



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Yigzaw, 2013 ONCA 547

DATE: 20130911

DOCKET: C52718

Simmons, Cronk and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Yigzaw

Appellant

Brian Snell, for the appellant

Matthew Asma, for the respondent

Heard: March 26, 2013

On appeal from the convictions entered by Justice John
    Hamilton of the Superior Court of Justice, sitting with a jury, on December 2,
    2008.

Simmons
    J.A.:

A.

INTRODUCTION

[1]

Following a jury trial, the appellant was convicted of
    multiple counts of kidnapping and robbery arising from two incidents that
    occurred about two-and-one-half weeks apart at the same apartment complex in
    Toronto.

[2]

During the first incident, five young men were
    accosted by three assailants  a white man, a black man and a Spanish man  as
    they left a friends apartment building. The victims were robbed at gunpoint and
    then escorted to a nearby bank machine where they were forced to withdraw money
    to give to the robbers. Later that day, the victims told police that the robber
    alleged to be the appellant was a black man wearing dark, baggy clothes.

[3]

During the second incident, five or six young men, three of whom were
    robbed during the earlier incident, saw a large group of people as they were
    leaving their friends apartment building. Three of the young men recognized
    the white man from the earlier robbery, and the group retreated back inside the
    apartment building. The victims were accosted by one white man and two or three
    black men in the hallway outside their friends apartment. The robbers took
    money from the victims and then fled as the police were arriving. The man
    alleged to be the appellant was described as a black man with curly hair
    wearing dark clothing.

[4]

Soon after the second robbery, police arrested a group of four men they
    saw huddled together near the apartment complex  two white men, a black man
    and a black or brown man, one of whom was the appellant. No surveillance
    evidence was uncovered and no forensic evidence linked any of the four men to
    either robbery. The appellant had facial hair and was wearing distinctive
    clothing, neither of which was described by any of the victims. However, about
    a week following the second incident, four of the victims selected the
    appellants photograph and the photograph of one of the white men who was
    arrested with him from a photographic line-up.

[5]

The main issue at trial was the identity of the
    perpetrators of the offences. The appellant raises three issues on his
    conviction appeal:


i.

Were the guilty verdicts unreasonable?


ii.

Did the trial judge err in his instructions to the jury concerning the
    identification evidence?


iii.

Did the trial judge err by failing to adequately assist the jury when
    responding to their question requesting a transcript of the evidence of four of
    the witnesses who testified?

[6]

We did not call on the Crown to respond to the
    third issue raised by the appellant. Although it would have been preferable for
    the trial judge to have responded to the jurys question in a more fulsome way,
    it is apparent from the jury forepersons advice to the trial judge relating to
    this issue that the jurys real concern was not the transcripts.

[7]

For the reasons that follow, I would reject the
    appellants first ground of appeal but accept the second ground. I would
    therefore allow the appeal, set aside the appellants convictions and order a
    new trial.

B.

Background

(1)

The First Incident

[8]

The first incident happened in the early morning
    hours of October 7, 2006. Five young men  Mahmood Pobal, Nazir Alomi, Agha
    Samel, Said Ahmad Saleh and Bashir Tarin  were accosted at gunpoint by three
    men as they left a friend's apartment building. The victims
[1]
variously described the
    Spanish man as having one or two firearms: a shotgun or a shotgun and a handgun.
    They said the Spanish man demanded money.

[9]

The Spanish man directed the victims to move,
    one at a time, to an outdoor stairwell which led to a basement parking area. Mr.
    Alomi testified that he was taken to the stairwell by the appellant. The
    Spanish man pointed a shotgun at Mr. Alomis head and demanded that he take out
    his wallet.

[10]

One of the victims, Mr. Saleh, was not taken to
    the stairwell. He said the robbers took $40 from his pockets, and then told him
    he was free to leave. Soon after leaving, he called 911.

[11]

The remaining four victims were walked to a
    Scotiabank and then forced, one by one, to withdraw money from a bank machine. Mr.
    Alomi mistakenly identified the bank as the CIBC. He testified that he was
    escorted to the bank machine by the appellant. Mr. Alomi claimed that, on the
    way, the appellant told him he looked familiar and asked, Are you Afghan? Mr.
    Alomi responded, No, I never seen you before. They entered the bank, but Mr. Alomi
    had no money in his account. Mr. Alomi said they were gone for between five and
    15 minutes before walking back to the others.

