COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Yigzaw, 2013 ONCA 547

DATE: 20130911

DOCKET: C52718

Simmons, Cronk and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Yigzaw

Appellant

Counsel: Brian Snell, for the appellant Matthew Asma, for the respondent

Heard: March 26, 2013

On appeal from the convictions entered by Justice John Hamilton of the Superior Court of Justice, sitting with a jury, on December 2, 2008.

Simmons J.A.:

A. INTRODUCTION

[1] Following a jury trial, the appellant was convicted of multiple counts of kidnapping and robbery arising from two incidents that occurred about two-and-one-half weeks apart at the same apartment complex in Toronto.

[2] During the first incident, five young men were accosted by three assailants – a white man, a black man and a Spanish man – as they left a friend’s apartment building. The victims were robbed at gunpoint and then escorted to a nearby bank machine where they were forced to withdraw money to give to the robbers. Later that day, the victims told police that the robber alleged to be the appellant was a black man wearing dark, baggy clothes.

[3] During the second incident, five or six young men, three of whom were robbed during the earlier incident, saw a large group of people as they were leaving their friend’s apartment building. Three of the young men recognized the white man from the earlier robbery, and the group retreated back inside the apartment building. The victims were accosted by one white man and two or three black men in the hallway outside their friend’s apartment. The robbers took money from the victims and then fled as the police were arriving. The man alleged to be the appellant was described as a black man with curly hair wearing dark clothing.

[4] Soon after the second robbery, police arrested a group of four men they saw huddled together near the apartment complex – two white men, a black man and a “black or brown man”, one of whom was the appellant. No surveillance evidence was uncovered and no forensic evidence linked any of the four men to either robbery. The appellant had facial hair and was wearing distinctive clothing, neither of which was described by any of the victims. However, about a week following the second incident, four of the victims selected the appellant’s photograph and the photograph of one of the white men who was arrested with him from a photographic line-up.

[5] The main issue at trial was the identity of the perpetrators of the offences. The appellant raises three issues on his conviction appeal:

i. Were the guilty verdicts unreasonable?

ii. Did the trial judge err in his instructions to the jury concerning the identification evidence?

iii. Did the trial judge err by failing to adequately assist the jury when responding to their question requesting a transcript of the evidence of four of the witnesses who testified?

[6] We did not call on the Crown to respond to the third issue raised by the appellant. Although it would have been preferable for the trial judge to have responded to the jury’s question in a more fulsome way, it is apparent from the jury foreperson’s advice to the trial judge relating to this issue that the jury’s real concern was not the transcripts.

[7] For the reasons that follow, I would reject the appellant’s first ground of appeal but accept the second ground. I would therefore allow the appeal, set aside the appellant’s convictions and order a new trial.

B. Background

(1) The First Incident

[8] The first incident happened in the early morning hours of October 7, 2006. Five young men – Mahmood Pobal, Nazir Alomi, Agha Samel, Said Ahmad Saleh and Bashir Tarin – were accosted at gunpoint by three men as they left a friend's apartment building. The victims[^1] variously described the Spanish man as having one or two firearms: a shotgun or a shotgun and a handgun. They said the Spanish man demanded money.

[9] The Spanish man directed the victims to move, one at a time, to an outdoor stairwell which led to a basement parking area. Mr. Alomi testified that he was taken to the stairwell by the appellant. The Spanish man pointed a shotgun at Mr. Alomi’s head and demanded that he take out his wallet.

[10] One of the victims, Mr. Saleh, was not taken to the stairwell. He said the robbers took $40 from his pockets, and then told him he was free to leave. Soon after leaving, he called 911.

[11] The remaining four victims were walked to a Scotiabank and then forced, one by one, to withdraw money from a bank machine. Mr. Alomi mistakenly identified the bank as the CIBC. He testified that he was escorted to the bank machine by the appellant. Mr. Alomi claimed that, on the way, the appellant told him he looked familiar and asked, “Are you Afghan?” Mr. Alomi responded, “No, I never seen you before.” They entered the bank, but Mr. Alomi had no money in his account. Mr. Alomi said they were gone for between five and 15 minutes before walking back to the others.

