COURT FILE NO.: CR-18-50000107
DATE: 20190604
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SHAKIYL SHAW, LENNEIL SHAW, AND MOHAMED ALI-NUR
Applicants
David Tice and Michael Coristine, for the Crown
Margaret Bojanowska, for the Defendant Mohamed Ali-Nur
HEARD: April 26, 2019
Application # 7
Re: In-dock Identification of Mohamed Ali-Nur
Reasons for Decision
clark J.
Introduction
[1] On October 16, 2016, at approximately 1:40 a.m., Jarryl Hagley was shot to death in a Pizza Pizza restaurant on Weston Rd. near Lawrence Ave., in Toronto.
[2] On January 5, 2017, Shakiyl Shaw was arrested in relation to the homicide; his twin brother, Lenneil Shaw, and Mohamed Ali-Nur, were arrested the next day. All were charged with first degree murder and are now on trial before this court sitting with a jury.
[3] The principal witness for the Crown is one Winston Poyser, who, it is not disputed, was present at the scene of the homicide. Poyser turned himself in to police on December 28, 2016, and was charged with first degree murder. Poyser gave several statements, in the course of which he identified Lenneil Shaw and Mohamed Ali-Nur as the shooters and Shakiyl Shaw as the getaway driver. As for his own role, Poyser said he did not know that the men intended to shoot anyone. On June 27, 2018, Poyser resolved his murder charge by pleading guilty to the offence of being an accessory after the fact to murder.
[4] By this application, Mohamed Ali-Nur sought to preclude the Crown from asking Poyser to identify Ali-Nur in the dock. On April 26, 2019, in a brief oral ruling, I refused the relief sought, indicating that I would give reasons as soon as time permitted; these are those reasons.
Position of the Applicant
[5] Ms. Bojanowska contends that, since: (i) Poyser had never met Ali-Nur before October 15, 2016, (ii) he acknowledges having been drunk and high on drugs throughout the time he was together with the man he now says is Ali-Nur; and (iii) his identification of Ali-Nur in his police interview was irremediably tainted by the flawed manner in which a photograph of her client was presented to Poyser; his identification has trifling, if any, probative value and is dangerously prejudicial.
Position of the Respondent
[6] On behalf of the respondent, Mr. Tice contends that the Poyser and the man Poyser now says is Ali-Nur were, on Poyser’s evidence, together for many hours, and that, for at least an hour of that time, they were in close physical proximity to one another in broad daylight, such that this is a case of recognition not one of eye witness identification. Accordingly, it is not inappropriate, Mr. Tice argues, to ask Poyser to identify Ali-Nur in the dock.
Discussion
[7] To begin, I acknowledge that “[g]iven the suggestive nature of in-dock identifications, they are renowned for being of little to no value as reliable identification evidence (citations omitted)”: R. v. Biddle, 2018 ONCA 520, at para. 32. Despite their frailties, however, in-dock identifications are prima facie admissible: R. v. Hibbert, 2002 SCC 39; see also R. v. Ranger, 2011 ONCA 311. “All the concerns about changes of position by the witnesses, contradictory evidence, conflicting out of court identifications, and witness tainting [are] matters properly left for the jury”: R. v. Wang (2001), 2001 20933 (ON CA), 153 C.C.C. (3d) 321 (Ont. C.A.), at para. 33, citing R. v. Buric (1996), 1996 1525 (ON CA), 106 C.C.C. (3d) 97 (Ont. C.A.), at 112, aff'd 1997 380 (SCC), [1997] 1 S.C.R. 535.
[8] R. v. Frimpong, 2013 ONCA 243, is a case somewhat similar to the case at bar in that the eye witness was consuming drugs at the time of his encounter with the person he contended at trial was the accused and there were complications with the identification procedures the police employed. Despite these difficulties, Doherty J.A., speaking for the court, held that the trial judge did not err in admitting the witness’ identification because his evidence “could be fully tested by the defence…, the alleged weaknesses were fully exposed for the jury's consideration [and] nothing peculiar or unique about [the witness’] evidence… would impair the jury's ability to fairly assess its credibility and reliability”: at paras. 19-20. In my view, the same is true in this case.
[9] I am, of course, alive to the discretion the court has to exclude evidence where its probative value is outweighed by its potential prejudicial effect: R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577. But, in terms of potential prejudice, I would note Watt J.A.’s observation in R v Luciano, 2011 ONCA 89 at para. 232, that “[t]he term ‘prejudice’ does not refer to the risk of conviction, rather [it] has to do with the risk of an unfocussed trial and a wrongful conviction through an impermissible chain of reasoning…”
[10] In relation, specifically, to in-dock identification and its potential for prejudice, I adopt the following statement by Ross J. in R. v. Dhillon, 2018 ABQB 382, at para. 22:
In-dock identification of a stranger is inherently frail evidence, but if it is probative of a matter in issue, it is presumptively admissible. The fact that this evidence may support conviction does not make it prejudicial. Factors that contribute to unreliability of the evidence are subject to cross-examination and properly taken into account when the trier of fact considers how much weight, if any, to put on the evidence. Generally speaking, these factors do not demonstrate a prejudicial effect that outweighs the probative effect of the evidence.
[11] As the authorities make plain, the dangers of eye witness identification can be overcome by full cross-examination and a strong caution to the jury by the trial judge about those dangers: Biddle, at para. 49. Speaking generally, then, provided that the jury is properly warned about the tenuous value of in-dock identification, and warned about any frailties attending the identification of the accused by the eye witness, it seems to me not inappropriate to have an eyewitness identify the accused in court for the reason that, absent such an identification, the jury may wonder why the witness did not point out the person the witness says is responsible for the crime the witness, is describing: Hibbert, at para. 49.
Result
[12] In the result, for the foregoing reasons, I held that Poyser’s in-dock identification of Ali-Nur was admissible.
Clark J.
Released: June 4, 2019
COURT FILE NO.: CR-18-50000107
DATE: 20190604
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SHAKIYL SHAW, LENNEIL SHAW, AND MOHAMED ALI-NUR
Applicants
REASONS FOR DECISION
CLARK J.
Released: June 4, 2019