minicounsel

Respondent

Moiz Karimjee, for the Respondent

and -

ARCHIBALD McKAY

Appellant

Jeffrey Langevin, for the Appellant

HEARD: February 04 , 2015 (Ottawa)

Overview:

Overview

1The appellant was convicted after trial in the Ontario Court of Justice of dangerous operation of a motor vehicle, failing to stop for police, possession of stolen property under $5000 and two breaches of his conditions of release.

2At trial, the Crown called Constable Eric Booth, who was the only witness for the prosecution. The defence did not call evidence. The issue at trial was whether the evidence was sufficient to identify the accused as the driver of the motor vehicle involved in this incident.

3The accused submits that the trial judge failed to apply the special scrutiny required in assessing eyewitness identification evidence and that the verdict in this case is unreasonable as it cannot be supported by the evidence.

4For the reasons which follow, I agree that the trial judge erred in her assessment of the identification evidence and that the finding of guilt was unreasonable.

The Facts

5On August 17, 2012, Constable Booth, a 27 year veteran of the Ontario Provincial Police, was stationary in his vehicle on Highway 417 in Ottawa when, at 4:15pm he observed an older model white pick-up truck proceeding westbound. The vehicle had a rear licence plate (ON) and no front licence plate.

6In the course of attempting to have this vehicle (the ‘target vehicle’) pull over, Constable Booth was able to make brief visual contact with the driver three times, totalling approximately seven or eight seconds. The pursuit was ultimately abandoned for safety reasons when the target vehicle’s speed reached up to 124 km/hr.

7When Constable Booth began to follow the target vehicle, he activated the emergency lights on his fully marked O.P.P. cruiser. The target vehicle did not pull over. As a result, the officer pulled up alongside the target vehicle on the driver’s side. The officer and the driver looked at each other for a “couple of seconds” as the officer directed the driver to pull over. The driver of the target vehicle was wearing sunglasses. He had a dark haired female passenger sitting beside him.

8Constable Booth then slowed down and pulled in behind the target vehicle with his emergency lights still activated. The driver of the target vehicle exited the highway onto an off ramp at which point the officer pulled ahead of the target vehicle and then slowed down. The target vehicle also slowed and came to a stop positioned half on the shoulder and half on the right lane of the off ramp. Constable Booth got out of his cruiser and began to walk towards the driver’s side of the target vehicle. As he did so, he was able to observe the driver for a few seconds through the driver’s front windshield and then through the driver’s side window. The windows were not tinted. The officer approached to between six and nine feet from the driver at which point the driver of the target vehicle accelerated and drove around the police cruiser.

9The officer returned to his cruiser and again pursued the target vehicle. The target vehicle travelled 90 km/hr. in a posted 70 km/hr. zone and then turned onto a side road. The driver momentarily lost control and began to fishtail. Constable Booth testified that he was able to make a more controlled turn and found himself in a T-bone position relative to the target vehicle. While approximately two meters from the driver, at that point, the officer noted the driver’s mouth opened in a type of “O” shape as the driver appeared surprised. The period of observation at this time was a few seconds. The target vehicle pulled away, followed by the officer in what became a high speed chase which was abandoned for safety reasons.

10Constable Booth recorded in his notebook the following description of the driver;

“Thin faced, short dark hair, male, tanned skin, wearing sunglasses, late 40s/early 50s.”?

He conceded in cross-examinations that this description matched thousands of people in the Ottawa area.

The Investigative Process

11Following this incident, the officer returned to his office and searched various MTO and police databases, inputting the licence number of the truck, which he had been able to record during the pursuit. The officer learned that the licence plate had been reported stolen and the photograph of the owner of the licence plate was not the person he had pursued. Constable Booth, however, attended the residence of the registered owner to question him regarding the person who had been driving the vehicle.

12Constable Booth returned to his office and searched various police databases to determine whether the stolen licence plate was found to have been involved in other incidents. The officer learned the name of a suspect in other incidents associated with the stolen licence plate. He queried the suspect’s name in the MTO database and accessed a photo of the suspect, who turned out to be the accused. Constable Booth testified that when he saw the photo, he immediately recognized the accused as the person he had followed the previous day. He also obtained an updated mug shot of the accused which he believed to be confirmatory of his identification of the accused.

13In his testimony at trial, Constable Booth said that he had training in fine arts and this assists him to identify individuals as he pays particular attention to bone structure, hair lines, and facial features. He went on to describe the person he saw as having an “almost Arnold Schwarzenegger” type look that he described as being “very unique”. The officer also pointed to the accused’s thin face and “V shaped” receding hairline.