[12] According to Mr. Pobal, after all the victims had been taken to the bank, the Spanish man took him to a location away from the other robbers and victims, pointed the shotgun at his face and pulled the trigger several times. The shotgun did not go off, but the Spanish man told Mr. Pobal that he would kill him if he contacted the police.

[13] According to Messrs. Pobal and Samel, the appellant was not near the attempted shooting. However, Mr. Samel testified that the appellant later told the victims, “We can’t let you go. What if you guys tell the cops? We’re gonna have to shoot you.” The appellant collected the victims’ cell phones and threw them a short distance away. Soon after this, the robbers fled.

(2) The Second Incident

[14] The second incident happened on October 24, 2006, at the same apartment complex as the site of the first incident. Three of the five victims involved in the earlier robbery – Messrs. Pobal, Alomi and Saleh – were accosted along with at least two other victims, Farid Abdali and Hamid Musafer.[^2] The three victims of the earlier robbery recognized the white man from the prior incident as they were going downstairs. They ran upstairs with their companions to their friend’s apartment. Their friend called the police but did not let them in. The robbers came upstairs. They were comprised of: a tall black man wearing a mask and carrying some sort of stick (this robber was described as being as tall as 6’ 7”); one or two other black men and the white man from the earlier robbery. According to some of the victims, during the course of events, the white man either revealed a handgun in the waistband of his pants or carried it in his hand and said his name was “Mike”. Although the white man told the victims at one point that they were free to go, the tall black man wearing a mask and carrying a stick demanded and obtained money. The assailants fled when they apparently received word that the police were on their way. At least two of the victims said the white man was wearing something on his head – a hat or a head covering called a “do-rag”.

[15] As for the appellant’s alleged involvement in the second incident, Messrs. Pobal and Alomi testified that they saw him enter the hallway and that he asked "Who snitched?" According to Mr. Abdali, the appellant stuck his head through the hallway door and yelled, “Who’s snitching? who’s snitching?”, and then fled with the others. Mr. Saleh testified that the appellant was just standing in the hallway during the incident; the appellant did not say anything to him.

[16] Soon after the incident in the hallway, two police officers approached the apartment complex. They spotted four men huddled together at the side of the building: two white men, one black man and one black or brown man. One of the police officers testified that he saw the four men passing things to each other; the other police officer testified that he heard one of the four men say, “Give me the money.”

[17] The two police officers arrested the appellant and one other man, Dexter Gourgouvelis, on the spot. The other two men, Michael Chamberlin and Samir Muhamed, fled, but were chased and eventually apprehended by police. No surveillance video evidence was uncovered for either robbery and none of the four men arrested had a weapon, a mask or anything else to connect them with either robbery. However, according to the police evidence, at the time of his arrest, Chamberlin was wearing a white do-rag.

[18] The police officers who chased Chamberlin and Muhamed lost sight of them briefly during the pursuit each time the two suspects turned a corner. After retracing their steps from the chase two or three times, the officers discovered a silver handgun and the broken shaft of a golf club in a nest-like area where five trees were growing out of the same spot. One of the pursuit officers explained that because a gun had been seen during the robbery, the officers thought “it had to be somewhere along that path, tossed at either of the one, two split-second strides that we didn’t see them.” However, the pursuit officer also described the chase as a “dead sprint” and claimed the individuals they arrested had to be the same individuals who they began chasing because the timeframe during which the officers lost sight of the suspects was “a matter of one stride in mid-sprint.” Although the officer said he did not see either of the suspects making any hand motions toward the tree, he explained that he came around a turn just as the suspects were at, or past, the tree where the gun and golf club shaft were found.

[19] Upon his arrest, the appellant was wearing a leather camouflage-coloured jacket and a Baltimore Orioles baseball cap with a bright orange brim and a bird logo on the front of the hat. At the time, he was 20 years old. He was described by one police officer as having a light brown complexion, black hair, a short afro hairstyle, a moustache and as being 5’8” in height. His police line-up photograph portrays a moustache and a goatee.

