DATE: 20040318
DOCKET: C37186
COURT OF APPEAL FOR ONTARIO
WEILER, MacPHERSON and CRONK JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
John H. Hale, for the appellant
Respondent
- and -
F.A.
Susan Magotiaux, for the respondent
Appellant
Heard: October 7, 2003
On appeal from the convictions entered by Justice J.A. Fontana of the Ontario Court of Justice, Youth Court, on June 7, 2000.
CRONK J.A.:
I. INTRODUCTION
[1] This case arises out of a vicious attack on a college student at a bus station. The assailant smashed a glass bottle on the victim’s nose and slashed both sides of his neck with an exacto knife. A bottle was also thrown at the victim as he was attempting to flee his attacker. The victim sustained injuries to his nose, neck and back.
[2] The appellant, a young person, was charged with one count each of assault causing bodily harm, aggravated assault and breach of undertaking, plus two counts of possession of a weapon. Fontana J. entered convictions on all counts, save on the charge of breach of undertaking. The aggravated assault conviction was stayed in accordance with R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. The appellant was sentenced to a total of five months secure custody and seven months open custody, followed by eighteen months probation. He appeals against conviction, having abandoned his appeal against disposition.
[3] The only live issue at trial was identification. The appellant did not testify and no other evidence was called on his behalf.
[4] Shortly after the attack, the victim described his assailant to the police in a written statement. Several hours later, he again described the assailant during a police interview and also identified the appellant as his assailant in an in-person police lineup. A friend of the victim, who witnessed the incident, provided a description of the assailant to the police on the day of the attack. As well, both the victim and his friend identified the appellant as the assailant at trial. A third witness provided a description of the assailant during his trial testimony, although he did not provide an in-dock identification of the appellant.
[5] The issues on this appeal concern the sufficiency and reliability of the identification evidence and the reasonableness of the verdicts. For the reasons that follow, I would allow the appeal, quash the convictions and direct acquittals on the charges against the appellant.
II. FACTS
[6] The essential facts are not in dispute and may be summarized as follows.
(1) Events Leading up to the Attack
[7] A.D. was scheduled to move from Ottawa on April 13, 1998 to begin studies in computer science at Humber College in Toronto. He decided to spend the night before his departure with two other students, J.K. and J.M.
[8] The trio began the evening of April 12, 1998 at a local pub in Ottawa where they remained for about two and one-half hours. They then went for a walk and, thereafter, to a near-by restaurant for dinner. While at the restaurant, A.D. and J.K. noticed a group of six or eight Somalian teenagers in the restaurant. The group included both males and females. The group was behaving in a loud and raucous or rowdy fashion. A.D. and J.K. both observed that one of the males in the group had a white towel on his head. No words were exchanged between the two groups.
[9] A.D. and his friends left the restaurant at about midnight. They went to a bus stop at a local shopping centre to catch a bus home. They waited about forty or forty-five minutes for their bus. While they were waiting, the same group of Somalians who had been at the restaurant arrived. A.D. and J.K. noticed that one of the men in the group still had a white towel on his head. Again, no words were exchanged between the two groups.
[10] A.D. and his friends boarded a bus bound for “Baseline” station. The group of Somalians also boarded the bus and took seats at the rear of the vehicle. Initially, A.D. and his friends were positioned towards the middle of the crowded bus. However, when a seat became available towards the rear of the bus, A.D. took the vacant seat. The Somalians, including the man who was wearing the white towel, were seated across the aisle from him. A.D. testified that at that point, the Somalians became louder and “very obnoxious” in their behaviour. When A.D. looked towards the group, the man with the white towel on his head asked A.D. what he was “staring at”. When A.D. replied, “Nothing much. What are you staring at ?”, unpleasantries were exchanged between the two men. The man with the towel swore at A.D., but nothing further untoward occurred on the bus.
[11] The three students exited the bus at Baseline station. They initially intended to walk to J.K.’s house, which was located a short distance away, but after a few minutes, they decided to return to Baseline station to see if they could catch another bus.
