





CITATION:
R. v. James, 2011
          ONCA 839



DATE:20111228



DOCKET: C50113



COURT OF APPEAL FOR ONTARIO



Doherty, Goudge and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Rodger James



Appellant



Catriona Verner, for the appellant



David Lepofsky and Gayle Karding, for the respondent








Heard: October 26, 2011



On appeal from the convictions
          entered by a jury, presided over by Justice W. Brian Trafford of the Superior
          Court of Justice, dated April 18, 2008 and from the sentence imposed on May
          20, 2008.



Doherty J.A.:



I

OVERVIEW

[1]

The appellant was charged with first degree murder and robbery while
    using a firearm.  The Crown alleged that the appellant and another man, Jeffrey
    Whyte, robbed two persons at gunpoint and shot and killed Cameron Alkins, one
    of the robbery victims.  Identification was the main factual issue at trial,
    although the defence also argued that even if the appellant was present at the
    scene of the robbery, he was not involved in the robbery or the homicide.  The
    appellant did not testify.

[2]

The jury acquitted on the murder charge, but convicted on the included
    offence of manslaughter and on the charge of robbery while using a firearm. 
    The trial judge imposed a sentence of 11 years.

[3]

The appellant appeals from the manslaughter and robbery convictions and
    seeks leave to appeal his sentence.  The Crown does not appeal from the
    acquittal on the murder charge.

[4]

The conviction appeal focuses on two alleged errors, each of which have
    a direct impact on the identification issue.  Counsel for the appellant submits
    that the trial judge erred in admitting hearsay evidence in the form of the testimony
    of the witness Alison Diedrick at the earlier trial of Mr. Whyte.  In the part
    of the prior testimony admitted by the trial judge, Ms. Diedrick identified the
    appellant from a photo array as the person who was with her and Mr. Whyte in
    her car near the scene of the robbery immediately before it occurred.

[5]

Counsel further submits that the trial judge erroneously instructed the
    jury that evidence that a black man was seen fleeing the scene of the robbery could
    be used by the jury as circumstantial evidence that the appellant, a black man,
    was one of the robbers.

[6]

I would allow the appeal.  The prior testimony of Ms. Diedrick,
    identifying the appellant from a photo array, was not shown to be sufficiently
    reliable to warrant its admissibility under the principled exception to the
    hearsay rule.  The jury instruction that evidence of flight by a black man from
    the scene of the robbery was evidence that the appellant was the robber was
    unclear and potentially misleading.  It could have been understood by the jury
    as an instruction that the fact that the appellant was black and one of the
    robbers was black was sufficient to move the Crowns identification evidence
    from proof on a balance of probabilities to proof beyond a reasonable doubt. 
    If members of the jury so understood that instruction, and I think they well could
    have, this was a serious misdirection.

II

FACTS

[7]

In the early evening of March 29, 1996, two teenagers, Yomanga Lawrence
    and Cameron Alkins, were robbed at gunpoint by two men.  One of the robbers was
    white and the other was black.  Both victims had connections to the drug world
    and the neighbourhood where the robbery occurred was well known for drug-related
    activity.

[8]

Mr. Lawrence testified that he and Mr. Alkins were approached by two
    armed gunmen.  Shots were fired and Mr. Lawrence fled the scene.  He returned
    moments later to find Mr. Alkins lying on the ground badly wounded.  Mr. Alkins
    died a short time later.  Mr. Lawrence could not describe or identify either
    robber.  Mr. Devin Constable, the only other witness to see any part of the actual
    robbery, also could not identify either robber.

[9]

The police investigation focussed on Mr. Whyte, a white man, and his
    friend, the appellant, a black man.  Mr. Whyte had escaped from prison about
    two weeks before the robbery.  The police theorized that Mr. Whyte needed money
    to flee the jurisdiction and decided that robbing drug dealers would be a quick
    and relatively risk-free way of getting cash.

