



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Biddle, 2018 ONCA 520

DATE: 20180607

DOCKET: C63537

Laskin, Sharpe and Fairburn JJ.A.

In the matter of a
    reference pursuant to sections 696.3(2) and 696.3(3)(a)(ii) of the
Criminal
    Code,
R.S., C. c-34, s.1 by the
    Minister of Justice to the Court of Appeal for Ontario
concerning
    the criminal convictions of Mr. Eric Biddle rendered on December 21, 1987, in
    Toronto, Ontario.

BETWEEN

Her Majesty the Queen

Respondent

and

Eric Biddle

Applicant/Appellant

Leo Adler, for the applicant/appellant

Jamie Klukach, for the respondent

Heard: January 26, 2018

On a reference from convictions
    entered on December 21, 1987 by Justice D.C.J. Sheard of the District Court of
    Ontario, judicial district of York, in the Municipality of Metropolitan
    Toronto, sitting with a jury.

Fairburn J.A.:


A.

OVERVIEW

[1]


On July 11, 1986, P.B. was in her apartment bathroom,
    splashing water on her face, when she looked up from the sink and saw a man
    standing in the doorway. She attempted to fight him off, but he beat and strangled
    her into unconsciousness. P.B. later awoke in a pool of blood on her bedroom
    floor. Although her attacker was still in the apartment, she managed to escape.

[2]

In December 1986, Eric Biddle was charged in
    P.B.s assault. The backbone of the prosecutions case was P.B.s
    identification of Biddle as her attacker. Although the identification evidence
    suffered from indisputable frailties, including a procedurally flawed courtroom
    identification procedure, Biddle was convicted of: break and enter a dwelling
    and cause bodily harm; assault cause bodily harm; and overcoming resistance by
    strangulation. In dismissing his appeal, this court concluded that the evidence
    was not so faulty as to render it valueless:
R. v. Biddle
(1993), 65 O.A.C. 263, at para. 44, leave to appeal dismissed (1994),
    69 O.A.C. 47 (S.C.C.).  The court placed particular emphasis on the fact that
    Biddle had a full opportunity to cross-examine P.B. on the problems with her
    identification evidence and to comment on its frailty during closing
    submissions.

[3]

What the trial Crown, defence and jury did not
    know at the time of trial, nor this court on appeal, was that P.B. and G.M., a police
    officer who was involved in the flawed courtroom identification procedure, were
    in a personal relationship. The existence of the relationship by the time of
    trial is not in dispute on this reference, although when it started is.

[4]

On February 22, 2017, the Minister of Justice
    and Attorney General of Canada, The Honourable Jody Wilson-Raybould, referred
    the matter to this court under s. 696.3(2) of the
Criminal Code
, requesting that the court consider whether the new information
    concerning the non-disclosure of the relationship between  [P.B.] and 
    [G.M.] should be admissible as fresh evidence. If the court concludes that the
    information is admissible, then Minister Wilson-Raybould asks the court,
    pursuant to s. 696.3(3)(a)(ii), to determine the case as if it were an appeal
    brought by Biddle.

[5]

Using the test set out in
R. v.
    Dixon,
[1998] 1 S.C.R. 244, I conclude that fairness
    demanded that the fact of the relationship be disclosed and that, had it been
    disclosed, there is a reasonable possibility that it would have tipped the
    balance in this extraordinarily weak Crown case. The information regarding the relationship
    should be admitted as fresh evidence, the convictions set aside and a new trial
    ordered.

B.

BACKGROUND


(1)

Attack on P.B.

[6]

P.B. was attacked in her bathroom. Her attacker had
    womens underwear on his head. He stood there for about four to five seconds
    before placing a bra around her neck. She struggled with him and managed to
    strike him in the face two to three times before losing consciousness.