[12]

According to Mr. Pobal, after all the victims
    had been taken to the bank, the Spanish man took him to a location away from
    the other robbers and victims, pointed the shotgun at his face and pulled the
    trigger several times. The shotgun did not go off, but the Spanish man told Mr.
    Pobal that he would kill him if he contacted the police.

[13]

According to Messrs. Pobal and Samel, the
    appellant was not near the attempted shooting. However, Mr. Samel testified
    that the appellant later told the victims, We cant let you go. What if you
    guys tell the cops? Were gonna have to shoot you. The appellant collected the
    victims cell phones and threw them a short distance away. Soon after this, the
    robbers fled.

(2)

The Second Incident

[14]

The second incident happened on October 24, 2006,
    at the same apartment complex as the site of the first incident.  Three of the
    five victims involved in the earlier robbery  Messrs. Pobal, Alomi and Saleh 
    were accosted along with at least two other victims, Farid Abdali and Hamid
    Musafer.
[2]
The three victims of the earlier robbery recognized the white man from the
    prior incident as they were going downstairs. They ran upstairs with their
    companions to their friends apartment. Their friend called the police but did
    not let them in. The robbers came upstairs. They were comprised of: a tall
    black man wearing a mask and carrying some sort of stick (this robber was
    described as being as tall as 6 7); one or two other black men and the white man
    from the earlier robbery. According to some of the victims, during the course
    of events, the white man either revealed a handgun in the waistband of his
    pants or carried it in his hand and said his name was Mike. Although the
    white man told the victims at one point that they were free to go, the tall
    black man wearing a mask and carrying a stick demanded and obtained money. The
    assailants fled when they apparently received word that the police were on their
    way. At least two of the victims said the white man was wearing something on
    his head  a hat or a head covering called a do-rag.

[15]

As for the appellants alleged involvement in
    the second incident, Messrs. Pobal and Alomi testified that they saw him enter
    the hallway and that he asked "Who snitched?" According to Mr.
    Abdali, the appellant stuck his head through the hallway door and yelled, Whos
    snitching? whos snitching?, and then fled with the others. Mr. Saleh
    testified that the appellant was just standing in the hallway during the
    incident; the appellant did not say anything to him.

[16]

Soon after the incident in the hallway, two
    police officers approached the apartment complex. They spotted four men huddled
    together at the side of the building: two white men, one black man and one
    black or brown man. One of the police officers testified that he saw the four
    men passing things to each other; the other police officer testified that he
    heard one of the four men say, Give me the money.

[17]

The two police officers arrested the appellant and
    one other man, Dexter Gourgouvelis, on the spot. The other two men, Michael
    Chamberlin and Samir Muhamed, fled, but were chased and eventually apprehended
    by police. No surveillance video evidence was uncovered for either robbery and none
    of the four men arrested had a weapon, a mask or anything else to connect them
    with either robbery. However, according to the police evidence, at the time of
    his arrest, Chamberlin was wearing a white do-rag.

[18]

The police officers who chased Chamberlin and
    Muhamed lost sight of them briefly during the pursuit each time the two suspects
    turned a corner. After retracing their steps from the chase two or three times,
    the officers discovered a silver handgun and the broken shaft of a golf club in
    a nest-like area where five trees were growing out of the same spot. One of the
    pursuit officers explained that because a gun had been seen during the robbery,
    the officers thought it had to be somewhere along that path, tossed at either
    of the one, two split-second strides that we didnt see them. However, the pursuit
    officer also described the chase as a dead sprint and claimed the individuals
    they arrested had to be the same individuals who they began chasing because the
    timeframe during which the officers lost sight of the suspects was a matter of
    one stride in mid-sprint. Although the officer said he did not see either of
    the suspects making any hand motions toward the tree, he explained that he came
    around a turn just as the suspects were at, or past, the tree where the gun and
    golf club shaft were found.

[19]

Upon his arrest, the appellant was wearing a
    leather camouflage-coloured jacket and a Baltimore Orioles baseball cap with a
    bright orange brim and a bird logo on the front of the hat. At the time, he was
    20 years old. He was described by one police officer as having a light brown
    complexion, black hair, a short afro hairstyle, a moustache and as being 58 in
    height. His police line-up photograph portrays a moustache and a goatee.

