COURT FILE NO.: CR 13-0793 DATE: 2016 08 09 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN S. Wheildon, for the Crown/Respondent Respondent
- and -
GRANTLEY ADAMS H. Aly, for the Applicant Applicant
HEARD: August 4, 2016
REASONS FOR RULING APPLICATION TO EXCLUDE EYEWITNESS EVIDENCE Justice Thomas A. Bielby
INTRODUCTION
[1] The applicant is charged with 3 counts of possession of a controlled substance and 1 count of possession of a controlled substance for the purpose of trafficking. The charges stem from a vehicle stop on November 11, 2011.
[2] The accused has before the court an application to exclude the identification evidence of Police Officer Henrik Neringer, and as a result of which, a voir dire was held.
EVIDENCE
[3] Officer Neringer is a member of the Ontario Provincial Police and commenced a 12 hour shift at 4:00 pm on November 11, 2011. At 1:00 am (now November 12, 2011) the officer participated in a R.I.D.E. traffic stop on a ramp from Eglington Avenue to Highway 403, in the City of Mississauga.
[4] At 1:50 am the officer pulled over a purple Lexus motor vehicle operated by Kavi Naraine. There was another male in the vehicle, seated in the front passenger seat. Mr. Naraine failed a road side breath test and was arrested. He was placed in the rear of the officer’s police cruiser.
[5] To this point, the officer had paid little attention to the passenger who, in the officer’s notes, was referred to as a “male person” without any further description. The officer testified that, at the time, he was focused on the driver.
[6] The officer in his voir dire testimony described the passenger, from memory, as an African Canadian male, short hair, about 180 cm tall and with a muscular build. No such description was ever entered into the officer’s notes.
[7] After placing Mr. Naraine in the cruiser the officer returned to search the car. By this time the passenger was standing outside of and in front of the car, on the shoulder of the road. The officer, in searching the interior of the car, located a jacket on the driver’s front seat.
[8] At some point the officer returned to his cruiser and asked Mr. Naraine who his passenger was. It is alleged that Mr. Naraine said he didn’t really know the passenger who he met at a club and to whom he was giving a ride home.
[9] The officer returned to the Lexus and searched the trunk. Therein he found a backpack containing at least four varieties of controlled substances, that is to say, drugs. The officer asked Officer Halimi to assist him and call for a tow truck.
[10] Officer Neringer approached the passenger and asked him to identify himself. The passenger said his name was Justin Larson and he was born on May 17, 1983. He provided a phone number, 647-403-3336. He also told the officer that he really didn’t know the driver and further that he, the passenger, had no photo identification with him.
[11] At the request of Officer Neringer, the passenger emptied his pockets on the hood of the car to confirm he had no drugs or weapons (or identification) on his person. The passenger was then asked by the officer if he needed anything out of the car to which the passenger answered, no.
[12] None of this conversation was recorded in the officer’s note book.
[13] The passenger was allowed to leave the scene via taxi because he was not under suspicion.
[14] Ultimately the Lexus was towed to the Port Credit Ontario Provincial Police detachment and a more thorough search was conducted. In the back pack was located a pill bottle containing eight pills. The bottle was labelled, as a prescription for, Grantley Adams.
[15] In the coat lying on the driver’s seat was found a number of credit cards and bank cards. Contained therein was a Vision Bank Visa card in the name of Grantley Adams and a RBC Bank Card in the name of Munky Bizness, a business later to be determined to be operated by Mr. Adams.
[16] Mr. Naraine told the officer the bank/credit cards belonged to someone named, Neil.
[17] After completing his shift, the officer was off of work for a few days, returning to work on November 17, 2011. On his return to work, Officer Neringer conducted a Ministry of Transportation (MTO) search in regards to Grantley Adams. As a result he obtained an address and picture of Mr. Adams and in his mind identified Mr. Adams as the passenger in the car, operated by Mr. Naraine, on November 12, 2011.
