ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-10000107-0000
DATE: 20120723

BETWEEN:

her majesty the queen - and - LAWRENCE OSBORNE

Ms. Barbara Bennett, for the Crown
Mr. Tyler Smith for Mr. Osborne

HEARD: July 16, 17 & 18, 2012

M. FORESTELL J.

REASONS FOR DECISION

1. Overview

[ 1 ] The accused, Lawrence Osborne, has pleaded not guilty to: sexual assault, touching a person under fourteen for a sexual purpose, two counts of invitation to sexual touching and unlawful confinement. Mr. Osborne elected trial by judge alone and the trial proceeded before me over two and a half days.

[ 2 ] The charges all relate to an incident involving the complainant P.J., in the summer of 2009. In 2009, P.J. was 8 years old. She lived at 2.[…] L[...]G[...] in the City of Toronto with her parents and siblings. She testified that when she went to the garbage chute in her apartment building, she was confined by a man who asked to see her underwear, attempted to lift her dress and to pull her dress down, asked her to touch his penis and then masturbated in front of her.

[ 3 ] The incident was brought to the attention of the police just over a year after it occurred. P.J. then made a statement and participated in a photo lineup in which she selected the photo of Mr. Osborne. The issue in this trial is identification.

2. The Evidence

[ 4 ] There were four witnesses called at trial: the complainant, P.J.; her mother, S.C.; Mr. Osborne’s landlord, Lutfoli Madhavja; and the investigating officer, Detective Darryl Kempster.

[ 5 ] P.J. was 11 years old when she testified. She promised to tell the truth and gave her evidence from outside the courtroom by way of CCTV. The statement given by P.J to the police on October 21, 2009 describing the incident in the garbage chute was played and adopted by P.J. Pursuant to s. 715.1 of the Criminal Code , R.S.C., 1985, c. C-46, that statement was admitted in evidence. P.J. made a further videotaped statement on October 28, 2009 when she attended for a photo lineup. She adopted this statement and it was also admitted pursuant to s. 715.1 . Although the October 28, 2009 video does not contain a ‘description of the acts complained of’ as described in s. 715.1 , it was agreed by counsel that the video forms part of the statement that began on October 21, 2009 and should be admitted and considered in conjunction with that statement. Both videos therefore were admitted for the truth of their contents under s. 715.1 .

[ 6 ] Both counsel agreed that because the issue in this case is the evolution of the identification evidence of P.J., the preliminary inquiry transcript of P.J.’s evidence on November 10, 2011 should be admitted and considered by me on the issue of identification. Both counsel agreed that the preliminary inquiry evidence was relevant and admissible as evidence of the context of the identification of Mr. Osborne by the complainant.

[ 7 ] I will briefly outline some of the evidence at trial before turning to my factual findings and the legal analysis.

Evidence Relating to the Incident

[ 8 ] P.J. first disclosed that an incident had occurred after her family had moved out of Toronto. P.J.’s mother, S.C., testified that P.J. told her about the incident around October of 2009. P.J.’s mother did not report the matter to the police because she did not believe that there was anything that could be done about the incident. One year later, on October 21, 2010, as a result of a disclosure by P.J. at school, P.J. and her mother attended at the police station in Toronto where P.J. provided a videotaped statement.

[ 9 ] P.J., in her statement, described going into the garbage chute at her apartment building to throw out garbage. She saw a man on her way into the garbage chute. She did not have enough time to turn around so she went into the garbage chute and threw out the garbage. She waited to see if the man had left and looked out the crack of the door. He was still outside the door. Then he came into the garbage chute. He tried to pull her dress up and then tried to pull it down. He said that he wanted her to show him her underwear. He then said that he wanted to show her how he played with his penis. At one point he pulled her wrist to make her touch his penis but she pulled it away. P.J. described him rubbing his penis and white stuff coming out.

[ 10 ] P.J. gave evidence at the preliminary inquiry just over a year later, on November 10, 2011. At the preliminary inquiry, in addition to the incident at the garbage chute, P.J. reported two other encounters with the same assailant before the incident in the garbage chute. On those occasions, the man asked to see her underwear and she said “no”. In her original statement and at the preliminary inquiry, P.J. reported that the first time she saw the man she was on a second floor balcony with her friend and the man was walking below them with a wheelbarrow containing a toilet seat.

