



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Olliffe, 2015 ONCA 242

DATE: 20150413

DOCKET: C57003

Hoy A.C.J.O., Epstein and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sean Olliffe

Appellant

Stephen Proudlove and Erika Chozik, for the appellant

Michael Perlin, for the respondent

Heard:  November 3, 2014

On appeal from the conviction entered on December 21,
    2012 by Justice David M. Stone of the Ontario Court of Justice, sitting without
    a jury.

Hourigan J.A.:

Introduction

[1]

The appellant was convicted following a judge-alone trial of four counts
    of armed robbery, four counts of having his face masked with intent to commit
    an indictable offence, and one count of carrying a concealed weapon for the
    purpose of committing an indictable offence.

[2]

The charges relate to four robberies of Tim Hortons restaurants in
    Oshawa in March and April 2012. The primary issue at trial was identity.

[3]

The appellant submits that the trial judge erred by accepting flawed
    identification evidence without exercising the required caution. Further, the
    appellant argues the verdicts are unreasonable as the evidence could not
    support conviction.

[4]

For the following reasons, I conclude the trial

judge erred in law in his consideration of the
    identification evidence and that the verdicts were unreasonable. I would allow the
    appeal, set aside the convictions and enter acquittals on all counts.

Facts

[5]

The first robbery occurred on March 11, 2012 at the Tim Hortons located
    at 338 King Street West in Oshawa. A man wearing sunglasses entered the store
    at approximately 3:40 a.m. After ordering a donut, the man demanded $100 and
    told the employee at the till, Adibah Sitara, that he had a knife. He extended
    a disposable Tim Hortons cup toward Ms. Sitara and she placed five or six
    $20 bills inside. He then asked for more money and Ms. Sitara added four or
    five $20 bills to the cup.

[6]

Ms. Sitara testified that the mans face was partially covered by a
    piece of cloth and that he had a blond coloured moustache. She described him as
    5′3″ to 5′5″ with a medium build and said he looked at
    least 30 years old. She stated that he was wearing a jean jacket.

[7]

The second robbery occurred on March 14, 2012. Melanie Walker, a
    midnight supervisor at the Tim Hortons located at 146 Bloor Street East in
    Oshawa, testified that at some point between 2:00 and 3:00 a.m. a man walked
    into the store, handed her a white travel mug and told her to put money in the
    mug. The man told her that he had a knife, although she did not see a knife.
    Ms. Walker put $60 or $80 in the mug.

[8]

Ms. Walker described the robber as wearing sunglasses and a black jacket
    with a black hoodie or sweater underneath. He was also wearing blue latex
    gloves. According to Ms. Walker, the man was not masked. She said that he was a
    white male in his late twenties. Ms. Walker noticed that he had brown hair and
    a brown moustache or a goatee. She described him as being 5′4″ or
    shorter. Because his clothes were bulky she could not determine his build. She
    did not notice any scars or marks on his face.

[9]

The third robbery took place on March 20, 2012 at the Tim Hortons located
    at 1251 Simcoe Street North in Oshawa. A man approached the front counter and
    demanded that the cashier, Tyler Ballinger, fill a plastic Tim Hortons mug with
    $20 bills. Mr. Ballinger had difficulty opening the till, so he called over his
    supervisor, Karen Deward. Ms. Deward opened the till and filed the cup with $20
    bills and one $50 bill.

[10]

According
    to Mr. Ballinger, the robber was wearing a black mask that went from the bridge
    of his nose across the top of his eyes and behind his head. He was also wearing
    black sunglasses with round lenses and a hoodie, with the hood pulled over his
    head. Mr. Ballinger testified that the robber was wearing loose-fitting blue
    vinyl gloves.

[11]

Mr.
    Ballinger noticed what appeared to be acne marks or scars on the mans face.
    Mr. Ballinger said that the robbers height was between 5′6″ and 5′7″.
    He estimated the perpetrators age to be between 40 and 50. Subsequent to the
    appellants arrest, Mr. Ballinger was asked by police to identify the robber
    from a photograph line-up. He was unable to do so. In fact, he replied No to
    photograph number five, which was a photograph of the appellant.

