ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(F)1898/12
DATE: 20140825
B E T W E E N:
HER MAJESTY THE QUEEN
Holly A. Akin, for the Crown
Respondent
- and -
PHILIP SARGEANT
Mr. P. Aubin, for the Applicant
Applicant
FOLLOW-UP RULING RE: ADMISSION OF IDENTIFICATION
EVIDENCE RE: MR. PHILIP SARGEANT
Fragomeni J.
[1] Subsequent to my ruling dismissing Mr. Sargeant’s application to exclude the identification evidence of Mr. Datta and prior to that testimony being called by the Crown, the defence for Mr. Sargeant received new and additional disclosure with respect to four photos shown to Mr. Datta prior to the photo-line up being conducted. The defence took the position that in light of this new disclosure the photo line-up was tainted and should not be admissible. A further difficulty identified by the defence was that the officer who met with Mr. Datta and showed him the four photos had no notes with respect to this interview. The four photos shown to Mr. Datta were of Mr. Gopie, Mr. Wilson, Mr. Sargeant and Mr. Gibson.
[2] In essence, the defence took the position that the identification evidence of Mr. Datta was so tainted it had no probative value. On January 30, 2014, I agreed with the defence and excluded the evidence with written reasons to follow. These are those reasons.
[3] In order to establish an evidentiary basis to assess the issue of tainting it was agreed that a voir dire should be conducted to hear from Mr. Datta and Officer Gavrila. I will review that voir dire testimony at this time.
Mr. Randhir Datta
• Prior to the photo line-up the police came to his travel agency to speak to him at this office
• At his office, Mr. Datta thinks he was shown three or four photographs. The photos were black and white
• Mr. Datta cannot remember which police officer showed him the photos
• When the photos were shown to Mr. Datta he was asked if the person who purchased the tickets was in those photos. Mr. Datta’s response was that one of them looked like Paul Gomes, the person who purchased the tickets. Mr. Datta could not now remember anything about that one photo.
[4] In cross-examination by Mr. Sargeant’s counsel, Mr. Datta stated the following:
• He did not know which police officer showed him the three or four photos but he does remember that there were two officers present
• This meeting with the officers happened so long ago he cannot recall the surrounding circumstances of being shown those photos
• The police were with him that day for 10-15 minutes – he was shown the photos 4-5 minutes after the police arrived
• He stated that the photo line-up was an independent procedure and had nothing to do with the three or four photos he had been shown earlier
• At his Preliminary Hearing testimony Mr. Datta stated that the four photos were shown to him at the police station.
Cst. Dan Gavrila
• Cst. Gavrila was the officer-in-charge
• On February 24, 2010 he attended at Payless Travel with Cst. Vlad Todosijevii to meet with Mr. Datta to see if the Agency would co-operate with this investigation
• Prior to the photo line-up on March 13, 2010 Cst. Gravila had shown Mr. Datta three or four sample photos, although Cst. Gavrila has no recollection of doing that. Cst. Gavrila testified that he has never done this in other cases he’s been involved in
• Cst. Gavrila could not remember showing Mr. Datta these three or four sample photos at some time prior to the photo line-up being conducting but he does not think he did.
[5] In cross-examination Cst. Gavrila acknowledged the following:
• He is certain he met with Mr. Datta twice before the March 13, 2010 photo line-up
• On February 24, 2010 he met with Mr. Datta at the Travel Agency with Cst. Todosijevii
• They were there from 3:00 p.m. to 3:20 p.m. Cst. Gavrila made very brief notes of that meeting
• Cst. Gavrila cannot recall if he had the four mug shots of the suspects, including Mr. Sargeant – it is possible as they could have been in his file. It is possible but he cannot remember
• If he showed Mr. Datta the mugsshots he thinks he would have made a note of doing so. So if he did show them he did not make notes about it
• If Mr. Datta had said one of the photos looks similar to Paul Gomes then Cst. Gavrila would have made a note of it, he thinks
• Cst. Gavrila agreed that it is not proper procedure to show mug shots before a photo line-up is conducted. He also agreed that a single photo is not a proper identification procedure. It means nothing – one photo is not enough
• He agreed that if mug shots are shown prior to conducting a photo line-up that would be improper and it could taint the photo line-up. They are trained not to do this. When asked why he did it this way in this case he stated he does not think he did
• When asked why no notes were taken by him or his partner at the February 24, 2010 meeting with Mr. Datta, Cst. Gavrila stated that you cannot write down everything.