(2) The Attack
[12] On their return to the station, the students checked a televised bus schedule and learned that they had missed their last bus. It was then about 1:30 a.m..
[13] As A.D. was checking the bus schedule, he saw the man with the white towel approaching him. The man had a glass bottle in his hand.
[14] At the same time, J.M. observed several teenagers from the Somalian group enter the station. The majority of the male Somalians, including the man with the white towel on his head, were carrying glass bottles. Several of the men stood around J.M., while others stood beside J.K. The man with the towel stood close to A.D. At about that point, J.K., who was standing at the opposite end of the bus station from his friends, left the station and watched the events from outside.
[15] Events then unfolded rapidly. According to A.D., within seconds of his first sighting of the man with the towel, the man came up to him, “[r]ight up to my face…within inches. Like, we’re talking two inches”, and said to A.D.: “What are you going to do now?”
[16] A.D. told the man who was wearing the towel to put his bottle down, but the man did not do so. Instead, he swore at A.D. in a threatening manner. Several Somalian females who were present began screaming at A.D. and a second Somalian man, whom A.D. recognized as also having been on the bus earlier, also began yelling at him. The second man then threw a “fake” punch at A.D. that momentarily distracted him from the man who was wearing the white towel.
[17] As A.D. turned towards the man who threw the fake punch, the man with the white towel smashed his bottle across A.D.’s nose. A.D. covered his nose, which was gushing blood, with his hands. As he did so, he felt a scratch across the left side of his neck. J.M., who was still standing behind A.D., then yelled a warning, saying: “[A.D.], there’s a knife. Get the hell out of here.” A.D. then noticed that the man who was wearing the white towel was also holding an exacto knife. The man was still angry and continued to confront A.D., advancing towards him.
[18] A.D. turned to leave the bus station. The man with the white towel then attacked A.D. from behind and A.D. felt a knife cross the right front side of his neck. A.D. then turned in J.M.’s direction and saw that the man with the white towel was still holding the knife. A.D. ran. As he was fleeing, he felt an object, which he believed to be a bottle, hit him in the back and heard it fall to the ground behind him. He did not see the person who threw the object.
[19] J.M. testified that he saw the man who was wearing the towel strike A.D. with a bottle. Subsequently, as he followed A.D. out of the station, J.M. saw another Somalian male throw a bottle towards him and A.D. As the Somalian youths fled, J.M. ran to assist A.D., and used his cell phone to call the police.
[20] J.K. was outside the station during these events. He saw the man who was wearing the white towel attack A.D. from behind as A.D. was trying to leave the station. He testified that he did not see the person who struck A.D.’s face with the bottle, although he stated that it was not the man who was wearing the white towel. After A.D. and J.M. left the station, J.K. approached them and helped J.M. to assist A.D. in using his shirt to staunch the bleeding from his neck. They then flagged down a transportation security officer who was conducting a patrol near Baseline station. Police and emergency personnel arrived shortly thereafter and A.D. was taken to the hospital for treatment.
[21] A.D. sustained cuts to both sides of his neck, a broken nose, and a large bruise to the middle of his back. He bled profusely from his neck and nose injuries and required fifteen stitches. J.M. and J.K. were unharmed.
[22] The appellant and another individual were arrested by the police at about 2:00 a.m. at a location close to Baseline station. Four or five other black youths were apprehended nearby, including two females. No exacto knife or white towel was found in the possession of any of these persons. As well, no bloodstains were visible on the appellant’s clothes, although he was wearing several layered white shirts at the time of his arrest.
[23] The appellant’s clothes were not examined forensically for bloodstains. In addition, no fingerprint or other physical evidence was obtained linking the appellant or any of the other apprehended Somalians to the attack on A.D.
(3) Identification Evidence
[24] A.D. was taken by the police from the hospital to the police station to permit photographs of his injuries to be taken. While at the police station, A.D. provided a written statement to the police in which he described his assailant as Somalian, with a towel around his head, and about six feet tall.