[7]

When she awoke on her bedroom floor, she got up
    and proceeded to the kitchen area, where she saw her assailant again. He was
    blocking her way to the outside door. P.B. charged him, pushed him out of the
    way and ran into the parking lot. P.B. acknowledged that the injuries to her
    face, suffered as a result of the beating, interfered with her ability to see her
    assailant very well as she escaped from the apartment. From the beginning to
    end, she agreed that she may have seen her attacker for no more than a total of
    eight to ten seconds.

(2)

Other Attacks and Arrests

[8]

Two other women were attacked in the months
    following the assault on P.B., one on September 25 and the other on October 28,
    1986. Although these later attacks were said to be similar to the attack on
    P.B., neither involved a home entry.

[9]

Biddle was arrested in the vicinity of the
    October attack. He was charged and detained in custody on that matter. Over a
    month later, he was also charged in relation to the attack on P.B. and the
    September attacks.

[10]

The grounds for arrest on the attack on P.B. only
    developed after the police took P.B. to a courtroom where Biddle was making an
    in-custody appearance on the October attack. She knew that she was being taken there
    to see if she could identify her attacker. G.M. sat with P.B. in the courtroom.
    A number of prisoners, including Biddle, were then brought into the courtroom.
    She identified Biddle as her attacker.

(3)

Legal Proceedings

[11]

The Crown attempted to prosecute all of the
    offences together. On the eve of trial, the home invasion attack on P.B. was
    severed. The September and October 1986 offences were tried in November 1987
    and convictions were entered. The trial involving P.B. proceeded in December
    1987 and Biddle was convicted.

[12]

Although Biddle testified at the first trial, denying
    having committed the offences, he did not testify at the second. There is
    evidence before this court suggesting that his decision to remain silent was
    rooted in counsels advice that he not testify given that he would likely be confronted
    with the convictions that had been entered a month previously.
Since
R.
    v. Corbett,
[1988] 1 S.C.R. 670, which modified the law
    on cross-examining accused on prior convictions, had not yet been decided, it
    is plausible that Biddle may have been cross-examined on those convictions.  Relying
    on a letter Biddle wrote to the Minister, Mr. Adler maintains that had Biddle
    testified, he would have denied committing the offence. However, Biddle has filed
    no affidavit to this effect.

[13]

Biddle was sentenced for all three attacks at
    the same time, receiving a total sentence of 12 years: seven years for the
    attack on P.B., seven years concurrent on the September attack and five years
    consecutive on the October attack.

[14]

Biddle then started the appeal process. As for
    the September and October attacks, Biddle was ultimately successful and a new
    trial was ordered:
R. v. Biddle
(1993), 84
    C.C.C. (3d) 430 (Ont. C.A.) (
Biddle 1
),
    revd [1995] 1 S.C.R. 761 (
Biddle SCC
). As noted
    before, his appeal in relation to the attack on P.B. was dismissed. I will
    refer to that judgment as 
Biddle 2

.

[15]

Biddle was granted bail pending his new trial on
    the September and October attacks:
R. v. Biddle
(1995), 82 O.A.C. 107. By the time he received bail, however, he
    had already been in custody for over eight and a half years and had completed
    his sentence in relation to the attack on P.B. Ultimately, the trial Crown
    withdrew the charges relating to the September and October attacks. There is
    some suggestion that the Crown did so on the basis that the complainant in the
    October attack did not wish to testify again and that without the similar fact
    evidence of the October attack the Crown was left without a reasonable prospect
    of conviction on the September attack.

[16]

Biddle continued to maintain his innocence in
    relation to the July attack on P.B. Having exhausted his appeal routes, he brought
    an application for ministerial review in late 1995. The evidence gathering
    process commenced with interviews in 1999. It is in the context of those
    interviews that the information forming the subject of the fresh evidence in
    this reference  the information about P.B. and Officer G.M.s relationship 
    was discovered.

C.

