ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-02059G
DATE: 2013-11-13
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GREGORY CHARLES and CARL RENOUS
Defendants
Jeff Pearson, Counsel for the Crown
James Miglin, Counsel for Gregory Charles
Douglas Usher, Counsel for Carl Renous
HEARD: November 12, 2013
RULING ON APPLICATION FOR DIRECTED VERDICT
Boswell J.
Introduction
[1] Mr. Charles is one of two defendants charged with the attempted murder of James Pierre on November 15, 2010. Mr. Charles is alleged to have participated in an attack on Mr. Pierre during which Mr. Pierre was beaten with a baseball bat and stabbed repeatedly.
[2] The issue for trial is identity. Mr. Pierre testified that he knew the two accused before the attack and that he is 200% sure they were the ones who attacked him. The Crown’s case has closed. Mr. Charles moves for a directed verdict of acquittal.
The Classic Test
[3] The test to be applied on a motion for a directed verdict is straightforward and well-settled. It was recently summarized by Strathy, J., as he then was, in R. v. Acevedo, [2013] O.J. No. 1345, at para. 5:
…[I]s there any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty? See R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154 at para. 8; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 at para. 21. The motion must be dismissed if there is admissible evidence that could, if it were believed, result in a conviction.
The Issue
[4] The Crown’s case is premised, largely, on recognition. In other words, that Mr. Pierre knew his attackers and was able to identify them based on his prior familiarity with them. Mr. Charles submits that recognition is a spectrum. At one end are those people a witness is close to and highly familiar with: a spouse, a co-worker, a close friend, for instance. At the other end are complete strangers. Mr. Charles asserts that Mr. Pierre was only minimally familiar with him and that this case falls far closer to the complete stranger end of the spectrum than it does to the high familiarity end.
[5] The significance of recognition relates to the strength of Mr. Pierre’s in-dock identification of Mr. Charles. The less familiar he was with Mr. Charles, the less weight the in-dock identification attracts. Mr. Charles argues that the in-dock identification should be given no weight in this case for two reasons. First, because Mr. Pierre was almost a stranger to him. Second, because the identification is so tainted by earlier problems in the identification narrative that it has no weight and is, in fact, dangerous to leave with the jury.
[6] Mr. Charles submits essentially that the entire identification narrative is tainted and so unreliable that a properly instructed jury would have to be told to give no weight to any of it. No reasonable jury, in Mr. Charles’ submission, would convict on the grossly unreliable identification evidence before the Court. The only sure way to avoid an unreasonable verdict, in the circumstances, is to enter a directed verdict of acquittal.
[7] The Crown’s position is that the evidence of recognition is much stronger than Mr. Charles suggests, that there is sufficient threshold reliability to the entire identification narrative that it may safely and reasonably go before the jury, and that the issue of ultimate reliability is a matter for the jury to determine.
The Identification Narrative
[8] Mr. Pierre was attacked between two homes in a residential neighbourhood in Vaughan, Ontario. During the attack a neighbour came outside to investigate the commotion. His presence triggered the attackers’ flight. Another neighbour approached Mr. Pierre to offer comfort and asked who did this to him. He responded, “Carl” or “Carling” or “Carlton” according to the neighbour’s testimony. He did not say the name, “Greg”.
[9] Mr. Pierre was in a coma for some time after the attack. He tried to communicate to a police officer from his hospital bed on December 5, 2010. He was intubated and could not speak, but he pointed to the letters of the alphabet on a piece of paper to spell out the name, Karl Atir. He did not spell out “Greg”.
[10] On December 6, 2010 the officer in charge, Detective McVeigh, attended upon Mr. Pierre in the hospital. He was not able to ask Mr. Pierre to provide a description of his attackers, given Mr. Pierre’s inability to speak. Instead, he had a second officer show a series of photographs to Mr. Pierre. The process was video recorded.
[11] Mr. Pierre appears to be in considerable discomfort and is on pain medication while meeting with the police. Detective McVeigh advised Mr. Pierre that he was going to have the other officer show him some pictures. He said she would hold them up so he could see them one at a time. He told Mr. Pierre to look at the pictures as long as he wanted and that there may be some people in there that he recognized. He instructed Mr. Pierre in the following language, “All I want you to do is tell me if anyone of the people involved in what happened to you is in that picture. When you see that picture, just point to it with your finger, or nod up and down and we’ll stop at that point in time.”
