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THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject to this section,
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(2)
    Subsection (1) does not apply

(a) in a case where the information
    relates to a young person who has received an adult sentence;

(b) in a case where the information
    relates to a young person who has received a youth sentence for a violent
    offence and the youth justice court has ordered a lifting of the publication
    ban under subsection 75(2); and

(c) in a case where the publication of
    the information is made in the course of the administration of justice, if it
    is not the purpose of the publication to make the information known in the
    community.

(3) A young person referred to in
    subsection (1) may, after he or she attains the age of eighteen years, publish
    or cause to be published information that would identify him or her as having
    been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
    of the Revised Statutes of Canada, 1985, provided that he or she is not in
    custody pursuant to either Act at the time of the publication.

111(1)          Subject to this section,
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    information related to a child or a young person, if it would identify the
    child or young person as having been a victim of, or as having appeared as a
    witness in connection with, an offence committed or alleged to have been
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138(1)          Every person who
    contravenes subsection 110(1) (identity of offender not to be published), 111(1)
    (identity of victim or witness not to be published), 118(1) (no access to
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    (destruction of records) or 46(1) (prohibition against disclosure) of the
Young
    Offenders Act
, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence
    and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on
    summary conviction.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.B., 2017 ONCA 653

DATE: 20170814

DOCKET: C62637

Juriansz, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.B.

Appellant

Cate S. Martell, for the appellant

Christine L. Tier, for the respondent

Heard: June 2, 2017

On appeal from the conviction entered on September 11,
    2015 by Justice John D. Takach of the Ontario Court of Justice.

Juriansz J.A.:

A.

Overview

[1]

On October 11, 2014, a group of men gathered outside Sheilas
    Place/Ellis Kitchen Bar, (Sheilas Place), a bar and restaurant in Hamilton.
    Different factions of the group began fighting. A person then ran up to the
    group, fired several shots from a handgun at close range, and fled on foot. Three
    people were seriously injured. The incident was caught on Sheilas Places
    video surveillance. The whole incident lasted only a few seconds.

[2]

The appellant was charged and found guilty of
    three counts of each of the following offences: aggravated assault (
Criminal
    Code
,

R.S.C. 1985, c. C-46, s. 268); use of a
    firearm in the commission of an indictable offence (s. 85(1)(a)); discharge of a
    firearm with intent (s. 244(1)); and breach of probation (
Youth
    Criminal Justice Act
, S.C. 2002, c. 1, s. 137). He was
    also convicted of possession of a prohibited firearm (
Criminal Code
, s. 95(1)); and possession of a firearm while prohibited (s. 117.01(1)).

[3]

The only issue at trial was identity. Was the appellant the shooter
    captured on the video? The only evidence of identity was the testimony of three
    witnesses who did not see the incident but later watched the video surveillance
    footage and claimed to recognize the shooter as the appellant. The shooters facial
    features were not visible on any of the videos. Two of the identifying
    witnesses were police officers who had interacted with the appellant in the
    past. The third witness worked at Sheilas Place and had served the appellant
    as a customer. There was no other evidence connecting the appellant to the
    shooting or even showing he was in the vicinity at the time. The appellant did
    not testify.

[4]

The appellant challenges his conviction on the basis that the trial
    judge erred in admitting the recognition evidence of the civilian witness, erred
    in weighing the recognition evidence or, alternatively, that the verdict was unreasonable.
    For the reasons that follow, I would conclude that the trial judge erred in law
    by failing to properly scrutinize the reliability of the recognition evidence.
    I would also conclude that the verdict is unreasonable as the recognition
    evidence, properly scrutinized, cannot support a finding of guilt. I would set
    aside the conviction and enter an acquittal.

B.

Decision of the trial judge

(1)

The trial judge cautioned himself extensively and appropriately

[5]

The trial judge cautioned himself appropriately on a number of issues.
    He reminded himself that he had to render a decision dispassionately and be
    persuaded of the appellants guilt beyond a reasonable doubt. He noted that witness
    demeanour was important to a minimal extent, and that, in the case of police
    officers, the contextual completeness of their note-taking and consistency between
    their notes and testimony was important.

[6]

The trial judge noted that the only issue was the identity of the
    shooter and instructed himself appropriately and extensively on the dangers of
    identification evidence. He said: Shortly stated, theres probably no other
    area of the law that potentially may be [more] responsible for a miscarriage of
    justice than that of a well-intentioned but incorrect identification of an
    accused.

