ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 231/12
DATE: 20130916
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ANTONIO BANDIERA and
ANDREW GORDON
Rebecca M. Edward, for the Crown
George Tsimklas, for Antonio Bandiera
Aaron B. Harnett, for Andrew Gordon
HEARD: September 11, 2013
K.L. Campbell J.:
Pre-Trial Ruling:
Admissibility of Identification Evidence
A. Overview
[1] The accused, Antonio Bandiera and Andrew Gordon, are charged with a number of offences flowing from the January 9, 2010 armed robbery of a diamond importer/broker in his downtown Toronto office. By way of pre-trial motion, one of the accused, Mr. Gordon, seeks the exclusion of all of the anticipated testimony of the victim, identifying him as one of the alleged perpetrators of this crime. This motion is based largely upon evidence adduced at the preliminary inquiry in this matter.
[2] The parties agree that there are some obvious frailties surrounding this identification evidence, but they disagree as to the legal effect of those frailties. Defence counsel argues that the frailties are such as to render the evidence inadmissible. More specifically, defence counsel argues that while the identification evidence in question has virtually no probative value in implicating Mr. Gordon, its admission would have great prejudical effect on Mr. Gordon and the fairness of his trial, and so ought to be excluded to prevent a potential miscarriage of justice. The Crown argues, on the other hand, that the anticipated identification evidence of the victim remains legally admissible notwithstanding its frailties. More specifically, the Crown contends that this identification evidence has significant probative value, and its ultimate weight ought to be left for the jury to determine, in the overall context of the entire case, and after having been appropriately cautioned regarding the evidence.
[3] Shortly after the conclusion of the hearing of this pre-trial motion, I advised the parties that I had determined that the proposed identification evidence was admissible. I indicated that I would later provide reasons explaining that decision. Those reasons are as follows.
B. Background - The General Nature of the Robbery Offence
[4] Mr. Robert Shore has been in the jewellery business for over 30 years. Currently he works as a diamond importer/broker. This means that he buys diamonds and then sells them predominantly to jewellery stores and jewellery manufacturers. His business, Direct Diamond Promotions, is located on the ninth floor of an office building in downtown Toronto.
[5] At the preliminary inquiry, Mr. Shore testified that on the afternoon of Saturday, January 9, 2010, he was visited at his place of business by two men. One man was white and the other man was black. In the few days prior to this meeting, Mr. Shore been engaged in discussions with the white man, who Mr. Shore understood was in the drywall business, about the potential purchase of a five carat diamond engagement ring, valued at approximately $220,000. They had agreed to meet at Mr. Shore’s office that afternoon. When they met in the lobby on the ground floor, the white man introduced the black man to Mr. Shore as a friend and co-worker who was also looking to “pick up a little gift for his lady.” They shook hands and Mr. Shore indicated that he would be able to help the black man as well. The three men then took the elevator to the ninth floor, where Mr. Shore’s business office was located.
[6] According to Mr. Shore, when they got inside his office, the black man suddenly yelled, grabbed him and slammed him up against the wall. They started wrestling. While he was “really paying attention” to the black man he was fighting with, Mr. Shore noticed that the white man was also looking for a way to get involved. The white man then “pulled a gun” and pointed it at Mr. Shore’s head and told him to stop fighting or he would shoot him. Mr. Shore testified that at around this time, the black man was able to overpower him, get his hands behind his back and cover his mouth and nose. Unable to breathe properly, Mr. Shore stopped fighting. He tried to reach for the “panic button” located in the office, but the black man prevented him from moving in that direction. Indeed, the black man got Mr. Shore face down on the floor, and sat on his back opposite his chest area. In this position it remained hard for Mr. Shore to breathe as the black man had all of his weight on Mr. Shore’s chest. The white man used duct tape to “handcuff” Mr. Shore’s legs together, his arms behind his back, and cover his mouth and face. At different points, the black man told Mr. Shore to stop fighting or he would use his knife to “gut” him or “slit [him] open.”
