CITATION: R. v. Kumi, 2017 ONSC 5508
COURT FILE NO.: 17-20-00
DATE: 2017/09/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
W. Dorsey, for the Crown
Respondent
- and -
JEFFREY KUMI
J. Penman, for the Applicant
Applicant
HEARD: August 11, 2017
Application for certiorari relating to the Applicant’s Committal to Trial
REASONS FOR JUDGMENT
A.J. GOODMAN J.:
Introduction:
[1] On March 8, 2015, after a preliminary inquiry before Good J., the applicant, Jeffery Kumi (“Kumi”) and his co-accused, Ahmed Hussein, (“Hussein”) were committed to stand trial on counts related to robbery, pointing a firearm, assault with a weapon, unlawful confinement, possession of a firearm while subject to a prohibition order, and possession of a firearm without being the holder of a license.
[2] The applicant conceded that the evidence adduced by the prosecution of all other essential elements was sufficient to satisfy the requisite test for committal.
[3] Identity is the only essential element of the offences at issue. All of the parties agree that, absent the principal eyewitness’ identification of Kumi, there was insufficient evidence to commit the applicant to trial on all counts.
[4] Kumi’s trial is scheduled to commence in the Superior Court of Justice on January 8th, 2018, with pre-trial motions commencing on October 16th, 2017. Given the imminent approach of the scheduled pretrial motions date, on September 7, 2017, I advised the parties of my decision on the application. In the result, the application was granted and Kumi’s committal for trial was quashed, with written reasons to follow. These are my reasons.
Background:
[5] It is alleged that Kumi was one of two men who perpetrated a gunpoint robbery on February 1, 2016 at the Comfort Inn in Brantford. The robbery is captured on surveillance; however, it is not possible to identify either of the perpetrators from the surveillance video.
[6] On the crucial issue of identification, the principal evidence called at the preliminary inquiry linking the applicant to the robbery was the viva voce testimony of Cassandra Sangers (“Sangers”).
[7] Sangers first identified the suspects to police as "Shawn Trapp" (“Trapp”) and "B.G." (“B.G.”). Later in her testimony, she identified Hussein as the male known to her as Trapp and Kumi as the male known to her as B.G.
[8] Sangers purported to identify the assailants as individuals known to her and her recognition evidence was premised on certain conditions of observation. It was dark outside and she had no more than one second to observe the assailants when they turned to her as they fled; she heard one of the assailants, Trapp, say “that’s Cassie” and she recognized his voice; Trapp was holding a gun.
[9] Sangers gave brief descriptions of the male known to her as Trapp: he was pretty tall. Probably closer to 6’, like 5 – higher than the 5’, almost 6’. I don’t really know my measurements that well though.” “Tall, like skinny but not too skinny.” “Brown [skin].” “Thick [hair] probably like an inch and a half long.” “Like Indian”. With respect to the man known to her as B.G.: “He had his hair like braided.” “Shorter [than Shawn Trapp], more built though.” “Brown [skin] as well.” “Not 100 percent sure [of his race].”
[10] Sangers testified that she had met Trapp around Christmas 2015 and had met with him a number of times prior to the robbery. On each occasion, he had been accompanied by B.G. She had spent, in sum, no more than 12 hours with these men. Sangers testified regarding her prior encounters with Trapp and B.G: She had known Trapp “a couple weeks”; that she had met him and B.G. “three, maybe” times; that on those occasions she spent “a couple hours” with Trapp; and that every time she saw Trapp and B.G. prior to the incident she was with Skylar Beal. She conversed with Trapp on those occasions and that she only ever saw Shawn Trapp and B.G. together.
[11] Sangers testified that at one point in time she had to attend the scene of a traffic stop. She testified that she was with B.G. and Trapp on scene of the traffic stop for approximately 30 to 45 minutes. During this interval, she did not converse with B.G. After this occasion, B.G. did not return with the group to an apartment. At that location, she indicated that the group was smoking marijuana, and she joined them near the end of the night.
[12] The next time Sangers saw B.G. and Trapp was approximately one week later again at the same apartment. They were together with a group of friends at the apartment for approximately five hours in total. Sangers and the entire group were all drinking whiskey and smoking marijuana. She testified that at this time she recognized Trapp and B.G. from their last encounter. She had conversations with them and was able to view their faces.