(3) The Photographic Line-up Identifications

[20] On November 1, 2006, two police officers conducted photographic line-ups in relation to the October 7, 2006, incident with four of the victims. Three of the victims who participated were accosted during both robberies (Messrs. Pobal, Alomi and Saleh); the fourth was a victim of the October 7, 2006, robbery only (Mr. Samel). One of the police officers conducting the line-ups was the investigating officer for the October 7, 2006 incident. Accordingly, he knew which photograph depicted the appellant. Indeed, because the investigating officer had only generic descriptions of the perpetrators of the October 7, 2006 robbery and because he knew the two incidents included common victims, he used the photographs of the four men arrested on October 24, 2006, to create four photographic line-ups, one in relation to each suspect. On November 1, 2006, the two police officers interviewed each of the four victims individually and, as part of that process, showed each victim the four photographic line-ups.

[21] All four victims selected the photograph of the appellant as being the black robber and the photograph of Michael Chamberlin as being the white robber. None of the four victims positively identified any other suspect.

[22] DVDs of the photographic line-up procedure conducted with each victim were entered as exhibits at trial. The Crown played for the jury the part of each DVD relating to each of the four victims’ selection of the appellant. It is unclear from the record whether the jury received the whole of each DVD for their deliberations.

[23] The DVDs demonstrate that three of the four victims went through the photographic array in which the appellant’s photograph appeared sequentially and selected his photograph essentially when they came to it. The fourth victim, Mr. Samel, reviewed all the photographs before selecting the appellant’s photograph.

[24] Although it is unclear whether the jury received the balance of each DVD, the DVDs show that Mr. Samel also reviewed all the photographs in the array in which Mr. Chamberlin’s picture appeared before selecting his photograph. Mr. Alomi initially selected a photograph in a different array as being the white robber. However, Mr. Alomi eventually identified Chamberlin’s photograph as depicting the white perpetrator and said he had been mistaken in his earlier selection.

(4) The Victims’ Evidence at Trial

[25] Five of the victims testified at trial (Messrs. Pobal, Alomi, and Saleh – all victims of both robberies; Mr. Samel – a victim of the first robbery only; and Mr. Abdali – a victim of the second robbery only). All made in-dock identifications of the appellant as a black person involved in the robbery or robberies of which they were a victim. None of the victims was able to provide more than a generic description of the black perpetrator they identified as the appellant or his clothing – in particular, none identified that perpetrator as having facial hair or distinctive clothing. Further, the victims’ descriptions of the height of that perpetrator varied significantly.

[26] Mr. Pobal described the robber involved in the October 7, 2006 incident that he identified as the appellant as: a black male; around Mr. Pobal’s height (5’8”), but probably a couple of inches shorter; skinny; around 17 or 18 years old and wearing baggy clothing. He said the appellant looked the same at the time of the second incident on October 24, 2006. In cross-examination, Mr. Pobal claimed he could identify the appellant because he remembered his face and his skin colour. However, he acknowledged he did not recall details such as facial hair. When asked in-chief what he remembered about the appellant’s skin colour on October 7, 2006, he responded, “[h]e looked black to me that day.”

[27] Mr. Alomi described the third perpetrator involved in the October 7, 2006, robbery as: a black male; around 6’ tall, between 19 and 20 years old; “not too skinny, not too fat”; wearing dark-coloured clothing – a big baggy jacket, like a hoodie, baggy pants and a hat. He described the October 24, 2006, perpetrator he identified as the appellant as: a black male; wearing a dark baggy jacket and dark baggy pants and as being taller than he is (Mr. Alomi said he is 5’10” or 5’11” tall).

[28] Mr. Saleh described the black perpetrator involved in the October 7, 2006 robbery as: a skinny black male; approximately 5’8” or 5’9” tall; around 19-20 years old; wearing a dark blue or black jacket and a hat that was also dark blue or black. He was unable to remember anything about what the black perpetrator was wearing on October 24, 2006.