[12] Mr. Pierre was then shown pictures one at a time. He nodded yes to the fourth picture. The process was stopped. Detective McVeigh took hold of the photo and said to Mr. Pierre, “this is a picture of a guy by the name of Greg Charles, is that right?” Mr. Pierre nodded yes. Detective McVeigh asked, “and he was involved in hurting you?” Mr. Pierre again nodded yes. Mr. Pierre was then shown the balance of the pictures, which appear to be another seven, so the total shown to him was 11 pictures. He did not pick out any other suspects.
[13] On December 13, 2010 Detective McVeigh returned to the hospital, this time with only two photographs: one of Mr. Charles and one of another male. Mr. Pierre again pointed out Mr. Charles as having been involved, but not the other photograph. Subsequently, the photograph of Mr. Charles, as shown to Mr. Pierre on December 6, was lost.
[14] A second photo line-up was done on January 25, 2011. By this time Mr. Pierre had been transferred to a Montreal hospital. The reason a second line-up was done, according to Detective McVeigh was because Mr. Pierre could not speak and there was concern over the extent to which he may have been affected by his pain and medications on December 6, 2010.
[15] On January 25, the photo pack contained 12 pictures. They were shown to Mr. Pierre by Detective Sergeant Gilles Mailhot of the Montreal Police Service. Officer Mailhot did not know whose pictures were in the pack. Before the photographs were shown, Mr. Pierre was told that he was not obliged to select anyone. He was told that the photographs shown to him may not include any involved party. He was shown the photographs one at a time. He selected the eighth picture shown. When he picked the photograph he said “Yeah, that’s Greg”.
[16] At trial Mr. Pierre made an in-dock identification of Mr. Charles as one of his attackers, saying he was 200% sure of it.
The Recognition Factor
[17] In his examination-in-chief, Mr. Pierre testified that he had known Gregory Charles for about four years prior to the attack. He would not have described Mr. Charles as a friend – he was just someone he would see from time to time and say hi to.
[18] He said that Mr. Charles had called him on the phone on two occasions, inviting him to go to a club. Mr. Charles spoke to him in Creole whenever they spoke. He did not know Mr. Charles’ last name, but knew he had a nickname, “King Greg”.
[19] Mr. Pierre testified that the attack against him occurred when he went outside to get his wallet from his car at about 8:00 p.m. on November 15, 2010. He opened the driver’s side door of the car and leaned in and heard his name called. He looked up and saw two males running towards him. He said he saw their faces and recognized them. He was struck with a baseball bat and began to run. He said he was cornered in a neighbour’s yard and was attacked again, including being repeatedly stabbed. He said Mr. Charles spoke to him during the attack in the Creole language and that he recognized his voice.
[20] During cross-examination, Mr. Pierre said he had known Gregory Charles for a long time but had not seen him for a long time before the attack. He could not recall the first time he met Mr. Charles. He said the last time he had seen him before the attack was in a nightclub a month or two before the attack. At the preliminary hearing, he testified that he could not recall when he had last seen Mr. Charles. The number of times he had actually seen Mr. Charles in his lifetime is also unclear. He said at the preliminary inquiry that it had been 2 or 3 times, but at trial he could not remember how many times it had been.
Opportunity to Observe
[21] Mr. Pierre indicated that it was dark out when the attack occurred. Moreover, it was raining. His car was parked on the side of the road near a park, where there were no street lights in the immediate area. When he heard his name called out he looked up and saw two males in black hoodies running towards him. He was almost immediately struck in the head with a baseball bat. He then started running. When he was cornered in a neighbour’s yard and the attack began, he said he bent over and covered his head with his hands as protection.
Analysis
[22] Mr. Charles’ position is that the photo line-up that occurred on December 6, 2010 is so fundamentally flawed that the jury must be told to put no weight on it at all. Moreover, the flaws in that line-up irreparably tainted the photo line-up in Montreal, where Mr. Pierre appears to pick out a photograph and say, “that’s Greg”. Finally, the taint continued right up to the in-dock identification. The in-dock identification, even without the taint, is of minimal value, according to Mr. Charles, given that he and Mr. Pierre were very close to being strangers. The net result is an identification narrative so badly flawed and unreliable that a verdict of guilt could not reasonably be made on it.
[23] Since Mr. Charles’ argument begins with the December 6, 2010 photo line-up, my analysis will begin there.
