



WARNING

The President of the panel hearing
    this appeal directs that the following should be attached to the file:

An order restricting publication in
    this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7),
    (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under section
    486.4, on application of the prosecutor in respect of a victim or a witness, or
    on application of a victim or a witness, a judge or justice may make an order
    directing that any information that could identify the victim or witness shall
    not be published in any document or broadcast or transmitted in any way if the
    judge or justice is of the opinion that the order is in the interest of the
    proper administration of justice.

(2)     On application of the prosecutor in respect
    of a justice system participant who is involved in proceedings in respect of an
    offence referred to in subsection (2.1), or on application of such a justice
    system participant, a judge or justice may make an order directing that any
    information that could identify the justice system participant shall not be
    published in any document or broadcast or transmitted in any way if the judge
    or justice is satisfied that the order is in the interest of the proper
    administration of justice.

(2.1) The offences for the purposes of subsection (2)
    are

(a) an offence under section 423.1, 467.11, 467.111,
    467.12, or 467.13, or a serious offence committed for the benefit of, at the
    direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1),
    19(1), 20(1) or 22(1) of the
Security of Information Act
; or

(d) an offence under subsection 21(1) or section 23
    of the
Security of Information Act
that is committed in relation to an
    offence referred to in paragraph (c).

(3)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding judge or
    justice or, if the judge or justice has not been determined, to a judge of a
    superior court of criminal jurisdiction in the judicial district where the
    proceedings will take place; and

(b) provide notice of the application to the
    prosecutor, the accused and any other person affected by the order that the
    judge or justice specifies.

(5)     An applicant for an order shall set out the
    grounds on which the applicant relies to establish that the order is necessary for
    the proper administration of justice.

(6)     The judge or justice may hold a hearing to
    determine whether an order should be made, and the hearing may be in private.

(7)     In determining whether to make an order, the
    judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk
    that the victim, witness or justice system participant would suffer harm if
    their identity were disclosed;

(c) whether the victim, witness or justice system
    participant needs the order for their security or to protect them from
    intimidation or retaliation;

(d) societys interest in encouraging the
    reporting of offences and the participation of victims, witnesses and justice
    system participants in the criminal justice process;

(e) whether effective alternatives are available
    to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the
    proposed order;

(g) the impact of the proposed order on the
    freedom of expression of those affected by it; and

(h) any other factor that the judge or justice
    considers relevant.

(8)     An order may be subject to any conditions
    that the judge or justice thinks fit.

(9)     Unless the judge or justice refuses to make
    an order, no person shall publish in any document or broadcast or transmit in
    any way

(a) the contents of an application;

(b) any evidence taken, information given or
    submissions made at a hearing under subsection (6); or

(c) any other information that could identify the
    person to whom the application relates as a victim, witness or justice system
    participant in the proceedings.
2005, c. 32, s.
    15; 2015, c. 13, s. 19

486.6 (1)  Every person who fails to comply with an
    order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken
    against any person who fails to comply with the order, the publication in any
    document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Phillips, 2018 ONCA 651

DATE: 20180718

DOCKET: C61679

Watt, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dino Phillips

Appellant

Anil K. Kapoor and Dana C. Achtemichuk, for the appellant

Mabel Lai, for the respondent

Heard: May 28, 2018

On appeal from the conviction entered on February 7, 2013
    by Justice Kelly A. Gorman of the Superior Court of Justice, sitting with a
    jury.

Huscroft J.A.:

OVERVIEW

[1]

Three men armed with firearms invaded and robbed two London homes.  The
    question at trial was whether the appellant was one of them.

[2]

The appellant was identified from a photo lineup by one of the
    participants in the crimes, but the case against him depended largely on
    eyewitness identification evidence that was replete with problems. No physical
    evidence linked the appellant to the crimes.

[3]

The jury convicted the appellant of possession of a firearm while
    prohibited; two counts of uttering death threats; kidnapping; two counts of unlawful
    confinement; five counts of robbery; two counts of break and enter; mischief;
    and five counts of pointing a firearm. He appeals on the basis that:

(1)

the
    verdict was unreasonable;

(2)

the trial
    judge failed to warn the jury of the inherent dangers of in-dock identifications;

(3)

the trial
    judge failed to warn the jury of the heightened risk of misidentification
    inherent in cross-racial identifications;

(4)

the trial
    judge provided an inadequate caution regarding the probative value of the photo
    lineup evidence; and

(5)

the trial
    judge provided a flawed
Vetrovec

instruction.

