



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Gough, 2013
    ONCA 137

DATE: 20130306

DOCKET: C55605

Epstein, Hoy and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Elvin Gough

Appellant

Howard L. Krongold, for the appellant

Suhail A.Q. Akhtar, for the respondent

Heard: February 12, 2013

On appeal from the conviction entered on October 21, 2011
    by Justice Albert J. Roy of the Superior Court of Justice, sitting without a
    jury.

By the court:

OVERVIEW

[1]

The appellant appeals his conviction of robbery and uttering a
    threat.  The only issue at trial was identification and the only evidence
    on that issue was the eyewitness testimony of the victim, Dean Desarmia.

[2]

Mr. Desarmia, a resident of a Salvation Army shelter in Ottawa, was
    robbed in late July 2010 after cashing an Ontario Disability Support Program
    (ODSP) cheque at a MoneyMart store.

[3]

Mr. Desarmia first saw the robber shortly after cashing his cheque. As Mr.
    Desarmia and a friend walked along an Ottawa street, a man walked towards them.
     Mr. Desarmia had never seen or met the individual before.  The friend greeted the
    man and then walked away with him.

[4]

Mr. Desarmia then saw an acquaintance and went and sat with him on the
    edge of a planter.  While Mr. Desarmia was seated on the planter, the man who
    had met up with Mr. Desarmias friend walked over really fast and, as he sat
    down beside Mr. Desarmia, he placed Mr. Desarmia in a headlock.  The man told
    Mr. Desarmia that if Mr. Desarmia did not give him the money, he would crush
    Mr. Desarmias head.  Mr. Desarmia handed over the envelope containing all
    of his cash, around $450.  The robber threatened that if Mr. Desarmia spoke to
    the police, he would cut Mr. Desarmias head off.

[5]

Several days after the robbery, Mr. Desarmia recounted what had
    transpired to his brother (one of the Crowns two witnesses) and left
    Ottawa.  Upon his return a couple of weeks later, he encountered a man
    talking with someone outside the Salvation Army shelter who, upon seeing Mr.
    Desarmia, uttered the words Its a free country.

[6]

Believing that the man was the robber, Mr. Desarmia spoke to the staff
    at the Salvation Army residence  Candace Letourneau (the other Crown witness),
    and Steph, who did not testify.  Mr. Desarmia learned that the mans name was
    Elvin Gough.

[7]

Some five days later, Mr. Desarmia reported the robbery to the police,
    and provided them the appellants name Elvin Gough, as the man who had robbed
    and threatened him.    Mr. Desarmia also provided the police with a description
    of his assailant: a black male, middle aged, heavy-set, wearing a black fabric
    that covers the head and drapes down at the neck, similar to a bandana but not
    a bandana.

[8]

The police located the appellant and charged him with robbery and
    uttering threats.

[9]

Prior to the robbery, Mr. Desarmia had been diagnosed with schizophrenia.
    He was not taking medication at the time of the robbery, or at the time he saw
    the man outside the shelter.

[10]

At
    trial, some fourteen months later, Mr. Desarmia identified the man in the
    prisoners box, the appellant, as the man who had robbed him and whom he had
    met outside the shelter.

[11]

The
    appellant did not testify.

[12]

After
    a two-day trial, the trial judge concluded that the appellant had committed the
    offences.

[13]

The
    appellant argues that; (1) the trial judge materially misapprehended the
    evidence, (2) the verdict is unreasonable, and (3) the trial judge failed to
    correctly instruct himself on the inherent unreliability of identification
    evidence, or to advert to and adequately scrutinize the specific frailties
    disclosed by Mr. Desarmias evidence.

[14]

Based
    on our conclusion that the trial judge erred in the manner in which he
    considered the identification evidence, the convictions cannot stand and the
    appeal must be allowed.

[15]

Specifically,
    while the trial judge noted the need for caution in weighing Mr. Desarmias
    identification evidence in his reasons, he did not direct himself to or
    adequately analyze the specific and significant frailties in Mr. Desarmias
    evidence.  It is particularly critical that a trial judge do so where, as
    here, there is no independent evidence capable of corroborating the victims
    identification evidence.

[16]

To
    provide context for the analysis that follows, we first set out the relevant
    portions of the trial judges reasons. We then briefly address the appellants
    first and second grounds of appeal before turning to the appellants third, and
    pivotal, argument.

THE TRIAL JUDGES REASONS

[17]

In response to defence counsels submissions on the identity
    issue, the trial judge acknowledged that the court should be cautious when
    looking at identity and, of course, that is something that we are all very
    cognizant of, that, if there is an area where mistakes are made, it often is in
    the area of mistaken identity....

[18]

The trial judge was satisfied that Mr. Desarmia had not made up
    that he was robbed of his money from his ODSP cheque by a large, black man. He
    found that there was a ring of truth and an air of certainty about [Mr.
    Desarmias] evidence on the material facts and that there was a child-like
    genuineness and truthfulness about his evidence.

