Court File and Parties

Ontario Court of Justice

Date: October 11, 2019

Court File No.: Brampton 18-7128

Between:

Her Majesty the Queen

— and —

Craig Grant

Before: Justice P.T. O'Marra

Heard on: September 26, 2019

Reasons for Judgment released on: October 11, 2019

Counsel

Dhanveer Mangat — counsel for the Crown

Douglas Lent — counsel for the accused Craig Grant

Reasons for Judgment

P.T. O'Marra, J.:

Introduction

[1] The Defendant, Craig Grant is charged that on March 21, 2018, he robbed Reinhart Drapeza with a knife, of his iPhone. He pled not guilty and elected to have a trial before me on September 26, 2019. The trial lasted one day. I adjourned the case to today (October 11, 2019) for judgment. These are my reasons for judgment.

[2] The singular issue in this case is whether the Crown has proven beyond a reasonable doubt the issue of identity. The Crown has primarily relied upon the complainant's yearbook identification and his recognition of the defendant as the person he had observed at the Wexford Plaza, on previous occasions.

[3] The Defendant testified in his own defence and denied that he had any involvement in the robbery.

The Evidence at Trial

Robbery

[4] On March 21, 2019, the complainant, Reinhart Drapeza was in grade 12 attending the Notre Dame High School. He lived near the Conestoga plaza in Brampton. At approximately 11:30 pm, Mr. Drapeza was walking through the plaza parking lot towards the CIBC at which time he was confronted by two black males near the Freshco store. The assailants led him to the loading zone behind the store. The area was dark with no artificial lighting. They asked for money and his iPhone. Mr. Drapeza turned over his iPhone. Both men were armed with knives. One knife was pointed at his ribs, the other knife was pointed near his heart and close to his right nipple. During this interaction, Mr. Drapeza sustained a small cut below his right nipple.

[5] After taking Mr. Drapeza's iPhone, both assailants walked away. Mr. Drapeza returned home and told his parents. The police were called.

Pre-trial and Recognition Identification

[6] Mr. Drapeza did not know the names of his assailants; however, he told the police that he recognized both males as students that attend Heart Lake Secondary School. In cross-examination, he confirmed that in his written statement taken by a uniformed officer at his home, that one was taller than the other, both were male and black, wearing all black clothing, including black sweaters with hoods, black jeans and black sweat pants and the taller one had a "Jamaican accent". He indicated to the police that the taller individual wore glasses. He did not provide any details about their faces. At the time, he did not provide an estimation of their height.

[7] In his police video statement, Mr. Drapeza said that the shorter individual was proximate to his height, which was 5' 11', and the taller individual was 6' 4" or 6' 5".

[8] Mr. Drapeza indicated to the police that he felt that he could recognize the individuals. He claimed that on previous occasions he had seen both individuals at the Wexford Plaza during the school lunch hour. Apparently, both schools, Notre Dame and Heart Lake shared the same lunch hour.

[9] Mr. Drapeza said in his police video statement that the shorter individual wore a black bubble-like jacket. He stated that the shorter individual had checked him for valuables and the taller individual was standing to his side holding the knife. He told the police that he was uncertain what the taller person did as the robbery was "pretty fast paced".

Yearbook Identification

[10] After he provided his written statement to the police, Mr. Drapeza was taken to 22 Division. On video, Officer Sallows provided two-yearbooks from Heart Lake Secondary School dated 2014-2015 and 2016-2017 to Mr. Drapeza. According to Officer Sallows, he did not provide any direction, before Mr. Drapeza examined the yearbooks. When Mr. Drapeza turned to page nine (9) of one of the yearbooks, he pointed to the Defendant's photograph and said, "one of them looks like one of the guys here".

[11] The Defendant, who is black, appears on page nine (9) juxtaposed with 84 other thumbnail-sized colour photographs of other students. The student names are listed beside and below each photograph. All the students depicted on page nine (9) come from a wide variety of ethnic, racial and cultural backgrounds. According to Officer Sallows, he believed that there are approximately 1000 students that attend Heart Lake Secondary School.

[12] Mr. Drapeza never picked out the shorter individual from either yearbook.

[13] Mr. Drapeza was not shown a photo line-up.