[ 11 ] At trial, P.J. testified that the incident in the garbage chute occurred within days before her family moved from L[…]G[…], or possibly the day they moved. She recalled that they were packed and were back at the apartment cleaning it when she went to the garbage chute and was accosted. The two prior incidents both occurred shortly before they moved. She testified that all of the encounters occurred within three weeks before the move. Her mother testified that they moved on September 11, 2009. It is an agreed fact that Mr. Osborne was in custody from August 25, 2009 until sometime in October 2009.

Evidence Relating to the Identification

[ 12 ] The description of her assailant in P.J.’s original statement contained the following details: he was white; he was in his 20’s or 30’s; he had very little hair on his head/a shaved head; he may have had dark hair but it was hard to tell; he wore blue pants that were like pyjama pants and a white shirt; he had a beard, but it was shaved.

[ 13 ] At trial, P.J. testified that each time she saw the man who assaulted her he was wearing the same blue pants and a white shirt. The pants had rockets on them. The shirt was either a t-shirt or a tank top. She did not see any tattoos on the man.

[ 14 ] On October 28, 2010, P.J. again attended the police station and viewed a photographic lineup. She selected the photo of the accused, Lawrence Osborne, from the lineup. Her words upon selecting the photo were, “yes” and then, “He looks sort of the same.” The police officer who was conducting the lineup asked why she recognized the man. She had some difficulty with the question. It is obvious from the exchange that followed that P.J. believed that she was being asked to describe the similarities between her assailant and the man in the photo. In fact, the police officer was trying to determine whether she recognized the man in the photo from the incident or from some other contact. However, in response to the question, P.J. said “he seems the same, like the shape of the head.” She went on to say that the face of the man in the photo was thinner than the faces of some of the men in the other photos.

[ 15 ] At the conclusion of the photo lineup P.J. asked, “Is it possible that, that the person I said ‘yes’, is it possible that it’s not him?”

[ 16 ] In her evidence at the preliminary inquiry, P.J. denied that she had, at any point, been uncertain about her identification of the man in the photo lineup. She testified that she recognized him and that her basis for recognition was the totality of his features.

[ 17 ] When questioned at trial about her level of certainty about the identification of the photo of Mr. Osborne, P.J. again expressed the view that she had been certain of the identification at the time of the photo lineup.

[ 18 ] At the preliminary inquiry she was asked in cross-examination who had told her that she had chosen the right person. She said “Detective Kempster.” She went on to say, “He said that, um, the person who I had chose did the same things and that stuff…and he was in the area and like other stuff like that.”

[ 19 ] P.J. was questioned at trial about the conversation with Detective Kempster concerning the identification. She testified that Detective Kempster did not tell her that she chose the right person but he told her that the man whose picture she chose, “was in the same area and he also did those kinds of stuff too, so it’s more likely that he’s the one other than the other ones in the pictures.”

[ 20 ] Detective Kempster testified that he had contact with P.J. and her family between the October 2009 statements and the preliminary inquiry. He had no notes of the contacts. He could not say how often he telephoned P.J.’s home, nor could he recall the content of the conversations. He testified that he spoke primarily with P.J.’s mother because of P.J.’s age.

[ 21 ] To the extent that he could recall any conversation, he testified that P.J. seemed nervous and that he “constantly told P.J. that she was doing a good job, to tell the truth and not to worry”. Detective Kempster was asked by the Crown whether P.J. expressed any concerns about being a witness. He testified that on July 19, 2009, during the court preparation meeting, P.J. asked, “What if I did something wrong? What if I made a mistake?” Detective Kempster told her not to worry and that she was doing a good job by telling the truth.

[ 22 ] Between July 19 th and August 22, 2009 Detective Kempster recalled having a 3 to 4 minute telephone conversation with P.J. He took no notes of the conversation. He recalled that P.J. asked about the court reporter and clerk of the court. He recalled answering her questions and telling her not to worry.

