CITATION: R. v. Hanemaayer, 2008 ONCA 580
DATE: 20080811
DOCKET: C48928
COURT OF APPEAL FOR ONTARIO
ROSENBERG and SIMMONS JJ.A and SPEYER J. (AD HOC)
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
ANTHONY HANEMAAYER
Appellant
James Lockyer for the appellant
Howard Leibovich for the respondent
Heard: June 25, 2008
On appeal from the conviction entered by Justice G. Ferguson dated October 18, 1989.
ROSENBERG J.A.:
[1] At the conclusion of argument in this case, the court gave brief oral reasons for allowing the appellant’s appeal and entering acquittals. At that time we indicated that we intended to provide further reasons.
[2] Almost twenty years ago, on October 18, 1989, the appellant pleaded guilty to two criminal offences that he did not commit. The story of how that happened is an important cautionary tale for the administration of criminal justice in this province.
THE FACTS OF THE OFFENCES
[3] On September 29, 1987, at about 5:00 a.m., a man broke into a residence in Scarborough and went to the bedroom of the owner’s 15-year-old daughter. He jumped on her back, put his hand over her mouth, threatened her, and told her that he had a knife. Fortunately, the homeowner was awakened by the noise in her daughter’s room. Thinking that her daughter had fallen out of bed, she went into the hall and turned on the light. She saw a man sitting on her daughter. She yelled at him and he turned around so that she saw his face. She would later testify that she studied the man’s face very closely. The man then jumped off the bed and confronted the homeowner. He stood inches from her, raised his arms and “roared” at her. He then fled the house.
[4] The homeowner told police that she stared at the intruder for forty seconds to a minute and could identify him again. Her daughter testified that less than thirty seconds passed from the time her mother entered the bedroom to when the intruder fled. The homeowner provided a description of the intruder to the police as follows:
6’0”, 170 lbs., slim build, 19 years of age with sandy brown, wavy hair, wearing a black leather jacket and blue jeans.
[5] Although the homeowner had never seen the man before she believed that she was particularly adept at remembering faces because her work as a teacher required her to put names to the faces of her students. She decided that the perpetrator must have been keeping watch on her daughter and on the house and likely was working on construction in the area. She drove around and looked at the various construction sites and then telephoned one of the companies working in the area. She provided her description to a woman in the personnel department and the woman gave her the appellant’s name as someone who fit the description. She passed on the name to the police.
[6] In the same period of time, the homeowner helped with a composite drawing prepared by a police technician operating a computer. She also viewed about 100 photographs at the police station. She told the police that she remembered two particular characteristics of the man; he had very piercing eyes and small ears. She agreed that the composite sketch did not reflect the small ears but she testified this was because the computer could not get it right. Two months after the break-in, the police showed the homeowner a photo line-up and she picked out the appellant’s photograph. The investigating officer told her she had picked out the appellant’s picture.
[7] The line-up viewed by the homeowner is no longer available. However, she did testify in cross-examination that the appellant’s photograph was the least sharp of all the pictures in the array.
[8] The appellant was arrested on December 18, 1987. He gave a signed statement to the police in which he denied knowing anything of the crime. He confirmed that he had been working on construction in the Scarborough area that summer. It appears that he stopped working with the company five days before the break-in.
THE ORIGINAL COURT PROCEEDINGS
[9] The appellant was originally released on bail but when he failed to appear for his scheduled preliminary inquiry, he was arrested and detained in custody until his trial. His preliminary inquiry was ultimately held in May 1989 and he was committed for trial. His trial commenced on October 17, 1989 before Ferguson J.
[10] The complainant and the homeowner testified on the first day of the trial. On the second day of the trial, after the homeowner had completed her testimony, the appellant changed his plea to guilty. He pleaded guilty to break and enter and committing an assault and assault while threatening to use a weapon. He was convicted on the break and enter charge and the second charge was stayed pursuant to the Kienapple doctrine: R. v. Kienapple (1974), 1974 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C.). He was sentenced to two years less one day imprisonment in accordance with a joint submission. The appellant served more than eight months of the sentence before being released on parole.
[11] In an affidavit filed with this court, the appellant explained why he changed his plea. In short, he lost his nerve. He found the homeowner to be a very convincing witness and he could tell that his lawyer was not making any headway in convincing the judge otherwise. Further, since his wife had left him and wanted nothing more to do with him, he had no one to support his story that he was home at the time of the offence. He says that his lawyer told him he would almost certainly be convicted and would be sentenced to six years imprisonment or more. However, if he changed his plea, his lawyer said he could get less than two years and would not go to the penitentiary. The appellant agreed to accept the deal even though he was innocent and had told his lawyer throughout that he was innocent.