[7]

Citing judicial authority, the trial judge said, any trial judge must
    instruct himself on the need for caution when dealing with such evidence. He
    recognized [i]t is not just an issue of credibility but involves the
    inherent frailties of identification evidence simply because of the
    unreliability of human observation and recollection.

[8]

The trial judge emphasized these principles by remarking that: Mis-identification
    has plagued the justice system for years. Courts from Canada, the United States
    and Great Britain have dealt with these issues from time immemorial. He
    continued:

It is important to remember the various factors that can affect
    reliability of eyewitness identification evidence and remember that mistaken
    identification has been responsible forthe wrongful conviction of persons who
    have been mistakenly identified by one or more honest witnesses.

[9]

The trial judge quoted the Supreme Court of Canadas observation in
R.
    v. Hibbert
, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 50, that:

the 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.

He recognized that the same applies when the trier of
    fact is a judge.

[10]

The trial judge then noted that this case was somewhat different from a
    straightforward eyewitness identification case because here, all three
    witnesses claimed to have known the accused from previous dealings. This was,
    he said, an important distinction. He explained he had held a
voir dire
and had issued a separate ruling in which he had decided the three witnesses
    would be permitted to give opinion evidence as to the identity of the shooter
    based on the DVD video of the shooting.

(2)

Summary of the evidence

(a)

Constable Kay

[11]

Constable Amy Kay had arrested the appellant for drug offences
    approximately 16 days before the shooting incident. She had spoken with him for
    35 or 40 minutes at that time. As an undercover officer, she had seen the
    appellant on the street during the previous 2months and had observed him at
    least 15 times, all in relation to drug investigations. She described the
    appellant as skinny, about 58 in height, with freckles and cornrows in his
    hair; a young black male with light skin. She testified that she had seen him
    run, walk and ride a bike. She had observed him near Sheilas Place a number of
    times. She was not involved in the investigation of the shooting and had been
    on vacation when it occurred. When she returned to work five days after the
    shooting she was called in to view the video. She identified the appellant as
    the shooter in the video. In court, she reviewed channel 13 of the video and
    identified the appellant as the shooter in the video.

(b)

Constable Howard

[12]

Constable Howard had stopped the appellant at the end of August 2014. He
    had been on his way to an investigation when he came upon the appellant and
    another individual in an alley. Both were on foot. Constable Howard spoke to
    both individuals for what he described as minutes. He had also seen the
    appellant on other occasions in the area around Sheilas Place.

[13]

Constable Howard described the appellant as a lighter-skinned black male,
    57, very thin build, with longer black hair down his neck in cornrows. The
    appellant always had the same hairstyle when Constable Howard had seen him.

[14]

Constable Howard identified the appellant in a photo lineup as the
    person in the video. He relied on channel 13 of the video for his opinion, but
    watched channels 14 and 15 as well. He said he identified the appellant on the
    video because of his frame, body size, lighter complexion and it appeared to
    him that the shooter had the same hairstyle as the appellant. He too watched
    the video in court and identified the appellant as the shooter in the video.

(c)

T.C.

[15]

T.C. was the third witness to identify the appellant as the shooter in
    the video. She testified behind a screen that prevented her from seeing the
    appellant in court. She did not identify him in court. She had worked at Sheilas
    Place during the summer and early fall and had been working on the day of the
    shooting. She did not actually see the shooting. Afterwards, she heard other
    employees who were watching the video on the premises security cameras say
    oh, shit  I cant believe its him. At that time, she did not see the video
    and did not know to whom they were referring. After the police arrived, she
    watched the video with the investigating officer and said words to the effect
    of: I know that kid. She did not know his name but later picked him out from
    a photo lineup, without hesitation.

[16]

T.C. was acquainted with the appellant as a customer of Sheilas Place,
    who came in during the time she worked there. She had no specific conversation
    with him except when she was serving him. She said he was of medium height with
    light (black) skin and that he wore his hair in braids/cornrows or a ponytail. In
    court, when channel 13 was played for her, she said she believed she had seen a
    different video when she made her initial identification. She said this
    doesnt look like the way I watched it. She was then shown channel 14, and
    agreed this was one of the angles she had seen. The investigating officer
    testified there was no other video, and the trial judge concluded that T.C. had
    seen the surveillance video channels played in court and it was from those
    videos that she had made her identification at the police station.

(d)

Jonathan Mack

[17]

Jonathan Mack was one of the individuals who was shot during the
    incident. He did not recognize and could not identify the shooter. He said the
    shooter was a young black kid with lighter skin. He said the shooter may have
    had braids or dreadlocks, but he could not tell the shooters hairstyle because
    he thought the shooter was wearing a toque. He admitted, I didnt get a good
    look at him either. He explained that it all happened fast.