[10]

Mr. Whyte was arrested and charged with murder and robbery in June 1996. 
    In October 1997, he was convicted of robbery and manslaughter.

[11]

The appellant fled to the United States shortly after the robbery and was
    not found and then extradited to Canada until years later.  He was tried in
    March 2008.  At the appellants trial, it was accepted that Mr. Whyte was the
    white robber.

III

THE IDENTIFICATION EVIDENCE

[12]

The Crowns case identifying the appellant as the black robber relied on
    the evidence of Alison Diedrick and Fiona Baxter.  The evidence of Ms. Diedrick
    consisted of her trial testimony and, pursuant to the trial judges ruling on
    the Crowns application to adduce hearsay statements made by Ms. Diedrick, her
    audiotaped statement to the police on December 16, 1996, and her testimony at Mr.
    Whytes trial, identifying a photo of the appellant from a photo array as the
    black person with her and Mr. Whyte immediately before the robbery and
    homicide.

[13]

Ms. Baxters evidence consisted only of her trial testimony.  The trial
    judge refused to admit various hearsay statements made by Ms. Baxter.  Ms.
    Baxter did not give identification evidence, but she did testify to certain
    telephone conversations in the days following the robbery that were capable of
    supporting the inference that the appellant was one of the robbers.

(i)

Ms. Diedricks Trial Testimony

[14]

Ms. Diedrick had known Mr. Whyte for a few years before March 1996.  She
    had made his acquaintance through a friend while Mr. Whyte was in custody.  Ms.
    Diedrick described herself as a friend of Mr. Whyte and denied that there was a
    romantic relationship between them.

[15]

Ms. Diedricks trial testimony offered no support for the Crowns case
    against the appellant.  She testified that at some time prior to the robbery
    and homicide in March 1996, and 12 years before the appellants trial, Mr.
    Whyte had introduced her to a friend who went by the nickname Rebel.  At the
    time of the introduction, both Mr. Whyte and Rebel were inmates in a federal
    penitentiary.  Ms. Diedrick testified that she could not describe Rebel other
    than to indicate that he was a black man.  In her trial testimony, she said:

I can look at him [meaning the appellant] and
    describe him, but if I didnt see him here, I wouldnt even know him.

[16]

Ms. Diedrick did not identify the appellant as Rebel at trial.  In
    cross-examination, she testified that she could not say that she had ever met
    the appellant.

[17]

Ms. Diedrick professed to have no recollection of the events of March
    29, 1996.  Nor could she recall talking to the police on April 3, 1996 or
    providing them with an audiotaped statement in December 1996.  Listening to the
    audiotaped statement did not refresh her memory.  Ms. Diedrick also could not
    recall testifying at Mr. Whytes trial in October 1997.

[18]

Ms. Diedrick attempted to account for her inability to recall any of
    these events by explaining that she had gone through many difficult issues with
    her family in the years between 1996 and her testimony at the appellants
    trial.  She said that she was very upset and nervous on the witness stand.  Ms.
    Diedrick denied being afraid of the appellant or Mr. Whyte.

(ii)  Ms. Diedricks Audiotaped Statement
    from December 16, 1996

[19]

Ms. Diedrick spoke to the police at her home on April 3, 1996, about
    five days after the robbery and homicide.  She told the police she had not seen
    Mr. Whyte for a few months, but had spoken to him about a week earlier.  She
    denied having anything to do with Mr. Whyte on the evening of the robbery.
[1]


[20]

On December 16, 1996, Ms. Diedrick was interviewed by the investigating
    officers at the courthouse.  Mr. Whytes preliminary inquiry was scheduled to
    begin that day.  She gave an audiotaped statement after being cautioned that if
    she was not truthful she could be charged.  She explained that she had lied to
    the police on April 3, 1996 because her father was present.  Ms. Diedrick told
    the police that she had met Mr. Whyte through a corrections program when she went
    to the penitentiary to visit her cousin.  Ms. Diedrick indicated that in March
    1996 she picked Mr. Whyte up at a restaurant near the penitentiary and drove
    him to Toronto.  She understood that he was on a pass from the penitentiary. 
    In fact, he was unlawfully at large.

