R v KHAMIS, 2019 ONSC 2846

Case Summary

The defendant, Ad-Ham Khamis, was charged with robbery, discharging a firearm, and possession of a firearm in breach of a prohibition order. The central issue at trial was the identity of the perpetrator, which relied solely on the complainant's identification evidence. The court found the complainant to be an honest witness but expressed concerns about the reliability of his identification due to limited observation time and flaws in the photo line-up composition, specifically regarding the depiction of teeth and skin tone. Absent corroborating evidence, the Crown failed to prove identity beyond a reasonable doubt, leading to an acquittal on all counts. interesting_citations_summary: > This judgment provides a detailed application of principles governing the assessment of identification evidence, emphasizing the need for caution, the distinction between witness honesty and reliability, and the factors affecting reliability (e.g., observation opportunity, distinctiveness of features, fairness of identification procedures). It highlights that a witness's certainty does not equate to reliability and that flaws in a photo line-up's composition, such as disproportionate representation of key descriptive features, can significantly detract from the weight of identification evidence, especially in the absence of corroboration. The decision reinforces the high standard of proof required for identity in criminal cases. final_judgement: "Ad-Ham Khamis was found not guilty of all counts." winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 2846 file_number: "CR-18-30000-233-0000" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc2846/2019onsc2846.html" keywords: - Criminal Law - Identification Evidence - Photo Line-up - Reliability - Reasonable Doubt - Robbery - Firearm Offences - Acquittal - Sophonow Inquiry areas_of_law: - Criminal Law - Evidence cited_cases: legislation: [] case_law: - title: "R. v. Tat" url: "https://www.canlii.org/en/on/onca/doc/1997/1997canlii2234/1997canlii2234.html" - title: "R. v. Miaponoose" url: "https://www.canlii.org/en/on/onca/doc/1996/1996canlii1268/1996canlii1268.html" - title: "R. v. Hibbert, 2002 SCC 39" url: "https://www.canlii.org/en/ca/scc/doc/2002/2002scc39/2002scc39.html" - title: "R. v. Shermetta, [1995] N.S.J. No 195 (NSCA)" - title: "R. v. Smith (1952)" url: "https://www.canlii.org/en/on/onca/doc/1952/1952canlii116/1952canlii116.html" - title: "R. v. Lifchus" url: "https://www.canlii.org/en/ca/scc/doc/1997/1997canlii319/1997canlii319.html" --- # Court File and Parties **COURT FILE NO.:** CR-18-30000-233-0000 **DATE:** 20190514 **ONTARIO SUPERIOR COURT OF JUSTICE** **B E T W E E N:** HER MAJESTY THE QUEEN -and- AD-HAM KHAMIS **Counsel:** Jerry Brienza, for the Crown Sam Goldstein, for the Defendant **HEARD:** April 2 – 4, 2019 **Justice J. Copeland** # REASONS FOR JUDGMENT [1] Ad-Ham Khamis is charged with robbery, discharging a firearm in a manner reckless as to the life or safety of another person, and possession of a firearm in breach of a weapons prohibition order. The offences are alleged to have occurred on or about August 9, 2016, at approximately 11:00 p.m., on Kingston Road in Scarborough, across the street from a bar called Ryderz. [2] Because Mr. Khamis was in custody, on April 26, 2019, I provided my decision in this matter, with reasons to follow. I found Mr. Khamis not guilty of all counts. These are my reasons for so finding. [3] The Crown’s case consists of the evidence of the complainant, Kadean Forrest; Officer Christopher Moorcroft, who administered a photo line-up to Mr. Forrest; Officer John Smissen, who gave some non-controversial evidence about the scene; as well as a brief agreed statement of facts. [4] The defence did not call any evidence. [5] The only issue in dispute is whether the Crown has proven Mr. Khamis’ identity as the perpetrator of the offences at issue. There is no dispute that Mr. Forrest was robbed, and that the perpetrator fired a firearm. [6] The trial proceeded as a blended trial and voir dire on consent, because one of the defence arguments was that the composition of the photo line-up was so unfair that Mr. Forrest’s identification evidence based on the line-up should not be admitted in evidence. [7] The burden of proof, of course, lies with the Crown to prove the charges beyond a reasonable doubt. In the circumstances of this case, whether or not the Crown has proven its case turns on my assessment of the reliability of Mr. Forrest’s identification evidence. # The Incident, Mr. Forrest’s opportunity to observe, and his description of the perpetrator [8] The facts of the robbery are not in dispute, although there was some cross-examination about Mr. Forrest’s opportunity to observe during and after the robbery. [9] Mr. Forrest testified that on the evening of August 9, 2016, he went to Ryderz bar on Kingston Road, arriving around 9:00 p.m. While he was at the bar he drank one or two Dragon stout. He was not impaired. [10] When Mr. Forrest left the bar around 11:00 p.m., he crossed Kingston Road to see if a friend who lived nearby was home. When he got to the other side of the road, a man came up to him suddenly, and said, “why you walking like that?” There was a brief verbal exchange, and then the man pulled a gun from his waist, and pulled a gold chain Mr. Forrest was wearing from his neck. The man put the chain in his pocket, and crossed back across Kingston Road. The chain was gold, long enough to reach Mr. Forrest’s navel, and had a Jesus pendant on it. [11] Mr. Forrest testified that he was astonished when this happened. He watched the man cross the street. The man got on a bike and rode off westbound on Kingston Road. [12] No-one else was present at the time of the confrontation. [13] Mr. Forrest was asked in examination-in-chief how long it was from when he saw the man until the man crossed the street and got on the bike. He responded five to seven minutes. There was no cross-examination on this estimate. [14] I have some difficulty accepting the length of this estimate, given the brief conversational exchange Mr. Forrest described, and then the man taking his chain. It is hard for me to see how the time when the men were in proximity to each other could have been more than a minute or two. Simply put, the interaction that Mr. Forrest described in his evidence does not cover five to seven minutes of time. I asked Crown counsel about this in submissions. Crown counsel submitted that as he understood the evidence, the five to seven minutes referred to the time from when Mr. Forrest first saw the man, to when the man rode off on the bicycle. Crown counsel agreed that Mr. Forrest’s evidence should not be understood as saying that he looked at the assailant’s face for five to seven minutes. [15] On this basis, I find that Mr. Forrest’s opportunity to observe the perpetrator up close during the robbery was only one or two minutes. He would then have been able to watch the perpetrator cross the street and bike off. But I infer that because the perpetrator was crossing the street away from Mr. Forrest, the perpetrator would not have been facing towards Mr. Forrest at that time, and would have been getting further away from Mr. Forrest. [16] Mr. Forrest then had two other very brief occasions to observe the assailant, as follows. After the man rode off on the bike and was out of sight, Mr. Forrest crossed Kingston Road and walked back to out front of Ryderz. He saw an older man he knew and told him what had happened. Other people were standing outside Ryderz. The bartender came out, and Mr. Forrest talked to her, and she asked if he was alright. [17] Suddenly, the man who had robbed Mr. Forrest came back to near Ryderz. The older man who Mr. Forrest knew and the bartender talked to the man. Mr. Forrest testified that the man was trying to pick and argument with the bartender. Mr. Forrest testified that this interaction was not long. Maybe 20 to 30 seconds. [18] Mr. Forrest went up to the man and said, “I’m here. I am not about any problem with anyone. I come here sometimes. I need my chain back.” The man denied that he knew about any chain. [19] Mr. Forrest then grabbed the man’s shirt and they started wrestling. Mr. Forrest was holding the man’s shirt near the collar. Mr. Forrest searched the man’s side, and felt a gun at the front of his pants. He tried to take the gun. He said the wrestling with the man who robbed him did not last long, 7 or 8 seconds. They were twisting and turning while this happened. Mr. Forrest testified that his face was close to the man who robbed him, but that during part of the wrestling he (Mr. Forrest) was behind the man. [20] Then another man who seemed to know the man who robbed Mr. Forrest came over. Mr. Forrest was worried he would hold him, so he pushed away the man who robbed him, and then ran across Kingston Road. Mr. Forrest then called 911. He then heard gun shots. He continued to run, and he fell and his phone fell out of his hand. When he was running, he had glanced back and saw the man was coming towards him. Mr. Forrest then saw a police car, and he flagged it down. [21] Mr. Forrest testified that he looked at the assailant’s face during the robbery, when the man rode off on his bike, when the man was later talking to the bartender, and when they were wrestling. [22] It was night when the incident occurred. Mr. Forrest testified that there were street lights in the area, and the visibility was clear. The defence did not make an issue of the lighting. [23] Mr. Forrest testified that he has 20/20 vision, and does not wear glasses. Mr. Forrest testified that the assailant was not wearing any face covering. He was