COURT OF QUEEN S BENCH OF MANITOBA

Transcription

1 Date: Docket: CR (Winnipeg Centre) Indexed as: R. v. Sutherland Cited as: 2018 MBQB 195 COURT OF QUEEN S BENCH OF MANITOBA BETWEEN: ) APPEARANCES: ) HER MAJESTY THE QUEEN ) Jacqueline E. Briard ) for the Crown ) - and - ) Zachary B. Kinahan ) for the Accused ) DANIEL STEPHEN JOHN SUTHERLAND ) ) Judgment delivered: Accused ) December 13, 2018 SPIVAK J. [1] The accused is charged with a robbery that occurred at the Noventis Credit Union in Starbuck, Manitoba, on October 24, The issue in this case is whether the Crown has proved beyond a reasonable doubt that the accused committed the robbery. Background [2] The robbery occurred around 10:45 in the morning. It is captured on the Credit Union s video surveillance and shows an individual wearing a hoodie and a camouflage jacket approach a teller. That teller was Sylvia Smith.

2 Page: 2 [3] Ms Smith testified that a man approached her wicket and requested a pen. She directed him to the counter, where he appeared to write on a piece of paper. He reached over the counter and put a note on the desk in front of her. The note had words to the effect of give me 100s and 50s, no dye pack. Ms Smith felt shock and fear. She just wanted to give the robber the money so he would leave the Credit Union. While she was accessing the cash machine, the robber told her to hurry up. She withdrew the limit from the cash machine $3,500 and gave it to the robber, who then walked out the door. The police were called and arrived at the Credit Union shortly thereafter. Ms Smith was unable to tell the police anything in particular about the robber s face as she did not really want to look at him. [4] Nancy Langlois was a teller at the Credit Union who was also working that day. She was serving another customer nearby when she observed the robber approach. She had an odd feeling about him as she did not recognize him as a Credit Union member. She also met with police. She told the police that what stood out for her in terms of the robber s appearance was his large nose. She believed the robber was in his 20s. [5] Constable Demidiuk, a member of the RCMP, attended to the Credit Union that morning. Constable Demidiuk obtained a still photograph of the robber from the video surveillance and spoke to individuals at nearby businesses in an attempt to identify him. An individual who worked at the post office close to the Credit Union thought the suspect looked like a person she knew but had not seen for 20 years. No name was provided.

3 Page: 3 [6] On October 29, 2016, the police showed a photo pack containing a picture of the accused to four Credit Union employees. None of them, including Ms Smith and Ms Langlois, could identify the accused. [7] The Crown s case is based on the recognition evidence of Carolyne Jansen. Ms Jansen knew the accused as he was her daughter s boyfriend and is the father of her grandchild. The accused was in a relationship with her daughter for about a year. He resided in Ms Jansen s home from about March to July 2016, although they did not have much interaction. He also stayed at her house for a few nights when her granddaughter was born in August Ms Jansen quite readily acknowledged that she has a negative relationship with the accused. Her daughter was a minor when they were involved and during that time she did not attend school or spend much time at home. Just a day after the robbery, on October 25, 2016, Ms Jansen had to leave work and attend home to throw out the accused, who was arguing with her daughter. [8] The next day, on October 26, Ms Jansen was scrolling on social media and saw a post about the Noventis Credit Union robbery. The post contained two still photographs of the robber from the video surveillance and asked for anyone with information to call the RCMP or Crime Stoppers. The photographs caught Ms Jansen s eye. She testified that she recognized the accused right away. She explained that what led to this recognition was the person s eyes, nose, structure of the face and the camouflage jacket he was wearing. Ms Jansen indicated that the accused had a similar jacket, which she had previously laundered. Ms Jansen called the police and met with them on October 31,

