SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-13-10000169-00MO
DATE: 20140321

RE: R. v. Ricardo Roberts

BEFORE: L. A. Pattillo J.

COUNSEL:
C. Josic, for the Crown, Respondent

D. Rechtshaffen, for the Accused, Applicant

HEARD: March 17, 2014

ENDORSEMENT

Introduction

[1] The Applicant, Ricardo Roberts, brings this Application for relief in the nature of certiorari seeking an order quashing his committal for trial on May 27, 2013 by Madam Justice Chapin on charges of trafficking in cocaine and possession of proceeds of crime.

[2] The Applicant submits that the learned preliminary hearing judge exceeded her jurisdiction in committing him to stand trial in the absence of any evidence that a jury, properly instructed and acting reasonably, could rely upon to establish identification.

Background

[3] At the preliminary, the Crown called two witnesses, the undercover officer who dealt with Mr. Roberts on October 24, 2011 and one of the officers who was a member of the surveillance team that evening. The Applicant also called another member of the surveillance team that evening.

[4] The undercover officer testified that on October 24, 2011, he arranged over the phone to purchase an ounce of powder cocaine from an individual with whom he’d done previous drug transactions. At approximately 8:45 pm, the undercover officer picked up the individual in his car and they then sat and waited for the individual’s supplier.

[5] At 9:07 pm, the undercover officer observed a white Infinity car coming toward them. It turned around and parked in front of the officer’s vehicle. The officer was able to obtain the license plate number. The individual in the officer’s car then said that’s his boy. They then had a brief discussion about what would happen next. The officer observed the driver door of the Infinity open and the driver get out and walk towards his car. He described the individual he observed as male black, between five-foot six and five-foot eight, with a thin build. He was wearing black pants and a black vest and had on a green baseball cap with an “A” insignia on the top part of the hat.

[6] The officer unlocked his car and the individual got into the back seat directly behind the officer. The individual in the front passenger seat greeted the person in the back seat and introduced the officer to him as his boy. The officer reached back and shook hands with the person in the back seat. He said that he was able to shift and turn his body so he could see directly behind him. The officer handed the money to the individual in the front passenger seat and the person in the back put a clear plastic bag with white powder in it on the center console. The officer heard the person in the back seat flipping through the money. He assumed the person in the back was counting the money. The officer looked at the plastic bag and said: “it looks good.” The person in the front seat and the person in the back each said: “cool.” At 9:13 pm, the two individuals left the officer’s vehicle and walked back to the white Infinity. The undercover officer gave the “deal done” sign and drove away.

[7] There was a surveillance team of officers in place that evening. The evidence established that the white Infinity left the area and drove to another location where the driver got out of the vehicle and entered the passenger seat of a grey Toyota Camry. The officers then follow the Toyota Camry to a beer store where at approximately 9:35 pm, the surveillance officer called by the Crown observed the male passenger and the driver get out of the vehicle. He was provided with a description of the male passenger in advance which was male black, five – six to five – eight, thin build, wearing black pants, a black vest, dark coloured shirt and a grey baseball cap with the letter “A” on the front. He observed the two males go into the beer store and then come out a short time later. He estimated that in total he observed the two individuals for one to two minutes.

[8] On December 7, 2011, the surveillance officer attended at 42 Division where the Applicant was in custody on an unrelated investigation and arrested him for the charges before the court.

[9] The undercover officer identified the Applicant in the body of the courtroom as the driver of the white Infinity who got out of the vehicle and into the back seat of the undercover officer’s car. Although the undercover officer indicated that he had done a photo-line up in respect of the Applicant, no evidence was lead concerning it. The surveillance officer identified the Applicant in court as the passenger who exited the Toyota Camry and went in and out of the beer store.

[10] The issue at the conclusion of the preliminary in respect of the committal of the Applicant was identification. In committing the Applicant for trial, the learned preliminary inquiry judge gave clear and concise oral reasons. She summarized the evidence of the undercover officer concerning the identification of the Applicant. She then summarized the positions of the Applicant and the Crown and referred to the authorities relied on by both sides. The learned preliminary inquiry judge was mindful of the test for committal as set out in United States of America v. Sheppard, 1976 8 (SCC), [1977] 2 S.C.R. 1067 and R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828 (S.C.C.) which discussed the application of the Sheppard test. She stated: “… the evidence of identification as it now stands may not be strong, but it is sufficient for committal. The undercover officer clearly identified Mr. Roberts and he is ordered committed to stand trial on both counts.”

[11] The Applicant submits that as the only evidence at the preliminary hearing concerning identity was the “in-dock” identification by the two officers which, because it is inherently suspect, is of no value to a jury in establishing identity. Accordingly, the Applicant should not have been committed to stand trial on the charges.

