DATE: 20040525

DOCKET: C37284

COURT OF APPEAL FOR ONTARIO

CHARRON, ARMSTRONG and BLAIR JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Sam Scratch

for the appellant

Respondent

• and -

MICHAEL WASHINGTON HAUGHTON

Sandra Kingston

for the respondent

Appellant

Heard: April 5, 2004

On appeal from the conviction entered by Justice Susanne R. Goodman of the Superior Court of Justice, sitting with a jury, on February 22, 2001 and from the sentence imposed by Justice Goodman on April 17, 2001.

CHARRON J.A.:

[1] A Subway restaurant owner was robbed at gunpoint in broad daylight as he was walking to the bank to make a deposit. The gunman fled by car with his associate. Two employees from an adjacent Arby’s restaurant witnessed the robbery, immediately called 9‑1‑1 and gave the licence number of the car. They had jotted the licence number down earlier that morning because the actions of the two men had seemed “strange” and “suspicious” to them. Within minutes, the car was stopped by the police. Just as the driver was ordered to come out of the vehicle, the right rear passenger door swung open and the appellant, Michael Washington Haughton, came out and fled to a nearby field. Several fences and rooftops further, he was apprehended and found in possession of an empty holster and a packet of money with a deposit slip wrapped around it. A later search of the vehicle revealed, among other things, a .40 calibre pistol, ammunition, a cell phone, clothing (including a floppy hat), and another bundle of money with a Subway deposit slip around it.

[2] Haughton identified himself under a false name. Once the police established who he was, he apologized for lying, explaining that he was “mad because [his] leg hurt.” When asked about what happened he stated: “We were just keeping six in the back. The people saw us. The other guys did it and then threw the stuff in our car and we went separate ways.” He denied being the principal in the crime and any knowledge of the use of a gun.

[3] One of the Arby’s employees made a positive identification in a photo line-up of the appellant as the robber and of his co-accused as the other person in the car. The other Arby’s employee gave a description of the two suspects. Neither observed more than two perpetrators. A surveillance videotape taken from inside the Subway store depicted a man in a floppy hat using a cell phone shortly after 10:00 a.m. on the day of the robbery. Records for the cell phone found in the car revealed that it was the appellant’s phone and that it had been used at 10:20 a.m. on the date of the robbery.

[4] Haughton was tried with his co-accused before a judge and a jury. At the commencement of his trial, he pleaded guilty to possession of stolen property in relation to the items seized upon his arrest and to obstructing justice in relation to the false identification he had given to the police. He contested the remaining robbery and weapons charges. Neither accused testified. After a two and a half week trial, Haughton was found guilty on all the contested charges, except for one in respect of which there was a directed verdict of acquittal. He was sentenced to a total of 5 years and 6 months in addition to 21 and a half months spent in pre-trial custody.

[5] Haughton appeals against conviction and sentence. He pleads the following errors in his appeal against conviction:

i) The trial judge failed to instruct the jury in terms set out in R. v. Nikolovski, infra, on the manner in which they were to assess the surveillance video.

ii) The trial judge erred by permitting an investigating officer to report an eyewitness’s remarks at a photo line-up procedure during which she was unable to identify the appellant. It is submitted that this error was exacerbated by Crown counsel’s reliance on this evidence in closing submissions and the trial judge’s failure to instruct the jury that one witness’s failure to identify the accused may detract from the trustworthiness of another’s witness’s identification.

iii) The trial judge erred in failing to instruct the jury that the evidence of the appellant’s after-the-fact flight from the police had no probative value given his guilty plea to possession of stolen property. Alternatively, at a minimum, the trial judge ought to have instructed the jury that there may be an alternative explanation for this conduct.

iv) The trial judge failed to explain adequately how a reasonable doubt could arise from an absence of evidence. It is submitted that this non-direction was a serious misdirection as the appellant relied upon the failure of the police to perform certain investigations and forensic testing to raise a reasonable doubt. It is further submitted that the error was exacerbated by the fact that the Crown was permitted to question the investigating officer on whether the defence had requested any testing of items in police custody.

[6] No objection was made at trial in respect of any of these alleged errors. Counsel for the appellant asserts that the failure of trial counsel to object should not be a bar to the appeal.

[7] Haughton also seeks leave to appeal his sentence.

[8] For the reasons that follow, I would dismiss the appeal against both conviction and sentence.

