New & Notable: Identification case

Identification cases are some of the most contentious criminal prosecutions; this is especially so where the identification includes an eye-witness identification.  Cases such as R v Tebo, 2003 CanlII 43106 (Ont CA) and R v Holmes, 2002 CanLII 45114 (Ont CA) are examples of cases overturned due to concerns about the frailties and dangers of convictions based on such evidence.  

While these cases offer helpful insight into the dangers and limits on eye-witness identification ever case is unique and their ratios are sometimes misunderstood or misapplied.  The recent ruling in R v Manley, 2011 ONCA 128 is illustrative.

On November 11, 2006 a music store in Trenton was robbed by a man with a shotgun.  At the time of the time of the robbery there was present the owner, a salesperson and a customer.  The owner and salesperson gave descriptions of the robber.  The salesperson and customer were unable to pick Manley out of a lineup.  The owner did not view a lineup.

At trial the salesperson and customer testified that Manley had "very similar" features to the robber [para 9].  The owner, who had not been shown a lineup, testified at trial that he had recognized the robber during the preliminary hearing:

Yes.  Um, when I was at the…the last time I was in court we had, um…–you were asking questions similar to what we are now.  Um, but at that time I was asked, “Can you identify him”, and I was the distance away I am now, from behind you.  And at that point I was unable to see the features that I had recognized at the robbery.  But on going out of that courtroom, I was as close to him as the jurors are to each other, as I walked past him, and then I recognized him [para 7]. 

With respect to evidence of the salesperson the trial judge offered the jury the following: 

That’s not identification beyond a reasonable doubt for sure, but is that, when taken with all of the evidence, sufficient for you to come to a conclusion as to whether the accused was or was not the perpetrator? [para 18].

 With respect to the evidence of the owner the trial judge offered the jury the following:

[Y]ou heard her explanation about why she didn't identify him during the preliminary inquiry but did later. How reliable is that identification? Even if she's telling the truth, is it reliable? How much does that tip the scales either way in your deliberating as to whether identity has been proven beyond a reasonable doubt? [para 19].

Manley was convicted and appealed.  On appeal Manley complained about the charge to the jury on the identification evidence; relying on Tebo and R v Hibbert, 2002 SCC 39, he argued that the charge should have instructed the jury that the evidence was of worthy of virtually no weight. 

In rejecting that ground of appeal the Court of Appeal offered the following:  

In my view, it would have been preferable had the trial judge given a stronger warning about the nature and weakness of the in-dock identification evidence...However, I am not able to say that, in the circumstances of this case and reading the charge as a whole, the manner in which the trial judge instructed the jury on this issue amounted to an error of law.

Here, the in-dock identifications – if indeed they amounted to in-dock identifications – were qualified...  

The trial judge did warn the jury in general terms about the dangers of eyewitness and in-dock identification evidence, and I am not persuaded that the shortcoming in his instruction that I have identified amounted to a reversible error of law in the circumstances of this case.

I am satisfied that the jury would have appreciated from the manner in which the case was presented by the Crown and from what they were told by the trial judge that, standing on its own, the identification evidence was weak, and that it had to be assessed on the basis that it amounted to no more than one small piece of a much larger puzzle [paras 21 and 23-25].

DG Mack

Comment: There is life in Mars, but just not as much as some suggest

What do a roll of duct tape and a pizza box have in common?  Apparently they are both good sources for the discovery of fingerprints.  However, the discovery of a fingerprint on them likely wont give rise to the same inferences a recent Ontario Court of Appeal has held.

Thomas Wong and Paulo Stein broke into a home and confined the occupants.  At trial the only issue was identification.  They were convicted.  Their appeal was recently dismissed: R v Wong, 2011 ONCA 815.

On appeal they argued that their convictions should be overturned.  The central piece of evidence against them was the discovery of Stein's fingerprint on the inside of a duct tape roll used to bind the victim and Wong's DNA on a construction mask matching the description of the one worn by one of the assailants.  The appellants argued that this was not sufficient to justify a conviction.  In support they relied upon R v Mars, 2006 CarswellOnt 722 (CA).

In dismissing their appeals the Court of Appeal offered the following explanation and distinction of Mars:

The other evidence, which he reviewed carefully, included the fact that the descriptions of the perpetrators generally conformed to the appearance of the appellants; the mask containing Wong’s DNA matched the description of the mask worn by the Chinese perpetrator; and considered the pristine condition of the mask and where it was found in relation to the position of the back door and yard gate. He also considered where the duct tape was found and where the fingerprint was located in the context of all the evidence about the duct tape and strands of duct tape.

The facts of this case are quite different to those in Mars. There is a great difference between a construction mask and the inside cardboard of a roll of duct on one hand and a pizza box on the other. Several people sharing a pizza may leave their prints on the pizza box, before two of them use it in a home invasion. The circumstances in which Wong's DNA could come to be innocently deposited on the inside of the pristine construction mask or Stein's fingerprint could be impressed on the inside of a roll of duct tape used in the crime, in our view, are in the realm of speculation rather than reasonable inference.

In addition, it is significant in Mars that the force of the fingerprint evidence was diminished by exculpatory identification evidence. Here, we do not accept that the descriptions of the perpetrators were exculpatory. In our view, the trial judge's finding of fact that the victims' descriptions of the perpetrators generally conformed with the appearance of the appellants was supported by the evidence [paras 4-6].

This explanation and distinction of Mars is an important one; especially coming from the very court that rendered the decision.  Mars is a case which is often cited in support of this type of argument.  In O'Brien, for example, it was cited on appeal as support for the argument that DNA found on a mask used in a robbery could not support a conviction.  That argument was rejected on appeal: 2010 NSCA 61; aff'd on other grounds 2011 SCC 29. 

