ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P) 823/10
DATE: 20120412

B E T W E E N:

HER MAJESTY THE QUEEN

A. C.M. Coughlin, for the Crown

• and -

DOUGLAS ANDREW TURNER

R.P. O’Brien, for the Defence

HEARD: January 10-12, 2012

JUDGMENT

HILL J.

INTRODUCTION

[ 1 ] On February 5, 2010, a male person entered the residence of Jennifer Young, a duplex at R[…] Drive in Brampton. He had no permission to be in the house. There is no dispute that, in the circumstances, the intruder was there with the intention of committing an indictable offence. The prosecution alleges that Douglas Turner is the individual who broke and entered the Young dwelling.

[ 2 ] The Crown called as witnesses Ms. Young and her daughter, two neighbours who resided across the street, two police officers involved in the investigation, and a resident of the neighbourhood living a few streets from the scene of the break and enter.

[ 3 ] The defence called no evidence.

[ 4 ] The issue in the case is identification.

THE BREAK-IN

[ 5 ] Jennifer Young testified that on February 5, 2010 her daughter, Victoria, left for school at about 8:30 a.m. She remained in bed and slept. Between 9:00 and 9:30 a.m., she awoke to a bang and rustling. She wondered if her daughter had returned. The witness called out to her boarder, Carrie, to make sure she was alright and had not fallen out of bed. There was no response.

[ 6 ] Ms. Young got up and quickly dressed. She opened her bedroom door and called to Carrie. Again, no answer. Stepping into the hallway, and walking down the hall toward the front door, she saw a shadow or a figure in the area of the residence front door. There was a person outside who it seemed had just exited the house. Ms. Young immediately went out through patio doors onto a front balcony. The weather was clear and sunny. To her right, she saw a man at the top of the stairs leading down from the veranda at the residence front door.

[ 7 ] The individual wore a hoodie. At first, Ms. Young thought the person might be a teenager.

[ 8 ] Ms. Young informed the court that she said, “Excuse me”. She heard her neighbours, Nancy and Jason, yelling from across the street, “He came out of your front door”. When she spoke, from the bottom of the stairs at a distance of only four or five feet away, the man turned and looked up right at her, saying, “I’m a friend of Mike’s. I’m looking for Torrie.” Ms. Young was shocked that a man of his age knew her daughter’s nickname. The witness recalled having a full view of the man’s face. She had never seen him before. At trial, she described the person as looking old, with a weathered face, beady eyes, a missing tooth or teeth, and somewhat of a speech impediment perhaps on account of alcohol consumption. He appeared to be in his forties or fifties. He looked like a drinker, perhaps a transient. She was scared.

[ 9 ] The witness was unable to say what footwear the man was wearing or describe the clothing on his lower body. The witness perceived that the person was balding or had a shaved head. He was not tall and did not have a big build.

[ 10 ] At trial, Ms. Young testified that the hoodie or sweater which was pulled up over the man’s head was dark like the man’s jacket. In describing the jacket further, Ms. Young stated that with its white stripe it reminded her of the garment worn by a gas station attendant or in construction or as a uniform. The white stripe, along the sides of the sleeve or arm up to the shoulder, appeared to be reflecting tape. At trial, the witness accepted the accuracy of the evidence she gave at the preliminary inquiry:

Q. And did you notice anything distinctive about – or did you notice what this person was wearing?

A. A black jacket that had stripes on it, a black sweater with a – he was wearing a hood.

Q. Okay. Was the hood up or down?

A. It was – he was wearing a hood.

[ 11 ] The witness gave this evidence in cross-examination at the preliminary inquiry:

Q. Now where did you say this reflecting tape was located on his coat?

A. I just remember stripes, reflecting tape. Don’t remember exactly. Now, I don’t remember.

Q. Okay. Would it be on his sleeves or you don’t remember?

A. No.

Q. Fair enough.

A. At this point, I don’t remember.

[ 12 ] Jennifer Young testified that the man walked nonchalantly down her driveway with his hands in his pockets. She had a view of his face until he was off the property. This lasted five or six seconds as he looked back toward her. The witness recalled her neighbour shouting, “Jen, call the cops. He came out your front door”. The man walked away fast toward Penbury Gate.

[ 13 ] Ms. Young went inside briefly to grab her keys intending to follow the man in her vehicle.

[ 14 ] On Ms. Young’s evidence, she drove her vehicle, in the area, with her neighbour Nancy Brown as a passenger, looking for the man. After about five minutes, not having located him, she phoned the police from her vehicle.

[ 15 ] Jason Jacques was in a relationship with Nancy Brown who resided at X1 R[…] Dr. directly across the road from the Young residence. They are friends of Ms. Young. On February 5, 2010, between 9:00 and 9:30 a.m., after Ms. Brown’s son had left for school, she was at the front of her home with Mr. Jacques.

[ 16 ] Ms. Brown testified that she saw a man walk along the sidewalk coming from the corner of Penbury Gate and R[…] Drive. She had not seen the man before. He went up the Young driveway. Mr. Jacques first spotted the man as he was ascending the front steps of the home.

[ 17 ] Ms. Brown observed the man knock on the front door of the Young residence. There were a couple of knocks. He did not wait long for a response. Mr. Jacques recalled that the man then turned back toward them, descended the steps and circled around to the rear of the residence. According to Ms. Brown, after only a couple of minutes or so, the same person exited the front door of the home. Mr. Jacques testified that they had an unobstructed view of what was occurring.

[ 18 ] At trial, Nancy Brown described the man as not clean shaven and looking a little scruffy. He appeared to be missing some teeth – his teeth were kind of decayed. The man had decayed and missing teeth – he appeared to have the teeth of a “crack head”. The man was in his early forties and about 5’8” to 5’9” in height with a slim to medium build. He had a hood up. He wore a hoodie and a winter jacket which may have been gray in colour. The witness also described the jacket as dark blue with long reflector stripes down the arms, two to three inches wide from the wrist to the shoulder. It was a jacket like one worn by a postal or construction worker.

[ 19 ] At trial, Mr. Jacques described the man as older, perhaps 44 or 45 years of age. He was balding. He did not have good teeth. He was “homeless looking”.