(3)

The Photographic Line-up Identifications

[20]

On November 1, 2006, two police officers
    conducted photographic line-ups in relation to the October 7, 2006, incident with
    four of the victims. Three of the victims who participated were accosted during
    both robberies (Messrs. Pobal, Alomi and Saleh); the fourth was a victim of the
    October 7, 2006, robbery only (Mr. Samel). One of the police officers
    conducting the line-ups was the investigating officer for the October 7, 2006
    incident. Accordingly, he knew which photograph depicted the appellant. Indeed,
    because the investigating officer had only generic descriptions of the
    perpetrators of the October 7, 2006 robbery and because he knew the two
    incidents included common victims, he used the photographs of the four men
    arrested on October 24, 2006, to create four photographic line-ups, one in
    relation to each suspect. On November 1, 2006, the two police officers
    interviewed each of the four victims individually and, as part of that process,
    showed each victim the four photographic line-ups.

[21]

All four victims selected the photograph of the
    appellant as being the black robber and the photograph of Michael Chamberlin as
    being the white robber. None of the four victims positively identified any
    other suspect.

[22]

DVDs of the photographic line-up procedure conducted
    with each victim were entered as exhibits at trial. The Crown played for the
    jury the part of each DVD relating to each of the four victims selection of
    the appellant. It is unclear from the record whether the jury received the
    whole of each DVD for their deliberations.

[23]

The DVDs demonstrate that three of the four
    victims went through the photographic array in which the appellants photograph
    appeared sequentially and selected his photograph essentially when they came to
    it. The fourth victim, Mr. Samel, reviewed all the photographs before selecting
    the appellants photograph.

[24]

Although it is unclear whether the jury received
    the balance of each DVD, the DVDs show that Mr. Samel also reviewed all the
    photographs in the array in which Mr. Chamberlins picture appeared before
    selecting his photograph. Mr. Alomi initially selected a photograph in a
    different array as being the white robber. However, Mr. Alomi eventually
    identified Chamberlins photograph as depicting the white perpetrator and said
    he had been mistaken in his earlier selection.

(4)

The Victims Evidence at Trial

[25]

Five of the victims testified at trial (Messrs. Pobal,
    Alomi, and Saleh  all victims of both robberies; Mr. Samel  a victim of the
    first robbery only; and Mr. Abdali  a victim of the second robbery only). All
    made in-dock identifications of the appellant as a black person involved in the
    robbery or robberies of which they were a victim. None of the victims was able
    to provide more than a generic description of the black perpetrator they
    identified as the appellant or his clothing  in particular, none identified
    that perpetrator as having facial hair or distinctive clothing. Further, the
    victims descriptions of the height of that perpetrator varied significantly.

[26]

Mr. Pobal described the robber involved in the
    October 7, 2006 incident that he identified as the appellant as: a black male;
    around Mr. Pobals height (58), but probably a couple of inches shorter;
    skinny; around 17 or 18 years old and wearing baggy clothing. He said the
    appellant looked the same at the time of the second incident on October 24,
    2006. In cross-examination, Mr. Pobal claimed he could identify the appellant
    because he remembered his face and his skin colour. However, he acknowledged he
    did not recall details such as facial hair. When asked in-chief what he
    remembered about the appellants skin colour on October 7, 2006, he responded,
    [h]e looked black to me that day.

[27]

Mr. Alomi described the third perpetrator
    involved in the October 7, 2006, robbery as: a black male; around 6 tall,
    between 19 and 20 years old; not too skinny, not too fat; wearing dark-coloured
    clothing  a big baggy jacket, like a hoodie, baggy pants and a hat. He
    described the October 24, 2006, perpetrator he identified as the appellant as:
    a black male; wearing a dark baggy jacket and dark baggy pants and as being
    taller than he is (Mr. Alomi said he is 510 or 511 tall).

[28]

Mr. Saleh described the black perpetrator
    involved in the October 7, 2006 robbery as: a skinny black male; approximately
    58 or 59 tall; around 19-20 years old; wearing a dark blue or black jacket
    and a hat that was also dark blue or black. He was unable to remember anything
    about what the black perpetrator was wearing on October 24, 2006.

[29]

Mr. Samel described the black perpetrator
    involved in the October 7, 2006, robbery as: a black male around 59 or 510 tall;
    about 18 or 19 years old and wearing dark-coloured clothing.

