COURT FILE NO.: CR-17-90000383-0000
DATE: 20180518
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
BRANDON MICHAEL BAKER
Victoria Rivers for the Crown
Alana Barnes for the defendant
HEARD: April 24, 25 and 26, 2018
FAVREAU J.:
Introduction
[1] On October 10, 13 and 31, 2015, working undercover, Detective Constable Jennifer Caron purchased crack cocaine from someone who responded to the name “Jason”. The only issue in this case is whether “Jason” is the accused, Brendan Michael Baker. The determination of this issue turns on the reliability of Officer Caron’s identification of Mr. Baker in a police photo lineup.
[2] Mr. Baker is charged with three counts of possession for the purpose of trafficking and three counts of receiving the proceeds of crime. The defence does not dispute that Officer Caron purchased quantities of crack cocaine on the dates at issue, but takes the position that the Crown has not proven beyond a reasonable doubt that the three sales were made by Mr. Baker.
Review of evidence
[3] The evidence includes an agreed statement of facts. The Crown also called the evidence of Officer Caron who was the undercover officer who made the three “buys” from the person identified as Jason, Officer Kamal Rahim who was the “road boss” for the investigation, and Officer Brenda Maynard, who prepared the photo lineup. The defence called Kaitlin Bonahan, who is Mr. Baker’s girlfriend. Mr. Baker did not testify.
Agreed facts
[4] The facts agreed to between the Crown and the defence include the following:
a. Mr. Baker is the person who was arrested by the Toronto Police Service on May 27, 2016, and he is the accused appearing on the charges in this case.
b. The substances trafficked on October 10, 2015, October 13, 2015 and October 31, 2015, were cocaine.
c. The weight of the trafficked cocaine was as follows:
a. October 10, 2015: 0.9 grams;
b. October 13, 2015: 2.98 grams;
c. October 31, 2015: 0.66 grams.
d. A photo line-up was administered on October 13, 2015, that was neither videotaped nor audiotaped.
Officer Caron’s evidence about the drug buys
[5] The Crown’s primary evidence came from Officer Caron, who was a member of the Toronto Police Services Drug Squad in 2015. On the Drug Squad, she worked as part of a six member team. Each team member was assigned a different role during an investigation. She was often assigned the role of undercover officer. By October 2015, she had made between 60 to 70 undercover drug purchases, involving different substances such as powdered cocaine, crack cocaine, crystal meth and heroin.
[6] On October 10, 2015, she was asked by Detective Constable Kamil Rahim, who was the “road boss’ on the investigation, to arrange a drug purchase with a person of interest. Officer Rahim told Officer Caron that the person went by the name “Jason” and that he sold crack cocaine. Officer Caron was also told that the person in question was a white male, over thirty years old, with braids and a greying beard. She was also given a telephone number at which to contact Jason.
[7] In the early afternoon of October 10, 2015, Officer Caron called the number she was given. Someone answered and she said “Yo Jason”, and identified herself as “Steph”. She then asked “You around”, which she explained in her evidence was meant to let him know that she needed drugs. The person on the phone then told her to come to 1775 Weston Road. She made arrangements to meet him later that day to buy a “half ball” of crack cocaine – which is 1.75 grams – for $120. He asked her to call when she got there.
[8] She arrived at 1775 Weston Road around 7:50 pm, and called the number she had for Jason. Jason answered and told her to go to the side door. Officer Caron testified that there was no artificial lighting outside, but that it was not completely dark at that time. She waited outside the door, and a man poked his head out. He asked Officer Caron where she got his number, and she told him she got it from “one of the girls at the club”. At that point, another man approached the side door, seemingly also looking for Jason. Jason asked them to step inside, and led them into a stairwell that Officer Caron described as lit from above with artificial lighting. Once inside, Jason immediately handed her a torn bag with some crack cocaine, and she gave him $120. The other man asked Jason for drugs, and Officer Caron left.
[9] In cross-examination, Officer Caron agreed that the interaction was no more than 2 to 5 minutes. At that point, she did not know Jason’s identity, but she described him as having shoulder length brown hair that was “very frizzy” and “puffy”; he was wearing a blue baseball cap, he had an “unshaven beard” by which she meant that it was not full, his beard was not grey and he had a smaller physique. She emphasized in her evidence that his hair was one of the features that stood out for her.