(1) Instructions with Respect to the Surveillance Video

[9] The appellant contends that the trial judge should have instructed the jury with regard to the terms set out in R. v. Nikolovski (1996), 111 C.C.C. (3d) 403 (S.C.C.):

Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions be given to them as to how they are to approach this task. They should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this. Further, they should be told once again of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused.

[10] The principle set out in Nikolovski has no application to this case. There was no suggestion that the identification of the appellant was based solely on the videotape evidence. Indeed, the appellant did not contest that he was at the scene at the relevant time. The videotape was simply one link in a chain of events relied upon by the Crown to prove that the accused was not only at the scene as a lookout, as he had maintained in his statement to the police, but was an active participant in the robbery. In the circumstances of this case, an instruction in the terms set out in Nikolovski may well have misled the jury to consider the videotape in isolation and to apply the standard of proof beyond a reasonable doubt to individual items as opposed to the whole of the evidence.

(2) Prior Statement of an Identification Witness

[11] As stated earlier, two Arby’s employees witnessed the robbery. Robyn Hillis identified the appellant and his co-accused both in the photo line-up and at trial. Marilyn Burke was able to identify the co-accused at the line-up and at trial, but not the appellant. In reference to Haughton’s photo in the line-up, she commented during the line-up procedure: “That’s pretty damn close. I can’t remember if he had any facial hair. He is the closest so far.” When asked at trial whether she would recognize the person she described as the robber, she responded: “I probably wouldn’t be able to. I didn’t see very much facial features.”

[12] This ground of appeal relates to Ms. Burke’s out-of-court statement about Haughton’s photograph at the photo line-up. Crown counsel did not elicit this evidence from Ms. Burke during her examination-in-chief. Ms. Burke was questioned about the line-up procedure and the statements that she made at the time, but only in respect of the co-accused. In cross-examination, defence counsel elicited from Ms. Burke the simple fact that she had not been able to identify the robber at the photo line-up without putting to her the exact words she had said. Ms. Burke was not re-examined on this point. At a later point in the trial, the investigating officer was examined by the Crown about the entire line-up procedure. It is in the course of that testimony that the remarks made by Ms. Burke in respect of Haughton’s photograph were introduced in evidence.

[13] The appellant argues that Ms. Burke’s out-of-court statement of identification was inadmissible hearsay. He submits that its admission was prejudicial because Crown counsel, in its closing address to the jury, relied on this evidence to bolster the identification made by the other eyewitness, Ms. Hillis. Crown counsel stated the following:

There are two eyewitnesses that place both Mr. Haughton and Mr. Sposato at the scene. In fact, in the police statements that they gave, they both admit that they were actually there. So that much is not seriously in issue. The eyewitnesses at Arby’s describe the suspicious movements and both actually see the robbery. One of the ladies, Ms Hillis, says positively that the robber was Mr. Haughton. She picks him out of a photo lineup. The other, Ms Burke, doesn’t positively identify Mr. Haughton but it’s not like she doesn’t recognize his photograph. You will recall what Detective Pinkney said about the lineup process with her. It’s not that she doesn’t recognize anyone. She picks out Mr. Haughton’s photograph and recognizes it but she’s unable to distinguish it from two other photographs. So, there isn’t a positive I.D. but there is some recognition there.

[14] The following succinct statement on the law respecting prior statements of identification is sufficient for our purposes. In R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.), Iacobucci J., in writing for the majority, stated the following (at para. 221):

The scope of the “prior identification” exception to the hearsay rule was recently thoroughly canvassed in the lucid reasons of Doherty J.A. in Tat, supra. As Doherty J.A. sets out, there are two situations in which out-of-court statements of identification may be admitted for the truth of their contents. First, “prior statements identifying or describing the accused are admissible where the identifying witness identifies the accused at trial” (pp. 497-98). Second, such statements are admissible “where the identifying witness is unable to identify the accused at trial, but can testify that he or she previously gave an accurate description or made an accurate identification” (p. 500). In the latter circumstance, Doherty J.A. explained, “the identifying witness may testify to what he or she said or did on those earlier occasions and those who heard the description given by the witness or witnessed the identification made by the witness may give evidence of what the witness said or did” (ibid.).

[15] It is important to note that the “prior identification” exception is not restricted to prior statements of positive identification; it extends to prior descriptions provided by a witness. It therefore follows from the second branch of the exception that Ms. Burke’s statement about Haughton’s photograph in the line-up was admissible so long as she confirmed its accuracy. Had she done so, the statement would simply have formed part of her overall description of the robber. The difficulty here is that, although Ms. Burke confirmed her prior statement of identification at the line-up with respect to the co-accused, she was not asked to do so with respect to Haughton. Hence, strictly speaking, the appellant is correct in saying that Ms. Burke’s prior statement of identification was inadmissible hearsay in the form that it was presented – that is, solely from the mouth of the investigating officer.