Identification Evidence at Trial

[14] At trial, Mr. Drapeza initially testified that the shorter individual had a mask that covered his nose to his jaw. Then he described the mask as a scarf. Cross-examination revealed that in his original statements to the police shortly after the robbery, he never described the mask as a scarf. He testified that he "just remembered that fact today". He testified that the shorter male's height coincided with his height. In re-examination, Mr. Drapeza testified that the shorter male had a Jamaican accent.

[15] Mr. Drapeza testified that the taller male's face was uncovered. He estimated the height of the taller male was approximately six (6) feet, four (4) inches to five (5) inches. He had a skinny build and wore glasses. When the Defendant was asked to stand up in court by his counsel, Mr. Drapeza agreed that the Defendant's height did not coincide with six (6) feet and five (5) or four (4) inches. Mr. Drapeza testified that he was "100%" certain that the person he picked out in the yearbook was the same person that robbed him.

[16] With respect to recognizing both individuals from previous sightings, in cross examination, Mr. Drapeza agreed that he could not determine how many months before the robbery that he saw both males, whether it was a month, six months or a year before. Mr. Drapeza conceded that he observed both males while he stood across a street from the Wexford Plaza for less than ten (10) minutes, on three (3) or four (4) occasions.

[17] Finally, in cross examination, Mr. Drapeza conceded that given the poor lighting conditions, his limited view, and with their hoodies pulled over their heads on the night of the robbery, it would be difficult to identify the two males.

In-Dock Identification

[18] After confirming that he identified the Defendant from the Heart Lake yearbook, the Crown asked Mr. Drapeza to identify the Defendant in the courtroom. Mr. Drapeza testified that he was "100%" certain that the Defendant was the same individual, involved in the robbery, in the yearbook and that the same person he had previously seen at the Wexford Plaza.

The Defendant's Testimony

[19] The Defendant is currently 20 years old. He is black and stands six (6) feet eight (8) inches. He wears glasses. He does not have a Jamaican accent. He attended Heart Lake Secondary School and that is the Defendant's school photograph on page nine (9) of the school's yearbook. In June 2017, he graduated from grade 12. After high school, and in Spring 2017, the Defendant attended Sheridan College approximately three (3) days a week.

[20] The Defendant testified, that proximate to the date of the robbery he spent a lot of time in Toronto with his girlfriend. He denied ever attending the Conestoga Plaza or the Freshco store during the evening of March 21, 2018. He vigorously denied being involved in the robbery. He denied knowing Mr. Drapeza. He denied ever attending the Wexford Plaza during the lunch hour when he attended Heart Lake Secondary School. He testified that after his arrest on May 31, 2018 for this offence, he provided a video statement to the police. The Defendant advised the police that on the night of the robbery, he was with his girlfriend at her home in Toronto.

[21] In cross-examination, the Defendant testified that he never left school premises during the school lunch hour. He stated that he always remained at the school to eat his lunch and smoked as "walking was not my thing".

[22] In cross-examination, the Defendant asserted an alibi after the Crown asked where he was the evening of March 21, 2018. He testified that about the time of the robbery he devoted all his time after school to his girlfriend and getting high. He could not recall what they were doing that day/evening other than "fucking" and getting high. He could not recall the day that March 21, 2018 fell on.

[23] In re-examination, the Defendant confirmed that he advised the police during his video statement that on the night of the robbery he was in Toronto with his girlfriend. As far as he was aware, the police did not follow up on that information.

The General Principles

Credibility, Proof Beyond a Reasonable Doubt and Presumption of Innocence

[24] In matters of credibility of a witness, I am mindful of the principles set out in R. v. W. (D.), [1991] 1 S.C.R. 742 at paragraph 28:

• First, if I believe the evidence of the Defendant, obviously I must acquit.

• Second, if I do not believe the testimony of the Defendant but I am left in reasonable doubt by it, I must acquit.

• Third, even if I am not left in doubt by the evidence of the Defendant, I must ask myself whether, based on the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the Defendant.

[25] The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt. The obligation of W. (D.) analysis was summarized in R. v. Minuskin (2004), 181 C.C.C. (3d) 542 (Ont. C.A.) at 550:

It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W. (D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W. (D.) at p. 757, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".

[26] See also R. v. Turmel, [2004] B.C.J. No. 2265 (C.A.) at para. 9-17.

[27] It is not the Defendant's responsibility to demonstrate, establish, or prove his innocence or to explain away the allegations made against him. He is not required to establish who robbed Mr. Drapeza, if not himself, nor is he required to explain the evidence presented by the Crown. He is presumed to be innocent until proven guilty beyond a reasonable doubt. The Crown bears this onus of proof beyond a reasonable doubt throughout the trial and it never shifts.

