Court File and Parties
Ontario Court of Justice
Date: 2019-10-02
Court File No.: 17-3770
Between:
Her Majesty the Queen
— and —
Randy Amofa
Before: Justice A.D. Dellandrea
Heard on: August 28, 2019
Reasons for Judgment released on: October 2, 2019
Counsel
Ms. Keely Holmes — counsel for the Crown
Mr. Anthony Marchetti — counsel for the accused Randy Amofa
Judgment
DELLANDREA J.:
Introduction
[1] Mr. Amofa is charged with Dangerous driving, Failing to stop for police, Driving while disqualified, and Failing to comply with a term of his probation order: all in relation to an incident alleged to have occurred on February 3, 2016.
[2] It is not disputed that at 8:15 p.m. on that date, Mr. Amofa was arrested by the Sureté de Québec approximately 20 kilometers east of the Ontario border, while operating a grey BMW which had been flagged for an abandoned police pursuit earlier that evening along the 401 East.
[3] Nor is it disputed that the car which Mr. Amofa was operating when he was stopped that evening was owned by one of his friends who had given him the single key to the vehicle.
[4] The single disputed issue at this trial is whether there is sufficient evidence upon which the court can conclude, beyond a reasonable doubt, that Mr. Amofa was the individual observed by Peel Police operating the same car dangerously in the Brampton area at approximately 10:30 a.m. that morning. No one disputes the fact that at that time, a lone black male driver fled from Cst. Oxley at a high rate of speed, and engaged in a dangerous and prolonged pursuit through a residential Brampton neighbourhood. The only question is whether the officer's identification of Mr. Amofa as the driver, after seeing a single photograph of him two days later, is sufficiently reliable evidence of identification upon which a conviction could safely be grounded.
[5] On behalf of the Crown, Ms. Holmes submits that the identification evidence, when combined with the circumstantial evidence of Mr. Amofa's association to the suspect vehicle, the vehicle's flight along the eastbound 401, and the defendant's presence in the vehicle upon arrest, provide a sufficiently reliable basis upon which convictions may be entered. Ms. Holmes argues that the context in which the officer's alleged identification of the defendant was made – namely, static surveillance – were such that the court should have greater confidence in the officer's ability to have carefully observed the features of the driver, and made a reliable identification of Mr. Amofa.
[6] On behalf of the defendant, Mr. Marchetti emphasized the very recent warning by our Court of Appeal in Bao regarding the serious dangers inherent to eyewitness identifications based on a single photograph, which was the primary method of identification relied on in this case. He submits that the "single-image" process used by Cst. Oxley in this case for his purported identification of Mr. Amofa was deficient, fatally flawed, and ultimately unreliable. Nor, in Mr. Marchetti's submission, is the circumstantial evidence of his client's association to the suspect vehicle sufficient to support the exclusive inferential conclusion that he must have been the person operating the car when it was observed by Peel Police on the morning of February 3, 2016.
Applicable Legal Principles
[7] As with every criminal trial, the onus is on the prosecution to prove the guilt of the defendant beyond a reasonable doubt. Mr. Amofa is presumed to be innocent. That presumption remains throughout the whole of the trial unless and until the court is satisfied that each of the charges have been proven beyond a reasonable doubt.
[8] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities.
[9] Eyewitness identification evidence is the central issue in this case. Over a decade ago, our Court of Appeal offered the following caution related to this inherently unreliable category of evidence:
It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses, and is difficult to discredit on cross-examination for those same reasons. Studies have shown that triers of fact place undue reliance on such testimony in comparison to other types of evidence. As a result, many wrongful convictions have resulted from faulty, albeit convincing, eyewitness testimony, even in cases where multiple witnesses have identified the same person.
[10] Circumstances like those presented in this case raise particular concerns:
The extensive case law arising out of the review of convictions based on eyewitness identification reveals that the concerns about the reasonableness of such verdicts are particularly high where the person identified is a stranger to the witness, the circumstances of the identification are not conducive to an accurate identification, pre-trial identification processes are flawed and where there is no other evidence tending to confirm or support the identification evidence.
[11] Where circumstantial evidence is relied on to establish the identification of the accused as the perpetrator, the trier of fact must be satisfied that this is the only reasonable inference available on the evidence.