[4]

I agree with the appellant that the trial judge erred in her instructions
    on how the jury should treat the identification evidence, and in particular the
    in-dock identification and photo lineup evidence. Ordinarily a new trial would
    follow.

[5]

However, the verdict was unreasonable in any event. No reasonable jury
    could convict the appellant on the evidence in this case.

[6]

Accordingly, for the reasons that follow, I would allow the appeal, set
    aside the convictions, and enter acquittals on all counts in the indictment.

BACKGROUND

[7]

The home invasions occurred on May 8, 2009. A trio of men, including
    Shawn George and Floyd Deleary, set out to rob the apartment of C., Georges
    drug dealer.

[8]

It turned out that C. was not alone in his apartment. His ex-girlfriend,
    K., K.s infant daughter, and K.s sister M. were there with him. Deleary held
    a gun to K.s head and the intruders tied the hands of K. and C.  M. was forced
    to help the intruders look for money. The intruders were not satisfied with the
    money they found and threatened to kill C., K., and K.s daughter.

[9]

George and Deleary did not cover their faces and referred to each other
    by their first names throughout. The third man, described by the witnesses as the
    black man, covered his face and threatened to kill the victims if they looked
    at him. He was never addressed by name during the commission of the crimes.

[10]

Deleary
    and the black man stole K.s car and drove C. to his parents home at
    gunpoint. George followed in another car, but took off when he thought he saw
    an undercover police car. Deleary and the black man forced their way into C.s
    parents home by holding a gun to C.s mother, M. They robbed the home and
    Deleary told the black man to tie up Cs mother M., father J., and sister E.

[11]

At
    this point, J. reached for a machete and a struggle occurred with the black
    man. Deleary fired his gun. Police sirens were heard. Deleary told the black
    man to get out and he did so, jumping out of the bedroom window and taking the
    machete with him. A witness saw a black man running with what he thought was a
    sword. The machete was found nearby the next day, but there were no
    fingerprints on it. Nor was there any forensic evidence linking the appellant
    to either crime scene.

[12]

Deleary
    was arrested in the stolen car shortly afterwards. George was not arrested
    until February 23, 2010, and the appellant shortly after that, following his
    identification by George in a photo lineup.

Photo lineup identification

[13]

Shawn
    George was questioned by the police following his arrest and indicated that he
    knew the black man only as Virus. He said he could identify Virus and told
    the lead investigator, Detective Blumson, that he had already been shown a
    photo of Virus by another officer.

[14]

Detective
    Blumsons partner, Detective Constable Ellyatt, conducted the photo lineup for
    George. D.C. Ellyatt had been involved in the investigation. For example, he
    had transcribed the victims statements and participated in the arrest of
    George. D.C. Ellyatt prepared photos of twelve different men. The appellants
    photograph was the fifth in the lineup. George identified photograph number 5
    as the man he knew as Virus.

[15]

The
    police did not administer a photo lineup for any of the other witnesses. In
    answer to the question whether this was a not thought of process or
    contemplated and rejected, Detective Blumson testified: No, we, we didnt
    even think about it.

In-dock identification

[16]

At
    the preliminary inquiry, witnesses were asked to identify the black man. The
    appellant was the only black man in the courtroom at the time.

[17]

C.
    did not identify the appellant, as he testified that he did not look at the
    assailants. Nor did M. She testified that she could not identify the black
    man if she saw him again, and expressed the concern that she did not want to
    wrongly accuse someone.

[18]

One
    witness testified that the appellant looked similar to the black man. Several
    witnesses pointed to the appellant in in the courtroom at the preliminary
    hearing and trial.

THE GROUNDS OF APPEAL

[19]

I
    will address the issues concerning the identification evidence before
    addressing the unreasonable verdict argument. The appellant did not advance the
    cross-racial identification issue in oral argument and it is not necessary to
    address it here. In my view, the trial judge made no errors in her
Vetrovec
instruction and I will say no more about it.