[ 23 ] Detective Kempster was asked by the Crown in examination-in-chief whether he told P.J. that she had picked the right person. He first answered “not that I recall, no.” At the end of his examination-in-chief, the Crown again asked him if he had said this to P.J. and he answered “no.”

[ 24 ] In cross-examination, Detective Kempster agreed that, at best, he could say that he did not recall telling P.J. that she chose the right person or telling her that that the person she chose had done similar things or was in the area at the time.

[ 25 ] Detective Kempster agreed that it was his view that Mr. Osborne had been involved in acts similar to those described by P.J. and it was his belief that Mr. Osborne had been in the area of L[…] G[…] in the summer of 2009.

Other Circumstantial Evidence

[ 26 ] Mr. Madhavja, the landlord of Mr. Osborne in 2009, testified that Mr. Osborne lived at 1.[…] L[…] G[…] in 2009. Mr. Osborne lived in a unit owned by Mr. Madhavja and also did some repair and maintenance work with Mr. Madhavja during that time. The building at 1.[…] L[…] G[…] is attached to 2.[…] L[…] G[…], where P.J. and her family lived. The garbage chute is close to the common elevator for 2.[…] and 1.[…] L[…] G[…].

[ 27 ] There is evidence before me, through a record of arrest from August 2009 and through the evidence of Detective Kempster and Mr. Madhavja, that Mr. Osborne, in the summer of 2009 had tattoos on his right inner forearm, his right and left biceps and his left shoulder.

3. Legal Principles

[ 28 ] In an identification case such as this, I must begin my analysis by recognizing the inherent frailties of eyewitness identification evidence. In R. v. Spatola , 1970 390 (ON CA) , [1970] 3 O.R. 74 (C.A.), Laskin J.A., as he then was, said the following:

Errors of recognition have a long documented history. Identification experiments have underlined the frailty of memory and the fallibility of powers of observation. Studies have shown the progressive assurance that builds upon an original identification that may be erroneous.... The very question of admissibility of identification evidence in some of its aspects has caused sufficient apprehension in some jurisdictions to give pause to uncritical reliance on such evidence, when admitted, as the basis of conviction....

[ 29 ] It is because of the possibility of honest mistake that eyewitness evidence has been identified as the type of evidence most likely to lead to a wrongful conviction. The law has developed to require an examination of the entire identification process in assessing the weight to be given to an identification of an accused person by an eyewitness. As explained by Doherty J.A. in R. v. Tat and Long (1997), 1997 2234 (ON CA) , 117 C.C.C. (3d) 481 (Ont. C.A.) at 498-499:

…The probative force of identification evidence is best measured by a consideration of the entire identification process which culminates with an in-court identification…The central importance of the pre-trial identification process in the assessment of the weight to be given to identification evidence is apparent upon a review of cases which have considered the reasonableness of verdicts based upon identification evidence.

If a witness identifies an accused at trial, evidence of previous identifications made and descriptions given is admissible to allow the trier of fact to make an informed determination of the probative value of the purported identification. The trier of fact will consider the entirety of the identification process as revealed by the evidence before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment. [Emphasis added.]

[ 30 ] As Tat and Long makes clear, the importance of pre-trial identification evidence is that it permits the trier of fact to assess the overall probative value of the identifying witness’s evidence. To accomplish this purpose the procedures used must, as far as possible, permit an objective assessment of the eyewitness’s ability to identify the culprit. As Laidlaw J.A. put it in R. v. Smierciak (1946), 1946 331 (ON CA) , 87 C.C.C. 175 (Ont. C.A.) at p. 177:

…If a witness has no previous knowledge of the accused person, so as to make him familiar with that person's appearance, the greatest care ought to be used to ensure the absolute independence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias, created directly or indirectly . Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonably prejudice the accused, the value of the evidence may be partially or wholly destroyed. Anything which tends to convey to a witness that a person is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful. [Emphasis added.]