[ 20 ] Both Brown and Jacques recalled that they took a few steps down their driveway to better observe what was happening. Jacques considered that they were then less than 50 steps from the front of the Young home. The man was walking quickly and coming straight toward them. Jacques screamed out, “Did you see that? Do you know that guy? He just came out of your house”. Ms. Brown testified that she yelled “Did you see that?” Mr. Jacques heard Jennifer Young say, “Excuse me, can I help you?” All he heard of the response was “...friend of Torrie’s”. Ms. Brown heard her neighbour say, “Hello, can I help you?” To her recall, the man mumbled something about looking for Torrie. Mr. Jacques heard “friend of Torrie’s”.

[ 21 ] According to Mr. Jacques, the man walked off toward Penbury Gate. Although the distance of separation from the man was as close as 25 feet at one point, he only saw the person for a total of 30 seconds or so including his approach to, and exit from, the Young home. Ms. Brown’s in-chief estimate of observation time was that she saw the man for perhaps as long as six or seven minutes in total. Under cross-examination, the witness conceded that her original estimate may have been in error – her observations of the man may have been for only two to three minutes.

[ 22 ] Victoria Young testified that only her best friends and family called her “Torrie”. Douglas Turner also called her Torrie. Everyone else, including those at school, knew her as Victoria. Not a lot of people called her Torrie. Although the witness testified that she knew of no one else matching the accused’s description who knew her as Torrie, she was not asked what descriptors she was relying upon. Jason Jacques testified that he never called Victoria, “Torrie”, although he heard her mother do so.

[ 23 ] Victoria Young testified that she knew Douglas Turner through his teenaged son, Nick Keddey. She knew him as Doug. She and Nick had been in grade school together. She first met the accused in 2008 or 2009. She came to know him “pretty well”. Nick’s best friend was Mike Burton someone she had dated. As a result, she was at Nick’s house on M[…] Rd. “all the time” until the end of the summer of 2009.

[ 24 ] According to Victoria Young, when in grades 7 and 8, she would, for example at times when she did not have her keys, access her home by climbing on a little, low-level roof in the backyard outside her bedroom and then climbing in the “crappy window” of her bedroom which had no lock. Some of her close friends, including Mike and Nick who had accompanied her at some point knew she did this.

[ 25 ] According to the witness, the accused knew where she resided as he once picked Nick up from her house. She had watched TV at the accused’s home when the accused was also present in the livingroom. She talked to him about everything. She never had a problem with Mr. Turner and had no ill will toward him.

THE ON-SCENE INVESTIGATION

[ 26 ] On February 5, 2010, Peel Regional Police Service (P.R.P.S.) Constable C. Wighton was in uniform and on patrol when he responded to a radio call at 9:23 a.m. of a report of a break and enter at R[…] Drive. The suspect description broadcast stated that the man was older, in his forties or fifties, he looked worn out, he was bald with thinning gray hair, he wore a gray heavy ski jacket with reflection tape on the side. The officer ordered a canine assist and drove to the scene arriving at 9:25 a.m. When a canine unit came on scene at 9:31 a.m., the officer accompanied the dog and his handler. They were waved down by Ms. Foote at L[…] Rd. who reported that a male person had just run through her backyard. The canine’s efforts to track resulted in no definitive track.

[ 27 ] Constable Wighton returned to the R[…] Dr. scene where he spoke to Jennifer Young. He accompanied Ms. Young to her daughter’s bedroom where he observed wet marks on the floor in the vicinity of the window. The moisture may have been melted snow. He did not go into the back yard. When he learned of the utterance about “Torrie”, the constable requested a Neighbourhood Policing Unit (NPU) officer check on the well-being of Victoria Young at the Peel Central Secondary School where she was enrolled in grade 9.

[ 28 ] By an Agreed Statement of Facts, the parties accepted that P.R.P.S. Robinson would give this information had he been called to testify at trial:

(1) he was working in a uniform capacity in Brampton on February 5, 2010

(2) he had approximately 15 months’ policing experience as of that date

(3) he responded to a radio call at 9:23 a.m. regarding a residential break and enter at R[…] Drive, Brampton

(4) he arrived at that address shortly thereafter – several police officers were already present

(5) he was assigned to take written statements from the complainant Jennifer Young, as well as witnesses Nancy Brown and Jason Jacques

(6) he interviewed each witness separately that morning, standing outside his cruiser

(7) to his recollection, he asked each witness general questions including: “What happened?”, “What did you see?” and “What did the guy look like?”

(8) he does not recall asking any more specific or detailed questions

(9) as a witness answered, he summarized what they said in his hand-writing on a pre-printed witness statement sheet

(10) each witness statement was one-page

(11) he does not recall whether or not he: (1) read the statement back to each witness, and/or (2) provided the statement to the witness for their own review, prior to asking them to sign and date them

(12) despite his lack of specific recollection, it is his usual practice to read the statement back to each witness prior to asking them to sign it

(13) while he does not have an independent recollection, he would not have intentionally or by negligence omitted any evidence that he was provided regarding the suspect’s description (from their statements).

[ 29 ] Ms. Young agreed in cross-examination that after the police responded she was briefly interviewed by a police officer at her residence at the bottom of the driveway. The witness identified a statement in Constable Robinson’s writing which she had signed. She was unable to recall whether she read it over prior to signing. In that statement, she made reference to the suspect’s nose, eyes and teeth and to reflectors on his jacket. No reference was made to the man appearing older or worn or balding, to a big nose or to the condition of his teeth. Ms. Young maintained that she did, however, tell the officer that the man looked old, like a transient.

[ 30 ] Ms. Brown remembered speaking to a number of police officers who responded to the scene. She gave an interview to a police officer as she stood on her driveway. At trial, she had no recall whether, before signing, it was reviewed with her or whether she read it over. The officer asked her for a description of the man she had seen. She told him the truth. The officer noted:

The male was in his early 40’s approximately 5’8 or 5’9, skinny with a hooded sweater, grey jacket with reflecting tape on the sleeves.