THE RE-INVESTIGATION
[12] On October 17, 2005, Paul Bernardo’s lawyer sent an e-mail to a police officer with the Toronto Police Sex Crimes Unit listing 18 sexual assaults and other offences that he believed had not been solved. One of the crimes was the break-in to which the appellant had pleaded guilty.
[13] The police interviewed Bernardo in April 2006 and then conducted a further investigation. They are satisfied that Bernardo, not the appellant, committed the crime. At the time, Bernardo lived two blocks from the victim’s home. He, of course, was the so-called “Scarborough rapist” and, after his conviction for murder, was convicted of a number of sexual assaults committed in the Scarborough area during this time period. For example, one of the rapes which Bernardo was known to have committed occurred two and one-half months after the attack on this victim and was committed only half a block from the victim’s home. It is unnecessary to further detail why there is no doubt of Bernardo’s guilt. The fresh evidence is absolutely compelling.
[14] In the course of the re-investigation, the police interviewed the appellant and the homeowner. The appellant reaffirmed his innocence. The homeowner told the investigators that she had been sure at the time that the perpetrator was not the Scarborough rapist because his method of operation was different. She was also sure that the person she saw was not Bernardo. At the hearing of the appeal, counsel informed the court that the homeowner remains convinced that she identified the right person.
THE PROCEEDINGS IN THIS COURT
[15] With the consent of the Crown, the appellant was granted an extension of time to appeal his conviction. The Crown also agreed that fresh evidence in the form of the results of the police re-investigation and the appellant’s affidavit should be admitted into evidence and that the appeal should be allowed. Given the commendable position taken by Crown counsel, these reasons can be brief and need only address two issues: the setting aside of the guilty plea and the identification evidence.
(1) The Guilty Plea
[16] In R. v. T. (R.) (1992), 1992 2834 (ON CA), 10 O.R. (3d) 514 (C.A.) at 519, Doherty J.A. explained that where the validity of a guilty plea is raised for the first time on appeal:
The appellate court will examine the trial record and any additional material proffered by the parties which, in the interests of justice, should be considered in assessing the validity of the plea.
[17] Doherty J.A. further explained that to constitute a valid guilty plea, the plea must be voluntary, unequivocal and informed. There is no suggestion in this case that the appellant’s plea almost twenty years ago did not meet these requirements. While the appellant speaks of advice from his lawyer to plead guilty, the fresh evidence makes clear that in the end the appellant came to his own decision. His plea was unequivocal and he understood the nature of the charges he faced as well as the consequences of his plea.
[18] On the other hand, the court cannot ignore the terrible dilemma facing the appellant. He had spent eight months in jail awaiting trial and was facing the prospect of a further six years in the penitentiary if he was convicted. The estimate of six years was not unrealistic given the seriousness of the offence. The justice system held out to the appellant a powerful inducement that by pleading guilty he would not receive a penitentiary sentence.
[19] Even though the appellant’s plea appears to meet all the traditional tests for a valid guilty plea, as pointed out by Doherty J.A. in T. (R.) at p. 519, this court retains a discretion, to be exercised in the interests of justice, to receive fresh evidence to explain the circumstances that led to the plea and that demonstrate a miscarriage of justice occurred.
[20] As a necessary corollary of the power to receive fresh evidence in these circumstances, the court has the power to set aside the guilty plea in the interests of justice, even though many years have passed.[^1] This is obviously one of those cases. The fresh evidence proves beyond doubt that the appellant did not commit the offences to which he pleaded guilty. One miscarriage of justice would be compounded by another if this court had no power to intervene. As I have said, the Crown agrees that this is a proper case for setting aside the guilty pleas and entering acquittals.
(2) The Identification Evidence
[21] I wish to make a few comments about the identification evidence in this case. We now know that the homeowner was mistaken. No fault can be attributed to her. She honestly believed that she had identified the right person. What happened in this case is consistent with much of what is known about mistaken identification evidence and, in particular, that honest but mistaken witnesses make convincing witnesses. Even the appellant, who knew he was innocent, was convinced that the trier of fact would believe her. The research shows, however, that there is a very weak relationship between the witness’ confidence level and the accuracy of the identification. The confidence level of the witness can have a “powerful effect on jurors”: see Manitoba, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001) at 28; see also R. v. Hibbert (2002), 2002 SCC 39, 163 C.C.C. (3d) 129 (S.C.C.) at 148.