[16] However, in the circumstances of this case, there was no harm done. No objection was made to the investigating officer’s testimony on this point. There was no suggestion made during the trial that this or any other witness’s statement at the line-up procedure was recorded inaccurately. The evidence could have been elicited from Ms. Burke in examination-in-chief, or, in light of the cross-examination on this point, in re‑ examination. Finally, the trial judge gave extensive and exemplary instructions on the manner in which the jury should consider the identification evidence.

[17] On this latter point, I would note that the appellant’s submission on the effect of this court’s decision in R. v. Spatola (1970), 4 C.C.C. 241 (Ont. C.A.), [1970] 3 O.R. 74 is misguided. Counsel for the appellant submits that as a result of Spatola, the trial judge was obligated to specifically instruct the jury that the fact that one eyewitness could not identify the accused may detract from the second witness’s identification. Spatola does not establish any such rule. The majority of the court made it mandatory to give general instructions to the jury on the frailties of identification evidence in certain circumstances. Two such circumstances were identified: “where the identification evidence is offset either by evidence of a contrary nature or by evidence of a failure or inability of another witness equally in a position to see the alleged offender, to make an identification.” In dissent, Justice Aylesworth expressed the view that there was no legal requirement that the jury be charged with regard to the inherent frailty of identification evidence; the matter was entirely discretionary. The second circumstance identified by the majority simply triggered the obligation to caution the jury about the frailties of this kind of evidence. The court did not establish a firm rule, as contended by the appellant, on what specific instructions must be given to the jury.

[18] The law has evolved considerably since Spatola was decided in 1970. It is now well-established that in all cases where identification is in issue and is dependent upon eyewitness identification, the jury should be warned about the frailties of such evidence. As noted earlier, the jury in this case was so instructed in an exemplary fashion. As well, the jury was specifically instructed on the discrepancies between the two eyewitnesses’ testimony and was reminded that one witness could not identify the accused.

[19] For these reasons, I would not give effect to this ground of appeal.

(3) The Post-Offence Conduct

[20] The appellant notes that at one point in his closing submissions, Crown counsel stated: “I also ask you to consider why [Haughton] flees the police.” He submits that since the Crown relied on the evidence of flight, the judge ought to have alerted the jury to the fact that the flight may have been due to Haughton’s possession of stolen property – a charge to which he admitted guilt. As a result, his flight after the fact was of no probative value. The appellant relies on the principle set out in R. v. Arcangioli (1994), 87 C.C.C. (3d) 289 (S.C.C.) at 300-01:

The test articulated in Myers provides helpful guidance on the inferences that may be drawn from evidence of an accused’s flight (or other possible indicia of consciousness of guilt, such as lying). Such evidence can serve the function of indicating consciousness of guilt only if it relates to a particular offence. Consequently, where an accused’s conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence.

[21] It is important to note in what context Crown counsel referred to the evidence of flight. It is found in the context of several pages of transcript where the Crown reviews the evidence discovered after the fact that would support an inference that Haughton was the gunman. This evidence included, among other things, the gun holster in his pant pocket; the money on his person; the location of the gun under the passenger seat of the car where it was easily accessible from the back [where Haughton was when the car was stopped]; the other items from the robbery found in the back of the car where the Crown suggested one would expect them to be if Haughton had placed them there while lying down on the back seat; and the clothes found in the car. The Crown then made the reference to flight and immediately suggested that Haughton’s story about another robber doing the deed and handing him everything was simply incredible.

[22] It is my view that in the circumstances of this case, an instruction in the terms set out in Arcangioli would have unduly complicated matters and was not necessary. It is particularly noteworthy that defence counsel at trial did not ask the trial judge to give such an instruction. Further, the trial judge instructed the jury generally with respect to the after-the-fact conduct that “it may help; it may not help” in deciding who committed the robbery. She instructed them that “the words or conduct may be those of an innocent person who simply wants to avoid involvement in a police investigation or embarrassment for himself or others”. If the jury found as a fact that the accused did or said those things, they “should consider next whether this was because he committed the offence or offences charged or for some other reason.”

[23] Given the context, I find no merit to this ground of appeal and would not give effect to it.