Analysis and Conclusion
[6] In R. v. Smierciak, 1946 331 (ON CA), [1946] O.J. No. 290 (Ont. C.A.) the Court set out the following at paras. 5, 6 and 7:
5 The weight of evidence of identification of an accused person varies according to many circumstances. A witness called upon to identify another person may have been so well with him or her as to make the identification certain and safe. The person to be identified might possess such outstanding features or characteristics as to make an identification comparatively free from doubt. The conditions under which an observation is made, the care with which it is made, and the ability of the observer affect the weight, of the evidence. In addition to such matters, and of the utmost importance, is the method used to recall or refresh the recollections of a witness who is to be relied upon to identify a person suspected of wrong-doing or who is under arrest. If a witness has no previous knowledge of the accused person so as to make him, familiar with that persons appearance, the greatest care ought to be used to ensure the absolute independence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias created directly or indirectly. Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonably prejudice the accused, the value of the evidence may be partially or wholly destroyed. Anything which tends to convey to a witness that, a person is suspected by the authorities or is charged with an offence is obviously prejudicial and wrongful. Submitting a prisoner alone for scrutiny after arrest is unfair and unjust. Likewise, permitting a witness to see a single photograph of a suspected person or of a prisoner after arrest and before scrutiny can have no other effect, in my opinion, than one of prejudice to such a person.
6 Notwithstanding strong views expressed on many occasions in the Court of Criminal Appeal in England, as well as in Courts of this and other Provinces of the Dominion, and the manner in which convictions are set aside if evidence of identification be improperly obtained, cases continue to arise from time to time in which the course followed by police authorities is wrong and, in consequence, a conviction depending thereon must be set aside as unsafe and unjust. No rule can be satisfactorily formulated to secure the value of evidence of identification, but it win be convenient and possibly serve a useful purpose to quote some of the statements made from time to time in respect of the matter under discussion. In R. v. Dickman (1910), 5 Cr. App. R. 135, at p. 142, the Lord Chief Justice said:-
"We need hardly say that we deprecate in the strongest manner any attempt to point out beforehand to a person coming for the purpose of seeing if he could identify another, the person to be identified, and we hope that instances of this being done are extremely rare. I desire to say that if we thought in any case that justice depended upon the independent identification of the person charged, and that the identification appeared to have been induced by some suggestion or other means, we should not hesitate to quash any conviction which followed. The police ought not either directly or indirectly, to do anything which prevent the identification from being absolutely independent, and they should be most scrupulous in seeing that it is so."
In R. v. Goss (1923), 17 Cr. App. R. 196, the Lord Chief Justice used these words:-
"No doubt there are circumstances in which the police of necessity make use of photographs, but to make use of photographs beforehand to see whether important witnesses can identify an accused person whom they are afterwards going to see is to pursue a course which is not a proper one.
... It is not sufficient that what is done should be fair; it must be manifestly clear that nothing was done which might seem to be unfair."