[13] Sangers then indicated that she saw Trapp or B.G. briefly two or three times around the New Year, when she attended at the apartment to “pick up someone or to purchase narcotics. During these brief encounters, she would have only short conversations or “small talk” with Trapp and B.G. During these brief intervals, she could observe their faces.
[14] Sangers testified that every time she saw B.G. and Trapp, they looked the same, with specific reference to B.G.’s hair being braided and Trapp’s hair being a short afro-style. Sangers testified that on the night of the incident at the Comfort Inn, when she first saw the male she identified as Trapp, his back was towards her, backing out of the room with his arm outstretched. She indicated that after the assailants exited the hotel room, they turned around and saw her and that was the only point of face-to-face interaction. She further indicated that the male she believed to be Trapp had a hood over his head and the bottom half of his face covered so she was only able to see his eyes, forehead, and the upper parts of his nose and cheeks. She indicated that “it was really dark out but I could tell it was darker skin.”
[15] Other than the in-dock identification, there was no other evidence presented at the preliminary inquiry that linked Kumi to the nickname B.G. employed by Sangers to identify the individual. Police never asked Sangers to identify the assailant from a proper photo line-up procedure.
[16] A video of the incident at the Comfort Inn was entered as an exhibit. In the surveillance video, Sangers can be seen at her vehicle when three assailants exit the room in question. Again, from the video, it is clear that Sangers had no more than one second to make her observations of the three assailants.
[17] Sangers testified regarding her recognition process regarding Trapp. When asked “what all went into [her] belief that it was [Trapp],” she replied, “The demeanour, the fact that they knew me. It was, it was just kind of how it played out that I kind of just knew that it was, that – that’s who it was.” Upon more detailed questioning by the Crown, she went on to indicate that the assailant was of a similar height to Trapp and that his face resembled Trapp’s.
[18] Regarding her recognition process for B.G., Sangers indicated that she only had a chance to see B.G. for “a glance when he looked back.” The height of the assailant and the height of B.G. was “the same as far as I could tell.” She did not “believe” that B.G. had anything covering his face, but he was wearing a hood. She indicated that his face was “the same” as what she had seen on previous occasions.”
[19] The Crown attorney had Sangers identify the assailants in still images taken from the surveillance video. During this process, she indicated, “the last two I would consider B.G. and Shawn.”
[20] Sangers also purported to identify the assailants through voice identification. In this regard, she first suggested that both Trapp and B.G. spoke that night, but later clarified that the only speaker was Trapp. Regarding B.G., Sangers clarified that “there’s nothing really that came out of his mouth” and that she did not hear him say anything that night.
[21] Sangers identified Kumi, the only male sitting in the prisoner’s dock, as B.G., and Hussain, the only brown male sitting “behind the first row,” as Trapp.
Positions of the Parties:
[22] Ms. Penman on behalf of the applicant submits that Good J. committed a jurisdictional error by finding that the identification of her client had been established on the evidence. The identification evidence was so generic and fraught with uncertainty that it fell short of establishing that essential element of the offence. The preliminary inquiry judge also erred in her assessment and misapplied the evidence to justify committal.
[23] Mr. Dorsey, on behalf of the Crown, submits that the preliminary inquiry judge correctly identified the applicable legal principles in the context of this case, analyzed the relevant identification evidence against those legal principles, and discharged her duties within the boundaries of her powers as a preliminary inquiry judge. Her decision to commit the applicant to stand trial was based on a correct assessment of the evidence and legal tests in issue – that is, that there was sufficient evidence on the essential element of identity which, if believed, was capable of supporting a finding of guilt – and should not be disturbed.
[24] The Crown submits that Her Honour correctly recognized that she could not weigh the strength of direct evidence, or assess the credibility of reliability witnesses; instead, she considered whether a jury that is properly instructed and acting judicially could return a verdict of guilty on the evidence before her.
[25] The Crown says that during a voir dire on this issue, Sangers, testified at length about her interactions with B.G. and Trapp. The Crown submits that the evidence given by Sangers, if believed by a trier of fact, would establish that she and the applicant knew each other before the night of the robbery – based on having been in close proximity to him on about five social occasions, including about three hours’ worth of face-to-face conversations with him while they sat on couches in well-lit rooms – and she would be able to recognize him if she were to see him again.
[26] The Crown submits that this evidence would make this a “recognition” case, not a “stranger” identification case as she had familiarity with both accused prior to the alleged crime. Sangers testified that she knew both the applicant and Hussein, albeit by their nicknames.