The Trial Judgment

14The trial judge correctly observed that courts must be cognizant of the inherent frailties of eyewitness identification evidence. She then reviewed some of the extensive case law in this area, with particular emphasis on the decision Hill J. in R. v. Gordon, 2002 CarswellOnt 1654 and the decision of Ducharme J. in R. v. Powell, 2010 ONCA 105. The trial judge noted that there was no prior acquaintance between Constable Booth and the accused and that there had been no photo array in the context of identifying the photograph of the accused. She then stated;

That being said, in my view, Constable Booth’s extensive policing experience and training in the fine arts, coupled with the very unique features of this accused are to be given exceptionally greater weight. The officer’s comments regarding this accused’s unique V-shaped hairline and Arnold Schwarzenegger-like facial features are accurate and appropriate to describe this accused. Mr. McKay has a thin face and all of the other features described by the officer in his notebook at the time of the initial stages of this investigation, immediately after he had observed the driver of the truck. In my view, the officer’s experience and particular background, as well as the unique facial features of this accused make this case one of the rare occasions when this Court would find that the Crown has proven the identity of the accused beyond a reasonable doubt on the evidence presented.

Discussion

15Constable Booth observed the accused on three brief instances in the course of this pursuit, twice from within his vehicle as he approached the target vehicle and once while standing six to nine feet from the target vehicle. The accused was wearing sunglasses. There was no opportunity for any verbal interaction and Constable Booth had never seen the accused before. The observations in the officer’s notes were very generic. The only supportive evidence for the officer’s eyewitness identification was the photograph of the accused from the police database, supplemented by the mug shot subsequently obtained. The officer’s description of the accused at trial was a significant augmentation from anything he had observed during the incident.

16It is apparent from the trial judge’s reasoning that she relied on the officer’s extensive policing experience, his training in fine arts and the “very unique features” of the accused.

17In my view, some of the trial judge’s observations are problematic. Constable Booth’s experience and his training in the fine arts did not enhance the generic observations which he made in his notebook, immediately following the incident. He did not attempt to note or describe the accused’s features other than a “thin face”. It would appear that he developed the description of the accused as having a ‘Schwarzenegger like appearance’ only after discovering a photograph of the person suspected to be associated with the stolen licence plate. This type of photo identification, involving a single photograph must be regarded with extreme caution. It is concerning that if the accused has such a unique set of features, why that was articulated by the officer only after discovering a photograph. The photograph did display these features but the question is whether the driver of the truck had those features, keeping in mind that these were not recorded by the officer in his post incident notes. In the circumstances, his courtroom identification of the accused must be regarded with considerable suspicion as the cases have noted. I would emphasize that the issue is not with the honesty of the officer’s belief, but rather with its inherent reliability.

18The case law suggests that in circumstances of limited observation, between strangers and particularly in dynamic situations, eyewitness evidence will normally be accepted only if additional non eyewitness evidence is available to support the identification. An example in this and other car chase scenarios could have been a link between the accused and the licence plate on the target vehicle. There was no such link, or in any event, no such evidence was presented. In the final analysis, the identification evidence implicating this accused was simply the officer’s firmly expressed belief that he was confident that the accused in the courtroom was the driver of the vehicle he pursued in this incident.

19In R. v. Goran 2008 ONCA 195, Blair J.A. for the Court of Appeal, reviewed the concerns arising from the frailty of eyewitness identification evidence, as reflected in the case law (at para. 19):

There is no dispute between the parties as to the inherent frailties of eyewitness identification evidence. Such evidence is inherently unreliable. It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses, and is difficult to discredit on cross-examination for those same reasons. Studies have shown that triers of fact place undue reliance on such testimony in comparison to other types of evidence. As a result, many wrongful convictions have resulted from faulty, albeit convincing, eyewitness testimony, even in cases where multiple witnesses have identified the same person. See R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 at 450-451 (Ont. C.A.), and R. v. A.(F.) (2004), 2004 CanLII 10491 (ON CA), 183 C.C.C. (3d) 518 at para 39 (Ont C.A.).

20Of particular relevance to this case is the statement of Doherty J.A. in R. v. Tat 1997 CanLII 2234 ONCA, 117 C.C.C. (3d) 481 ONCA at paras 99-100;

The extensive case law arising out of the review of convictions based on eyewitness identification reveals that the concerns about the reasonableness of such verdicts are particularly high where the person identified is a stranger to the witness, the circumstances of the identification are not conducive to an accurate identification, pre-trial identification processes are flawed and where there is not other evidence tending to confirm or support the identification evidence.