A distinction is to be made between a case where a police officer shows a person a photograph in order to obtain information or a clue to assist him in the course of his investigation and a case in which photographs of persons to be identified are shown beforehand to witnesses to be called to establish the identification. In Rex v. Thomas Dwyer, Rex Allen Ferguson, (1925) 2 K.B. 799, Lord Hewart, C.J., at p. 802, says:-
"The circumstances of different cases differ greatly, and it is not easy to lay down general rules. One distinction, however, is quite clear. It is one thing for a police officer, who is in doubt upon the question who shall be arrested, to show a photograph to persons in order to obtain information or a clue upon that question; it is another thing for a police officer to should beforehand to persons, who are afterwards to be called as identifying witnesses, photographs of those persons whom they are about to be asked to identify. It would be most improper to inform a witness beforehand, who was to be called air an identifying witness, by the process of making the features of the accused person familiar to him through a photograph. But even where photographs are employed for the purpose of obtaining information on the question of arrest, it is fair that all proper precautions should be observed. ... It would be manifestly open to remark if, the police were to show one or two photographs to a person who was supposed to be able to give information and the, having obtained the assent of that person, to act upon that information. The fair thing is, ... to show a series of photographs and to see whether the person is expected to give information can pick out the appropriate person. And where that process has been gone through, no matter with what care, it is quite evident that afterwards the witness who has so acted in relation to a photograph is not a useful witness for the process or identification or at any rate the evidence of that witness for the purpose of identification is to be taken subject to this, that he has previously seen a photograph."
In Rex v. Watson (1944), 1944 340 (ON CA), 81 Can. C.C. 212, at pp. 214 and 215, Robertson, C.J.O. refers to the distinction mentioned above and, amongst other cases, to R. (1926), 1926 244 (BC CA), 3 D.L.R. 717, 46 Can. C.C. 257, 37 B.C.R. 353, a decision of the Court of Appeal of British Columbia, and in which many decisions on the subject of the identification by photographs are collected and discussed. He also issued these special words of caution:-
"It requires constant watchfulness on the part of trial Judges and Magistrates, and of Crown counsel as well, to see that nothing unfair to an accused person is done, or is stated in evidence, in connection with the use of photographs for purposes of identification. ..."
Again, in Rex v. Baldwin (1944), 1944 347 (ON CA), 82 Can. C.C. 15, at p. 18, the Honourable the Chief Justice of Ontario made particular mention of the matter and said:-
"Attention has often been called to the care that must be exercised to secure an unassisted and unbiased identification, if it is to have any real value."
7 The authorities to which I have referred above do not exhaust the occasions on which attempts have been made to impress upon all authorities concerned that the utmost care must be exercised in the matter of identification of a person suspected by such authorities to be an offender or who has been arrested for an alleged offence. In the case presently under consideration, the course taken was not fair or proper. While it does not appear that the appellant was under arrest at the time his photograph was exhibited to the only witness to be called to identify him, nevertheless it is quite apparent to me that at that time he was a suspect. Under the circumstances, the investigating authorities should not have shown a single photograph to the prospective witness. They should not have questioned her. They did not enable her to form an absolutely independent judgment in making her identification of the man who committed the alleged offence. Her evidence at trial was consequently rendered valueless and, in the absence of any other evidence, to identify the appellant with the commission of the offence charged against him, it would be unfair and unsafe to convict him.
[7] In R. v. Miaponoose, 1996 1268 (ON CA), [1996] O.J. No. 3216 the Court stated at paras. 16-17, 28 and 29:
16 The weight of eyewitness identification will obviously vary greatly depending on the circumstances. In an often quoted passage from the decision of R. v. Smierciak, (1946) 1946 331 (ON CA), 87 C.C.C. 175 Laidlaw J.A., in writing for the Ontario Court of Appeal, succinctly set out a number of relevant factors to be considered in the assessment of identification evidence. His words are particularly useful to the review of this case (at p. 177):
The weight of evidence of identification of an accused person varies according to many circumstances. A witness called upon to identify another person may have been so well acquainted with him or her as to make the identification certain and safe. The person to be identified may possess such outstanding features or characteristics as to make an identification comparatively free from doubt. The conditions under which an observation is made, the care with which it is made, and the ability of the observer, affect the weight of the evidence. In addition to such matters, and of the utmost importance, is the method used to recall or refresh the recollections of a witness who is to be relied upon to identify a person suspected of wrongdoing or who is under arrest. If a witness has no previous knowledge of the accused person, so as to make him familiar with that person's appearance, the greatest care ought to be used to ensure the absolute independence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias, created directly or indirectly. Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonably prejudice the accused, the value of the evidence may be partially or wholly destroyed. Anything which tends to convey to a witness that a person is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful. Submitting a prisoner alone for scrutiny after arrest is unfair and unjust. Likewise, permitting a witness to see a single photograph of a suspected person or of a prisoner, after arrest and before scrutiny, can have no other effect, in my opinion, than one of prejudice to such a person.