[25] Shortly after the attack at Baseline station, J.M. and J.K. were also taken to the police station to view about sixty photographs of young, dark-skinned males. Neither youth was able to identify A.D.’s assailant from the photographs.
[26] Later that same day, sometime between about 11:00 a.m. and 12:00 noon, A.D. was contacted by the police at his workplace and taken to the police station. Enroute to the station, one of the police officers told A.D. that the police had some suspects in custody who the police believed may have been involved in the incident.
[27] While at the police station, A.D. was interviewed by Detective Ian MacFarlane. In his contemporaneous notes of the interview, MacFarlane attributed the following description of the assailant to A.D.:
• guy with white towel
• 6 feet tall
• thinner than “me”, 160 to 165 pounds
• no facial hair
• long hair, outside towel
• dreads
[emphasis added].
[28] Approximately thirty minutes later, A.D. was requested to view an in-person police lineup. At trial, A.D. testified that he understood that he was “going to do a line up, do - - choose the one out of a lineup”. He also said that he was told by a police officer that he was going to do a lineup and that another officer was “going to bring in a couple of suspects”. The police officer then said, “You tell me if you recognize any”.
[29] The lineup consisted of the appellant and three other young black males arrested earlier that day by the police in the vicinity of Baseline station. A.D. identified the appellant as his assailant and another man as the person who threw the fake punch at him. A.D. testified at trial that as soon as he saw the men in the lineup, he “knew who the two individuals were that confronted me”. He said that he then told the police “exactly which one and each of them did”.
[30] A.D. also provided an in-dock identification of the appellant as his assailant. When asked by Crown counsel whether he was able “to identify whether or not the person who you say had the bottle and attacked you with the knife is in the courtroom today”, A.D. replied “Oh yeah. Absolutely.” He then identified the appellant. Later in his testimony, when questioned by Crown counsel concerning his level of confidence in his identification of the two individuals in the police lineup and of the appellant at trial, A.D. replied, “I’d bet my life on it.”
[31] At trial, J.M. described the assailant as having dark skin, curly hair and a white towel. He also provided an in-dock identification of the appellant as A.D.’s attacker. In a statement that he provided to the police on the day of the attack, J.M. had described A.D.’s assailant in general terms. He said that the assailant was a Somalian male of between eighteen to twenty years of age who had a towel over his head and a “Snapple” bottle in his hand. He made no mention in his statement of the assailant having curly hair; nor did he provide any description of the assailant’s facial features.
[32] J.K. testified at trial that while he, A.D. and J.M. were on the bus enroute to Baseline station, he was able to get a good look at the man who was wearing the towel on his head. J.K. described him as being tall and having “long - - longer hair than the - - like, peeking out of the back - - back of the towel. That’s all I could make - - make out”. He provided no other description of the assailant and was not asked at trial whether he could identify the appellant as the assailant.
III. Issues
[33] This appeal concerns the sufficiency and reliability of the Crown’s identification evidence and the reasonableness of the verdicts against the appellant.
IV. ANALYSIS
(1) Standard of Appellate Review
[34] The appellant argues, in essence, that the verdicts in this case are unreasonable and that they cannot be supported by the evidence within the meaning of the developed jurisprudence under s. 686(1)(a)(i) of the Criminal Code.
[35] The function of an appellate court on such an appeal is well-established. The appellate court is to determine whether, on the facts that were before the trier of fact, a jury properly instructed and acting reasonably could convict the accused. To make this determination, the appellate court is required to review the evidence and re-examine and, to some extent, re-weigh it. If, upon that assessment, the appellate court concludes that the conviction of the accused cannot reasonably be supported by the evidence, the trial court’s verdict may be overturned under s. 686(1)(a)(i): see R. v. Biniaris, [2000] S.C.R. 381; R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474; R. v. S. (P.L.), 1991 103 (SCC), [1991] 1 S.C.R. 909; and R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168.