[ 31 ] Two dangers arise from improperly conducted pre-trial identification procedures. The first is that a flawed pre-trial identification process improperly influences the choice made by the witness or their level of confidence in their choice. Such tainting can occur intentionally or inadvertently. However, the concern is that the identification or the level of confidence is not the result of what the witness recalls, but rather is the result of the biased process employed. The second danger flows from the first. The second danger is that once the evidence of the witness has been tainted by a biased process, the process may taint any subsequent descriptions, identifications or statements of confidence made by the witness. Here the concern is that the witness’s evidence stems not from the original event, but from the earlier, flawed identification process. (See: R. v. Goldhar; R. v. Smokler (1941), 1941 311 (ON CA) , 76 C.C.C. 270 (Ont. C.A.) at p. 271.)

[ 32 ] To avoid tainting the evidence of eyewitnesses, various principles relating to identification procedures have been enunciated in the case law.

[ 33 ] One principle that is relevant in this case is that the lineup should not be structured in a way that draws attention to a suspect. For example, in R. v. Eakin , [1994] O.J. No. 901 , the Court of Appeal for Ontario held that the lineup should not be structured to have only the suspect looking straight ahead while the others looked slightly to the left. In R. v. Holden (2001), 2001 14562 (ON CA) , 56 O.R. (3d) 119 the Court of Appeal disapproved of a lineup where the accused was the only person with a mole on his face.

[ 34 ] In Hill v. Hamilton-Wentworth Regional Police Services Board (2005), 2005 34230 (ON CA) , 76 O.R. (3d) 481 (C.A.), aff'd 2007 SCC 41 () , [2007] 3 S.C.R. 129, Feldman and LaForme JJ.A., in their dissenting opinion, refer at para. 149, to the expert evidence of Professor Roderick Lindsay, concerning structural bias in the presentation of a photo lineup. As Professor Lindsay explained, structural bias results when one person in the lineup is visually distinct from the others in some way. This bias can cause misidentifications because the person who stands out is more likely to be picked by the identifying witness. This evidence was relied upon by the Court of Appeal for Ontario in R. v. Hanemaayer , [2008] O.J. No. 308 at para. 24 .

[ 35 ] Another relevant principle is that a complete record should be kept of the pre-trial identification procedure. There is a need to clearly document all details and statements made by the identifying witnesses from the beginning to the end of the process. This fosters confidence that the principle of independence in observation, mental recording, memory, and recounting of the description has been maintained. (See: R. v. Miaponoose , (1996) 1996 1268 (ON CA) , 110 C.C.C. (3d) 445 (Ont. C.A.) at 456.)

[ 36 ] A further relevant principle that emerges from the case law is that police officers should not speak to eyewitnesses after the lineups regarding their identification or their inability to identify anyone. In R. v. Hanemaayer , supra , at paragraph 26, the Court, in addressing the actions of the police in that case, observed that,

…the evidence discloses serious contamination by the investigating officers. They informed the homeowner that she had indeed identified the suspect. This could only serve to increase her confidence in the accuracy of the identification and thus make her a more convincing witness. As Commissioner Cory recommended at p. 32:

‘Police officers should not speak to eyewitnesses after the lineups regarding their identification or their inability to identify anyone. This can only cast suspicion on any identification made and raise concerns that it was reinforced.’ [1]

[ 37 ] In addition to the principles set out above governing the assessment of the pre-trial identification procedure, a trier of fact must consider the circumstances of the encounter that may impact on the ability of the witness to observe and describe the suspect, including the length of time, the lighting, the stressful circumstances of the incident and the passage of time between the incident and the identification. A failure of a witness to observe a distinctive feature possessed by the accused is a further factor to be weighed by the trier of fact on the issue of identification.

4. Findings of Fact and Analysis

The Incident

[ 38 ] I found P.J. to be an intelligent and honest witness. I have carefully considered her October 2009 videotaped statements. She appeared to be trying to be careful and accurate in the information that she was providing to the police about the incident. She also appeared to be doing her best to be honest and careful when she gave her evidence at trial. Her preliminary inquiry evidence was consistent with her evidence at trial with respect to the events. Her account of the assault upon her is credible and reliable.

[ 39 ] I find as a fact that P.J. was assaulted in the manner that she described.

