COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gough, 2013 ONCA 137

DATE: 20130306

DOCKET: C55605

Epstein, Hoy and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Elvin Gough

Appellant

Howard L. Krongold, for the appellant

Suhail A.Q. Akhtar, for the respondent

Heard: February 12, 2013

On appeal from the conviction entered on October 21, 2011 by Justice Albert J. Roy of the Superior Court of Justice, sitting without a jury.

By the court:

OVERVIEW

[1] The appellant appeals his conviction of robbery and uttering a threat. The only issue at trial was identification and the only evidence on that issue was the eyewitness testimony of the victim, Dean Desarmia.

[2] Mr. Desarmia, a resident of a Salvation Army shelter in Ottawa, was robbed in late July 2010 after cashing an Ontario Disability Support Program (“ODSP”) cheque at a MoneyMart store.

[3] Mr. Desarmia first saw the robber shortly after cashing his cheque. As Mr. Desarmia and a friend walked along an Ottawa street, a man walked towards them. Mr. Desarmia had never seen or met the individual before. The friend greeted the man and then walked away with him.

[4] Mr. Desarmia then saw an acquaintance and went and sat with him on the edge of a planter. While Mr. Desarmia was seated on the planter, the man who had met up with Mr. Desarmia’s friend walked over “really fast” and, as he sat down beside Mr. Desarmia, he placed Mr. Desarmia in a headlock. The man told Mr. Desarmia that if Mr. Desarmia did not give him the money, he would “crush” Mr. Desarmia’s head. Mr. Desarmia handed over the envelope containing all of his cash, around $450. The robber threatened that if Mr. Desarmia spoke to the police, he would cut Mr. Desarmia’s head off.

[5] Several days after the robbery, Mr. Desarmia recounted what had transpired to his brother (one of the Crown’s two witnesses) and left Ottawa. Upon his return a couple of weeks later, he encountered a man talking with someone outside the Salvation Army shelter who, upon seeing Mr. Desarmia, uttered the words “It’s a free country”.

[6] Believing that the man was the robber, Mr. Desarmia spoke to the staff at the Salvation Army residence – Candace Letourneau (the other Crown witness), and “Steph”, who did not testify. Mr. Desarmia learned that the man’s name was Elvin Gough.

[7] Some five days later, Mr. Desarmia reported the robbery to the police, and provided them the appellant’s name Elvin Gough, as the man who had robbed and threatened him. Mr. Desarmia also provided the police with a description of his assailant: a black male, middle aged, heavy-set, wearing a black fabric that covers the head and drapes down at the neck, similar to a bandana but not a bandana.

[8] The police located the appellant and charged him with robbery and uttering threats.

[9] Prior to the robbery, Mr. Desarmia had been diagnosed with schizophrenia. He was not taking medication at the time of the robbery, or at the time he saw the man outside the shelter.

[10] At trial, some fourteen months later, Mr. Desarmia identified the man in the prisoner’s box, the appellant, as the man who had robbed him and whom he had met outside the shelter.

[11] The appellant did not testify.

[12] After a two-day trial, the trial judge concluded that the appellant had committed the offences.

[13] The appellant argues that; (1) the trial judge materially misapprehended the evidence, (2) the verdict is unreasonable, and (3) the trial judge failed to correctly instruct himself on the inherent unreliability of identification evidence, or to advert to and adequately scrutinize the specific frailties disclosed by Mr. Desarmia’s evidence.

[14] Based on our conclusion that the trial judge erred in the manner in which he considered the identification evidence, the convictions cannot stand and the appeal must be allowed.

[15] Specifically, while the trial judge noted the need for caution in weighing Mr. Desarmia’s identification evidence in his reasons, he did not direct himself to or adequately analyze the specific and significant frailties in Mr. Desarmia’s evidence. It is particularly critical that a trial judge do so where, as here, there is no independent evidence capable of corroborating the victim’s identification evidence.

[16] To provide context for the analysis that follows, we first set out the relevant portions of the trial judge’s reasons. We then briefly address the appellant’s first and second grounds of appeal before turning to the appellant’s third, and pivotal, argument.

THE TRIAL JUDGE’S REASONS

[17] In response to defence counsel’s submissions on the identity issue, the trial judge acknowledged that “the court should be cautious when looking at identity and, of course, that is something that we are all very cognizant of, that, if there is an area where mistakes are made, it often is in the area of mistaken identity....”