[12] Circumstantial evidence of identification must be viewed cumulatively, and as a whole. However, courts must avoid taking a "panoramic approach" to the evidence whereby it obscures or impermissibly bootstraps an entirely deficient identification by linking it to neutral pieces of evidence in an effort to secure corroboration.
Review of Relevant Evidence
a) Ms. Ayanna Reid
[13] Ms. Ayanna Reid is a close friend of Mr. Amofa's. In early 2016, when she only had her G1 learner's licence, she bought a car: a Grey BMW with a license plate of BYRD 935. Since she could not drive the vehicle independently, she left the vehicle with Mr. Amofa, at his residence in Brampton. She gave Mr. Amofa the only key, along with her permission to use the car whenever he wanted to.
b) Cst. David Oxley
[14] Cst. David Oxley was working on a residential break-in project in 21 Division of Peel Police on February 3, 2016. He and other officers were tasked with patrolling two areas within their division where there had been a rash of such of offences, with a particular view to looking for suspicious activity.
[15] At approximately 10:38 a.m., Cst. Oxley was conducting surveillance when he saw a lone male approach and then enter a house on Pepperbush Crescent, on foot. When making this observation, Cst. Oxley was within his low profile police vehicle positioned just up the street from the address. Seconds later, while the officer was making queries on that residence, Cst. Oxley saw an older grey BMW pull slowly onto Pepperbush Crescent, from the opposite direction. The car slowly crept northbound along the street, then suddenly stopped and backed into the driveway of the same address on which the officer's attention was already focused.
[16] Cst. Oxley believes that the driver had recognized his vehicle to be a police car at this point, which aroused his own suspicion. He pulled up slowly to the base of the driveway where the BMW was now stationed, the driver still within it. Cst. Oxley's driver's window was down. He looked across the street directly at the driver of the BMW, who he could see through the windshield. He testified that he made eye contact with the driver, who he described as a black male, approximately 30 years old, with no hat or sunglasses. He saw the driver glance up and down the street in both directions. The total duration of this observation was about ten seconds.
[17] Cst. Oxley then held his police badge out his window in the direction of the driver with one hand, and lifted his other hand in a signal to "stop." As soon as he did this, the driver of the BMW accelerated quickly out of the driveway, past the officer, and out of sight. Cst. Oxley activated his emergency equipment and took up pursuit of the vehicle, which proceeded in an extremely reckless, dangerous path throughout the neighbourhood for several minutes. The BMW sped through several marked intersections without stopping, at speeds in excess of 150 km/hr. Cst. Oxley ultimately terminated the pursuit, out of concerns for public safety. He did, however, obtain the vehicle's licence plate.
[18] Two days later, on February 5, 2016, Cst. Oxley learned that members of the Sureté de Québec had apprehended the same vehicle following a short pursuit near the Ontario border at approximately 8:00 p.m. on February 3rd. The Québec officers arrested the driver – who identified himself validly to them as Randy Amofa.
[19] Cst. Oxley queried Mr. Amofa on Peel Police databases. He learned that on February 3, 2016, Mr. Amofa was bound by a probation order which included a condition that he not be within the driver's seat of any vehicle, as well as a driving prohibition imposed on the same date. Certified copies of these documents were introduced at trial as exhibits.
[20] Cst. Oxley then observed a mugshot of Mr. Amofa which was on file, which had been taken in 2014. Upon seeing the photo, Cst. Oxley concluded that Mr. Amofa had been the driver of the BMW who had fled from the address on Pepperbush Crescent two days earlier.
[21] Cst. Oxley testified that he recognized Mr. Amofa based on the "structure of his face," and his "short hair," which he felt he had a good opportunity to observe when he saw the driver turning his head to glance in both directions before he fled. The officer was not able to describe any other unique or memorable features of the driver's face which he recalled of the driver, or relied on in making his identification of Mr. Amofa from the picture.
[22] In cross-examination, Cst. Oxley readily acknowledged that the traditional photo-lineup procedure, during which multiple individual photos are presented to a witness in sequence, is designed to "avoid biases and improper identifications." However, Cst. Oxley maintained that as a police officer, he felt capable of seeing someone during the course of an investigation, and being able to compare his observations to a photo in order to make a reliable identification of a person.
c) The BMW on the 401
[23] At 5:55 p.m. on February 3, 2016, P.C. Scott Laird of the Napanee detachment of the Ontario Provincial Police saw a silver BMW being operated by a lone male driver on the 401 East. There had been a report from a neighbouring detachment to the west of a vehicle matching that description having failed to stop for police. The license plate which Cst. Laird recorded in his notes was nearly identical to that of Ms. Reid's BMW which had fled from Peel Police earlier that morning.