[30]

Mr. Abdali described the October 24, 2006 robber
    he identified as the appellant as: about his (Mr. Abdalis) height (55 or
    56 tall), age (18 at the time of the incident) and skin colour (light brown),
    and as having curly hair.

[31]

Some victims identified the gun recovered after
    the October 24, 2006, police chase as resembling the handgun used in one or
    both robberies.

(5)

The Defence Evidence

[32]

The appellant did not testify at trial. His
    sister testified and explained that she lived in the apartment complex where
    the incidents took place. She said that the appellant visited her two or three
    times a month, often looking after her children and playing basketball in the
    center court of the apartment complex. The appellants visits were at various
    times of the day, and he sometimes stayed overnight.

C.

Analysis

(1)

Were the guilty verdicts unreasonable?

[33]

The appellant submits that the
    identification evidence was incapable of supporting a conviction, essentially for
    four reasons.

[34]

First, the victims descriptions of the black
    perpetrator alleged to be the appellant were vague and generic. Significantly, apart
    from general comments such as remembering the perpetrators face, none of the
    victims was able to provide an explanation of how he identified the appellant
    that could be tested by reference to the appellants features.

[35]

Second, in their evidence, the victims
    acknowledged making efforts to avoid looking directly at the perpetrators and
    claimed to have focused more on the robber with the gun (who was not the
    appellant).

[36]

Third, none of the victims described the perpetrator
    as having the distinguishing features possessed by the appellant  his facial
    hair and the distinctive clothing he was wearing at the time of his arrest,
    particularly a camouflage-coloured leather jacket and a bright orange-brimmed baseball
    cap. Further, Mr. Alomi, who spent the most time with the black perpetrator
    identified as the appellant, testified that that individual was taller than he
    is, while, in fact, Mr. Alomi is 510 - 511 tall and the appellant is 58
    tall. The appellant says that these features of the evidence point away from
    him as being a perpetrator.

[37]

Fourth, the appellant claims that the procedure
    used in conducting the photographic line-up was flawed. He points to the fact
    that the investigating officer knew that both the appellant and Chamberlin were
    suspects and knew which photographs portrayed them. Further, rather than being
    presented with the photographs sequentially, the victims were permitted to go
    through the photographs and compare them. In the report generated following
The
    Inquiry Regarding Thomas Sophonow:  The Investigation, Prosecution and
    Consideration of Entitlement to Compensation
(Winnipeg:
    Manitoba Justice, 2001) [
Sophonow Inquiry
],
    both factors were identified as shortcomings in line-up procedures (see also
R.
    v. Hanemaayer
, 2008 ONCA 580, 234 C.C.C. (3d) 3, at
    paras. 23 and 25).

[38]

In addition to relying on these alleged
    frailties in the identification evidence, the appellant argues that the
    circumstantial evidence and various logical inferences arising from the
    circumstantial evidence pointed away from him as being a perpetrator:

·

the group of robbers inside the apartment
    building on October 24, 2006, was made up of one white man and three black men.
    The group arrested outside the building was made up of two white men
    (Chamberlin and Gourgouvelis), a black man (the appellant), and a black or
    brown man (Muhamed);

·

the robbers had with them a handgun, a long
    metal rod or pole and a mask. The group that was arrested had none of these
    items;

·

it is illogical that the robbers, knowing that
    the police were coming, would stop just outside the building;

·

it was unlikely that Muhamed could be carrying
    something as long as a golf club shaft while being chased by the police without
    the police seeing anything in his hands;

·

it was unlikely that Chamberlin could throw away
    a gun while being chased by the police without the police noticing; and

·

it was unlikely that Chamberlin and Muhamed
    could have discarded the gun and golf club shaft while being chased by the
    police so that the items landed together in a perfect hiding spot in a cluster
    of trees, all without the police noticing.

[39]

I would not accept the appellants submission
    that the guilty verdicts were unreasonable.