[21]

In the audiotaped statement, Ms. Diedrick said that she received a
    telephone call from Mr. Whyte on March 29, 1996.  He asked her to drive him to
    a location in Ajax.  When Ms. Diedrick picked Mr. Whyte up, he was with a black
    man known to Ms. Diedrick as Rebel.  She had met Rebel through Mr. Whyte at
    the penitentiary.

[22]

When Mr. Whyte entered the vehicle, he had a gym bag with him.  Both Mr.
    Whyte and Rebel had guns.  Mr. Whyte had two weapons and Rebel had one or
    two.  According to Ms. Diedricks statement, both men were showing off the weapons
    in the vehicle.

[23]

As they drove toward Ajax, Mr. Whyte told Ms. Diedrick he wanted to stop
    on the way to pick up some money.  Mr. Whyte directed Ms. Diedrick to drive to
    a certain location where Mr. Whyte and Rebel left the car.  Ms. Diedrick
    waited in the car.  About ten minutes later, Mr. Whyte returned to the car
    alone.  Ms. Diedrick asked where Rebel had gone and Mr. Whyte replied, Hes
    gone.  Just leave him, lets go.  Ms. Diedrick did not see Rebel again.  When
    she learned of the homicide the next day through media reports and her
    boyfriend, she worried that she could be seen as an accomplice.

[24]

The trial judge ruled that the December 16, 1996 audiotaped statement
    was admissible under the principled exception to the hearsay rule.  He found
    that Ms. Diedrick was dishonestly feigning her loss of memory, thereby
    establishing the necessity criterion.  He went on to hold that there were other
    substitutes for the contemporaneous cross-examination of Ms. Diedrick that
    rendered her December 16, 1996 statement sufficiently reliable to warrant its
    admission into evidence.

[25]

The admissibility of Ms. Diedricks December 16, 1996 statement is not
    challenged on appeal, although counsel for the appellant submits that it should
    have been edited to delete the reference to the name Rebel because the police
    elicited that name using leading questions.  I see no merit to that submission
    and will proceed on the basis that the entire December 16, 1996 audiotaped
    statement was properly admitted.

(iii)  Ms. Diedricks
    Testimony at Mr. Whytes Trial

[26]

The Crown also sought to introduce Ms. Diedricks testimony at Mr. Whytes
    preliminary inquiry in February 1997 and at his trial in October 1997.  The
    trial judge concluded that, with one exception, the preliminary inquiry
    testimony and the trial testimony were inadmissible in that they merely
    repeated information already provided by Ms. Diedrick in her December 1996
    statement.  The one exception arose out of Ms. Diedricks selection of a
    photograph of the appellant as the person she knew as Rebel from a photo
    array that was presented to her both at the preliminary inquiry and at the
    trial.  Ms. Diedrick had not identified the appellant as Rebel in her
    December 1996 statement, but had indicated that Mr. Whyte and Rebel were in
    the car together.  The trial judge held that the Crown could adduce Ms.
    Diedricks testimony identifying the photograph of the appellant from the photo
    array at either the preliminary inquiry or the trial.  The Crown chose to lead
    the evidence of Ms. Diedricks identification of the appellants photograph at
    Mr. Whytes trial in October 1997.

[27]

The Crown filed a two-page extract from Ms. Diedricks testimony at Mr.
    Whytes trial.  In that extract, Ms. Diedrick testified that she had been
    presented with two sets of six photographs on sheets of paper sometime prior to
    testifying at Mr. Whytes preliminary inquiry.  She indicated that she recognized
    one of the photos as Rebel, and that he was the person who was with her and
    Mr. Whyte in the car.  Ms. Diedrick was then shown the same photo array while
    on the witness stand at Mr. Whytes trial.  She selected photograph #4 as a photograph
    of Rebel.  Photograph #4 was a photograph of the appellant.