[29] Mr. Samel described the black perpetrator involved in the October 7, 2006, robbery as: a black male around 5’9” or 5’10” tall; about 18 or 19 years old and wearing dark-coloured clothing.

[30] Mr. Abdali described the October 24, 2006 robber he identified as the appellant as: about his (Mr. Abdali’s) height (5’5” or 5’6” tall), age (18 at the time of the incident) and skin colour (light brown), and as having curly hair.

[31] Some victims identified the gun recovered after the October 24, 2006, police chase as resembling the handgun used in one or both robberies.

(5) The Defence Evidence

[32] The appellant did not testify at trial. His sister testified and explained that she lived in the apartment complex where the incidents took place. She said that the appellant visited her two or three times a month, often looking after her children and playing basketball in the center court of the apartment complex. The appellant’s visits were at various times of the day, and he sometimes stayed overnight.

C. Analysis

(1) Were the guilty verdicts unreasonable?

[33] The appellant submits that the identification evidence was incapable of supporting a conviction, essentially for four reasons.

[34] First, the victims’ descriptions of the black perpetrator alleged to be the appellant were vague and generic. Significantly, apart from general comments such as remembering the perpetrator’s face, none of the victims was able to provide an explanation of how he identified the appellant that could be tested by reference to the appellant’s features.

[35] Second, in their evidence, the victims acknowledged making efforts to avoid looking directly at the perpetrators and claimed to have focused more on the robber with the gun (who was not the appellant).

[36] Third, none of the victims described the perpetrator as having the distinguishing features possessed by the appellant – his facial hair and the distinctive clothing he was wearing at the time of his arrest, particularly a camouflage-coloured leather jacket and a bright orange-brimmed baseball cap. Further, Mr. Alomi, who spent the most time with the black perpetrator identified as the appellant, testified that that individual was taller than he is, while, in fact, Mr. Alomi is 5’10” - 5’11” tall and the appellant is 5’8” tall. The appellant says that these features of the evidence point away from him as being a perpetrator.

[37] Fourth, the appellant claims that the procedure used in conducting the photographic line-up was flawed. He points to the fact that the investigating officer knew that both the appellant and Chamberlin were suspects and knew which photographs portrayed them. Further, rather than being presented with the photographs sequentially, the victims were permitted to go through the photographs and compare them. In the report generated following The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001) [Sophonow Inquiry], both factors were identified as shortcomings in line-up procedures (see also R. v. Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3, at paras. 23 and 25).

[38] In addition to relying on these alleged frailties in the identification evidence, the appellant argues that the circumstantial evidence and various logical inferences arising from the circumstantial evidence pointed away from him as being a perpetrator:

• the group of robbers inside the apartment building on October 24, 2006, was made up of one white man and three black men. The group arrested outside the building was made up of two white men (Chamberlin and Gourgouvelis), a black man (the appellant), and a “black or brown” man (Muhamed);

• the robbers had with them a handgun, a long metal rod or pole and a mask. The group that was arrested had none of these items;

• it is illogical that the robbers, knowing that the police were coming, would stop just outside the building;

• it was unlikely that Muhamed could be carrying something as long as a golf club shaft while being chased by the police without the police seeing anything in his hands;

• it was unlikely that Chamberlin could throw away a gun while being chased by the police without the police noticing; and

• it was unlikely that Chamberlin and Muhamed could have discarded the gun and golf club shaft while being chased by the police so that the items landed together in a perfect hiding spot in a cluster of trees, all without the police noticing.

[39] I would not accept the appellant’s submission that the guilty verdicts were unreasonable.