[18] This identification was not recorded in the officer’s notes.
[19] On the same day the officer received a telephone message from the Federal Crown’s office. He was advised that Mr. Naraine’s lawyer had called and that Mr. Naraine wanted an appointment to attend the police detachment and provide a statement. It was understood by the officer that Mr. Naraine would say the drugs discovered belonged to his passenger.
[20] On November 18, 2011, Officer Neringer attended the last known address for Grantley Adams where he spoke to Paula Adams, Grantley’s mother. She provided a new address and telephone number for her son. The officer called the number and spoke to a male who identified himself as Grantley Adams and he agreed to attend a meeting the following day, November 19th. The meeting never took place as no one attended.
[21] Mr. Naraine attended at the police station November 18th and provided, under oath, a new audio/video recorded statement. He told Officer Neringer that the drugs belonged to Grantley Adams a friend whom he had known since high school. He also advised that Mr. Adams operated a store called, Munky Bizness. Mr. Naraine knew Mr. Adams by the name, Neil which is apparently Mr. Adams’ middle name.
[22] Officer Neringer testified that after receiving this statement and having regards to bank/credit cards found in the back pack and the prescription pill bottle, he believed he had reasonable grounds to arrest Grantley Adams.
[23] On November 25, 2011, the officer went to Munky Bizness and arrested Mr. Adams. Officer Neringer testified that upon the arrest he recognized Grantley Adams as the same male he saw on the shoulder of the road on November 12, 2011. Mr. Adams matched the general description of the passenger and had the same build, the same short hair and was of the same age.
[24] Officer Neringer testified that he was 100% certain Grantley Adams and Mr. Naraine’s passenger is one and the same person. However, the officer did not make any entry in his note book in this regard.
[25] Mr. Adams was placed in the police cruiser and driven to the detachment. On route Mr. Adams demanded to know who said the drugs were his and denied ever being in Mr. Naraine’s car on November 12, 2011.
[26] On cross-examination, Officer Neringer admitted that he was not asked to participate in a photo line-up. He only looked at one picture which he discovered as a result of the MTO search.
[27] Officer Neringer agreed that, in regards to identifying someone, showing only one picture to a witness doesn’t mean much. Officer Neringer further agreed that when he looked at the picture he had, in his mind, the name, Grantley Adams from the prescription pill bottle and bank/visa card.
[28] The officer conceded that on November 12th he had no reason to suspect the passenger and did not expect to see him again. Officer Neringer agreed that there was nothing in his notebook identifying Grantley Adams as the passenger.
[29] Officer Neringer testified that when he first looked at the MTO supplied picture he identified Mr. Adams as the passenger. This opinion was confirmed upon the arrest of Grantley Adams and thereby seeing him in person. He did not, however, share this identification with anyone else, until he testified at the preliminary hearing in December, 2013.
[30] In his notes the officer listed his grounds to arrest Mr. Adams but did not include, as a ground, his identification of the passenger as Mr. Adams. He testified that he didn’t feel he needed to make notes in regards to the person he was looking for.
[31] Officer Neringer testified that when he interviewed Mr. Naraine on November 18th, Mr. Naraine said that he did not recall telling the officer on the night of November 12th that he did not know the passenger.
[32] Officer Neringer agreed that prior to arresting Mr. Adams he had conducted a CPIC search and knew that Mr. Adams had a criminal record including drug related offences.
[33] Officer Neringer at the time of the preliminary hearing knew that the charges against Mr. Naraine had been withdrawn by the Crown. The officer conceded that his identification evidence was important especially since Mr. Naraine’s credibility was at issue because he initially had lied to the police about knowing Mr. Adams.
[34] Officer Neringer did not recall if, on the arrest, or on November 12th, Mr. Adams was wearing glasses or a hat and conceded if he was wearing a hat it might make it difficult to observe that Mr. Adams had short hair.