Did the judge fail to instruct the jury
    about the inherent danger of in-dock identification?

[20]

The
    appellant submits that the identification of him as the black man in court at
    the preliminary hearing was poor quality evidence that had a prejudicial impact
    and lacked probative value. In-dock identification is inherently problematic,
    as the Supreme Court pointed out in
R. v. Hibbert
, 2002 SCC 39, [2002]
    2 S.C.R. 445, and the risk it poses increases when there are multiple in-dock
    identifications: a jury may use the number of identifications to bolster their
    reliability, a problem identified by this court in
R. v. Jack
, 2013
    ONCA 80, [2013] O.J. No 519, at para. 38. The trial judge failed to give the particularly
    strong caution about the in-dock identification of the appellant that was
    required. The need for such a caution was even greater in this case, given the
    weakness of the other identification evidence; the in-dock identification of
    the appellant at the preliminary hearing was the first time he was identified
    as the black man who committed the crimes.

[21]

The
    Crown emphasizes that the charge must be read as a whole, in the context of the
    trial as a whole, including the closing addresses counsel made. The Crown
    acknowledges that, as general rule, in-dock identifications are entitled to
    little weight:
R. v. Pelletier
, 2012 ONCA 566, [2012] OJ No 4061, at
    para. 93, and that the trial judge did not specifically instruct the jury in
    this regard. However, the Crown submits that counsel and the trial judge
    treated the eyewitness identification evidence with care and that the trial
    judges instructions concerning the frailties of eyewitness identification
    would have been understood as informing the in-dock identification issue. The
    Crown notes that there was no objection to the trial judges charge and
    suggests that this was for a tactical reason: it was part of counsels attempt
    to persuade the jury that the prosecution was built on a flawed police
    investigation.

Discussion

[22]

The
    dangers posed by in-dock identification are well known, as Justice Arbour
    explained in
Hibbert
,
    at para. 50:

[T]he danger associated with eyewitness in-court identification
    is that it is deceptively credible, largely because it is honest and
    sincere.  The dramatic impact of the identification taking place in court,
    before the jury, can aggravate the distorted value that the jury may place on
    it.

[23]

The
    danger has been recognized by this court in a number of cases, most recently
R.
    v. Lewis
, 2018 ONCA 351 and
R. v. Biddle
, 2018 ONCA 520. And the
    danger only increases in the context of multiple identifications, as in this
    case:
Jack
at para. 38.

[24]

Trial
    counsel were well aware of the problem posed by the in-dock identification.
    Crown counsel warned the jury of convicting someone based solely on frail
    identification evidence, stating that in court identification in and of itself
    really isnt that helpful or conclusive. The appellants trial counsel (not
    Mr. Kapoor or Ms. Achtemichuk) addressed the in-dock identification evidence as
    follows:

Mr. Phillips not only had they been told by the police was one
    of the men that they had caught, but Mr. Phillips was the only black man in the
    courtroom and it would be funny if it werent true. Think about it. Theres one
    black guy in the courtroom, what are they going to say? I, I say to you, you
    cannot accept that identification of the preliminary inquiry when you consider
    together the cumulative effect of all of the circumstances surrounding the
    observations at the scene



I hope you will not hesitate in giving that identification zero
    weight because obviously theyve [the witnesses] already seen this individual
    at the preliminary hearing and pointed him out.

[25]

Crown
    counsel specifically stated his expectation that the jury would be instructed
    by the trial judge on in-dock identification and the appellants trial counsel
    no doubt assumed that the trial judge would address the issue.

[26]

But
    the trial judge did not do so. Although she instructed the jury that they should
    be very cautious about relying on eyewitness testimony and alerted them to the
    possibility of mistakes leading to wrongful convictions, the trial judge simply
    identified the in-dock identification as an important consideration:

And youll recall that in this case none of the civilian
    witnesses was presented with a photographic line-up. Almost universally, their
    first observation subsequent to the events of May 8
th
were at the
    preliminary hearing. And we have heard that at that preliminary hearing there
    was but one black man in the court That will be an important consideration for
    you. The preliminary hearing happened I think more than a year after the
    alleged incidents.