21I observe that all of the frailties in the eyewitness identification mentioned by Doherty J. exist in this case. In particular, there is a complete absence of any other evidence to confirm or support the eyewitness identification.

22A similar fact situation dealing with a car chase identification arose in R. v. Subhani [1998] O.J. No. 1623 (S.C.). In that case, police officers identified the accused from observations made in the course of a high speed car chase, occurring at night. They described the driver of the chased vehicle as a young East Indian man. The vehicle’s windows were tinted. The plate number was recorded by the police and was determined to be registered to the accused and the plate number belonged to a vehicle of a description matching the chased vehicle. The officers attended at the accused’s home and identified the accused from a photo situated in his home. On appeal, Hill J. concluded that the trial judge had properly found that the officer who identified the accused from the photo had a reasonable opportunity to identify the driver during the chase. Moreover, there was “abundant circumstantial evidence” establishing the accused as the driver. As to confirmatory evidence, Hill J. stated at para. 79:

…there existed abundant circumstantial support in this regard. The suspect’s vehicle – a black Camaro, with a licence number identified by a police officer, was registered to the appellant at an address in the same locale as the police chase. At 5:00 am, the Camaro was not at the appellant’s residence. There was evidence that the appellant was not home. The appellant’s vehicle was not reported to the authorities as stolen until nine months after the date of the alleged offence. Accepting that Constable Drew, during the chase, identified the Camaro driver as a possible East Indian, aged twenty to twenty-five years with dark hair, the trial judge was entitled to make in-court observations of the appellants as to such characteristics.

23A review of this decision leads to the inference that the conviction would not have been upheld if it was based simply on the eyewitness observation made by the police officer during the chase, unsupported by the other confirmatory evidence.

24Another eyewitness identification case arising from a car chase is R. v. Lenart (1998), 39 O.R. (3d) 55, 1998 CanLII 1774 (ONCA). In the course of a police chase, the police officer had one opportunity to observe the driver of the vehicle. This was during a portion of the pursuit where the chased vehicle and the unmarked cruiser being driven by the officer faced in opposite directions, due to the evasive actions of the driver being pursued. The headlights of the cruiser shone directly into the pursued vehicle, lighting up the whole interior. At that time, the driver was approximately 10 feet from the officer, who saw him for “about a second or two”. In cross-examination, the witness agreed it may have been less than a second but “long enough to see that it was Mr. Lenart (the accused). The officer testified that he had seen a photograph of the appellant before the pursuit. The officer also said that the appellant’s eyes were very distinctive…he had heavy eyebrows and “sort of dead eyes”. The Court of Appeal (per Finlayson J.A. at para. 10) in affirming the conviction stated “…I am of the opinion that this is not an unreasonable verdict. The evidence adduced by the prosecution consisted of the eyewitness identification of (the accused) supported by the fact that the officer was familiar with the face of the appellant from a photograph that he had with him at the time. Additionally, the vehicle being driven that evening was registered to the appellant, and a piece of debris found at one location along the route of the chase was a “perfect physical match” to a spot on the underside of the vehicle seized by the police at the residence of the appellant.” Again, the eyewitness identification evidence was supported by compelling circumstantial evidence connecting the accused to the vehicle.

25In R. v. Osman 2013 ONSC 1668, McKinnon J. upheld the decision of a trial judge accepting the identification evidence of an officer who had initially identified the accused from a photograph. The trial judge had referred to the Court of Appeal’s observation in R. v. Miaponoose, 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419, 1996 CarswellOnt 3386, that, “the weight of eyewitness identification will obviously vary greatly depending on the circumstances.” McKinnon J. endorsed the following comments of the trial judge:

…I have applied these principles to this case. It is my decision that I am satisfied that the Crown has met the onus on it beyond a reasonable doubt that the person arrested in unit 206 on October 15, 2011 is the accused before the court. This is based on the following. Constable Walrond had a lengthy time to see the accused – between 30 to 60 minutes. He made his observations in an apartment that had good lighting. There were no obstructions to the officer seeing the accused and he was close to him. There were several opportunities to make these observations, both at that unit and later at 34 Windways where the accused was released. There was interaction between the officer and the accused involving questions and answers.

This is not a case of a fleeting glance where something unexpected happens to the witness. Constable Walrond was in the execution of his duty and was arresting the accused. It was not the high stress type of situation where a witness may observe a robbery or an assault. Of great importance to my decision is how Constable Walrond make the identification of the accused about four days after the incident. Constable Walrond is preparing his court brief and checks out Mohammed Youssef. It is in the course of that action that he sees the picture of the accused and realizes that the person that he charged was not Mohammed Youssef, but rather the accused. This is a far cry from a witness being shown one photo and asked if it is the perpetrator.