[ 40 ] In terms of the timing of the assault and the prior encounters, P.J. was confident that the incident occurred very close in time to the move from the building to the new family home. She described that the family belongings were packed and that the family returned to the apartment to clean up. Her mother confirmed that the family returned to the apartment in the time period leading up to the move in order to clean the unit. The move occurred on September 11, 2009. I find that the incident that forms the basis for the charges occurred within the time frame described by P.J.

The identification procedure

[ 41 ] I was particularly impressed with the care taken by P.J. during the photo lineup. The video shows that she took considerable care in examining each photo. She also asked intelligent questions about the process. She appeared concerned about the risk of misidentifying a person. Her approach to the process is commendable, particularly in light of her young age.

[ 42 ] I was also impressed by the officer who conducted the lineup. He did so in a way that allowed this very young witness to understand the process, but did not influence her choice in any way. The conduct of any eyewitness lineup is difficult, but it is particularly difficult with a young person. The conduct of the lineup was above reproach. Appropriate instructions were given, it was conducted by an officer unfamiliar with the investigation, the photographs were presented individually and in random order and the officer took steps to ensure that he did not inadvertently influence the witness.

[ 43 ] I find that the lineup was properly presented to the witness.

The Content of the Lineup

[ 44 ] The content of the lineup, however, was problematic. The lineup contained photos of 12 men. The lineup was constructed by Detective Kempster. The parameters of the selection were not recorded by Detective Kempster. Mr. Osborne was the only man in the lineup with a shaved head. The one distinctive feature described by P.J. in her original statement to the police was that her assailant had a shaved head. Detective Kempster was unable to explain why no other photos of men with shaved heads were included in the lineup.

[ 45 ] In the video of the lineup P.J. can be seen on two occasions placing her hand over the top of the head of the person in the photo. She was, presumably, attempting to picture the person with a shaved head. She is to be commended for her efforts. This action, however, underlines the significance of the shaved head in her identification.

[ 46 ] The composition of the lineup was such that there was only one person with the distinctive feature described by the witness and there was one person who was visually distinct from the others in the lineup. I find that the failure to include other photos of men with shaved heads weakened the value of the identification lineup.

Tainting of the Identification

[ 47 ] I accept P.J.’s evidence at trial and at the preliminary inquiry that after she participated in the lineup she received information from Detective Kempster that the person she had chosen had done similar things and had been in the area and that her assailant was ‘more likely’ the man whose picture she had chosen. P.J. offered these details without prompting at the preliminary inquiry and at trial. It is unlikely that a 10 or 11 year-old would be able to concoct such details.

[ 48 ] While Detective Kempster, at one point in his evidence, said that he did not give such information to P.J., he at other points said that he could not recall the content of the conversations and at best, could not remember saying such things to P.J. Detective Kempster did recall that P.J. was nervous about her evidence and expressed concern about having made a mistake. He attempted to reassure her. I find that Detective Kempster, in attempting to reassure P.J., inadvertently conveyed to her that she had likely made the right choice because the man she chose had done similar things and was in the area.

[ 49 ] I find that the information that was conveyed to P.J. had the desired effect of reassuring her that she had made the right choice. It also enhanced her level of confidence in her identification.

[ 50 ] Detective Kempster should not have had any communication with P.J. concerning her identification of Mr. Osborne. His conduct contaminated the identification. Not only was his conduct inappropriate in having the conversation, his error was compounded by his failure to record in any way the content of the communication. Detective Kempster’s interaction with this young complainant was part of the pre-trial identification procedure. He had an obligation to record it. His actions in discussing the identification tainted the identification by reinforcing the identification and increasing the confidence level of P.J. in her selection.

[ 51 ] There is no allegation that Detective Kempster acted in bad faith, and I do not find that he acted in bad faith, in speaking to the complainant and in not recording his contact. Nevertheless, the conduct of Detective Kempster prejudiced the accused and the community. I adopt the words of Charron J.A. in Miaponoose , supra , at 456-457, where she said the following:

The highly inappropriate procedure adopted can only have resulted in grave prejudice to the appellant. It also did nothing to assist the complainant and the community as a whole, both of whom have a substantial interest in correctly identifying the perpetrator of this offence.