[7] Mr. Shore testified that while he had tried to call out to his brother-in-law, Ron Pollock, who was working with him in the adjoining office, the two robbers were quickly able to physically subdue him and tie him up in a similar manner.
[8] Mr. Shore testified that he remained on the floor, with the black man sitting on his back, for probably 15-20 minutes or more. Meanwhile, the white man was “ransacking” the office, grabbing all of the merchandise he could. More particularly, the white man went to the office safe, which was located in a back cupboard, and took some pieces of estate jewellery located therein. He needed no help in finding the location of the safe. While Mr. Shore denied having any cash on hand in the office, the white man quickly found the $30,000 in American money that was located in a drawer, and which Mr. Shore had been paid earlier that same day. According to Mr. Shore, the white man appeared to know exactly the drawer where the money was located. Mr. Shore knew that the men had taken the large five carat diamond ring he had in his inventory, and he was quite sure they had taken the rest of the diamonds that had been on his desk.
[9] Once the white man had secured all of the merchandise he wanted, and the robbers were preparing to flee, the black man pulled Mr. Shore away from his desk where the “panic button” was located. Mr. Shore thought that both men appeared to have a pretty good idea about the physical office layout. Approximately five minutes after the two robbers left the office, Mr. Shore and his brother-in-law managed to collectively free themselves, and Mr. Shore quickly pushed the “panic” button in his office, and called the 911 emergency number to report the robbery to the police. Mr. Shore noticed that, before they left, the robbers broke his cell phone. The police arrived on the scene in less than ten minutes.
[10] After Mr. Shore was able to take stock of exactly what merchandise had been taken in the robbery, he estimated that the two robbers made off with a total of approximately $800,000 to $1,000,000 in diamonds and cash (depending on the precise valuation of the jewels). Mr. Shore was not insured for this loss.
C. The Identification Evidence
[11] The Crown’s case against Mr. Gordon depends, at least in part, on the identification evidence of Mr. Shore. At the preliminary inquiry Mr. Shore provided, essentially, the following identification evidence of the black man involved in the robbery – the man the Crown contends is the accused, Mr. Gordon:
• The Videotaped Statement: Mr. Shore provided the police with a videotaped statement later on January 9, 2010. During this interview statement, Mr. Shore testified that the black man involved in the robbery had a “bigger build” than him, but he was “not heavy.” When they were wrestling on the floor the black man felt strong and muscular. Mr. Shore described the black man as having “scruffy hair” in that it was overall kind of short and appeared scruffy, as he may have been working with drywall. Mr. Shore also indicated that he had “dark skin, but not that real dark, dark black.” Mr. Shore also indicated that, in his manner of speaking, the black robber spoke as one who was not well educated, but who spoke in a more “urban street style.” Mr. Shore acknowledged, however, that the black robber did not speak much.
• The First Lineup – The Photo Array: Mr. Shore was shown two photo lineups. The first photo lineup was an array of 12 photographs of various black men. This photo array was shown to Mr. Shore on January 21, 2010, a couple of weeks after the robbery. Mr. Shore was told by the police officer that the perpetrator of the robbery may or may not be in the array, and that it was okay to say he did not recognize anyone in the array. Mr. Shore was not pointed in any direction by the officer. After examining the photo array “pretty carefully” for about five minutes, Mr. Shore picked out the photograph of Mr. Gordon as the man who was involved in the robbery. When Mr. Shore identified the photograph of Mr. Gordon, the police officer evidenced no reaction to this selection. Mr. Shore did subsequently learn, however, that an arrest had later been made by the police. Mr. Shore explained that it was “much more difficult” to identify the perpetrator from the photographs as opposed to the “actual person,” as the pictures are only two dimensional and were of poor quality. Mr. Shore also noticed that the picture of Mr. Gordon in the photo array was a “bad photograph” as his face appeared to be “squished down a bit” in the picture. While the quality of the photograph of Mr. Gordon appeared to be different than the others, that did not “jump out” at him at the time he was looking at the array of photos. Mr. Shore testified that he picked the picture of Mr. Gordon from the array as “he looked like” the person that participated in the robbery. Further, he explained that he picked that photograph as it was the one he “thought it was and the one it could have been.”