[10] The next purchase occurred on October 13, 2015. That day, Officer Caron sent Jason a text message at the same number she had previously used. She told Jason she wanted to buy a “full ball” – which she testified is 3.25 grams of crack cocaine. This time, he told her to meet him at 5 Belleview Crescent, which she testified is across the street from the previous address where she had met him on October 10th. Around an hour later, they had a further exchange of text messages about the price for the crack cocaine, and they agreed on $220.
[11] Later that afternoon, before she went to meet Jason, Officer Caron participated in a photo lineup where she identified Jason as the accused, Mr. Baker. I deal with evidence relevant to the photo lineup and a subsequent briefing in the section below in these reasons.
[12] After the photo lineup and briefing, Officer Caron exchanged a few more text messages with Jason, including on her way to meet him. When she got to the building, he told her to go to the 9th floor and meet her in the stairwell. They met in the stairwell, where he gave her a plastic bag with a rock of crack cocaine, and she gave him $220. They then left the stairwell together, and walked through the hallway to the elevator. They took the elevator to the ground floor, after which she left the building.
[13] Officer Caron’s evidence is that there was artificial lighting in the stairwell. She recognized Jason as the person she had identified in the photo lineup. This time, she described him as having blue eyes, a short beard, and puffy shoulder length hair.
[14] The next drug purchase occurred on October 31, 2015. On that day, Officer Caron called Jason in the early afternoon at the same number at which she had previously reached him. She and Jason made arrangements to meet again at 5 Belleview Crescent. Before leaving for the meeting, Officer Caron participated in a briefing, where she was again shown a photo of the accused. She testified that she had no concerns that “Jason” and Mr. Baker were the same person.
[15] On her way to meet Jason, she called him on his cell phone, and he told her to meet him in the stairwell on the top floor of the building. When she got to the building, she went to the top floor by elevator and then went into the stairwell. There was some delay before Jason showed up. She heard him coming up the stairs, and she went down a few flights to meet him. Once they met, he told her that he only had a “70 piece”, which she explained meant $70 worth of crack cocaine. She only had $20 bills, so she bought the quantity Jason offered for $60, which he accepted. They then left the stairwell together and got on the elevator. Jason got off on the 9th floor.
[16] Officer Caron’s evidence is that, during this transaction, she recognized Jason as the same person from the first and second transactions, and as the person she had identified in the photo lineup.
Photo lineup
[17] After the first transaction, Officer Rahim received information that Mr. Baker may be “Jason” from whom Officer Caron had bought the crack cocaine. Officer Rahim decided to organize a photo lineup to be viewed by Officer Caron.
[18] On October 13, 2015, before the second buy took place, he asked Officer Maynard to prepare the photo lineup. In 2015, Officer Maynard was with the Criminal Investigation Bureau at the Toronto Police Service, but she joined the Drug Squad for a 10 week secondment around the time of the investigation. She had previous experience preparing photo lineups.
[19] During her testimony, she explained that she prepared the photo lineup using a computer database that contains photos of people who have previously been arrested. She started with Mr. Baker’s photo, which had been provided by Officer Rahim. She then used a computer program that creates the lineup based on criteria that are meant to generate a group of people with similar characteristics, such as gender, race, height range, weight range, etc… Based on these search criteria, the computer generates 80 to 200 photos. From those photos, Officer Maynard manually selected 11 photos featuring people with facial and other characteristics resembling Mr. Baker.
[20] Officer Maynard testified that the twelve photos, including Mr. Baker’s photo, were then printed out in colour and placed in individual envelopes. No one helped her select the photos. No one was looking over her shoulder when she selected the photos. Officer Caron played no role in preparing the photo lineup.
[21] The photo lineup was administered by Officer Matthers, who is an officer on the Drug Squad who had no involvement in the investigation. Officer Maynard played no role in administering the photo lineup to Officer Caron.
[22] Officer Caron confirmed in her evidence that she was not involved in creating the photo lineup; she did not know who created it at the time, and she was not shown a photo of Mr. Baker in advance of the photo lineup. She was at her desk on the afternoon of October 13, 2015, after making arrangements for the second buy, but before the buy occurred, when she was asked to go to a boardroom to do a photo lineup.
[23] The only other person in the boardroom was Officer Matthers. Before starting the lineup, Officer Matthers read a document titled Witness Viewing Disclaimer, with the following text:
You are about to be presented with a series of images. The images will be presented to you one after the other. The image of the person(s) involved in the incident may or may not be in the series of images presented. Keep in mind that a person’s appearance may change (for example: hair style or colour, facial hair). Look at each photograph carefully. If you can identify a person involved in the incident, please advise the person presenting these images to you. Take as long as you wish to view each image before moving to the next. The person involved in the incident may or may not be in the photographs. You are not obliged or required to select any photograph. Regardless of whether or not a photograph is selected, the police will continue to investigate the incident. As we begin the viewing, please take a moment to direct your mind back to the incident.