[35] Officer Neringer was the only witness who testified at the voir dire. The Crown, with the consent of defence counsel, directed me to passages in the preliminary hearing transcript with respect to identification evidence.
[36] At the preliminary hearing, Mr. Naraine testified that on November 11, 2011, he called a friend to go for a beer. He knew the friend as, Neil, who he said was Grantley Adams. They went to high school together. He identified Grantley Adams as the man in the prisoner’s dock.
[37] Mr. Naraine picked Neil up at his place of business, Munky Bizness. During the evening the two men frequented a bar in Brampton and a club in Mississauga. He identified the names of the establishments. He testified that they were stopped at a R.I.D.E. checkpoint and he was arrested.
[38] Mr. Naraine testified that his jacket was in the car and that he could not explain how Mr. Adams’ bank/credit cards got into his jacket pocket although he noted the jacket and the passenger remained in the car when the officer asked him to get out.
[39] Mr. Naraine testified that he did not know a Justin Larson and that no one by that name was in his car. He testified that the back pack belonged to Neil, who had it with him when he exited his business, Munky Bizness. Neil asked Mr. Naraine if he could put the back pack in the trunk.
[40] The testimony of Mr. Naraine at the preliminary hearing provided much more detailed identification evidence than does Officer Neringer. Further, it was evidence identifying someone Mr. Naraine knew in contrast to the officer identifying a stranger.
[41] In reviewing the evidence, I believe Officer Neringer to be a credible witness. I found no indicia of dishonesty or the falsifying of any testimony to cover up any weaknesses in his investigation and procedures.
[42] The real issue, as often is the case in regards to eyewitness testimony, the reliability of Officer Neringer’s evidence.
ARGUMENT
Applicant/Accused
[43] Counsel for Mr. Adams submits that the court has discretion to exclude evidence where the prejudicial nature of the evidence outweighs its probative value. He submits that the identification evidence of Officer Neringer ought to be excluded as it falls into that category.
[44] Counsel relies on a footnote in the Ontario Court of Appeal’s decision in R. v. Bailey 2016 ONCA 516, released in June of this year. The footnote reads,
“The trial judge was not asked to exclude the in-court identification on the basis that its prejudicial effect outweighed its probative value. Indeed, it may be that the defence, who elicited the evidence on cross-examination, wanted that evidence before the jury in the hope that it might discredit other parts of Ms. Kalogerakis’s evidence. In light of the position taken at the trial, the appeal was argued on the basis that the trial judge’s instruction on the in-court identification was inadequate. In the new trial, the admissibility of the evidence may become an issue: see R. v. Holmes (2002) , 62 O.R. (3d) 146 (Ont. C.A.), at paras. 38-40. Were the defence to seek the exclusion of the evidence of the in-court identification at the new trial, and were the Crown to maintain the position it took in its closing on the first trial, it is difficult to see how the Crown would argue that the evidence had any probative value.”
[45] Counsel submits that the identification evidence of the officer is worse than “in dock” identification. He submits that in regards to identification evidence, a police officer has no special powers and is to be treated like that of a civilian witness.
[46] Officer Neringer made his identification after observing one picture which he knew, from the MTO records, was that of Grantley Adams. He had a pill bottle and a bank card in the name of Grantley Adams and which, it is submitted, provided many layers of influence. Further, the officer did not disclose his identification evidence until the preliminary hearing (December. 2103) and made no entries in his notebook with respect his identification.
[47] As noted previously, the only description found in the officer’s notes describes the passenger as, a male.
[48] Counsel submits that the evidence must have some probative value to put it to the jury even with a caution and submits the officer’s identification is just a bald assertion, completely useless and highly prejudicial.
Respondent/Crown
[49] Crown counsel submits that in dock identification evidence is presumptively admissible although he concedes that in some circumstances it can be excluded. He submits in fact that Officer Neringer’s identification evidence is not “in dock” evidence in that he, at least to himself, made the identification only five days after he stopped the vehicle in which it is alleged Mr. Adams was a passenger.