ANALYsis

(1)

The Test for the Admissibility of the Fresh Evidence

[17]

There are two ways in which the proposed fresh
    evidence may become admissible on this reference: (1) on the basis of
    non-disclosure giving rise to a breach of the right to make full answer and
    defence, governed by the test first set out in
Dixon,
(the 
Dixon
test); or (2) on the
    basis that the cogency of the evidence is such that it warrants admission and
    the interests of justice require that it be received, governed by the test
    first set out in
R. v. Palmer,
[1980] 1 S.C.R.
    759 (the 
Palmer
test). Biddle maintains that
    the fresh evidence is admissible under both the
Dixon
and the
Palmer
tests. The respondent maintains that neither test
    affords admission.

[18]

There are two components to the
Dixon

test. First, the court asks whether there has been a breach of
    the Crowns duty to disclose. A time-sensitive approach governs this inquiry as
    it would be unfair to consider allegations of failed disclosure through the
    lens of current day rules and practices. As this court cautioned in
R.
    v. Truscott
, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para.
    122, applying present-day disclosure standards to past actions, is akin to
    using present-day medical standards to decide whether a diagnostic protocol
    followed in 1959 amounted to malpractice. See also:
R. v. Phillion
, 2009 ONCA 202, 241 C.C.C. (3d) 193, at para.150.

[19]

If the court concludes that, at the relevant
    time, the Crown failed in its disclosure obligations, then
Dixon
requires that the court go on to consider whether there exists a reasonable
    possibility that the non-disclosure: (a) impacted the outcome of the trial; or
    (b) impacted the overall fairness of the trial process:
R. v. Taillefer
, 2003 SCC 70, [2003] 3 S.C.R. 307, at paras. 71, 78; see also
Dixon
, at paras. 34-35. Although a reasonable possibility must be more
    than entirely speculative in nature (
Dixon,
at
    para. 34), the mere existence of such a possibility constitutes an
    infringement of the right to make full answer and defence:
Taillefer,
at para. 78.

[20]

For the reasons that follow,
I find that the
Dixon
test governs and
    that a new trial is required. This means that there is no need to address the
Palmer
argument, nor Biddles
    additional contention that non-disclosure amounted to an abuse of process.


[21]

This was a classic eyewitness identification
    case that hung by a thread. It is against the backdrop of this exceptionally
    weak case that I will go on to discuss the nature of the fresh evidence and how
    it intersects with the case. I will then consider the fresh evidence against
    the
Dixon
test, ultimately arriving at my conclusions
    that: (a) there was failed disclosure; and (b) there is a reasonable
    possibility that had the disclosure been made, the verdicts would have been
    different. Accordingly, there is no need to go on and consider the second prong
    of the
Dixon
test involving the overall
    fairness of the trial process.

(2)

The Fragile Nature of the Case at Trial

[22]

There is no doubt that P.B. was brutally
    assaulted in her apartment, in what must have been a terrifying and life-altering
    experience.

[23]

The prosecution case turned on P.B.s
    identification of Biddle as her attacker. Without that identification, there
    was no case. As fairly acknowledged by the respondent, [P.B.s] identification
    of the appellant was the centrepiece of the Crowns case against [Biddle].


i.

The non-identification
    evidence was weak

[24]

There were only four pieces of evidence that
    existed beyond the realm of eyewitness identification evidence at trial.  All
    combined, they amounted to little.

[25]

First, the jury heard that Biddle lived in an apartment
    building close to P.B.s building in the City of Toronto. P.B.s neighbour saw a
    man of average height, who was stocky and thick running away from P.B.s
    apartment, in the same direction as Biddles apartment building. The defence
    maintained that the path of travel was also consistent with running towards the
    parking lot for P.B.s building.

[26]

Second, blood was found on the underwear that
    the assailant placed on his head. If the blood was from a single source, it was
    neither Biddles nor P.B.s blood. If it was a mixture of blood, it could have
    come from P.B. and another person sharing the same blood type as Biddle.  The
    appellants blood type is shared by 40 percent of the population. In a rather
    understated way, the trial judge pointed out in his charge that the blood
    evidence was not in any sense conclusive evidence.