[27] While the Crown concedes that the identification evidence is frail and will pose challenges to the prosecution’s case at trial, it is still a matter best left for the trier of fact to decide on all of the evidence if the charges have been established beyond a reasonable doubt.
Legal Principles:
[28] There is no disagreement as to the governing principles relating to the jurisdiction of a preliminary inquiry judge or a court engaging in certiorari review. The dispute is the application of some of these guidelines to the identification issue in this case. Thus, only a brief summary of the principles is necessary.
Function of the Preliminary Hearing Court
(1) A justice acting under Part XVIII of the Criminal Code pursuant to s. 548(1), “[w]here all the evidence has been taken” at the preliminary inquiry, “shall”:
(a) …if in his [her] opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial…
(2) In forming an “opinion” as to the evidence’s sufficiency to justify committal, the justice exercises a discretionary, but constrained, assessment of the evidence. The whole of the admissible evidence is to be considered.
(3) If there is sufficient evidence upon which a reasonable and properly instructed jury could find guilt, the preliminary inquiry judge must commit to trial: R v. Savant, at para. 16; R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.) at 31. This committal test is the same whether the evidence is direct or circumstantial: Arcuri, at 31, 36;
(4) The preliminary hearing judge is obliged to determine whether there is some evidence reasonably supporting the existence of each of the elements of the offence charged – even if only a scintilla of evidence: R. v. Martin, 2001 CanLII 4971 (ON CA), [2001] O.J. No. 4158 (C.A.) at para. 3; R. v. Olubowale, [2001] O.J. No. 961 (C.A.) at para. 8, 10) provided “it registers in the scales as any evidence at all within the Sheppard test” (R. v. McIlwain (1988), 1988 CanLII 9870 (ON SC), 67 C.R. (3d) 393 (Ont. H.C.J.) at 309; R. v. Montour, [2002] O.J. No. 141 (C.A.) at para. 4; “To be logically relevant, an item of evidence does not have to establish on any standard, the truth or falsity of a fact in issue” – it need only “tend to increase or diminish the truth or falsity of a fact in issue” – “there is no minimum probative value required for evidence to be relevant”: R. v. Arp (1999), 1998 CanLII 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.) at 338.
(5) As a general rule, it is not open to a preliminary inquiry judge to assess the quality, credibility and reliability of evidence: R. v. Deschamplain, at 9; R. v. Savant, at para. 18; R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.) at 172. In other words, the preliminary inquiry is not “a forum for litigating the merits of the case against the accused”: R. v. Russell, at 11. Where more than one inference can be drawn from the evidence, “only the inferences that favour the Crown are to be considered”: R. v. Savant, at para. 18. Because of the limited focus of a preliminary inquiry, the provincial court must commit for trial even if the defence proffers exculpatory evidence: R. v. Savant, at para. 16.
(6) In circumstantial evidence cases, there may exist not one, but a range or field of reasonable inferences which may be drawn. The ultimate determination as to whether an available reasonable inference ought to be drawn is for the trier of fact – a judge is not to ask whether facts ought to be inferred and is not to make “determinate factual inferences”: R. v. Cinous, at 157, 171, 173; R. v. Arp, at 353. In other words, a preliminary inquiry justice acts in excess of jurisdiction where he or she chooses from amongst competing or alternative reasonable inferences: R. v. Figueroa et al., 2008 ONCA 106, [2008] O.J. No. 517 (C.A.) at para. 34; R. v. D.M., [2008] O.J. No. 326 (C.A.) at para. 5. A preliminary hearing court is not to apply the rule in Hodge’s Case to determine whether a reasonable inference is consistent with guilt and inconsistent with any other rational explanation: R. v. Charemski (1998), 1998 CanLII 819 (SCC), 123 C.C.C. (3d) 225 (S.C.C.) at 230; R. v. Monteleone (1987), 1987 CanLII 16 (SCC), 35 C.C.C. (3d) 193 (S.C.C.) at 198; R. v. Mezzo (1986), 1986 CanLII 16 (SCC), 27 C.C.C. (3d) 97 (S.C.C.).
Role of the Reviewing Court
(7) The court reviewing by certiorari a committal for trial exercises limited authority for intervention:
(i) The court may, in its discretion, provide a remedy for jurisdictional error alone: R. v. Deschamplain (2005), 2004 SCC 76, 196 C.C.C. (3d) 1 (S.C.C.) at 10; R. v. Russell (2001), 2001 CanLII 5555 (ON CA), 156 C.C.C. (3d) 1 (S.C.C.) at 10, 13; R. v. Dubois (1986), 25 C.C.C. (2d) 221 (S.C.C.) at 224, 229-30.