(iv)  The Trial Testimony of
    Fiona Baxter

[28]

Ms. Baxter had known Mr. Whyte for a number of years before 1996.  They
    had been romantically involved.  She considered him a good friend in March
    1996.  She knew a man named Rodger James [the appellants name] through Mr.
    Whyte.  He was black, tall and slim.  He went by the nickname Rebel.  At the
    appellants trial, Ms. Baxter could not identify the appellant as the Rodger
    James she knew some 12 years earlier.  She described the appellant as larger
    with a chubbier face.  It was agreed at trial that the Rodger James referred to
    by Ms. Baxter was the appellant.

[29]

Ms. Baxter testified that she met with Mr. Whyte at his request late on the
    evening of March 29, 1996.  Mr. Whyte was distraught and afraid.  While with Mr.
    Whyte, Ms. Baxter called a relative and asked her if she had seen the news. 
    The relative told her that there was news of a homicide in the neighbourhood. 
    Ms. Baxter told Mr. Whyte.  She spent several hours with Mr. Whyte and spoke to
    him the next day over the telephone.

[30]

The appellant called Ms. Baxter the day after the homicide.  She accused
    him of killing the boy.  Ms. Baxter could not recall the appellants response. 
    She testified that the appellant asked her to help him get in touch with Mr.
    Whyte.  Ms. Baxter did not know how to contact Mr. Whyte.

[31]

According to Ms. Baxter, the appellant called her a second time either
    the same day or the next day.  He wanted to know whether Ms. Baxter had spoken
    with Mr. Whyte.  He also wanted Ms. Baxter to arrange a three-way telephone
    conversation between himself, Mr. Whyte and Alison.  Ms. Baxter knew a girl
    named Alison who was a friend of Mr. Whytes and who worked at a Harveys
    restaurant.  She had that persons phone number.  This was in fact Alison
    Diedrick.  Ms. Baxter attempted to arrange the three-way phone call requested
    by the appellant, but could not reach Ms. Diedrick.

[32]

In her testimony, Ms. Baxter professed to have no further recollection
    of anything the appellant said to her during the conversations.  She did
    testify, however, that she had given a statement to the police within a day or
    two of speaking to the appellant and that she believed that what she said to
    the police was the truth.  In that statement, Ms. Baxter indicated that the
    appellant wanted to speak with Alison because he was concerned that she might
    go to the police and he wanted to know what was on her mind.  Ms. Baxter also told
    the police that, based on her conversation with the appellant, she understood
    that Alison was the driver.

IV

THE ADMISSIBILITY OF MS. DIEDRICKS TESTIMONY AT MR. WHYTES TRIAL
    IDENTIFYING THE APPELLANTS PHOTOGRAPH

[33]

The trial judges hearsay ruling dealt at length with the admissibility
    of several hearsay statements made by Ms. Baxter and Ms. Diedrick.  In setting
    out the applicable legal principles and reviewing the admissibility of the
    statements made by Ms. Baxter and the audiotaped statement of Ms. Diedrick in
    December 1996, the trial judge considered the necessity and reliability
    components of the principled exception to the rule excluding hearsay evidence. 
    However, in addressing the admissibility of Ms. Diedricks testimony at Mr. Whytes
    preliminary inquiry and trial, the trial judge focussed exclusively on the necessity
    component of the admissibility inquiry.  Relying on
R. v. D.(G.N.)
(1993), 81 C.C.C. (3d) 65 (Ont. C.A.), leave to appeal to S.C.C. refused, [1993]
    S.C.C.A. No. 257, at p. 78, he held that with the exception of the
    identification of the appellants photo, Ms. Diedricks testimony at the
    preliminary inquiry and trial did not meet the necessity criterion because it added
    nothing of substance to the information she had provided in her December 1996
    audiotaped statement.  That holding is not challenged.