[19]

The trial judge reasoned as follows:

[Mr. Desarmia] identified the accused, he described him and
    in circumstances when he had an opportunity to see him.  He saw the accused
    walking towards him, the accused sat right next to him, the accused had him in
    a headlock, he saw the accused, he gave him the envelope and then he saw the
    accused walk away.  He saw the accused threaten him and this all happened in
    daylight.

Not only did he give a description of the accused without
    details  and that has to be said, he did not give details  but one of the things
    that he did recognize was his voice

[]

Then two weeks later, when he comes back to the shelter, he
    sees the accused.  It is not as though he is walking down the street in some
    other city and picks out an individual.  He picks out the accused who is
    staying at this residence and it is confirmed that the accused is a resident at
    this shelter.

Then the accused says something to him about a free country.  That
    is all consistent with the victim saying that he recognized his voice.

So that this is not one of these circumstances where you get a
    momentary view of someone and you do not see him for two weeks and then you
    make an identification. The opportunity and circumstances of this case are far
    convincing about the weight of the evidence that should be given on the
    question of identity.

So, on all of the evidence, the evidence of the occurrence and
    the evidence of the identity, I am satisfied on the evidence of Mr. Desarmia,
    confirmed by the evidence of the two Crown witnesses, I am satisfied beyond a
    reasonable doubt that this occurrence, the robbery and threats, took place and
    I am satisfied beyond a reasonable doubt as well that these offences were
    committed by Mr. Gough.

ANALYSIS

(1)

Material Misapprehension of Evidence

[20]

The
    appellant submits that the trial judge misapprehended key evidence involving
    the corroboration of the complainants identification evidence.

[21]

Specifically,
    on three occasions in his reasons, the trial judge erroneously referred to Ms.
    Letourneaus evidence that the appellant resided at the Salvation Army shelter
    as confirming Mr. Desarmias evidence.

[22]

It
    is conceded that Ms. Letourneau did not testify that the appellant resided at
    the shelter. In fact, she testified that while she had a good idea of who was
    staying at the shelter, she had never met the appellant and did not know his
    name.

[23]

Mr.
    Desarmia, however, after first testifying that he never saw the appellant
    living at the shelter, later testified that the appellant was living at the
    shelter.  Mr. Desarmias evidence appears to speak to the period of time after
    he saw the appellant outside the shelter, and not the time at which the robbery
    occurred.

[24]

The question that follows is the extent to
    which, if at all, this misapprehension affected the trial judges reasoning
    process, resulting in his conclusion that the appellant is the robber. If the
    misapprehension played an essential part in the trial judges reasoning process
    leading to the conviction, the conviction is not saved even if the evidence at
    trial was capable of supporting a conviction:
R. v. Lohrer
(2004), 2004
    SCC 80, 193 C.C.C. (3d) 1 (S.C.C.), citing
R. v. Morrissey
(1995),
22
    O.R. (3d) 514,
97 C.C.C. (3d) 193 (Ont. C.A.), at para. 93.

[25]

While
    the misapprehension of evidence was unfortunate, we are not satisfied that it
    gave rise to a miscarriage of justice.

[26]

The
    only indication of the significance that the trial judge accorded what he
    thought was confirmatory evidence of Ms. Letourneau is in the following passage
    from his reasons excerpted above:

It is not as though [Mr. Desarmia] is walking down the street
    in some other city and picks out an individual.  He picks out the accused who is
    staying at this residence and it is confirmed that the accused is a resident at
    this shelter.

[27]

The
    misapprehended evidence was of very limited probative value. Since the appellants
    defence at trial rested on the fact that Mr. Desarmia knew the appellant and
    the appellant lived at the shelter it was an easy error for the trial judge to
    make.

[28]

While
    not clear from his reasons, the trial judge may also have regarded Ms.
    Letourneaus evidence as buttressing Mr. Desarmias credibility; that is, Mr.
    Desarmias evidence that he saw the appellant outside of the shelter is more
    believable if the appellant in fact lived at the shelter at that time.  Mr.
    Desarmias credibility, however, was not a key issue at trial.  The critical
    issue was the reliability of his identification of the appellant as the robber.

[29]

We
    are not, however,
persuaded that the misapprehension of
    the evidence played an essential part in the trial judges reasoning process
    resulting in the appellants conviction.  We reject this ground of appeal.

(2)

Unreasonable Verdict

[30]

The
    appellant submits that the identification evidence cannot reasonably support a
    conviction.

[31]

To give effect to this ground of appeal,  we must
    be persuaded that, on the record before the trial judge, no properly instructed
    trier of fact acting judicially could reasonably have convicted the appellant:
    see
R. v. Goran
,
2008 ONCA 195,
[2008] O.J. No.1069, at para. 21.