[40]

Although this was an eyewitness identification
    case, the Crown's case did not rest solely on eyewitness identification
    evidence. On my review of the record, there was sufficient evidence to support the
    appellants convictions on all charges. That evidence included:

·

the photographic line-up identifications made by
    four of the victims of both the appellant and Michael Chamberlin;

·

the fact that the four witnesses who made
    pre-trial identifications of the appellant were victims of the October 7, 2006
    robbery, during which they were in the presence of the black perpetrator they
    identified as the appellant for a considerable length of time;

·

the fact that the appellant and a Caucasian male
    named Michael Chamberlin were arrested in close proximity to the crime scene
    within minutes of the October 24, 2006 incident during which a white
    perpetrator identified himself as Mike;

·

the testimony of at least two of the victims that
    the white perpetrator of the October 24, 2006 incident was wearing a do-rag and
    the police evidence that Chamberlin was wearing a white do-rag at the time of
    his arrest;

·

the testimony of the police officers who first
    spotted the four men huddled outside the apartment complex that the four men
    were passing things to each other and one of the men said, Give me the money;
    and

·

the police evidence that they recovered a
    handgun along the flight path of the two perpetrators who fled on October 24,
    2006, and the evidence of some of the victims that the handgun recovered by the
    police resembled the handgun used in both robberies.

[41]

In reaching my conclusion, I have considered the
    fact that the photographic line-up procedure adopted by the police in this case
    was imperfect. However, the photographic line-up identifications of the
    appellant were recorded on DVDs, which were available for the jurys consideration.
    Further, although the appellant relied on the fact that the investigating
    officer participated in the line-up procedure, he did not suggest that the DVD
    evidence of that procedure reveals any conduct by the investigating officer
    that was anything other than neutral. Similarly, the appellant did not argue
    that the manner of presenting the photographs to the victims deprived their
    pre-trial identifications of any probative value. I note as well that, albeit
    important tools to avoid wrongful convictions arising from faulty eyewitness
    identification, the
Sophonow Inquiry

recommendations
    are neither conditions precedent to the admissibility of eyewitness testimony
    nor binding legal dictates for the assignment of weight:
R. v.
    Pelletier
, 2012 ONCA 566, 291 C.C.C. (3d) 279, at para.
    94.

[42]

Concerning the circumstantial evidence relied on
    by the appellant, it was not incumbent on the jury to accept any of the
    inferences the appellant advances. On the contrary, the Crown relied on
    competing inferences arising from much of the same evidence, together with the
    evidence of the two police officers about what the group of four men outside
    the apartment complex were saying and doing on October 24, 2006, when they were
    first spotted by the police, to support its theory that the appellant was one
    of the perpetrators.

[43]

Having regard to the totality of the evidence
    presented at trial, in my view, the guilty verdicts were not unreasonable.

(2)

Did
    the trial judge err in his instructions to the jury concerning the
    identification evidence?

[44]

The second issue raised by the appellant concerns
    the adequacy of the trial judge's instructions to the jury addressing the
    dangers of eyewitness identification evidence. In essence, the appellant argues
    that, although the trial judge provided the jury with standard cautions
    relating to the dangers associated with eyewitness identification evidence and
    concerning the risks of relying on the apparent honesty of the witnesses, he failed
    to warn the jury adequately about the specific frailties in the eyewitness
    identification evidence that were present in this case, and which the appellant
    relied on as part of his unreasonable verdict argument. In addition, the trial
    judge failed to provide the jury with any instructions concerning the value of
    in-dock identifications. The appellant submits that the cumulative effect of
    these deficiencies in the trial judges instructions constitutes reversible
    error and requires a new trial.

[45]

The Crown does not dispute that the appellant
    has identified various deficiencies in the trial judges instructions relating
    to eyewitness identification evidence. However, the Crown submits that because its
    case did not rest solely on eyewitness identification evidence, the trial judge
    was entitled to considerable latitude in determining the nature of the cautions
    to be given and that, in all the circumstances, the trial judges instructions
    were adequate.

[46]

For reasons that I will explain, I would accept
    the appellants submissions.

[47]

In
R. v. Jack,
2013 ONCA 80, 294 C.C.C. (3d) 163, at paras. 12-17, Epstein J.A. provides a
    useful summary of the applicable legal principles governing jury instructions relating
    to eyewitness identification evidence:

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

The dangers inherent in eyewitness identification evidence and
    the risk of a miscarriage of justice through wrongful conviction have been the
    subject of much comment. Such evidence, being notoriously unreliable, calls for
    considerable caution by a trier of fact.

It is essential to recognize that it is generally the
    reliability, not the credibility, of the eyewitness' identification that must
    be established. The danger is an honest but inaccurate identification.

