



COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Jack, 2013
    ONCA 80

DATE: 20130207

DOCKET: C53683

Juriansz, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chadwick Jack

Appellant

Chadwick Jack, acting in person

Jill Presser, as duty counsel

Eric Siebenmorgen, for the respondent

Heard: November 22, 2012

On appeal from the conviction entered on April 21, 2011 and
    the sentence imposed on June 10, 2011 by Justice Edward Belobaba of the
    Superior Court of Justice, sitting with a jury.

Epstein J.A.:

Overview

[1]

The appellant appeals his April 21, 2011
convictions, after a trial by judge and jury, of two counts of robbery
    arising out of an incident that took place in January of 2010 at a car rental
    establishment known as AutoHire Rent-A-Car.  The assailant, armed with a gun,
    entered the rental agency and robbed two men who were in the office at the
    time. The robber stole $2,500 from Mr. Syed Badar Munir,

who owned AutoHire,
    and $50 from Mr. Abner Omar Zuniga, a customer and friend of Mr. Munirs.  The
    appellant was sentenced to ten years for each count, to be served concurrently.
    He appeals against conviction and seeks leave to appeal his sentence.

[2]

The only issue at trial was identification and the only evidence on that
    issue was the eyewitness testimony of the two victims.

[3]

Shortly after the robbery, the two victims described their assailant to
    the 911 operator.  When the police arrived, Mr. Munir provided them with a copy
    of the appellants health card that was in the files of the car rental agency
    on the basis that he was the man who had robbed them.  Several hours later, Mr.
    Munir again described the assailant during a police interview.  At trial, both
    victims gave an in-dock identification.

[4]

The appellant did not testify.  A friend gave evidence in support of his
    alibi defence.

[5]

In his conviction appeal, the appellant submits that the trial judge
    committed reversible error in his charge to the jury.  He argues that the jury instructions
    with respect to the eyewitness identification evidence and the alibi defence
    were deficient.  The appellant also contends that the sentence was harsh and
    excessive and the trial judge did not properly consider the potential for
    rehabilitation.

[6]

For the reasons that follow, I agree that the jury was not provided with
    adequate instructions with respect to the identification evidence.  On that
    basis I would allow the appeal and quash the convictions.  In the circumstances
    of this case, I would direct that the appellant be acquitted of both charges.

FACTUAL BACKGROUND

[7]

On January 11, 2010, Mssrs. Munir and Zuniga were at the rental car
    office when a man kicked the door in, pointed a gun at each of them, took their
    money, and left. The entire event took place quickly  around two minutes.  In
    addition to giving details of the theft of their cash, the victims testified
    that during the brief encounter, the assailant picked up and smashed Mr.
    Zunigas two-way phone. Mr. Zuniga recalled that at one point during the
    robbery the assailant referred to him by his first name, Omar.

[8]

Both complainants testified that they had previously seen the
    perpetrator when he came into AutoHire to rent a car. However, they were both
    clear that on these occasions their interaction was brief.  Neither victim had
    assisted the man with his transaction.  Both testified that the last time they
    had seen the appellant was more than two months earlier. Mr. Munir recalled the
    man with whom he had had this contact as a 58 black guy.  He did not
    remember anything unusual about the mans teeth or whether he had any visible
    scars or any tattoos. Mr. Zuniga described the man as male black (
sic
),
    like 59, medium build. He too had no memory of observing anything unusual
    about his appearance.

[9]

When the police arrived, Mr. Munir went into the car rental files and
    provided them with a photocopy of the appellants health card identification
    that was maintained as a result of his previous transactions with AutoHire.
    With the appellants picture in hand, Mr. Munir identified him as the
    assailant.

[10]

A
    few weeks later the police located the appellant and laid the robbery charges.

ISSUES

[11]

The
    appellant raises three issues:

1.    The trial judge erred in failing
    properly to instruct the jury on the frailties of eyewitness identification evidence.

2.    The trial judge erred in charging
    the jury on the permitted use of alibi evidence.

3.    The trial judge erred by imposing
    a sentence that was harsh and excessive.

ANALYSIS

(1)

The instruction to the jury regarding the eyewitness identification

Applicable Legal Principles

[12]

The
    jurisprudence is replete with guidance about how the jury should be instructed
    in cases where identity is the issue and where, as here, the Crowns ability to
    satisfy the jury that it was the accused who committed the crime depends on eyewitness
    identification.