Similarly in Samuels, Mars was cited on appeal to support the argument that a "palm print and fingerprint on the lower driver's side corner of the front windshield of the car parked two houses away" was helpful in supporting a conviction for, inter alia, robbery and aggravated assault.  That argument was also rejected on appeal: 2009 ONCA 719.  The following conclusion in that regard is instructive:

However, unlike Mars, there is other evidence capable of permitting a reasonable inference that the palm print and fingerprint on the windshield were placed there when one of the invaders fled the scene:

(a)              The evidence of Mr. Barreira that the last man out of the house ran down the street and leapt over the front of the car;

(b)            The evidence of Mr. Barreira that the man grabbed the car as he jumped over it;

(c)            The palm print and fingerprint faced a direction that was consistent with Mr. Barreira’s description of the invader’s flight path.  The opinion of the expert witness that the impressions exhibited movement from the driver’s side toward the passenger’s side of the car is also consistent with the description of the flight path;

(d)            The footprint in the mud approaching the car, the fresh dent and the mud on the car are consistent with Mr. Barreira’s description of the flight; and

(e)            The evidence of the owner of the car that it was undamaged before he went to bed on the night of the home invasion.

Mars is a helpful and important decision which reminds us about the limits of fingerprint and DNA evidence in establishing identification.  However, the attempt to rely upon Mars in cases like Samuels, O'Brien and Wong are misplaced; they ignore the fact that the reasonableness of a verdict will depend upon the the particular facts of a given case and must be assessed in light of all the facts.  The caution offered by Doherty JA in Mars is an apt conclusion to this comment:

As reasonableness is ultimately a fact-based determination, prior decisions, even those made in similar cases, cannot have binding authority [para 5].

DG Mack

New & Notable: Voluntariness and Right to Counsel

Robert Reeves stabbed his father. His mother fled the house and called police. Reeves stayed in the house with his father. Shortly thereafter police arrived. Sgt Wadelius - who had been trained in hostage/crisis negotiations began to call the residence attempting to make contact with Reeves. On the third call Reeves answered.

At the time of the third call the police did not know (1) Reeve's mental and physical state; (2) if the victim was alive or the extent of his injuries; and (3) what other weapons may be in the house.

Very shortly into the conversation Sgt Wadelius elicited from Reeves that "...Reeves believed that Brian Baker [his father] was dead" [para 6]. Reeves continued to provide more information to Sgt Waledius.

At trial the Crown indicated its intention to rely upon the statement of Reeves during this conversation. The defence sought to bar the Crown from doing so as the statement was not voluntary and was obtained in violation of section 10(b).

Koenigsberg J ruled on the application: 2011 BCSC 1513.

With respect to voluntariness, the court first considered the argument that the record was not complete. While most of the conversation was recorded, the first few minutes were not. The court noted, however, that concerns flowing from this were attenuated by the following facts: (i) Sgt Wadelius repeated back what Reeves was saying; and (ii) Sgt Wadelius took notes. Koenigsberg J also considered the argument that Reeves did not have an operating mind and concluded:

(…) a careful review of the whole of the statement which took place over an hour and a half must be undertaken. A review of the content of the whole call indicates that Mr. Reeves was oriented in time and place and relationships. He knew he was talking to an RCMP officer. Mr. Reeves appeared to be intelligent and very self-absorbed. He also appeared to suffer from paranoid-type delusions. He seemed to be possessed of a number of delusions or delusional explanations for various and severe aches and pains involving burning sensations in his feet and other parts of his body, severe headaches, arthritis and gastrointestinal problems. He had grievances against the government and some minor ones against his step-father who he had allegedly stabbed to death. I find he did say the words -- I killed Brian -- within a minute or two of the beginning of the telephone communications. However, unlike either Whittle or Partridge, his delusional thinking had no causal relation to either why he may have killed his step-father, nor why he was speaking openly to the police officer [para 23]; [emphasis added].

Koenigsberg J concluded that the statement was voluntary.

With respect to the Charter issue, found that there had been a violation of section 10(b) at the point when Reeves would have felt psychologically restrained [para 56]. Despite the violation, however, Koenigsberg J held that the statement could be admitted under section 24(2):

The Crown had a very strong case both circumstantial and direct evidence pointing to Mr. Reeves as the person who stabbed Brian Baker. On the other hand, as set out in the courts analysis of the "Operating Mind" issue on this voir dire, on balance, both the initial relatively calm and rational incriminating expressions of Mr. Reeves that he killed Brian coupled with his many statements indicating he was not in the grip of delusions nor fear of the police, militate in favor of the reliability of the statement.

In addition, there is one other factor this Court considers particularly in looking at the "truth seeking" goal of a criminal trial, this statement, given Mr. Reeves "memory loss" is the only evidence of his state of mind at the time of the stabbing and shortly after.

This evidence was of some importance in relation to such issues as "intent" and whether Mr. Reeves was "criminally responsible" for this act.

Thus, the circumstances dictating that Mr. Reeves should not be given his Charter rights and warning during the negotiation to get him out of the house were not of the police making. Further, Sgt. Wadelius' conduct in how he spoke and what he said to Mr. Reeves remained non-manipulative and fair.

The reliability of the statement is unaffected by police conduct, and its importance in any evaluation of central issues in the trial, all taken together create that unusual set of circumstances where the presumption of inadmissibility of a statement taken in breach of s. 10(b) rights is overborn [paras 76-81].

DG Mack