[27]

Third, one of Biddles co-workers saw Biddle wearing
    dark glasses three days after the attack, which occurred in July. This
    evidence was led to show that Biddle might have been hiding a facial injury
    that he incurred during the assault. The witness was asked in cross-examination
    how long he was with Biddle that day and he answered: Just a pass  He was
    coming in and I was heading in the other direction.

[28]

Finally, P.B. described her assailant as being
    clean-shaven. By the end of October, Biddle had a beard. The trial Crown
    maintained that this was evidence of Biddles attempt to disguise his
    appearance. Biddles neighbour gave evidence that Biddle was clean-shaven until
    at least early October. Again, in a rather understated way, the trial judge
    cautioned the jury that if one were considering disguising ones appearance
    after having committed a criminal act in July  October would be rather a late
    date to begin the process of a disguise.
In
Biddle 2,
this
    court
commented, at para. 22, that the beard evidence was
    very weak and one would expect that a jury would place very little weight on
    this submission.

[29]

In summary, the non-identification evidence
    included the facts that Biddle: (i) lived in the same area of Toronto as P.B.; (ii)
    was part of 40 percent of the total population that might have contributed to a
    blood sample, if it was a mixed blood sample; (iii) was wearing dark glasses in
    mid-July; and (iv) grew a beard a few months after the assault. This is not the
    stuff that proof beyond a reasonable doubt is made of. Indeed, it offered
    little to the trial.

[30]

Undoubtedly, this case turned on eyewitness identification
    evidence, inherently dangerous evidence.


ii.

Eyewitness
    identification cases contain inherent dangers

[31]

It is widely acknowledged that there are intrinsic
    frailties within eyewitness identification evidence. As Doherty J.A. recognized
    a decade after the convictions in this case, there is a well recognized
    potential for injustice in eyewitness identification cases:
R. v.
    Tat
(1997), 117 C.C.C. (3d) 481 (Ont. C.A.), at paras.
    99-100. The difficulty is that the trier of fact is susceptible to conflating
    the concepts of credibility and reliability. Perfectly honest and well-meaning
    identification witnesses can provide convincing evidence that is unreliable and
    often impermeable to attack on cross-examination:
R. v. Goran,
2008 ONCA 195, 234 O.A.C. 283, at para. 19;
R. v. Hibbert
,
2002 SCC 39, [2002] 2
    S.C.R. 445, at para. 52.

[32]

The dangers linked to eyewitness identification
    evidence increase exponentially when it comes to in-dock identifications. In
    these circumstances, the identification witness has a person presented to them,
    a person who the police obviously believe committed the offence. Given the suggestive
    nature of in-dock identifications, they are renowned for being of little to no
    value as reliable identification evidence:
R. v. Bailey,
2016 ONCA 516, 339 C.C.C. (3d) 463, at para. 48;
Hibbert,
at paras. 47-53;
R. v. Jack,
2013 ONCA 80, 294 C.C.C. (3d) 163, at paras. 17, 30-31.

[33]

P.B. was a confident witness. I do not doubt her
    genuine belief that Biddle was the man who so viciously attacked her. The central
    question for the trier of fact, though, was not the sincerity of her evidence.
    It was the reliability of her identification of Biddle as her attacker.

[34]

I will now explain why the reliability of that
    evidence was so troubling. In doing so, I should not be taken as questioning
    this courts judgment in
Biddle 2.
Indeed,
    this court recognized in 1993 that the identification evidence was faulty. Read
    in context, though, the judgment conveys that the convictions were upheld because
    the court was satisfied, despite the flawed evidence, that the jury had the tools
    necessary to decide the case fairly. What was unknown at that time was that the
    defence was missing an important tool that could have been used to test the
    already fragile eyewitness identification evidence.


iii.

The eyewitness
    identification evidence was riddled with problems

·

The hair evidence

[35]

P.B.
    told the first officer on scene that her attacker had shoulder length hair,
    but the jury heard evidence that Biddle did not have shoulder-length hair in
    July 1986. Nor did he have shoulder-length hair at trial. He was also bald on
    top.