[13]

The
    dangers inherent in eyewitness identification evidence and the risk of a
    miscarriage of justice through wrongful conviction have been the subject of
    much comment: see for example
R. v. Goran
, 2008 ONCA 195, 234 O.A.C.
    283, at para. 19. Such evidence, being notoriously unreliable, calls for
    considerable caution by a trier of fact:
R. v. Nikolovski
, [1996] 3
    S.C.R. 1197, at pp. 1209-10;
R. v. Bardales
, [1996] 2 S.C.R. 461, pp.
    at 461-62;
R. v. Burke
, [1996] 1 S.C.R. 474, at p. 498.

[14]

It
    is essential to recognize that it is generally the reliability, not the
    credibility, of the eyewitness' identification that must be established.  The
    danger is an honest but inaccurate identification:
R. v. Alphonso
, 2008
    ONCA 238, [2008] O.J. No. 1248, at para. 5;
Goran
, at paras. 26-27.

[15]

The
    jury must be instructed to take into account the frailties of eyewitness
    identification as they consider the evidence relating to the following areas of
    inquiry.  Was the suspect known to the witness?  What were the circumstances of
    the contact during the commission of the crime including whether the
    opportunity to see the suspect was lengthy or fleeting?
R. v. Carpenter
,
    [1998] O.J. No. 1819 (C.A.) at para. 1. Was the sighting by the witness in
    circumstances of stress?
Nikolovski
, at 1210;
R. v. Francis
(2002), 165 O.A.C. 131, at 132.

[16]

As
    well, the jury must be instructed to carefully scrutinize the witnesses
    description of the assailant.  Was it generic and vague, or was it a detailed
    description that includes reference to distinctive features of the suspect?
R.
    v. Ellis
, 2008 ONCA 77, [2008] O.J. No. 361, at paras. 5, 8;
R. v.
    F.A.
(2004)
, 184 O.A.C.
    324, at para. 64;
R. v. Richards
, (2004) 70 O.R. (3d) 737, at para. 9.
R. v. Boucher
, 2007 ONCA 131,
    [2007] O.J. No. 722, at para. 21.  In some cases,
a failure to
    mention distinctive characteristics of a suspect is sufficiently important,
    especially where there is no other inculpatory evidence, to reduce the case
    from one of identification effectively to one of no identification.

[17]

Finally,
    the charge must caution the jury that an in-dock or in-court identification is
    to be given negligible, if any, weight:
R. v. Hibbert
, [2002] 2 S.C.R.
    445, at pp. 468-69;
R. v. Tebo
(2003), 172 O.A.C. 148, at para. 19.

Application of the legal principles to this case

[18]

Here,
    the identification evidence was not without its problems. The eyewitness
    identification evidence was that of two victims who had but a few minutes to
    observe their assailant.  Their encounter  facing a man in close range pointing
    a gun at them  was highly stressful.  Moreover, their descriptions of the
    robber can only be described as generic.  Notwithstanding their evidence about
    how close they were to the assailant, neither Mr. Munir nor Mr. Zuniga noticed
    any distinctive features.  The appellant has two permanent gold front teeth, a
    7 scar on his jaw, and a 3.5 cm tattoo he sports on his left hand.

[19]

To
    add to the Crowns challenge of proving identity beyond a reasonable doubt was
    the absence of any physical evidence tying the appellant to the crime. There
    was no surveillance footage and no DNA from the appellant.  Although the
    victims testified that the assailant picked up and smashed Mr. Zunigas phone
    with his bare hands, the appellants fingerprints were not found on the phone. Mssrs.
    Munir and Zuniga also provided an in-court identification of the appellant as
    the person who committed the crimes.  Thus, the entire prosecution case rested
    solely on the identifications of the appellant by the Zuniga and Munir.

[20]

The

trial judge addressed the frailties of the identification evidence as
    follows:

The case against Mr. Jack depends entirely on eyewitness
    testimony. You must be very careful when relying on eyewitness testimony. In
    the past there have been miscarriages of justice and persons have been wrongly
    convicted because eyewitnesses have made mistakes in identifying the person
    whom they saw committing a crime.