[27]

The
    appellants trial counsel made strong submissions on the issue in his closing
    address to the jury, but they were just that: submissions. It was the
    responsibility of the trial judge to instruct the jury, having regard to counsels
    submissions, and she failed to do so. Her silence on the point may well have
    undermined counsels submissions by failing to endorse them.

[28]

In
    my view, the circumstances surrounding the in-dock identification in this case
    are egregious. The in-dock identification of the appellant may have seemed
    strong compared to the other eyewitness evidence, but it was not. Months after
    the traumatic events, the victims identified in court a man they had not been
    able to describe with any significant degree of detail immediately following
    those events  a man they had not identified from a photo lineup because it never
    occurred to the police to administer a photo lineup for them. There was one
    black man to choose from in court: a black man they knew was charged with
    having committed the crimes. The man the police said did it.

[29]

This
    was highly prejudicial, and an instruction to give the in-dock identification
    little weight would not have been sufficient to prevent the risk that the jury
    would give the identification more weight than it deserved, especially given
    the compounding effect multiple identifications could be expected to have. In
    these circumstances, nothing less than an instruction that it would have been
    dangerous to rely on the in-dock identification would do.

[30]

I
    do not accept the Crowns submission that the trial judges instructions
    concerning the frailties of eyewitness identification overlapped the in-dock
    identification issue, and so obviated the need for specific instructions on the
    in-dock identification issue. It cannot be said that the message was broadcast
    and heard, loud and clear, through the trial judges instructions, as the
    Crown contends.

[31]

Nor
    do I think that trial counsels failure to object to the charge should bear
    considerable weight in assessing the adequacy of the trial judges charge, as
    the Crown contends. I see no tactical advantage to the appellant in not having
    objected to the charge.

[32]

The
    bottom line is that the appellant was entitled to a proper instruction
    concerning in-dock identification and did not get one. The trial judges
    failure to instruct the jury concerning the dangers of in-dock identification
    is an error that undermines the fairness of the trial.

Did the judge provide an inadequate caution
    regarding the probative value of the photo lineup evidence?

[33]

The
    appellant submits that the photo lineup procedure employed by the police in
    which Shawn George identified the appellant was deeply flawed and failed to
    comply with most of the recommendations set out in
The Inquiry Regarding
    Thomas Sophonow: The Investigation, Prosecution and Consideration of
    Entitlement to Compensation
(Winnipeg: Manitoba Justice, 2001, Peter Cory,
    Commissioner) (Sophonow Inquiry). In particular:

-

the
    photos did not resemble the appellant;

-

the lineup
    was conducted by D.C. Ellyatt, who had been involved in the investigation, was
    partner of the lead investigator, and was involved in arresting George;

-

D.C.
    Ellyatt made remarks to George after he had selected the fifth photograph
    appearing to validate his choice;

-

George
    was shown a picture of Virus prior to the lineup and knew that he would be in
    the lineup.

[34]

The
    Crown contends that the issues concerning the photo lineup were thoroughly
    vetted before the jury. The only real issue with the lineup was the individual
    photograph that Shawn George probably saw before the lineup was shown to him.
    Crown counsel acknowledged the possibility of contamination in his closing
    address and the appellants trial counsel identified three deviations from the
Sophonow
recommendations in his submissions, in which he argued that the lineup was
    unfair and of no probative value. Moreover, the trial judge instructed the jury
    that shortcomings in the lineup process should cause them some concern, and
    that eyewitness identification is very tricky and unreliable. The trial judges
    instructions were not inadequate. Indeed, the Crown on appeal notes that Crown
    counsel at trial objected to the trial judges instruction on the basis that
    she
overemphasized
the flaws in the photo lineup procedure.

Discussion

[35]

It
    is not contested that the photo lineup in this case did not comply with most of
    the recommendations of the
Sophonow Inquiry
. The Crown accepts as
    much, but argues that the extent of the deviation from those recommendations and
    the significance of the deviation was a matter for the jury.

[36]

I
    accept that, as this court set out in
Pelletier
,
at
    para. 94, although the recommendations of the
Sophonow Inquiry

governing
    the conduct of photo lineups are persuasive tools to avoid wrongful conviction
    arising from faulty eyewitness investigation, they are not conditions
    precedent to the admissibility of eyewitness testimony. Nor do they establish
    rules governing the assignment of weight. That said, the problem in this case
    is more than simply a failure to comply with one or more of the
Sophonow
    Inquiry

recommendations.