[34]

Having concluded that the part of Ms. Diedricks testimony in which she
    identified the photograph of the appellant met the necessity requirement, the
    trial judge should have gone on to consider whether that evidence was
    sufficiently reliable to justify its admission at the appellants trial despite
    its hearsay nature.  The trial judges failure to conduct that inquiry is an
    error in law.  On my review of the
voir dire
record, the Crown failed to
    offer evidence on which a finding of threshold reliability could reasonably have
    been made.

[35]

Hearsay is presumptively inadmissible because it is inherently unreliable. 
    The unreliability of hearsay flows in large measure from the difficulties
    encountered in effectively challenging hearsay evidence.  The threshold reliability
    component of the admissibility inquiry protects the integrity of the trial process
    by insisting that the party proffering hearsay evidence demonstrate that it is
    sufficiently reliable to overcome the dangers inherent in hearsay evidence:
R.
    v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, at paras. 49, 59-65;
R.
    v. Blackman
, 2008 SCC 37, [2008] 2 S.C.R. 298, at para. 35;
R. v. Devine
,
    2008 SCC 36, [2008] 2 S.C.R. 283, at para. 19.

[36]

Threshold reliability is usually met in one of two ways, although they
    are not mutually exclusive.  First, the court may be satisfied that the
    circumstances in which the statement was made provide sufficient guarantees of
    the trustworthiness of the statement to negate reliability concerns.
R. v.
    Khan
, [1990] 2 S.C.R. 531 provides an excellent example of a case in which
    the circumstances surrounding the making of the statement by the young
    complainant, as well as the content of the statement itself, provided a level
    of reliability that justified its admission.

[37]

Threshold reliability may also be established if there are means by
    which the reliability of the statement can be sufficiently tested at trial despite
    its hearsay nature.  Cross-examination by the party against whom the hearsay
    statement is tendered at the time the hearsay statement was made is perhaps the
    most powerful way in which to establish the threshold reliability of a hearsay
    statement.  For example, where a witness testifies in a prior proceeding in
    relation to the charge and is cross-examined by the accuseds counsel, that
    statement may well be admitted at a subsequent trial on the basis that the contemporaneous
    cross-examination of the declarant rendered the statement sufficiently reliable
    to justify its admission at that subsequent trial:
R. v. Hawkins
,
    [1996] 3 S.C.R. 1043, at paras. 76-80.

[38]

Even where there was no opportunity to cross-examine when the statement
    was made, the ability to meaningfully cross-examine the hearsay declarant on
    the hearsay statement at trial will also often suffice to establish threshold
    reliability:
Khelawon
, at paras.
76-79;

R
.
    v. Couture
, 2007 SCC 28, [2007] 2 S.C.R. 517, at paras. 87-88;
Devine
,
    at paras.
22-25.

[39]

In considering threshold reliability, it is easiest to look first to the
    possibility of cross-examination at trial as providing sufficient reliability
    to warrant admission into evidence:
Couture
.  Ms. Diedrick was subject
    to cross-examination at Mr. Whytes trial by counsel for Mr. Whyte.  The
    appellant was not a party to that trial.  There is no suggestion that counsel
    for Mr. Whyte explored Ms. Diedricks identification of the appellants photo
    in his cross-examination or that his cross-examination could provide an
    adequate substitute for cross-examination on behalf of the appellant.

[40]

Ms. Diedrick was available for cross-examination at the appellants
    trial.  If appellants counsel had been able to engage Ms. Diedrick in a meaningful
    cross-examination on her purported identification of the appellants photograph
    at Mr. Whytes trial, that cross-examination would have gone a long way to
    establishing the threshold reliability of Ms. Diedricks testimony at Mr.
    Whytes trial.