(2) Positions of the Parties
[36] The Crown asserts that in the absence of error, the determination of the sufficiency and reliability of identification evidence is a question for the trier of fact: see R. v. H.M.S., [2001] B.C.J. No. 2287 (C.A.); R. v. Campbell, [1998] O.J. No. 2332 (C.A.); and R. v. Keshane, 1992 736 (BC CA), [1992] B.C.J. No. 450 (C.A.). It submits that the youth court judge committed no error and that the verdicts are reasonable. Accordingly, appellate intervention is not warranted.
[37] The appellant contends that the youth court judge erred in concluding that the identification evidence was sufficient to support a finding of guilt on the criminal standard. In particular, he submits that the youth court judge erred: (i) in downplaying defects in the identification process and in over-emphasizing the opportunity of the witnesses to observe A.D.’s assailant; and (ii) in assessing the reliability of the identification evidence on the basis of A.D.’s honesty and his conviction in the accuracy of his identification of the appellant as his assailant.
(3) Discussion
[38] The identification evidence at trial consisted of:
(i) descriptions of the assailant provided by A.D. in his written statement to the police and during his subsequent interview with MacFarlane;
(ii) A.D.’s identification of the appellant as his assailant in an in-person police lineup;
(iii) J.M.’s description of the assailant provided to the police on the day of the attack;
(iv) in-dock identifications of the appellant as the assailant by A.D. and J.M.; and
(v) J.K.’s description of the assailant at trial.
[39] The inherent frailties of eyewitness identification evidence are well-established and have frequently been commented upon by appellate courts. These frailties can lead to wrongful convictions, even in cases where multiple witnesses have identified the same accused. For that reason, it is essential that identification evidence be subject to appropriate scrutiny, especially where, as here, no confirmatory evidence exists that is capable of minimizing the inherent dangers of the eyewitness identification of the accused: R. v. Miaponoose (1996), 1996 1268 (ON CA), 110 C.C.C. (3d) 445 at 450-51 (Ont. C.A.). See also R. v. Burke, supra, at paras. 52-53.
[40] The assailant was a stranger to A.D. and his friends. The appellant’s convictions rest entirely on the identification evidence. There is no other direct or circumstantial evidence capable of minimizing the dangers inherent in the eyewitnesses’ identification of the appellant. Thus, rigorous scrutiny of the Crown’s identification evidence was required by the youth court judge.
(i) Defects in the Identification Evidence
(a) Police Lineup and In-Dock Identification of Appellant
[41] The process by which pre-trial identification evidence is obtained is of particular significance if the value of the evidence is to be maintained. In R. v. Smierciak (1946), 1946 331 (ON CA), 87 C.C.C. 175, this court emphasized that the means employed to obtain evidence of identification must not involve any acts which might reasonably prejudice the accused. In that connection, the court said at p. 177, “Anything which tends to convey to a witness that a person is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful”.
[42] This statement was elaborated upon by Charron J.A. in Miaponoose at pp. 453 and 456:
[I]t is crucial that procedures which tend to minimize the inherent dangers of eyewitness identification evidence be followed as much as possible in any given case. Irreversible prejudice to an accused may flow from the use of inappropriate police procedure and, unless adequately counter-balanced during the course of the judicial process, may result in a serious miscarriage of justice.
In all cases, the suspect should be presented to the complainant in circumstances that minimize any suggestion that the police believe the suspect is the offender.
[43] Crown counsel on this appeal concedes that the procedures followed in the police lineup were not “ideal”. In my view, they were far from it. The procedures were inappropriate and clearly prejudicial to the appellant.
[44] Although the appellant was not presented to A.D. as the single police suspect, he was shown a lineup comprised only of four persons, all of whom were police suspects. In addition, A.D. was told that the police had suspects in custody who the police believed may have been involved in the attack. Subsequently, and immediately before A.D. viewed the police lineup, he was told that a police officer was “going to bring in a couple of suspects”. He was not told that the person who attacked him might not be in the lineup. These procedural deficiencies had the effect of creating the expectation that the persons whom A.D. was about to see were considered by the police to be suspects and that the lineup included the assailant. In the circumstances, these deficiencies in the lineup procedures significantly undermined the weight to be attached to A.D.’s lineup identification of the appellant as his assailant.