[24] Officer Caron signed and dated the Witness Viewing Disclaimer after it was read to her.
[25] Officer Caron then looked at the twelve photos, each of which was in a separate envelope. She looked at the photos one at a time. After looking at each photo, she wrote on the back “no” or “yes”, her badge number and her signature. Then she put the photo back in the envelope and moved on to the next photo. She did not compare the photos to each other, and she did not display them all together side by side.
[26] She positively identified the 10th photo as “Jason”, and rejected all of the other photos. She testified that she did this fairly quickly. His hair stood out, and she also recognized the shape of his face and features.
[27] Her evidence was that Officer Matthers was in the boardoom while she reviewed the photos, but he did not speak to her or make any signals to her that would suggest that Mr. Baker was the person she was expected to identify.
[28] Officer Caron’s evidence is that, following the photo lineup, she participated in a briefing to set up the next buy. At that time, she was informed that the person she identified was Brandon Michael Baker. She also testified that a photo of Mr. Baker was shown at the briefing. Officers Rahim and Maynard also participated in this briefing, but their notes do not reflect that Mr. Baker’s name was referred to at the briefing or that his photo was shown at that time. During cross-examinations, they both agreed that this was significant information and they would have expected it to be reflected in the notes if it had occurred.
Evidence from Mr. Baker’s girlfriend
[29] Mr. Baker’s girlfriend, Kaitlan Bonohan, was called as a witness by the defence. She has been in a relationship with Mr. Baker since the summer of 2015.
[30] She identified photos she took of Mr. Baker in December of 2015, in which his hair is shown as partway down his back. She testified that his hair was around the same length in October 2015, and that he usually kept his hair in a tight bun, braided or in a ponytail.
[31] She also testified that Mr. Baker moved in with her and her mother in early October 2015 in an apartment in a building in North York. Prior to that, Mr. Baker had been living in Kitchener. Ms. Bonohan said that she was familiar with the building at 1775 Weston Road, because it was a 5 or 10 minute walk away from the apartment where she lived with her mother and Mr. Baker. She was also familiar with the building at 5 Belleview Crescent, because Mr. Baker’s father lives in that building in an apartment on the 8th floor.
Analysis
[32] Mr. Baker is presumed innocent, and, before I can find him guilty, I must be satisfied that the Crown has proven the charges against him beyond a reasonable doubt.
[33] In order to find Mr. Baker guilty of trafficking under section 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c.19, I must be satisfied that Mr. Baker trafficked in cocaine, that he knew the substance was cocaine, and that he intentionally trafficked in cocaine. In order to find Mr. Baker guilty of possession of the proceeds of crime contrary to section 354(1) of the Criminal Code, R.S.C. 1985, c. C-46, I must be satisfied that Mr. Baker was in the possession of proceeds of crime and that he knew he was in possession of the proceeds of crime.
[34] Given the admissions made by the defence and the uncontested evidence that Officer Caron purchased crack cocaine on three occasions from Jason, the only issue in this case is whether “Jason” and Brendan Michael Baker are the same person. In order to find Mr. Baker guilty, I must be satisfied beyond a reasonable doubt that he was the person from whom Officer Caron bought crack cocaine on October 10, 13 and 31, 2015. Making this finding depends on the reliability of Officer Caron’s identification of Mr. Baker.
[35] The Crown advances three arguments in support of its position that Officer Caron’s identification of Mr. Baker is reliable:
a. The police followed the recognized procedure for photo lineups;
b. Officer Caron’s evidence is reliable; and
c. There is independent confirmatory evidence of Officer Caron’s identification.
[36] The defence argues that Officer Caron’s identification is unreliable for the following reasons:
a. The administration of the photo lineup was not videotaped or audiotaped;
b. Officer Caron’s description of Jason’s hair length does not accord with Mr. Baker’s actual hair length at the time of the investigation; and
c. The failure by Officers Rahim and Maynard to note that Mr. Baker’s photo was shown at the briefing following the photo lineup on October 13, 2015, puts the reliability of the photo lineup into question.
Law on reliability of identification evidence
[37] The Crown acknowledges, as emphasized in R. v. Miaponoose, 1996 CanLII 1268 (ON CA), [1996] O.J. No. 3216 (C.A.), at para. 9, that eye witness identification is inherently unreliable.