[40] Although this was an eyewitness identification case, the Crown's case did not rest solely on eyewitness identification evidence. On my review of the record, there was sufficient evidence to support the appellant’s convictions on all charges. That evidence included:

• the photographic line-up identifications made by four of the victims of both the appellant and Michael Chamberlin;

• the fact that the four witnesses who made pre-trial identifications of the appellant were victims of the October 7, 2006 robbery, during which they were in the presence of the black perpetrator they identified as the appellant for a considerable length of time;

• the fact that the appellant and a Caucasian male named Michael Chamberlin were arrested in close proximity to the crime scene within minutes of the October 24, 2006 incident during which a white perpetrator identified himself as “Mike”;

• the testimony of at least two of the victims that the white perpetrator of the October 24, 2006 incident was wearing a “do-rag” and the police evidence that Chamberlin was wearing a white do-rag at the time of his arrest;

• the testimony of the police officers who first spotted the four men huddled outside the apartment complex that the four men were passing things to each other and one of the men said, “Give me the money”; and

• the police evidence that they recovered a handgun along the flight path of the two perpetrators who fled on October 24, 2006, and the evidence of some of the victims that the handgun recovered by the police resembled the handgun used in both robberies.

[41] In reaching my conclusion, I have considered the fact that the photographic line-up procedure adopted by the police in this case was imperfect. However, the photographic line-up identifications of the appellant were recorded on DVDs, which were available for the jury’s consideration. Further, although the appellant relied on the fact that the investigating officer participated in the line-up procedure, he did not suggest that the DVD evidence of that procedure reveals any conduct by the investigating officer that was anything other than neutral. Similarly, the appellant did not argue that the manner of presenting the photographs to the victims deprived their pre-trial identifications of any probative value. I note as well that, albeit important “tools to avoid wrongful convictions arising from faulty eyewitness identification”, the Sophonow Inquiry recommendations are “neither conditions precedent to the admissibility of eyewitness testimony nor binding legal dictates for the assignment of weight”: R. v. Pelletier, 2012 ONCA 566, 291 C.C.C. (3d) 279, at para. 94.

[42] Concerning the circumstantial evidence relied on by the appellant, it was not incumbent on the jury to accept any of the inferences the appellant advances. On the contrary, the Crown relied on competing inferences arising from much of the same evidence, together with the evidence of the two police officers about what the group of four men outside the apartment complex were saying and doing on October 24, 2006, when they were first spotted by the police, to support its theory that the appellant was one of the perpetrators.

[43] Having regard to the totality of the evidence presented at trial, in my view, the guilty verdicts were not unreasonable.

(2) Did the trial judge err in his instructions to the jury concerning the identification evidence?

[44] The second issue raised by the appellant concerns the adequacy of the trial judge's instructions to the jury addressing the dangers of eyewitness identification evidence. In essence, the appellant argues that, although the trial judge provided the jury with standard cautions relating to the dangers associated with eyewitness identification evidence and concerning the risks of relying on the apparent honesty of the witnesses, he failed to warn the jury adequately about the specific frailties in the eyewitness identification evidence that were present in this case, and which the appellant relied on as part of his unreasonable verdict argument. In addition, the trial judge failed to provide the jury with any instructions concerning the value of in-dock identifications. The appellant submits that the cumulative effect of these deficiencies in the trial judge’s instructions constitutes reversible error and requires a new trial.

[45] The Crown does not dispute that the appellant has identified various deficiencies in the trial judge’s instructions relating to eyewitness identification evidence. However, the Crown submits that because its case did not rest solely on eyewitness identification evidence, the trial judge was entitled to considerable latitude in determining the nature of the cautions to be given and that, in all the circumstances, the trial judge’s instructions were adequate.

[46] For reasons that I will explain, I would accept the appellant’s submissions.

[47] In R. v. Jack, 2013 ONCA 80, 294 C.C.C. (3d) 163, at paras. 12-17, Epstein J.A. provides a useful summary of the applicable legal principles governing jury instructions relating to eyewitness identification evidence:

The jurisprudence is replete with guidance about how the jury should be instructed in cases where identity is the issue and where, as here, the Crown's ability to satisfy the jury that it was the accused who committed the crime depends on eyewitness identification.

The dangers inherent in eyewitness identification evidence and the risk of a miscarriage of justice through wrongful conviction have been the subject of much comment. Such evidence, being notoriously unreliable, calls for considerable caution by a trier of fact.

It is essential to recognize that it is generally the reliability, not the credibility, of the eyewitness' identification that must be established. The danger is an honest but inaccurate identification.

