Court of Appeal for Ontario

Citation: R. v. Olliffe, 2015 ONCA 242

Date: 2015-04-13

Docket: C57003

Before: Hoy A.C.J.O., Epstein and Hourigan JJ.A.

Between:

Her Majesty the Queen

Respondent

and

Sean Olliffe

Appellant

Counsel: Stephen Proudlove and Erika Chozik, for the appellant Michael Perlin, for the respondent

Heard: November 3, 2014

On appeal from the conviction entered on December 21, 2012 by Justice David M. Stone of the Ontario Court of Justice, sitting without a jury.

Hourigan J.A.:

Introduction

[1] The appellant was convicted following a judge-alone trial of four counts of armed robbery, four counts of having his face masked with intent to commit an indictable offence, and one count of carrying a concealed weapon for the purpose of committing an indictable offence.

[2] The charges relate to four robberies of Tim Hortons restaurants in Oshawa in March and April 2012. The primary issue at trial was identity.

[3] The appellant submits that the trial judge erred by accepting flawed identification evidence without exercising the required caution. Further, the appellant argues the verdicts are unreasonable as the evidence could not support conviction.

[4] For the following reasons, I conclude the trial judge erred in law in his consideration of the identification evidence and that the verdicts were unreasonable. I would allow the appeal, set aside the convictions and enter acquittals on all counts.

Facts

[5] The first robbery occurred on March 11, 2012 at the Tim Hortons located at 338 King Street West in Oshawa. A man wearing sunglasses entered the store at approximately 3:40 a.m. After ordering a donut, the man demanded $100 and told the employee at the till, Adibah Sitara, that he had a knife. He extended a disposable Tim Hortons cup toward Ms. Sitara and she placed five or six $20 bills inside. He then asked for more money and Ms. Sitara added four or five $20 bills to the cup.

[6] Ms. Sitara testified that the man’s face was partially covered by a piece of cloth and that he had a blond coloured moustache. She described him as 5′3″ to 5′5″ with a medium build and said he looked at least 30 years old. She stated that he was wearing a jean jacket.

[7] The second robbery occurred on March 14, 2012. Melanie Walker, a midnight supervisor at the Tim Hortons located at 146 Bloor Street East in Oshawa, testified that at some point between 2:00 and 3:00 a.m. a man walked into the store, handed her a white travel mug and told her to put money in the mug. The man told her that he had a knife, although she did not see a knife. Ms. Walker put $60 or $80 in the mug.

[8] Ms. Walker described the robber as wearing sunglasses and a black jacket with a black hoodie or sweater underneath. He was also wearing blue latex gloves. According to Ms. Walker, the man was not masked. She said that he was a white male in his late twenties. Ms. Walker noticed that he had brown hair and a brown moustache or a goatee. She described him as being 5′4″ or shorter. Because his clothes were bulky she could not determine his build. She did not notice any scars or marks on his face.

[9] The third robbery took place on March 20, 2012 at the Tim Hortons located at 1251 Simcoe Street North in Oshawa. A man approached the front counter and demanded that the cashier, Tyler Ballinger, fill a plastic Tim Hortons mug with $20 bills. Mr. Ballinger had difficulty opening the till, so he called over his supervisor, Karen Deward. Ms. Deward opened the till and filed the cup with $20 bills and one $50 bill.

[10] According to Mr. Ballinger, the robber was wearing a black mask that went from the bridge of his nose across the top of his eyes and behind his head. He was also wearing black sunglasses with round lenses and a hoodie, with the hood pulled over his head. Mr. Ballinger testified that the robber was wearing loose-fitting blue vinyl gloves.

[11] Mr. Ballinger noticed what appeared to be acne marks or scars on the man’s face. Mr. Ballinger said that the robber’s height was between 5′6″ and 5′7″. He estimated the perpetrator’s age to be between 40 and 50. Subsequent to the appellant’s arrest, Mr. Ballinger was asked by police to identify the robber from a photograph line-up. He was unable to do so. In fact, he replied “No” to photograph number five, which was a photograph of the appellant.