The jury must be instructed to take into account the frailties
    of eyewitness identification as they consider the evidence relating to the
    following areas of inquiry. Was the suspect known to the witness? What were the
    circumstances of the contact during the commission of the crime including
    whether the opportunity to see the suspect was lengthy or fleeting? Was the
    sighting by the witness in circumstances of stress?


As well, the jury must be instructed to carefully scrutinize
    the witnesses' description of the assailant. Was it generic and vague, or was
    it a detailed description that includes reference to distinctive features of
    the suspect?
In some cases,
a failure to mention distinctive
    characteristics of a suspect is sufficiently important, especially where there
    is no other inculpatory evidence, to reduce the case from one of identification
    effectively to one of no identification.

Finally, the charge must caution the jury that an in-dock or
    in-court identification is to be given negligible, if any, weight. [Citations
    omitted, emphasis in original.]

[48]

I am mindful of the fact that, unlike the
    present case,
Jack
was a situation in which the
    Crowns case depended solely on eyewitness identification evidence.

[49]

Moreover, I agree with the Crowns submission
    that where the Crowns case does not depend solely on eyewitness identification
    evidence, but also includes other evidence implicating the accused, trial
    judges are to be given considerable latitude in determining the nature of the
    caution about eyewitness identification evidence to be given to the jury. In
    some cases, a general warning as to the dangers of eyewitness identification
    evidence will suffice:
R. v. Baltovich
(2004),
    73 O.R. (3d) 481 (C.A.), at para. 78.

[50]

Nonetheless, where eyewitness identification evidence
    contains significant frailties, even in situations where there is other
    evidence implicating an accused, it may be incumbent on the trial judge to
    caution the jury as to those specific frailties and not rely on a general
    boilerplate instruction:
R. v. Baltovich
, at
    para. 78.

[51]

In this case, the appellant has identified
    several important frailties in the eyewitness identification of the appellant
    as the black perpetrator in the first robbery and one of the black perpetrators
    in the second robbery to which I have already referred:

·

the generic descriptions of the black
    perpetrator and his clothing provided by the eyewitnesses;

·

the inability of any of the eyewitnesses to
    explain what features of the appellant led them to identify him as the
    perpetrator;

·

the failure of any of the eyewitnesses to
    describe the perpetrator as having any of the distinguishing features possessed
    by the appellant at the time of his arrest (facial hair; distinctive hat and
    jacket);

·

Mr. Alomis description of the perpetrator as
    being taller than he is, when, in fact, the appellant is shorter than he is.

[52]

At para. 29 of
Jack
, Epstein J.A.
    observed
that "eyewitness identification evidence has taught us to
    use discriminating scrutiny for badges of unreliability and that one such badge
    is whether a witness' description of the suspect fails to include mention of a
    distinctive feature of the accused [citations omitted]. She noted that, in
    that case, the caution provided by the trial judge:

simply advise[d] the jury to consider the impact of the
    evidence that the victims did not notice the appellant's distinctive features.
    It d[id] not caution them to take this factor into consideration together with
    the generic description they provided to the police in performing their
    critical analysis of assessing the reliability of the identification evidence
    upon which the Crown's case wholly depended.

[53]

In this case, despite the presence of circumstantial
    evidence capable of supporting the victims identifications of the appellant, in
    my view, the circumstantial evidence was not so strong as to supplant the need
    for careful instructions concerning the frailties in the eyewitness
    identification evidence in order to ensure an accurate identification of the
    appellant as one of the perpetrators.

[54]

The most compelling circumstantial evidence implicating
    the appellant was the fact that, on October 24, 2006, the appellant was
    arrested in the company of Michael Chamberlin who was wearing a white do-rag
    and who was also identified by four of the eyewitnesses as a perpetrator  shortly
     after a robbery in which a white perpetrator wearing a do-rag identified himself
    as Mike  combined with the evidence of the two police officers about what
    the four men arrested outside the apartment complex on October 24, 2006, were
    saying and doing when the officers first noticed them.

[55]

In some cases, circumstantial evidence implicating
    an accused will be so strong that evidence of mere resemblance between an
    accused and a perpetrator will be enough to complete the circle of proof and
    strong cautions about specific frailties in eyewitness identification evidence
    may not be necessary. In my opinion, the circumstantial evidence in this case
    did not reach this threshold.