[12]

Ms.
    Deward testified that the robber was wearing a black coat or hoodie, a black bandana
    that covered the lower part of his face including his nose, black sunglasses
    and blue latex gloves. She could not observe any part of his face, other than a
    small portion of skin under his sunglasses. At trial she testified that she
    could not tell his age. She said that he was one to three inches taller than
    her height of 5′5″.

[13]

The
    fourth robbery occurred on April 13, 2012 between 4:00 and 4:15 a.m. at the
    same Tim Hortons as the first robbery. Ms. Sitara was once again working the
    midnight shift.

[14]

A
    man entered the store, placed a refillable cup before Ms. Sitara, asked for
    money and said that he had a knife. Ms. Sitara told him that she could not open
    the till and he replied that he knew that she could. Ms. Sitara ran to the
    back of the store and told the baker, Steven McSwain, what was happening. She
    said she did not want to go back out front. Mr. McSwain went to the front of
    the store, opened the till and gave the robber its contents.

[15]

Another
    employee, Michelle Lockyer, was in the back room with Mr. McSwain. She
    only saw the robber for approximately 10 to 15 seconds.

[16]

Outside
    the restaurant, Jordan Hill was sitting in a car with friends. He noticed a man
    pull a bandana over his face and enter the Tim Hortons. Mr. Hill took
    particular notice of the man as he left because he believed the restaurant was
    being robbed and that the man leaving the building was the robber.

[17]

The
    witnesses to the fourth robbery provided differing descriptions of the
    perpetrator. According to Ms. Sitara, the man wore dark sunglasses and his face
    was partially covered. She believed he was wearing socks on his hands and
    described him as being white. Ms. Sitara could not say for certain if he was
    the same person who committed the first robbery, but she believed that he was
    the same height and build. She could not see his facial hair or the hair on his
    head. The only thing she recalled about his clothing was that he was wearing a
    light coloured jacket.

[18]

Ms.
    Lockyer testified that the man wore dark sunglasses, a dark jacket, a hat that
    covered his hair and a fabric mask that covered his face below his nose. She described
    him as being a white male of average height and build, and specified that he was
    either taller or the same height as her, which is about 5′7″.

[19]

Mr.
    McSwain described the robber as being between 5′7″ and 5′10″
    with a medium or heavy-set build. He was white and had a big nose. According to
    Mr. McSwain, the robber wore a dark coloured jacket or vest and had light
    coloured socks on his hands. A light coloured rag or bandana covered his face
    from under his eyes to midway on his nose. He might have being wearing
    sunglasses and no facial hair was visible. Mr. McSwain did not notice any
    pockmarks or scarring.

[20]

Mr.
    Hill, who was 20 to 30 yards away when he first observed the robber, described
    the man as bulky and 6′0″ or taller. He was wearing a black hoodie,
    jeans, white gloves and a black bandana around his neck. Mr. Hill described the
    robber as white with a beard or goatee, side burns and a moustache. As the man
    left the store, Mr. Hill could see the back of his head. Mr. Hill was 99
    percent sure that the man had short hair. He also noted that the man was
    wearing black sunglasses, which he believed were Oakley brand.

[21]

After
    the robberies, a black and white wanted poster was produced by the police. The
    poster included five photographs taken from surveillance footage of the
    robberies. Photographs one and three, located on the top row of the poster,
    came from the second robbery. Photograph two came from the first robbery and
    photographs four and five, located on the bottom row of the poster, came from
    the third robbery.

[22]

Susan
    Hiscock, an employee of Tim Hortons and a former romantic partner of the
    appellant, saw the poster in her workplace lunchroom. Ms. Hiscock and the
    appellant had lived together for several months over two separate periods of
    time. They broke up about three years before the robberies occurred. She had
    last seen the appellant in a store in March 2012, but they did not acknowledge
    each other.