[ 31 ] On reviewing the statement at trial, Ms. Brown maintained that the truth was that the man wore a grey hoodie and a blue jacket. The witness agreed that the officer had recorded nothing about the man being balding and unclean shaven. She thought that she had told the officer about the man being scruffy and about his decayed teeth.

[ 32 ] Mr. Jacques testified that he gave a statement to a police officer who was present at the R[…] Drive scene on February 5, 2010. He recalled Nancy Brown being present with him at the time. Jennifer Young may have been there too. At trial, the witness could not recall if the officer reviewed the statement with him. Const. Robinson recorded Jacques reporting having seen a white male about age forty, wearing a jacket with reflectors on it. Mr. Jacques could not recall if he was asked to describe the man’s face. Mr. Jacques testified that he witnessed no other characteristics of the suspect beyond what was recorded in his statement. He had no recall of providing a fuller description to the officer.

[ 33 ] Jennifer Young testified that she checked the condition of her house. Carrie had cleaned up wetness from the hallway floor. Ms. Young discovered the window was open in her daughter’s bedroom. On the floor at the location of that window she observed what appeared to be melted snow. The witness also observed footprints in the snow along the side of the house and into the backyard and at the back. Victoria Young testified that there was no water on her bedroom floor when she left for school.

[ 34 ] Victoria Young informed the court that when she returned to her room later in the day on February 5, 2010 she observed dried water marks on the floor. She had never seen this on a prior occasion. She saw nothing on the little roof outside her window. She observed “left-over bootprints” in the snow in the backyard.

[ 35 ] As of February 5, 2010, P.R.P.S. Constable A. Nicol, the officer in charge, had been in the Criminal Investigation Bureau for only three days. He had been a police officer since April 2005. He was getting his “feet wet” on this investigation. At about 10:20 a.m. on February 5, he volunteered for the R[…] Dr. break and enter case. He drove to the scene.

[ 36 ] Const. Nicol had a description of the suspect. At the scene, he met Const. Robinson, was briefed and learned that other officers were doing “a track” with a police dog.

[ 37 ] Ms. Young testified that she telephoned her daughter to tell her of the incident. She asked Victoria if she knew anyone of the description she provided who knew Mike. Victoria thought it could be a particular person. To Ms. Young’s recall, Victoria said it was possibly Doug Turner. She may have asked her daughter a couple of questions about the accused.

[ 38 ] In February 2010, Margaret Foote resided at L[…] Road in Brampton. Her residence is one block away from Ms. Young’s home. She does not know Jennifer Young, Nancy Brown or Jason Jacques. On February 5, at about 9:15 a.m., as she sat watching T.V., she heard a “clamour noise”. When she went to look out of the window of her back bedroom, she observed that a man had entered her fenced back yard apparently through a 6’-tall gate at the side of the house. She observed the man round around the pool in her yard and then scale the fence and run through the schoolyard in the direction of Kingswood Public School. He ran as though trying to get away from something.

[ 39 ] Asked at trial to describe the man, Ms. Foote stated that he had a hood up as he wore a grey hoodie and a dark blue jacket. The witness also said that she was “not sure” if the hoodie was grey. She was sure the jacket was blue. She could not see his face. She believed, from seeing his hands as he went over the fence, that the man was white. The witness stated that she was “almost sure” the jacket had a white stripe, “something white” about two inches wide, on the sleeve or the back. She also testified that she was almost sure the white stripe was on the mid or lower back of the jacket.

[ 40 ] Ms. Foote testified that she spoke to police officers on February 5. She could not recall if they were taking notes.

[ 41 ] Ms. Foote agreed that she provided a statement to a police officer on March 21, 2010. She signed the statements as being accurate. The officer recorded this description:

He was wearing a blue coloured jacket with a light coloured band 2” wide across the mid back of the jacket. He had a hood over his head.

[ 42 ] No fingerprints were located suitable for analysis as a result of police fingerprinting the window of Victoria Young’s bedroom window.

THE ARREST

[ 43 ] Const. Wighton received information from Const. McKenzie of the NPU that based on the reference to “Mike” and the suspect’s description, he was proceeding with Victoria Young to M[…] Road in Brampton, a residential road near Kingswood Public School. Const. Wighton arrived at M[…] Rd. at 10:43 a.m. Const. McKenzie brought Victoria Young by. She pointed out the accused’s residence.

[ 44 ] Const. Wighton informed the court that his door knock was answered by a male party fitting the suspect’s description. The man appeared to be 40 to 50 years of age, almost bald with thinning gray hair with longer hair strands at the back, unshaven, wearing dirty clothes including a dark orange hoodie, black jeans with white nylon wind pants over top. The man had some upper and lower teeth missing. The officer was not asked at trial to compare Turner’s in-court appearance to that about two years earlier.

[ 45 ] According to the officer, as he stood in the home’s doorway, he looked to his right and saw black boots on the floor and “balled up” were a gray jacket and a dark-coloured hoodie which was navy or black. The constable arrested Douglas Turner. He considered the arrestee to be six feet tall and to weigh about 160 pounds. The officer did not handle, photograph or seize the clothing.

EVENTS AT P.R.P.S. 22 DIVISION

[ 46 ] In her videotaped statement to the police, Ms. Young disclosed that on route to the police station with Nancy Brown on February 5 they discussed the incident – “we were talking that we actually seen the same thing...we talked about the teeth” and:

...I said he looked older, like scruffy. And she said, yah, you know she said ‘cause when she was talking, it’s like, yah, I thought the same thing. So that’s the kind of information.

In cross-examination, Ms. Young acknowledged that she discussed with Ms. Brown what the suspect looked like, effectively an attempt to “fill in the blanks” of what he looked like.

[ 47 ] Ms. Brown recalled travelling to the police station with Ms. Young. On her evidence, there were no discussions in Ms. Young’s vehicle relating to the observations of the break and enter suspect.