The jury must be instructed to take into account the frailties of eyewitness identification as they consider the evidence relating to the following areas of inquiry. Was the suspect known to the witness? What were the circumstances of the contact during the commission of the crime including whether the opportunity to see the suspect was lengthy or fleeting? Was the sighting by the witness in circumstances of stress?

As well, the jury must be instructed to carefully scrutinize the witnesses' description of the assailant. Was it generic and vague, or was it a detailed description that includes reference to distinctive features of the suspect? In some cases, a failure to mention distinctive characteristics of a suspect is sufficiently important, especially where there is no other inculpatory evidence, to reduce the case from one of identification effectively to one of no identification.

Finally, the charge must caution the jury that an in-dock or in-court identification is to be given negligible, if any, weight. [Citations omitted, emphasis in original.]

[48] I am mindful of the fact that, unlike the present case, Jack was a situation in which the Crown’s case depended solely on eyewitness identification evidence.

[49] Moreover, I agree with the Crown’s submission that where the Crown’s case does not depend solely on eyewitness identification evidence, but also includes other evidence implicating the accused, trial judges are to be given considerable latitude in determining the nature of the caution about eyewitness identification evidence to be given to the jury. In some cases, a general warning as to the dangers of eyewitness identification evidence will suffice: R. v. Baltovich (2004), 2004 CanLII 45031 (ON CA), 73 O.R. (3d) 481 (C.A.), at para. 78.

[50] Nonetheless, where eyewitness identification evidence contains significant frailties, even in situations where there is other evidence implicating an accused, it may be incumbent on the trial judge to caution the jury as to those specific frailties and not rely on a general “boilerplate” instruction: R. v. Baltovich, at para. 78.

[51] In this case, the appellant has identified several important frailties in the eyewitness identification of the appellant as the black perpetrator in the first robbery and one of the black perpetrators in the second robbery to which I have already referred:

• the generic descriptions of the black perpetrator and his clothing provided by the eyewitnesses;

• the inability of any of the eyewitnesses to explain what features of the appellant led them to identify him as the perpetrator;

• the failure of any of the eyewitnesses to describe the perpetrator as having any of the distinguishing features possessed by the appellant at the time of his arrest (facial hair; distinctive hat and jacket);

• Mr. Alomi’s description of the perpetrator as being taller than he is, when, in fact, the appellant is shorter than he is.

[52] At para. 29 of Jack, Epstein J.A. observed that "eyewitness identification evidence has taught us to use discriminating scrutiny for badges of unreliability” and that “one such ‘badge’ is whether a witness' description of the suspect fails to include mention of a distinctive feature of the accused” [citations omitted]. She noted that, in that case, the caution provided by the trial judge:

simply advise[d] the jury to consider the impact of the evidence that the victims did not notice the appellant's distinctive features. It d[id] not caution them to take this factor into consideration together with the generic description they provided to the police in performing their critical analysis of assessing the reliability of the identification evidence upon which the Crown's case wholly depended.

[53] In this case, despite the presence of circumstantial evidence capable of supporting the victims’ identifications of the appellant, in my view, the circumstantial evidence was not so strong as to supplant the need for careful instructions concerning the frailties in the eyewitness identification evidence in order to ensure an accurate identification of the appellant as one of the perpetrators.

[54] The most compelling circumstantial evidence implicating the appellant was the fact that, on October 24, 2006, the appellant was arrested in the company of Michael Chamberlin who was wearing a white do-rag and who was also identified by four of the eyewitnesses as a perpetrator – shortly after a robbery in which a white perpetrator wearing a do-rag identified himself as “Mike” – combined with the evidence of the two police officers about what the four men arrested outside the apartment complex on October 24, 2006, were saying and doing when the officers first noticed them.

[55] In some cases, circumstantial evidence implicating an accused will be so strong that evidence of mere resemblance between an accused and a perpetrator will be enough to complete the circle of proof and strong cautions about specific frailties in eyewitness identification evidence may not be necessary. In my opinion, the circumstantial evidence in this case did not reach this threshold.