[37]

It
    is important to put the photo lineup evidence in context. Shawn George was the
    only witness who was shown a photo lineup  presumably because the other
    witnesses would have had difficulty in identifying the black man. George
    might be expected to have had no difficulty in picking out the person with whom
    he had committed the crimes. However, George testified that he met the man he
    described as Virus just prior to the crimes, and the photo lineup did not
    take place until 10 months later, when George was arrested.

[38]

The
    photo lineup was administered by D.C. Ellyatt, the partner of the lead
    investigator, Detective Blumson. D.C. Ellyatt was involved in arresting Shawn
    George and had been involved in transcribing the witness statements. The
Sophonow
    Inquiry
rejected the suggestion that a police force other than the one
    investigating a crime should conduct the lineups. Members of the same force
    could do so, but this was subject to the requirement that officers dealing with
    an eyewitness should not be involved in the investigation and should not know
    the suspect or whether his photo is included in the lineup.

[39]

It
    would have been preferable if another officer  someone with no connection to
    the investigation  had conducted the photo lineup.
But
    the most significant problem with the photo lineup was this:
Shawn
    George was shown a picture of the man known as Virus and knew that Virus would
    be in the photo lineup prior to choosing the appellant from that lineup.

[40]

George
    testified that he never saw Virus after the crimes until the preliminary
    hearing on April 7, 2011, but that he was shown a photograph of him between
    those dates. He testified to this exchange with Detective Blumson in his
    interview with him:

Q:    Page 32 of the statement that I have, he says this,

Yeah. A little bit later if I come
    back down here with a picture of Hubert do you think youd be able to pick him out?

[You said]: Yeah

[Then he said]: Or um, Virus?

[And you said]: Yeah, hes got
    dreads, long dreads.

Thats Virus youre talking about?

A:    Yes, sir.

Q:    And then Officer Blumson said,

Okay.

[And then you said this]: A big
    fucker. As a matter of fact I was just talking  I was talking to  I really 
    I cant really say, but someone of your calibre over on the other squad and
    yeah, they were showing me a picture of him too.

[41]

Although
    George initially testified that he could not remember if this was true, he
    acknowledged that it was. Defence counsel then questioned George concerning his
    testimony at the preliminary hearing:

Q:    Okay.
    And then at the preliminary hearing you were asked about that, page 50 about
    line 20, and this is when I was asking you questions at the preliminary hearing
    which was May the 2nd, 2011. And we were discussing this passage that I just
    quoted and I said,

Right. The way I read this, Officer
    Blumson was interviewing you and you, referring to the other squad, someone of
    your calibre on the other squad, and indicating that they were showing me a
    picture, being Virus, too.

[Your answer was]: Okay. So what
    the hells your point? Get to your point.

And then on page 51 about line
    seven I said,

I suggest to you that before you
    were interviewed by Constable Blumson or Officer Blumson, you were shown a
    photograph of my client by another police officer.

[And you said]: Yes, I was.

Do you remember that question and
    giving that answer?

A:    Yes.

[42]

It
    is not clear who showed George the photograph or whether the photograph George
    was shown prior to the lineup was the same photo that he was shown in the lineup.
    But it was improper procedure in any event, as D.C. Ellyatts testimony
    confirmed. Plainly, this was a matter that the trial judge needed to address.

[43]

The
    trial judge instructed the jury as follows:

Now, youll recall that Mr. George was shown a photo line-up.
    Hes the only person who was shown the photo line-up and it was on February 23,
    2010, so its a significant period of time after the incidents. Now, once the
    photo line-up exists February 23rd, it certainly could have been administered
    to the other witnesses. It was not done and Sergeant Blumson and was asked why
    that was and he said it never occurred to him to administer the photo line-up
    to the civilians.