wearing a backwards baseball cap, which I will come to below in relation to the description of the perpetrator given by Mr. Forrest. [24] In court, Mr. Forrest described the assailant as follows: * A black male whose skin was “lighter” than Mr. Forrest’s; * A little “thick” in build; * Short in build. He said the man was 5’ 5”, 5’ 6” or 5’ 7”, and was “way shorter” than him (Mr. Forrest said he is 6’ 2”); * With “a distinct buck tooth”; * Clear glasses which appeared to be prescription glasses; * A yellow polo shirt; * Wearing a yellow baseball cap turned backwards; * blue jeans; * White sneakers. [25] Mr. Forrest also testified that the assailant was “Somali-looking”. When asked to explain what he meant by this, Mr. Forrest said, “like an Ethiopian kind of breed”, and said a straighter nose, and a more distinct face. He also said the assailant was, “a way lighter person” than he was. He also said in court that the man distinct eyes, which he described as “Chinese looking”. [26] I note that Mr. Forrest’s description in his trial evidence of the assailant contains a number of specific details that were not included in the description of the assailant that he gave to police on the night of the robbery. I will return to this issue in my analysis. [27] Mr. Forrest testified that he could tell the man’s hair was short, but because of the baseball hat he could not see most of his hair. [28] Regarding his description that the person had a “buck tooth”, Mr. Forrest explained that he meant that the person needed braces to fix their teeth. [29] Pursuant to the decision in [R. v. Tat (1997), 35 O.R. (3d) 641 at paras. 31-39 (ONCA)](https://www.canlii.org/en/on/onca/doc/1997/1997canlii2234/1997canlii2234.html), I admitted evidence of the description that Mr. Forrest gave of his assailant in his initial statement to police. This statement was given in a police cruiser and recorded on video, as well as a description that he gave to Officer Costelloe either before or after the statement in the cruiser, but which it was agreed was given prior to the photo line-up being administered. The portion of the description in the statement to Officer Costelloe that was not recorded in the cruiser video came into evidence in hearsay form via Officer Moorcroft. However, counsel for both parties agreed that I could consider it for the truth of its contents, rather than require Officer Costelloe to attend and give evidence. It was also consistent with Mr. Forrest’s evidence that at some point he told the officer who took the statement in the cruiser (Officer Costelloe) that the assailant had a buck tooth, but he could not remember whether it was before or after the portion of the statement videotaped in the cruiser. These statements were taken soon after the robbery, before Mr. Forrest left the scene. [30] In that statement (including the buck tooth portion not on the video), Mr. Forrest described his assailant as follows: * Male black; * Light skin – lighter than the victim; * 5’ 7” tall; * Buck front teeth; * Glasses; * Yellow polo shirt; * Blue jeans; * Yellow baseball cap; * White sneakers; * Late 30s (age). [31] In cross-examination, Mr. Forrest agreed with the suggestion that the police video interview in the cruiser started at 12:12 a.m., approximately 1 hour after the robbery. He agreed that his memory of the event was better then, closer in time to the event, than when he testified at trial. He agreed that he was trying to be truthful and accurate in the description he gave to police in the statement the night of the robbery. [32] I note that in terms of the physical characteristics of the perpetrator (setting aside the clothing), the description that Mr. Firestone gave in his first statement is relatively generic, apart from the buck tooth descriptor, which has some specificity: male black; light skin – lighter than Mr. Forrest; 5’ 7” tall; buck front teeth; glasses; late 30s. [33] There was evidence that while he was in the police cruiser being interviewed, Mr. Forrest identified a man on the street, not Mr. Khamis as the perpetrator. This was not covered in any detail in the evidence. Although normally the fact that a witness identified someone other than the defendant before the court as the perpetrator would be a factor to cause concern as to the reliability of the witness’ current identification of the defendant, counsel for Mr. Khamis said in submissions he was not raising it as an issue. It appears to have been the case that that identification was not based on the features of the man on the street, but just his location relative to the scene of the robbery. [34] In court, Mr. Forrest identified Mr. Khamis as the man who robbed him. At the time Mr. Khamis was sitting in the prisoner’s dock, and was the only black man in the courtroom besides Mr. Forrest. Mr. Forrest also agreed in cross-examination that he had identified Mr. Khamis as his assailant at the preliminary inquiry, when Mr. Khamis was also in the prisoner’s box. [35] I accept that the complainant, Mr. Forrest was an honest witness. Indeed, the defence did not charge his honesty or credibility. Rather, as is often the case identification cases, the central issue is the reliability of his identification of Mr. Khamis as the perpetrator of the offences. # Evidence of investigation at the scene [36] Officer John Smissen gave evidence about the scene of the offences. Various photos of the location of Ryderz bar, and the surrounding locations were entered through Officer Smissen. In addition, he identified the locations where the bullets did damage (a van parked in the lot of a Tim Horton’s on the opposite side of the street from Ryderz bar, but further to the east, and a bus shelter on the same side of the street as Ryderz), and where bullet fragments were found (in the van). [37] An agreed statement of facts was filed summarizing the evidence about where the projectile fragments were found, and outlining the terms of a firearms prohibition order that Mr. Khamis was subject to on the date of the alleged offences. # The Photo line-up [38] Both Mr. Forrest and Officer Christopher Moorcroft testified about the line-up process. [39] The line-up was administered by Officer Moorcroft between 2:49 and 3:09 a.m. the same night as the robbery. Mr. Forrest testified that it was 45 minutes to one hour after he had left the scene (after he gave his statement to police). [40] The procedure by which the line-up was administered is not at issue, so I will focus on the manner in which the photo array was compiled, and the composition of the array. The line-up procedure was videotaped, and the video made an exhibit at trial. [41] Mr. Forrest picked the photo of Mr. Khamis out of the line-up as his assailant. In the line-up video, Mr. Forrest says it is “his mouth and his eyes” that made him pick out Mr. Khamis. In his trial evidence Mr. Forrest said that he picked out Mr. Khamis’ photo as his assailant because of his distinct eyes and nose, his buck tooth, and his hair. [42] In cross-examination, Mr. Forrest agreed that what stood out when he looked at Mr. Khamis’ picture in the photo line-up was his buck teeth (photo #11). He agreed that although photo #2 in the line-up also showed the teeth, and he would describe those teeth a buck teeth as well, none of the other ten photos in the line-up showed the teeth. [43] Mr. Forrest was also cross-examined about his estimate of the ages of various individuals in the photo line-up, and whether various individuals in the photo were darker skinned than he was. He agreed that five of the individuals in the photos were as dark or darker skinned than he was. He placed the ages of the individuals in the photos as nine photos being various ages in their 20s, and two photos as being in their 30s. He said photo #11, Mr. Khamis’ photo looked like he was in his late 30s. [44] Officer Moorcroft testified that he compiled the photo array alone. At the time he prepared it he had the following description of the suspect, provided to him by Officer Costelloe: * Male black; * Light skin – lighter than the victim; * 5’ 7” to 5’ 9” * Buck front teeth; * Yellow shirt; * Blue jeans; * Yellow baseball cap; * White sneakers. [45] Officer Moorcroft had also been given information that Mr. Khamis was a person of interest in the investigation, but had no information as to why. [46] Officer Moorcroft used a police software program to generate a line-up from the police database of mug shots and RICI photos. He had two photos of Mr. Khamis to begin with, and wanted to find 11 other photos of men that resembled Mr. Khamis’ likeness and also resembled the description given by Mr. Forrest. The photos of Mr. Khamis were from 2010 and 2012. Officer Moorcroft did not use the most recent photo, from 2012, because its background colour was different than the background colour of the photos of the other men in the array, and it would have stood out for that reason. For this reason, he used the 2010 photo of Mr. Khamis. [47] In using the software program to generate the array, Officer Moorcroft entered that he wanted photos of black males. This generated a very large number of photos, about 100. He then went through the photos manually to select 11 that, in his view, had a likeness to Mr. Khamis. He knew that Mr. Moorcroft had said the perpetrator had lighter skin than him. He said he had seen Mr. Forrest briefly at the scene. [48] Officer Moorcroft testified that he did not enter into the software program that he wanted black males with light skin and with buck teeth. The reason he did not do so is that the program will only output photos with specific characteristics if the booker of the person in the photo specified that characteristic when the