[45] The youth court judge recognized that the police lineup procedures were flawed. He stated:
There is merit to the defence argument that the lineup was faulty. A lineup held with only four persons, and all four of those persons being suspects in the incident, cannot be viewed in any other way. The process is not redeemed by the police referring to it as an impromptu or an informal lineup. But categorizing it as faulty does not mean it is entirely useless, or of no probative value. The only question is, what weight, if any, may be made of the ritual? What purpose, however modest, might it serve from an evidentiary point of view?
[46] The youth court judge thus correctly noted that the use of inappropriate pre-trial identification procedures affects the weight of the subsequent identification. The issue is whether the initial identification of the appellant in the lineup was so tainted as to be worthy of no weight, or whether other evidence served to validate A.D.’s identification of the appellant: see Miaponoose at pp. 458-59.
[47] The in-dock identification of the appellant provided by each of A.D. and J.M. adds little. As this court confirmed in R. v. Izzard (1990), 1990 11055 (ON CA), 54 C.C.C. (3d) 252 at 255-56, in-dock identification is unsatisfactory and attracts little weight. A.D.’s in-dock identification of the appellant followed his earlier pre-trial identification of the appellant in the flawed police lineup. It was nothing more than a bald, although forceful, assertion that the appellant was the assailant. It is subject to, and tainted by, the weaknesses of the earlier identification: Izzard, at pp. 255-56; Smierciak at p. 178; and Miaponoose at pp. 458-59. J.M.’s in-dock identification of the appellant suffered from no positive pre-trial identification of the appellant by J.M. It was analogous to a police “show up” in which the only person shown to the identifying witness is the very person suspected by the police to be guilty of the offence charged. This type of identification has little probative value: R. v. Nguyen, [2000] O.J. No. 2129 at para. 41 (C.A.); R. v. Reitsma (1998), 1998 825 (SCC), 125 C.C.C. (3d) 1 at paras. 56-59 (S.C.C.); R. v. Williams (1982), 1982 3729 (ON CA), 66 C.C.C. (2d) 234 at 235 (Ont. C.A.). It is not contested that when J.M. identified the appellant at trial, the appellant was the only black teenaged male in the courtroom.
[48] The youth court judge ultimately concluded that the similarities between A.D.’s and J.M.’s descriptions of the assailant and the appellant’s characteristics, and the opportunity of A.D. and his friends to observe the assailant, were sufficient to support the convictions of the appellant. Based on this additional evidence, he was of the view that “the so-called informal lineup demonstrated that the key witnesses [sic] recognized and confirmed the assailant as being the accused”. For the reasons that follow, I disagree.
(b) Opportunities to Observe and Descriptions of the Assailant
[49] There are several critical discrepancies between the descriptions of the assailant provided by the eyewitnesses and the physical characteristics of the appellant at the time of his arrest.
[50] A.D. initially provided a limited and general description of his attacker to the police. He said that his assailant was Somalian, had a towel around his head, and was about six feet tall. Subsequently, when interviewed by MacFarlane, A.D. added that the assailant weighed 160 to 165 pounds and had “no facial hair”, “long hair, outside towel” and “dreads”.
[51] At the time of his arrest, the appellant had short, curly black hair, a moustache, and a goatee.
[52] At trial, A.D. confirmed that he was familiar with the hairstyle known as “dreadlocks”. He said that the term “dreadlocks” referred to long, unwashed hair in strands and acknowledged that there is a difference between “dreadlocks” and curly hair. He agreed that the word “dreads” in MacFarlane’s notes of his interview with him referred to “dreadlocks” and that it was possible that he had described his assailant to MacFarlane as having “dreads”. A.D. also testified, based on a photograph of the appellant at the time of his arrest, that he would not have described the appellant as having “dreadlocks” or “dreads”. He offered no explanation for the discrepancy between his recorded use of the term “dreads” in respect of the assailant and the absence of dreadlocks on the appellant; nor did he claim that he misspoke during his interview with MacFarlane.
