



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Cranham, 2012
    ONCA 457

DATE: 20120628

DOCKET: C53083

Laskin, Blair and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sydney Cranham

Appellant

Sydney Cranham, acting in person

Howard Krongold, as duty counsel

Ghazala Zaman, for the respondent

Heard: June 13, 2012

On appeal from the conviction entered on December 9, 2010
    and the sentence imposed on December 9, 2010 by Justice D. Kent Kirkland of the
    Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant appeals his conviction for trafficking twenty dollars
    worth of crack cocaine.  The issue at trial was identity. The trial judge was
    unable to identify the appellant as the trafficker captured in surveillance photographs.
    The appellant argues that in the circumstances the trial judge erred in relying
    on the opinion of police officers that appellant is the trafficker (the
    Individual) in the surveillance photographs.

[2]

We agree.  The verdict cannot be supported by the evidence.

[3]

The drug transaction occurred on March 2, 2010.  Detective Dikah, a
    plain clothes officer, observed the trafficker from a distance of two to three
    feet during the course of the transaction.

[4]

Sergeant Campbell, who was some 60 to 70 feet away, took surveillance
    photographs and made notes describing the trafficker as age 45, wearing blue
    jeans, a long black parka, a black toque and black sunglasses. The traffickers
    hair is not visible in the surveillance photographs.

[5]

Later on March 2, 2010, Detective Dikah confirmed that the individual in
    the surveillance photographs taken by Sergeant Campbell was the trafficker.

[6]

There was a bench warrant for the arrest of the appellant. The appellant
    resembled the picture accompanying the warrant and, on March 5, Constable
    Siddons arrested him. Constable Siddons believed, was pretty certain, or certain
    that the appellant was also the trafficker in the surveillance photograph taken
    by Sergeant Campbell that he had seen a few days before. Constable Siddons testified
    that the appellant was wearing big square sunglasses and his cheeks were sunken
    at the time of his arrest.

[7]

Following the appellants arrest, neither Detective Dikah nor Sergeant
    Campbell was shown a line-up including the appellant and neither confirmed that
    the appellant was the trafficker in the surveillance photographs.

[8]

At trial, Detective Dikah identified the appellant as the trafficker
    he observed some nine months earlier.  He noted that on March 2, 2010, the
    appellants cheeks were a little bit sunken and now theyre a little fuller. 
    He observed that the appellant had gained weight.  He expressed confidence that
    the fact that the trafficker wore a toque and large sunglasses on March 2, 2010
    did not compromise his ability to make an in-court identification of the appellant. 
    Detective Dikah had not recorded in his notes, and did not remember, that the
    trafficker had worn a toque. The surveillance photos indicate that the
    trafficker wore a long parka, and not the leather jacket recorded in Detective
    Dikahs notes.  At trial, the appellants hair was dirty blond and not the
    brown recorded by Detective Dikah in his notes.

[9]

Sergeant Campbell testified that he was certain that the appellant is
    the trafficker in the surveillance photographs. He also commented that the
    trafficker was thinner on March 2, 2010. Sergeant Campbell conceded that the
    appellant has a light blue tattoo on his left hand and no tattoo is visible on
    the left hand of the trafficker in the surveillance photographs.

[10]

Constable
    Siddons also observed that the appellant was heavier than at the time of his
    arrest.

[11]

The
    trial judge properly noted that in-dock identification must be given very
    little weight. This court has warned of its inherent frailties, particularly
    where, as here, the person identified is a stranger to the witness. Many
    wrongful convictions have resulted from faulty eyewitness testimony.
    Identification findings are subject to closer appellate scrutiny than other
    findings of fact. See
R. v. Goran
, [2008] O.J. No. 1069 (C.A.).

[12]

The
    trial judge continued:

I cannot possibly identify the man who is in this witness box
    as the one that I see in the photographs.  For me to even consider finding him
    guilty on the basis of my personal observation and what I see in the
    photographs, would be a total miscarriage of justice.

Campbell, Dikah and Siddons  had occasion to personally
    observe Mr. Cranham, and they said the person in the photograph is the person
    they observed on site when the photographs were taken and the transaction was
    underway.

police officers are more highly trained to make observations
    of circumstances, that is, surrounding circumstances, individuals who are
    involved (in) life-style activities than the average citizen, especially
    officers with any period of training  These officers stated, every one of
    them, as they stood, or sat here in the witness box, they had no difficulty in
    identifying Mr. Cranham as the person in the photographs, and therefore, the
    person who was involved in the transaction.

I am accepting their evidence.  I believe it to be reliable. 
    That being the case, I am satisfied that the Crown has proved beyond a
    reasonable doubt that Mr. Cranham is the person who was involved in the
    transaction and guilty of the offences with which he is charged

[13]

In
    our view, the trial judge erred in relying on the opinions of Sergeant Campbell
    and Constable Siddons that the appellant was the trafficker in the surveillance
    photographs when he was unable to do so, based on his own observations. There
    was no basis for concluding that they had any greater expertise, particular
    advantage, or special knowledge, in identifying whether the appellant was the
    trafficker in the surveillance photographs. Constable Siddons did not know the
    appellant, and had not observed the trafficker, before he arrested the
    appellant on March 5, 2010. He did not make notes as to what the appellant was
    wearing at the time of his arrest. No photograph of the appellant at the time
    of his arrest was proffered as evidence. Neither Detective Dikah nor Sergeant
    Campbell knew or recognized the trafficker on March 2, 2010. Sergeant Campbell
    was at too great a distance to observe the trafficker on March 2, 2010. (After
    the photographs were taken, Detective Dikah confirmed that the individual in
    the surveillance photographs was the trafficker.) Only Detective Dikah was in a
    position to observe the trafficker. He saw the trafficker only once, briefly,
    nine months before. He did not remember that the trafficker wore a toque, and
    some of his observations on March 2, 2010 were inaccurate.

[14]

To
    the extent that the trial judge relied on the opinions of Sergeant Campbell and
    Detective Dikah despite his own conclusion that he could not possibly identify
    the appellant as the trafficker in the surveillance photographs, he seemingly
    gave weight to the very in-dock identification by Detective Dikah that he had
    cautioned himself should be given very little weight.

[15]

Accordingly,
    the appeal from conviction is allowed and the appellants conviction is
    quashed.

John Laskin J.A.

R.A. Blair J.A.

Alexandra Hoy J.A.