[50] What the officer is guilty of is not making proper notes.
[51] It is submitted by the Crown that it is the responsibility of a jury to determine issues of credibility and reliability.
[52] The Crown submits that there is significant confirmatory evidence in relation to the identification of Mr. Adams. There are the pill bottle and bank cards. Police Officer Halimi was on scene on November 12, 2011 and saw an African Canadian in the car in the front passenger seat who told him he had no personal belongings in the car. The most important confirmatory evidence is the testimony of Mr. Naraine who has allegedly known the accused for years.
[53] Crown counsel relies on the comments of Hill J. in R. v. Gonsalves , [2008] O. J. No. 2711 in regards to the importance of confirmatory evidence (para. 45).
[54] Counsel for the Crown argues the without this testimony, given that Officer Neringer was the investigating officer, the jury may be draw an adverse inference.
[55] Crown counsel distinguishes the Bailey decision on its fact. In that case the identification witness did not make the identification until in court two and a half years after the offence occurred.
[56] In regards to a photo lineup and Officer Neringer, it is argued that it doesn’t make sense to suggest the proper procedure would be a photo lineup. The officer found the picture when investigating the name through a MTO search. Such a search is normal procedure and should not be said to fatally taint the identification evidence to the point of exclusion.
[57] The Crown submits the evidence ought to be admitted. Its weight ought to be left to the jury.
ANALYSIS
[58] At the outset I want to say that I concur with the argument of defence counsel that the officer’s identification evidence is not to be given a higher value than that of a civilian witness. In fact, the fact that a police officer is an identifier may make the risk argument even more acute (R. v. Cain 2005 CarswellOnt 9958).
[59] R. v. Holmes , [2002] O. J. No. 4178, is a decision of the Ontario Court of Appeal.
[60] At paragraph 40 the court noted that at a new trial the identification evidence of a witness should be excluded as it would only confuse a jury.
[61] However, R. v. Muir 2013 ONCA 470 is a more recent Court of Appeal decision. One of the grounds of appeal was that the trial judge ought to have conducted a voir dire with respect to identification evidence and if the probative value did not outweigh the prejudicial effect it ought to have been excluded.
[62] At paragraph 8, the following is stated,
“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.”
[63] This statement is somewhat inconsistent with the Appeal Court’s footnote in the Bailey case. However, I accept that the court’s statement as to presumptive admissibility and I also agree that in some extreme cases identification evidence can be excluded.
[64] From paragraph 11 of the Muir case I quote,
“We also note that this case is quite different from the classic case where the in-dock identification is central to the Crown’s case and where, based on a fleeting observation, the witness confidently identifies a stranger for the first time in court. Here, the appellant was caught fleeing the scene and the in-dock identification was only one of several pieces of evidence linking the appellant to the guns found in the car. In addition, Mr. McLeod had considerable contact with Doug over a summer and had given police a description of Doug that resembled the appellant.”
[65] While in my case the identification evidence of Officer Neringer is important to the Crown, I am not sure it is “central” to his case. Certainly there are, “several pieces of evidence linking” Mr. Adams to the crime, such as Mr. Naraine’s evidence, the pill bottle and the bank/visa cards.
[66] The fact situations faced by the courts in all of the authorities provided to me are critical as to how and when identification evidence is to be admitted.
[67] R. v. Mezzo [1986] S.C.R. No. 40 (SCC) notes that identification evidence is a matter to be reserved to the jury and that questions of credibility and the weight that should be given to evidence, are matters for the jury (paras. 9, 61).
[68] R. v. Hassen 2008 ONCA 615 where, for the first time a witness, while in the witness box, testified that she can identify the accused because during the home invasion, the accused’s mask slipped off. The witness further testified that, before her testimony, she saw the accused when he entered the court house and also saw him at the preliminary hearing.