[ 48 ] At P.R.P.S. 22 Division, commencing at about 2:00 p.m. on February 5, Jennifer Young provided a videotaped statement to the police. She was nervous. She informed the officers of the morning’s events. She related that she thought she heard her front door close just before she spotted the man on her front porch. In describing the man, Ms. Young stated that he was “maybe” in his forties but looked rough and scrawny and older than his age – like “a drunk hanging out at a bar”. He had “bad teeth” with “maybe missing teeth”. He had a long nose and a weathered face. The man wore a black or gray jacket with reflection tape. He wore clothing which could have been a hoodie. She had the impression that the man was balding. As well, there was “something wrong just because of his voice”. Although “it sounded like he was drunk”, he may not have been. There was a speech abnormality perhaps on account of his teeth.

[ 49 ] Ms. Young agreed in cross-examination that there was nothing said in her videotaped statement about the suspect’s teeth, beady eyes, facial hair, nose size or transient appearance.

[ 50 ] During her police interview, Ms. Young undertook a photographic identification procedure. It is agreed that the pre-viewing instructions were fair. The 12-pack sampling of photos was fair. A sequential line-up procedure was utilized. There were no unfair suggestions or language by Const. Taylor, the officer who administered the process, an officer with no involvement in the investigation. On each photo sheet was the following text:

Photograph Number: X

Do you recognize the person?

Please circle: YES or NO

If yes, please state why you recognize this person.

[ 51 ] The results of the identification procedure may be summarized as follows:

Photo #1

• did not recognize

Photo #2

• did not recognize - at time of viewing, stated “I need teeth. That’s what’s staying out in my mind the most”

Photo #3

• did not recognize

Photo #4

• Ms. Young circled ‘Yes’ that she recognized the man in the photo - in recording why there was recognition, she wrote “Note, Old Look, Eyes” while saying out loud:
  MS. YOUNG: The old -, this one could be a possibility. If, if this person could open up their mouth I would, I would be able to say, this one creeps me out. Can’t put maybe? (Laughs)
  CONST. TAYLOR: If you feel that you recognize him then...
  MS. YOUNG: It just...
  CONST. TAYLOR: Then write down why you think you recognize him and then it’s a yes.

Photo #5

• did not recognize

Photo #6

• did not recognize - commented “His head’s too big”

Photo #7 (DOUGLAS TURNER)

• because police misplaced photo, there is no record as to what words or description Ms. Young recorded on the photo sheet - contemporaneous with viewing the photo, Ms. Young stated:
  MS. YOUNG: (Views photo #7). This one feels weird too. But I’m trying to picture it like with the, the thing like that, hood. I don’t want to be confusing myself. Sorry. I’m gonna put a yes ‘cause it’s making me feel um, 7?
  CONST. TAYLOR: Yes.
  MS. YOUNG: (Writes on photo).
  CONST. TAYLOR: And if, if you’re gonna go yes don’t forget to write the reasons down.
  MS. YOUNG: February. Um, (writes on photo). That might be just a little too old but he just looks familiar but I can’t put a finger on it.

Photo #8

• did not recognize

Photo #9

• did not recognize

Photo #10

• did not recognize

Photo #11

• did not recognize

Photo #12

• did not recognize

[ 52 ] When the line-up administrator left, and Const. Nicol, one of the investigating officers, returned, Ms. Young stated:

CONST. NICOL: Okay, Jennifer. How did you feel about that?

MS. YOUNG: It was weird, it was hard.

CONST. NICOL: Yeah, I know. That’s, that’s the purpose of it, right?

MS. YOUNG: Mm-hmm.

CONST. NICOL: ‘Cause, uh, we, we can’t, we’re not allowed, we can’t make it too easy...

MS. YOUNG: Yeah, I know.

CONST. NICOL: ...right, we need to make sure that...

MS. YOUNG: I just kind went with like feelings and just...

CONST. NICOL: Yeah.

MS. YOUNG: ...um, I think I picked two.

CONST. NICOL: Yeah.

MS. YOUNG: And then just, it’s just the feeling that I got when I opened it.

[ 53 ] The court heard evidence that the photos, apart from photo #7, were randomly selected by a computer program and refined selection based on the input of various descriptors. Because there was no evidence as to the date photo #7 was taken, no cross-reference could be made regarding the likelihood of Turner’s appearance in the photo being similar to that on February 5, 2010.

[ 54 ] Ms. Young testified at trial that she was nervous during the identification process as she did not want to make a mistake. In the end, in her words, in dealing with photo #7, “I was going more with feeling”. In re-examination, Ms. Young stated that at the time of the line-up procedure the photo bothered her – he looked familiar – how old he was – he seemed familiar to the person outside her house. The witness accepted the accuracy of her preliminary inquiry evidence:

A. Two of the pictures did catch my attention, just from I guess the facial shapes, the long nose, I think beady eyes, grey hair.

Q. Okay.

A. One actually made me even feel more uncomfortable than the other.

Q. Sorry?

A. One of the photos made me even more – made me feel more uncomfortable than the other.

Q. More uncomfortable?

A. More uncomfortable.

Q. Okay.

A. Like this could – this could possibly be the person.

[ 55 ] Constable Nicol, though responsible for all investigative materials in the case, including #7 in the identification photo pack used for Ms. Young’s identification procedure, had no idea what happened to the original photo and was unable to say what Ms. Young wrote on the photo.

[ 56 ] At trial, when shown a duplicate photo of Mr. Turner, Ms. Young identified it as a photo of the man she was shown seventh in the sequence in the identification process. She testified that during the identification process she told the police officer that the photo of the accused was “weird too” as she “recognized” this person as having been outside her house on the day of the break-in.

[ 57 ] Victoria Young testified that she was taken to P.R.P.S. 22 Division ahead of her mother’s arrival. She testified that as she was being walked to an interview room beyond the lobby and toward the back of the police facility she saw Douglas Turner from the back at a distance of 15 to 18 feet as he was escorted by a different officer. She recognized the accused by the way he walked – his arms out, rolling his shoulders, with a “distinguishable” walk as he “noticeably waddles as he walks”.

[ 58 ] Victoria testified that after her video interview, she met her mother who had come to the station. She asked her mother what had happened. They talked about Douglas Turner and why Victoria thought it was him after she received information from the police about the suspect. They discussed his body build and hair colour. Asked in-chief whether she spoke to her mother about the accused’s appearance, the witness replied, “Not really”. On Victoria’s evidence, Nancy Brown was present too. She spoke to Nancy about what had occurred but not about the accused or his appearance. The witness then waited for her mother to give her video statement.