• The Second Lineup – The Sequential Photos: Subsequently, on August 25, 2010, more than seven months after the robbery, Mr. Shore was shown another photo lineup. He thought that this was just regular police procedure. This time, however, Mr. Shore was shown a random sequence of individual photographs of 12 black men, one photograph at a time, with each photograph contained in its own individual envelope. This identification procedure was videotaped. The pictures used in this lineup were larger and in colour. Mr. Shore picked the third picture, explaining that he recognized the face, shape and hair colour. However, Mr. Shore testified that he was not as “clear” in this identification of this person. This identification was “further away” in time from the robbery, and was “harder” for Mr. Shore. The photograph that Mr. Shore selected on this occasion was not the photograph of Mr. Gordon. When asked to compare the picture he selected from the lineup to Mr. Gordon, Mr. Shore testified that the photograph he picked on this occasion looked similar to Mr. Gordon, but not identical as there were some differences.
• Stressful and Traumatic Situation: At the preliminary inquiry Mr. Shore testified that after the robbery he was not in a great state of mind. He felt sick to his stomach. He realized that he had just “lost everything.” He was very distraught. In cross-examination, Mr. Shore agreed that the robbery was a very difficult, stressful and traumatic situation to endure, given that he was confined and robbed of his “life savings.” When the robbery was over, Mr. Shore felt a real sense of panic as he had basically just lost his entire financial life. His hands were shaking and he felt the adrenaline coursing through him. He admitted feeling lost and very emotional. Mr. Shore explained, however, that during the robbery he felt “very clear” and thought that “everything was very much in focus” and he was “very much aware of what was going on” around him.
• The Courtroom Identification of Mr. Gordon: At the preliminary inquiry Mr. Shore testified that he believed he would be able to recognize the black man who participated in the robbery as he had the opportunity to see him a “few times” during their interactions the day of the robbery. When asked if that man was in the courtroom, Mr. Shore pointed at Mr. Gordon. In cross-examination, Mr. Shore also testified that he recognized Mr. Gordon in the hallway in the courthouse prior to the commencement of the court proceedings that day.
• The Courtroom Description of the Black Robber: In his preliminary inquiry evidence Mr. Shore described the black man as wearing a “hoodie” over his head, which covered most of his short hair, and a distinctive orange construction vest with yellow markings. He was also wearing dark leather driving gloves. He had a face mask (used when working with drywall dust) hanging around his neck area. Mr. Shore described the black man as being tall, at least his height (six feet tall), heavier set, quite muscular and strong, and younger than his age at the time (54 years), probably in his late 30’s or early 40’s. Mr. Shore testified that the black man’s hair, from what he could see, appeared to be “salt and pepper.” He appeared to be dusty, like he had been working with drywall. Mr. Shore testified that he did not recall the black man having an accent when he spoke, but if he did it was not a strong accent. When Mr. Gordon was subsequently arrested, the Record of Arrest described Mr. Gordon as being 36 years of age, and metrically as just over six feet tall and weighing approximately 231 lbs.
D. The Explanation for the Two Photo Lineups
[12] In advancing his argument, defence counsel for Mr. Gordon did not challenge the bona fides of the investigating police officers in the manner in which the two lineups were assembled and conducted. This is so, no doubt, as a result of the explanation that emerged from the evidence at the preliminary inquiry as to how and why the first photo lineup came to be created.