Discussion

[12] There is no question that in-dock identification evidence by itself is inherently dangerous. It can be “deceptively credible”: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445 (S.C.C.); R. v. Tebo (2003), 2003 43106 (ON CA), 172 O.A.C. 148; 175 C.C.C. (3d) 116 (Ont. C.A.). It is not, however, presumptively inadmissible. It may be that the nature of the evidence is such that its probative value will be outweighed by the prejudice it will cause in which case it will be excluded from the jury: R. v. Holmes (2002), 2002 45114 (ON CA), 169 C.C.C. (3d) 344 (Ont. C.A.) at para. 40; Tebo at para. 20. On the other hand, the circumstances of the case may permit or indeed require that the evidence be admitted but in such case, the trial judge is required to give a strong warning, not only about the frailties of eye-witness evidence but also why in-dock evidence can be so compelling. The nature of the warning required to displace the danger that a jury will give in-court identification evidence more weight than it deserves will vary with the facts of each case: Hibbert, at para. 49.

[13] In Arcuri, the Supreme Court reaffirmed the test for committal on a preliminary inquiry as set out in Sheppard. In discussing the test as it applies to either direct or circumstantial evidence, McLachlin C.J., who wrote the Court’s reasons, stated at paragraph 22:

The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen, 1986 16 (SCC), [1986] 1 S.C.R. 802, at pp. 842-43; Monteleone, supra, at p. 161. The nature of the judge's task, however, varies according to the type of evidence that the Crown has advanced. Where the Crown's case is based entirely on direct evidence, the judge's task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true: see Watt's Manual of Criminal Evidence (1998), at par. 8.0 ("[d]irect evidence is evidence which, if believed, resolves a matter in issue"); McCormick on Evidence (5th ed. 1999), at p. 641; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at par. 2.74 (direct evidence is witness testimony as to "the precise fact which is the subject of the issue on trial"). It is for the jury to say whether and how far the evidence is to be believed: see Shephard, supra, at pp. 1086-87. Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge's task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial.

[14] In this case, the identification evidence of the undercover officer was direct evidence. The officer had a clear view of the Applicant over a period of approximately six minutes. He noted a detailed description of him at the time. In addition, there is the identification evidence of the surveillance officer, which, while admittedly not strong, is some evidence to corroborate the undercover officer’s identification. The preliminary inquiry judge clearly believed the undercover officer’s testimony.

[15] In her reasons, the preliminary inquiry judge referred to and relied upon R. v. Day, [2001] O.J. No. 3997 (O.C.J.) and R. v. Smith, [2004] O.J. No. 6219 (O.C.J.) which dealt with committals where there was problematic identification evidence including in-dock identification. I agree with those decisions.

[16] Smith, which involved a charge of robbery, concerned the in-dock identification by a civilian complainant who was a stranger to the accused and which was qualified by the acknowledgement that the accused in court differed from the assailant by being bigger, balder and clean-shaven. Further, the person who committed the offence had a goatee while the accused, when arrested within three hours of the offence, was clean shaven.

[17] After discussing the test for committal as set out in Sheppard and confirmed in Arcuri, Duncan J. stated at para. 15:

Cases of identification and their attendant dangers, while being particularly suitable for appellate review of reasonableness and reliability, have not been the subject of any refined or different test for committal for trial or the leaving of a case with a jury. The English approach, granting the trial judge the authority to withdraw cases of weak, tainted or suspect identification from the jury where in his or her opinion conviction would be unsafe, has been rejected in Canada: Mezzo v. The Queen (1986), 1986 16 (SCC), 27 C.C.C. (3d) 97 (S.C.C.). An unbroken line of authority, binding on me, diligently assembled by Crown counsel Ms. Stevens, has consistently applied Mezzo and affirmed committal for trial in cases of weak or suspect identification. Following this authority, subject only to the discussion below, I would be obliged to order the defendant to stand trial.

[18] Mr. Justice Duncan then went on to consider the decision in Hibbert and after concluding that it did not change the law as stated in Mezzo, committed the accused to trial on the basis there was some evidence identifying him as the offender.

Conclusion

[19] In summary, there was some evidence before the preliminary inquiry judge identifying the Applicant as the individual involved in the transaction with the undercover officer on October 24, 2011 upon which a properly instructed jury, acting reasonably could convict.

[20] Accordingly, I am satisfied the preliminary inquiry judge did not exceed her jurisdiction in committing the Applicant for trial on the charges before the court. She gave careful and considered reasons for the committal and she was correct.

[21] The Application is therefore dismissed.

L. A. Pattillo J.

Released: March 21, 2014