So Sergeant Blumson details Sergeant Dave Ellyatt to administer
    a photo line-up to Mr. George on February 23, 2010. He, Sergeant Ellyatt, had
    no involvement in the investigation, didnt know which photograph depicted the
    suspect. And thats the right way to do it, have someone administer the photo
    line-up who has nothing to do with the case. However, shortly before the photo
    line-up was shown to Shawn George he was shown an individual photograph of Dino
    Phillips. Id suggest to you that has to cause you some concern. Eye witness
    identification is very tricky and unreliable. I ask you to spend significant
    time in your deliberations on it.

[44]

T
he trial judge began by noting the passage of time
    between the crimes and the photo lineup, which she described as significant.
    She noted, uncritically, that the photo lineup was never shown to any of the other
    witnesses. The trial judge erred in stating that the officer who conducted the photo
    lineup was not involved in the investigation. Plainly, D.C. Ellyatt was
    involved in the investigation, and in a more than peripheral way. This error is
    compounded by the trial judges reiteration that the lineup had been done the
    right way.

[45]

Only
    at the end of this passage did the trial judge advert to the fact that George was
    shown a photograph of the appellant before the lineup. She described this
    causing some concern; reiterated that eyewitness identification can be
    difficult and unreliable; and asked that the jury spend significant time on
    the issue.

[46]

In
    my view, this instruction was wholly inadequate.

[47]

The
    problems with the photo lineup, taken as a whole, were so significant as to
    render Georges identification of the appellant practically worthless, and I
    say this
regardless of the appellants further
    submission that the others in the photo lineup did not resemble the appellant.
    Having identified Virus from a photograph shown to him, George proceeded to choose
    the appellant from a lineup that he knew would include a picture of him.

[48]

In
    these circumstances, the trial judges instruction  essentially encouraging
    the jury simply to be careful with eyewitness evidence and to spend significant
    time on it  was not nearly sufficient to address the problems with the photo lineup
    evidence. As with the in-dock identification, the submissions of counsel are no
    substitute for judicial instructions. Those submissions made clear the nature
    of the identification problems, but they could not explain the law or instruct
    the jury as to its legal obligations. That was the trial judges
    responsibility, and trial counsel clearly contemplated that she would do so in
    light of their submissions. Her failure to do so, combined with her failure to
    properly instruct the jury concerning the dangers of in-dock identification
    evidence, caused the trial to be unfair.

UNREASONABLE VERDICT

[49]

The
errors outlined above would require a new trial. However,
    in the circumstances of this case, the appellant argues that an acquittal is
    required because the verdict is unreasonable. The appellant submits that the
    identification evidence is exceptionally weak and largely prejudicial, and is
    incapable of proving that he is the black man who participated in the home
    invasions. The appellant contends that all of the circumstances identified by
    this court in
R. v. Tat
, [1997] O.J. No. 3579 (C.A.),

are
    present in this case and that the case is particularly well suited to review
    under s. 686(1)(a)(i).

[50]

The
    Crown acknowledges that its case was far from overwhelming. But the Crown says
    that the jury would have appreciated the flaws in the eyewitness identification
    evidence, the problems with Shawn Georges testimony, and the possible
    contamination of his photo lineup evidence. The Crown argues that the absence
    of an application for a directed verdict on the identification issue is
    telling, given that the appellant sought a directed verdict on a different
    basis in regard to some of the counts. This, the Crown says, is a tacit
    acknowledgment that there was some evidence of identity on which the jury,
    properly instructed, could have convicted. The Crown argues that the verdicts
    are supportable on a reasonable view of the evidence and adds that this court
    is entitled to consider the appellants failure to testify in assessing the
    reasonableness of the verdicts.

Discussion

[51]

As
    the Supreme Court explained in
R. v. Biniaris
, 2000 SCC 15, [2000] 1
    S.C.R. 381, at para. 40, juries are required to act judicially, which means
    not only acting dispassionately, applying the law and adjudicating on the basis
    of the record and nothing else, but also arriving at a conclusion that does
    not conflict with the bulk of judicial experience. In determining whether
    this has occurred, the jurys verdict is entitled to deference. The jury heard
    the evidence and saw the witnesses, and stands in a superior position to an
    appellate court. Unease or doubt about a verdict does not render it unreasonable.
    Nor is the court to act as a thirteenth juror in determining whether a
    verdict is unreasonable:
Biniaris
,
at para. 40. Instead, as the court explained in
R. v. Wills
,

2014 ONCA 178, 318 O.A.C. 99, affd
    2014 SCC 73, [2014] 3 S.C.R. 612, at paras. 30-31, the court examines the
    cogency of the evidence having regard to the risk of wrongful convictions in
    specific contexts. The court does not weigh the evidence for purposes of making
    its own determination of guilt or innocence, comparing its determination with
    the verdict reached by the jury and equating disagreement with
    unreasonableness. The court seeks to establish only whether a particular
    verdict goes beyond the bounds of reasonableness.