(3)

The trial judges assessment of the evidence and his reasoning

[18]

The trial judge reviewed the facts of the altercation and shooting that
    were apparent on the video surveillance. The video surveillance showed 16
    different views of both inside and outside Sheilas Place. Only three of the
    video views depicted any part of the shooting. The best view was on channel 13.

[19]

The trial judge made repeated comments in his reasons about the poor
    quality of the video. He observed several times that one could not make out the
    shooters facial features on the video. He said Clearly, the facial features
    of the accused are not visible on the video. He said, quite candidly he
    could not make out the hair features that both police officers testified they
    could see. He said, I have already noted that facial features were not visible
    in the video. In his reasons, referring to T.C.s identification of the
    appellant at the police station, he said, Again, there were no facial features
    available in any of the video channels that would have enabled her to recognize
    the face.

[20]

The trial judge was satisfied the appellant met the general description
    of the shooter in the video. While there was no evidence before the court about
    the appellants height, weight, skin colour, hairstyle, build or racial origin,
    the trial judge said he had observed the appellant during the trial and
    expressed the view the appellant was of slim to medium build, between 57 and
    59, black, lighter skin tone, with dark hair, and what I would describe as a
    higher hairline on his forehead. He added that that description is consistent
    with my view of the video, that his general appearance in the courtroom is at
    least very similar to the shooter, though he wore glasses in the courtroom.

[21]

Despite the absence of any facial features of the shooter on the video,
    the trial judge was satisfied the witnesses could identify the appellant as the
    shooter from the way the shooter moved. He reasoned:

There are many individuals who, when they perform various acts,
    either sporting acts or normal acts involving walking, movement, gestures, that
    are incapable of significant description unless theres some special
    characteristic. Nevertheless, even without facial features, one, from a
    distance, is able to tell who those individuals are, whether it is a walk, a gait
    that cant really be described or whether the individual is performing some
    specific act such as running, or as Ive indicated, performing a sporting
    manoeuvre.

He said that in this case clearly, in the video there
    are movements by the shooter that may be identified by others. He added [i]t
    was only the conduct of the shooter and the physical attributes that could have
    spawned a recognition of him by any of the three witnesses.

[22]

The trial judge recognized that none of the three witnesses identified
    any special characteristic of the appellants movement. However, he cited the
    comments of Blair J.A. in
R. v. Berhe
, 2012 ONCA 716, 113 O.R. (3d)
    137 at para. 22 that it is not necessary for a recognition evidence witness to
    show that he or she can point to some unique identifiable feature or
    idiosyncrasy of the person to be identified. He acknowledged that Blair J.A.
    was in that case addressing threshold admissibility, but reasoned that Blair J.A.s
    remarks are not irrelevant on the ultimate issue, that is, the weight to be
    given to the witness testimony that the accused was the shooter.

[23]

The trial judge emphasized the confidence with which the recognition witnesses
    identified the appellant as the shooter. He observed that Constable Kay was certain
    and confident of her identification of the appellant as the shooter notwithstanding
    the notation in her book of not being 100% certain. Constable Howard was very
    confident of the identification and he had no doubt about it. Both relied on
    their previous knowledge of him in their descriptions of the appellant. According
    to the trial judge, T.C. expressed no doubt about the identity of the shooter.
    As soon as she saw the video channels available to her, she told the police
    that she knew who the shooter was.

[24]

The trial judge found it significant that three witnesses identified the
    appellant as the shooter. He said that the evidence of one of the police
    officers or perhaps even two of the identifying witnesses standing alone may
    not have been enough to establish culpability beyond a reasonable doubt.
    However, in considering the totality of the evidence including the evidence of
    the three identifying witnesses, as well as the lineup identificationof one of
    the witnesses he was persuaded beyond a reasonable doubt that the accused was
    the shooter and convicted him.

C.

Discussion

[25]

I have already noted that the trial judge properly instructed himself
    and cited the appropriate case law. At the same time, his reasons show he did
    not actively consider the matters about which he initially cautioned himself. In
    this, he erred in law.

[26]

This case is similar to
R. v. Olliffe
,
2015 ONCA 242,
    322 C.C.C. (3d) 501. In
Olliffe
, this court found the trial judge had
    erred in law by failing to critically analyse the problematic aspects of the
    recognition evidence led in that case. The court said at para. 43 that the trial
    judge was required to approach [the recognition witness] testimony with
    caution and grapple with the problems in her evidence to determine whether it
    was reliable.