[28] The Supreme Court of Canada commented on the principle of proof beyond a reasonable doubt in several cases. The Supreme Court held that the meaning of proof beyond a reasonable doubt was as follows: "the standard of proof is higher than ... a balance of probabilities yet less than proof to an absolute certainty." See: R. v. Lifchus, [1997] 3 S.C.R. 320.

[29] The Supreme Court held that in order to convict, something less than absolute certainty and something more than probable guilt is required. The Court further defined the reasonable doubt standard by explaining that it falls much closer to absolute certainty than to proof on a balance of probabilities. See: R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449.

Identification

[30] This case is what is frequently described as an "identification" case. More particularly, this is an eye-witness identification case. In R. v. Bullock, [1999] O.J. No. 3106, Justice Hill set out a comprehensive list of following important principles in an eye-witness identification case at paras. 49-67:

49 Eye-witness identification evidence can be notoriously unreliable calling for considerable caution by the trier(s)-of-fact: The Queen v. Nikolovski (1997), 111 C.C.C. (3d) 403 (S.C.C.) at 411-412 per Cory J.; Bardales v. The Queen, [1996] 2 S.C.R. 461 at 461 per Sopinka J.; Burke v. The Queen (1996), 105 C.C.C. (3d) 205 (S.C.C.) at 224 per Sopinka J.; Pretrial Eyewitness Identification Procedures (Law Reform Commission of Canada (1983)) at pages 7-14. Especially where the suspect is unknown to the eye-witness, there is the danger of an honest but inaccurate identification. This is the problem of a mistake by a convinced and convincing witness: Regina v. Menard (1996), 108 C.C.C. (3d) 424 (Ont. C.A.) at 437 per Arbour J.A. (appeal dismissed (1998), 125 C.C.C. (3d) 416 (S.C.C.)).

50 Casual acceptance of identification evidence must be avoided: Burke v. The Queen, supra at 224.

51 In The Queen v. Nikolovski, supra at 409, 412 Cory J. stated:

The ultimate aim of any trial, criminal or civil, must be to seek and to ascertain the truth. In a criminal trial the search for truth is undertaken to determine whether the accused before the court is, beyond a reasonable doubt, guilty of the crime with which he is charged. The evidence adduced must be relevant and admissible. That is to say, it must be logically probative and legally receivable. The evidence may be that of eyewitnesses, or it may be circumstantial ...

... As a minimum it must be determined whether the witness was physically in a position to see the accused and, if so, whether that witness had sound vision, good hearing, intelligence and the ability to communicate what was seen and heard. Did the witness have the ability to understand and recount what had been perceived? Did the witness have a sound memory? What was the effect of fear or excitement on the ability of the witness to perceive clearly and to later recount the events accurately? Did the witness have a bias or at least a biased perception of the event or the parties involved?

52 Other judicially formulated checklists provide similar factors for analysis: Mezzo v. The Queen (1986), 27 C.C.C. (3d) 97 (S.C.C.) at 129-132 per Wilson J.

53 In an appropriate case, a trier-of-fact may be justified in convicting on the evidence of a single eye-witness: see Pelletier v. The Queen, [1996] 3 S.C.R. 601 at 601 per Lamer C.J.C. (affirming [1995] A.Q. No. 1129 (C.A.)). In this regard, at page 413 of the Nikolovski decision, Cory J. stated:

It is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness.

54 A fleeting glance of a suspect by an eye-witness is generally unsatisfactory: Regina v. Carpenter, [1998] O.J. No. 1819 (C.A.) at para. 1 per Abella J.A.

55 The courts have shown express preference for the police to conduct pre-trial identification steps to avoid in-court dock identification: Regina v. Hill, [1997] O.J. No. 3255 (C.A.) at para 3 per curiam. This will ordinarily take the form of a line-up or other form of prior identification procedure: Regina v. Grangello, [1999] O.J. No. 2043 (C.A.). With respect to a suspect unknown to the eye-witness, an in-court, dock identification is, as a general rule, worthless: Regina v. Izzard (1990), 54 C.C.C. (3d) 252 (Ont. C.A.) at 255-6 per Morden J.A. (as he then was); Regina v. Mooney, [1999] O.J. No. 2793 (C.A.) at para 4 per curiam; Regina v. Myers, [1997] O.J. No. 4185 (C.A.) at para. 4, 5 per curiam.