[13] At the preliminary inquiry one of the investigating police officers, Det. Lemaitre of the Toronto Police Service (TPS), explained that the first photo lineup that was shown to the victim on January 21, 2010 was compiled by another police officer, attached to the Forensic Identifications Services Unit of the TPS, who was an expert who specialized in the creation of photo lineups, particularly where photographs from other government agencies are employed. Det. Lemaitre testified that he provided this police expert with a Ministry of Transportation driver’s licence photograph of Mr. Gordon (taken May 29, 2009), as there were no other reasonably current “updated” photographs of Mr. Gordon available. While the photographs of the other black males in the photo array were RICI (Repository for Integrated Criminalistic Imaging) “mugshot” photos commonly used by the TPS, the RICI photo of Mr. Gordon was not used as it was an “old photo” from April 5, 2003). Det. Lemaitre thought that it was preferable to use the much more recent driver’s licence photo of Mr. Gordon. Det. Lemaitre acknowledged, however, that it was apparent from a review of the photo array that the photograph of Mr. Gordon was in a “different format.”
[14] Det. Lemaitre testified that Mr. Shore was ultimately shown the second photo lineup on August 25, 2010 as a result of a decision of the Crown and himself. They were concerned about the quality of the photographs used in the first photo lineup and wanted to show Mr. Shore a photo lineup that was “more fair” to Mr. Gordon and which was in accordance with the “best practices” for photo lineups. In this sequential photograph lineup, which was shown to Mr. Shore by an officer unconnected to the investigation, Mr. Shore identified another man (not Mr. Gordon) as the black man who was involved in the robbery. In identifying this other individual, Mr. Shore indicated that he believed that this other individual was involved in the robbery because he thought his face looked familiar notwithstanding the fact that the black male robber was wearing a “hoodie” over his head.
E. Analysis
1. Introduction
[15] Eyewitness identification evidence carries intrinsic and notorious dangers, and creates the risk of miscarriages of justice through wrongful convictions. Such evidence is inherently unreliable as even honest, confident and convincing witnesses may well be mistaken in positively identifying an accused as the perpetrator of an alleged offence. As Doherty J.A. stated in R. v. Quercia (1990), 1990 2595 (ON CA), 60 C.C.C. (3d) 380 (Ont.C.A.) at p. 383, “[t]he spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law.” See also: R. v. Izzard (1990), 1990 11055 (ON CA), 54 C.C.C. (3d) 252 (Ont.C.A.) at p. 255; R. v. Miaponoose (1996), 1996 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont.C.A.) at pp. 450-451; R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197, at para. 19; R. v. A.(F.) (2004), 2004 10491 (ON CA), 183 C.C.C. (3d) 518 (Ont. C.A.) at para. 39; R. v. Goran, 2008 ONCA 195, at paras. 19-20; R. v. Gonsalves (2008), 2008 17559 (ON SC), 56 C.R. (6th) 379 (Ont.S.C.J.) at paras. 35-53.
[16] Notwithstanding its limited weight, in-dock identification evidence remains presumptively admissible and is tendered in virtually all criminal cases. While juries must be carefully cautioned about the approach that must be taken in the delicate assessment of such inherently unreliable evidence, the evidence is, generally speaking, admissible. The Court of Appeal for Ontario recently reiterated this general principle in R. v. Muir, 2013 ONCA 470, [2013] O.J. No. 3190, stating, at para. 8:
In-dock identifications are presumptively admissible, subject to the requirement of a proper limiting jury instruction. In virtually all cases, therefore, in-dock identification evidence is admitted, subject to such an instruction.
[17] Defence counsel argues, however, that the in-dock identification evidence of Mr. Shore should be excluded because it is irremediably tainted by the manner in which the first photo lineup was conducted on January 21, 2010. In this regard, defence counsel relies upon the fact that the lineup: (1) was conducted as an array of photographs, instead of a sequential presentation of individual photographs, which permitted Mr. Shore to assess the photographs comparatively; and (2) included a photograph of the accused that was in a different format from the other 11 photographs, and which would have unfairly drawn the attention of Mr. Shore to the photograph of the accused as the one picture that was unlike the others. Defence counsel notes that, when Mr. Shore was subsequently presented with a proper, sequential photo line-up, with a photograph of Mr. Gordon that was not dissimilarly formatted, Mr. Shore identified another individual, not Mr. Gordon, as the black man involved in the robbery.