[27]

The trial judge in this case erred in law in the same way. He failed to
    approach the recognition evidence with caution and to grapple with the evident problems
    in the evidence.

[28]

In
Olliffe
, the court went on to find that in addition to the
    legal error, the verdict was unreasonable. I would do so in this case as well.

(1)

Relevant principles

(a)

Frailty of eyewitness identification

[29]

Eyewitness identification is inherently unreliable.
    It is difficult to assess, is often deceptively reliable because it comes from
    credible and convincing witnesses, and is difficult to discredit on
    cross-examination for those same reasons. Studies have shown that triers of
    fact place undue reliance on such testimony when compared to other types of
    evidence. As a result, many wrongful convictions result from faulty,
    albeit convincing, eyewitness testimony, even in cases where multiple witnesses
    identify the same person. See
R. v. Miaponoose

(1996),
110 C.C.C. (3d) 445
(Ont. C.A.)
,
at pp. 450-451
, and
R. v. A. (F.)

(2004),
183 C.C.C. (3d) 518
(Ont. C.A.)
,
at para. 39
.

[30]

For these reasons, although identification is a
    matter of fact, appellate courts will subject such findings to closer scrutiny than
    other findings of fact. Justice Doherty summarized this approach in the context
    of an
unreasonable

verdict
argument in
R. v. Tat

(1997),
117 C.C.C. (3d) 481 (Ont.
    C.A.),
at paras. 99-100,
where he said:

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.

[31]

As stated by Charron J.A. (as she then was) in
Miaponoose
,

at
    p. 422: Eyewitness testimony is in effect opinion evidence, the basis of which
    is very difficult to assess. The witness' opinion when she says that is the
    man is partly based on a host of psychological and physiological factors, many
    of which are not well understood by jurists. Justice Charron goes on to quote
    from the Law Reform Commission of Canada Study Paper on
Pretrial Eyewitness
    Identification Procedures
(1983), at p. 10:

Simply by way of illustration, psychologists have shown that
    much of what one thinks one saw is really perpetual filling-in. Contrary to the
    belief of most laymen, and indeed some judges, the signals received by the
    sense organs and transmitted to the brain do not constitute photographic
    representations of reality. The work of psychologists has shown that the
    process whereby sensory stimuli are converted into conscious experience is
    prone to error, because it is impossible for the brain to receive a total
    picture of any event.
Since perception and memory are
    selective processes, viewers are inclined to fill in perceived events with
    other details, a process which enables them to create a logical sequence. The
    details people add to their actual perception of an event are largely governed
    by past experience and personal expectations.
Thus the final recreation
    of the event in the observer's mind may be quite different from reality.

Witnesses are often completely unaware of the interpretive
    process whereby they fill in the necessary but missing data. They will relate
    their testimony in good faith, and as honestly as possible, without realizing
    the extent to which it has been distorted by their cognitive interpretive
    processes. Thus, although most eyewitnesses are not dishonest, they may
    nevertheless be grossly mistaken in their identification. [Emphasis added.]

Justice Charron continues: While the circumstances
    surrounding the witness' identification can be subject to scrutiny in
    cross-examination, many of the more subjective processes that have led to it
    are impossible to expose in this fashion.

[32]

Witness identification based on video recordings can under
    certain circumstances be more reliable as it allows repeated and unhurried
    consideration.
For example,
R. v. Nikolovski
, [1996] 3 S.C.R.
    1197, at para. 23, contemplates a videotape of sufficient clarity and quality
    that it would be reasonable for the trier of fact to use it as the sole basis
    for identifying the accused:

It is precisely because videotape evidence can present such
very
    clear and convincing evidence of identification
that triers of fact can use
    it as the sole basis for the identification of the accused before them as the
    perpetrator of the crime. It is clear that a trier of fact may, despite all the
    potential frailties, find an accused guilty beyond a reasonable doubt on the
    basis of the testimony of a single eyewitness. It follows that the same result
    may be reached with even greater certainty upon the
basis of good quality
    video evidence.
Surely, if a jury had only the videotape and the accused
    before them, they would be at liberty to find that the accused they see in the
    box was the person shown in the videotape at the scene of the crime committing
    the offence. If an appellate court, upon a review of the tape, is satisfied
    that it is of
sufficient clarity and quality
that it would be reasonable
    for the trier of fact to identify the accused as the person in the tape beyond
    any reasonable doubt then that decision should not be disturbed. Similarly, a
    judge sitting alone can identify the accused as the person depicted in the
    videotape. [Emphasis added.]