photo was put into the system (for example, black with “light skin”, or “buck teeth”). In his experience, such specific queries do not work well in the software. For this reason, he put in more generic search terms (male black), and generated the larger number of photos, and selected manually from the larger group of photos. [49] In cross-examination, Officer Moorcroft agreed that the photo of Mr. Khamis that he used in the line-up had his mouth partially open, and that this fact made it a little more difficult to find photos that resembled the photo of Mr. Khamis. He said most people do not have their mouth open in a mug shot. He agreed that only two of the photos in the line-up had any of the teeth showing and had the mouth open (one of which was Mr. Khamis). He agreed that the most specific descriptor in the physical aspects of the description of the suspect he was given by Officer Costelloe was “buck teeth”. [50] When asked in cross-examination if one of the men in one of the line-up photos had lighter, darker, or the same skin tone as Mr. Forrest, Officer Moorcroft responded that he had not seen Mr. Forrest in years, so he could not say (and defence then did not pursue that line of questioning about any of the other photos – I presume because one would expect to get the same answer). # No other evidence [51] As I noted above, the Crown’s case relies entirely on the evidence of Mr. Forrest, and the line-up process conducted with him. There is no other evidence to connect Mr. Khamis to the robbery, such as being found near the scene of the offence close in time to the offence, or being found in possession of a stolen item or a weapon used in the offence, or fingerprint or DNA evidence. Such evidence is, of course, not required for a trier of fact to be persuaded that the charges have been proven beyond a reasonable doubt. A trier of fact may find that charges are proven beyond a reasonable doubt based on the evidence of a single identification witness, if the court is persuaded that the witness’ evidence, and the circumstances of the identification are sufficient to persuade the court beyond a reasonable doubt. However, given the well-known risks associated with identification evidence, the absence of other confirmatory evidence is a factor a court may weigh in assessing whether the identity of the defendant as the perpetrator of an offence has been proven beyond a reasonable doubt. # Assessment of the identification evidence [52] The prosecution argues that Mr. Forrest’s identification evidence is sufficiently reliable to prove the case beyond a reasonable doubt. Crown counsel acknowledges the need for a trier of fact to be cautious with identification evidence, and to consider the fairness of a photo line-up. The prosecution argues that Mr. Forrest’s identification is reliable, in particular because he gave a very specific and thoughtful description of the perpetrator, and he identified Mr. Khamis as the perpetrator very soon after the robbery had occurred. [53] Counsel for Mr. Khamis argues that the Crown had not proven identification beyond a reasonable doubt. He argues that the photo array used in the line-up was not fair, and was so unfair that the identification evidence based on the line-up should not be admitted in evidence. I will address the specific fairness issues alleged by the defence below. I should make clear that the defence was not suggesting that Officer Moorcroft intentionally or maliciously composed an unfair line-up. Rather, the defence argument is that reviewed objectively the line-up is not fair, in the context of this case. In the alternative, the defence argues that even if the identification evidence is admissible, it is not sufficiently reliable to prove the charges beyond a reasonable doubt. And there is no evidence beyond Mr. Forrest’s identification evidence to connect Mr. Khamis to the offences. [54] I caution myself with respect to a number of issues in relation to identification evidence, well-established in the case law. Identification evidence is evidence which the courts must exercise caution in relying on. Erroneous identifications have been the cause of many wrongful convictions. Honest identification witnesses can be mistaken. A witness who feels certain of the identification he or she is making can be mistaken. The level of a witness’ certainty about an identification does not increase reliability. As a result, in assessing identification evidence, a court must go beyond considering the honesty of a witness, and must also consider all the circumstances in which the identification was made, in order to assess whether the identification evidence is sufficiently reliable to prove the charge beyond a reasonable doubt: [R. v. Miaponoose (1996), 30 O.R. (3d) 419 at paras. 9-13 (ONCA)](https://www.canlii.org/en/on/onca/doc/1996/1996canlii1268/1996canlii1268.html); [R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445 at paras. 50-53](https://www.canlii.org/en/ca/scc/doc/2002/2002scc39/2002scc39.html). [55] Some of the factors a court may consider in assessing the reliability of identification evidence include: the witness’ opportunity to observe at the time of the alleged offence (duration of the observation, light conditions, whether there was a face covering, etc.); whether the witness has prior knowledge of the person being identified – although with the caveat that even a person who knows someone can make a mistake about identification; the time lapse between the event and the identification; the presence of distinctive features and the amount of detail in the description provided by the witness; the presence or absence of corroborative evidence; the possibility of contamination by improper identification procedures: [R. v. Miaponoose, supra at paras. 16-17](https://www.canlii.org/en/on/onca/doc/1996/1996canlii1268/1996canlii1268.html). This is not an exhaustive list. [56] It also is well-settled that an in court identification (in this case a dock identification) has little or no probative value standing alone: [R. v. Tat, supra at para. 36](https://www.canlii.org/en/on/onca/doc/1997/1997canlii2234/1997canlii2234.html); [R. v. Miaponoose, supra, at para. 35](https://www.canlii.org/en/on/onca/doc/1996/1996canlii1268/1996canlii1268.html). Rather, what I focus on in considering the reliability of Mr. Forrest’s identification of Mr. Khamis as the perpetrator of the robbery is the factors listed above that affect the reliability of the identification, as well as the out of court process used to make the identification, i.e., the photo-line-up process, both in terms of procedure used, and the fairness of the composition of the line-up photos: [R. v. Miaponoose, supra at paras. 16-17](https://www.canlii.org/en/on/onca/doc/1996/1996canlii1268/1996canlii1268.html); [R. v. Tat, supra at paras. 36-37](https://www.canlii.org/en/on/onca/doc/1997/1997canlii2234/1997canlii2234.html); R. v. Shermetta, [1995] N.S.J. No 195 at para. 20 (NSCA). [57] In this case, the defence does not challenge the procedure used to administer the line-up. Mr. Forrest was given the now standard caution at the outset about the perpetrator not necessarily being among the photos he would be shown. He was shown the photos sequentially, and each photo only once. The envelopes containing the photos were shuffled before they were shown to Mr. Forrest. There did not appear to be any leading in the actions of the officer who administered the photo line-up. In my view, the procedures by which the photo line-up was administered appear to have been generally [1] in accordance with the recommendations of the Sophonow inquiry. [58] What the defence challenges is the fairness of the photo array shown to Mr. Forrest. The defence argues that the array was not fair, in particular for three reasons. First, the defence argues that Mr. Forrest said in his description of the perpetrator that the perpetrator’s skin was lighter than Mr. Forrest’s. Mr. Forrest has relatively dark skin. A number of the photos in the line-up were of men with a skin colour the same as or darker than Mr. Forrest. The defence argues that these photos did not fit within the description given by Mr. Forrest to police, and thus effectively narrowed the number of photos to choose from. [59] Second, the defence argues that of the 12 photos, only two show the men’s mouths partially open, with some of their teeth showing. The remaining 10 photos are of men with their mouths closed. The photo of Mr. Khamis in the line-up is one of the two with a partially open mouth. The defence argues that in light of Mr. Forrest’s saying the perpetrator had a buck tooth, providing him with a photo line-up where only two photos showed the teeth, one of which was Mr. Khamis, was unfair. [60] Third, the defence argues that the line-up was not fair in relation to the apparent age of the men in the photos. Mr. Forrest had told police that the assailant was in his late 30s. At trial, when Mr. Forrest was cross-examined about the apparent age of each man in the line-up photos, for only three photos did he say the men looked to be in their 30s (photo #11, which was Mr. Khamis, and photos #1 and #6). [61] The defence argues that the line-up identification process was so flawed for these reasons that it should be excluded from evidence. [62] I have some concerns about the composition of the line-up as it affects the reliability and weight to be given to Mr. Forrest’s identification evidence. However, the standard to be met to exclude a line-up procedure from evidence is very high: [R. v. Miaponoose, supra at para. 33](https://www.canlii.org/en/on/onca/doc/1996/1996canlii1268/1996canlii1268.html). Given my ultimately conclusion that even if this