ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-R2166
DATE: 2013/03/06
B E T W E E N:
HER MAJESTY THE QUEEN
Bruce Lee-Shanock, for Her Majesty the Queen
Applicant
- and -
YOUSEF HADI AILAN and HUSSEIN ALKASSEM WANE
Cedric Nahum, for the Accused Yousef Ailan
Jessica Adley, for the Accused Hussein Wane
Accused/Defendant
HEARD: March 4, 2013
RULING
JAMES J.
[1] The Crown seeks to introduce into evidence a video recording of the photo lineup process regarding a robbery on Rideau Street in the city of Ottawa in the early morning hours of July 11, 2010. In the video the complainant is shown selecting a photograph of a person he erroneously identified as the robber. The video also depicts the complainant verbalizing his recollection of various identifying characteristics of the robber while re-considering his initial erroneous selection when he viewed the photograph of the accused later in the sequence of photographs that composed the 12 photograph lineup. The photo lineup took place about a day and a half after the event.
[2] Prior to trial Crown counsel represented to the defence that he would not seek to have the complaint make an in court identification because of the negligible probative value it would offer. The complainant testified at trial and has not resiled from his previous extrajudicial identification.
[3] Defence concerns include:
The video statement is inadmissible hearsay;
There is no probative value to an erroneous identification; and
There is a risk that some of the complainant’s utterances made while viewing the photos amount to previous consistent statements and impermissible constitute oath helping.
[4] The decision of the Ontario Court of Appeal in R. v. Langille (1990), 1990 6782 (ON CA), 59 CCC (3d) 544 provides a useful starting point. In that case Osbourne J.A. considered a situation where a gas bar attendant was asked by the police to describe the person who robbed her, the car used and the handgun displayed during the course of the robbery. She later provided information for the preparation of a composite drawing. The gas bar attendant gave evidence at trial. She was asked about her recollection of the robber, the car used and the handgun. She was cross-examined as to the differences between her trial description of the robber, the car and the gun and photographs of the car and gun filed as trial exhibits. She was also cross-examined on differences between her description of the robber at the preliminary hearing and the trial and on the opportunity that she had to observe the robber. The investigating police officer and the composite artist gave evidence of the description each of them had received from the gas bar attendant. One of the police officers gave evidence of the attendant’s response to the photographic array.
[5] The appellants challenged this evidence, particularly the evidence of the description given to the police officers, as offending the rule forbidding the admission into evidence of a prior consistent statement.
[6] Osbourne, J.A. referred with approval to R. v. Swanston (1982), 1982 423 (BC CA), 65 C.C.C. (2d) 453. In Swanston the issue was the identity of a male person who had assaulted and robbed the victim. The victim had given a description of the robber to the police shortly after the robbery. At page 455, Nemetz, C.J.B.C. said:
While it is true that there have been two judicial views expressed on the admissibility of extra judicial statements, it is my opinion that the law now is that evidence of extra judicial identification is admissible not only to corroborate an identification made at trial but as independent evidence going to identity.
[7] Justice Osbourne, J.A. also referred to McCormick on Evidence, 3rd editionat page 747 as follows:
Admissibility of the prior identification in all these situations has the support of substantial authority in the cases often without recognition of the presence of a hearsay problem. Justification is found in the unsatisfactory nature of courtroom identification and the safeguards which now surround staged out of court identifications.
[8] Osbourne, J.A. dealt with the identification evidence in the following terms:
Because an identification of an accused person for the first time in the dock at trial is notoriously and understandably suspect (see R. v. Izzard (1990), 1990 13295 (ON CA), 54 C.C.C. (3d) 252, 75 C.R. (3d) 342, 38 O.A.C. 6 (C.A.)), the jury ought to hear the identification narrative or process in a case like this where Ms. Armas (the gas bar attendant), in particular, gave the police a description of the suspect robber very shortly after the robbery had occurred. This evidence establishes that Ms. Armas was able to offer a description of the robber on the day of the robbery. The jury was entitled to hear what that description was. This evidence, Ms. Armas’ identification of the appellant’s photograph in a photo array and her role in the preparation of the composite drawing go to establish that Ms. Armas was able to describe the male person who robbed the gas bar...In my view this evidence is admissible as original evidence. To the extent that evidence of Ms. Armas’ description of the suspect and her previous identification of the suspect can be said to be hearsay or a prior consistent statement, this evidence is properly viewed as an exception to the rule against hearsay and the acceptance of prior consistent statements. Reference to distinguishing characteristics (or the failure to refer to obvious distinguishing characteristics) goes to the weight of visual identification evidence.
[9] In R. v. Tat, 1997 2234 (ON CA), [1997] O.J. No. 3579, 35 O.R. (3d) 641 (C.A.) Doherty J.A. said at para. 31:
Out-of-court statements identifying or describing the perpetrator of an offence (emphasis added) are sometimes admitted both through the testimony of the maker of the statement (the identifying witness) and the testimony of persons who heard the prior description or witnessed the prior identification. These statements have been classified by some as heresay and are said to be admissible under a prior identification exception to the hearsay rule… Other authorities contend that, while evidence of out-of-court identification is admissible in some circumstances, it is admitted as original evidence and does not engage any exception to the heresay rule… In my view, and contrary to what I suggested in R. v. Toten (1993), 1993 3427 (ON CA), 83 C.C.C. (3d) 5 (Ont. C.A.), the circumstances in which such statements are admitted do not involve a heresay use of the out-of-court statements.
[10] The jury ought to have all available evidence of, and relating to, the identification process unless there is good reason for its exclusion. Contemporaneous identification evidence is clearly preferable to in-court identification which occurs long after the events in question. This approach is consistent with the general preference to provide as much information as possible to the jury.
[11] Whether an in-court identification is made or the witness adopts an earlier out-of-court identification is not a significant distinction as the witness will be subject to cross examination in either situation. Where a witness resiles from a previous identification the admissibility of the extra judicial statements is governed by R. v. B.(K.G.) (1993), 1993 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.) (See R. v. Tat, at para. 19).
[12] In the particular circumstances of this case, the witness’s articulation of his recollection of identifying characteristics of the accused as he proceeds through the photo lineup is helpful and admissible evidence notwithstanding his erroneous conclusion. This approach is consistent with the decision in R. v. Woodcock, [2010] O.J. No. 1270. There the Crown sought to adduce evidence to elaborate upon a prior misidentification made by a Crown witness. Pardu J. concluded that the truth seeking function of the trial would be enhanced by a consideration of all of the circumstances surrounding the identification or non-identification process.
[13] In my view it is proper that the jury have an opportunity to see and hear the videographic evidence.
Mr. Justice Martin James
DATE RELEASED: March 6, 2013
COURT FILE NO.: 10-R2166
DATE: 2013/03/06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
YOUSEF HADI AILAN and HUSSEIN ALKASSEM WANE
Accused/Defendants
RULING
James J.
DATE RELEASED: March 6, 2013