[18] The trial judge was satisfied that Mr. Desarmia had not made up that he was robbed of his money from his ODSP cheque by a large, black man. He found that there was a “ring of truth and an air of certainty about [Mr. Desarmia’s] evidence on the material facts” and that there was a “child-like genuineness and truthfulness about his evidence.”

[19] The trial judge reasoned as follows:

… [Mr. Desarmia] identified the accused, he described him and in circumstances when he had an opportunity to see him. He saw the accused walking towards him, the accused sat right next to him, the accused had him in a headlock, he saw the accused, he gave him the envelope and then he saw the accused walk away. He saw the accused threaten him and this all happened in daylight.

Not only did he give a description of the accused without details – and that has to be said, he did not give details – but one of the things that he did recognize was his voice…

Then two weeks later, when he comes back to the shelter, he sees the accused. It is not as though he is walking down the street in some other city and picks out an individual. He picks out the accused who is staying at this residence and it is confirmed that the accused is a resident at this shelter.

Then the accused says something to him about a free country. That is all consistent with the victim saying that he recognized his voice.

So that this is not one of these circumstances where you get a momentary view of someone and you do not see him for two weeks and then you make an identification. The opportunity and circumstances of this case are far convincing about the weight of the evidence that should be given on the question of identity.

So, on all of the evidence, the evidence of the occurrence and the evidence of the identity, I am satisfied on the evidence of Mr. Desarmia, confirmed by the evidence of the two Crown witnesses, I am satisfied beyond a reasonable doubt that this occurrence, the robbery and threats, took place and I am satisfied beyond a reasonable doubt as well that these offences were committed by Mr. Gough.

ANALYSIS

(1) Material Misapprehension of Evidence

[20] The appellant submits that the trial judge misapprehended key evidence involving the corroboration of the complainant’s identification evidence.

[21] Specifically, on three occasions in his reasons, the trial judge erroneously referred to Ms. Letourneau’s evidence that the appellant resided at the Salvation Army shelter as confirming Mr. Desarmia’s evidence.

[22] It is conceded that Ms. Letourneau did not testify that the appellant resided at the shelter. In fact, she testified that while she had a good idea of who was staying at the shelter, she had never met the appellant and did not know his name.

[23] Mr. Desarmia, however, after first testifying that he never saw the appellant living at the shelter, later testified that the appellant was living at the shelter. Mr. Desarmia’s evidence appears to speak to the period of time after he saw the appellant outside the shelter, and not the time at which the robbery occurred.

[24] The question that follows is the extent to which, if at all, this misapprehension affected the trial judge’s reasoning process, resulting in his conclusion that the appellant is the robber. If the misapprehension played an essential part in the trial judge’s reasoning process leading to the conviction, the conviction is not saved even if the evidence at trial was capable of supporting a conviction: R. v. Lohrer (2004), 2004 SCC 80, 193 C.C.C. (3d) 1 (S.C.C.), citing R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (Ont. C.A.), at para. 93.

[25] While the misapprehension of evidence was unfortunate, we are not satisfied that it gave rise to a miscarriage of justice.

[26] The only indication of the significance that the trial judge accorded what he thought was confirmatory evidence of Ms. Letourneau is in the following passage from his reasons excerpted above:

It is not as though [Mr. Desarmia] is walking down the street in some other city and picks out an individual. He picks out the accused who is staying at this residence and it is confirmed that the accused is a resident at this shelter.

[27] The misapprehended evidence was of very limited probative value. Since the appellant’s defence at trial rested on the fact that Mr. Desarmia knew the appellant and the appellant lived at the shelter it was an easy error for the trial judge to make.

[28] While not clear from his reasons, the trial judge may also have regarded Ms. Letourneau’s evidence as buttressing Mr. Desarmia’s credibility; that is, Mr. Desarmia’s evidence that he saw the appellant outside of the shelter is more believable if the appellant in fact lived at the shelter at that time. Mr. Desarmia’s credibility, however, was not a key issue at trial. The critical issue was the reliability of his identification of the appellant as the robber.

[29] We are not, however, persuaded that the misapprehension of the evidence played an essential part in the trial judge’s reasoning process resulting in the appellant’s conviction. We reject this ground of appeal.

(2) Unreasonable Verdict

[30] The appellant submits that the identification evidence cannot reasonably support a conviction.

[31] To give effect to this ground of appeal, we must be persuaded that, on the record before the trial judge, no properly instructed trier of fact acting judicially could reasonably have convicted the appellant: see R. v. Goran, 2008 ONCA 195, [2008] O.J. No.1069, at para. 21.