line-up is admissible in evidence, I am not persuaded that the Crown’s case proves beyond a reasonable doubt that Mr. Khamis was the perpetrator, I prefer to address the flaws with the composition of the line-up as issues of weight and reliability, rather than issues of admissibility. I discuss my assessment of the evidence as a whole below. [63] Considering all of the circumstances of Mr. Forrest’s identification of Mr. Khamis as the perpetrator, I weigh a number of factors. [64] First, as noted above, although I find Mr. Forrest to be an honest witness, and he asserts that he is certain of his identification of Mr. Khamis as the perpetrator, an honest witness can be mistaken about an identification. A witness’ level of certainty of their identification of someone is not a good indicator of the reliability of their identification. [65] I find that overall Mr. Forrest did not have a long time to observe the perpetrator. It was not a case of a “fleeting glance”, but neither was it a particularly long time to observe. As I have outlined above, on the evidence before me, I find that during the robbery (and the brief conversation before), the opportunity to observe the assailant’s face would have been one or two minutes. The two subsequent interactions were 20-30 seconds, and 7-8 seconds respectively. And in the last of those interactions, Mr. Forrest was wrestling with the perpetrator, and said he was behind him at times. [66] The description that Mr. Forrest gave of the perpetrator in his statement to police on the night of the robbery, apart from the clothing, was relatively generic. Since Mr. Khamis was not found wearing or possessing any of the distinctive clothing, I focus on the physical descriptors given by Mr. Forrest to police. These were: * Male black; * Light skin – lighter than the victim; * 5’ 7” to 5’ 9”; * Buck front teeth; * Late 30s. [67] In my view, apart from the buck tooth, which I address below, this is a very generic description. [68] The only factor in Mr. Forrest’s description of the perpetrator which rises to a level of specificity is his evidence that the perpetrator had a buck tooth. In his evidence at trial, Mr. Forrest clarified that by “buck tooth”, he meant an overbite. In my view, although there is some level of specificity in the descriptor, it is not highly individualized. Many people in this city, including many black men, have some level of overbite. [69] As the Ontario Court of Appeal noted in [R. v. Smith (1952), 103 C.C.C. 58](https://www.canlii.org/en/on/onca/doc/1952/1952canlii116/1952canlii116.html), some distinguishing features of individuals are so pronounced that they speak to the unlikelihood of mistake by the identification witness, but some distinguishing features are more common, and thus of less assistance in assessing the reliability of an identification. In a given case, a particular characteristic of an assailant described by a witness may be very distinguishing, minimally distinguishing, or somewhere along a spectrum between the two. In my view, Mr. Forrest’s evidence and initial description that the perpetrator had a buck tooth is some level of specificity, but is not a highly distinguishing feature like a tattoo or a mole in a particular location. [70] I also have some concern about the more detailed description of his assailant that Mr. Forrest gave in his trial evidence, summarized above at paragraphs 24-26. I reiterate that I accept that Mr. Forrest is an honest witness. But I have concern about the reliability of the more detailed description he provided at trial, two-and-a-half years after the robbery, and after having seen Mr. Khamis’ photo in the photo line-up, and Mr. Khamis in person at the preliminary inquiry. [71] I also give some weight to two of the three concerns raised by the defence about the composition of the photo line-up. [72] First, I weigh the fact that of the 12 photos in the line-up, only two have any portion of their teeth showing (photos #2 and #11 – #11 being Mr. Khamis). In his description of the suspect provided to police, Mr. Forrest gave an identifying feature which involved the perpetrator’s teeth. In my view, when only two of the 12 photos are of men whose teeth are showing, one of whom is Mr. Khamis, it is a factor that detracts from the reliability of the line-up process and identification. It is not an overwhelming factor, but it is a factor I consider in assessing the reliability of the identification evidence. [73] I recognize that commonly line-up photos show people with their mouths closed, and the fact that Mr. Khamis’ photo had his mouth partially open posed some difficulty for officer Moorcroft in composing the line-up. That is the reality. But this aspect of the line-up still concerns me regarding the reliability of the identification it produced. I note that the relative importance of a factor such as whether the photos have open or closed mouths must be weighed in the context of all of the evidence in a case. In a case where there was some other evidence besides witness identification evidence to connect a suspect to an offence, a trier of fact may find that the factor of open or closed mouths in the line-up photos, in the context of all of the evidence, does not raise the same concern about reliability. However, that is not this case. As I have already noted, the only evidence connecting Mr. Khamis to the offence is Mr. Forrest’s identification evidence. It bears the full weight of proving the Crown’s case. [74] Second, I give some weight to the fact that of the 12 photos in the line-up, in my assessment, five of them have a skin colour that is as dark as or darker than Mr. Forrest’s skin. In light of the fact that Mr. Forrest told police in his initial description that the perpetrator had light skin, and in particular said that he had lighter skin than Mr. Forrest’s own skin, the fact that five of the men in the photos did not have lighter skin than Mr. Forrest, effectively cuts down the number of photos that fit within the description Mr. Forrest provided. The skin colour issue concerns me less than the fact that only two of the men in the photos had their teeth showing. I say this because skin colour is a somewhat more subjective factor than whether someone’s teeth are showing. But it is a factor that I weigh. [75] With respect to the third area where the defence argued that the composition of the line-up was unfair, apparent age of the men in the photos, I am not persuaded the apparent ages of the men in the photos in the line-up raises concerns about reliability of the identification. On my own review of the photo line-up, all of the men in it appear to be between the approximate ages of 25 and 35 years. Mr. Forrest told police that he believed the assailant to be in his late 30s. [76] Apparent age of a person is a relatively subjective and approximate descriptor. I also note that in composing the line-up, Officer Moorcroft had to work with two sets of factors to try to compose a fair line-up – the description given by Mr. Forrest, but also the appearance of Mr. Khamis in the photo of him that was to be included in the line-up. On my review, the photo of Mr. Khamis used in the line-up shows someone who looks younger than their late 30s. Again this is an admittedly subjective assessment. Overall, I am not persuaded there is a concern about reliability of the identification based on the apparent ages of the men in the photos which composed the line-up. [77] As I have noted above, the in-court dock identification of Mr. Khamis by Mr. Forrest is entitled to little or no weight. [78] As I have already noted, there was no other evidence to support Mr. Forrest’s evidence identifying Mr. Khamis as the perpetrator of the offences. Thus, Mr. Forrest’s identification evidence bears the full burden to prove the Crown’s case that Mr. Khamis was the perpetrator of the offences. [79] The reasonable doubt standard is a higher standard of proof than the civil standard of proof on a balance of probabilities. The reasonable doubt standard is a heavy burden. It is not sufficient to believe that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, as that would set an impossibly high standard. A reasonable doubt is a doubt based on reason and common sense, based on the evidence, or lack of evidence, in the record before the court: [R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 39](https://www.canlii.org/en/ca/scc/doc/1997/1997canlii319/1997canlii319.html). [80] Considering all of the evidence, I am not satisfied beyond a reasonable doubt that Mr. Khamis was the perpetrator of the offences. [81] I find Mr. Khamis not guilty of all counts. [82] I thank both counsel for their helpful and streamlined presentation of the case. --- Justice J. Copeland Released: May 14, 2019 --- **COURT FILE NO.:** CR-18-30000-233-0000 **DATE:** 20190514 **ONTARIO SUPERIOR COURT OF JUSTICE** **BETWEEN:** HER MAJESTY THE QUEEN – and – AD-HAM KHAMIS **REASONS FOR JUDGMENT** Justice J. Copeland Released: May 14, 2019 [1] I say “generally”, because contrary to the recommendations of the Sophonow inquiry report, the officer who administered the photo line-up, Officer Moorcroft, had some involvement in the investigation apart from the line-up, including making observations at the scene, ensuring statements were taken from witnesses, and canvassing for video. The best practice is to have an officer who is not involved in the investigation administer the line-up, as it avoids the possibility of unintentional signalling by the officer administering the line-up to the witness. However, in the circumstances of this case taken as a whole, I am satisfied that the procedure by which the line-up was administered was fair.