The kind of clear video recording described in
Nikolovski
,
    however, sharply contrasts with the video recording in this case. The trier of
    fact must use greater caution where the video or photo quality is poor:
R.
    v. Cuming

(2001), 158 C.C.C. (3d) 433 (Ont. C.A.), at para. 19.

(b)

Recognition evidence as a subset of eyewitness identification

[33]

Recognition evidence is a subset of eyewitness identification evidence,
    in which the eyewitness identification is based on prior acquaintance. The
    recognition witness may, or as in this case may not, have been present at the
    scene of the crime.

[34]

Hourigan J.A. stated in
Olliffe
at para. 39, recognition
    evidence is merely a form of identification evidence. As such, [t]he same
    concerns apply and the same caution must be taken in considering its
    reliability as in dealing with any other identification evidence.

[35]

The test for admitting recognition evidence is established in the
    Supreme Court of Canadas decision in
R. v. Leaney
,
[1989] 2 S.C.R. 393
and
re-affirmed
    by
Rosenberg J.A. in
R. v. Brown
,
215 C.C.C. (3d) 330 (Ont. C.A.)
. At para. 39
of
Brown
,
    Rosenberg J.A. stated that "this type of non-expert opinion evidence is
    admissible provided that the witness has a prior acquaintance with the accused
    and is thus in a better position than the trier of fact to identify the
    perpetrator".

[36]

In
Berhe
,
this court considered the proposition that a
    recognition witness must be able to point to idiosyncrasies of physical
    appearance or movement peculiar to the person identified in order for his or her
    opinion to satisfy threshold admissibility. The proposition was asserted by
    Harradence J.A. in his dissent in
Leaney
, 1987 ABCA 206, 38 C.C.C.
    (3d) 263, at para. 40:

Notwithstanding this general principle of exclusion, there may
    be occasions when non-expert opinion evidence will be relevant and admissible. Where
    a witness is so familiar with the accused that he can identify idiosyncrasies
    of physical appearance or movement, not apparent to the trier of fact in the
    courtroom, that witness should be able to give his opinion. Two criteria must
    be satisfied. First the witness must be sufficiently familiar with the accused
    so as to be aware of the unique features which form the basis of the opinion.
    Second, the witness must be able to state with particularity what the
    idiosyncrasies are and show where and how they are revealed on the videotape.
    In this way the witness is contributing knowledge not otherwise available to
    the trier of fact. Consideration of these issues should take place within the
    context of a
voir dire
so the accused can challenge the evidence before
    it is admitted.

[37]

This court rejected the proposition as a requirement
for threshold admissibility
.
    The court in
Berhe
instead held at para. 22 that the identification of
    idiosyncrasies of physical appearance or movement were relevant when
    considering the ultimate reliability of the evidence. I will expand further on
    this below.

(2)

Application of principles to the trial judges assessment of the
    evidence

(a)

The only inculpatory evidence was the video

[38]

It must be kept in mind that the only evidence tying the appellant to
    the shooting was the recognition evidence of the three witnesses. There was no
    evidence that the accused had any reason to run up and shoot the victims that
    night or even that he knew the victims or anyone else at the scene. There was
    no other evidence that he was in the area around the time of the incident.

(b)

The poor quality of the video

[39]

The trial judge made findings of fact that the video was unclear, that
    facial features were not visible in the video, and that one could not recognize
    the shooters face. He repeated these findings several times, as summarized
    above. The trial judge also made a finding of fact that the shooters hair
    features could not be made out on the video. I draw this from his candid statement
    that he could not make out the shooters hair features.

[40]

The trial judge also stated at p. 11 that in observing the accused in
    court himself, he could say no more than that the accuseds appearance was at
    least very similar to the shooter. That is, the trial judge himself, looking
    at the accused in court, over several days, could not identify him as the shooter
    in the video.

[41]

At the outset of her argument in this court, appellant counsel insisted
    on playing the surveillance video to demonstrate its poor quality. Playing the
    video made counsels point clearly. There should be no misunderstanding of the
    trial judges findings that the facial features of the shooter are not visible
    in the video. This is not the result of the shooters face being obscured or
    turned away from the camera. In fact, on channel 13 the shooter is facing the
    surveillance camera at times. The facial features of the shooter are not
    visible on the video because it is of such poor quality that it is blurred and
    detail is not displayed.

[42]

The videos poor quality was apparent to the witnesses. For example,
    Officer Kay in cross-examination at trial agreed that she could not see on the
    video whether the shooter has any facial hair, whether he was wearing glasses
    (though she noted the absence of any reflection) or even whether he is wearing
    a sweater or a jacket.

