ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 328/12
DATE: 20130313
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NEDRICK THOMAS
Applicant
Ken Lockhart, for the Crown
Ehsan Ghebrai, for the Applicant
HEARD: March 4 and 5, 2013
b. p. o’marra j
rULING ON ADMISSIBILITY OF A PHOTO LINE UP
[1] On June 2, 1996 Dennis Allen was shot in the chest at close-range by a man he had known for many years. He knew the shooter by the nickname “Governor”. On June 5, 1996 Mr. Allen picked the defendant out of a photo line up shown to him by a member of the Toronto Police Service. Mr. Thomas was arrested in the United States in 2009. The photo line up shown to Mr. Allen in 1996 has been lost by the Toronto Police Service. The crucial issue at trial will be the identity of the shooter.
issue
[2] Can the Crown lead evidence of the out of court identification from a photo line up that has been lost and cannot be recreated?
the facts
[3] The photo line up in this case occurred five years before the release of the Sophonow Report in 2001.
The Inquiry Involving Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001, Peter Cory, Commissioner).
[4] Detective Gallant was one of the lead investigators on the case. He visited Mr. Allen in the hospital three days after the shooting. He showed 12 photos that were arranged on either one page or two pages with six on each. Mr. Allen was allowed to view all photos at the same time. He was asked whether he recognized anyone. Mr. Allen made a strong identification of one photo as the shooter. That photo was of Mr. Thomas. The photo line up procedure was not recorded on video. Detective Gallant brought an audio recorder to the hospital. He testified that he chose not to use it due to loud construction near the hospital. In cross-examination, Officer Gallant said that he is not sure whether or not he had recorded the process. In any event, no audio is now available.
[5] A warrant was issued for the arrest of Mr. Thomas in 1996.
[6] By 2009, when Mr. Thomas was arrested in the United States, the photo array from 1996 had been lost. The police station where Detective Gallant worked in 1996 had been relocated in the interim.
[7] In 2013, Detective James Arp made a valiant effort to reconstruct the original photo array based on details from Detective Gallant’s original notes from 1996. He was unsuccessful.
position of the parties
[8] The Crown submits that this is a case of recognition rather than identification. Thus the flawed photo line up and subsequent loss of evidence should not prevent admission of the evidence. The Crown submits this is powerful corroboration of the identity of the shooter that does not operate unfairly against the accused at trial.
[9] The Defence does not allege bad faith by Detective Gallant in the manner in which he conducted the photo line up. Nor does the Defence allege negligence in the loss of the original photo array. The Defence opposes admission of this evidence on the following basis:
The process was fundamentally flawed.
The loss of evidence creates significant prejudice to the Defence in challenging the results of the photo line up.
analysis
[10] The Sophonow inquiry in 2001 provided a list of specific recommendations for photo identification procedure by the police. They were as follows:
(1) The photo pack should contain at least ten subjects.
(2) The photos should resemble, as closely as possible, the eyewitness’s description. If that is not possible the photos should be as close as possible to the suspect.
(3) Everything should be recorded on video or audio tape from the time that the officer meets the witness, before the photographs are shown and through until the completion of the interview. It is essential that an officer who does not know who the suspect is and who is not involved in the investigation conducts the photo pack line up.
(4) Before the showing of the photo pack the officer conducting the line up should confirm that he does not know who the suspect is or whether his photo is contained in the line up. In addition, before showing the photo pack to a witness the officer should advise the witness that it is just as important to clear the innocent as it is to identify the suspect. The photo pack should be presented by the officer to each witness separately.
(5) The photo pack must be presented sequentially and not as a package.
(6) In addition to the video tape, if possible, or as a minimum alternative to the audio tape there should be a form provided for setting out in writing and for signature the comments of both the officer conducting the line up and the witness. All comments of each witness must be noted and recorded verbatim and signed by the witness.
(7) Police officers should not speak to eye witnesses after the line ups regarding their identification or their inability to identify anyone. This can only cast suspicion on an identification made and raise concerns that it was reinforced.
[11] In 1996, Detective Gallant included Mr. Thomas in the photo array based on information that linked him to the nickname “Governor”. Mr. Allen picked Mr. Thomas from an array of young black men. Mr. Allen told the police in 1996 and the court at the preliminary hearing in 2012 that he had known the shooter for several years before the incident. He also said that he and the shooter had been in the car together for some extended time before the shooting.
[12] Even if the original photo array were still intact and available the process in 1996 was fundamentally flawed as follows:
(1) There was no video or at least audio of the process including any instructions given to Mr. Allen before a photo was selected.
(2) The process was conducted by an officer actively involved in the case who knew who the suspect was.
(3) The photos were presented as a package and not sequentially.
[13] The loss of the original photo array significantly compounds the problems. It is now impossible to assess the fairness of the photo array used by Detective Gallant.
[14] There is every reason to anticipate that at trial Mr. Allen will identify Mr. Thomas as the man he knew for several years and as the shooter.
[15] The Crown points to this as powerful evidence confirming that Mr. Thomas was the shooter. In assessing that potential impact at trial the court must consider the fundamentally flawed procedure and the loss of evidence. Even though the Defence does not allege bad faith or negligence there is palpable prejudice to the Defence’s ability to challenge the evidence.
[16] A properly and fairly conducted photo line up in accord with the Sophonow recommendations is real evidence in itself. Despite the valiant effort in 2013 to reconstruct the original photo array the Crown is unable to reproduce even the specific dated photo of Mr. Thomas that was included.
[17] It is not every item of lost evidence that causes irremedial prejudice to the defence. For instance, loss of an officer’s notes can often be addressed in other ways. In this case, the Defence and jury will not have before them the specific array shown to Mr. Allen in 1996. In the particular circumstances of this case the appropriate and fair remedy is to exclude the evidence.
result
[18] The results of the June 1996 photo array are excluded. The court may have to revisit this ruling depending on other issues that may arise at trial.
B. P. O’Marra J.
Released: March 13, 2013
COURT FILE NO.: 328/12
DATE: 20130313
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NEDRICK THOMAS
Applicant
RULING ON ADMISSIBILITY OF A PHOTO LINE UP
B. P. O’Marra J.
Released: March 13, 2013