citation: "R v KHAMIS, 2019 ONSC 2846" parties: "Her Majesty the Queen v. Ad-Ham Khamis" party_moving: "Crown" party_responding: "Defendant" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "trial" date_judgement: "2019-05-14" date_heard: ["2019-04-02""2019-04-03""2019-04-04"] applicant:

"Her Majesty the Queen" applicant_counsel:
"Jerry Brienza" respondent:
"Ad-Ham Khamis" respondent_counsel:
"Sam Goldstein" judge:
"J. Copeland" summary: > The defendant, Ad-Ham Khamis, was charged with robbery, discharging a firearm, and possession of a firearm in breach of a prohibition order. The central issue at trial was the identity of the perpetrator, which relied solely on the complainant's identification evidence. The court found the complainant to be an honest witness but expressed concerns about the reliability of his identification due to limited observation time and flaws in the photo line-up composition, specifically regarding the depiction of teeth and skin tone. Absent corroborating evidence, the Crown failed to prove identity beyond a reasonable doubt, leading to an acquittal on all counts. interesting_citations_summary: > This judgment provides a detailed application of principles governing the assessment of identification evidence, emphasizing the need for caution, the distinction between witness honesty and reliability, and the factors affecting reliability (e.g., observation opportunity, distinctiveness of features, fairness of identification procedures). It highlights that a witness's certainty does not equate to reliability and that flaws in a photo line-up's composition, such as disproportionate representation of key descriptive features, can significantly detract from the weight of identification evidence, especially in the absence of corroboration. The decision reinforces the high standard of proof required for identity in criminal cases. final_judgement: "Ad-Ham Khamis was found not guilty of all counts." winning_degree_applicant: 5 winning_degree_respondent: 1 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 2846 file_number: "CR-18-30000-233-0000" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc2846/2019onsc2846.html" keywords:
Criminal Law
Identification Evidence
Photo Line-up
Reliability
Reasonable Doubt
Robbery
Firearm Offences
Acquittal
Sophonow Inquiry areas_of_law:
Criminal Law
Evidence cited_cases: legislation: [] case_law:
- title: "R. v. Tat" url: "https://www.canlii.org/en/on/onca/doc/1997/1997canlii2234/1997canlii2234.html"
- title: "R. v. Miaponoose" url: "https://www.canlii.org/en/on/onca/doc/1996/1996canlii1268/1996canlii1268.html"
- title: "R. v. Hibbert, 2002 SCC 39" url: "https://www.minicounsel.ca/scc/2002/39"
- title: "R. v. Shermetta, [1995] N.S.J. No 195 (NSCA)"
- title: "R. v. Smith (1952)" url: "https://www.canlii.org/en/on/onca/doc/1952/1952canlii116/1952canlii116.html"
- title: "R. v. Lifchus, 1997) was behind the man.

20Then another man who seemed to know the man who robbed Mr. Forrest came over. Mr. Forrest was worried he would hold him, so he pushed away the man who robbed him, and then ran across Kingston Road. Mr. Forrest then called 911. He then heard gun shots. He continued to run, and he fell and his phone fell out of his hand. When he was running, he had glanced back and saw the man was coming towards him. Mr. Forrest then saw a police car, and he flagged it down.

21Mr. Forrest testified that he looked at the assailant’s face during the robbery, when the man rode off on his bike, when the man was later talking to the bartender, and when they were wrestling.

22It was night when the incident occurred. Mr. Forrest testified that there were street lights in the area, and the visibility was clear. The defence did not make an issue of the lighting.

23Mr. Forrest testified that he has 20/20 vision, and does not wear glasses. Mr. Forrest testified that the assailant was not wearing any face covering. He was wearing a backwards baseball cap, which I will come to below in relation to the description of the perpetrator given by Mr. Forrest.

24In court, Mr. Forrest described the assailant as follows:

A black male whose skin was “lighter” than Mr. Forrest’s;
A little “thick” in build;
Short in build. He said the man was 5’ 5”, 5’ 6” or 5’ 7”, and was “way shorter” than him (Mr. Forrest said he is 6’ 2”);
With “a distinct buck tooth”;
Clear glasses which appeared to be prescription glasses;
A yellow polo shirt;
Wearing a yellow baseball cap turned backwards;
blue jeans;
White sneakers.

25Mr. Forrest also testified that the assailant was “Somali-looking”. When asked to explain what he meant by this, Mr. Forrest said, “like an Ethiopian kind of breed”, and said a straighter nose, and a more distinct face. He also said the assailant was, “a way lighter person” than he was. He also said in court that the man distinct eyes, which he described as “Chinese looking”.

