the back. The man in the front seat, Mr. Samuels, pulled out a gun and demanded money from the taxi driver and hit him with the gun. Samuels stole the driver’s wallet and cell phone. The wallet contained $130 - $140 in cash, two credit cards, bank access cards and a driver’s license. Both men then got back into the Honda and Samuels threw the taxi driver’s keys out the window.

[3] The taxi driver retrieved his keys and followed the Honda, alerting two police officers on the way. The police chased the Honda for less than a minute and found it abandoned in a factory parking lot. Police dogs then found Samuels and the appellant hiding under a van. Samuels had cash on him similar to the amount stolen. The wallet, credit and bank cards and a gun were found on the ground near the Honda. The cell phone was not found. Samuels and the appellant were apprehended. No other occupants of the Honda were apprehended.

[4] The appellant testified and denied any involvement in the robbery. He acknowledged that he was one of the occupants of the Honda. He said that Samuels and another friend, Mike, were the ones who left the Honda for a few minutes at one point. He denied knowing about the robbery or its proceeds. He explained that he ran and hid because the others ran and because he believed the car was stolen and he did not want to get charged for it. The appellant said that he first hid under the van and that Samuels later arrived to hide there too.

ISSUES

(1) The charge to the jury on the issue of “lack of evidence”.

[5] In her closing, counsel for the appellant suggested to the jury that the absence of any evidence that could link the appellant to the discarded stolen wallet and credit cards, including any forensic evidence, could raise a reasonable doubt as to who was in possession of those items. Counsel put it in the following way to the jury:

Can you put Mr. Tebo in possession of the wallet? Can you put Mr. Tebo in possession of the credit cards as was put to him in questions by Mr. Kasko and I submit to you, no. Someone in the car was in possession of them. Was it Mr. Tebo? No evidence on that. We don’t have fingerprints from the wallet or from the credit cards to try and connect them to a person, no forensic evidence to connect those items, the gun, the wallet, the credit cards, to Mr. Tebo. Nothing at all. Silent on that. And that absence of evidence, in my submission to you, is enough for you to raise a reasonable doubt as to who was in possession of those items.

Later in her address, when dealing with the planning of the robbery, defence counsel referred to an absence of evidence again. She said:

So what role did the guy in the back of the cab even have? It’s not even like that person looked around, was seen looking around, is anybody coming or making signs or signals or saying anything at all. Now, you may find it despicable someone sitting in the back seat of a cab, friend robs and he runs out but is that helping in any way? Did he do anything to assist in that robbery? Did he have any role in that robbery?

This complete absence of evidence about what the guys in the car were doing or what they spoke or what they knew about except that of Mr. Tebo’s, keep in mind that the burden stays on the Prosecution not on the defence when you consider the absence of evidence, the absence of information to you.

At the end of her address, defence counsel again mentioned the lack of fingerprints:

Now, the other two charges, possession of stolen property and I’ve already spoken to you about that. Nothing relating to the robbery of Mr. Dosanjh was found on Mr. Tebo and there's nothing linking him to the items found near the car. No suggestion he was ever in possession of those items, not a fingerprint, nothing.

[6] In the charge to the jury, the trial judge criticized defence counsel for asking the jury to speculate about evidence that was not called, telling them that what defence counsel had said was improper:

I am going to make some comments on the Crown’s and defence’s addresses to you, members of the jury. Ms. Greene invited you to speculate about the evidence not called, such as the possibility of obtaining fingerprint evidence on the wallet. This is improper. First, there is nothing to suggest such evidence is even obtainable. It is not for you to speculate about any evidence not before you that might have been called. The Crown bears the responsibility of calling evidence to prove all essential elements, and if this evidence he calls does not prove his case or raises a reasonable doubt, then you must acquit, but do not speculate on evidence not called.