[43]

Given the poor quality of the video and the lack of any other evidence
    connecting the appellant to the shooting, it was imperative that the trial
    judge exercise the utmost caution in assessing the identification evidence.

(c)

Identification from the way the shooter moved

[44]

As outlined above, the trial judge found as a fact the appellants
    facial features could not be seen or recognized on the video: It was only the
    conduct of the shooter and the physical attributes that could have spawned a recognition
    of him by any of the three witnesses. Nevertheless, he was satisfied that the
    witnesses could identify the appellant as the shooter from the way the shooter moved
    in the video. The trial judge reasoned even without facial features, one, from
    a distance, is able to tell who those individuals are, whether it is a walk, a
    gait that cant really be described or whether the individual is performing
    some specific act such as running, or as Ive indicated, performing a sporting
    manoeuvre. The trial judge said clearly, in the video, there are movements by
    the shooter that may be identified by others.

[45]

The trial judge recognized that none of the three witnesses identified
    any special characteristic of the appellants movement. However, as noted
    above, he relied on
Berhe
for the proposition that it was not
    necessary for a witness to point to some unique identifiable feature or
    idiosyncrasy of the person to be identified. In my view, he misread
Berhe
.

[46]

The issue in
Berhe
was the threshold admissibility of the
    recognition evidence.
Berhe
also confirmed the continued importance of
    unique identifiable features in determining the ultimate reliability of the
    evidence. The importance of unique identifiable features varies with how well
    the witness knows the person he or she identifies. The court made this clear by
    endorsing the following comment by Holmes J. in
R. v. Panghali
, [2010]
    B.C.J. No. 2729 at para. 42:

Common experience teaches that people have vastly different
    abilities to identify and articulate the particular features of the people in
    their lives that they know, recognize, and distinguish on a regular basis.
    Where a witness has but little acquaintanceship with the accused, his or her
    recognition evidence may be of little value unless the witness can explain its
    basis in some considerable detail. But at the other end of the spectrum, the
    bare conclusory recognition evidence of a person long and closely familiar with
    the accused may have substantial value, even where the witness does not
    articulate the particular features or idiosyncrasies that underlie the
    recognition.

[47]

In my view, the trial judge was wrong to interpret
Berhe
as
    minimizing the importance of unique identifiable features in determining the
    weight of recognition evidence. Here, none of the witnesses had a long and
    closely familiar relationship with the appellant. Constable Howard had seen
    the appellant in the neighbourhood and had spoken to him once for minutes at
    the end of August. T.C. had served the appellant an unspecified number of times
    in the restaurant and had seen him there, had spoken to him only when taking
    his order and did not know his name. Constable Kay had the greatest
    acquaintance with the appellant  having observed him 10 to 15 times as an
    undercover officer and having spoken with him on one occasion for 35-40
    minutes. This was a case in which the inability to articulate the particular
    features or idiosyncrasies that underlie the recognition was important and
    should have been weighted appropriately.

(d)

Problems with the shooters movement as the basis for identification

[48]

There are additional problems with the trial judges acceptance of the
    way the shooter moved in the video as the basis of the witnesses
    identification of the appellant as the shooter.

[49]

First, the trial judge did not differentiate among the three
    witnesses in his discussion. In fact, only Constable Kay relied on the way the
    appellant moved in her identification. She said she had seen him walk and run
    before and that played a part in her identification of him. She could not,
    however, point to anything distinctive about the way the appellant ran. She
    also said she knew the way the appellant held his hand on his pants
. She agreed that looking at the video one could not
    tell if the shooter had hair in cornrows, or had regular afro hair, or hair that
    was braided.

[50]

Neither Constable Howard nor T.C. relied on any feature of the
    appellants movement in their identifications. The reasons of the trial judge suggest
    he was speculating that they must have relied on some aspect of the shooters
    movement to identify him. He seems to have reasoned that it must have been the
    way the shooter moved because nothing else about him could possibly be
    discerned on the video.

[51]

The Crown submits that although Officer Howard and T.C. may not have
    seen the appellant run, their previous observations would have made them
    familiar with the way he moved generally and the trial judge could rely on this
    familiarity in finding their identifications reliable.

[52]

Putting aside that the shooter in the video is not seen sitting at a table,
    walking, or standing on the street engaged in conversation as Constable Howard
    and T.C. observed the appellant, and that the trial judge also saw the
    appellant standing and sitting for several days and could not recognize him on
    the video, there is a more fundamental error here. Rather than exercising
    caution in assessing the recognition evidence, the trial judge seems to have actively
    sought a basis to bolster it. It is one thing to attach weight to a recognition
    witness evidence that relies on the way the accused moves without pointing to
    anything distinctive. It is quite another to surmise a basis for identification
    that the witness himself or herself does not claim.