[ 52 ] In light of the tainting of the identification following the photo lineup, I have concluded that I can attach little or no weight to the evidence of P.J. at the preliminary inquiry and trial as to her level of certainty in the identification and her reasons for recognizing the man in the photo.

Evidence of Identity

[ 53 ] Having concluded that the evidence of P.J. given at the preliminary inquiry and at trial concerning her level of certainty with respect to the identification and concerning the reasons for her selection of the photograph are to be given little or no weight, I must consider the totality of the other evidence in considering whether or not the Crown has proven beyond a reasonable doubt that the accused Mr. Osborne was the person who assaulted P.J.

[ 54 ] I have considered the evidence of P.J.’s initial description on October 21, 2009 and her selection of the photograph of Mr. Osborne from the lineup on October 28, 2009. I have considered the selection of the photograph in the context of the problems with the composition of the lineup noted above. I have considered the words of P.J. upon selecting the photograph, which were, “yes” and then “He looks sort of the same.” I have also considered P.J.’s question to the officer, “Is it possible that, that the person I said ‘yes’, is it possible that it’s not him?” This evidence is consistent with the evidence of Detective Kempster, which I accept on this point, that P.J. was nervous and on July 19, 2011, asked, “What if I did something wrong? What if I made a mistake?”

[ 55 ] P.J’s lack of confidence in her identification is understandable in light of the fact that she was attempting to identify someone whom she had seen only briefly on four occasions more than a year earlier. Three of those occasions were stressful and on the other occasion she saw the man from a second floor balcony.

[ 56 ] I have considered the other evidence in the trial that might provide circumstantial confirmation of the identification: Mr. Osborne lived in the adjoining building and did some maintenance work for his landlord.

[ 57 ] Finally, I have considered the evidence that is inconsistent with the identification: P.J. did not see any tattoos and it is admitted that Mr. Osborne has at least one tattoo that would likely have been visible if he was wearing a t-shirt as described by P.J.; Mr. Osborne was in custody during the time period specified by P.J. at trial as being the time that she had contact with her assailant.

[ 58 ] The evidence of the identification by P.J. in the photo lineup standing alone cannot be relied upon to convict Mr. Osborne in the circumstances. It is evidence that Mr. Osborne is similar in appearance to P.J.’s assailant, but it is not evidence that Mr. Osborne was the assailant.

[ 59 ] There is insufficient circumstantial confirmatory evidence to overcome the weakness of the identification. The evidence that Mr. Osborne lived in an adjacent building and worked around the building provides little, if any, confirmation.

[ 60 ] There is evidence that, in itself, is capable of raising a reasonable doubt in light of the fact that Mr. Osborne had tattoos that were not observed by P.J. on her assailant and the fact that Mr. Osborne was in custody during the time period specified by P.J. as the time of the assault.

[ 61 ] For these reasons, I am not satisfied beyond a reasonable doubt that Mr. Osborne was the man who committed the offences in this case and I find him not guilty on all counts. [2]

Forestell J.

Released: July 23, 2012

COURT FILE NO.: 12-10000107-0000
DATE: 20120723

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:

her majesty the queen - and - LAWRENCE OSBORNE

REASONS FOR DECISION Forestell J.

Released: July 23, 2012

[^1]: Peter deCarteret Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001).

[^2]: Counsel for Mr. Osborne brought a Charter application to exclude the trial evidence of P.J. as to her level of confidence in her identification. I ruled that the application should not be addressed until the completion of the trial in accordance with the procedure in R. v. Buric (1996), 1996 1525 (ON CA) , 28 O.R. (3d) 737 (C.A.)., affirmed 1997 380 (SCC) , [1997] 1 S.C.R. 535. As stated by Labrosse J.A. in Buric , quoting from R. v. Dikah , 1994 8782 (ON CA) , 18 O.R. (3d) 302 (C.A.), “this procedure preserves the accused’s opportunity to be acquitted where the trier of fact is not prepared to rely on the evidence which is the product of the alleged misconduct while ensuring that all issues relevant to the trial stage of the proceedings are resolved before the case winds its way through the appellate process.” In light of my conclusion on the trial, it is not necessary for me to decide the Charter application.