56 The physical photographic line-up must be fairly structured in terms of its makeup with regard to the number of photographs employed and with a view to the subjects of the photos resembling the suspect at least in terms of age, gender and general appearance including build, height, and complexion: Rex v. Goldhar; Rex v. Smokler (1941), 76 C.C.C. 270 (Ont. C.A.) at 271-272 per Robertson C.J.O.; Regina v. MacKenzie, [1976] O.J. No. 667 (C.A.) at para. 8 per Martin J.A. While everyone in a forensic lineup cannot be identical, the subjects should be reasonably similar without conspicuous differences even if not all subjects share all of the descriptors advanced by the eyewitness.

57 As well, the identification exercise must be conducted fairly. This will include care not to engage in prompting or directing the witness, instruction that the photo of the person the witness observed may or may not appear in the line-up, instruction to take the time to make a careful examination, undertaking anti-contamination measures respecting multiple eye-witnesses, and, the assurance of accurate recording of the witness' comments on viewing together with preservation of the line-up documentation: see generally Pretrial Eyewitness Identification Procedures, supra at 54-74; Mezzo v. The Queen, supra at 134; Rex v. Goldhar; Rex v. Smokler, supra at 271. All non-identifications and misidentifications of a suspect must be recorded.

58 The fact that a witness made a photo identification of the accused without regard to the height of persons in the photo line-up is one factor only in considering the safeness of the identification: Regina v. Bennett, [1997] O.J. No. 343 (C.A.) at para. 6 per curiam.

59 Quite apart from general concerns respecting the reliability of eye-witness identification evidence, as noted by Cory J. in Nikolovski, there must, in each case, be some assessment of the circumstances of the individual witness' purported identification. So, for example, inconsistencies between eye-witnesses, or within each witness' descriptions of the suspect over time, or inconsistencies with bodily or clothing characteristics possessed by the accused at the relevant time, will be worthy of analysis in determining whether the reasonable doubt standard has been met. Of course, the consistency of eye-witness testimony with other evidence, particularly physical evidence, must be scrutinized.

60 Some inconsistencies may exist between the witness' initial description to the police and the identified photo, or between the description and the accused himself or herself, provided that, on the totality of the evidence, the requisite standard of proof is discharged. Of course, multiple and significant features of difference fatally diminish the reliability of the identification: Regina v. Franklin, [1999] O.J. No. 1785 (C.A.) at para. 1 per Brooke J.A.

61 In some cases, a failure to mention distinctive characteristics of a suspect in an initial description to the police may be quite material to the reliability of an identification. On the other hand, convictions have been upheld in circumstances of an eye-witness' initial omission of a distinguishing characteristic: see case summaries noted at Pretrial Eyewitness Identification Procedures, supra at page 203, fn. 184.

62 Where an eye-witness purports to identify a suspect as the culprit, but describes a significant characteristic of the person who committed the offence which differs from the suspect, the identification is flawed. In this regard, a court may be compelled to the conclusion expressed in Chartier v. Attorney General of Quebec (1979), 48 C.C.C. (2d) 34 (S.C.C.) where Pigeon J. stated at 52:

Regardless of the number of similar characteristics, if there is one dissimilar feature there is no identification.

63 Where the eyewitness provides an initial description of a feature of the suspect unpossessed by the accused, the general concern over eye-witness testimony is compounded, i.e. Regina v. Myers, supra at para. 5 (accused 2 to 4" shorter and 35 to 40 pounds heavier than described suspect); Regina v. Iemmolo, [1998] O.J. No. 948 (C.A.) at para. 4 per curiam (accused not having dark skin complexion or meeting description of North American Indian); Regina v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.) at 459 per Charron J.A. (accused without facial hair described by witness); Regina v. Quercia (1991), 60 C.C.C. (3d) 380 (Ont. C.A.) at 387-390 per Doherty J.A. (no acne marks or facial scars, no observable abnormality to left eye); Rex v. Harrison (1951), 100 C.C.C. 143 (B.C.C.A.) at 144-147 per O'Halloran J.A. (accused did not have blue eyes, fair-coloured hair and at least 4" taller than attributed height).