[41]

Although Ms. Diedrick was physically present for cross-examination at
    the appellants trial, her professed total loss of memory of the relevant
    events, including the making of the identification, rendered any
    cross-examination of her concerning that identification of little value.  Identification
    evidence is inherently suspect.  A proper assessment of a witnesss purported
    identification evidence can only be made if the process that led to that identification
    is fully and carefully explored.  One can imagine a litany of questions that
    could have been put to Ms. Diedrick about the identification process and her
    selection of the appellants photograph.  These would include questions like:

·

When did she first see a photo array?

·

What was said to her by the police before she was shown the photo
    array?

·

When did she first identify a photograph of the appellant?

·

How certain was she of that identification?

·

What did the police say when she made the identification?

·

How many times had she seen the photograph of the appellant before
    it was shown to her at Whytes trial?

·

Had she seen photographs of the appellant as a person connected
    to the homicide in media reports before she was asked to look at the photo
    array?

[42]

The questions set out above and many others, all pertinent to the
    identification process, would have fallen unanswered against the wall of Ms.
    Diedricks purported complete loss of memory of the relevant events.

[43]

The inability to meaningfully cross-examine Ms. Diedrick on her
    identification of the appellant makes this case distinguishable from
Devine
,
    also a case where the hearsay statement involved an identification.  In
Devine
,
    the witness had offered an explanation for recanting her out-of-court
    identification.  Charron J., in upholding the admissibility of the witnesss
    out-of-court statement, observed, at paras. 28-29, that the witness who had
    provided a detailed description of the person she identified could be
    cross-examined both on that statement and on her explanations for resiling from
    that statement.

[44]

This case is more like
R. v. Post
, 2007 BCCA 123, leave to appeal
    to S.C.C. refused, [2007] S.C.C.A. No. 207, at para. 65, where the witnesss
    prior statement was found inadmissible in part because the witnesss professed
    inability to recall the statement or the relevant events rendered the
    opportunity to cross-examine that witness at the trial valueless as a means of
    testing the reliability of that statement: see also
R. v. T.G.N.
, 2007
    BCCA 2, at paras. 16-17.

[45]

Where, as here, the hearsay statement involves identification evidence,
    the ability to meaningfully cross-examine the declarant on that statement takes
    on added significance.  In
R. v. Tat
(1997), 35 O.R. (3d) 641 (C.A.),
    where the Crown sought to introduce a hearsay statement in which the witness
    had selected an accused from a photo line-up,  this court said, at p. 669:

[T]he absence of contemporary cross-examination, is
    said to be the most important of the dangers associated with the admission of
    hearsay evidence.
If the proffered hearsay consists of a previous statement
    made by a person who testifies, that danger will usually be alleviated by the
    ability to cross-examine that witness at trial.  If, however, the prior
    statement is one of identification and the witness denies making the
    identification, special problems arise and cross-examination at trial may not
    provide a suitable substitute for contemporaneous cross-examination.

Cross-examination of the maker of the statement at
    trial will certainly assist in assessing the credibility of the witness, but
    may not assist in testing the reliability of the out-of-court statement.  [Emphasis
    added.] [Footnotes omitted.]

[46]

The comments in
Tat
have equal application where the witness does
    not recall making the prior identification.  While Ms. Diedricks credibility
    can be undermined by cross-examination to show she was feigning her memory
    loss, cross-examination of her at the appellants trial could not undermine the
    reliability of her identification of the appellant at Mr. Whytes trial.  Absent
    the ability to meaningfully cross-examine Ms. Diedrick on her identification of
    the appellants photograph at Mr. Whytes trial, there were no means by which
    the truth of that statement could be tested at the appellants trial in a
    manner that would render the evidence sufficiently reliable to justify its
    admission despite its hearsay nature.