[7] The appellant raises four objections to this instruction. The first is that it is incorrect in law. In R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1, the Supreme Court included in its suggested standard language for charging the jury on the concept of reasonable doubt, the fact that a reasonable doubt is “logically derived from the evidence or absence of evidence” (para. 39). The jury is obliged to consider all of the evidence in deciding whether the Crown has proved an essential element of the offence beyond a reasonable doubt.

[8] In this case, the wallet and credit cards were found lying on the ground. In deciding whether the appellant had had possession of those items, the jury had to consider what evidence there was linking them to the appellant. No one saw him with the items or said that he ever had them in his possession. Had his fingerprints been on any of the items, that would have provided a link. The fact that there was no fingerprint evidence to provide that link could be viewed by the jury as an absence of evidence that could raise a reasonable doubt or contribute to a conclusion that the Crown’s evidence was not sufficient to prove the offence beyond a reasonable doubt.

[9] This was not an invitation to the jury to speculate as to why the Crown had not called any fingerprint evidence, implicitly suggesting that the Crown knew that the appellant’s fingerprints were not on the cards and wallet. Rather, counsel was properly pointing out to the jury the frailties of the evidence that could link the appellant with the items, which included an absence of anything that could have provided that link.

[10] The appellant also submits that this error by the trial judge had three other prejudicial effects on the appellant’s case by denigrating defence counsel and not Crown counsel and by leaving the jury with the impression that the absence of evidence on other issues should also not be taken into account.

[11] Although there could be added prejudice, it is of less concern than the direct effect of the error. The trial judge balanced the criticism of defence counsel by referring to a statement made by Crown counsel in his closing that the trial judge said did not apply in the case. Although the trial judge did not refer to Crown counsel’s statements as improper, read as a whole, the two references would be seen by the jury as a negative comment about each counsel’s address. In respect of any other concerns regarding the jury’s use of lack of evidence, although when the trial judge gave the jury some preliminary instructions at the beginning of the trial, she did not include any reference to an absence of evidence in her definition of reasonable doubt, in her charge, the trial judge used the proper instruction on reasonable doubt, which included the reference to an absence of evidence.

[12] In conclusion on this ground, the trial judge erred in her instruction to the jury that they could not consider the absence of any forensic evidence linking the stolen wallet and credit cards to the appellant, when weighing all the evidence to determine whether the Crown had proved the offence of possession beyond a reasonable doubt. The significance of this error is amplified by the fact that the only direct, as opposed to circumstantial evidence that the appellant was the person who participated in the robbery, was the impugned in-dock identification of the appellant by the taxi driver.

(2) The charge to the jury on the identification evidence.

[13] Because the taxi driver told the police that he could not describe the man who got into the back seat of his taxi, he was not shown a photo line-up. He did not identify the appellant at the preliminary hearing or at Mr. Samuels’ trial, although the appellant was in the courtroom. Crown counsel did not ask the taxi driver in examination-in-chief to identify the appellant. In cross-examination, the taxi driver said that he had seen the man in the back seat for only two or three seconds. He agreed that he could not describe the man’s face or clothing in any way The only description he gave in examination-in-chief was that the man in the back seat was a little shorter and a little thinner and his skin was darker than the man in the front seat. In cross-examination he repeated that the man in the back seat had darker skin.

[14] There was also an issue whether the person could have been anyone but the appellant because of the number of people in the Honda. Although the appellant said there were four occupants of the Honda – himself, Samuels, Lee, and Mike – the taxi driver and the police officers only saw three people in the car. As Lee was Asian, the only black person other than Samuels would be the appellant. However, on the issue of the reliability of the observations of the number of occupants in the car, the taxi driver said there were two people in the back, while the police said they observed two in the front seat.