[23]

Ms.
    Hiscock testified that, based on the sunglasses, the goatee, the way the man
    stood and the jacket, which she said was the kind her former boyfriend often
    wore, she immediately recognized the man in photograph one on the poster as the
    appellant.  She testified that the appellant always wore sunglasses, even at night.
    In photograph two she said that she recognized the appellants bandana. She
    also noticed the blue jean jacket, similar to one the appellant often wore. In
    photograph three she recognized the appellants stance because, due to a
    previous injury, one of his arms is curved. She also recognized his long and
    pointy shoes. Ms. Hiscock testified that the appellant always had with him
    taupe or beige rubber gloves of the type used in restaurants. She used
    photograph three to confirm her identification of the appellant in photograph
    one. At trial, Ms. Hiscock was presented with a colour version of the same
    black and white poster she had seen in the Tim Hortons lunchroom.

[24]

In
    cross-examination, Ms. Hiscock admitted that she did not actually recognize the
    clothing items in the photographs. Rather, she explained that these items were
    the kind of clothes that the appellant sometimes wore. She also admitted that
    there was nothing in photographs one and three that would allow her to draw any
    conclusions about the shape of the mans arm.

[25]

Ms.
    Hiscock stated in cross-examination that that there were no particular
    identifying features on the face in the photographs that would allow her to
    identify the appellant; she said she just knew his face. She admitted that her
    identification was tied to the fact that the robberies occurred in Oshawa:

Q. You know its in Oshawa. I mean
    if you saw these same pictures coming from a robbery in Calgary, you wouldnt
    look at them and go, Hey thats my ex boyfriend Sean Olliffe

A. Probably not, no.

[26]

Ms.
    Hiscock contacted Crime Stoppers. The appellant was arrested. The police
    conducted a search of the appellants residence pursuant to a warrant and
    seized, among other things, a pair of blue hospital gloves, a jean jacket,
    several pairs of dark shoes, a pair of Adidas running shoes and several pairs
    of sunglasses. Two black bandanas were found on him.

Decision of the Trial Judge

[27]

At
    trial, the appellant brought an application under s. 8 of the
Charter
to exclude the evidence seized in the search of his residence. The Crown
    brought a similar fact evidence application with respect to each of the
    robberies.

[28]

In
    considering the s. 8 application and whether the police had reasonable and
    probable grounds to obtain the search warrant, the trial judge assessed the
    identification evidence of Ms. Hiscock. He noted that a distinction should be
    drawn between cases of identification by strangers and cases of recognition.
    The trial judge found that given the previous romantic relationship between the
    appellant and Ms. Hiscock and the fact they had lived together for several
    months on two different occasions, this was a case of recognition.

[29]

The
    trial judge concluded that it was open to the justice who issued the warrant to
    find that a recognition had occurred. The trial judge dismissed the s. 8 application
    and granted the similar fact evidence application.

[30]

The
    trial judge found that the evidence from the eyewitnesses and the surveillance
    videos, as well as his own observations in court, were not sufficient to
    establish the identity of the robber:

First, the evidence of each and all of the victims of the four
    robberies and the videos of those robberies, together with my own observations
    of Mr. Olliffe in court, do not themselves prove that Mr. Olliffe was the
    robber in any of the robberies on a balance of probabilities, let alone beyond
    a reasonable doubt. None of those witnesses purported to identify him, and I
    certainly cannot.

[31]

The
    trial judge then went on to consider the identification evidence of Ms. Hiscock:

Ms. Hiscocks identification process involved the following:
    She had only seen Mr. Olliffe once in three years. Of course, we know that she
    had lived with him on two occasions before that. She had known him for some 12
    years. She did not have the benefit of seeing the robber or robbers in the
    flesh in 3-D, as in three dimensions. She saw two-dimensional photographs. They
    were black and white photographs, not natural colours such as we see in Exhibit
    6 as filed. Those photographs, while basically clear, were not of portrait
    quality or extremely sharp focus. A factor in Ms. Hiscocks mind would
    have been that all of the photos in the poster were of the same person.
    Photographs one and three were frontal photographs, while photograph two was in
    profile. However, according to her clear unshaken evidence, her recognition was
    immediate and firm, so that within seconds she was calling Crime Stoppers. She
    said she saw the goatee, shape of the face, stance, and the style and choice of
    clothing.