26I note that Mr. Forrest’s description in his trial evidence of the assailant contains a number of specific details that were not included in the description of the assailant that he gave to police on the night of the robbery. I will return to this issue in my analysis.

27Mr. Forrest testified that he could tell the man’s hair was short, but because of the baseball hat he could not see most of his hair.

28Regarding his description that the person had a “buck tooth”, Mr. Forrest explained that he meant that the person needed braces to fix their teeth.

29Pursuant to the decision in R. v. Tat (1997), 35 O.R. (3d) 641 at paras. 31-39 (ONCA), I admitted evidence of the description that Mr. Forrest gave of his assailant in his initial statement to police. This statement was given in a police cruiser and recorded on video, as well as a description that he gave to Officer Costelloe either before or after the statement in the cruiser, but which it was agreed was given prior to the photo line-up being administered. The portion of the description in the statement to Officer Costelloe that was not recorded in the cruiser video came into evidence in hearsay form via Officer Moorcroft. However, counsel for both parties agreed that I could consider it for the truth of its contents, rather than require Officer Costelloe to attend and give evidence. It was also consistent with Mr. Forrest’s evidence that at some point he told the officer who took the statement in the cruiser (Officer Costelloe) that the assailant had a buck tooth, but he could not remember whether it was before or after the portion of the statement videotaped in the cruiser. These statements were taken soon after the robbery, before Mr. Forrest left the scene.

30In that statement (including the buck tooth portion not on the video), Mr. Forrest described his assailant as follows:

Male black;
Light skin – lighter than the victim;
5’ 7” tall;
Buck front teeth;
Glasses;
Yellow polo shirt;
Blue jeans;
Yellow baseball cap;
White sneakers;
Late 30s (age).

31In cross-examination, Mr. Forrest agreed with the suggestion that the police video interview in the cruiser started at 12:12 a.m., approximately 1 hour after the robbery. He agreed that his memory of the event was better then, closer in time to the event, than when he testified at trial. He agreed that he was trying to be truthful and accurate in the description he gave to police in the statement the night of the robbery.

32I note that in terms of the physical characteristics of the perpetrator (setting aside the clothing), the description that Mr. Firestone gave in his first statement is relatively generic, apart from the buck tooth descriptor, which has some specificity: male black; light skin – lighter than Mr. Forrest; 5’ 7” tall; buck front teeth; glasses; late 30s.

33There was evidence that while he was in the police cruiser being interviewed, Mr. Forrest identified a man on the street, not Mr. Khamis as the perpetrator. This was not covered in any detail in the evidence. Although normally the fact that a witness identified someone other than the defendant before the court as the perpetrator would be a factor to cause concern as to the reliability of the witness’ current identification of the defendant, counsel for Mr. Khamis said in submissions he was not raising it as an issue. It appears to have been the case that that identification was not based on the features of the man on the street, but just his location relative to the scene of the robbery.

34In court, Mr. Forrest identified Mr. Khamis as the man who robbed him. At the time Mr. Khamis was sitting in the prisoner’s dock, and was the only black man in the courtroom besides Mr. Forrest. Mr. Forrest also agreed in cross-examination that he had identified Mr. Khamis as his assailant at the preliminary inquiry, when Mr. Khamis was also in the prisoner’s box.

35I accept that the complainant, Mr. Forrest was an honest witness. Indeed, the defence did not charge his honesty or credibility. Rather, as is often the case identification cases, the central issue is the reliability of his identification of Mr. Khamis as the perpetrator of the offences.

Evidence of investigation at the scene

36Officer John Smissen gave evidence about the scene of the offences. Various photos of the location of Ryderz bar, and the surrounding locations were entered through Officer Smissen. In addition, he identified the locations where the bullets did damage (a van parked in the lot of a Tim Horton’s on the opposite side of the street from Ryderz bar, but further to the east, and a bus shelter on the same side of the street as Ryderz), and where bullet fragments were found (in the van).

37An agreed statement of facts was filed summarizing the evidence about where the projectile fragments were found, and outlining the terms of a firearms prohibition order that Mr. Khamis was subject to on the date of the alleged offences.

The Photo line-up

38Both Mr. Forrest and Officer Christopher Moorcroft testified about the line-up process.

39The line-up was administered by Officer Moorcroft between 2:49 and 3:09 a.m. the same night as the robbery. Mr. Forrest testified that it was 45 minutes to one hour after he had left the scene (after he gave his statement to police).

40The procedure by which the line-up was administered is not at issue, so I will focus on the manner in which the photo array was compiled, and the composition of the array. The line-up procedure was videotaped, and the video made an exhibit at trial.

41Mr. Forrest picked the photo of Mr. Khamis out of the line-up as his assailant. In the line-up video, Mr. Forrest says it is “his mouth and his eyes” that made him pick out Mr. Khamis. In his trial evidence Mr. Forrest said that he picked out Mr. Khamis’ photo as his assailant because of his distinct eyes and nose, his buck tooth, and his hair.

42In cross-examination, Mr. Forrest agreed that what stood out when he looked at Mr. Khamis’ picture in the photo line-up was his buck teeth (photo #11). He agreed that although photo #2 in the line-up also showed the teeth, and he would describe those teeth a buck teeth as well, none of the other ten photos in the line-up showed the teeth.

43Mr. Forrest was also cross-examined about his estimate of the ages of various individuals in the photo line-up, and whether various individuals in the photo were darker skinned than he was. He agreed that five of the individuals in the photos were as dark or darker skinned than he was. He placed the ages of the individuals in the photos as nine photos being various ages in their 20s, and two photos as being in their 30s. He said photo #11, Mr. Khamis’ photo looked like he was in his late 30s.

44Officer Moorcroft testified that he compiled the photo array alone. At the time he prepared it he had the following description of the suspect, provided to him by Officer Costelloe:

Male black;
Light skin – lighter than the victim;
5’ 7” to 5’ 9”
Buck front teeth;
Yellow shirt;
Blue jeans;
Yellow baseball cap;
White sneakers.

45Officer Moorcroft had also been given information that Mr. Khamis was a person of interest in the investigation, but had no information as to why.

46Officer Moorcroft used a police software program to generate a line-up from the police database of mug shots and RICI photos. He had two photos of Mr. Khamis to begin with, and wanted to find 11 other photos of men that resembled Mr. Khamis’ likeness and also resembled the description given by Mr. Forrest. The photos of Mr. Khamis were from 2010 and 2012. Officer Moorcroft did not use the most recent photo, from 2012, because its background colour was different than the background colour of the photos of the other men in the array, and it would have stood out for that reason. For this reason, he used the 2010 photo of Mr. Khamis.

47In using the software program to generate the array, Officer Moorcroft entered that he wanted photos of black males. This generated a very large number of photos, about 100. He then went through the photos manually to select 11 that, in his view, had a likeness to Mr. Khamis. He knew that Mr. Moorcroft had said the perpetrator had lighter skin than him. He said he had seen Mr. Forrest briefly at the scene.

48Officer Moorcroft testified that he did not enter into the software program that he wanted black males with light skin and with buck teeth. The reason he did not do so is that the program will only output photos with specific characteristics if the booker of the person in the photo specified that characteristic when the photo was put into the system (for example, black with “light skin”, or “buck teeth”). In his experience, such specific queries do not work well in the software. For this reason, he put in more generic search terms (male black), and generated the larger number of photos, and selected manually from the larger group of photos.