64 It may be that the discrepancies between the witness' initial description and the features of the accused are sufficiently troubling that the identification is flawed even where there exist a number of similarities including a distinctive characteristic: Regina v. Quercia, supra at 385-7.

65 One cannot expect a witness in a robbery, a terrifying event especially where weapons are present, to observe and record all there is to see or every feature accurately: The Queen v. Nikolovski, supra, at para. 20, 34 per Cory J. Human nature, being what it is, persons will vary, in ordinary circumstances, one to the next, in their ability to accurately estimate and accurately recall height, weight, age and colour.

66 Taking into account that certain characteristics of a suspect can change over time, i.e. hair style and colour, facial hair, body weight, etc., the trier-of-fact is nevertheless entitled to make in-court comparisons of the witness' description(s) of the offender and the accused where appropriate, i.e. height, eye colour, shape of nose and ears, etc.: see The Queen v. Nikolovski, supra at para. 23, 34-35; Regina v. Nguyen, [1997] O.J. No. 2801 (C.A.); Regina v. Roberts, [1997] O.J. No. 3542 (C.A.); Regina v. McIsaac, [1991] B.C.J. No. 3617 (C.A.) at 3 per Taylor J.A.

67 Of course, it must be readily acknowledged that "The existence of confirmatory circumstantial evidence can go a long way to minimizing the dangers inherent in eyewitness identification" (Regina v. Quercia, supra at 389). In this way, for example, concerns as to differences in the descriptions of eyewitnesses as to height and age may be diminished: Regina v. MacKenzie, supra at para. 3.

The Law on Recognition Evidence Generally

[31] This is a case that involves evidence of recognition. It is important to bear in mind that recognition evidence and eyewitness identification evidence simpliciter are not different in kind. Rather, they fall at different points along a continuum of reliability. See: R. v. McIsaac, [1991] B.C.J. No. 3617 (C.A.)

[32] There are different kinds of recognition evidence. A witness may have had a fleeting opportunity to observe a suspect only once, under difficult lighting conditions, on the end of the continuum. The evidence of a witness who, through a long association with the suspect, was well familiar with him or her, and observed that person at the time of the alleged crime under good observational conditions, might correspondingly be placed near the high end of the continuum. In between, however, there are many points along the reliability continuum where identification evidence might be situated, based upon the unique factual circumstances of individual cases, and the mere fact that a witness when identifying a suspect invokes "recognition" in testimony does not in any way relieve the court of the need to treat that evidence with caution. See: R. v. Schmidt, [2012] B.C.J. No. 1566, para. 12

[33] Evidence of recognition must have sufficient reliability to clear an initial threshold of admissibility. This is a function, in part, of the "degree of familiarity ... needed in order to meet the threshold level for admissibility" which, in turn, is affected by the length of prior dealings between witness and accused, the circumstances of those dealings and the recency of contact between them prior to the event of recognition: R. v. Anderson et al., 2005 BCSC 1346, 2005 BCSC 1346 at paras. 20 and 25-26 (S.C.) Other factors include observational conditions, the presence of flawed investigative procedures, unique and unusual identifying features and the like. Where the reliability of the evidence is high enough and the corresponding weight that can be attributed to the recognition evidence given by a witness is sufficient, proof of identification can establish the crucial fact of identification beyond a reasonable doubt. (See: Schmidt, para. 13)

[34] The Court of Appeal in R. v. Chafe, [2019] ONCA 113 recently affirmed its earlier decision in R. v. Olliffe, [2015] ONCA 242 that recognition evidence is a form of identification evidence, and that the same concerns apply, and the same caution must be taken in considering its reliability as in dealing with any other identification evidence. (See: Chafe, para. 31-32)

Analysis

[35] As the Supreme Court of Canada has stated in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paragraph 23:

... the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.

[36] The Defendant denied the allegations against him. He denied that on March 21, 2018 he was present at the Conestoga Plaza and in possession of a knife. I found the Defendant's denials plausible. His evidence was straightforward and reasonable.

