Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Shaun Hall

Trial Judgment

Before: Justice H. Borenstein

Heard: June 1, June 16, July 26, September 7, 2011 and February 27, 2012

Reasons for Judgment delivered: March 5, 2012

Counsel:

• Ms. B. Olesko for the Crown
• Ms. V. Tucci for Shaun Hall

Judgment

BORENSTEIN J.:

[1] Shaun Hall is charged with robbing a convenience store on the night of October 14, 2010 and a related charge of concealing his face during that robbery. The sole issue is identification.

[2] The only witness to testify was the victim of the robbery. No defence was called.

[3] A lone male armed with a knife walked into a convenience store wearing a hat and sunglasses. Mr. Emmanuel was working alone at the time. No one else was in the store.

[4] Mr. Emmanuel recognized the male as a customer who had been in the store approximately ten times over the previous year. Each of those visits was brief lasting only a few minutes with no discussion occurring other than what occurs incidental to paying for items at the cash. He knew the male usually bought juice and testified that the male usually bought John Player's cigarettes. The customer would sometimes come into the store with another customer named Johnny. Mr. Emmanuel testified that Johnny and the male were both standing outside the store together ten minutes before the robbery.

[5] The male selected a bag of chips and gum and went to the counter. Mr. Emmanuel placed a pack of John Player cigarettes on the counter even before the male got to the cash. The male got to the cash holding ten dollars. Mr. Emmanuel told him that that was not enough. The male put back the chips and suddenly came behind the counter and told Mr. Emmanuel not to move. The male produced a large kitchen knife from his jacket. Mr. Emmanuel was scared.

[6] Mr. Emmanuel told the male he was going to tell Johnny about the robbery hoping that would deter the male from robbing him. It had no effect as the male emptied the register and fled the store. Mr. Emmanuel never saw the male again in person until the trial.

[7] As soon as the male left the store, Mr. Emmanuel went to Johnny's home located two minutes away and told him that his friend had just robbed his store. He told Johnny that he would call the police unless his friend returned the money. Mr. Emmanuel then returned to the store and called 911 within 30 minutes of the robbery. Mr. Emmanuel told the 911 dispatcher that the male who robbed him was a friend of Johnny's but that he did not know the male's name.

[8] Mr. Emmanuel provided the following description of the male to the 911 operator: White, around 40 years old, approximately six foot two, heavy, wearing a winter toque, which he believed was green. He told the dispatcher that the male was wearing black plastic sunglasses, a jacket and light pants.

[9] Police officers arrived minutes later. Mr. Emmanuel agreed that he told the police officers that the male was white, clean shaven, no visible scars, six foot to six foot two, weighing approximately 200 pounds. The male was approximately 40 years old and was wearing a light colour jacket and dark toque. It was suggested that he told the police the male had grey hair but Mr. Emmanuel denied telling that to the police and no evidence was called that he described the male's hair as grey.

[10] Based on those two descriptions given on the night of the robbery, Mr. Emmanuel described the white male as 40 to 42 years old, six foot to six foot two, clean shaven, with no scars, heavy, weighing approximately 200 pounds. The male was wearing a green toque and sunglasses and jacket and pants.

[11] On December 31, 2010, Mr. Emmanuel was shown a photo line-up consisting of twelve photographs. He selected the photograph of Mr. Hall as the male who robbed him. No complaint was made with respect to that photo line-up.

[12] At trial, Mr. Emmanuel was asked to recount the description he gave to the police and was understandably uncertain about what he told the police.

[13] He was asked to describe the male who robbed him. This description was being given approximately one year after the robbery. Mr. Emmanuel testified that the male was white, skinny, around six feet tall and 42 years old. As the male was wearing a hat, he did not see the male's hair. The male may have had a long nose but he could not remember. The male was wearing sunglasses that covered his eyes. The male had no scars or tattoos.

[14] Mr. Emmanuel testified that he knew the male and recognized his face. He identified Mr. Hall in Court as the male who robbed him. When asked if there was anything in particular that caused him to recognize the male's face, he said there was not.