49In cross-examination, Officer Moorcroft agreed that the photo of Mr. Khamis that he used in the line-up had his mouth partially open, and that this fact made it a little more difficult to find photos that resembled the photo of Mr. Khamis. He said most people do not have their mouth open in a mug shot. He agreed that only two of the photos in the line-up had any of the teeth showing and had the mouth open (one of which was Mr. Khamis). He agreed that the most specific descriptor in the physical aspects of the description of the suspect he was given by Officer Costelloe was “buck teeth”.

50When asked in cross-examination if one of the men in one of the line-up photos had lighter, darker, or the same skin tone as Mr. Forrest, Officer Moorcroft responded that he had not seen Mr. Forrest in years, so he could not say (and defence then did not pursue that line of questioning about any of the other photos – I presume because one would expect to get the same answer).

No other evidence

51As I noted above, the Crown’s case relies entirely on the evidence of Mr. Forrest, and the line-up process conducted with him. There is no other evidence to connect Mr. Khamis to the robbery, such as being found near the scene of the offence close in time to the offence, or being found in possession of a stolen item or a weapon used in the offence, or fingerprint or DNA evidence. Such evidence is, of course, not required for a trier of fact to be persuaded that the charges have been proven beyond a reasonable doubt. A trier of fact may find that charges are proven beyond a reasonable doubt based on the evidence of a single identification witness, if the court is persuaded that the witness’ evidence, and the circumstances of the identification are sufficient to persuade the court beyond a reasonable doubt. However, given the well-known risks associated with identification evidence, the absence of other confirmatory evidence is a factor a court may weigh in assessing whether the identity of the defendant as the perpetrator of an offence has been proven beyond a reasonable doubt.

Assessment of the identification evidence

52The prosecution argues that Mr. Forrest’s identification evidence is sufficiently reliable to prove the case beyond a reasonable doubt. Crown counsel acknowledges the need for a trier of fact to be cautious with identification evidence, and to consider the fairness of a photo line-up. The prosecution argues that Mr. Forrest’s identification is reliable, in particular because he gave a very specific and thoughtful description of the perpetrator, and he identified Mr. Khamis as the perpetrator very soon after the robbery had occurred.

53Counsel for Mr. Khamis argues that the Crown had not proven identification beyond a reasonable doubt. He argues that the photo array used in the line-up was not fair, and was so unfair that the identification evidence based on the line-up should not be admitted in evidence. I will address the specific fairness issues alleged by the defence below. I should make clear that the defence was not suggesting that Officer Moorcroft intentionally or maliciously composed an unfair line-up. Rather, the defence argument is that reviewed objectively the line-up is not fair, in the context of this case. In the alternative, the defence argues that even if the identification evidence is admissible, it is not sufficiently reliable to prove the charges beyond a reasonable doubt. And there is no evidence beyond Mr. Forrest’s identification evidence to connect Mr. Khamis to the offences.

54I caution myself with respect to a number of issues in relation to identification evidence, well-established in the case law. Identification evidence is evidence which the courts must exercise caution in relying on. Erroneous identifications have been the cause of many wrongful convictions. Honest identification witnesses can be mistaken. A witness who feels certain of the identification he or she is making can be mistaken. The level of a witness’ certainty about an identification does not increase reliability. As a result, in assessing identification evidence, a court must go beyond considering the honesty of a witness, and must also consider all the circumstances in which the identification was made, in order to assess whether the identification evidence is sufficiently reliable to prove the charge beyond a reasonable doubt: R. v. Miaponoose (1996), 30 O.R. (3d) 419 at paras. 9-13 (ONCA); R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445 at paras. 50-53.

55Some of the factors a court may consider in assessing the reliability of identification evidence include: the witness’ opportunity to observe at the time of the alleged offence (duration of the observation, light conditions, whether there was a face covering, etc.); whether the witness has prior knowledge of the person being identified – although with the caveat that even a person who knows someone can make a mistake about identification; the time lapse between the event and the identification; the presence of distinctive features and the amount of detail in the description provided by the witness; the presence or absence of corroborative evidence; the possibility of contamination by improper identification procedures: R. v. Miaponoose, supra at paras. 16-17. This is not an exhaustive list.

56It also is well-settled that an in court identification (in this case a dock identification) has little or no probative value standing alone: R. v. Tat, supra at para. 36; R. v. Miaponoose, supra, at para. 35. Rather, what I focus on in considering the reliability of Mr. Forrest’s identification of Mr. Khamis as the perpetrator of the robbery is the factors listed above that affect the reliability of the identification, as well as the out of court process used to make the identification, i.e., the photo-line-up process, both in terms of procedure used, and the fairness of the composition of the line-up photos: R. v. Miaponoose, supra at paras. 16-17; R. v. Tat, supra at paras. 36-37; R. v. Shermetta, [1995] N.S.J. No 195 at para. 20 (NSCA).

57In this case, the defence does not challenge the procedure used to administer the line-up. Mr. Forrest was given the now standard caution at the outset about the perpetrator not necessarily being among the photos he would be shown. He was shown the photos sequentially, and each photo only once. The envelopes containing the photos were shuffled before they were shown to Mr. Forrest. There did not appear to be any leading in the actions of the officer who administered the photo line-up. In my view, the procedures by which the photo line-up was administered appear to have been generally [1] in accordance with the recommendations of the Sophonow inquiry.

58What the defence challenges is the fairness of the photo array shown to Mr. Forrest. The defence argues that the array was not fair, in particular for three reasons. First, the defence argues that Mr. Forrest said in his description of the perpetrator that the perpetrator’s skin was lighter than Mr. Forrest’s. Mr. Forrest has relatively dark skin. A number of the photos in the line-up were of men with a skin colour the same as or darker than Mr. Forrest. The defence argues that these photos did not fit within the description given by Mr. Forrest to police, and thus effectively narrowed the number of photos to choose from.

59Second, the defence argues that of the 12 photos, only two show the men’s mouths partially open, with some of their teeth showing. The remaining 10 photos are of men with their mouths closed. The photo of Mr. Khamis in the line-up is one of the two with a partially open mouth. The defence argues that in light of Mr. Forrest’s saying the perpetrator had a buck tooth, providing him with a photo line-up where only two photos showed the teeth, one of which was Mr. Khamis, was unfair.

60Third, the defence argues that the line-up was not fair in relation to the apparent age of the men in the photos. Mr. Forrest had told police that the assailant was in his late 30s. At trial, when Mr. Forrest was cross-examined about the apparent age of each man in the line-up photos, for only three photos did he say the men looked to be in their 30s (photo #11, which was Mr. Khamis, and photos #1 and #6).

61The defence argues that the line-up identification process was so flawed for these reasons that it should be excluded from evidence.

62I have some concerns about the composition of the line-up as it affects the reliability and weight to be given to Mr. Forrest’s identification evidence. However, the standard to be met to exclude a line-up procedure from evidence is very high: R. v. Miaponoose, supra at para. 33. Given my ultimately conclusion that even if this line-up is admissible in evidence, I am not persuaded that the Crown’s case proves beyond a reasonable doubt that Mr. Khamis was the perpetrator, I prefer to address the flaws with the composition of the line-up as issues of weight and reliability, rather than issues of admissibility. I discuss my assessment of the evidence as a whole below.

63Considering all of the circumstances of Mr. Forrest’s identification of Mr. Khamis as the perpetrator, I weigh a number of factors.