[32] As explained below, there are frailties in Mr. Desarmia’s evidence. Nonetheless, Mr. Desarmia did see the robber twice in close quarters, during daylight, in a single day, albeit briefly. We adopt the approach of Blair J.A. in Goran and conclude that, notwithstanding these frailties, it is possible that a trier of fact, properly instructed and acting reasonably, could have come to the same conclusion as the trial judge.

[33] We do not give effect to this ground of appeal.

(3) Concerns Regarding the Identification Evidence

[34] As indicated above, our concern is that the trial judge failed not only to self-instruct properly on the inherent unreliability of identification evidence, but also to advert to and adequately scrutinize the specific frailties disclosed by the evidence. The trial judge’s comments that “the court should be cautious when looking at identity” and it is “an area where mistakes are made” fall short of the degree of scrutiny required. The trial judge also failed to instruct himself on the fallacy of mistaking certainty for accuracy by placing excessive reliance on Mr. Desarmia’s “child-like genuineness” and the fact that he sensed a “ring of truth and an air of certainty about his evidence.”

[35] Being notoriously unreliable, eyewitness identification evidence calls for considerable caution by a trier of fact: R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197, at pp. 1209-10; R. v. Bardales, 1996 213 (SCC), [1996] 2 S.C.R. 461, at pp. 461-62; R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, at p. 498. It is generally the reliability, not the credibility, of the eyewitness’ identification that must be established. The danger is an honest but inaccurate identification: R. v. Alphonso, 2008 ONCA 238, [2008] O.J. No. 1248, at para. 5; Goran, at paras. 26-27.

[36] The trier of fact must take into account the frailties of eyewitness identification in considering such issues as whether the suspect was known to the witness, the circumstances of the contact during the commission of the crime (including whether the opportunity to see the suspect was lengthy or fleeting) and whether the circumstances surrounding the opportunity to observe the suspect were stressful; R. v. Carpenter, [1998] O.J. No. 1819 (C.A.), at para. 1; Nikolovski, at 1210; R. v. Francis (2002), 2002 41495 (ON CA), 165 O.A.C. 131, [2002] O.J. No. 4010, at para. 8.

[37] As well, the judge must carefully scrutinize the witnesses’ description of the assailant. Generic descriptions have been considered to be of little assistance; R. v. Boucher, 2007 ONCA 131, [2007] O.J. No. 722, at para. 21. The same can be said of in-dock or in-court identification; R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at 468-69; R. v. Tebo (2003), 2003 43106 (ON CA), 172 O.A.C. 148 (Ont. C.A.), at para. 19.

[38] In his reasons, the trial judge failed to grapple with a number of frailties specific to Mr. Desarmia’s identification evidence, including:

• The evidence of Ms. Letourneau was that more than one black person was living at the shelter. As the trial judge noted, Mr. Desarmia’s description of the robber was generic. There was no evidence that the appellant was wearing the distinctive head garb Mr. Desarmia described to the police at the time that Mr. Desarmia saw him in front of the shelter. Mr. Desarmia’s identification of the appellant was cross-racial. The concern with respect to the generic description on which Mr. Desarmia presumably acted in identifying the appellant outside the shelter was therefore heightened.
• According to Mr. Desarmia, he relied mostly on the voice of the man outside the shelter in identifying him as the robber. Mr. Desarmia testified, however, that one of two reasons he receives ODSP is because he suffered hearing damage from a car accident. Moreover, the verbal exchanges between Mr. Desarmia and the robber were limited, and more than two weeks had elapsed between the time Mr. Desarmia heard the robber’s voice and the encounter where the man outside the shelter uttered a mere four words.
• Mr. Desarmia did not know the robber, and, in the first encounter, had little reason to pay attention to him. The circumstances of the second encounter were stressful, and may have made accurate observation difficult. Both encounters were brief.

[39] These issues were raised. The deficiency in the reasons can be summarized as a failure on the part of the trial judge to connect the essential principles of the frailties of eyewitness identification to the specific concerns raised by the evidence in this case. This lack of analysis was particularly problematic given that there was no other evidence linking the appellant to the crime.

DISPOSITION

[40] For these reasons, we allow the appeal, quash the convictions and order a new trial if the Crown is so advised.

Released: Mar. 6, 2013

“GE” “Gloria J. Epstein J.A.”

“Alexander Hoy J.A.”

“P. Lauwers J.A.”