[24] Cst. Laird observed the vehicle weaving dangerously through traffic at a high rate of speed. He did not attempt to stop the vehicle, but relayed his observations to dispatch, in order that they be passed on to other units east of his location.
[25] Cst. Laird had no evidence with respect to the description or identity of the driver, beyond that he was male and had dark hair.
[26] At approximately 8:10 p.m., Cst. Nicholas Desjardins of the Vaudreuil detachment of the Sureté de Québec received information that Ontario units had been engaged in a pursuit with a grey BMW with the marker BYRD 935. A few minutes later, Cst. Desjardins observed that vehicle, and conducted a successful traffic stop. Randy Amofa was the driver of the vehicle. Peel Police were notified by members of the Sureté of Mr. Amofa's arrest.
Analysis
[27] The only direct evidence of identification of Mr. Amofa as the Brampton driver is the evidence of Cst. Oxley. It is argued that the officer's identification of Mr. Amofa is supported by two circumstantial bookends: the defendant's access to the vehicle via the registered owner, Ms. Reid, and the evidence of his arrest within the suspect vehicle on the evening of February 3rd, a few kilometres into Québec.
[28] It has been observed that in identification cases, sincerity is rarely an issue. Such was certainly the case here. Cst. Oxley gave his evidence in a direct and professional manner, both during examination-in-chief, as well as during the skillful and vigorous cross-examination by Mr. Marchetti. Cst. Oxley explained the basis of his identification of Mr. Amofa as the driver during the Brampton pursuit with confidence, and courteously dismissed Mr. Marchetti's suggestion that his purported identification was flawed, or racially biased. I found Cst. Oxley to be a sincere, and earnest witness.
[29] Any concerns related to Cst. Oxley's identification evidence flow from lack of reliability, not from lack of honesty. These concerns are universal to this category of evidence, regardless of whether it is given by a civilian, or by a police officer. It is the possibility of honest, but mistaken identification by any witness which requires careful scrutiny of the circumstances surrounding the purported identification. Other courts have cautioned against giving greater weight to the identification evidence of law enforcement members, based on "policing experience" alone. I am bound to apply that same caution to my analysis here.
[30] Cst. Oxley observed the driver of the BMW for a total of ten seconds, from the opposite side of a residential street, through the windshield of a vehicle. He testified that he saw the driver glance up and down the street quickly, which allowed the officer to see both sides of his face. I accept Ms. Holmes' submission that given the context of Cst. Oxley's observation, namely, while conducting static, targeted surveillance, his opportunity to observe the driver here was to some degree superior, and therefore distinguishable from the circumstances described in Bao where the officer had only seen the driver "out of the corner of his eye," for a few seconds.
[31] However, I cannot conclude that these distinctions were sufficient to overcome the significant reliability concern's with Cst. Oxley's identification evidence.
[32] While the circumstances of Cst. Oxley's observation may have been superior to those described in Bao, its duration was yet exceedingly brief. Ten seconds is very little time to observe and recall a person's features in a reliable manner – particularly, of a stranger with whom there was no prior familiarity. There are inevitable concerns with the reliability of Cst. Oxley's evidence, based on the brevity of his opportunity to observe the suspect alone.
[33] Scrutiny must also be carefully applied to the witness' description of the suspect. Generic descriptions have been considered to be of little assistance. Cst. Oxley's description of the driver was highly generic: "male black, about 30." His additional notations of "no sunglasses or hat" did not enhance this already vague description in any way. I can place no weight on the officer's testimony that he recalled the driver having a "thin mustache or goatee and short hair," as these observations were offered by the officer only after he had observed Mr. Amofa's mugshot photo. To have value, the distinctive features of the suspect, if observed at the time of the pursuit, should have been mentioned in the officer's notes.
[34] Ultimately, I have concluded that the process used by Cst. Oxley to make the purported identification of Mr. Amofa in this case is what fatally undermined the reliability of his evidence. As the court in Bao recently emphasized, for many years the jurisprudence made it clear that "it is dangerous and improper to present a potential identification witness with a single photograph of a suspect". The real and obvious risk of this procedure is that the witness' recollection of the face of the perpetrator may be overtaken or conflated with the details gleaned from their subsequent observation of a single photo.