[52]

Doherty
    J.A. discussed unreasonable verdicts and eyewitness identification in
Tat
at paras. 99-100:

While recognizing the limited review permitted under s.
    686(1)(a)(i), convictions based on eyewitness identification evidence are
    particularly well suited to review under that section. This is so because of
    the well-recognized potential for injustice in such cases and the suitability
    of the appellate review process to cases which turn primarily on the
    reliability of eyewitness evidence and not the credibility of the eyewitness.

T
he
    extensive case law arising out of the review of convictions based on eyewitness
    identification reveals that the concerns about the reasonableness of such
    verdicts are particularly high where the person identified is a stranger to the
    witness, the circumstances of the identification are not conducive to an
    accurate identification, pre-trial identification processes are flawed and
    where there is no other evidence tending to confirm or support the identification
    evidence. (Citations omitted.)

[53]

I
    agree with the appellant that the concerns Doherty J.A. identified are present
    in this case. The appellant was a stranger to the witnesses who identified him;
    the black man was observed in the context of a very stressful home invasion,
    during which he took steps to conceal his identity and warned witnesses not to
    look at him; and Shawn Georges pre-trial identification of the appellant by
    the photo lineup process was deeply flawed. The strongest evidence against the
    appellant came from a
Vetrovec
witness, and there was no independent
    confirmatory evidence supporting his identification of the appellant, and no
    fingerprint or DNA evidence.

[54]

I
    will review the eyewitness evidence briefly before addressing Georges
    evidence.

The eyewitness evidence

[55]

C.
:
    C. testified that he was too frightened to look at the assailants and could not
    provide a description as a result.

[56]

K
.
:
    K. described the black man as tall; 6 5 or more with a medium build;
    approximately 35 years old; with long black hair. He was wearing glasses and
    had brown eyes. He was wearing a heavy winter coat with fur around the hood,
    light green or beige. He had fabric around his neck that he used to cover his
    mouth and nose when she looked at him.

[57]

M
.
:

M. described the black man as taller than her (she is 53-4) with a
    skinny build in his 20s, then in cross-examination added late 20s-early 30s.
    She did not recall him wearing glasses. He was wearing a long black jacket with
    a fur hood and black gloves. She never looked at his face.

[58]

C.s
    mother M.
:

C.s mother M described the black man as taller than her
    height of 410-11, probably between five and six feet. Then she added:
    Maybe two feet taller than me. He sounded Jamaican or black. He had a black
    beard and black braided hair. He was wearing dark glasses so she could not see
    his eyes. He wore a dark jacket, possibly black leather, along with black
    leather gloves. He wore a mask or something that hid his entire neck.

[59]

J
.
:

J. described the black man as tall, at least one foot taller than his
    height of 164 cm. He was about 30 years old and had a moustache and goatee. He
    could not see his hair, but agreed that he could have been bald. He was wearing
    dark glasses and a green coat with patches and a hood, and dark gloves.

[60]

E
.
:

E. described the black man about 6 tall, with a medium build, in his
    thirties. He had a moustache and a goatee and she agreed that he could have
    been bald. He was wearing sunglasses a dark green jacket with fur trim around
    the hood, black gloves, and a bandana. She did not hear an accent.

[61]

The
    neighbour
: The neighbour did not know how tall the man he saw was, but put
    his weight at around 150 lbs, and placed his age at around 17-18. He could not
    see if the man had any facial hair, but looked bald under his toque. He was
    wearing a brown winter jacket with a fur hood.

Summary of the eyewitness evidence

[62]

The
    Crowns acknowledgement that its case was far from overwhelming is an
    understatement. The case depended entirely on identification evidence and the
    quality of that evidence was poor: the various descriptions of the black man
    provided by the victims and the description of the man the neighbour saw are
    vague, general, and often inconsistent.