[53] When cross-examined on his “no facial hair” comment, the following exchange occurred between A.D. and defence counsel:
Q. …on the night you were attacked, you would easily see that moustache and that goatee, wouldn’t you, two inches from his face?
A. If I was paying attention. I could’ve seen it, yes.
Q. Except?
A. Except what?
Q. The person you saw had no facial hair. Correct?
A. Well, let’s talk about it. You said you didn’t know terms before, you didn’t know hairstyles.
Now, if I call that facial hair, that’s a disgrace.
Q. You said if I was paying attention. What did you mean by that?
A. Well, you said earlier on if - - you said you didn’t know hairstyles. You said there was mushroom cuts.
Q. Yes.
A. O.K. Well, the way we term each other is, if I grew a goatee and I barely had any hair on my face, that’s not hair - - that’s not facial hair. It’s just like puberty hair.
Q. You knew that the detective was trying to get the best possible description from you of the person…
A. I agree.
Q. …that attacked you.
A. Right.
Q. You were two inches from his face.
A. Um-hmm.
Q. In which case, if this had been the man, you would have seen the facial hair above his lip and below his nose. Correct?
A. O.K. Correct.
Q. And you would’ve seen the facial hair on his chin as shown clearly in photo number 2. Correct?
A. Correct.
[54] The youth court judge accepted A.D.’s explanation for the discrepancy between his description of the assailant as having “no facial hair” and the appellant’s actual facial hair and addressed this misdescription in A.D.’s identification evidence in the following fashion:
There was considerable cross-examination about what he - - that is to say, [A.D.] -- meant by “dreads”. He conceded, when shown the accused’s photo, that the accused did not have dreads as we know them. The accused in the photograph has what might be described as curly hair.
The photo also discloses what might be described as a thin goatee and mustache [sic]. When cross-examined on his apparent failure to note this, [A.D.] explained that he took “facial hair” to mean something more pronounced and obvious, and alluded to defence counsel Mr. Carroll’s own full beard. [A.D.] described the hair in the photo as being “puberty hair”. I do not think he was -- and by this, I intend no pun whatsoever -- I do not think he was splitting verbal hairs in drawing this distinction.
I am of the view that the misuse of the word “dreads” by [A.D.] to Detective MacFarlane is not determinative of the issue. This was not a situation of either a fleeting or limited observation opportunity. In fact, it was quite the opposite. The prolonged opportunity and observations by the key witnesses of the accused, who had, in fact, focused attention upon himself with his unusual headgear and conduct, took the matter from the realm of identification into the recognition phase.
[55] In addition, on the basis of “the prolonged opportunity and observations by the key witnesses of the accused [emphasis added]”, including A.D.’s opportunities for observation of his assailant, the youth court judge concluded that A.D. had “misuse[d]” the word “dreads” when speaking with MacFarlane and that this misuse was insignificant. In my view, with respect, the youth court judge erred in his assessment of the differences between the descriptions of the assailant and the characteristics of the appellant, and in his consideration of the significance of these discrepancies, in several respects.
[56] First, there was no evidentiary support for the youth court judge’s conclusion that A.D. had “misused” the term “dreads”. A.D.’s testimony established that he was familiar with the term, understood its meaning, and regarded it as signifying a distinct hairstyle different from the hairstyle that he subsequently learned was worn by the appellant. A.D.’s description of the assailant as having “dreads” did not implicate the appellant. It served to exonerate him as the assailant.
[57] Second, notwithstanding that A.D. and his assailant were face-to-face and only two inches apart during their encounter at Baseline station, A.D. offered three descriptors of the assailant that were at odds with the appellant’s physical appearance at the time of his arrest. In addition to describing the perpetrator as having “no facial hair” and “dreads”, A.D. also said that he had “long hair, outside towel”. In his reasons, the youth court judge made no reference to this third descriptor, that is, to the length and placement of the assailant’s hair in relation to the towel, and its significance in comparison to the appellant’s appearance.