Eyewitness testimony is an expression by a witness of his or
    her belief or impression. It is quite possible for an honest witness to make a
    mistake in identification. Honest people do make mistakes. An apparently
    convincing witness can be mistaken.

[21]

The
    deficiencies in this instruction upon which the appellant relies focus on the
    trial judges failure to adequately deal with the reasons why, on the evidence
    in this case, the identification evidence had to be scrutinized with
    considerable care. The most notable of these problems was that the victims
    contact with the robber was brief and stressful and their descriptions of him
    were generic in nature, lacking any mention of any distinctive features.  The
    appellant also relies on the trial judges failure to provide any caution
    regarding the use of in-dock identification.

[22]

The
    Crown argues that the reliability of the identification evidence was
    strengthened by a number of factors. The Crown contends that this is a
    recognition case, not an identification case. The victims recognized the robber
    as someone with whom they had had contact  evidenced by their independent
    recollection and the fact that his health card was in AutoHire files.   As
    well, the jury had Mr. Zunigas testimony that the robber referred to him by
    his first name.

[23]

The
    Crown submits that while the charge was brief and perhaps not as tailored to
    the case as it could have been, there was evidence linking the appellant to the
    robbery.  The jury did receive instructions that contained a caution about the identification
    evidence  instructions that came at the end of a short trial preceded by
    strong defence submissions. The Crown therefore maintains that the jury was
    adequately equipped to determine whether the prosecution had proven identity
    beyond a reasonable doubt.

[24]

As
    I will explain, I do not agree.

[25]

First,
    I do not see this as a recognition case. I see it as an identification case. 
    The previous contacts between the victims and the appellant took place months
    earlier, were brief, and were in the normal course of business such that the
    men would have no particular reason to have made note of the appellants
    features.  The best evidence of this is that neither witness remembered observing
    anything distinctive about the mans face.

[26]

Furthermore,
    any impact from this previous contact became negligible in the light of the
    brief, stressful contact during the robbery.  As Charron J.A. observed in
R.
    v. Miller
(1998)
, 116
    O.A.C. 331, at pp. 338-39, despite the fact the complainant testified that she knew
    the accused reasonably well, the limited time she had to observe the
    assailant diminished the reliability of her identification evidence.

[27]

Second,
    the charge did not provide the jury with adequate assistance on how to assess
    the reliability of the victims description of the robber given that their
    descriptions were generic and did not contain any reference to the appellants distinctive
    features  the gold teeth, the scar and the tattoo, features that would have
    been apparent given the proximity of the contact between the perpetrator and
    his victims.

[28]

Admittedly,
    the trial judge did instruct the jury to consider the victims failure to
    notice the appellants distinctive features.  After summarizing the evidence
    relevant to this issue, including the fact that the arresting officer testified
    that he did not notice these features when he located the appellant several
    weeks after the robbery, the trial judge instructed the jury as follows:

Are the gold teeth, facial scar, or hand tattoo something that
    the two eyewitnesses should have noticed if indeed the robber was Mr. Jack? 
    Does the failure to do so raise a reasonable doubt about whether Mr. Jack was
    the robber?  This is for you to decide.

[29]

However,
    I agree with the appellant that this instruction did not go far enough.  As
    discussed in
R. v. Gonsalves
(2008)
, 56 C.R. (6th) 379 (Ont. S.C.J.), at para. 39, eyewitness
    identification evidence has taught us to use discriminating scrutiny for badges
    of unreliability. One such badge is whether a witness description of the
    suspect fails to include mention of a distinctive feature of the accused:
Ellis
,
    at para. 5, 8;
F.A.
, at para. 64.  The caution contained in the above
    paragraph simply advises the jury to consider the impact of the evidence that
    the victims did not notice the appellants distinctive features.  It does not
    caution them to take this factor into consideration together with the generic
    description they provided to the police in performing their critical analysis
    of assessing the reliability of the identification evidence upon which the
    Crowns case wholly depended.

[30]

Compounding
    the problems associated with the insufficient instruction about the reliability
    of the identification provided by the victims prior to the trial is the trial
    judges failure to caution the jury about their use of the victims in-court
    identification.  The charge, in fact, contains no reference to this evidence at
    all let alone a warning about the inherent unreliability of such evidence,
    particularly a caution about the diminished correlation between a witness
    confidence level and his or her accuracy.