[15] The trial judge gave the jury a lengthy charge on eye-witness identification evidence. It is reproduced below:

I am now going to turn to eye witness evidence, and just to mention that every once in while in our courts, a person is convicted of an offence even though he or she is innocent, and when this happens, it is often because the mistake is made by one or more eye witnesses, and it is easy to see how this can happen. An eye witness can be a very convincing witness when that witness honestly believes that the defendant is the one he or she saw committing the offence. In this case your decision will depend largely on whether you find that the eye witness evidence of Mr. Dosanjh correctly identified Tebo as the person he saw getting into the back seat of his taxicab. I believe he told you he glanced at him for two to three seconds, and said that he was darker skinned than the person getting in the front seat, and was slighter in build and shorter in height. Observation and memory are often unreliable when it comes to the identification of people. In other words, this is an area where people often make honest mistakes.

Turning to the evidence of Dosanjh that he saw Tebo, and the evidence of Constable Barnes and Constable Elliott as they observed the number of occupants and their description of the occupants as the blue Honda drove past them, you should ask yourself some questions when you consider this evidence as to what opportunity they had to observe the person they say was Tebo, or when they say how many occupants there are in the vehicle and so on. How long was the eye witness looking at the person, or the vehicle? How far away was the eye witness? Was there anything which might have obstructed the view of the person? Was there anything else happening at the same time which might have distracted them? Were there any lighting concerns at the place? Did the eye witness appear to have good eye sight? I believe there was no evidence about eye sight in this trial. Did the eye witness appear to have a good memory? How long was it between the time that the eye witness saw the event and the time that they identified the defendant, was it shortly after the event? Was the eye witness able to give a good description of the person that they saw? Did the eye witness have any significant changes to that description, and did other eye witnesses give a different description, and did the eye witness explain how he was able to identify the defendant as to the person he saw? Did the eye witness mention specific features about the person which he saw help him make the identification? Were there other eye witnesses able to identify the person? In this case, Tebo is the person in the back. Keep in mind that identification by one witness can support another, even a number of honest witnesses can be mistaken. Even if you know a person, you might have the experience that someone is mistaken. Someone might come up to you and say, “I know you”, and you discover that they don’t, so these kinds of things can occur.

You will recall that Dosanjh when he gave evidence, in-chief dealing with the identify of Tebo as the person who entered the back seat, said he saw the person in the back seat very briefly. Also, pointing out a witness seated in the courtroom where one expects a defendant to be found is not especially strong identification evidence taken by itself. So if you find that Dosanjh’s evidence is really nothing more than the expression of an opinion, and then it is not based on true recognition, that does not provide a safe basis for a guilty verdict. If that is the case, you should attach little weight to the identification evidence of Dosanjh.

Recognition is complicated, and usually we don’t think about how we recognize people that we have never seen before, and we take it for granted that we can tell the difference between one person and another. In a criminal case, you can’t afford to be casual about the identification of one person by another. Consider carefully what I’ve said to you about the evidence of an eye witness, because you cannot return a verdict of guilty based on eye witness evidence alone, unless you are satisfied beyond a reasonable doubt that the eye witness correctly identified Tebo as the person who was in back seat of his taxi cab [emphasis added].

If you are satisfied beyond a reasonable doubt of the guilt of Tebo as the basis of visual identification by Dosanjh when considered together with the other evidence in this case, then you are bound to act on it, but you must be careful when it comes to circumstantial evidence, because the Crown is relying not just, as I understand the Crown’s case, on the identification by Dosanjh, but also the Crown’s theory, as I understand it, is that there were three people in the vehicle, and that one person was Asian, and that Mr. Dosanjh said the two people who came to him were black persons. So you will have to consider the whole of the evidence to know whether based on the direct evidence of Mr. Dosanjh who told you he recognized Tebo, and the circumstantial evidence, whether the Crown has proved the identity of Mr. Tebo beyond a reasonable doubt as the person who entered the back seat of Dosanjh’s taxicab, and you must be satisfied beyond a reasonable doubt, if you’re looking at surrounding circumstances, that the guilt of the defendant is the only reasonable inference to be drawn from the evidence you accept as being accurate and true. And you will have to consider the explanation given to you by Mr. Dosanjh when he testified and told you there were four persons and not three, and he told you that they also switched their seating positions when they were at the arena parking lot. Again, I mention that an inference is stronger than any kind of conjecture or speculation.