64First, as noted above, although I find Mr. Forrest to be an honest witness, and he asserts that he is certain of his identification of Mr. Khamis as the perpetrator, an honest witness can be mistaken about an identification. A witness’ level of certainty of their identification of someone is not a good indicator of the reliability of their identification.

65I find that overall Mr. Forrest did not have a long time to observe the perpetrator. It was not a case of a “fleeting glance”, but neither was it a particularly long time to observe. As I have outlined above, on the evidence before me, I find that during the robbery (and the brief conversation before), the opportunity to observe the assailant’s face would have been one or two minutes. The two subsequent interactions were 20-30 seconds, and 7-8 seconds respectively. And in the last of those interactions, Mr. Forrest was wrestling with the perpetrator, and said he was behind him at times.

66The description that Mr. Forrest gave of the perpetrator in his statement to police on the night of the robbery, apart from the clothing, was relatively generic. Since Mr. Khamis was not found wearing or possessing any of the distinctive clothing, I focus on the physical descriptors given by Mr. Forrest to police. These were:

Male black;
Light skin – lighter than the victim;
5’ 7” to 5’ 9”;
Buck front teeth;
Late 30s.

67In my view, apart from the buck tooth, which I address below, this is a very generic description.

68The only factor in Mr. Forrest’s description of the perpetrator which rises to a level of specificity is his evidence that the perpetrator had a buck tooth. In his evidence at trial, Mr. Forrest clarified that by “buck tooth”, he meant an overbite. In my view, although there is some level of specificity in the descriptor, it is not highly individualized. Many people in this city, including many black men, have some level of overbite.

69As the Ontario Court of Appeal noted in R. v. Smith (1952), 103 C.C.C. 58, some distinguishing features of individuals are so pronounced that they speak to the unlikelihood of mistake by the identification witness, but some distinguishing features are more common, and thus of less assistance in assessing the reliability of an identification. In a given case, a particular characteristic of an assailant described by a witness may be very distinguishing, minimally distinguishing, or somewhere along a spectrum between the two. In my view, Mr. Forrest’s evidence and initial description that the perpetrator had a buck tooth is some level of specificity, but is not a highly distinguishing feature like a tattoo or a mole in a particular location.

70I also have some concern about the more detailed description of his assailant that Mr. Forrest gave in his trial evidence, summarized above at paragraphs 24-26. I reiterate that I accept that Mr. Forrest is an honest witness. But I have concern about the reliability of the more detailed description he provided at trial, two-and-a-half years after the robbery, and after having seen Mr. Khamis’ photo in the photo line-up, and Mr. Khamis in person at the preliminary inquiry.

71I also give some weight to two of the three concerns raised by the defence about the composition of the photo line-up.

72First, I weigh the fact that of the 12 photos in the line-up, only two have any portion of their teeth showing (photos #2 and #11 – #11 being Mr. Khamis). In his description of the suspect provided to police, Mr. Forrest gave an identifying feature which involved the perpetrator’s teeth. In my view, when only two of the 12 photos are of men whose teeth are showing, one of whom is Mr. Khamis, it is a factor that detracts from the reliability of the line-up process and identification. It is not an overwhelming factor, but it is a factor I consider in assessing the reliability of the identification evidence.

73I recognize that commonly line-up photos show people with their mouths closed, and the fact that Mr. Khamis’ photo had his mouth partially open posed some difficulty for officer Moorcroft in composing the line-up. That is the reality. But this aspect of the line-up still concerns me regarding the reliability of the identification it produced. I note that the relative importance of a factor such as whether the photos have open or closed mouths must be weighed in the context of all of the evidence in a case. In a case where there was some other evidence besides witness identification evidence to connect a suspect to an offence, a trier of fact may find that the factor of open or closed mouths in the line-up photos, in the context of all of the evidence, does not raise the same concern about reliability. However, that is not this case. As I have already noted, the only evidence connecting Mr. Khamis to the offence is Mr. Forrest’s identification evidence. It bears the full weight of proving the Crown’s case.

74Second, I give some weight to the fact that of the 12 photos in the line-up, in my assessment, five of them have a skin colour that is as dark as or darker than Mr. Forrest’s skin. In light of the fact that Mr. Forrest told police in his initial description that the perpetrator had light skin, and in particular said that he had lighter skin than Mr. Forrest’s own skin, the fact that five of the men in the photos did not have lighter skin than Mr. Forrest, effectively cuts down the number of photos that fit within the description Mr. Forrest provided. The skin colour issue concerns me less than the fact that only two of the men in the photos had their teeth showing. I say this because skin colour is a somewhat more subjective factor than whether someone’s teeth are showing. But it is a factor that I weigh.

75With respect to the third area where the defence argued that the composition of the line-up was unfair, apparent age of the men in the photos, I am not persuaded the apparent ages of the men in the photos in the line-up raises concerns about reliability of the identification. On my own review of the photo line-up, all of the men in it appear to be between the approximate ages of 25 and 35 years. Mr. Forrest told police that he believed the assailant to be in his late 30s.

76Apparent age of a person is a relatively subjective and approximate descriptor. I also note that in composing the line-up, Officer Moorcroft had to work with two sets of factors to try to compose a fair line-up – the description given by Mr. Forrest, but also the appearance of Mr. Khamis in the photo of him that was to be included in the line-up. On my review, the photo of Mr. Khamis used in the line-up shows someone who looks younger than their late 30s. Again this is an admittedly subjective assessment. Overall, I am not persuaded there is a concern about reliability of the identification based on the apparent ages of the men in the photos which composed the line-up.

77As I have noted above, the in-court dock identification of Mr. Khamis by Mr. Forrest is entitled to little or no weight.

78As I have already noted, there was no other evidence to support Mr. Forrest’s evidence identifying Mr. Khamis as the perpetrator of the offences. Thus, Mr. Forrest’s identification evidence bears the full burden to prove the Crown’s case that Mr. Khamis was the perpetrator of the offences.

79The reasonable doubt standard is a higher standard of proof than the civil standard of proof on a balance of probabilities. The reasonable doubt standard is a heavy burden. It is not sufficient to believe that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, as that would set an impossibly high standard. A reasonable doubt is a doubt based on reason and common sense, based on the evidence, or lack of evidence, in the record before the court: [R. v. Lifchus, [1997] 3 S.C.R. 320, 1997).

80Considering all of the evidence, I am not satisfied beyond a reasonable doubt that Mr. Khamis was the perpetrator of the offences.

81I find Mr. Khamis not guilty of all counts.

82I thank both counsel for their helpful and streamlined presentation of the case.

Justice J. Copeland Released: May 14, 2019

COURT FILE NO.: CR-18-30000-233-0000 DATE: 20190514 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – AD-HAM KHAMIS

REASONS FOR JUDGMENT Justice J. Copeland Released: May 14, 2019

1I say “generally”, because contrary to the recommendations of the Sophonow inquiry report, the officer who administered the photo line-up, Officer Moorcroft, had some involvement in the investigation apart from the line-up, including making observations at the scene, ensuring statements were taken from witnesses, and canvassing for video. The best practice is to have an officer who is not involved in the investigation administer the line-up, as it avoids the possibility of unintentional signalling by the officer administering the line-up to the witness. However, in the circumstances of this case taken as a whole, I am satisfied that the procedure by which the line-up was administered was fair.

R v KHAMIS, 2019 ONSC 2846

Case Summary

Evidence of investigation at the scene

The Photo line-up

No other evidence

Assessment of the identification evidence

Cited By (2 cases)

R. v. Munda, 2025 ONSC 2942

R. v. Ali, 2024 ONCJ 320