(ii) The reviewing court is not empowered to determine whether in its opinion there is any evidence upon which a properly instructed jury acting judicially could convict, but is confined to considering whether there is any evidence before the committing justice upon which acting judicially he or she could form an opinion that the evidence is sufficient to put the accused on trial: R. v. Collin, [2004] O.J. No. 791 (C.A.) at para. 2; R. v. Tuske, [1978] O.J. No. 1253 (C.A.) at para. 3; R. v. Coke, [1996] O.J. No. 808 (S.C.J.) at para. 12-13.
(iii) Supervisory review is not permitted to overturn a committal decision merely because the preliminary inquiry judge “reached a conclusion different from that which the reviewing court would have reached”: R. v. Russell, at 10.
(8) While an erroneous ruling regarding the admissibility of evidence does not affect the preliminary inquiry judge’s jurisdiction (Deschamplain, at 9-10; R. v. Fisher, [1987] O.J. No. 331 (C.A.) at 2), in the sense that the court has the right to be wrong (an error of law) acting within its jurisdiction, and recognizing that there exists no closed list of jurisdictional errors, the following constitute such errors:
(a) committal where no evidence exists on an essential element of the crime charged (R. v. Skogman (1984), 1984 CanLII 22 (SCC), 13 C.C.C. (3d) 161 (S.C.C.) at 168) or, equally arbitrarily, failing to consider the whole of the evidence, in deciding whether there is some, as opposed to no, evidence: R. v. Deschamplain, at 11, 14-6; R. v. Sazant (2004), 2004 SCC 77, 208 C.C.C. (3d) 225 (S.C.C.) at 233-5; R. v. Thomson (2005), 2005 CanLII 8664 (ON CA), 74 O.R. (3d) 721 (C.A.) at para. 11
(b) applying an incorrect test for committal and thereby “deciding an issue reserved to another forum”: R. v. Dubois, at 230-2
(c) engaging in impermissible weighing of competing inferences: R. v. Sazant, at 234; R. v. Laframboise & Odette, [2007] O.J. No. 4212 (C.A.) at para. 1, 3; R. v. Clarke, 2002 CanLII 44997 (ON CA), [2002] O.J. No. 2340 (C.A.) at para. 4; R. v. Campbell (1999), 1999 CanLII 2372 (ON CA), 140 C.C.C. (3d) 164 (Ont. C.A.).
[29] It is trite law than an order of certiorari may be issued to quash the order of an inferior Court if that Court has “…acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: Russell, at para. 19.
[30] Indeed, the test for quashing an order of committal for trial is a strict one. As stated by the Ontario Court of Appeal in R. v. Boucher, [2000] O.J. No. 2372 at para. 11:
The Superior Court can intervene only if there is an entire absence of proper material as a basis for the formation of a judicial opinion that the evidence was sufficient to put the accused on trial: R. v. Martin, 1978 CanLII 30 (SCC), [1978] 2 S.C.R. 511 at 514. This has also been expressed as to whether there is a "scintilla" of evidence on every element of the offence. .
[31] Once the superior court of criminal jurisdiction exercising prerogative writ authority finds jurisdictional error on the part of the preliminary inquiry court, the court is “to assess the sufficiency of the evidence in order to determine the appropriate remedy”: Laframboise & Odette, at para. 4.
[32] The frailties of identification evidence was recognized and discussed by the Ontario Court of Appeal in the oft-cited case of R. v. Miaponoose, (1996) 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419, at para. 9:
“[t]he inherent frailties of identification evidence are well known to the law and have been the subject of frequent judicial consideration and comment”. On the spectrum of identification evidence, the first time in-dock identification of an accused is considered at law to be virtually worthless. In fact, as the court acknowledged in Williams, this type of identification “…possesses particular frailties over and above the normal frailties attaching to identification evidence”. R. v. Williams (1982), 1982 CanLII 3729 (ON CA), 66 C.C.C. (2d) 234 (C.A.) at para. 4.