[32]

Ultimately,
    the trial judge concluded that Ms. Hiscocks identification evidence was
    reliable:

In the end Ms. Hiscocks evidence of recognition showed she was
    alive to the danger of making a mistake, and originally described her
    certainty, as I say, as a nine on a scale of ten. However, after full
    examination and cross-examination, her evidence was that the photographs were
    of Mr. Olliffe. When Mr. Olliffe was arrested and his residence searched
    clothing, bandanas, and sunglasses consistent with those worn by the robber on
    March 14 were located, as with March 11. This clothing was not really unusual
    and certainly not unique, but the findings show that Mr. Olliffe had access to
    clothing that would make him look like the robber. This evidence only supports
    and does not contradict Ms. Hiscock. By itself, of course, it would not be
    proof beyond a reasonable doubt, but it does supply some support. I recognize
    that no travel mugs were found in the search of Mr. Olliffes residence.

[33]

Based
    on this evidence, the trial judge concluded that Mr. Olliffe was the robber on
    March 11 and March 14, 2012, and convicted him of all counts related to those
    robberies. Relying on the similar fact evidence, the trial judge convicted the
    appellant of all remaining charges.

Positions of the Parties

[34]

The
    appellant submits that the trial judge erred in failing to properly caution
    himself on the inherent unreliability of identification evidence. In particular,
    he failed to caution himself about the fallacy of mistaking certainty for
    accuracy. Moreover, the trial judge failed to advert to and properly scrutinize
    the specific frailties disclosed by the evidence. The appellant further submits
    that the verdict was unreasonable.

[35]

The
    Crown takes the position that the trial judge exercised sufficient caution in
    considering Ms. Hiscocks evidence and carefully considered factors bearing on
    both her credibility and reliability. Further, the identification evidence suffers
    from none of the telltale frailties that would be cause for concern and fully
    supports the verdict.

Analysis

[36]

The
    inherent frailties in identification evidence are well known and have been the
    subject of considerable judicial comment and review in social science
    literature.

[37]

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.

[38]

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.

[39]

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. 228-229.

[40]

In
    the context of
jury trials, courts in this province
    have consistently ruled that
the jury must be warned of the frailties of
    eyewitness identification even in cases of recognition evidence:
R. v.
    Curran
, 2004 CanLII 10434 (Ont. C.A.), at para. 26;
R. v. Miller
(1998), 131 C.C.C. (3d) 141 (Ont. C.A.), at pp. 150-151;
R. v. Brown
(2006), 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 42.

[41]

Here,
    the trial judge first found that the conflicting evidence of the eyewitnesses was
    incapable of identifying the appellant as the robber. He then focussed on the
    evidence of Ms. Hiscock, which he found to be powerful. The trial judge
    appeared to be impressed that Ms. Hiscock immediately called Crime
    Stoppers when she saw the poster and, despite cross-examination, maintained her
    position that photographs one through three were of the appellant.

[42]

However,
    what the trial judge failed to do is critically analyze the problematic aspects
    of Ms. Hiscocks evidence. In particular, he never considered significant
    admissions in her cross-examination. For example, nowhere in the trial judges
    reasons is there reference to Ms. Hiscocks admission that had she been told
    that the photographs were taken during robberies in Calgary, she would not have
    identified the man on the poster as the appellant. Similarly, the trial judge
    failed to consider Ms. Hiscocks admission that she was unable to identify
    anything distinctive in the face in the photographs that would allow her to
    identify the appellant. Nor was there reference to her admission that she had
    not identified any particular piece of clothing in the photographs as belonging
    to the appellant but simply believed that the clothing was similar to what the
    appellant often wore. Finally, on cross-examination Ms. Hiscock acknowledged
    that the photographs did not permit her to see whether the robber had the same
    distinctive curve in his arm that the appellant does.

[43]

These
    were critical admissions that struck at the heart of the reliability of Ms.
    Hiscocks evidence. The trial judge was required to approach Ms. Hiscocks testimony
    with caution and grapple with the problems in her evidence to determine whether
    it was reliable. Nowhere in his reasons does the trial judge recognize these
    requirements. Instead, he fell into the trap of accepting Ms. Hiscocks evidence
    as powerful based on her certainty and speed of recognition. Of course, it is
    often the very certainty with which impressive and credible witnesses give
    their eyewitness testimony that causes
triers of fact to
    mistake confidence for accuracy:
Goran
, at para. 27.