THE PRELIMINARY INQUIRY “IDENTIFICATION”

[ 59 ] Mr. Jacques testified that he has never spoken to Jennifer Young or Victoria about the break and enter. On the witness’ evidence, between February 5, 2010 and the December 21, 2010 preliminary inquiry, on one or two occasions, while travelling on a public transit bus in the L[…] Road/Kennedy Road area, he saw a man he believed to be the person who had broken into his neighbour’s home. Asked what he recognized about the man, the witness provided no specific identifying features - he considered the man to be “very unique” in his looks – not your average everyday person.

[ 60 ] Jennifer Young testified that on December 21, 2010, the date of the preliminary inquiry, as she walked down the courthouse hallway toward the relevant courtroom, she recognized an individual who was seated outside the courtroom as the person who had broken into her home. According to the witness’ trial evidence, she felt nervous and uncomfortable – “I knew it was him”; “I recognized him” – the eyes, the nose, “he looked old”. She kept this to herself until Victoria nudged her and said “that’s him”. The witness testified that she did not ask her daughter “is that Douglas Turner there?”

[ 61 ] Victoria Young testified that she travelled to court with her mother and Nancy Brown on December 21, 2010 for the preliminary inquiry. In cross-examination, the witness did not at first agree that at the courthouse her mother nudged her asking “is that Doug over there?” She did recall a discussion and that she nudged her mother in a discussion about “that was Doug”. Confronted with the following passage from her preliminary inquiry evidence, Victoria then agreed to its accuracy as to what had occurred:

Q. Okay. Did she say anything about when she was coming to court today, that, you know, about how she would know who the guy was or anything like that?

A. Not really, no.

Q. Not really?

A. No.

Q. No, for sure?

A. Yes.

Q. Okay. So you came – your mom may have ended up seeing Doug at some point, right?

A. Yeah.

Q. You were with her when she saw Doug?

A. Yes.

Q. And did you say something like, you know, “There’s Doug there”?

A. No. She asked me if that was him.

Q. She asked you if that was Doug?

A. Yeah, she kind of did a little nudge and “Is that Doug?” And I was like, “Yeah.”

Q. Okay. All right. And what was Doug doing when you – when you – when the conversation happened between the two of you?

A. He was just sitting there.

Q. He was just sitting there. Was he by himself or...

A. Yeah.

[ 62 ] Ms. Brown testified that she next saw the man she had observed exit her neighbour’s house when she attended the courthouse on March 14, 2011 for the preliminary inquiry. The witness informed the court that as she sat outside the courtroom with Jennifer Young and a police officer she saw Mr. Turner exit the elevator. It turned her stomach – she was nervous. He came and sat a couple of seats away. In her view, he was wearing the same jacket she had seen on February 5 – a blue, winter jacket with reflectors down the sleeves.

[ 63 ] At the preliminary inquiry, for the first time, Ms. Brown positively identified the accused as the man who broke and entered her neighbour’s home. Mr. Jacques testified that it was at the preliminary inquiry that he said for the first time “That’s the guy”.

[ 64 ] Const. Nicol testified that on December 21, 2010, in the courthouse hallway, either Nancy Brown or Jason Jacques came up to him in an excited state pointing at Douglas Turner and saying the jacket he was wearing was the same one worn by the man exiting the Young home on February 5. He made no note of the matter. The officer observed the accused wearing what he described as “a dark gray blue” jacket with reflective stripes on the arms. On the constable’s evidence, Brown and Jacques claimed that they had immediately identified Turner when they saw him – they could not believe he wore the same coat to court.

TRIAL “IDENTIFICATION”

[ 65 ] Here, at trial, Ms. Young identified Mr. Turner, as he sat at counsel table beside his lawyer, as the person she saw on February 5, 2010. In her in-chief evidence, the witness maintained that she was 100% certain that Douglas Turner was the person responsible for the break-in.

[ 66 ] At trial, Ms. Brown identified Mr. Turner seated at counsel table as the man she saw on February 5, 2010 – in her in-chief testimony, she was “positive” he was the man. At trial, Mr. Jacques testified in-chief that he was “certain” that the accused in court was the man he had seen on February 5, 2010. He was unable to tell the court why he is able to now provide details about the suspect he did not relate to Const. Robinson on February 5, 2010.

POSITIONS OF THE PARTIES

The Crown

[ 67 ] On behalf of the prosecution, Mr. Coughlin acknowledged the generally known frailties attaching to eye-witness evidence. Counsel fairly acknowledged that frailties existed in this case including a problematic police investigation. Counsel submitted, however, that the Crown proved beyond a reasonable doubt that Douglas Turner broke and entered the Young residence on February 5, 2010. Counsel emphasized that the court must consider not only the eye-witness testimony but also the cumulative impact of the relevant circumstantial evidence.

[ 68 ] It was submitted that the general descriptions of the suspect provided by Jennifer Young, Jacques and Brown on February 5, 2010 were largely consistent with one another and with the appearance of Douglas Turner.

[ 69 ] In addressing Jennifer Young’s evidence, counsel submitted that the complainant provided a good description of the suspect in her initial contacts with the police. She had good close-up opportunity to see the suspect. Although she and Ms. Brown chatted on route to the police station on a general level about the suspect, any issue of tainting is properly left as a matter of weight.

[ 70 ] Crown counsel noted the properly conducted photo identification procedure. With respect to photo #7, Mr. Coughlin argued that Ms. Young’s comments and reaction can be interpreted as some recognition – a positive identification deserving of some weight. Counsel submitted that the complainant’s identification was strengthened by her recognition of Mr. Turner in the courthouse hallway on December 21, 2010 as well as the in-dock identifications at the preliminary inquiry and again at trial.

[ 71 ] Crown counsel submitted that Brown and Jacques were also credible witnesses whose evidence was not undermined. They had a good opportunity to see the suspect. While photo line-ups should have been shown to the two witnesses, other evidence supports their testimony. Mr. Jacques, who saw the accused on the bus before the preliminary inquiry, then identified him in the courthouse hallway. Ms. Brown recognized the accused in that hallway. One of the witnesses recognized Mr. Turner’s jacket and alerted Const. Nicol. Jacques and Brown identified the accused as the suspect at the preliminary inquiry and trial.