[69] The Ontario Court of Appeal ruled that the trial judge erred in not instructing the jury that the witness’ in-dock evidence standing alone has virtually no value and that the judge should have noted to the jury the specific frailties of the evidence. There was no suggestion that the evidence ought to have been excluded.
[70] R. v. Bethune 2010 ONCJ 556, is a decision of S.E. Martin J. In this matter Officer Eliades identified the accused who was the driver of a vehicle which, among other things, failed to stop for police. The court stated, with respect to the testimony of the officer, at paragraph 9, “Eliades opportunity to observe the driver was fleeting, 5 seconds or less.”
[71] The officer, via computer, ran the license plates for the car and received information about the owner who was a man arrested a month previously. A name was provided which ultimately lead to the officer observing a booking picture of the accused. Upon viewing the picture the officer identified that accused as the driver. His partner heard him say, “That’s the guy”.
[72] From paragraph 20 I quote,
“In identification cases, sincerity is rarely an issue. The potential for wrongful convictions based on eyewitness testimony usually lies in a lack of reliability rather than a want of honesty. It is the possibility of honest but mistaken identifications that requires careful scrutiny of all circumstances surrounding the identification.”
[73] The court concluded that the officer in issue was a sincere and honest witness.
[74] The court, at paragraph 20, referred to the decision of the Alberta Court of Appeal in R. v. Atfield 1983 ABCA 44 , [1983] A. J. No. 870, para 3 which, in part, states,
“The accuracy of this type of evidence cannot be determined by the usual tests of credibility of witnesses, but must be tested by a close scrutiny of other evidence. In cases, where the criminal act is not contested and the identity of the accused as the perpetrator is the only issue, identification is determinative of guilt or innocence…If the accuracy of the identification is left in doubt because the circumstances surrounding the identification are unfavourable, or supporting evidence is lacking or weak, honest of the witness will not suffice to raise the case to the requisite standard of proof.”
[75] At paragraph 24 and following, the court referred to the safeguards surrounding photo-lineup procedures and noted none of these safeguards existed in the case before it. The officer continued to act as a police officer rather than an important eye witness. The court opined that the officer should have stopped his involvement in the investigation when he knew a man had been arrested on drug charges in the same car one month earlier.
[76] From paragraph 26, I quote,
“The integrity of the identification was compromised once Eliades looked at the single photograph of Mr. Bethune. Unlike the situation in the Hoffer case, the probative value of the potential confirmatory evidence is tainted because it is inextricably linked to the problematic identification made by Eliades…The possibility of influence or suggestion in the circumstances under which the photograph was viewed by the officer cannot be discounted.”
[77] These circumstances raised, in the mind of the judge, a reasonable doubt.
[78] In the matter before me it cannot be said that Officer Neringer only had a fleeting opportunity to observe Mr. Naraine’s passenger. While for the most part his focus was on the driver, he did speak to the passenger face to face. He had a short conversation and watched the passenger empty out all of his pockets onto the hood of his police car.
[79] Further, I take no issue with the officer’s MTO search which resulted in the picture. As part of his investigation he was following up on the evidence and attempting to determine who is Grantley Adams, a name he had from a pill bottle and bank card.
[80] In R. v. Gonsalves , [2008] O.J. No. 2711, commencing at paragraph 365, C. Hill J. reviews the general principles regarding eyewitness identification evidence.
[81] Some of the principles enunciated by Justice Hill are as follows:
- Many identification evidence cases, but especially eyewitness identification prosecutions involving identification of a stranger, raise an alert as to the well-organized dangers inherent in such evidence and the risk of a miscarriage of justice through wrongful conviction (para. 35).
- Eyewitness identification evidence can be notoriously unreliable calling for considerable caution by the trier of fact (para. 36).
- Where there is not real question as to the witnesses’ honesty and sincerity, an assessment of reliability of the identification evidence always depends upon a critical consideration of the basis for the witnesses’ conclusion (para. 38).