[47]

Having found that there are no other means available to adequately test
    the reliability of Ms. Diedricks prior testimony, I turn to the circumstances
    in which that testimony was given.  Ms. Diedricks testimony was given under
    oath in a court proceeding and was recorded.  Those features tend to give some
    circumstantial guarantee of trustworthiness to the testimony.  However, in
    considering whether the circumstances render her prior testimony sufficiently
    reliable, the subject matter of that prior testimony is of prime importance. 
    This was not a statement about something that had just happened to Ms. Diedrick
    or a statement about her state of mind.  This was a statement identifying the
    appellant as the person who was in the car with her many months earlier.  With
    identification evidence, the concern is not just with the witnesss veracity,
    but also with the reliability of the evidence.  That reliability depends on an
    assessment of the entirety of the identification process and not an examination
    in isolation of the act of selecting a photograph from a photo array.

[48]

Ms. Diedrick purported to identify a photograph of the appellant many months
    after the relevant events.  She had seen the photograph at least once before. 
    Apart from the availability of the photo array itself for inspection and Ms.
    Diedricks evidence that she had identified the same photograph some time
    earlier, there was nothing in Ms. Diedricks evidence or any of the
voir
    dire
evidence about the circumstances of her identification of the
    appellants photograph.  Evidence that a witness selected a photograph from a
    photo array without evidence of what happened before and during that selection
    process is of little value.  In
Tat
, this court said, at p. 656:

However, where
identification

evidence is
    involved, it is the in-court identification of the accused which has little or
    no probative value standing alone.  The probative force of identification
    evidence is best measured by a consideration of the entire identification
    process which culminates with an in-court identification
.  The central
    importance of the pre-trial identification process in the assessment of the
    weight to be given to identification evidence is apparent upon a review of the
    cases which have considered the reasonableness of verdicts based upon
    identification evidence.

If a witness identifies an accused at trial,
    evidence of previous identifications made and descriptions given is admissible
    to allow the trier of fact to make an informed determination of the probative
    value of the purported identification.  The trier of fact will consider the
    entirety of the identification process as revealed by the evidence before
    deciding what weight should be given to the identification made by the
    identifying witness.  Evidence of the circumstances surrounding any prior
    identifications and the details of prior descriptions given will be central to
    that assessment.  [Emphasis added.] [Footnotes omitted.]

[49]

The Crown led no evidence on the
voir dire
of the process of
    identification culminating in Ms. Diedricks identification of the appellant at
    Mr. Whytes trial.
[2]
A bald in-court identification of an accused from a photo array carries no
    circumstantial guarantees of trustworthiness.  The circumstances in which Ms.
    Diedrick purported to identify the appellants photograph at Mr. Whytes trial give
    no comfort as to the reliability of that identification.

[50]

The Crown failed to establish that Ms. Diedricks identification of the
    appellants photograph at Mr. Whytes trial was sufficiently reliable to
    justify its admission at the appellants trial.  The prior testimony of Ms.
    Diedrick should have been excluded.

V

THE JURY INSTRUCTION ON FLIGHT

[51]

In the pre-charge discussions, the trial judge struggled with the
    connection, if any, between the flight of a black man from the scene of the
    robbery and evidence capable of identifying the appellant as that person.  Over
    the strong objections of counsel for the appellant, the trial judge instructed
    the jury in these terms:

These instructions are based upon an assumption that
    you are satisfied on a balance of probabilities given the testimony of Allison
    Diedrick and Fiona Baxter that Rodger James was the black man.  The evidence of
    the flight of the black man may be considered by you in that context and in the
    context of the evidence as a whole in determining whether the Crown has
    satisfied you beyond a reasonable doubt on the issue of identity; that is, that
    Rodger James was the black man.