[12] Ms. Deward testified that the robber was wearing a black coat or hoodie, a black bandana that covered the lower part of his face including his nose, black sunglasses and blue latex gloves. She could not observe any part of his face, other than a small portion of skin under his sunglasses. At trial she testified that she could not tell his age. She said that he was one to three inches taller than her height of 5′5″.

[13] The fourth robbery occurred on April 13, 2012 between 4:00 and 4:15 a.m. at the same Tim Hortons as the first robbery. Ms. Sitara was once again working the midnight shift.

[14] A man entered the store, placed a refillable cup before Ms. Sitara, asked for money and said that he had a knife. Ms. Sitara told him that she could not open the till and he replied that he knew that she could. Ms. Sitara ran to the back of the store and told the baker, Steven McSwain, what was happening. She said she did not want to go back out front. Mr. McSwain went to the front of the store, opened the till and gave the robber its contents.

[15] Another employee, Michelle Lockyer, was in the back room with Mr. McSwain. She only saw the robber for approximately 10 to 15 seconds.

[16] Outside the restaurant, Jordan Hill was sitting in a car with friends. He noticed a man pull a bandana over his face and enter the Tim Hortons. Mr. Hill took particular notice of the man as he left because he believed the restaurant was being robbed and that the man leaving the building was the robber.

[17] The witnesses to the fourth robbery provided differing descriptions of the perpetrator. According to Ms. Sitara, the man wore dark sunglasses and his face was partially covered. She believed he was wearing socks on his hands and described him as being white. Ms. Sitara could not say for certain if he was the same person who committed the first robbery, but she believed that he was the same height and build. She could not see his facial hair or the hair on his head. The only thing she recalled about his clothing was that he was wearing a light coloured jacket.

[18] Ms. Lockyer testified that the man wore dark sunglasses, a dark jacket, a hat that covered his hair and a fabric mask that covered his face below his nose. She described him as being a white male of average height and build, and specified that he was either taller or the same height as her, which is about 5′7″.

[19] Mr. McSwain described the robber as being between 5′7″ and 5′10″ with a medium or heavy-set build. He was white and had a big nose. According to Mr. McSwain, the robber wore a dark coloured jacket or vest and had light coloured socks on his hands. A light coloured rag or bandana covered his face from under his eyes to midway on his nose. He might have being wearing sunglasses and no facial hair was visible. Mr. McSwain did not notice any pockmarks or scarring.

[20] Mr. Hill, who was 20 to 30 yards away when he first observed the robber, described the man as bulky and 6′0″ or taller. He was wearing a black hoodie, jeans, white gloves and a black bandana around his neck. Mr. Hill described the robber as white with a beard or goatee, side burns and a moustache. As the man left the store, Mr. Hill could see the back of his head. Mr. Hill was 99 percent sure that the man had short hair. He also noted that the man was wearing black sunglasses, which he believed were Oakley brand.

[21] After the robberies, a black and white wanted poster was produced by the police. The poster included five photographs taken from surveillance footage of the robberies. Photographs one and three, located on the top row of the poster, came from the second robbery. Photograph two came from the first robbery and photographs four and five, located on the bottom row of the poster, came from the third robbery.

[22] Susan Hiscock, an employee of Tim Hortons and a former romantic partner of the appellant, saw the poster in her workplace lunchroom. Ms. Hiscock and the appellant had lived together for several months over two separate periods of time. They broke up about three years before the robberies occurred. She had last seen the appellant in a store in March 2012, but they did not acknowledge each other.

[23] Ms. Hiscock testified that, based on the sunglasses, the goatee, the way the man stood and the jacket, which she said was the kind her former boyfriend often wore, she immediately recognized the man in photograph one on the poster as the appellant. She testified that the appellant always wore sunglasses, even at night. In photograph two she said that she recognized the appellant’s bandana. She also noticed the blue jean jacket, similar to one the appellant often wore. In photograph three she recognized the appellant’s stance because, due to a previous injury, one of his arms is curved. She also recognized his long and pointy shoes. Ms. Hiscock testified that the appellant always had with him taupe or beige rubber gloves of the type used in restaurants. She used photograph three to confirm her identification of the appellant in photograph one. At trial, Ms. Hiscock was presented with a colour version of the same black and white poster she had seen in the Tim Hortons lunchroom.