[44]

The
    trial judge compounded his error by accepting Ms. Hiscocks evidence virtually
    in isolation. While he relied on the clothing and other evidence seized from
    the appellant as offering some support for Ms. Hiscocks testimony, he
    failed to assess her evidence against the potentially exculpatory eyewitness evidence
    adduced at trial.

[45]

For
    example, the evidence that Mr. Ballinger did not identify the appellant as the
    robber in the police photograph line-up was significant but was not considered
    by the trial judge. Mr. Ballinger explained that he based his assessment of the
    line-up photographs solely on face shape because the robbers facial features
    had been largely hidden by a mask. Similarly, descriptions of the robbers
    physical appearance and age by Ms. Walker, Ms. Sitara, Mr. McSwain and Mr.
    Hill that were clearly inconsistent with the appellants physical appearance
    and age also should have been considered. For example, Ms. Walker testified
    that the robber was in his late twenties and that she was fairly certain he
    was not in his late forties, like the appellant. Further, in cross-examination Mr.
    Hill was asked to look at the appellants hair and determine whether it matched
    the hair on the back of the robbers head. Mr. Hill told the court he was
    certain the appellants hair did not match that of the robber.

[46]

It
    was an error for the trial judge to simply dismiss the evidence of these
    witnesses as neutral and thereby exclude it from both his analysis of the
    reliability of Ms. Hiscocks evidence and, more generally, the determination of
    whether the Crown had proven identification beyond a reasonable doubt. While
    the trial judge acknowledged that this witness evidence alone was insufficient
    to convict the appellant, he failed to assess Ms. Hiscocks evidence in light
    of this potentially exculpatory evidence. The trial judge appears to have erroneously
    proceeded on the basis that because Ms. Hiscocks evidence amounted to
    recognition evidence, he did not need to approach it with the same degree of
    caution.

[47]

In
    my view, the trial judge erred in law in his consideration of the identification
    evidence. These errors went to the critical issue for determination at trial
    and justify appellate intervention.

[48]

Turning
    to the alternative ground of appeal, to succeed on an unreasonable verdict claim,
    the appellant is required to establish that, on the record before the trial
    judge, no properly instructed trier of fact acting judicially could reasonably
    have convicted the appellant:
R. v. Tat
(1997), 35 O.R. (3d) 641
    (C.A.), at p. 673;
R. v. F.A
.
(2004), 183 C.C.C. (3d) 518 (Ont.
    C.A.), at para. 35;
Goran
, at para. 21.

[49]

The
    issue is not whether the appellate court would have convicted the appellant,
    but whether the evidence, viewed through the lens of judicial experience, was
    reasonably capable of supporting a finding of guilt:
R. v. W.H
.
,
    2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 26-28.

[50]

In
    my view, the appellant has met his onus on this ground of appeal as well. The
    eyewitness evidence did not support a finding of guilt. As noted above, some of
    the eyewitness evidence, which was effectively ignored by the trial judge, was
    exculpatory. The evidence of Ms. Hiscock was highly problematic and unreliable
    for the reasons set out earlier in this judgment. The evidence obtained from
    the search of the appellant and his residence was only marginally supportive of
    Ms. Hiscocks evidence, as none of the seized clothing was positively
    identified as having been worn by the robber during the robberies.

[51]

In
    my view, this evidentiary record, considered through the lens of judicial
    experience, including the well-established frailties of identification
    evidence, was not reasonably capable of supporting a finding of guilt. In
    effect, the trial judge chose to place near total reliance on the problematic evidence
    of Ms. Hiscock and ignored the exculpatory evidence.

Disposition

[52]

The
    appellant has served his sentence. Based on the evidentiary record at trial,
    the convictions were unreasonable. There is no reason to believe that the evidentiary
    record at a new trial would be materially different. In these circumstances, I
    would order that the convictions be set aside and that acquittals be entered on
    all counts.

Released:  April 13, 2015 AH

C.W.
    Hourigan J.A.

I
    agree Alexandra Hoy A.C.J.O.

I
    agree Gloria Epstein J.A.