[ 72 ] Constable Wightman’s observations of Douglas Turner supported those of the civilian witnesses including the state of the suspect’s teeth.

[ 73 ] It was submitted that while there were some inconsistencies in the prosecution evidence (for example, the colour of the suspect’s jacket), and “no doubt the possibilities” for some innocent contamination, there are additional powerful circumstances pointing toward the accused.

[ 74 ] At the relevant time, a man matching the break and enter suspect’s description was seen fleeing on a relatively direct route between the Young residence and the Turner home.

[ 75 ] Only a small class of persons knew Victoria as “Torrie” and of her connection to Mike Burton and of the manner of accessing the Young home through her bedroom window. The only one matching Douglas Turner’s description was Douglas Turner.

The Defence

[ 76 ] Mr. O’Brien submitted that in an ordinary eye-witness identification case caution is necessary on account of the well-recognized frailties of such evidence. Here, it was argued, those concerns are accentuated for a number of reasons including the context of a stranger identification, inconsistencies in the eye-witnesses’ accounts, evolving suspect descriptions by the witnesses, the existence of witness contamination, and the significant negligent inadequacies in the police investigation.

[ 77 ] It was submitted that Jennifer Young did not make a positive identification of Douglas Turner in the photo identification procedure administered by the police. A feeling of weirdness does not an identification make. What the witness wrote on photo #7 is irretrievably lost.

[ 78 ] Counsel submitted that any “supporting” evidence based on Ms. Foote’s evidence and that relating to the suspect’s reference to “Torrie” is sufficiently weak that it is incapable of propping up an otherwise slim identification case.

[ 79 ] Mr. O’Brien emphasized that the honest belief of the witnesses in their identification opinions does not, in the circumstances, provide the necessary measure of reliability to meet the criminal standard of proof. The witnesses’ in-court identifications are valueless.

[ 80 ] The prospect of witness contamination is very real. In the context of evolving suspect descriptions by the eye-witnesses as additional descriptors have been added over time, real concern exists relating to the merging of witness recollections as relevant discussions occurred between some of them at the scene of the break and enter, during vehicle rides, over the phone, and at the courthouse.

[ 81 ] It was submitted that the court should note description inconsistencies including those relating to the colour of the suspect’s coat and the position of any white striping on that garment.

[ 82 ] The prosecution’s discharge of proof is further weakened by the actions of the police including the loss of photo #7 with Ms. Young’s notes, the failure of Const. Robinson to ask further questions about the suspect’s description, the failure to seize Mr. Turner’s clothes incident to arrest, the failure to take forensic measures regarding the footprints in the backyard of the Young residence, and the lack of notes on the part of Const. Nicol as to what witnesses related to him in the courthouse hallway at the time of the preliminary inquiry.

[ 83 ] Mr. O’Brien submitted that encouragement to stretch the evidence to conclude that the accused is the person responsible for breaking into Ms. Young’s residence would, in all the circumstances, invite a miscarriage of justice.

ANALYSIS

[ 84 ] Because of “the dangers inherent in eyewitness testimony” (R. v. Miaponoose (1996), 30 O.R. (3d) 419 (C.A.), at p. 421), eyewitness identification evidence “is inherently unreliable”: R. v. Goran, 2008 ONCA 195, at para. 19. The “inherent frailties of eyewitness identification evidence are well-established” and can “lead to wrongful convictions, even in cases where multiple witnesses have identified the same accused”: R. v. F.A. (2004), 183 C.C.C. (3d) 518 (Ont. C.A.), at para. 39. “[S]pecial caution is called for when assessing eyewitness identification evidence”: R. v. Hersi, at para. 14; R. v. Tat (1997), 117 C.C.C. (3d) 481 (Ont. C.A.), at pp. 515‑16. Accordingly, “although identification is a matter of fact, appellate courts will subject such findings to closer scrutiny than is generally the case with findings of fact”: Goran, at para. 20; R. v. Harvey (2001), 160 C.C.C. (3d) 52 (Ont. C.A.), at para. 19.

[ 85 ] The importance of securing immediate, independent and fulsome descriptions from eyewitnesses cannot be gainsaid as observed in R. v. Atfield, 1983 ABCA 44, at para. 60:

It is important that investigating police should obtain from each identification witness, as soon as possible after the alleged observation, the fullest description of the person observed, which can be cross-checked with the descriptions given by other witnesses, and with the actual appearance of the person suspected, and with the descriptions given by the witnesses in court. The witnesses should be interviewed independently of each other, if at all possible before they have had the opportunity of communicating, and always without suggestion or assistance. Meticulous notes should be taken of the descriptions obtained. This was not done in the present case.

[ 86 ] In-dock identification is unsatisfactory and adds little weight: F.A., at para. 47; R. v. Izzard (1990), 54 C.C.C. (3d) 252 (Ont. C.A.), at pp. 255‑6.

[ 87 ] Judicial experience with eye-witness identification evidence has established that all too often it has been the cause of wrongful convictions. The underlying causes have been many and various including reliance upon an honest and convincing witness who is mistaken, suggestive and improper police techniques, witness contamination, poor opportunity to view a stranger suspect, the distorting effect of stressful circumstances (i.e. weapon focus), unconscious filling in of gaps with erroneous characteristics, etc.

[ 88 ] The notorious risk associated with eye-witness identification prosecutions tends to be accentuated where there is an absence of confirmation by forensic or other evidence.

[ 89 ] In the instance of the purported identification of a stranger, as opposed to reported recognition of a person previously known or encountered by the witness, the court must proceed cautiously in assessing the evidence of an eye-witness claiming that the person observed at a crime scene is, in his or her opinion, the person subsequently identified.