[32]

As
    explained below, there are frailties in Mr. Desarmias evidence.  Nonetheless,
    Mr. Desarmia did see the robber twice in close quarters, during daylight, in a
    single day, albeit briefly.  We adopt the approach of Blair J.A. in
Goran
and conclude that, notwithstanding these frailties, it is possible that a trier
    of fact, properly instructed and acting reasonably, could have come to the same
    conclusion as the trial judge.

[33]

We
    do not give effect to this ground of appeal.

(3)

Concerns Regarding the Identification Evidence

[34]

As
    indicated above, our concern is that the trial judge failed not only to
    self-instruct properly on the inherent unreliability of identification
    evidence, but also to advert to and adequately scrutinize the specific
    frailties disclosed by the evidence.  The trial judges comments that the
    court should be cautious when looking at identity and it is an area where
    mistakes are made fall short of the degree of scrutiny required.  The trial
    judge also failed to instruct himself on the fallacy of mistaking certainty for
    accuracy by placing excessive reliance on Mr. Desarmias child-like
    genuineness and the fact that he sensed a ring of truth and an air of
    certainty about his evidence.

[35]

Being
    notoriously unreliable, eyewitness identification evidence calls for
    considerable caution by a trier of fact:
R. v. Nikolovski
, [1996] 3
    S.C.R. 1197, at pp. 1209-10;
R. v. Bardales
, [1996] 2 S.C.R. 461, at pp.
    461-62;
R. v. Burke
, [1996] 1 S.C.R. 474, at p. 498. It is generally
    the reliability, not the credibility, of the eyewitness identification that
    must be established.  The danger is an honest but inaccurate
    identification:
R. v. Alphonso
, 2008 ONCA 238, [2008] O.J. No. 1248,
    at para. 5;
Goran
, at paras. 26-27.

[36]

The trier of fact must take into account the
    frailties of eyewitness identification in considering such issues as whether
    the suspect was known to the witness, the circumstances of the contact during
    the commission of the crime (including whether the opportunity to see the
    suspect was lengthy or fleeting) and whether the circumstances surrounding the
    opportunity to observe the suspect were stressful;
R. v. Carpenter
, [1998] O.J. No. 1819 (C.A.), at para. 1;
Nikolovski
, at 1210;
R. v. Francis
(2002),
    165 O.A.C. 131,
[2002] O.J. No. 4010,
at para. 8.

[37]

As well, the judge must carefully scrutinize the
    witnesses description of the assailant.  Generic descriptions have been
    considered to be of little assistance;
R. v. Boucher,
2007 ONCA 131
,
[2007] O.J. No. 722,
    at para. 21.  The same can be said of in-dock or in-court identification;
R.
    v. Hibbert
, 2002 SCC 39, [2002] 2 S.C.R. 445, at 468-69;
R.
    v. Tebo
(2003), 172 O.A.C. 148 (Ont. C.A.), at para. 19.

[38]

In his reasons, the trial judge
failed to grapple with a
    number of frailties specific to Mr. Desarmias identification evidence,
    including:

·

The evidence of Ms. Letourneau was that more than one black
    person was living at the shelter.  As the trial judge noted, Mr. Desarmias
    description of the robber was generic.  There was no evidence that the
    appellant was wearing the distinctive head garb Mr. Desarmia described to the
    police at the time that Mr. Desarmia saw him in front of the shelter. Mr.
    Desarmias identification of the appellant was cross-racial. The concern with
    respect to the generic description on which Mr. Desarmia presumably acted in
    identifying the appellant outside the shelter was therefore heightened.

·

According to Mr. Desarmia, he relied mostly on the voice of the
    man outside the shelter in identifying him as the robber. Mr. Desarmia testified,
    however, that one of two reasons he receives ODSP is because he suffered
    hearing damage from a car accident.  Moreover, the verbal exchanges between Mr.
    Desarmia and the robber were limited, and more than two weeks had elapsed
    between the time Mr. Desarmia heard the robbers voice and the encounter where
    the man outside the shelter uttered a mere four words.

·

Mr. Desarmia did not know the robber, and, in the first
    encounter, had little reason to pay attention to him. The circumstances of the
    second encounter were stressful, and may have made accurate observation
    difficult. Both encounters were brief.

[39]

These
    issues were raised. The deficiency in the reasons can be summarized as a
    failure on the part of the trial judge to connect the essential principles of
    the frailties of eyewitness identification to the specific concerns raised by
    the evidence in this case. This lack of analysis was particularly problematic
    given that there was no other evidence linking the appellant to the crime.

DISPOSITION

[40]

For
    these reasons, we allow the appeal, quash the convictions and order a new trial
    if the Crown is so advised.

Released: Mar. 6, 2013    GE                                         Gloria
    J. Epstein J.A.

Alexander
    Hoy J.A.

P.
    Lauwers J.A.