[33] In terms of its probative value, in R. v. Turner, [2012] O.J. No. 3859 (S.C) at paras. 35 & 46, (a non-recognition case) the court stated:
[A}s a general rule, in-dock identifications, by an individual previously unacquainted with a suspect prior to the relevant event, are valueless in terms of their probative impact” [emphasis added] and found the accused not guilty. In this case, a constable spent over an hour with the accused yet his “face-to-face” time was limited to minutes, he provided only relatively generic descriptors of the accused and no attempt was made to undertake a photo line-up. After coming face-to-face with the accused in the preliminary inquiry, the court found this to be “essentially, a one person show-up through an in-dock identification procedure” that was “valueless”.
Justice Good’s Reasons for Committal to Trial:
[34] In her ruling on the voir dire, Good J. found the identification admissible premised on the following relevant facts: Sangers was less than twelve feet away from the assailants in a well-lit parking lot; Sangers was not impaired by either alcohol or drugs at the time when she made these observations; there was no evidence to suggest that Sangers was in a state of stress when she made the observations; the description of Trapp provided by Sangers is consistent with Hussein’s descriptors as observed by the court; the description of B.G.’s height, build and skin colour are consistent with the applicant’s descriptors as observed by the court. The applicant’s hair was not braided (however, the court attached little weight to this as hairstyles can be easily changed); Sangers had strong and recent familiarity with Trapp and B.G.; the fact that Trapp and B.G. were wearing hoods (and Trapp’s face was partially covered) does not detract from the identification as Sangers was able to see part of Trapp’s face and all of B.G.’s face; the fact that the robber said “that’s Cassie” suggested that the robber and Sangers were known to one another; her visual identification of him was confirmed by voice identification; and Sangers gave alternate versions concerning whether B.G. spoke on that night, rendering any voice identification of B.G. “less strong.”
[35] Following the judge’s decision to admit the identification evidence of Kumi, Sangers was cross-examined on the trial proper. In cross-examination, there was conflicting testimony.
[36] With respect to the incident in question, Sangers testified that the combination of alcohol, marijuana, and cocaine rendered her intoxicated, affecting her senses, and her ability to observe and remember certain things. She also testified that she was too intoxicated to drive when she made her observations; the only words she heard uttered that night were “that’s Cassie”.
[37] Sangers also stated she could not recall whether the men were wearing hoods. She was scared and shocked when she saw the men. When she first spoke to police, she was under arrest and the officer was intimidating. While she was handcuffed, the officer removed her phone from her back pocket and began writing down phone numbers and names. Sanger stated that when she attended in the hotel room after the incident, she spoke to the victims about the assailants and “they said that it looked like the people that Beals had been hanging out with, and I said, ‘Yeah, I’m pretty sure I know who they are.’” The victims accused her of setting up the robbery. She indicated she was told by the victims that the assailants were B.G. and Trapp, though she was not clear about who first provided those names.
[38] The witness revealed that in April 2016, she had undergone a photo line-up in respect of another criminal investigation. Officer Minutillo of the Woodstock police showed her four colour photographs of Hussein, Kumi, and two other parties in relation to this separate, albeit somewhat related matter. The line-up procedure employed in April 2016 was not captured on video tape.
[39] Justice Good found that the evidence was sufficient to withstand the Sheppard test, and also acknowledged the relevant legal test:
As a preliminary hearing Justice, I feel that I would be committing a jurisdictional error were I to usurp the function of the trial judge and/or jury by taking this evidence away from the trier of fact’s consideration on either a Charter application, or as part of the trial proper.
The law is very clear as to the limited role that the preliminary hearing Justice must play at preliminary hearing. I am not entitled to make assessment of credibility. I am not entitled to weigh the strength of any direct evidence which comes before me, such as Ms. Sangers’ in-dock identification of Mr. Hussein and Mr. Kumi as the robbers.
The Ontario Court of Appeal has furthermore specifically stated at paragraph 33 of the Miaponoose case that:
“The use of inappropriate pretrial identification procedures does not render the subsequent identification inadmissible unless it is the subject matter of an appropriate and successful application under Section 24(2) of the Charter.”
Analysis:
[40] An assessment of the reliability of the identification evidence depends upon a consideration of the basis for the witness's conclusion. For identification evidence to be reliable, even in the context of so-called “recognition” evidence, a witness must be able to independently articulate specific and distinguishing features of the individual being identified.
[41] In Miaponoose, at para. 35, the Court of Appeal found that the “show up” identification of the appellant to the complainant (namely, the police having provided the complainant with an opportunity to view solely the appellant, rather than engage in a proper photographic line-up procedure) rendered the complainant’s identification of the appellant at the time dubious and of very little weight. Furthermore, the subsequent identification of the appellant in the courtroom did not add any weight to this initial identification. It constituted no more than a bald assertion that the man in the courtroom was her assailant, the same man who had been put before her, for identification purposes, in the passing police van.