[22] The homeowner’s evidence also reveals a number of concerns that demonstrate the frailties of eyewitness identification. First, there was no circumstantial evidence connecting the appellant with this crime. The fact that he was working in the area around the time is not circumstantial evidence inculpating him, but may possibly explain why the homeowner was able to pick him out of the line-up. Research has shown that witnesses have a difficult time keeping track of where they have seen someone: see The Inquiry Regarding Thomas Sophonow at p. 28.
[23] Second, the photographic line-up itself was the kind then in use by the police, that is, presented as an array rather than sequentially. In his report, Commissioner Peter Cory referred at p. 28 to the expert evidence adduced before him that photo line-ups are a form of “multiple choice testing”. As I understand it, the danger is that the witness may choose the picture from the array that is the best fit. The witness engages in a process of elimination rather than recognition. Commissioner Cory recommended that the photo pack be presented sequentially.
[24] Third, the appellant’s picture was different than the other photographs in the array. In Hill v. Hamilton-Wentworth Regional Police Services Board (2005), 2005 34230 (ON CA), 76 O.R. (3d) 481 (C.A.), aff’d 2007 SCC 41, [2007] 3 S.C.R. 129, Feldman and LaForme JJ.A., in their dissenting opinion, refer at para. 149 to the expert evidence of Professor Roderick Lindsay, adduced in that case concerning structural bias in the presentation of a photo line-up. As Professor Lindsay explained, structural bias results when one person in the line-up is visually distinct from the others in some way. This bias can cause misidentifications because the person who stands out is more likely to be picked by the identifying witness.
[25] Fourth, the officers conducting the line-up were involved in the investigation and knew the identity of the suspect. There is a danger that the investigating officer may, even if not consciously, convey information to the witness to cause her to select the suspect. Commissioner Cory recommended, at p. 32, that “it is essential that an officer who does not know who the suspect is and who is not involved in the investigation conducts the photo pack line-up”.
[26] Fifth, the evidence discloses serious contamination by the investigating officers. They informed the homeowner that she had indeed identified the suspect. This could only serve to increase her confidence in the accuracy of the identification and thus make her a more convincing witness. As Commissioner Cory recommended at p. 32:
Police officers should not speak to eyewitnesses after the line-ups regarding their identification or their inability to identify anyone. This can only cast suspicion on any identification made and raise concerns that it was reinforced.
[27] Sixth, no permanent record was made of the line-up procedure. Commissioner Cory recommended that the line-up process should be videotaped or at least audio taped. The taped record can provide valuable information for the trier of fact in evaluating the reliability of the identification.
[28] In making these comments, I do not intend any unfair criticism either of the witness or the police. As to the witness, as I have said, she honestly believed she had made a correct identification. That identification was made in difficult circumstances; she was naturally under considerable stress when she encountered the assailant; she only had a brief opportunity to make her observations and she was identifying a stranger. As to the police, they may have been following procedures that were in place at the time. Those procedures and standards have evolved in the last twenty years: see the Supreme Court of Canada’s comments in Hill v. Hamilton Wentworth Police Service at paras. 78-80.
[29] However, this case represents an example of how flawed identification procedures can contribute to miscarriages of justice and the importance of taking great care in conducting those procedures. Mistaken eyewitness identification is the overwhelming factor leading to wrongful convictions. A study in the United States of DNA exonerations shows that mistaken eyewitness identification was a factor in over 80 per cent of the cases: see The Inquiry Regarding Thomas Sophonow at p. 27.
CONCLUSION
[30] I would conclude by reiterating the court’s thanks to Mr. Lockyer on behalf of the appellant and Mr. Leibovich on behalf of the Crown for the work they have done to expedite this matter and, so far as can be done, reverse this miscarriage of justice. I also repeat what we said to Mr. Hanemaayer at the conclusion of the hearing:
It is profoundly regrettable that errors in the justice system led to this miscarriage of justice and the devastating effect it has had on Mr. Hanemaayer and his family.
[31] Accordingly, the appeal is allowed, the fresh evidence contained in Volumes 2 and 3 of the Appeal Books is admitted, the guilty pleas are set aside, the conviction for break and enter and committing an assault is set aside, the conditional stay of proceedings for assault while threatening to use a weapon is set aside and acquittals are entered on both counts.
Signed: “M. Rosenberg J.A.”
“I agree Janet Simmons J.A.”
“I agree Speyer J. (ad hoc)
RELEASED: “MR” August 11, 2008
[^1]: See R. v. Taillefer (2003), 2003 SCC 70, 179 C.C.C. (3d) 353 (S.C.C.) at 389, where the court set aside a guilty plea that appeared to have been free, voluntary and unequivocal because of the Crown’s lack of disclosure.