[31]

The
    jury should specifically have been given what is known as a
Hibbert

instruction. The seeming persuasiveness of eyewitness identification can be
    misleading as there is a very weak link between the confidence level of a
    witness and the accuracy of that witness:
Hibbert
,
at p. 469. This was further discussed
    in
Richards
, at para. 33, in which this court noted that certainty on
    the part of an honest identification witness is part of the reason that
    eyewitness identification evidence is dangerous.

[32]

The
    portion of the charge set out above does contain a caution that [a]n
    apparently convincing witness can be mistaken, but this was in the context of a
    discussion of generic descriptions in eyewitness testimony in general and fell
    short of the requirements established in
Hibbert
and reinforced by
    many decisions that followed.

[33]

Of
    importance is the fact that the
Hibbert
caution that certainty is not to
    be taken as an indicium of accuracy was not tailored to the specific concerns
    in this case  the certainty apparent from Mr. Munirs retrieval of the health
    card and Mr. Munirs and Mr. Zunigas in-dock identification. It was in these
    two areas where the victims conviction that the appellant was the perpetrator was
    palpable and specific instructions were required.

[34]

Mr.
    Munir testified that he knew the appellant and that the appellant was the
    robber.  For this reason, right after the robbery he pulled the appellants
    identification from his files and presented it to the police as being a picture
    of the assailant.

[35]

Defence
    counsel was justifiably concerned that this conduct  retrieving the
    appellants ID immediately after the crime is the precise type of conduct that
    may add to the creation of a witnesss perception rather than confirm it.
The trial judge was put on notice that this was an issue.  Defence
    counsel requested the trial judge instruct the jury that the pulling of the
    photocopy of the health card was, for this reason, problematic and not, as
    suggested by the Crown, confirmatory of the victims identification of the
    appellant as the robber.

[36]

The
    trial judge, however, declined to give such an instruction and further declined
    to call the jury back to instruct them after defence counsel objected again
    following the charge.

[37]

The
    transcript clearly demonstrates the degree of confidence the victims had in
    their identification of the appellant as the robber.   In court they both said
    they were certain that the person in the prisoners box was the man who robbed
    them.  The charge contained no instruction at all about the jurys use of this
    evidence.

[38]

In
    my view the danger posed by the in-dock identification evidence in this case was
    even greater than that in
Hibbert
as here, two eyewitnesses gave an
    in-dock identification that the appellant was the assailant.  The heightened risk
    was that, with two in-court identifications, the jury would attach increased unwarranted
    weight to this evidence.  There was therefore a need for the jury to be specifically
    cautioned in a manner that not only conveyed the untrustworthiness of in-dock
    identification evidence but also brought home to the jury the danger of allowing
    the fact that there were two witnesses who testified, each with considerable
    confidence, that the man in the prisoners box was the robber, to bolster the
    reliability of evidence the nature of which is so fundamentally unreliable.

[39]

In my view, the deficiencies in the charge, deficiencies that can
    be described in a general fashion as a failure to connect the standard
    instruction on the frailties of eyewitness identification to the specific
    concerns raised by the evidence in this case, in a case devoid of other
    evidence linking the accused to the crime, amounts to a reversible error
.

[40]

I
    would therefore give effect to this ground of appeal and allow the appeal,
    making it unnecessary for me to deal with the appellants arguments concerning
    the instructions relating to alibi or, obviously, the sentence appeal.

CONCLUSION

[41]

As
    I have said, the victims identification provided to the police immediately
    following the robbery was problematic. The victims subsequent in-dock
    identification of the appellant as the assailant did not add any weight to this
    initial identification. And, the Crown led no other direct or circumstantial
    evidence connecting the appellant to the robbery.

[42]

In
    these circumstances, I conclude that the identification evidence was insufficient
    to support the verdicts. A properly instructed jury, acting reasonably, could
    not have found that the identification evidence in this case met the requisite
    criminal standard of proof.

DISPOSITION

[43]

Given
    my view that the verdicts are unreasonable, the appropriate order is an order
    quashing the convictions and entering an acquittal on each charge.

Released:

FEB -7 2013                           Gloria Epstein
    J.A.

RGJ                                       I agree R.G.
    Juriansz J.A.

I agree
    David Watt J.A.