[37] The Defendant claimed that on the evening of the robbery he was in Toronto with his girlfriend. In my view, the Defendant put forward an alibi which had been disclosed during his police interview. The alibi emerged in his cross-examination and confirmed in re-examination. The Crown did not argue that the court should draw an adverse inference due to a lack of notice to the Crown, which would have permitted a meaningful investigation into the alibi. See: R. v. Hogan (1982), 2 C.C.C. (3d) 557 (Ont. C.A.), at p. 566, leave to appeal to S.C.C. refused, 51 N.R. 154 and R. v. Cleghorn, at paras. 3-5. The Crown would have been aware of the alibi since it was disclosed to the police. There was no supporting alibi witness called by the defence. I am not aware, if Mr. Lent provided written notice containing fulsome details of any alibi. Nevertheless, it is improper for me to question tactical trial decisions by counsel. See: R. v. Borde, 2011 ONCA 534, 283 O.A.C. 181, at para. 21. There was a lack of precision and vagueness in the Defendant's alibi. For example, the Defendant was unsure about the day of the week March 21, 2018 fell on. He was uncertain about whether he was even at his girlfriend's home. Other than engaging in sexual intercourse and getting high with his girlfriend while in Toronto that evening, the Defendant provided very few consequential details. Despite the lack of precision in his evidence, I do place some weight on the alibi evidence.

[38] In my view, Mr. Drapeza was a credible and trustworthy witness. He did not display any animus towards the Defendant during his evidence. His evidence was compelling. However, I have concerns about the reliability of his identification evidence. In my view, the Crown's case fell short of proving the issue of identity beyond a reasonable doubt. Unsurprisingly, the identity evidence did nothing to detract from the Defendant's evidence.

[39] There were several frailties in the circumstances in which Mr. Drapeza made his observations during the robbery, despite picking the Defendant out of the yearbook and identifying him as the robber:

(1) The Crown urged me to consider that Mr. Drapeza accurately identified the Defendant based on his past recognition. Despite his certainty that he was the taller person of the two during the robbery, I have difficulty with Mr. Drapeza's claim that he had seen the Defendant at the Conestoga Plaza. I find his evidence unreliable on this point. He never had any interaction or direct acquaintance with the Defendant. He was not familiar with his name. Mr. Drapeza admitted that he was standing across a city street when he made his observations of the Defendant and the shorter male, on 3 or 4 occasions and which only lasted a few minutes. Furthermore, Mr. Drapeza could not accurately recollect how many "months" before the robbery that he made his observations of both the Defendant and the shorter person.

(2) Mr. Drapeza conceded that given the poor lighting conditions, the "pretty fast pace" of the robbery, their black clothing, and hoodies pulled over their heads made it difficult to identify the two individuals.

(3) Mr. Drapeza told the police in a video statement that the taller male was 6'4' or 6'5" in height who wore glasses, and the shorter male was closer to 5' 11", which was Mr. Drapeza's height. Officer Hepton estimated the Defendant's height to be 6' 6". The Defendant is 6' 8" and wears glasses. The Crown argued that the court should not focus on Mr. Drapeza's estimation of the Defendant's height but rather the methodology or process of how Mr. Drapeza selected the Defendant from the yearbook, based on his past recognition. I respectfully disagree with the Crown's submission. As I have said above, the past recognition evidence was unreliable. The fact that Mr. Drapeza's estimation of the Defendant's height was off by several inches was evidence of a dissimilar feature which in my view, is no identification. See: Chartier v. the Attorney General of Quebec, para. 52. Furthermore, I am incredulous that the moment that the Mr. Drapeza spoke to the police about the taller male, that Mr. Drapeza never referred to the Defendant's height as atypical or extraordinary.

(4) His narrative to the police that the taller individual had a Jamaican accent, was undermined when the Defendant testified. It was clear that the Defendant did not have a Jamaican accent. Mr. Drapeza's testimony in re-examination that only the shorter assailant had a Jamaican accent was inconsistent with what he told the police.

(5) Despite Mr. Drapeza's in-dock identification and being "100% certain" the Defendant was one of the assailants that robbed him, in-dock identifications are of little probative value for positive identification. See: R. v. AC, [2009] OJ No 3722 para. 39.

(6) Mr. Drapeza testified that the shorter individual had a scarf covering his face. He never told the police about the scarf wrapped around the shorter individual's face.

(7) Finally, Mr. Drapeza's statement to Officer Hepton, after he picked out the Defendant in the yearbook, that "one of them looks like one of the guys here", in my view, cast some doubt on his certainty and accuracy on his observations and selection.

[40] The question is whether the Crown has proven the case beyond a reasonable doubt. I believe the Defendant was credible on his own terms. I am not satisfied that Crown has met its burden of proof.

[41] The charge against the Defendant is dismissed.

Released: October 11, 2019

Justice P. T. O'Marra