[56]

Although compelling, the circumstantial evidence
    in this case did not eliminate the need for proper instructions highlighting
    the deficiencies in the eyewitness identification evidence where: the appellant
    and Chamberlin were found in the company of two other men not identified as
    perpetrators; there was no forensic evidence connecting any of the four men
    outside the apartment complex to the recent robbery; and where, unlike
    Chamberlin and one of the other men, the appellant did not attempt to flee.

[57]

In these circumstances, in my view, the trial
    judge was required to not only provide the jury with standard cautions relating
    to the dangers of eyewitness identification evidence, but also to identify for
    the jury the specific frailties in the eyewitness identification evidence that
    existed in this case. If anything, rather than bringing home to the jury some
    of the frailties that existed, the trial judges instructions minimized them.

[58]

As I have said, the trial judge gave the jury a
    standard caution concerning the dangers of eyewitness identification evidence as
    well as the risks of relying on the apparent honesty of eyewitnesses.

[59]

The trial judge also identified for the jury
    various factors they should consider in evaluating the reliability of eyewitness
    identification evidence, including:

·

the witnesses opportunity to view the
    perpetrator;

·

the nature of the descriptions of the
    perpetrator provided by the witnesses and whether they were sufficient to stir
    recognition;

·

whether the photographic line-up was conducted
    within a reasonable time following the incident;

·

whether the photographs in the photographic
    line-up were selected fairly or made the accused person stand out;

·

whether it was suggested that a perpetrators
    photograph was in the photographic line-up;

·

whether the victims were told to identify
    someone in the photographic line-up; and

·

the possibility that the victims remembered the
    appellants face because they had seen him previously in the neighborhood.

[60]

Finally, the trial judge went on to review the
    evidence of each eyewitness identification witness. During that review, he
    mentioned some of the factors that could affect the reliability of each
    witnesss identification. For example, he referred to the various witnesses
    explanations for failing to notice facial hair. He also referred to Mr. Alomis
    evidence that the black perpetrator he identified as the appellant was taller
    than Mr. Alomi is.

[61]

In my view, however, the trial judges
    instructions were not sufficient to bring home to the jury the specific
    frailties that existed in the eyewitness identification evidence in this case.
    As I have said, if anything the trial judges instructions diluted those frailties.

[62]

For example, the trial judge instructed the jury
    to consider what description was given of the suspect, especially any facial
    features that stirred recognition and pointed out that the victims had
    provided only generic descriptions of the black perpetrator.

[63]

However, the trial judge did not then identify the
    appellants facial hair or the distinctive clothing he was wearing when he was
    arrested as potentially distinguishing features in the appellants appearance at
    the time of the October 24, 2006 robbery. Rather than doing so, the trial judge
    gave the jury a somewhat confusing instruction to the effect that the absence
    of distinguishing features does not make an identification inaccurate. He said:

What description was given of the suspect,
    especially any facial features that may have stirred recognition?

On the first occasion when they spoke to the
    police, they just gave generic terms. There was a black man and a white man and
    no special features. When asked in the witness box and asked what are the
    special features of this accused, he said, Well, nothing special about his eyes
    or his nose or his mouth. So there was no distinguishing feature to point out.
    There is no scar that one might remember. Is there anything special about his
    face that would stand out? It may be that there is no distinguishing features,
    but that does not mean that the identification is not accurate. It is just the
    face that was in the memory of that person.

[64]

An instruction of this type  namely, that an
    eyewitnesss failure to identify distinguishing features of an alleged
    perpetrator does not necessarily mean that the eyewitnesss identification evidence
    is inaccurate  may not be inappropriate where a trial judge has provided a strong
    caution about the frailty of such evidence and identified the distinguishing
    features of an accused person that an eyewitness could have observed.

[65]

However, in this case, the trial judge failed to
    provide a strong caution about the failure of any of the victims to identify
    the appellants distinguishing features; he also failed to highlight those
    features for the jury. As a result, the trial judges overall instruction
    failed to properly convey the degree of caution to be exercised by the jury
    when assessing the eyewitness identification evidence. In addition, the trial
    judge made no reference, in his instructions on eyewitness identification
    evidence, to Mr. Alomis testimony that the black perpetrator he identified as
    the appellant was taller than he is or to the police evidence indicating that
    the appellant is, in fact, at least two inches shorter than Mr. Alomi.