[53]

Constable Howard never claimed he recognized the shooter by the way he
    moved. Constable Howard never even mentioned the way the shooter or the appellant
    moved. He said he recognized the appellant from his body size, lighter
    complexion and hair.

[54]

T.C. also made no mention of the way the shooter or the appellant moved.
    T.C. described the appellant as medium height, light-skinned with
    braids/cornrows (and that he also occasionally wore his hair in a ponytail). Most
    troubling is that on two occasions she indicated she relied on facial
    recognition to know the appellant and his friends.

[55]

The first time was when T.C. identified the appellant in the photo
    lineup. Before showing her the photo line-up, Officer Murphy asked her how she would
    be able to recognize the shooter. T.C. responded I know exactly who he is by
    his face.

[56]

The second occasion was in cross-examination:

Q. Did you ever have a conversation with him or talk to him?

A. No.

Q. All right. Were you ever in his presence when you would talk
    to other people?

A. Well, if I had to help out like serving food or serving drinks
    like I was around maybe like in the same room, but like I said, I dont
    associate with the same people.

Q. All right, and did you know some of the people that he
    associated with?

A. Like knew their face, didnt know them as a person to talk
    to them.

[TRNS, September 8, 2015, pp. 13-14].

[57]

Given his finding that there was no facial features available in any of
    the video channels that would have enabled her to recognize the face, the
    trial judge should have considered whether T.C. picked the appellant out of a
    photo lineup (that clearly showed his face) because he was the youth she
    thought she had recognized in the video.

[58]

There is yet another reason that the trial judge should have exercised
    more caution before accepting T.C.s identification of the appellant. At trial,
    after viewing the video, she could not identify the appellant as the shooter.
    In examination-in-chief, the Crown never asked her to identify the shooter, but
    relied on reviewing the earlier identification she had made at the police
    station. Upon viewing channel 13, which displayed the clearest view of the
    shooter, T.C. said the video footage shown to her at trial was different from what
    she remembered seeing when she originally made her identification. The trial
    judge did not mention the fact that on cross-examination at the trial, T.C.
    said that, from the video she was shown in court, she could not identify the
    shooter as the man she had served in the restaurant:

Q. Okay. From the video that you saw today, is it fair to say
    you cant- you cant identify who that is though from the videos that you were
    shown in, in court today?

A. Its the angles, its not as  no, cause its not  its
    not what I originally saw (at p. 22, l.3-7).

[59]

Rather, upon being satisfied T.C. had seen the same video views at the
    police station as were shown to her at trial, he did not hesitate in relying on
    her earlier identification as reliable. He failed to exercise the requisite
    caution by making nothing of the fact that T.C. could not identify the shooter
    as the appellant after viewing the video at trial.

[60]

Another illustration of the trial judges failure to exercise the
    requisite caution is that he left hanging his observation that both police
    officers see hair features that quite candidly I cannot make out. Both claimed
    to see hair turned up at the sides of the shooters face. Absent an explanation
    of why he should not trust his own eyes, this observation required some
    explanation. The trial judge obviously assumed the officers must have had
    superior visual acuity. This required explanation because the poor-quality
    video did not display minute detail to be perceived by superior visual acuity. The
    trial judge failed to consider the other possibility that the officers, when
    looking at a fuzzy image of someone in fact unknown, unintentionally
    filled-in details of a man familiar to them.

(e)

The fallacy of mistaking certainty for accuracy

[61]

The trial judge also failed to keep in mind his initial caution about the
    fallacy of mistaking certainty for accuracy. In his analysis, he emphasized how
    certain each recognition witness was in his or her identification.

[62]

At the outset, the trial judge identified the consistency of police
    officers notes with their testimony as an important issue. However, he was
    untroubled by the conflict between Officer Kays notes and her testimony at
    trial. He said, In court, Constable Kay was certain and confident of her
    identification of him notwithstanding the notation in her book of not being
    100% certain.

[63]

Officer Howard was very confident of the identification and he had no
    doubt about it.

[64]

T.C. expressed no doubt about the identity of the shooter. The trial
    judge emphasized how immediate her identification was: As soon as she saw the
    video channels available to her, she told the police she knew who the shooter
    was. This observation was based on the investigating officers testimony who showed
    T.C. the surveillance video footage.