[58] This omission is important because J.M. was the only eyewitness who testified that the assailant, like the appellant, had curly hair. In contrast, J.K. testified that he “got a good look” at the man with the white towel while he was on the bus and that the man had “long - - longer hair than the - - like, peeking out of the back - - back of the towel”. The youth court judge made no reference to J.K.’s description of the man with the towel. This description was consistent with A.D.’s statement to MacFarlane that the assailant had “long hair, outside towel”. It was also inconsistent with the nature and appearance of the appellant’s hair at the time of his arrest.
[59] Third, and importantly, none of the Crown’s eyewitnesses suggested that the assailant had any facial hair. A.D., as I have said, expressly indicated to the contrary. In this respect, as well, the description of the assailant provided by the eyewitnesses did not describe the appellant.
[60] The youth court judge correctly observed that A.D. and his two friends had four discrete opportunities to observe the man who was wearing the white towel: (i) at the restaurant; (ii) at the bus stop while they were waiting for their bus; (iii) on the bus; and (iv) at Baseline station where the attack occurred. With the exception of the events at Baseline station, these opportunities to observe the assailant were not stressful or brief.
[61] The youth court judge also noted that, by his conduct and choice of headgear, the man with the white towel on his head attracted attention to himself throughout the evening’s events. However, there was no evidence at trial that any of the eyewitnesses focused on the facial appearance of the man with the white towel during any of the four occasions when they were positioned to observe him, although they noticed that he was wearing a white towel.
[62] In addition, there was evidence at trial that J.K.’s and J.M.’s opportunities to observe the assailant at the critical time – during the attack at Baseline station – were constrained. J.K. did not see who struck A.D. with the bottle, although he testified that it was not the man who was wearing the white towel, and he was outside the station for most of the assaultive incident. J.M. testified that although he saw the man who was wearing the white towel strike A.D. with a bottle, from his viewpoint much of the assailant’s face was obscured by the towel. Thus, he said that he only saw the assailant in profile. Later, when J.M. observed the assailant attack A.D. from behind, J.M. said that he had only a brief view of the front of the assailant’s face. Finally, when the assailant jumped on A.D.’s back, still attempting to fight, the assailant’s back was to J.M.
[63] Given the flaws in the pre-trial identification procedures applicable to the original identification of the appellant by A.D., and the minimal evidential worth of the in-dock identifications of the appellant as the assailant, it was especially important in this case that the physical descriptions of the assailant provided by the eyewitnesses be fully and carefully scrutinized. As observed by Charron J.A. in Miaponoose at p. 459, “[T]he precision and accuracy with which [an eyewitness describes the] assailant becomes of particular important in the circumstances where very little weight can be attached to [the witness’] initial identification of the [accused as the] assailant.”
[64] In this case, no witness provided a description of the assailant’s facial features, before or at trial, that matched those of the appellant in anything more than a generic sense. To the contrary, several of the assailant’s features as described by the eye-witnesses were dissimilar to the established features of the appellant. Those features that were similar between the two youths – skin colouring, age and height – established only a resemblance between them. They did not identify the appellant as the assailant: see R. v. Chartier (1980), 1979 17 (SCC), 48 C.C.C. (2d) 34 at 52 (S.C.C.).
(ii) Honesty and Certainty of the Eyewitnesses
[65] The appellant submits that the youth court judge erred in assessing the reliability of the identification evidence by relying on A.D.’s honesty and conviction in the certainty of his identification of the appellant as his assailant. I would not give effect to this submission.
[66] In assessing the reliability of the identification evidence, the youth court judge stated:
With regard to the three main Crown witnesses, some specific comment is required with regard to the issue of credibility of these individuals -- that is to say [A.D., J.M. and J.K.]. I use the term ‘credibility’ here in the sense of opportunity to observe, powers of observation, and ability to communicate and articulate the events in court.