[42] Here, the Crown attorney argues that the judge discussed the video surveillance of the moment in question which reveals that the three men fleeing the hotel room look in Sangers’ direction, and she looks in theirs. He submits that this is evidence which could corroborate her testimony that she did, in fact, look at their faces and was able to recognize them.
[43] Indeed, the preliminary inquiry judge considered the evidence that Sangers had spent a “considerable amount of time” in B.G.’s company in the month or so leading up to the robbery; she identified him in court not as a pure stranger, but as someone “fairly well known to her”; and her observations of him, while brief, “was from a distance of less than 12 feet in a well-lit parking lot as can be observed by viewing the video surveillance in this case”.
[44] The Crown acknowledges that Sangers agreed during cross-examination that she was drunk and high off of the alcohol, marijuana, and coke that she had consumed throughout the evening at the point in time when she observed the robbers fleeing the hotel room. Indeed, Sangers had testified during her examination in-chief that she had consumed three to four drinks of hard liquor (vodka and/or Wiser’s), a gram of weed, and a gram-and-a-half of cocaine in the hotel room over the course of four to six hours.
[45] However, the Crown submits that Sangers did not say – nor was it suggested to her – that the substances she had consumed that evening affected her ability to recognize B.G. and Trapp as they fled the hotel room. Therefore, the Crown submits that notwithstanding the preliminary inquiry judge’s failure to explicitly consider Sangers’ admission that she was “drunk and high” in assessing whether sufficient evidence was led with respect to identify, there is no evidence that Sangers’ ability to observe the men and recognize them was actually undermined. It is speculative to suggest that that was the case.
[46] It is clear in her Ruling on committal, Good J. wrote: “Ms. Sangers testified that she had consumed three or four alcoholic beverages throughout the course of the evening”, and goes on to write that there was no evidence that Ms. Sangers was impaired by alcohol or drugs, or in a state of emotional distress when she witnessed the robbers fleeing the hotel room. This does not seem to conform to the preponderance of evidence.
[47] One could argue that at this stage, there is an inference that could be drawn even in the face of the witness’ consumption of various intoxicants. Indeed, that Sangers’ identification of the respondent may have been tainted is an inference that could be drawn by the ultimate trier of fact – not the preliminary inquiry judge. I note that it was not suggested to Sangers, nor offered by her, that her identification of B.G. was in any measure influenced by the brief discussions she had with other individuals about the robbery before the Brantford police arrived on the scene.
[48] While the question related to the degree of intoxication affecting with witness’s ability to make an accurate identification was not posed per se, the judge did not seem to fully consider this factor during the very limited weighing process on the accuracy of identification.
[49] In R. v. Herrera, [2008] O.J. No. 3040 (S.C.) at paras. 23 and 24, the trial judge summarized the framework for evaluating an error in committing an accused to trial based on faulty identification evidence:
For the purpose of committal, there is a distinction between cases involving frail identification, as in Mezzo, supra, and cases where, on the whole of the evidence, the identification does not meet the threshold requirement of positive identification. While a preliminary inquiry judge is not permitted to weigh a positive identification, he or she is required to consider the whole of the evidence and determine whether an unsure "identification", or a statement that a person "looks familiar" amounts to an identification at all, much less an identification on which a reasonable jury, properly instructed, could convict.
When evaluating whether the preliminary hearing judge correctly applied the Sheppard test, it is not enough to simply excise the parts of the complainant's evidence that support the Crown's position, and view them in a contextual vacuum. The preliminary hearing judge was required, by s. 548(1)(b) of the Criminal Code, to discharge an accused person "if, in his opinion, on the whole of the evidence, no sufficient case is made out to put the accused on trial".
[50] The inherent frailties in identification evidence are well established in the jurisprudence and has been the subject of considerable judicial comment. With sensitivity to mistaken eyewitness identification and the challenges to perpetrator identification, a preliminary hearing judge must turn his or her mind to the sufficiency of evidence for committal.