[35] Like the officer in Bao, Cst. Oxley essentially showed himself a single photograph, of Mr. Amofa, and concluded that the person in the photo was the driver of the BMW. There was no simultaneous comparison between the photos and the suspect. All that Cst. Oxley had was his memory of the driver based on a 10 second look, two days earlier, which he compared to only one image. That image was of Mr. Amofa, who was already under arrest by another agency. The circumstances of the comparison made in this case were highly suggestible, and lead inevitably to heightened concerns with respect to reliability.
[36] There are two items of circumstantial evidence of identification which the Crown seeks to rely on to confirm or bolster the eyewitness identification evidence in this case. First, there is the evidence of Mr. Amofa's access to the suspect vehicle, which he had received from his friend Ms. Reid a few months prior to the incident. Further, there is the evidence of Mr. Amofa's confirmed operation of the suspect vehicle at the time of his arrest in Québec in the evening of February 3rd, approximately ten hours after the dangerous driving in Brampton.
[37] It is argued that collectively, this circumstantial evidence should strengthen the inference that it must have been the defendant who was the driver of the BMW on the morning of February 3, 2016.
[38] When assessing circumstantial evidence, the trier of fact must consider other plausible theories and reasonable possibilities which are inconsistent with guilt. The Crown does not need to disprove every possible conjecture which might be consistent with innocence, but it may need to negative reasonable possibilities in order to establish guilt beyond a reasonable doubt.
[39] The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from the evidence, as well as from the absence of evidence. If there are reasonable inferences other than guilt, the Crown's evidence will be insufficient to close the inferential gap of proof, on the reasonable doubt standard.
[40] In this case, the gap between the two pieces of circumstantial evidence is too wide for me to conclude that the only reasonable inference available is the conclusion that Mr. Amofa had to be the driver of the BMW on the morning of February 3, 2016. Accepting, as I do, that the evidence of his personal access to that vehicle in the months before, together with his arrest in the driver's seat of the car ten hours after the incident is highly suspicious of his involvement, I cannot conclude that no other innocent explanations are reasonably available. This was not a case of near continuous pursuit of the suspect vehicle between the point of first observation, and its ultimate apprehension. Rather, the only evidence within the roughly ten-hour gap between Cst. Oxley's view of the vehicle in Brampton, and Mr. Amofa's arrest in Québec that night, were a few reported sightings of the vehicle along the eastbound 401. Notably, none of these sightings yielded any evidence whatsoever with respect to the identity of the driver.
[41] I conclude that the circumstantial evidence of identification in this case, while sufficient to raise a strong suspicion of guilt, does not rise to the level required to compel the conclusion of guilt as the only reasonable inference.
[42] The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification has been described as a ghost which haunts the criminal law. Courts must be vigilant in guarding against this outcome. I have concluded that the Crown's evidence in this case is insufficient to prove Mr. Amofa's identity as the driver of the BMW in Brampton on the morning of February 3, 2016.
[43] With respect to the remaining charges, the certified documents tendered as exhibits are sufficient to establish that on February 3, 2016, Mr. Amofa was bound by both a probation order, and a driving prohibition imposed on the same date. It is not disputed that Mr. Amofa was driving when he was arrested at 8:15 p.m. that evening. However, as the Crown candidly conceded, neither of these documents was signed by Mr. Amofa on the date those orders were imposed. I am invited by the Crown to rely on the common convention – wherein the sentencing judge imposing the Order of probation or prohibition reads the terms of the order aloud to the offender – to conclude that Mr. Amofa must have been made aware of terms, and duration of the two orders by which he was bound in February, 2016.
[44] Respectfully, I am not able to make this conclusion, based on the suggested assumption of what usually occurs in court, following the imposition of sentencing orders. In the absence of evidence of Mr. Amofa having signed the orders to acknowledge his awareness of their terms, or other evidence capable of satisfying me of his knowledge of them, I am left with a reasonable doubt as to the mens rea with respect to each of these counts.
[45] Accordingly, all of the charges against Mr. Amofa are dismissed.
Released: October 2, 2019
Signed: Justice A. D. Dellandrea