[ 90 ] The prosecution case rests on what is said to be the cumulative impact of eye-witness testimony and supportive circumstantial evidence and in particular the following:

(1) Jennifer Young, Nancy Brown and Jason Jacques had a good and unobstructed opportunity to observe the break-and-enter suspect

(2) although the eye-witnesses did not recognize the suspect, there were commonalities in their descriptions including his age range, his jacket with reflector tape, his weathered facial appearance, and the condition of his teeth

(3) the appearance of the person arrested for the crime, Douglas Turner, on Const. Wighton’s evidence, had consistencies with eye-witness descriptions including the suspect’s age, that he was balding, and the condition of his teeth

(4) in the fairly conducted photo-pack identification procedure, Jennifer Young exhibited recognition of the photo of Douglas Turner as the person responsible for the break-in

(5) very shortly after the break-in, a white male person with a gray hoodie and blue jacket with reflector tape ran through Ms. Foote’s backyard on an approximate diagonal path from the location of the Young residence to the nearby M[…] Street residence of Douglas Turner

(6) Douglas Turner was arrested at home about 1 ½ hours after the break-in only a few blocks away from the Young residence – a dark-coloured hoodie and gray jacket were on the floor in the front hall of his residence

(7) the utterance by the break and enter suspect, (with reference to being a friend of “Mike” and looking for “Torrie”), and the apparent point of unlawful entry to the Young residence (Victoria’s bedroom window) circumstantially evidence a connection to Douglas Turner on the following bases:

(a) Victoria Turner dated “Mike” Burton, the best friend of Douglas Turner’s son, Nick

(b) only a small circle of persons called her “Torrie” including Mike and Nick which would be known to the accused and, other than Douglas Turner, she knew of no one else with his appearance who knew her as Torrie

(c) during the prior summer, Victoria spent a lot of time at the Turner residence – she spent time in Douglas Turner’s presence

(d) Mike and Nick were aware that she at times accessed her residence through the unlocked window of her bedroom at the rear of the house

(e) Douglas Turner knew where she lived

(8) Jason Jacques recognized Douglas Turner as the suspect when he observed him on a bus, when seen wearing the same jacket at the courthouse at the preliminary inquiry as the suspect, and during an in-trial identification

(9) Jennifer Young recognized Douglas Turner as the suspect when she observed him outside the courtroom at the preliminary inquiry and subsequently identified the accused at the preliminary inquiry and at trial as the person who broke into her home

(10) Nancy Brown recognized Turner as the suspect when she saw him at the courthouse at the preliminary inquiry wearing the same jacket as on February 5, 2010 – she subsequently identified the accused at the preliminary inquiry and at trial as the suspect.

[ 91 ] Standing alone, with its cumulative import, this body of evidence has compelling probative force toward identifying Douglas Turner as the person responsible for the break-and-enter. That said, the evidence is deserving of closer scrutiny - searching assessment consistent with our experiential disappointment in eyewitness identification evidence.

[ 92 ] In the present case, none of the eye-witnesses knew Douglas Turner on or before February 5, 2010. Turner’s fingerprints were not located at the Young home. When arrested, the accused was not in possession of any stolen property from the residential break and enter. The prosecution did not prove Turner’s age at trial. The police dog did not track the suspect to the Turner residence.

[ 93 ] Before turning to the identification evidence of the eye-witnesses, Young, Brown and Jacques, it is necessary to recognize the additional case-specific weaknesses present in this prosecution including:

(1) the real prospect for witness contamination

(2) the evolving nature of the eye-witnesses’ description of the suspect

(3) whether Jennifer Young made an “identification” during the photo line-up procedure

(4) the quality of aspects of the police investigation

(5) differences between the descriptions provided by the eye-witnesses

(6) police evidence relating to Turner’s appearance on arrest differing from the description given by an eye-witness

(7) evidence of a characteristic of Douglas Turner not described by the eye-witnesses

(8) the nature of the subsequent “identifications”.

These detracting factors deserve greater scrutiny.

[ 94 ] The Crown, quite rightly, acknowledged the possibility of witness contamination being operative in this case. In this regard, the following circumstances fall to be considered:

(1) immediately after the break-in, and prior to any call to the police, Jennifer Young and Nancy Brown drove together in the neighbourhood looking for the suspect

(2) on the telephone, Jennifer Young discussed with Victoria her description of the suspect

(3) although Const. Robinson recalls that he interviewed the three eye-witnesses separately, it is unknown whether they informally gathered on R[…] Drive to discuss their observations – further, Jason Jacques recalled that Nancy Brown was present in the area when he gave his statement and that Jennifer Young may have been as well

(4) Jennifer Young and Ms. Brown, while travelling together to the police station, on Young’s evidence, discussed the appearance of the suspect

(5) at the police station, after their video interviews, and after Victoria had seen Douglas Turner at the station, Jennifer Young and Victoria again discussed the suspect

(6) at the preliminary inquiry, at the courthouse, there appears to have been discussion between Nancy Brown and Jason Jacques about Douglas Turner and his coat and then by the witnesses with Const. Nicol

(7) also at the courthouse, Jennifer and Victoria Young discussed Douglas Turner.

[ 95 ] The quality and reliability of an eye-witness’ testimony may be diminished by lack of confidence in its independence. Whether described as collusion, contamination or even unconscious tainting, a reported description which is in reality a composite defeats effective cross-examination as well as the probative force which would otherwise be properly assigned to multiple eye-witnesses’ evidence.

[ 96 ] Closely related to the prospect of contamination of the eye-witnesses in this case is the “evolving” nature of descriptions they provided. Turning first to Jennifer Young, who made a phonecall to the police within minutes of the break-in, it is apparent that the police dispatch broadcast to Const. Wighton at 9:23 a.m. was based on her call. For obvious reasons, it can be safely assumed that the police dispatch was intended to fully convey to patrol officers the information she provided. The dispatch described the suspect in his forties or fifties including a gray ski jacket with reflector tape but none of the suspect’s facial features. On Const. Robinson’s account of Ms. Young’s on-scene description of the suspect, she made no reference to him appearing older or worn or to the condition of his teeth. No specific detail was given regarding the suspect’s facial features. At the police station, Ms. Young maintained that the suspect’s jacket was black or gray. Nothing was said about the suspect appearing like a transient or having an unshaven face. During the photo-pack line-up procedure, described above at paragraphs 50-2, Ms. Young described the person in photo #7 as perhaps being too old.