[24] In cross-examination, Ms. Hiscock admitted that she did not actually recognize the clothing items in the photographs. Rather, she explained that these items were the kind of clothes that the appellant sometimes wore. She also admitted that there was nothing in photographs one and three that would allow her to draw any conclusions about the shape of the man’s arm.

[25] Ms. Hiscock stated in cross-examination that that there were no particular identifying features on the face in the photographs that would allow her to identify the appellant; she said she just knew his face. She admitted that her identification was tied to the fact that the robberies occurred in Oshawa:

Q. You know it’s in Oshawa. I mean if you saw these same pictures coming from a robbery in Calgary, you wouldn’t look at them and go, “Hey that’s my ex boyfriend Sean Olliffe”…

A. Probably not, no.

[26] Ms. Hiscock contacted Crime Stoppers. The appellant was arrested. The police conducted a search of the appellant’s residence pursuant to a warrant and seized, among other things, a pair of blue hospital gloves, a jean jacket, several pairs of dark shoes, a pair of Adidas running shoes and several pairs of sunglasses. Two black bandanas were found on him.

Decision of the Trial Judge

[27] At trial, the appellant brought an application under s. 8 of the Charter to exclude the evidence seized in the search of his residence. The Crown brought a similar fact evidence application with respect to each of the robberies.

[28] In considering the s. 8 application and whether the police had reasonable and probable grounds to obtain the search warrant, the trial judge assessed the identification evidence of Ms. Hiscock. He noted that a distinction should be drawn between cases of identification by strangers and cases of recognition. The trial judge found that given the previous romantic relationship between the appellant and Ms. Hiscock and the fact they had lived together for several months on two different occasions, this was a case of recognition.

[29] The trial judge concluded that it was open to the justice who issued the warrant to find that a recognition had occurred. The trial judge dismissed the s. 8 application and granted the similar fact evidence application.

[30] The trial judge found that the evidence from the eyewitnesses and the surveillance videos, as well as his own observations in court, were not sufficient to establish the identity of the robber:

First, the evidence of each and all of the victims of the four robberies and the videos of those robberies, together with my own observations of Mr. Olliffe in court, do not themselves prove that Mr. Olliffe was the robber in any of the robberies on a balance of probabilities, let alone beyond a reasonable doubt. None of those witnesses purported to identify him, and I certainly cannot.

[31] The trial judge then went on to consider the identification evidence of Ms. Hiscock:

Ms. Hiscock’s identification process involved the following: She had only seen Mr. Olliffe once in three years. Of course, we know that she had lived with him on two occasions before that. She had known him for some 12 years. She did not have the benefit of seeing the robber or robbers in the flesh in 3-D, as in three dimensions. She saw two-dimensional photographs. They were black and white photographs, not natural colours such as we see in Exhibit 6 as filed. Those photographs, while basically clear, were not of portrait quality or extremely sharp focus. A factor in Ms. Hiscock’s mind would have been that all of the photos in the poster were of the same person. Photographs one and three were frontal photographs, while photograph two was in profile. However, according to her clear unshaken evidence, her recognition was immediate and firm, so that within seconds she was calling Crime Stoppers. She said she saw the goatee, shape of the face, stance, and the style and choice of clothing.

[32] Ultimately, the trial judge concluded that Ms. Hiscock’s identification evidence was reliable:

In the end Ms. Hiscock’s evidence of recognition showed she was alive to the danger of making a mistake, and originally described her certainty, as I say, as a nine on a scale of ten. However, after full examination and cross-examination, her evidence was that the photographs were of Mr. Olliffe. When Mr. Olliffe was arrested and his residence searched clothing, bandanas, and sunglasses consistent with those worn by the robber on March 14 were located, as with March 11. This clothing was not really unusual and certainly not unique, but the findings show that Mr. Olliffe had access to clothing that would make him look like the robber. This evidence only supports and does not contradict Ms. Hiscock. By itself, of course, it would not be proof beyond a reasonable doubt, but it does supply some support. I recognize that no travel mugs were found in the search of Mr. Olliffe’s residence.