[38] Despite the frailties in eyewitness evidence, the courts have recognized that, if administered under proper conditions, police photo lineups can form the basis for identification.
[39] In R. v. Carter, 2015 ONSC 5273 (Sup. Ct.), at paras. 56 to 60, B.P. O’Marra J. reviewed the principles applicable to determining the reliability of photo lineups:
56 In an appropriate case a trier of fact may be justified in convicting on the evidence of a single eye witness. See R. v. Pelletier, 1996 CanLII 143 (SCC), [1996] 3 S.C.R. 601 at 601.
57 Questionable identification procedures may not be fatal to a finding of guilt. Improprieties or deficiencies in police procedures do not necessarily destroy the identification evidence or render it inadmissible. See R. v. Mezzo (1986), 1986 CanLII 16 (SCC), 27 C.C.C. (3d) 97 (SCC) at pp. 132-140, R. v. D'Amico (1993), 1993 CanLII 8482 (ON CA), 16 O.R. (3d) 125 (C.A.) at p. 129.
58 The use of inappropriate pretrial identification procedures affects the weight of the subsequent identification. See R. v. F.A. (2004), 2004 CanLII 10491 (ON CA), 183 C.C.C. (3d) 518 (Ont. C.A.) at para. 46.
59 In assessing the dangers of eyewitness identification testimony as a result of flawed identification procedures, courts have specifically looked to the existence of compelling confirmatory evidence to assess the safety of a conviction. The existence of confirmatory circumstantial evidence can go a long way to minimizing the damages inherent in eyewitness identification. See R. v. Phillips (2001), 2001 CanLII 24121 (ON CA), 154 C.C.C. (3d) 345 (Ont. C.A.) at 353-354, R. v. Quercia (1990), 1990 CanLII 2595 (ON CA), 60 C.C.C. (3d) 380 (Ont. C.A.) at 389.
60 In R. v. Gonsalves, 2008 CanLII 17559 (ON SC), [2008] O.J. No. 2711, Justice Hill of this court referred to the recommendations flowing from the Sophonow inquiry at paras. 52 and 53:
52 The Inquiry Regarding Thomas Sophonow conducted by The Honourable Peter Cory made a number of recommendations regarding photo line-up procedures as reproduced in the Report on the Prevention of Miscarriages of Justice, FPT Heads of Prosecutions Committee Working Group, September 2004:
Photo pack line-up
The photo pack should contain at least 10 subjects.
The photos should resemble as closely as possible the eyewitnesses' description. If that is not possible, the photos should be as close as possible to the suspect.
Everything should be recorded on video or audiotape from the time that the officer meets the witness, before the photographs are shown through until the completion of the interview. Once again, it is essential that an officer who does not know who the suspect is and who is not involved in the investigation conducts the photo pack line-up.
Before the showing of the photo pack, the officer conducting the line-up should confirm that he does not know who the suspect is or whether his photo is contained in the line-up. In addition, before showing the photo pack to a witness, the officer should advise the witness that it is just as important to clear the innocent as it is to identify the suspect. The photo pack should be presented by the officer to each witness separately.
The photo pack must be presented sequentially and not as a package.
In addition to the videotape, if possible, or, as a minimum alternative, the audiotape, there should be a form provided for setting out in writing and for signature the comments of both the officer conducting the line-up and the witness. All comments of each witness must be noted and recorded verbatim and signed by the witness.
Police officers should not speak to eyewitnesses after the line-ups regarding their identification or their inability to identify anyone. This can only cast suspicion on any identification made and raise concerns that it was reinforced.
It was suggested that, because of the importance of eyewitness evidence and the high risk of contaminating it, a police force other than the one conducting the investigation of the crime should conduct the interviews and the line-ups with the eyewitnesses. Ideal as that procedure might be, I think that it would unduly complicate the investigation, add to its cost and increase the time required. At some point, there must be a reasonable degree of trust placed in the police. The interviews of eyewitnesses and the line-up may be conducted by the same force as that investigating the crime, provided that the officers dealing with the eyewitnesses are not involved in the investigation of the crime and do not know the suspect or whether his photo forms part of the line-up. If this were done and the other recommendations complied with, that would provide adequate protection of the process.
[40] In Carter, at para. 66, the Court went on to hold that:
66 The Sophonow recommendations for the conduct of photo lineups do not constitute a complete set of conditions precedent for the admission and consideration of such evidence. The failure to follow some of the recommendations is relevant to the weight to be attributed to such evidence.