[24] There is no question that the procedure followed on December 6, 2010 was not ideal. Detective McVeigh admitted as much. The police cannot be faulted for that fact, though fault has nothing to do with the analysis. Mr. Pierre was in critical condition and not expected to survive. He could not speak and could not provide a description of his attackers. The photo pack shown to him that date did not, in the result, include random pictures of individuals matching a particular description. Instead, the pack included a number of persons of interest.
[25] Identification evidence is inherently frail. It has been the subject of a great deal of appellate and academic comment. It is well known to be the source of a significant number of wrongful convictions. The Crown’s case rests almost entirely on the identification evidence of Mr. Pierre. The neighbour, Mr. Kreslin, provided very minimal descriptive evidence which adds little to the identification narrative. There was also evidence of cell phone records adduced that go only so far as to support an inference that a cell phone utilized by Mr. Charles was used in the geographic area of Vaughan around the time of the attack. There is, in other words, virtually no confirmatory evidence that would serve to minimize the inherent dangers of Mr. Pierre’s eyewitness identification. Rigorous scrutiny of the Crown’s identification evidence is required in the circumstances: R. v. F. A. 2004 10491 (ON CA), [2004] O. J. No. 1119, 183 C.C.C. (3d) 518 (C.A.).
[26] Applying a rigorous level of scrutiny to the photo line-up of December 6, 2010, the question is whether the process was so tainted as to be worthy of no weight. In other words, it does not meet even a level of threshold reliability, justifying its consideration by the jury. While I agree that the process followed was not ideal, I disagree with the assertion that the evidence is entitled to be given no weight at all.
[27] This case can be readily distinguished from R. v. F.A. There, a student was attacked by a group of males at a bus stop. He was struck in the face by one of the males with a bottle, then cut on the neck with an Exacto knife. The day after the attack the victim was picked up by police officers at his workplace and brought to the police station. En route to the station, he was told that the police had some suspects in custody, who they believed may have been involved. At the station, he was told there was going to be an in-person line-up and that an officer was going to bring in “a couple of suspects”. The line-up consisted of only 4 suspects. Clearly there were features present in F.A. that left the impression with the victim that the perpetrator was about to be paraded in front of him with a number of other suspects. The deficiencies in the line-up process were found by Cronk J.A. to significantly undermine its weight.
[28] There does not appear to be a gold standard, unassailable method for presenting a photo line-up to a witness. It is at least helpful, in my view, to have regard to the recommendations of Justice Cory from the Report of the Sophonow Inquiry as a guide to best practices. A list of those recommendations as they relate to photo line-ups is attached as Appendix “A” to this ruling.
[29] The ultimate goal of course is to get as independent and reliable an identification as possible. Conduct on the part of the police that may influence, suggest or reinforce an identification is to be avoided.
[30] Given the exigencies of this case many, but not all, of the recommended practices were followed. Mr. Pierre was shown a sequential series of photographs by an officer other than the officer in charge. It is unclear if the officer knew that any particular suspect was included in the photo pack.
[31] The pack included 11 pictures. They were not all similar to a given description because there was no prior description, but they are, for the most part, relatively similar in characteristics.
[32] The photograph of Mr. Charles was not the first or last picture shown. It appears to have been randomly inserted as photo 4.
[33] Mr. Pierre was not told that there was a suspect’s picture in the sequence. The language that Detective McVeigh used could have been better, but I do not find that it signalled to Mr. Pierre that the person the police thought did this was included in the pack.
[34] The process was videotaped from start to finish.
[35] It is troubling, of course, that Detective McVeigh provided the name Greg Charles to Mr. Pierre. That information may have served to either reinforce Mr. Pierre’s opinion about identity, or have planted a seed about identity. That said, it is clear that Mr. Pierre independently, and without hesitation, selected Mr. Charles’ picture from the pack.
[36] The process used on December 6, 2010 was far from ideal. Mr. Charles’ counsel has raised some very valid concerns about it. After anxious consideration, however, I am not persuaded that the evidence of the identification of Mr. Charles during that process has no weight, or is otherwise too dangerous to leave with the jury. The defence has certainly raised a number of issues that go to the ultimate weight to be placed on the identification evidence of Mr. Pierre, including the December 6 photo line-up. Those issues must be highlighted for the jury and the jury must, and will, be explicitly instructed about the inherent frailty of eyewitness identification evidence. As a matter of threshold reliability, however, I do not view the December 6 photo line-up evidence as so obviously unreliable, dangerous or misleading, as to justify an instruction that the jury is to attach no weight to it.