[33] Based on this evidence, the trial judge concluded that Mr. Olliffe was the robber on March 11 and March 14, 2012, and convicted him of all counts related to those robberies. Relying on the similar fact evidence, the trial judge convicted the appellant of all remaining charges.

Positions of the Parties

[34] The appellant submits that the trial judge erred in failing to properly caution himself on the inherent unreliability of identification evidence. In particular, he failed to caution himself about the fallacy of mistaking certainty for accuracy. Moreover, the trial judge failed to advert to and properly scrutinize the specific frailties disclosed by the evidence. The appellant further submits that the verdict was unreasonable.

[35] The Crown takes the position that the trial judge exercised sufficient caution in considering Ms. Hiscock’s evidence and carefully considered factors bearing on both her credibility and reliability. Further, the identification evidence suffers from none of the telltale frailties that would be cause for concern and fully supports the verdict.

Analysis

[36] The inherent frailties in identification evidence are well known and have been the subject of considerable judicial comment and review in social science literature.

[37] The focus of the concern is not the credibility of the witness providing the identification evidence; rather, it is the reliability of the evidence and the potential for it to be given undue weight. Identification evidence is often deceptively reliable because it comes from credible and convincing witnesses. Triers of fact place undue reliance on such testimony in comparison to other types of evidence. Our courts recognize that they must vigilantly guard against convicting based on honest and convincing, but mistaken, eyewitness identification: R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 75 O.R. (2d) 463 (C.A.), at p. 465; R. v. Goran, 2008 ONCA 195, at para. 33.

[38] Triers of fact are entitled to take into account whether the witness is acquainted with the accused when assessing the reliability of the identification evidence. Where a witness is known to the accused, the testimony identifying the accused is sometimes referred to as recognition evidence.

[39] The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence: R. v. Spatola, 1970 CanLII 390 (ON CA), [1970] 3 O.R. 74 (C.A.), at p. 82; R. v. Turnbull, [1977] Q.B. 224 (Eng. C.A.), at pp. 228-229.

[40] In the context of jury trials, courts in this province have consistently ruled that the jury must be warned of the frailties of eyewitness identification even in cases of recognition evidence: R. v. Curran, 2004 CanLII 10434 (Ont. C.A.), at para. 26; R. v. Miller (1998), 1998 CanLII 5115 (ON CA), 131 C.C.C. (3d) 141 (Ont. C.A.), at pp. 150-151; R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 42.

[41] Here, the trial judge first found that the conflicting evidence of the eyewitnesses was incapable of identifying the appellant as the robber. He then focussed on the evidence of Ms. Hiscock, which he found to be “powerful”. The trial judge appeared to be impressed that Ms. Hiscock immediately called Crime Stoppers when she saw the poster and, despite cross-examination, maintained her position that photographs one through three were of the appellant.

[42] However, what the trial judge failed to do is critically analyze the problematic aspects of Ms. Hiscock’s evidence. In particular, he never considered significant admissions in her cross-examination. For example, nowhere in the trial judge’s reasons is there reference to Ms. Hiscock’s admission that had she been told that the photographs were taken during robberies in Calgary, she would not have identified the man on the poster as the appellant. Similarly, the trial judge failed to consider Ms. Hiscock’s admission that she was unable to identify anything distinctive in the face in the photographs that would allow her to identify the appellant. Nor was there reference to her admission that she had not identified any particular piece of clothing in the photographs as belonging to the appellant but simply believed that the clothing was similar to what the appellant often wore. Finally, on cross-examination Ms. Hiscock acknowledged that the photographs did not permit her to see whether the robber had the same distinctive curve in his arm that the appellant does.