[15] Mr. Emmanuel was cross examined about his interaction with Johnny and whether Johnny provided Mr. Emmanuel with a description of Mr. Hall. Mr. Emmanuel was inconsistent in his responses, at one point testifying that Johnny did provide him with a description and at another, that he did not. Mr. Emmanuel testified Johnny apologized to him for his friend having robbed him and told Mr. Emmanuel that he went to the police station and picked out Mr. Hall in a photo line-up.

[16] That was the evidence called at the trial.

Analysis

[17] Both Crown and defence concede that Mr. Emmanuel was a credible witness. Both have focused on the reliability of the eye witness identification.

[18] The Crown submits that Mr. Emmanuel knew Mr. Hall and picked him out of a photo line-up. The only potential discrepancies between the description provided and Mr. Hall's appearance is Mr. Hall's age and weight which are subjective.

[19] The defence submits the description provided was generic and that Mr. Hall does not match the few descriptors provided, namely age and weight. The defence further submits that the identification process was tainted by information provided to Mr. Emmanuel by Johnny.

[20] I do not accept that Mr. Emmanuel's description was tainted by Johnny. Mr. Emmanuel believed he knew who had just robbed him. That is why he went to Johnny's home after the robbery. It does not make sense that he went to Johnny's home to ask Johnny for a description of the male he had just seen. I accept Mr. Emmanuel's evidence that Johnny did not describe the male to Mr. Emmanuel before Mr. Emmanuel spoke to the police.

[21] Turning to the sufficiency of the identification evidence, this case depends entirely upon the eye witness identification provided by one witness. Mr. Emmanuel is credible but that is not sufficient. It is the reliability of his identification that must be considered.

[22] The judicial system has seen many cases of persons wrongly convicted based on eye witness identification. Eye witness identification can be one of the most unreliable forms of evidence. In R. v. Burke, the Supreme Court of Canada stated:

[T]he cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made by direct visual confrontation of the accused. By reason of the many instances in which identification has proved erroneous, the trier of fact must be cognizant of the "inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection".

[23] Courts have to be particularly vigilant where a case depends solely upon eye witness identification. Credible witnesses can be very convinced and convincing. It is important to look for circumstances or confirming evidence to support a witness' identification.

[24] Mr. Emmanuel's identification of Mr. Hall as the male who robbed him is an expression of his opinion. The strongest features supporting the reliability of the identification are that Mr. Emmanuel was familiar with the customer having seen him approximately ten times and that he picked him out of a photo line-up. Those factors strengthen the reliability of his evidence. Those factors must be weighed against the fact that those prior exchanges were very brief, with little interaction between the two other than an exchange at the cash register, and occurred over the course of a year. That contact, while significant, was not extensive. Ten brief encounters at a cash, over the course of a year, do not instil confidence that the eye witness identification was sufficiently reliable particularly where the individual's face was partially concealed. Moreover, Mr. Emmanuel initially testified that he knew the customer smoked John Players cigarettes and placed those cigarettes on the counter even before the male approached the counter. That familiarity with the male strengthens his identification. However, in cross examination, he testified that the male ordinarily smokes Viceroy cigarettes but this time, the customer himself asked for John Players cigarettes. This contradiction, particularly, whether the male requested the cigarettes, impacts upon the reliability of the evidence as it undermines Mr. Emmanuel's familiarity with the male.

[25] The fact that two and a half months elapsed before the photo line-up detracts from its reliability.

[26] The description provided to the police, apart from age, was not dissimilar to Mr. Hall but was too generic to be of much significance. The age difference, 30 versus 40, is less important given the subjective nature of estimating age and the fact that the age difference, while significant, is not that large.

[27] In the end, the case remains dependent upon Mr. Emmanuel's opinion. There is nothing other than Mr. Emmanuel's opinion tying Mr. Hall to the robbery. There was apparently no video taken in the store. There are no fingerprints, similar clothing, or any other circumstantial evidence to support the identification. There is no confirming evidence that Johnny was with Mr. Hall just before the robbery, or that Johnny even knows Mr. Hall. There is no evidence as to what brand of cigarettes Mr. Hall smokes.

[28] Accordingly, while Mr. Emmanuel's familiarity with the customer significantly bolsters the reliability of the identification, it does not, in the context of all the evidence and the absence of evidence, establish guilt beyond a reasonable doubt.

Released: March 5, 2012

Signed: Justice H. Borenstein

[1] Apart from a voir dire.