[37] Given what occurred on December 6, 2010 and Detective McVeigh’s indication to Mr. Pierre that the photograph he picked out was that of Greg Charles, the value of the January 25 photo line-up is suspect. I do not, however, believe that the in-dock identification is so tainted by the December 6 process that its value is undermined. This is, in my view, a recognition case; not the strongest recognition case, to be sure, but this is not the case of an in-dock identification of a stranger. Even if no weight is attached to either photo line-up, there remains an in-dock identification of a person known to Mr. Pierre. The jury is quite capable of assessing the credibility and reliability of that in-dock identification and, again, will be provided with explicit instructions about the frailties of in-dock identifications.
[38] As Mr. Justice Rothstein held in the recent Supreme Court decision R. v. Hay, 2013 SCC 61, “a properly instructed jury may conclude, notwithstanding the frailties of eyewitness identification, that the eyewitness’ testimony is reliable and may enter a conviction on those grounds. This may be so even where the Crown has relied on only a single eyewitness; see R. v. Mezzo, 1986 16 (SCC), [1986] 1 S.C.R. 802, at p. 844; R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197, at para. 23.” (para. 40).
[39] Rothstein J. went on to hold as follows, at para. 41,
Although the duty to assess the credibility and weight of an eyewitness’ evidence sits with the jury and, in some circumstances, the testimony of one eyewitness will support a conviction, the jury should not be permitted to convict on the basis of eyewitness testimony that could not support an inference of guilt beyond a reasonable doubt. In other words, a jury should not be instructed that it may convict based on eyewitness testimony alone where that testimony, even if believed, would necessarily leave reasonable doubt in the mind of a reasonable juror; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 21-25; R. v. Reitsma, 1998 825 (SCC), [1998] 1 S.C.R. 769, rev’g (1997) 1997 3607 (BC CA), 97 B.C.A.C. 303; R. v. Zurowski, 2004 SCC 72, [2004] 3 S.C.R. 509; United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080. Indeed, where the Crown’s case consists solely of eyewitness testimony that would necessarily leave reasonable doubt in the mind of a reasonable juror, the trial judge must direct an acquittal upon a motion for directed verdict (Arcuri, at para. 21).
[40] This is not a case where Mr. Pierre’s testimony, if believed, would not be capable of supporting an inference of guilt beyond a reasonable doubt. In my view, it is appropriate that the determination of Mr. Pierre’s credibility and reliability remains with the jury.
[41] In the result, the motion for a directed verdict fails. I am not prepared to advise the jury that no weight should be attached to the December 6, 2010 photo line-up. Moreover, the in-dock identification, standing alone, provides enough of an evidentiary basis to justify the issue of identity going to the jury. I agree with counsel’s submissions that explicit and careful instructions will have to be provided to the jury and those instructions will be canvassed with counsel prior to the delivery of the Charge.
Boswell J.
Released: November 13, 2013
APPENDIX “A”
Recommendations regarding Photo Line-ups from the Report of the Sophonow Inquiry
The photo pack should contain at least 10 subjects.
The photos should resemble as closely as possible the eyewitnesses' description. If that is not possible, the photos should be as close as possible to the suspect.
Everything should be recorded on video or audiotape from the time that the officer meets the witness, before the photographs are shown through until the completion of the interview. Once again, 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.
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.
The photo pack must be presented sequentially and not as a package.
In addition to the videotape, if possible, or, as a minimum alternative, the audiotape, 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.
Police officers should not speak to eyewitnesses after the line-ups 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.
It was suggested that, because of the importance of eyewitness evidence and the high risk of contaminating it, a police force other than the one conducting the investigation of the crime should conduct the interviews and the line-ups with the eyewitnesses. Ideal as that procedure might be, I think that it would unduly complicate the investigation, add to its cost and increase the time required. At some point, there must be reasonable degree of trust placed in the police. The interviews of eyewitnesses and the line-up may be conducted by the same force as that investigating the crime, provided that the officers dealing with the eyewitnesses are not involved in the investigation of the crime and do not know the suspect or whether his photo forms part of the line-up. If this were done and the other recommendations complied with, that would provide adequate protection of the process.