[43] These were critical admissions that struck at the heart of the reliability of Ms. Hiscock’s evidence. The trial judge was required to approach Ms. Hiscock’s testimony with caution and grapple with the problems in her evidence to determine whether it was reliable. Nowhere in his reasons does the trial judge recognize these requirements. Instead, he fell into the trap of accepting Ms. Hiscock’s evidence as “powerful” based on her certainty and speed of recognition. Of course, it is often the very certainty with which impressive and credible witnesses give their eyewitness testimony that causes triers of fact to mistake confidence for accuracy: Goran, at para. 27.

[44] The trial judge compounded his error by accepting Ms. Hiscock’s evidence virtually in isolation. While he relied on the clothing and other evidence seized from the appellant as offering some support for Ms. Hiscock’s testimony, he failed to assess her evidence against the potentially exculpatory eyewitness evidence adduced at trial.

[45] For example, the evidence that Mr. Ballinger did not identify the appellant as the robber in the police photograph line-up was significant but was not considered by the trial judge. Mr. Ballinger explained that he based his assessment of the line-up photographs solely on face shape because the robber’s facial features had been largely hidden by a mask. Similarly, descriptions of the robber’s physical appearance and age by Ms. Walker, Ms. Sitara, Mr. McSwain and Mr. Hill that were clearly inconsistent with the appellant’s physical appearance and age also should have been considered. For example, Ms. Walker testified that the robber was in his late twenties and that she was “fairly certain” he was not in his late forties, like the appellant. Further, in cross-examination Mr. Hill was asked to look at the appellant’s hair and determine whether it matched the hair on the back of the robber’s head. Mr. Hill told the court he was certain the appellant’s hair did not match that of the robber.

[46] It was an error for the trial judge to simply dismiss the evidence of these witnesses as neutral and thereby exclude it from both his analysis of the reliability of Ms. Hiscock’s evidence and, more generally, the determination of whether the Crown had proven identification beyond a reasonable doubt. While the trial judge acknowledged that this witness evidence alone was insufficient to convict the appellant, he failed to assess Ms. Hiscock’s evidence in light of this potentially exculpatory evidence. The trial judge appears to have erroneously proceeded on the basis that because Ms. Hiscock’s evidence amounted to recognition evidence, he did not need to approach it with the same degree of caution.

[47] In my view, the trial judge erred in law in his consideration of the identification evidence. These errors went to the critical issue for determination at trial and justify appellate intervention.

[48] Turning to the alternative ground of appeal, to succeed on an unreasonable verdict claim, the appellant is required to establish that, on the record before the trial judge, no properly instructed trier of fact acting judicially could reasonably have convicted the appellant: R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 35 O.R. (3d) 641 (C.A.), at p. 673; R. v. F.A. (2004), 2004 CanLII 10491 (ON CA), 183 C.C.C. (3d) 518 (Ont. C.A.), at para. 35.

[49] The issue is not whether the appellate court would have convicted the appellant, but whether the evidence, viewed through the lens of judicial experience, was reasonably capable of supporting a finding of guilt: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 26-28.

[50] In my view, the appellant has met his onus on this ground of appeal as well. The eyewitness evidence did not support a finding of guilt. As noted above, some of the eyewitness evidence, which was effectively ignored by the trial judge, was exculpatory. The evidence of Ms. Hiscock was highly problematic and unreliable for the reasons set out earlier in this judgment. The evidence obtained from the search of the appellant and his residence was only marginally supportive of Ms. Hiscock’s evidence, as none of the seized clothing was positively identified as having been worn by the robber during the robberies.

[51] In my view, this evidentiary record, considered through the lens of judicial experience, including the well-established frailties of identification evidence, was not reasonably capable of supporting a finding of guilt. In effect, the trial judge chose to place near total reliance on the problematic evidence of Ms. Hiscock and ignored the exculpatory evidence.

Disposition

[52] The appellant has served his sentence. Based on the evidentiary record at trial, the convictions were unreasonable. There is no reason to believe that the evidentiary record at a new trial would be materially different. In these circumstances, I would order that the convictions be set aside and that acquittals be entered on all counts.

Released: April 13, 2015 “AH”

“C.W. Hourigan J.A.”

“I agree Alexandra Hoy A.C.J.O.”

“I agree Gloria Epstein J.A.”