[51] In this case, much argument has been made with regards to Sanger’s familiarity and prior acquaintance with both accused as a form of recognition evidence. While I appreciate the context of the ruling, in the case of R. v. Olliffe, 2015 ONCA 242, at paras. 37 to 39, the Court of Appeal had occasion to discuss “recognition” evidence as a form of identification evidence:
The focus of the concern is not the credibility of the witness providing the identification evidence; rather, it is the reliability of the evidence and the potential for it to be given undue weight. Identification evidence is often deceptively reliable because it comes from credible and convincing witnesses. Triers of fact place undue reliance on such testimony in comparison to other types of evidence. Our courts recognize that they must vigilantly guard against convicting based on honest and convincing, but mistaken, eyewitness identification: R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 75 O.R. (2d) 463 (C.A.), at p. 465; R. v. Goran, 2008 ONCA 195, at para. 33.
Triers of fact are entitled to take into account whether the witness is acquainted with the accused when assessing the reliability of the identification evidence. Where a witness is known to the accused, the testimony identifying the accused is sometimes referred to as recognition evidence.
The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence: R. v. Spatola, 1970 CanLII 390 (ON CA), [1970] 3 O.R. 74 (C.A.), at p. 82; R. v. Turnbull, [1977] Q.B. 224 (Eng. C.A.), at pp. 228-229.
[52] In the recent case of R. v. M.B. [2017] O.J. No. 4477, the Ontario Court of Appeal endorsed Hourigan J.A.’s discussion in Olliffe about the inherent frailties of identification evidence. While the issue in M.B. centered on video surveillance identification, at paras. 61 to 65, the court went on to state:
The trial judge also failed to keep in mind his initial caution about the fallacy of mistaking certainty for accuracy. In his analysis, he emphasized how certain each recognition witness was in his or her identification.
At the outset, the trial judge identified the consistency of police officers' notes with their testimony as an "important issue". However, he was untroubled by the conflict between Officer Kay's notes and her testimony at trial. He said, "In court, Constable Kay was certain and confident of her identification of him notwithstanding the notation in her book of not being 100% certain."
Officer Howard was "very confident" of the identification and "he had no doubt about it".
T.C. "expressed no doubt" about the identity of the shooter. The trial judge emphasized how immediate her identification was: "As soon as she saw the video channels available to her, she told the police she knew who the shooter was." This observation was based on the investigating officer's testimony who showed T.C. the surveillance video footage.
In relying on the witnesses' certainty, there is no echo in the trial judge's reasons of his initial recitation of the caution of the Supreme Court in Hibbert that the danger of identification evidence is that "it is deceptively credible largely because it is honest and sincere." The mechanism by which honest and sincere identification testimony is unreliable is explained in The Law Reform Commission Report on Eyewitness Testimony (at p. 10) endorsed in Miaponoose:
The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus the final recreation of the event in the observer's mind may be quite different from reality.
[53] It is clear that there were factors are relevant to determining whether any limited weight ought to have been attached to Sangers’ identification of Kumi. They include:
a. The conditions under which Sangers made her identification, including factors affecting her ability to see the assailants, such as lighting, distance, the brief time period; and personal factors, such as level of intoxication, stress level, and relationship with the person being identified;
b. Any pre-identification procedures which would have the effect of tainting or influencing Sangers’ purported identification of Kumi;
c. Evidence that Sangers had some recent contact with B.G. at the time proximate to her purported recognition of him in the parking lot, and
d. The in-dock identification of Kumi along with the certainty or lack thereof with which Sangers expressed her identifications to the court.
[54] Sangers made her identification when according to her, it was “very dark” in the parking lot. She had, at most, one second to observe the assailants. The assailants were wearing hoods. Indeed, particularly probative was that when Sangers first testified on the matter, she could not recall whether the assailants she observed at the Comfort Inn were wearing hoods. These factors significantly undermine her purported recognition of the assailants during the brief interval which again was not fully considered by the preliminary inquiry judge.
[55] The stressful and traumatic nature of an armed robbery tends to compromise precise identification: R. v. Nikolovski (1997), 1996 CanLII 158 (SCC), 111 C.C.C. (3d) 403 (S.C.C.) at 412, 418. No doubt, in this case, it was a highly stressful encounter, in the context of a robbery with a firearm.
[56] Sangers admitted that she was “scared and shocked.” Sangers was clear in her testimony that she was too intoxicated to operate a motor vehicle, having consumed alcohol, cocaine, and marijuana. She agreed that her level of intoxication was sufficient to affect her senses, memory, and ability to observe. Again, this appeared to have been missed or not fully considered in the analysis.