[18] The governing judicial authorities clearly hold that the improper conduct of an identification line-up can impact negatively upon the probative value that might otherwise attend upon the positive identification of an accused through a line-up procedure. See: R. v. Smierciak (1946), 1946 331 (ON CA), 87 C.C.C. 175 (Ont.C.A.) at pp. 177-180; R. v. Todish (1985), 1985 3586 (ON CA), 18 C.C.C. (3d) 159 (Ont.C.A.) at pp. 161-163; R. v. Leclair and Ross (1989), 1989 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at pp. 137-138; R. v. Quercia (1990), 1990 2595 (ON CA), 60 C.C.C. (3d) 380 (Ont.C.A.) at pp. 384-389; R. v. Biddle (1993), 1993 8506 (ON CA), 84 C.C.C. (3d) 430 (Ont.C.A.) at pp. 434-442; Reversed on other grounds: (1995), 1995 134 (SCC), 96 C.C.C. (3d) 321 (S.C.C.); R. v. Malcolm (1993), 1993 3425 (ON CA), 81 C.C.C. (3d) 196 (Ont.C.A.) at pp. 202-203; R. v. Goncalves, at para. 44-45.
[19] Some authorities suggest that, in exceptional circumstances, the probative value of the tendered identification evidence may be so slight, and its potential prejudicial impact to the accused so great, that the evidence should be excluded. See: R. v. Holmes (2002), 2002 45114 (ON CA), 169 C.C.C. (3d) 344 (Ont.C.A.) at paras. 38-40; Leave denied: [2003] S.C.C.A. No. 4; R. v. Tebo (2003), 2003 43106 (ON CA), 175 C.C.C. (3d) 116 (Ont.C.A.) at paras. 17-20. Generally speaking, however, questionable or improper identification procedures are relevant only to the weight to be attributed to the evidence, not its admissibility. See: R. v. Mezzo, 1986 16 (SCC), [1986] 1 S.C.R. 802, at paras. 61-63; R. v. D’Amico (1993), 1993 8482 (ON CA), 16 O.R. (3d) 125; R. v. Miaponoose, at p. 458; R. v. Wang and Lo (2001), 2001 20933 (ON CA), 153 C.C.C. (3d) 321(Ont.C.A.) at para. 33; R. v. Jones, [2004] O.J. No. 1236 (C.A.) at para. 4; R. v. A.(F.), at para. 45-46; R. v. Goncalves, at para. 44-46. As Weiler J.A. stated in R. v. Gagnon and Gagnon (2000), 2000 16863 (ON CA), 147 C.C.C. (3d) 193 (Ont.C.A.) at para. 91:
The trial judge was correct that the generally accepted state of the law is that, where evidence is tainted, either because identification was suggested by the accused’s presence in the prisoner’s box or as a result of inappropriate police procedures, the evidence is not thereby rendered inadmissible. Rather, the evidence of tainting is a factor going to the weight of the evidence which is exclusively the province of the jury.
[20] While I agree with defence counsel that the manner in which the first photo line-up was conducted was less than ideal, I do not agree that the procedural deficiencies in that photo line-up should result in the exclusion of the entirety of the identification evidence of Mr. Shore. In my view, those deficiencies potentially impact only upon the weight to be attributed to the identification evidence of Mr. Shore, not its admissibility. I am confident that the jury, properly instructed, will be able to consider and assess the weight to be given to the identification evidence of Mr. Shore, in the context of the case as a whole. See: R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, at paras. 39-48. I reach this conclusion for a number of reasons.
F. Conclusion
[35] For these reasons, the identification evidence from the Crown witness, Mr. Robert Shore, is admissible. The pre-trial motion brought on behalf of Mr. Gordon to exclude the identification evidence of Robert Shore is accordingly dismissed.
Kenneth L. Campbell J.
Released: September 16, 2013
COURT FILE NO.: 231/12
DATE: 20130916
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
ANTONIO BANDIERA and
ANDREW GORDON
Pre-Trial Ruling:
Admissibility of Identification Evidence
K.L. Campbell J.
Released: September 16, 2013