The truthfulness factor is hardly an issue here. The three witnesses have demonstrated forthrightness and accuracy in their testimony. In no case was there any attempt to colour testimony to their favour, despite many opportunities to do so. In each case where they were tentative or unsure with regard to a particular fact, that, too, was forthcoming.
In the case of the complainant, [A.D.], there was no indic-ation of vengefulness or concoction. [J.M.], being an obser-ver rather off to one side, had a somewhat more objective view of the events. [J.K.’s]…observations are…somewhat limited to the events before…his leaving the bus terminal -- and again, afterwards, he had certain observations when he changed his mind and returned.
[67] Later in his reasons, the youth court judge commented:
The witnesses -- particularly the victim, [A.D.], and the witness, [J.M.] -- have identified the person wearing the white-towel headgear as “the assailant” and “the accused”. The identification is made with considerable conviction by these individuals.
[68] The quoted comments of the youth court judge do not indicate that he placed undue reliance on A.D.’s credibility and conviction in the accuracy of his identification of the appellant. Rather, his comments simply reflect his assessment of the creditworthiness of A.D., J.M. and J.K., measured against some of the traditional indicators of truthfulness. In addition, when commenting directly on the credibility of these witnesses, the youth court judge explained that he was referring to their “sense of opportunity to observe, powers of observation, and ability to communicate and articulate the events in court”. These are legitimate and well-established factors to be considered in the assessment of a witness’ credibility.
[69] It is true that the youth court judge referred to A.D.’s and J.M.’s identification of the appellant as having been made “with considerable conviction”. Read as a whole, however, the reasons of the youth court judge make it abundantly clear that his accep-tance of the sufficiency and reliability of the identification evidence was driven by the multiple opportunities that these witnesses had to observe the assailant and their asserted observations of him. The youth court judge stated in this connection:
The most significant feature of the Crown evidence, in my view, in this case is the unusually generous opportunity which the witnesses had to observe the assailant.
I am satisfied that as a result of these prolonged, isolated episodes, the witnesses had sufficient opportunity to observe and note the individual and to recognize him again if they saw him [emphasis added].
[70] The youth court judge’s reasons demonstrate that he distinguished between the assessment of the credibility of the eyewitnesses and the obligation to examine the reliability of their evidence of identity. I am far from persuaded that he erred by relying on the honesty and certainty of the witnesses in their identification of the appellant to raise the Crown’s identification case to the requisite criminal standard of proof: see Reitsma at para. 61 and Izzard at p. 255.
(4) Conclusion
[71] The pre-trial identification procedures employed in this case rendered A.D.’s identification of the appellant in the police lineup suspect and of little evidential weight. A.D.’s subsequent in-dock identification of the appellant as the assailant did not add any weight to his initial identification, and J.M.’s in-dock identification suffered from inherent evidential frailty. The pre-trial and in-dock identifications of the appellant as the assailant were insufficient to support his convictions. In addition, the original des-criptions of the assailant provided by the Crown’s witnesses were general in nature. Thereafter, notwithstanding their close proximity to the assailant at the time of the attack and their various opportunities throughout the evening to observe him, none of the Crown’s eyewitnesses provided a description of the facial features of the assailant which matched the facial characteristics of the appellant. Moreover, A.D.’s and J.K.’s descriptions of the hair and hairstyle of the man with the white towel differed from the appellant’s corresponding features. Finally, the Crown led no other direct or circumstantial evidence connecting the appellant to the attack on A.D., failed to call as witnesses any of the other Somalian youths who were involved in the night’s events to place the appellant at the scene, and led no forensic evidence linking the appellant to the attack.
[72] For these reasons, I conclude that the identification evidence was insufficient to support the verdicts. A properly instructed jury, acting reasonably, could not have found that the identification evidence in this case met the requisite criminal standard of proof.
V. DISPOSITION
[73] Accordingly, I would allow the appeal, quash the convictions and enter acquittals in their place.
RELEASED:
“MAR 18 2004” “E.A. Cronk J.A.”
“KMW” “I agree K.M. Weiler J.A.”
“I agree J. C. MacPherson J.A.”