[ 97 ] The in-court identification of the accused at the preliminary inquiry is of little weight given the suggestive environment of the courtroom. At the inquiry, Ms. Young described the suspect’s jacket as black and was unable to say where on the jacket the reflector tape was located.

[ 98 ] At trial, with another in-court identification of the accused, also deserving of minimal weight, with the accused seated a few feet away from her beside defence counsel, Ms. Young provided her fullest single description of the suspect.

[ 99 ] At the scene, on Const. Robinson’s account, Nancy Brown described the suspect as in his early forties wearing a gray jacket. Nothing was recorded as to the suspect being scruffy and not clean-shaven or to him being balding or having decayed teeth. By the time of trial, Ms. Brown provided a fuller description of the suspect including these characteristics and others. At trial, the witness testified that Douglas Turner wore the same blue jacket to the preliminary inquiry. Over time, the witness variously described the suspect’s jacket as gray, blue or dark blue. The in-court identifications by the witness at the preliminary inquiry and at trial are, in all the circumstances, essentially valueless.

[ 100 ] Mr. Jacques provided an undetailed description of the suspect to Const. Robinson. He has purported to subsequently identify the accused as the suspect although it seems he did not contemporaneously report the “bus sighting(s)” and he cannot say why he has been able over time to add more details about the suspect’s appearance.

[ 101 ] In certain respects, the eye-witnesses provided only general or generic descriptor characteristics. Their degree of certainty of an identification of Douglas Turner increased over time. The eye-witnesses’ progressive addition of additional characteristics attributable to the suspect is coincidental with discussions among the witnesses and with being in the immediate presence of the arrested party.

[ 102 ] It cannot safely be said that Jennifer Young made an identification of Douglas Turner during the police-administered photo line-up procedure considering that:

(1) Ms. Young put a “YES” on photo #4 as possibly being the suspect – a photo of someone other than the accused

(2) the written comments of Ms. Young in saying “YES” to photo #7, Douglas Turner’s photo, are unavailable

(3) Ms. Young described her evaluation of photo #7 as it feeling “weird” and that, in going with her “feelings”, she “picked two” of the photos

(4) in her sworn evidence at the preliminary inquiry, the witness stated that photo #7 made her feel “more uncomfortable” than photo #4 and that the person depicted in photo #7 “could possibly be the person”.

[ 103 ] The totality of the circumstances of Ms. Young’s line-up opinion, such as it was, expressed a few hours after the break-in, does not support an “identification” of Douglas Turner as the individual responsible for breaking into her residence. The witness observed the suspect five hours earlier from a distance of only a few feet but was unable, at the police facility, to positively identify Turner as the culprit.

[ 104 ] The high point, in terms of quality of the police investigation, was the fair administration of a sequential photo-pack line-up by an officer uninvolved in the investigation. However, the investigating officer was inexperienced. Other aspects of the police work left much to be desired including:

(1) the failure to have Brown and Jacques undertake an attempt at identification through a photo line-up

(2) the unexplained loss of photo #7, the photo of Douglas Turner, with Jennifer Young’s written comments

(3) the lack of detail elicited in the statements taken by Const. Robinson

(4) no photographs of the bootprints were taken or casts of the footprints in the snow at the rear of the Young residence

(5) no seizure of clothing and footwear incident to arrest was undertaken at Turner’s M[…] Street dwelling – nor were photos taken of the items in plain view

(6) Const. Nicol made no notes as to what was said to him by Brown and Jacques at the courthouse about Turner and his appearance.

[ 105 ] These observations are not about marking the performance of a police investigation but rather about what might fairly be described as gaps in the prosecution case which may affect the Crown’s discharge of proof.

[ 106 ] None of the eye-witnesses were able to describe the suspect’s lower body clothing or footwear. They reported white reflector tape on the suspect’s jacket. While a noticeable characteristic of the suspect’s clothing, there was no suggestion that this feature was singularly unique. As well, reports of the colour of the jacket were not uniform. Jennifer Young variously described the garment as gray or black. Over time, Ms. Brown described the jacket as gray, blue or dark blue. Ms. Foote described a dark blue jacket. Const. Wighton observed a gray jacket in the hallway of the accused’s home. The witness made no reference to reflector tape on that jacket. Const. Nicol managed to cover a spectrum of colour for the jacket Turner wore to the preliminary inquiry – dark gray blue.

[ 107 ] Nancy Brown described the suspect as 5’8”-9” in height. On her evidence, she considered herself a good judge of a person’s height. At trial, Jennifer Young described the suspect as “not tall”. On the other hand, Const. Wighton informed the court that Douglas Turner was six feet tall. This discrepancy is a factor to be considered.

[ 108 ] Victoria Young, the only witness at trial who knew Douglas Turner, testified that he had a distinguishable walk as he noticeably waddles when he walks. None of Jennifer Young, Brown or Jacques attributed such a characteristic to the break-and-enter suspect.

[ 109 ] As noted, although Jason Jacques purported to have seen the break and enter suspect once or twice on a neighbourhood bus, he made no report to the police about his opinion. To repeat, in-court identification by eye-witnesses are deserving of little or no weight given the highly suggestive circumstances of such exercises.

[ 110 ] The resolution of prosecutions turning on identification of the offender are in large measure factually-driven assessments of the totality of the evidence. Whether the burden of proof has been discharged is dependant on the cumulative impact of the evidence pointing to the accused’s liability. This proved to be a close case. The Crown’s evidence taken as a whole is by no means overwhelming. Unbundled, or given cumulative effect, the prosecution evidence cannot withstand discriminating analysis. The features of the evidence detracting from Douglas Turner being responsible, in the context of the ever-present risk of a miscarriage of justice in these cases, cause the prosecution to fall short of proving beyond a reasonable doubt that the accused is the person responsible for the crime.

CONCLUSION

[ 111 ] The accused is found Not Guilty.

HILL J.

Released: April 12, 2012

COURT FILE NO.: CRIMJ(P) 823/10
DATE: 20120412

ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: HER MAJESTY THE QUEEN

• and –
  DOUGLAS ANDREW TURNER

JUDGMENT
HILL J.

Released: April 12, 2012