17 Later in the reasons for decision, the Court reiterates the need for constant watchfulness on the part of judges and Crown counsel to see that nothing unfair to an accused person is done or put in evidence in connection with identification procedure. I would add that it is clear that the police also have a duty to ensure the integrity of the identification process. Their role indeed may be most important of all since they are usually in control of the methods chosen to recall or refresh the memory of eye witnesses. While it may not be possible to improve upon the reliability of a witness's original perception of a person, it is crucial that procedures which tend to minimize the inherent dangers of eyewitness identification evidence be followed as much as possible in any given case. Irreversible prejudice to an accused may flow from the use of inappropriate police procedure and, unless adequately counterbalanced during the course of the judicial process, may result in a serious miscarriage of justice.
28 The pretrial identification procedure in this case was totally unjustifiable in the circumstances. There may be situations where a confrontation between a single suspect and a complainant is the only possible way to ascertain whether the suspect can be recognized. Even in such exigent circumstances, every effort should be made to maintain as much impartiality as possible and to clearly document all details, and all statements made by all parties, from the beginning of the identification process to the end. In all cases, the suspect should be presented to the complainant in circumstances that minimize any suggestion that the police believe the suspect is the offender. Here, there were no exigent circumstances. No efforts were made to ensure some fairness to the process. The highly inappropriate procedure adopted can only have resulted in grave prejudice to the appellant. It also did nothing to assist the complainant and the community as a whole, both of whom have a substantial interest in correctly identifying the perpetrator of this offence.
29 Further, it is my view that, in light of the inherent unreliability of eyewitness identification, it is incumbent upon Crown counsel to ensure that all relevant circumstances surrounding pretrial eyewitness identification procedures be fully disclosed to the defence and be made available for scrutiny by the trier of fact. As stated earlier in reference to the principles set out in Smierciak, Crown counsel must be watchful that nothing unfair be put in evidence with respect to identification evidence.
[8] The serious difficulty in this issue is that Cst. Gavrila, the officer-in-charge of this investigation, made no notes about his meeting with Mr. Datta on February 24, 2010, relating to the four photos shown to Mr. Datta. Neither did his partner, Cst. Vlad Todosijevii. There are no notes, no audio and no video record of what transpired.
[9] Mr. Datta testified that he was shown three or four photos at this meeting at his office. This testimony is in contrast to Cst. Gavrila who cannot recall showing him the mug shots. Cst. Gavrila’s testimony in this regard is confusing. He cannot recall showing Mr. Datta the mug shots but if he did he would have made notes of doing so so he probably did not but at the end of the day he really had no idea.
[10] I agree with the defence that there is no way of testing what happened at that meeting with no record of the surrounding circumstances. What was said by the officers at the time the mug shots were shown? What was said by Mr. Datta?
[11] In R. v. Frimpong, [2013] O.J. No. 1765 the Court stated the following at paras. 18-22:
18 A trial judge can exclude evidence offered by the Crown where the prejudicial effect of the evidence outweighs its probative value. Evidence is prejudicial in the relevant sense if it threatens the fairness of the trial. Evidence may be prejudicial if it cannot be adequately tested and challenged through cross-examination and the other means available in the adversarial process. Evidence may also be prejudicial if there is a real risk that the jury will misuse the evidence (e.g. propensity evidence), or be unable to properly assess the evidence regardless of the trial judge's instructions. This latter form of prejudice must, however, overcome the strong presumption that jurors can and do follow the trial judge's instructions.