[65]

In relying on the witnesses certainty, there is no echo in the trial judges
    reasons of his initial recitation of the caution of the Supreme Court in
Hibbert
that the danger of identification evidence is that it is deceptively credible
    largely because it is honest and sincere
. The
    mechanism by which honest and sincere identification testimony is unreliable is
    explained in The Law Reform Commission Report on Eyewitness Testimony (at p. 10)
    endorsed in
Miaponoose
:

The details people add to their actual perception of an event
    are largely governed by past experience and personal expectations. Thus the
    final recreation of the event in the observers mind may be quite different
    from reality

(f)

The significance of three identification witnesses

[66]

While he did not say so expressly, the trial judge seems to have appreciated
    the weakness of each recognition witness identification standing alone. At the
    end of his analysis, he said the evidence of one of the police officers or
    perhaps even two of the identifying witnesses standing alone may not have been
    enough to establish culpability beyond a reasonable doubt. He added however,
    that when he considered the totality of the evidence including the evidence of
    the three identifying witnesses, as well as the lineup identificationof one of
    the witnesses he was persuaded beyond a reasonable doubt that the accused was
    the shooter.

[67]

It seems to me this reasoning is not logically sound. The important
    point is that each of three witnesses identification was flawed. The trial
    judge did not consider the possibility that the same mechanism accounted for
    the weakness of each identification. Each of the witnesses confident
    identifications might have been mistaken because each of them unintentionally
    filled-in details of a person familiar to them when looking at a fuzzy image
    of someone in fact unknown. Independent flawed identification evidence from
    three witnesses is no more persuasive than if from one.

(g)

Conclusion

[68]

In summary, I am satisfied that the trial judge erred in law in his
    treatment of the recognition evidence. In my view, this error justifies appellate
    intervention.
[1]


(3)

Unreasonable Verdict

[69]

I am also satisfied the verdict in this case is unreasonable.

[70]

The test for unreasonable verdict is
whether the verdict is
    one that a properly instructed jury acting judicially, could reasonably have
    rendered: see
Corbett v. The Queen
,
[1975] 2 S.C.R. 275,
at p. 282
;
R. v. Yebes
,
[1987] 2
    S.C.R. 168,
at pp. 179-80
; and
R.
    v. Biniaris
,
2000 SCC 15
,
[2000] 1 S.C.R. 381,
at para. 42
.

[71]

As Arbour J. says in
Biniaris
,
at para. 37:

The review for unreasonableness on appeal is different,
    however, and somewhat easier when the judgment under attack is that of a single
    judge, at least when reasons for judgment of some substance are provided. In
    those cases, the reviewing appellate court may be able to identify a flaw in
    the evaluation of the evidence, or in the analysis, that will serve to explain
    the unreasonable conclusion reached, and justify the reversal. The court of
    appeal will therefore be justified to intervene and set aside a verdict as
    unreasonable when the reasons of the trial judge reveal that he or she was not
    alive to an applicable legal principle, or entered a verdict inconsistent with
    the factual conclusions reached. These discernable defects are themselves
    sometimes akin to a separate error of law, and therefore easily sustain the
    conclusion that the unreasonable verdict which rests upon them also raises a
    question of law.

[72]

In my view, the flaws in the trial judges evaluation of the evidence
    and his analysis, both discussed above, render the guilty verdict unreasonable.

[73]

The guilty verdict in this case rests entirely on the bald assertions of
    recognition by three witnesses who had a brief and passing acquaintance with
    the appellant. All failed to point to some distinctive feature of the
    appellants appearance or manner of moving to explain their recognition. Constable
    Kay noted she was not 100% certain in her identification the first time she
    viewed the video. T.C. could not recognize the shooter as the appellant when
    she viewed the video in court. Constable Howard had the briefest interaction
    with the appellant. Their identification evidence is replete with the problems
    I have discussed above. There is a real possibility that all three recognition
    witnesses added details to their perception of the blurry video. They might
    have introduced into the blurry video the details of the appearance of the one
    person in the neighbourhood who fit the general description of the shooter. The
    general description of the shooter is one many individuals could satisfy. Crucially,
    there was no other evidence connecting the appellant to the crime.

[74]

The conviction in this case rests on a foundation that is impermissibly
    delicate. The verdict is unreasonable.

D.

Conclusion

[75]

I would allow the appeal, set aside the conviction, and enter an
    acquittal.

Released: RGJ August 14, 2017

R.G. Juriansz J.A.

I agree. S.E. Pepall J.A.

I agree. G.T. Trotter J.A.





[1]
Given this conclusion, it is unnecessary to address the challenge to the
    initial admissibility of T.C.s evidence.