[66]

Given that Mr. Alomi spent the most time with
    the black perpetrator alleged to be the appellant, this discrepancy between Mr.
    Alomis description of the black perpetrator he identified as the appellant and
    the actual appearance of the appellant cannot be characterized as
    insignificant. It was therefore incumbent on the trial judge to alert the jury
    to the fact that, in assessing the reliability of the eyewitness identification
    evidence, they should consider any discrepancies between the eyewitnesses
    descriptions of a perpetrator and the actual appearance of the person
    identified as the perpetrator.

[67]

The fact that the trial judge referred to Mr.
    Alomis evidence about the perpetrators height when summarizing his evidence, or
    that defence counsel referred to the issue in his closing, are not answers to
    this problem. A jury should be cautioned by the trial judge about the need to
    consider this type of discrepancy when considering the reliability of
    identification evidence.

[68]

Further, although the trial judge told the jury
    that one of the inherent frailties of eyewitness identification evidence is the
    fact that mistaken identifications can be made by witnesses who are honest and
    convinced, absolutely sure of their identification, he may well have
    neutralized the effect of this warning when summarizing the eyewitness
    identification evidence.

[69]

In particular, in his summaries of the evidence
    of four of the eyewitnesses, the trial judge repeated, without qualification,
    their testimonial assertions that they had correctly identified the appellant. For
    example, in his summary of Mr. Pobals evidence, the trial judge said, in part:
    It was suggested to him by the defence that he is not certain that it was the
    accused. He said: This particular person I remember 100%.

[70]

When the trial judge provided his initial
    caution to the jury about the honesty and certainty of eyewitness
    identification witnesses, he did not link that instruction to any particular
    evidence. By uncritically repeating evidence from four of the eyewitnesses
    asserting their certainty in their identifications, the trial judge may well have
    invited the jury to ignore his earlier warning.

[71]

The trial judge also failed to caution the jury
    that in-dock identifications are generally to be afforded little weight (see
R.
    v. Hibbert
, 2002 SCC 39, [2002] 2 S.C.R. 445, at pp.
    468-469,
R. v. Pelletier
, at para. 93).
    Moreover, when setting out the Crowns position, he noted that the Crown relied
    on the fact that the appellant was picked out of the line-up and visually in
    court. Once again, the trial judge may have invited the jury to rely on evidence
    that was of no probative value. The potential for prejudice existed not only
    because of the combined impact of five in-dock identifications, but also
    because Mr. Abdali did not make a pre-trial identification of the appellant.
    His evidence, in particular, should have been the subject of a forceful in-dock
    identification caution: see
R. v. Tebo
(2003),
    175 C.C.C. (3d) 116, at para. 20.

[72]

Finally, although the trial judge gave the jury
    some instructions about how to evaluate the photographic line-up identification
    evidence, he did not refer to the importance of the eyewitnesses reviewing the
    photographic line-up sequentially, without taking the opportunity to compare
    photographs. He therefore did not provide the jury with all the tools necessary
    to properly evaluate that evidence. The fact that witnesses may have been
    cross-examined about that issue, or that defence counsel may have referred the
    jury to that factor, does not overcome the need for a judicial instruction
    where the need for caution arises, at least in part, as a matter of judicial
    experience and not solely as a matter of common sense.

[73]

Having regard to all the circumstances, I would
    accept the appellants submission that the cumulative effect of these errors in
    the trial judges instructions amounts to reversible error and requires a new
    trial. As I have said, although there was evidence in this case in addition to
    the eyewitness identification evidence capable of implicating the appellant in
    the two sets of offences, in my view, that evidence was not so strong as to
    supplant the need for careful instructions on the specific deficiencies that
    existed in the eyewitness identification evidence.

D.

Disposition

[74]

Based on the foregoing reasons, I would allow
    the appeal, set aside the appellants convictions and order a new trial.

Released:

SEP 11 2013                                    Janet
    Simmons J.A.

EAC                                                I
    agree E.A. Cronk J.A.

I
    agree E.E. Gillese J.A.





[1]

Mr. Tarin did not testify at trial and the trial judge
    instructed the jury to acquit the appellant on the charges that related
    specifically to Mr. Tarin.



[2]
Mr.
Musafer did not testify at trial. Mr. Pobal identified Mr.
    Musafer as one of the persons present during the October 24, 2006 incident. The
    victims of the second incident who testified were somewhat uncertain about
    exactly who was present during the second incident.