[52]

With respect, evidence of the flight of the black man, regardless of
    the context, was not in and of itself capable of supporting the Crowns
    contention that the appellant was the black man.  At best, the evidence of the
    flight of the black man had some minimal indirect value to the Crowns case on
    the issue of identification.  Members of the jury could infer from the flight
    of the black man that he was involved in the robbery.  If they drew that
    inference, it offered some minimal support for the Crowns case that the
    appellant was one of the robbers since the appellant was in fact a black man. 
    In this sense, the evidence had relevance to the identification issue in the
    same way that evidence that someone saw a young man fleeing from the scene
    would have relevance because the appellant was a young man.  The evidence had
    minimal probative value on the issue of identification.

[53]

The trial judges instruction, however, suggested that a more direct and
    powerful inference could be drawn from the flight of the black man.  As I read
    the charge, jury members were told they could use the evidence of the flight by
    a black man from the scene of the robbery, a fact that was not disputed, to
    lift what would otherwise be an insufficient case for the Crown on
    identification over the reasonable doubt hurdle.  The evidence of the flight of
    the black man could not possibly carry that heavy load on the identification
    issue.  The instruction constitutes misdirection.

VI

THE
CURATIVE PROVISO
:  SECTION 686(1)(b)(iii)

[54]

Both errors outlined above go to identification, the central issue at
    trial.  The case for the Crown on identification was not overwhelming. 
    Significant legal errors in cases that are not overwhelming cannot be overcome
    by the
curative proviso
:
R. v. Khan
, 2001 SCC 86, [2001] 3
    S.C.R. 823;
R. v. Sarrazin
, 2011 SCC 54, at paras. 22-28.

[55]

In invoking the
proviso
, Mr. Lepofsky makes a novel argument.  He
    submits that the trial judge in his hearsay ruling wrongly excluded significant
    evidence that supported the Crowns case.  Mr. Lepofsky argues that if the excluded
    evidence is added into the evidentiary mix, the Crowns case becomes overwhelming
    and the
proviso
could be applied.

[56]

The application of the
proviso
must be considered in the context
    of the evidence heard by the jury, not the evidence it might have heard had the
    trial judge made different rulings.  To consider excluded evidence, even
    wrongly excluded evidence, in deciding whether the
proviso
should be applied,
    is to apply the
proviso
to a different case than the one heard by the
    jury.  Because the evidence was excluded at trial, the appeal court has no way
    of knowing how the defence would have met that evidence and, consequently, no
    way of knowing how strong that evidence might have been.  An appellant who has
    demonstrated an error in law and is otherwise entitled to a new trial should
    not be deprived of that new trial based on assumptions about the probative
    force of evidence he was never called upon to answer at trial.  The excluded
    evidence can play no role in determining the application of the
curative
    proviso
to the legal errors made at trial.

[57]

Where, however, the issue is not the application of the
curative
    proviso
, but whether a successful appellant is entitled to an acquittal or
    a new trial, the Crown may argue that probative evidence was improperly
    excluded in support of a submission that the court should direct a new trial and
    not enter an acquittal.  Counsel for the appellant, quite properly, does not
    suggest that an acquittal would be an appropriate remedy here.  The Crown can
    re-litigate the admissibility rulings made by the trial judge at the new trial:
    see
R. v. Duhamel
, [1984] 2 S.C.R. 555.

VII

CONCUSION

[58]

I would allow the appeal and order a new trial on the charges of
    manslaughter and robbery while using a firearm.

RELEASED:
December 28, 2011 (D.D.)

Doherty
    J.A.

I
    agree S.T. Goudge J.A.

I
    agree Gloria Epstein J.A.





[1]
This statement was not admitted for its truth, but was, however, available to
    the jury in their assessment of Diedricks credibility.



[2]
Even at the trial proper, apart from the photo array itself, there was little
    evidence available as to the reliability of the identification process.  All of
    the officers notes had been lost and it was even unclear which officer had
    shown Ms. Diedrick the photographs.  On the limited information available,
    however, there were obvious flaws in the identification process.  The photos
    had been shown to the witness six at a time rather than one at a time and they
    had been shown to her by one of the investigating officers rather than an
    officer who was not involved in the case.