- Our experiences with eyewitness identification evidence has taught us to use discriminating scrutiny for badges of unreliability. Judicially created checklist, based on long experience with inherent dangers of eyewitness identification evidence, assist in assessment of the circumstances of a specific identification (para. 39).
- It is manifest that police officers must exercise the utmost care to ensure that the identification of persons suspected of crimes is made unassisted by witnesses who are uninfluenced by any suggestion direct or indirect, which may prevent the identification from being independent and unbiased (para. 42).
- Not infrequently, courts reviewing the dangers of eyewitness identification testimony, in general or as a result of flawed identification proceedings, have specifically looked to the existence of compelling confirmatory evidence of the identification to assess the safety of a conviction (para. 45).
- Flaws in the process or procedures goes to weight (para. 46).
[82] No doubt the evidence of Officer Neringer is flawed, particularly in regards to his keeping accurate and comprehensive notes. For example, his evidence would be more persuasive had he noted that, upon seeing the accused’s photograph on November, 17, 2011, he recognized the person in the photo as the passenger.
[83] Certainly he was subject to a number of influences prior to viewing the photo that could have suggested a connection between the picture and the passenger. He was aware that Mr. Naraine was going to provide a statement saying the passenger was owner of the back pack in which the drugs were found.
[84] However, the indicia of influence can also be considered confirmatory evidence which reduces the risk associated with eyewitness identification evidence.
[85] In regards to the identification evidence of Mr. Naraine, I cannot say how it will stand up in court or how it will be perceived by the jury. Mr. Naraine is, however, a witness who identifies not a stranger but a person he has known for some years. Mr. Naraine can provide details of the night of November 11/12, 2011, that likely will add to the credibility of his evidence.
[86] Depending on how Mr. Naraine does as a witness at the trial, his evidence could be persuasive.
[87] As noted previously, in two of the judicial authorities before me the Court of Appeal opined that evidence of certain eyewitnesses should have been excluded. However, these opinions were not grounds upon which the appeals were determined. Further, both cases can be distinguished on their facts.
[88] In the Bailey case, the witness in issue was the mother of the victim. The day before the murder two men appeared at her door. She testified she could not see their faces when she looked through the door window and never opened the door. On cross-examination the witness testified that in fact on the day before the murder she did recognize the appellant and could picture his face, although she could not recall any features of his face and could only recall a black face.
[89] Apparently this same witness, at the preliminary inquiry, told the court most black men look the same and she could not identify the accused in the prisoner’s box whereas in the trial she did identify the appellant in court during the trial.
[90] The identification evidence that I have heard can clearly be distinguished from these facts and their complete lack of reliability. The evidence had no probative value.
[91] In the Holmes case the identification witness, in an arson trial, testified that she saw a man run across the street. At the preliminary hearing she testified that she saw the man for two seconds. She was unable to identify the accused in a photo lineup. In fact, she tentatively identified someone other than the accused as the person she saw run by her house. She did however, at trial, for the first time, identify the accused as the man she saw running.
[92] At paragraph 40 the Appeal Court noted that the prejudicial effect of the evidence outweighed it probative value and at the new trial ought to be excluded.
[93] Again however, the case can be distinguished on its facts.
[94] Identification evidence is presumptively admissible. Implied in that premise is a possibility of rebutting the presumption and as an exception to the normal rule, the power to exclude such evidence.
[95] Such a presumption has not been rebutted in this application. This is not a set of facts that call for the exclusion of the evidence, especially if, in virtually all cases, such evidence is admissible subject to a caution to be given to the jury by the trial judge.
[96] If the evidence of Officer Neringer was the only identification evidence and there was a lack of confirmatory evidence, my decision may have been different.
RULING
[97] The identification evidence of Officer Neringer is admissible. The jury will be provided with instructions and caution as to how to approach eyewitness evidence and specifically the identification evidence of Officer Neringer.
[98] The defence application to exclude the identification evidence of Officer Neringer is dismissed.
Bielby J.