[16] The appellant submits that the trial judge erred by not withdrawing the taxi driver’s in-dock identification of the appellant from the jury’s consideration as having no probative value, or by not giving the jury a stronger and more pointed instruction that the in-dock identification should be given little weight.

[17] The Supreme Court of Canada discussed the issue of in-dock identification of an accused person in the recent case of R. v. Hibbert (2002), 2002 SCC 39, 163 C.C.C. (3d) 129. The court re-emphasized that in-dock identification has an “almost total absence of value as reliable positive identification.” The only purpose in allowing the evidence to be led is to give the victims or other relevant witnesses an opportunity to say whether or not in their opinion, the accused is the same person they saw at the offence, in order to dispel any adverse inference the jury might draw if the question were not asked, and because there is probative value in the inability of a victim or witness to identify an accused person (para. 49).

[18] The court also explained that the danger of in-dock identification, if taken as direct identification of the perpetrator, is that it is “deceptively credible”. It is honest and sincere and has a dramatic impact taking place in front of the jury and can therefore be given distorted value by the jury. In Hibbert, the court said that the trial judge’s instruction to give the evidence “little weight” did not go far enough to dispel the danger. The court also referred to The Honourable Peter deC. Cory’s report, “The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consolidation of Entitlement to Compensation” (Winnipeg: Manitoba Justice, 2001) and adopted the recommendation that the trial judge should have emphasized for the jury “the very weak link between the confidence level of a witness and the accuracy of that witness” (para. 52). The court concluded that what will be required to displace the danger that the jury will give eyewitness identification weight that it does not deserve, will vary with the facts of each case (para. 53).

[19] In this case, the trial judge provided the jury with extensive instructions about the frailties of eye-witness identification evidence. However, she did not segregate and list for the jury the particular problems with the taxi driver’s ability to observe the back seat perpetrator during the robbery, the inconsistencies in the history of the identification and the specific dangers of in-dock identification. Even assuming the jury was entitled to consider the in-dock identification at all, this was a case where the jury should have been forcefully told that they could give virtually no weight to it. The trial judge’s charge relating to the in-dock aspect of the identification was inadequate. It did not point out the reason why in-dock identification can be so compelling, and left it to the jury to use the evidence fully if they were satisfied that it was based on true recognition.

[20] In R. v. Holmes (2002), 2002 45114 (ON CA), 169 C.C.C. (3d) 344 (Ont. C.A.), another case where the victim made an in-dock identification of the accused for the first time, this court held that the prejudicial effect of the evidence so outweighed its probative value, that it should be excluded on the new trial if requested by the defence. I would make the same comment in this case. The problem would only be compounded in a second trial because the witness would be able to say that it was now the second time that he was able to identify the appellant.

[21] This was a strong circumstantial case for the Crown, because the taxi driver and police only saw three people in the car not four. However, it cannot be said that the verdict would necessarily have been the same without the two errors, especially when the appellant testified, denied his involvement and gave an explanation. In my view, these two errors taken together, make the verdict of the jury unsafe and require a new trial.

[22] The appellant also objected to the charge with respect to the use the jury could make of the appellant’s flight as after the fact conduct pointing to guilt, and to the trial judge’s failure to specifically tell the jury to consider each charge separately and not to use a finding of guilt with respect to the stolen car to convict him as well on the robbery. In my view, the trial judge’s charge was adequate on these two issues.

RESULT

[23] I would allow the appeal, set aside the convictions and order a new trial.

Signed: “K. Feldman J.A.”

“I agree John Laskin J.A.”

“I agree E.E. Gillese J.A.”

RELEASED: MAY 14, 2003