Reliability of Officer Caron’s identification evidence
[41] In this case, the police followed the Sophonow recommendations with one exception, which is that the photo lineup was not videotaped or audiotaped.
[42] Indeed, the police took the following steps in administering the lineup:
a. The photo pack included 12 subjects, which is more than the 10 recommended;
b. The photos in the lineup included subjects who closely resemble Mr. Baker. Amongst other traits, the subjects are all light skinned men, have hair at least down to their shoulders, and have facial hair.
c. While the administration of the lineup was not videotaped, the evidence from both Officer Caron and Officer Rahim is that Officer Matthers, who administered the lineup, was not involved in the investigation and was not told that Mr. Baker was the suspect.
d. The photos were presented sequentially.
e. While there was no videotape, Officer Caron contemporaneously recorded on the back of each photo whether the identification was positive or negative.
f. Officer Caron’s evidence is that Officer Matthers did not speak to her or give her any kind of cues while the lineup was administered.
g. While the lineup was not administered by an officer from a different police force, Officer Matthers was not involved in the investigation and he was not told that Mr. Baker was the suspect when the lineup was administered.
[43] Therefore, as mentioned above, the only step missing from the Sophonow recommended process is that the administration of the lineup was not videotaped or audiotaped. The Crown relies on the decision in R. v. Ralph, 2011 ONSC 3558 (Sup. Ct.), aff’d 2014 ONCA 3 (C.A.), to argue that it would be unreasonable to videotape the administration of the photo lineup because it would expose Officer Caron to danger given her work as an undercover officer. In that case, at para. 27, at the Superior Court level, the Court was presented with evidence of potential danger, which the Court accepted as a reasonable explanation for the failure to videotape a photo lineup. The Court went on, in that case, to find that the photo lineup was reliable in part due to other confirmatory evidence. The Court of Appeal, at paras. 25 and 26, upheld the trial judge’s finding that the identification through the photo lineup was reliable:
25 After the third drug purchase, the undercover police officer was shown a photo line-up. By this time, based on things the appellant had told the officer, the police believed they knew the identity of the trafficker. An officer put the line-up together with the assistance of computer technology and then had an officer unconnected to the investigation actually conduct the line-up procedure with the undercover officer. Each picture was shown to the officer one at a time until he identified the perpetrator (the appellant). The line-up was then halted. The undercover officer continued to deal with the appellant and, as I have said earlier, on one occasion spent several hours with him at a strip club.
26 The appellant's submission on identity centres on the fact that the line-up procedure was not videotaped. The trial judge considered this fact and accepted the explanation that the line-up was not videotaped because of officer safety reasons. All of the other procedures for conducting a proper photo line-up were followed. Further, as detailed in the trial judge's careful reasons, there was abundant evidence to support the identification of the appellant by the undercover officer.
[44] In this case, Officer Matthers did not testify and there was no evidence providing an explanation as to why the identification was not videotaped or audiotaped. However, in Ralph, while the Court accepted the evidence about why no form of digital recording was made, the Court of Appeal ultimately accepted that the identification through the photo lineup was reliable due to other confirmatory evidence. As in Ralph, while it would have been ideal if the administration of the photo lineup had been videotaped, in my view, there is evidence beyond the photo lineup to support Officer Caron’s identification of Mr. Baker as Jason and, on that basis, I am satisfied that her identification is reliable.
[45] First, Officer Caron met Mr. Baker on three separate occasions. While the meetings were relatively brief, her evidence was that on each occasion the area was artificially lit, and at least “well lit” during the first meeting. The meetings were focused on the drug transaction, but were long enough to include some discussion about other topics, such as how “Steph” got Jason’s number, where she worked and difficulties Jason was having with his cell phone. Following both transactions at the Belleview address, Officer Caron and Jason took an elevator together for a few floors. She identified him in the photo lineup after the first meeting, and was able to confirm that the person she identified in the lineup was the same person she met on the two subsequent meetings. It is the combination of these circumstances that persuade me that Officer Caron’s identification is reliable.