19 Chammas' eyewitness evidence could be fully tested by the defence. The entirety of the identification process was fully documented and available to the defence. Both photo line-ups were videotaped and the videotapes were before the jury. All of the witnesses involved in the identification process testified and all of the officers had notes. There was fertile ground for cross-examination and counsel worked that ground to full effect. The alleged weaknesses in Chammas' evidence were fully exposed for the jury's consideration.
20 There was also nothing peculiar or unique about Chammas' evidence that would impair the jury's ability to fairly assess its credibility and reliability. The assessment of identification evidence can be a difficult and, in some ways, counterintuitive process. That is why special instructions are given to juries to assist in their assessment of identification evidence. The potential problems with Chammas' identification evidence, while numerous, were standard fare for identification evidence cases. Juries, armed with the appropriate instructions, routinely assess that kind of evidence.
21 It follows from our finding of an absence of prejudice in the relevant sense, that Chammas' identification evidence could not be excluded. Absent prejudice, a trial judge cannot exclude evidence solely on the basis that the judge thinks that the evidence has little probative value.
22 The trial judge properly admitted Chammas' identification evidence.
[12] In Frimpong the entirety of the identification process was fully documented and available to the defence. The case at bar is different. In Frimpong the court stated that absent prejudice the identification evidence could not be excluded. In the case at bar there is serious prejudice to Mr. Sargeant. The defence cannot engage in meaningful cross-examination of what transpired at the February 24, 2010 meeting with Mr. Datta when he was shown the mug shots. How can the defence ensure that there has been no tainting with respect to the March 13, 2010 photo line-up?
[13] The probative value of the photo line-up is now suspect and any probative value is now outweighed by its prejudicial effect.
[14] Cst. Gavrila is well aware of the proper procedures to follow with respect to identification evidence and he acknowledged he did not follow the proper procedures in this case.
[15] Cst. Gavrila acknowledged that showing mug shots prior to a photo line-up could taint the line-up.
[16] In reviewing the video of the photo line-up Mr. Datta states this in part:
Q2. Just sign there. Alright. (Showing Randy the pictures) Just – um – just initial that you’ve seen it and then we’ll – I’ll show you the next one.
A. I don’t want to – I don’t know what to say. But—I’m not – uh – somewhere, somebody like this could be but I don’t want to make a mistake. (inaudible). He came twice, I’ve not seen him much. He look proud like him but not this.
Q2. Ok.
A. (inaudible) The other day I think…
Q2. Sorry?
A. (inaudible) There’s some photos that was much closer than these (inaudible). It’s not here.
Q2. Sorry?
A. Last time when Dan came with the three, four samples, one of them was much closer.
Q2.Oh, I see.
A. Yeah, but – uh – not among this lot. Sorry.
Q2. Ok, well the same instruction counts. I’ve got another photo pack for you.
A. Ok.
[17] I am satisfied that the prior mug shots did influence Mr. Datta. As the transcript demonstrates he is looking for the mug shot photo that is not there – “there’s some photos that was much closer than these (inaudible). It’s not here.”
[18] I agree with the defence position that the photo line-up has been compromised and the prejudice is significant. In these circumstances, I am satisfied that on the evidentiary record before me it would be unfair and prejudicial to the trial process to admit any of the identification evidence of Mr. Datta. His evidence in that regard is excluded.
Fragomeni J.
Released: August 25, 2014
COURT FILE NO.: CRIMJ(F)1898/12
DATE: 20140825
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
PHILIP SARGEANT
FOLLOW-UP RULING RE: ADMISSION OF IDENTIFICATION
EVIDENCE RE: MR. PHILIP SARGEANT
Fragomeni J.
Released: August 25, 2014