COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2014 ONCA 336

DATE: 20140430

DOCKET: C57813

Weiler, Feldman and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lionel Williams

Appellant

Vincenzo Rondinelli, for the appellant

Marie Comiskey, for the respondent

Heard: April 23, 2014

On appeal from the conviction entered on May 22, 2013 by Justice L.A. Pattillo of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

Background facts

[1] The Toronto Drug Squad began an undercover investigation of William Tough in September 2009. In the course of the investigation, an undercover officer, D.C. Miranda, purchased cocaine from Mr. Tough on four separate occasions. The appellant, Lionel Williams, was charged as the back-end supplier of the cocaine for each of these four transactions.

Count 1:

[2] On September 6, 2009, D.C. Miranda drove Mr. Tough down Yonge Street. At one point, Mr. Tough left the vehicle and went to retrieve drugs from a black pickup truck. Officer Smith was driving nearby and observed a man get into the passenger seat of the truck. She described the suspect as a black male with cornrows, wearing baggy jeans and a red baseball cap. She could not provide a description of his height, weight, body type, facial features, or gait. She later identified him as the appellant. Detective Hart also gave a similar description. He later identified him as the appellant based on a photograph. A third officer, Officer McKenzie, also reported seeing a man in the truck, whom he later identified as the appellant, based on a photograph.

Count 2:

[3] On September 10, 2009, D.C. Miranda accompanied Mr. Tough to a park, where Mr. Tough received cocaine from a black male and provided it to D.C. Miranda. Officer Smith was part of the surveillance team. At the time she noted that he was wearing a shiny black doo rag on his head, dark blue jeans, and a long baggy white t-shirt. She did not note his height, weight, body type, facial features, or how he walked. It is not clear from her testimony whether, on September 10, she recognized the male she saw on September 10 as being the same man she saw on September 6. Four months later, in January, 2010, after being shown a photograph of the appellant, she identified the male she saw on both occasions as the appellant.

Count 3:

[4] On January 18, 2010, D.C. Miranda accompanied Mr. Tough to a plaza at Dufferin Street and Lawrence Avenue. Mr. Tough left the vehicle, met with a black male, and returned to the vehicle with cocaine. Three officers who were conducting surveillance – Officer Clark, D.C. Zamparo, and Officer McKenzie – had all seen a photo of the appellant at a police briefing earlier that day. Based on the photo, all three of them identified the appellant as the man they saw while they were conducting surveillance of the transaction with Mr. Tough.

Count 4:

[5] On January 22, 2010, D.C. Miranda went to Mr. Tough’s apartment and gave him money for cocaine. Detective Hart was conducting surveillance, and observed Mr. Tough go downstairs and conduct a transaction with a black male, whom Detective Hart identified as the appellant. The police arrested the appellant after he left the building. Mr. Tough was arrested in the apartment building when he returned upstairs with the cocaine.

[6] At trial, identity was an issue with respect to Counts 1-3. With respect to Count 4, the only issue was whether an act of trafficking occurred between the appellant and Mr. Tough. Identity was not an issue as the appellant was arrested that day.

[7] The appellant was acquitted by the jury on count 1 and convicted on counts 2, 3 and 4.

Issues on appeal

[8] The Crown concedes that the trial judge made an error in the jury charge by failing to warn the jury regarding the dangers associated with in-dock identification evidence. Three officers identified the appellant in-dock on a number of occasions. On that basis, the Crown concedes that the convictions on counts 2 and 3 must be set aside and a new trial ordered.

[9] The appellant submits that the convictions should be set aside as unreasonable verdicts and acquittals entered. He argues that identity was the key issue on counts 2 and 3, and that the evidence of the officers who purported to identify him was not sufficiently trustworthy to form the basis for a conviction. In particular, in the case of count 2, which occurred in September, 2009, Officer Smith was the only one who identified the appellant, and she only did so based on seeing his photograph four months later on January 18, 2010 in a briefing before the third cocaine buy. Although three officers identified the appellant on January 18 for the purpose of the third count, they all did so only based on seeing his photo at the briefing. None of the officers was able to point to any identifying feature of the appellant nor did their notes contain any indication of the basis for recognizing the appellant other than he looked like the photograph.

[10] The appellant submits that given the weakness and unreliability of the identification evidence, the convictions on counts 2 and 3 should be set aside as unreasonable verdicts.

[11] We do not agree. The trial judge charged the jury on the frailties and risks associated with identification evidence, especially when the identification is by a stranger. Had the jury been properly cautioned on the use of in-dock identification, the evidence was sufficient, if accepted by the jury, to base a conviction.

[12] The appellant also submits that the conviction on count 4 must be set aside as well, because although identification was not an issue on count 4, to the extent that the credibility and reliability of the officers’ testimony may have been affected by any misuse by the jury of the in-dock identification, that could undermine the reliability of the conviction on count 4.

[13] We do not agree. Identity was not an issue on count 4 because the appellant was under constant surveillance until his arrest. There is no basis to set aside his conviction on that count.

[14] The appellant has served his entire sentence. In those circumstances, Crown and defence counsel agreed in oral argument that if the court were to set aside the convictions on counts 2 and 3 and order a new trial, the appellant’s sentence on count 4 should be reduced to 12 months from 18 months.

[15] The appeal is allowed in part. The convictions on counts 2 and 3 are set aside and a new trial is ordered, if the Crown elects to proceed with a new trial on those counts, bearing in mind that the full original sentence has already been served.

“K.M. Weiler J.A.”

“K. Feldman J.A.”

“E.E. Gillese J.A.”