[63]

For
    example, the victims testified that the black man was tall, although how tall
    he was is not clear. The neighbour testified that the man he saw was 17-18
    years of age; one victim testified that the black man was in his 20s, and
    still others testified that he was about 30 or 35 years of age. Depending on
    the witness, the black man was skinny or had a medium build. His facial hair
    also differed depending on the witness: according to one, he had a black beard,
    but other witnesses testified that he had a moustache and goatee. The man the
    neighbour saw could have been bald, but some victims said the black man had
    long black hair, or braided hair. The only consistent identification evidence
    comes from the in-dock identification by several of the victims, but that
    identification was problematic for the reasons I have outlined.

Shawn Georges evidence

[64]

Not
    only is the weakness of the eyewitness evidence apparent; the Crowns strongest
    evidence is deeply problematic, for it came from Shawn George, an unsavoury
    witness with a lengthy criminal record whose testimony necessitated a
Vetrovec
caution. At the time of his testimony, George was awaiting trial for his part
    in the crimes.

[65]

In
    his closing submissions at trial, Crown counsel acknowledged that George had
    admitted to multiple lies to the police on multiple occasions, and had changed
    his testimony between statements and his evidence at the preliminary hearing,
    and between the preliminary hearing and the trial. He was, as Crown counsel put
    it, the kind of man who will say whatever suits his purpose to try and get him
    where he wants.

[66]

Georges
    description of the black man contradicts those of the other witnesses. He
    described the black man as a big fucker; 30-40 years of age; 240-250 lbs.,
    with a moustache and goatee and dreadlocks. His photo lineup identification was
    problematic for the reasons set out above. Although the Crown argues that
    Georges testimony is confirmed by several pieces of evidence, the confirmatory
    evidence proffered at trial does not support the most important issue 
    Georges identification of the appellant as the black man who committed the
    offence.

The verdict is unreasonable

[67]

The
    question on appeal is not whether there is
any

evidence
    capable of supporting a conviction, as it would have been on an application for
    a directed verdict but, instead, whether, considering the evidence as a whole,
    the verdict was one that a properly instructed jury, acting judicially, could
    reasonably have rendered. This determination necessarily involves assessing the
    evidence, not merely identifying its existence. See
R. v. Yebes
,
    [1987] 2 S.C.R. 168;

Biniaris
;
R. v. W.H.
, 2013
    SCC 22, [2013] 2 S.C.R. 180; and in this court,
R. v. Pannu
,
    2015 ONCA 677, 127 O.R. (3d) 545, at paras. 161-164.

[68]

I
    am satisfied that no reasonable jury could have convicted the appellant on the
    evidence in this case, even assuming the jury had been charged properly. The
    absence of an application for a directed verdict on the identity issue is of no
    moment in these circumstances.

[69]

Nor does the appellants failure to testify assist the
    Crown.
An accuseds decision not to
    testify may be a relevant consideration in assessing whether a verdict is
    unreasonable:
Corbett v. R.
,
[1975] 2
    S.C.R. 275, at pp. 280-1;
Pannu
,
at para. 175.
But this was not a case in which the evidence cried
    out for an explanation that only the appellants testimony could have provided,
    such that he must accept the consequences of having remained silent. It was a
    very weak Crown case built on identification. The failure of the accused to
    testify does not undermine his argument that the verdict was unreasonable.

[70]

This
    was a case based entirely on eyewitness evidence. The weakness of the
    eyewitness identification evidence; the flaws in the in-dock and lineup
    identification; the unreliability of Shawn Georges testimony; and the absence
    of independent confirmatory evidence relevant to the identity of the black
    man combine to render the appellants conviction unreasonable. In short, there
    is evidence that the crime was committed by a black man, but it is not
    reasonable to conclude that the appellant was the black man.

CONCLUSION

[71]

I
    would allow the appeal, set aside the convictions, and enter acquittals on all
    counts.

Released:

DW                                                  Grant
    Huscroft J.A.

JUL 18 2018                                    I agree
    David Watt J.A.

I
    agree G.T. Trotter J.A.