(4) Reasonable Doubt Arising From the Absence of Evidence

[24] The appellant contends that one portion of the charge completely negated the trial judge’s earlier correct instruction on how an absence of evidence could raise a reasonable doubt. He relies on the following portion of the charge:

You heard evidence that there were other things that the police could have done to more accurately determine, or better prove, let’s put it that way, that Mr. Haughton was the perpetrator of the robbery. For example, the floppy hat in the car or the black sweatshirt in the car with the “Bulls” insignia on it could have been analyzed for hair fibres or DNA according to one of the witnesses, I think P.C. McAllister, or it could have been analyzed to determine whether it was someone else who did the actual act of taking Mr. Baker’s money. You may not speculate on what the results might have been of any investigation that was not done. You must not use any frustration you may feel toward the police investigation in determining the guilt or not of Mr. Haughton. You must simply deal with the evidence that you have heard in court and the exhibits that were filed during the trial in determining these issues.

[25] The appellant submits that this case is indistinguishable from the decision in R. v. Bryce, [2000] O.J. No. 216 (C.A.) where this court held that a later modification of the standard Lifchus charge which took away the option of a reasonable doubt raised by an absence of evidence constituted reversible error. I do not agree. The impugned portion of the charge in Bryce effectively misdirected the jury that a reasonable doubt cannot arise from a lack of evidence. It read as follows:

I indicated to you earlier reasonable doubt is logically derived from the evidence tendered at a trial, or from a lack of evidence tendered at a trial. I realized in saying that to you, I was in error. A reasonable doubt is logically derived from the evidence tendered at a trial. I will stop there and I will repeat that. A reasonable doubt is logically derived from the evidence tendered at a trial. The law has since changed regarding the lack of evidence. So to make it clear, a reasonable doubt is logically derived from the evidence tendered at a trial.

[26] When read in context, the instruction in this case does not have the same effect. The trial judge correctly charged the jury five times that a reasonable doubt is one that arises from the evidence or the lack of evidence – twice in her opening remarks and three times in her closing. In effect, the trial judge in the above-noted passage was encouraging the jury to use a reasoned approach in considering any gap in the evidence. The charge, when read as a whole, does not give rise to a reasonable likelihood that the jury misapprehended the correct standard of proof.

[27] I do not accept the appellant’s submission that Crown counsel’s questioning of the witnesses on police procedures exacerbated the situation and undermined the presumption of innocence or the right to silence. The context in which this evidence was elicited is the following. Defence counsel, in his cross-examination of one of the police officers, questioned why certain forensic tests had not been done on the clothing found in the vehicle. The officer testified that where identity was a primary issue of concern, that option was available. If, in the investigator’s opinion, identity is not in issue, evidence will generally not be submitted for DNA testing. In this particular investigation, it was felt that it was not necessary to do forensic testing. In re-examination, Crown counsel asked what the police policy was if the defence were to ask for samples for testing. The officer said that the samples would be submitted for testing. Crown counsel then asked if, to the officer’s knowledge, any samples had been requested by the defence for testing. The officer said no. The latter question was later put to the investigating officer and he confirmed that no request had been made by the defence for samples to be tested.

[28] When viewed in context, these passages simply served to explain to the jury why certain evidence is either available or unavailable for its consideration. Such an explanation in no way undermines the presumption of innocence and does not interfere with an accused’s right to silence.

[29] For these reasons, I would dismiss the appeal against conviction.

(5) Appeal against sentence

[30] The appellant contends that, on sentencing, the trial judge erred in considering the accused’s pre-existing weapons prohibition as an aggravating factor while at the same time making his sentence for ‘possession of a weapon while prohibited’ consecutive to his other sentences. It is submitted that, in light of this error, it falls to this court to consider the appellant’s sentence afresh and that the sentence should be reduced by two years.

[31] On my reading of the record, it seems clear that the trial judge did not, in effect, punish the appellant twice as contended. In deciding to impose a consecutive sentence on the weapons offence, the trial judge specifically stated: “Again, in doing so I have considered the sentence I am imposing in total in relation to the counts with respect to which I am obliged to sentence Mr. Haughton.” Further, the sentence was a fit one. Indeed, it was within the range suggested by defence counsel at trial.

[32] I would grant leave to appeal the sentence but would dismiss the appeal.

Released: MAY 25 2004 Signed: “Louise Charron J.A.”

“I agree Robert P. Armstrong J.A.”

“I agree Robert A. Blair J.A.”