[46] Second, there is confirmatory evidence beyond Officer Caron’s eyewitness identification. As held in R. v. Quercia, 1990 CanLII 2595 (ON CA), [1990] O.J. No. 2063 (C.A.), at para. 25, “the existence of confirmatory circumstantial evidence can go a long way to minimizing the dangers inherent in eyewitness identification”. In this case, the independent evidence is that Mr. Baker’s father lives on the 8th floor of the building where the second and third transactions took place. In her evidence, Mr. Baker’s girlfriend not only confirmed that this is where Mr. Baker’s father lives, but she also confirmed that Mr. Baker “sometimes” visits his father there. This evidence therefore creates an independent connection between Mr. Baker and the location where Officer Caron purchased the drugs. Officer Caron’s evidence was that the building was approximately 22 stories, and that the second transaction took place in the 9th floor stairwell and that Jason got off the elevator on the 9th floor after the third transaction. In both cases, this is one floor above Mr. Baker’s father’s apartment. This is circumstantial independent evidence obtained from Mr. Baker’s girlfriend which, in my view, serves to support Officer Caron’s identification of Mr. Baker as the person from whom she purchased the drugs.
[47] Mr. Baker’s counsel argues that Officer Caron’s identification of Mr. Baker as Jason is unreliable because of inconsistencies between the way in which Officer Caron described Jason’s hair and Mr. Baker’s actual hair. In particular, she argues that Officer Caron has consistently described his hair as shoulder length while Ms. Bonohan’s evidence is that his hair went partway down his back. In my view, this is not a material difference and does not affect the reliability of Officer Caron’s identification. While Officer Caron’s evidence is that Jason’s hair was a significant feature, her focus was on both the texture which she described as “puffy” and “frizzy” and the length which she described as “shoulder length”. In the photos produced by Ms. Bonohan taken two months following Officer Caron’s identification, Mr. Baker’s hair could easily be described as frizzy and it does extend a few inches below his shoulder.
[48] Whether his hair sat on his shoulders or extended a few inches below his shoulders does not materially affect the reliability of Officer Caron’s identification. In either case, Mr. Baker still has lengthy frizzy hair. It is noteworthy that the photos in the photo lineup are front facing. Each subject has lengthy hair, which is at least shoulder length but it is not possible to tell how far down the back the hair goes. I accept that what was noteworthy to Officer Caron was that Mr. Baker’s hair had length at least down to his shoulders; whether it extended a few inches below his shoulders in the back is not material to this aspect of his identification. This is not a situation like in Quercia, which the defendant’s counsel relied on in argument, where the eyewitness claimed that the person who attacked her had a lazy eye and pock marks on his face when, in fact, the accused had no such features. In this case, Officer Caron testified that she did not just rely on Mr. Baker’s hair length, but also on his facial features and his smaller build. In my view, the small discrepancy in Officer Caron’s description of Mr. Baker’s hair length and his actual hair length is not material and not sufficient to make her identification unreliable.
[49] Mr. Baker’s counsel also argues that the fact that Officers Maynard and Rahim did not refer in their notes of the briefing following the lineup to the viewing and identification of Mr. Baker casts some doubt on the reliability of the photo lineup process. I do not accept this argument. Whether or not they noted the review of the photo and identification of Mr. Baker at the briefing does not put into question whether the photo lineup was properly administered; there is no conflict in the evidence regarding how the lineup was administered. Notably, Officer Caron remembered being shown the photo at the briefing and receiving confirmation of Mr. Baker’s name at that time, and she confirmed that her own notes make reference to this event. The primary significance of this evidence is that Officer Caron had an opportunity to review the photo after seeing it in the lineup and before meeting with Jason on October 13th, thereby giving her another opportunity to confirm that Jason and Mr. Baker are the same person. Even without this evidence, I would still be satisfied that her identification was reliable. There is uncontroverted evidence that Officer Caron reviewed Mr. Baker’s photo on October 31, 2015, before and after she met with him for the third transaction, and that she was again satisfied that Jason and Mr. Baker are the same person. Accordingly, in my view, the discrepancy between Officer Caron’s recollection and her colleagues’ notes is not material, and does not alter my conclusion regarding the reliability of her identification.
Conclusion
- In conclusion, looking at the totality of the evidence, including the fact that the procedure followed for administering the photo lineup was very close to the procedure recommended in Sophonow and that there was independent confirmatory evidence, I am convinced beyond a reasonable doubt that the person from whom Officer Caron bought the crack cocaine on October 10, 13 and 31, 2015 was the accused, Mr. Baker. I therefore find him guilty of all six charges against him.
FAVREAU J.
RELEASED: May 18, 2018
COURT FILE NO.: CR-17-90000383-0000
DATE: 20180518
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
BRANDON MICHAEL BAKER
REASONS FOR JUDGMENT
FAVREAU J.
RELEASED: May 18, 2018