[57] Sangers’ purported recognition of the assailants on scene as B.G. and Trapp is tainted by her conversations with the complainants, which occurred after the event but before any official statement was made to police. Sangers testified that she was told by the complainants that the assailants looked like “the people Beals had been hanging out with” and that she replied that she was “pretty sure she knew who they were.” Sangers also indicated that the complainants identified the individuals to her as B.G. and Trapp. As such, her purported independent recognition evidence provided to police is somewhat contaminated by her intervening conversation with the complainants.
[58] More importantly, there were the events surrounding a subsequent interaction Sangers had with the police in April of 2016. There is no direct evidence that Sangers’ identification of B.G. and Trapp as two of the three parties responsible was influenced by the police showing up with the photographs of four individuals two months later. It was never suggested to Sangers, nor was it offered by her, that seeing that photograph of the applicant caused her to believe that he was one of the robbers, or strengthened her belief of same. However, that does not fully address the issue of identification.
[59] Sangers’ in-dock identification of Kumi was tainted by the intervening line up conducted by the police prior to the preliminary inquiry related to this separate, albeit related matter. Sangers was shown photographs of Kumi, Hussein, and two other parties. While a live issue for trial, this procedure and its timing ought to have been considered by the jurist in the overall mix of whether there was sufficient evidence to commit on the issue of identity. I note that this consideration is not limited to the suggestion that such a process would provide information to Sangers that Kumi was a person of interest in the investigation.
[60] Justice Good also concluded that “Ms. Sangers might have recognized BG as one of the robbers due to the fact that he may have spoken to her.” The suggestion in Good J.’s reasons that Sangers made a voice identification of B.G. on the night of the robbery is incorrect. While Sangers originally suggested that B.G. uttered words on that night, she clearly and unequivocally clarified that he did not. Rather, it was Trapp. In such circumstances, the preliminary hearing judge ought to have placed no weight that a voice identification of B.G. was made on the night in question.
[61] Justice Good did not appear to fully assess Sangers’ oft-employed uncertain or equivocal language in making her purported identifications. For example, she testified that she told the complainants (directly after the incident) that she was “pretty sure” or later, that she would “consider” she knew who the assailants were. This identification evidence best captures her initial impressions after witnessing the event and is particularly probative as to its insufficiency.
[62] I recognize that this was a preliminary hearing, not a trial. It is true that the strength and quality of inferences are matters for the triers of fact. The judge’s determination of sufficiency is entitled to great deference. An application for certiorari is not a review of the preliminary inquiry judge’s decision. However, it is worth noting that the learned judge, in committing the applicant made unsupported findings that the parking lot was well lit, that there was no evidence that Sanger’s was intoxicated or that the intoxicants affected her ability to recognize the suspects, and that there was no evidence that Sangers was under stress when she made her identification.
[63] I tend to agree with Ms. Penman in that the preliminary inquiry judge exceeded the court’s jurisdiction in committing the applicant, when an essential element of the offence, was not made out. Like Herrera, this is not a case of frail identification, but a case where identification does not meet the threshold requirements of positive identification. A degree of certainty, which is not present here to any extent, is not a substitute for accuracy. Ms. Sangers’ first time in-dock identification of the applicant, even with assertions of a prior acquaintance in those circumstances is so problematic as to be virtually worthless.
[64] In my opinion, considering the reasons for committal along with Sangers’ identification testimony, the conditions of observation, the prior tainting and the lack of precision and degree of certainty in Sangers’ evidence on the issue, all operate together to deprive the identification of any evidentiary value. The tentative and unclear nature of the entirety of the evidence leads to a conclusion of insufficiency on the test for committal.
[65] The preliminary inquiry judge must properly apply and make a determination of the whole of the evidence - not amounting to its strength or weakness - but whether it amounts to some sufficient evidence of identification at all. With respect, the learned judge exceeded her jurisdiction in committing the applicant to trial on this basis.
Conclusion:
[66] For all of the aforementioned reasons, the application is granted. Kumi’s committal for trial on the charges listed in the indictment are hereby quashed.
A.J. Goodman J.
Released: September 28, 2017
CITATION: R. v. Kumi, 2017 ONSC 5508
COURT FILE NO.: 17-20-00
DATE: 2017/09/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
JEFFREY KUMI
Applicant
REASONS FOR JUDGMENT
Application for certiorari relating to the Applicant’s Committal to Trial
A.J. Goodman J.
Released: September 28, 2017