4 Page: She viewed the video surveillance of the robbery in court and identified the accused as the person in the video. [9] The accused was arrested in Winnipeg in November He did not have a large amount of money on him at the time or anything connecting him to the robbery. Analysis and Decision [10] It is not in dispute that a robbery occurred at the Noventis Credit Union. The sole issue in this case is identity whether the Crown has proved beyond a reasonable doubt that the accused was the robber. [11] The Crown submits that it has proven the accused s identity and relies on the recognition evidence of Ms Jansen. Crown counsel also argues that the identification of the accused can be made as well by the court comparing the photographs and/or video surveillance with the accused. [12] The defence counters that the evidence falls short of meeting the Crown s burden of proof. It stresses the frailty of the identification/recognition evidence and argues that the quality of the photographs and Ms Jansen s testimony are not sufficiently reliable to support a conviction. [13] The inherent frailties of identification evidence has been the subject of extensive judicial commentary and warnings. Identification evidence is often deceptively reliable because it comes from credible and convincing witnesses. That is why a trier of fact must exercise caution when assessing the reliability of such evidence. This is especially so where the Crown s case entirely or substantially depends upon it.

5 Page: 5 [14] Where a witness is known to the accused, the testimony identifying the accused is referred to as recognition evidence. Recognition evidence is a subset of eyewitness identification evidence, in which the identification is based on a prior acquaintance. The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. So may the fact that the identification allows for repeated and unhurried consideration, such as the review of a photograph or video surveillance. Nonetheless, many of the well-known frailties of eyewitness identification have application in the context of recognition evidence, therefore similar concerns and cautions apply. [15] These principles were explained in R. v. Olliffe, 2015 ONCA 242 (CanLII) (at paras ): The focus of the concern is not the credibility of the witness providing the identification evidence; rather, it is the reliability of the evidence and the potential for it to be given undue weight. Identification evidence is often deceptively reliable because it comes from credible and convincing witnesses. Triers of fact place undue reliance on such testimony in comparison to other types of evidence. Our courts recognize that they must vigilantly guard against convicting based on honest and convincing, but mistaken, eyewitness identification: R. v. Quercia (1990), 75 O.R. (2d) 463 (C.A.), at p. 465; R. v. Goran, 2008 ONCA 195, at para. 33. Triers of fact are entitled to take into account whether the witness is acquainted with the accused when assessing the reliability of the identification evidence. Where a witness is known to the accused, the testimony identifying the accused is sometimes referred to as recognition evidence. The level of familiarity between the accused and the witness may serve to enhance the reliability of the evidence. It must be remembered, however, that recognition evidence is merely a form of identification evidence. The same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence: R. v. Spatola, [1970] 3 O.R. 74 (C.A.), at p. 82; R. v. Turnbull, [1977] Q.B. 224 (Eng. C.A.), at pp

6 Page: 6 [16] Olliffe involved several robberies by a perpetrator who wore sunglasses and on occasion a bandana. The accused s former girlfriend testified that she immediately recognized him from a wanted poster on the basis of his goatee, stance, shape of the face, sunglasses, and style and choice of clothing. Neither the victims nor the trial judge, based on his own observations, could identify the accused. The trial judge convicted the accused based on the recognition evidence. The Court of Appeal overturned the conviction, noting the frailties of recognition evidence and the failure of the trial judge to properly caution himself on its reliability and consider the potentially exculpatory evidence, including that the victims could not identify the accused. See also, R. v. M.B., 2017 ONCA 653 (CanLII). [17] There is obviously a difference between a case in which an individual is asked to identify a stranger and one where a witness recognizes a person because they are previously known. However, as stated in R. v. Campbell, 2018 MBCA 4 (CanLII), while the jurisprudence often acknowledges that recognition evidence may be afforded greater weight than stranger identification evidence, it is not, by necessity, a principle of law. Each case involving identification evidence must be assessed according to the totality of the circumstances on which the observation is made and the weight to be placed on those circumstances. See R. v. G.S., 2008 MBCA 144 (CanLII). [18] It must be kept in mind here that the only evidence connecting the accused to the robbery is the evidence of Ms Jansen. Aside from this, there is no other direct or circumstantial evidence linking him to the crime no forensic evidence tying him to the scene, no evidence that he was in the Starbuck area. I appreciate that Ms Jansen was