26R. v. Gough, 2013 ONCA 137 is a recent decision in which a robbery conviction was overturned due to problematic identification evidence. The appeal was allowed on the basis of the trial judge’s failure to adequately analyse the significant frailties in the victim’s identification evidence. The frailties in that case included the victim’s description of the robber which was generic, that he identified the robber by his voice, but had limited verbal exchanges with the robber and suffered hearing damage, and that he only had a brief encounter with the robber, whom he did not know. The court summarized the following well established principles:

35Being notoriously unreliable, eyewitness identification evidence calls for considerable caution by a trier of fact: R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, at pp. 1209-10; R. v. Bardales, 1996 CanLII 213 (SCC), [1996] 2 S.C.R. 461, at pp. 461-62; R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at p. 498. It is generally the reliability, not the credibility, of the eyewitness’ identification that must be established. The danger is an honest but inaccurate identification: R. v. Alphonso, 2008 ONCA 238, [2008] O.J. No. 1248, at para. 5; Goran, at paras. 26-27.

36The trier of fact must take into account the frailties of eyewitness identification in considering such issues as whether the suspect was known to the witness, the circumstances of the contact during the commission of the crime (including whether the opportunity to see the suspect was lengthy or fleeting) and whether the circumstances surrounding the opportunity to observe the suspect were stressful; R. v. Carpenter, [1998] O.J. No. 1819 (C.A.), at para. 1; Nikolovski, at 1210; R. v. Francis (2002), 2002 CanLII 41495 (ON CA), 165 O.A.C. 131, [2002] O.J. No. 4010, at para. 8.

37As well, the judge must carefully scrutinize the witnesses’ description of the assailant. Generic descriptions have been considered to be of little assistance; R. v. Boucher, 2007 ONCA 131, [2007] O.J. No. 722, at para. 21. The same can be said of in-dock or in-court identification; R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at 468-69; R. v. Tebo (2003), 2003 CanLII 43106 (ON CA), 172 O.A.C. 148 (Ont. C.A.), at para. 19.

27In the present case the trial judge expressed the view that Constable Booth’s extensive policing experience and his training in drawing, combined with the accused’s unique facial features, gave his identification evidence “exceptionally greater weight” to make this case “one of the rare occasions” when the Crown could be taken as having proved the identity of the accused beyond a reasonable doubt.

28I am respectfully of the view that this reasoning is flawed. It makes the fundamental fallacy of mistaking certainty for accuracy or reliability. Constable Booth was of the firm, and no doubt honest belief, based on his experience and self-assessed ability to observe facial features, that he was able to identify the accused in a single photo he encountered from police sources several days after the car chase and then again at trial. His opportunity to observe the accused during the pursuit was very limited, namely three short glances, two of which occurred as he was maneuvering his vehicle. His description of the driver in his notes was highly generic, referring only to sunglasses and a thin face. The Schwarzenegger description arose after the officer studied a photo obtained from police sources. The accused’s distinctive facial features, if observed at the time of the pursuit, should have been mentioned in the officer’s notes. More concerning is the absence of any confirmatory evidence of the eyewitness identification. The accused had no connection to the stolen license plate on the vehicle. While the officer explained that he accessed the photo that he believed to be that of the accused from police information that connected the accused with a criminal activity involving the stolen license plate, no evidence of this connection was ever tendered at trial.

29In summary the trial judge failed to apply the careful scrutiny of this weak eyewitness identification, which the evidence warranted and the established jurisprudence requires, particularly in the absence of any other confirmatory evidence beyond the flawed photographic identification. This was an error of law. I find the verdict reached by the trial judge to be unreasonable.

Disposition

30The appeal is allowed, the convictions will be set aside and acquittals entered.

Mr. Justice Charles T. Hackland

Released: March 6, 2015

CITATION: R. v. McKay, 2015 ONSC 1187

COURT FILE NO.: 12-0150

DATE: 2015/03/06

HER MAJESTY THE QUEEN

Respondent

and -

ARCHIBALD McKAY

Appellant

REASONS FOR JUDGMENT

Judge

Hackland J.

Released: March 6, 2015

R. v. McKay, 2015 ONSC 1187

Case Summary

Overview

The Facts

The Facts

The Investigative Process

The Investigative Process

The Trial Judgment

The Trial Judgment

Discussion

Discussion

Disposition

Disposition

R. v. McKay, 2015 ONSC 1187

Case Summary

Overview

The Facts

The Facts

The Investigative Process

The Investigative Process

The Trial Judgment

The Trial Judgment

Discussion

Discussion

Disposition

Disposition