[56] Although compelling, the circumstantial evidence in this case did not eliminate the need for proper instructions highlighting the deficiencies in the eyewitness identification evidence where: the appellant and Chamberlin were found in the company of two other men not identified as perpetrators; there was no forensic evidence connecting any of the four men outside the apartment complex to the recent robbery; and where, unlike Chamberlin and one of the other men, the appellant did not attempt to flee.

[57] In these circumstances, in my view, the trial judge was required to not only provide the jury with standard cautions relating to the dangers of eyewitness identification evidence, but also to identify for the jury the specific frailties in the eyewitness identification evidence that existed in this case. If anything, rather than bringing home to the jury some of the frailties that existed, the trial judge’s instructions minimized them.

[58] As I have said, the trial judge gave the jury a standard caution concerning the dangers of eyewitness identification evidence as well as the risks of relying on the apparent honesty of eyewitnesses.

[59] The trial judge also identified for the jury various factors they should consider in evaluating the reliability of eyewitness identification evidence, including:

• the witnesses’ opportunity to view the perpetrator;

• the nature of the descriptions of the perpetrator provided by the witnesses and whether they were sufficient to stir recognition;

• whether the photographic line-up was conducted within a reasonable time following the incident;

• whether the photographs in the photographic line-up were selected fairly or made the accused person stand out;

• whether it was suggested that a perpetrator’s photograph was in the photographic line-up;

• whether the victims were told to identify someone in the photographic line-up; and

• the possibility that the victims remembered the appellant’s face because they had seen him previously in the neighborhood.

[60] Finally, the trial judge went on to review the evidence of each eyewitness identification witness. During that review, he mentioned some of the factors that could affect the reliability of each witness’s identification. For example, he referred to the various witnesses’ explanations for failing to notice facial hair. He also referred to Mr. Alomi’s evidence that the black perpetrator he identified as the appellant was taller than Mr. Alomi is.

[61] In my view, however, the trial judge’s instructions were not sufficient to bring home to the jury the specific frailties that existed in the eyewitness identification evidence in this case. As I have said, if anything the trial judge’s instructions diluted those frailties.

[62] For example, the trial judge instructed the jury to consider “what description was given of the suspect, especially any facial features that stirred recognition” and pointed out that the victims had provided only generic descriptions of the black perpetrator.

[63] However, the trial judge did not then identify the appellant’s facial hair or the distinctive clothing he was wearing when he was arrested as potentially distinguishing features in the appellant’s appearance at the time of the October 24, 2006 robbery. Rather than doing so, the trial judge gave the jury a somewhat confusing instruction to the effect that the absence of distinguishing features does not make an identification inaccurate. He said:

What description was given of the suspect, especially any facial features that may have stirred recognition?

On the first occasion when they spoke to the police, they just gave generic terms. There was a black man and a white man and no special features. When asked in the witness box and asked what are the special features of this accused, he said, “Well, nothing special about his eyes or his nose or his mouth.” So there was no distinguishing feature to point out. There is no scar that one might remember. Is there anything special about his face that would stand out? It may be that there is no distinguishing features, but that does not mean that the identification is not accurate. It is just the face that was in the memory of that person.

[64] An instruction of this type – namely, that an eyewitness’s failure to identify distinguishing features of an alleged perpetrator does not necessarily mean that the eyewitness’s identification evidence is inaccurate – may not be inappropriate where a trial judge has provided a strong caution about the frailty of such evidence and identified the distinguishing features of an accused person that an eyewitness could have observed.

[65] However, in this case, the trial judge failed to provide a strong caution about the failure of any of the victims to identify the appellant’s distinguishing features; he also failed to highlight those features for the jury. As a result, the trial judge’s overall instruction failed to properly convey the degree of caution to be exercised by the jury when assessing the eyewitness identification evidence. In addition, the trial judge made no reference, in his instructions on eyewitness identification evidence, to Mr. Alomi’s testimony that the black perpetrator he identified as the appellant was taller than he is or to the police evidence indicating that the appellant is, in fact, at least two inches shorter than Mr. Alomi.