7 Page: 7 confident in identifying the photographs as being that of the accused. I acknowledge that her relationship with the accused is such that she would be familiar with his appearance. And while the defence contends that her animosity towards him is a motive to identify him, she struck me as an honest witness. That said, the courts have noted the fallacy of mistaking certainty for accuracy and the deceptively reliable nature of identification evidence coming from credible and convincing witnesses. [19] Ms Jansen s explanation of why she recognized the accused from the photographs on social media was somewhat general and there were no particular unique or distinguishing features mentioned. Case law has noted that the identification of idiosyncrasies of physical appearance or movement are relevant when considering the ultimate reliability of the evidence. Courts have referred to a witness s clear notation of a person s unique, distinctive and recognizable features as the badges of reliability of identification. The importance of unique identifiable features varies with how well the witness knows the person he or she identified. Common experience teaches that people have vastly different abilities to identify and articulate the features of the people in their lives that they know and recognize. But the ability to articulate the basis of the opinion may affect its weight. See R. v. Berhe, 2012 ONCA 716 (CanLII), R. v. Benson, 2015 ONCA 827 (CanLII), R. v. M.B. and R. v. Field, 2018 BCCA 253 (CanLII). [20] Further, while Ms Jansen indicated that the camouflage jacket worn by the robber was just one of the factors that contributed to her identification, she testified at the preliminary inquiry that the jacket was the driving factor. I appreciate the fact that the

8 Page: 8 accused had a similar jacket to the robber must be considered. However, Ms Jansen and the other witnesses agreed that this type of jacket was common. [21] In this case, the quality of the photographs is an important factor in assessing the weight of the evidence. Ms Jansen appropriately acknowledged its limitations. The photographs are somewhat blurry and a shadow covers the bottom of the face, which makes it difficult to distinguish the facial features. The person in the photographs is looking down and it is unclear if his eyes are open or closed. You cannot see if the individual has facial hair or the length of his hair. The person s weight or height cannot be determined. [22] These are not high-resolution photographs where the person s face is clearly visible. The perspective of the pictures is particularly limiting, as the individual is not facing directly, but casting downwards. This may explain why in comparing the photographs to the accused, though there is some resemblance, I am unable to conclude that the accused is the man in the photographs. This is therefore unlike a situation where the recognition evidence is supported by a trial judge s own observations. Further, it has been noted that a witness s confident identification might be mistaken because of the unintentional filling in of details of a person familiar to them when looking at a fuzzy image of someone in fact unknown. See R. v. M.B. [23] The trier of fact must use greater caution where the video or photograph quality is low. See R. v. Cuming (2001), 158 C.C.C. (3d) 433 (Ont. C.A.), and R. v. M.B. [24] The video surveillance is of even lesser evidentiary value. While Ms Jansen also identified the accused from the video, this was after she had already identified him in the

9 Page: 9 photographs. She only reviewed the video for the first time shortly prior to the trial. She did not refer to any specific characteristics and provided no explanation for why she was able to identify the accused as the robber in the video. The robber is seen from a distance. It is difficult to make out his facial features from the camera range. [25] As well, none of the Credit Union employees were able to identify the accused from the photo pack. I appreciate that Ms Smith indicated she did not want to look at the robber and that persons in the Credit Union would only have observed him for a short period of time in a stressful situation. This is nonetheless a factor to take into account. See Olliffe. Further, Ms Langlois described the robber as being in his 20s and the accused looks older. Ms Langlois also testified that the robber had a large nose which appears consistent with the photographs, but not apparent from observing the accused. Constable Demidiuk agreed that the accused was strikingly tall a feature not noted by Ms Smith or Ms Langlois or discernible from the photographs or video surveillance. [26] For all these reasons, I conclude that the weight of the totality of the evidence is insufficient to meet the Crown s burden of proof. The recognition evidence is unsupported by any other direct or circumstantial evidence. Applying the requisite caution to the assessment of the reliability of the recognition evidence, including concerns about the quality of the photographs and video surveillance, it would be unsafe to convict. As I am not satisfied beyond a reasonable doubt that the Crown has proved that the accused is the perpetrator, I acquit him of the charge. J.