[66] Given that Mr. Alomi spent the most time with the black perpetrator alleged to be the appellant, this discrepancy between Mr. Alomi’s description of the black perpetrator he identified as the appellant and the actual appearance of the appellant cannot be characterized as insignificant. It was therefore incumbent on the trial judge to alert the jury to the fact that, in assessing the reliability of the eyewitness identification evidence, they should consider any discrepancies between the eyewitnesses’ descriptions of a perpetrator and the actual appearance of the person identified as the perpetrator.

[67] The fact that the trial judge referred to Mr. Alomi’s evidence about the perpetrator’s height when summarizing his evidence, or that defence counsel referred to the issue in his closing, are not answers to this problem. A jury should be cautioned by the trial judge about the need to consider this type of discrepancy when considering the reliability of identification evidence.

[68] Further, although the trial judge told the jury that one of the inherent frailties of eyewitness identification evidence is the fact that mistaken identifications can be made by “witnesses who are honest and convinced, absolutely sure of their identification”, he may well have neutralized the effect of this warning when summarizing the eyewitness identification evidence.

[69] In particular, in his summaries of the evidence of four of the eyewitnesses, the trial judge repeated, without qualification, their testimonial assertions that they had correctly identified the appellant. For example, in his summary of Mr. Pobal’s evidence, the trial judge said, in part: “It was suggested to him by the defence that he is not certain that it was the accused. He said: “This particular person I remember 100%.”

[70] When the trial judge provided his initial caution to the jury about the honesty and certainty of eyewitness identification witnesses, he did not link that instruction to any particular evidence. By uncritically repeating evidence from four of the eyewitnesses asserting their certainty in their identifications, the trial judge may well have invited the jury to ignore his earlier warning.

[71] The trial judge also failed to caution the jury that in-dock identifications are generally to be afforded little weight (see R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at pp. 468-469, R. v. Pelletier, at para. 93). Moreover, when setting out the Crown’s position, he noted that the Crown relied on the fact that the appellant “was picked out of the line-up and visually in court”. Once again, the trial judge may have invited the jury to rely on evidence that was of no probative value. The potential for prejudice existed not only because of the combined impact of five in-dock identifications, but also because Mr. Abdali did not make a pre-trial identification of the appellant. His evidence, in particular, should have been the subject of a forceful in-dock identification caution: see R. v. Tebo (2003), 2003 CanLII 43106 (ON CA), 175 C.C.C. (3d) 116, at para. 20.

[72] Finally, although the trial judge gave the jury some instructions about how to evaluate the photographic line-up identification evidence, he did not refer to the importance of the eyewitnesses reviewing the photographic line-up sequentially, without taking the opportunity to compare photographs. He therefore did not provide the jury with all the tools necessary to properly evaluate that evidence. The fact that witnesses may have been cross-examined about that issue, or that defence counsel may have referred the jury to that factor, does not overcome the need for a judicial instruction where the need for caution arises, at least in part, as a matter of judicial experience and not solely as a matter of common sense.

[73] Having regard to all the circumstances, I would accept the appellant’s submission that the cumulative effect of these errors in the trial judge’s instructions amounts to reversible error and requires a new trial. As I have said, although there was evidence in this case in addition to the eyewitness identification evidence capable of implicating the appellant in the two sets of offences, in my view, that evidence was not so strong as to supplant the need for careful instructions on the specific deficiencies that existed in the eyewitness identification evidence.

D. Disposition

[74] Based on the foregoing reasons, I would allow the appeal, set aside the appellant’s convictions and order a new trial.

Released:

“SEP 11 2013” “Janet Simmons J.A.”

“EAC ” “I agree E.A. Cronk J.A.”

“I agree E.E. Gillese J.A.”

[^1]: Mr. Tarin did not testify at trial and the trial judge instructed the jury to acquit the appellant on the charges that related specifically to Mr. Tarin. [^2]: Mr. Musafer did not testify at trial. Mr. Pobal identified Mr. Musafer as one of the persons present during the October 24, 2006 incident. The victims of the second incident who testified were somewhat uncertain about exactly who was present during the second incident.