[36]

Although P.B. could not remember telling the officer that her
    attacker had shoulder-length hair, she did not disavow the comment at trial.
    Instead, relying on her fathers military approach, she explained that, to
    her, anything more than a brush cut was shoulder-length hair.

[37]

She also explained that her attackers hair may have looked
    shoulder-length because the underwear he had placed on his head pressed his
    hair down.
In
Biddle 2,
this
    court referred to P.B.s reference to her attackers shoulder-length hair as the
    most important inconsistency between what Biddle actually looked like and P.B.s
    description of her attacker: at para. 32.

·

Exclusion from photo line-up

[38]

On November 5, 1986, about four months after the offence, P.B. was
    shown a photo line-up containing Biddles picture. The officer who conducted
    the line-up testified at trial that P.B. identified four photos as containing
    images of men who looked similar to her attacker. Biddles photo was in that
    group. Ultimately, though, she excluded Biddles picture on the basis that her
    attacker had more hair than the man in the photo.

·

The courtroom identification procedure: not the
    fairest line-up

[39]

On December 3, 1986, about a month after excluding Biddle from the
    photo line-up, P.B. was taken to a courthouse where Biddle was scheduled to
    make an in-custody appearance on the charges arising from the October attack. P.B.
    sat with G.M. in the courtroom. The complainant from the September attack was
    taken to the courthouse at the same time. Although P.B. was told that she did
    not have to identify anyone, she acknowledged at trial that she knew that the
    police were taking her there to see if she could identify her attacker.

[40]

At the preliminary inquiry she said that she was told to look in the
    prisoners dock. At trial she said that she was simply asked to look around the
    courtroom. Once P.B. and G.M. were seated, a number of prisoners, including
    Biddle, were brought into the courtroom. Six of the prisoners were male. Although
    G.M. and P.B. testified that they could not recall what any of the other
    prisoners looked like, another police officer, sitting in the courtroom with
    the complainant from the September attack, acknowledged that none of the other
    prisoners looked even vaguely like Biddle.

[41]

A copy of the pictures of the other prisoners who were in the
    courtroom at the same time as Biddle demonstrate that they differed in age,
    ethnicity, size, hair length and colour. None of the men look anything like
    Biddle. It appears that the jury did not see these photos.

[42]

Importantly, one of the very first things that P.B. said after she
    was attacked was that her assailant wore glasses. Biddle was wearing glasses in
    the courtroom that day, yet the pictures of the other inmates with him suggest
    that none of them wore glasses. Accordingly, it appears that he was the only
    inmate present in the courtroom who presented with this critical identifying
    feature.

[43]

To call this a flawed identification procedure would seriously
    undershoot the mark in terms of the powerful dangers it created for
    misidentification.
As another police officer present during
    the courtroom identification fairly acknowledged at trial, it was not the
    fairest line-up and he would not do it again.

[44]

In fact, this was not a line-up at all, as there
    was no attempt to ensure that the people presented looked somewhat alike. P.B.
    knew that the police believed that her attacker would be in the courtroom. Biddle
    was the only one wearing glasses, the first identifying feature that P.B. gave
    of her attacker. He was in custody relating to an attack on another woman. The
    danger of a mistaken identification was obvious.

[45]

P.B. gave convincing identification evidence at
    trial. She described how she identified Biddle in court on December 3, 1986 and
    the strong emotional impact it had on her. When the trial Crown was interviewed
    as part of the ministerial review, over ten years after trial, he still spoke
    expressively of P.B. being the strongest of the witnesses and his view of her
    identification of Biddle as being visceral. G.M. also testified before the
    jury, attesting to P.B.s visceral reaction to seeing Biddle.

·

In-dock Identification at trial

[46]

P.B. also gave convincing and unwavering in-dock
    identification evidence at trial, saying that Biddles face is the face that
    she saw in her nightmares, time and time again.

·

The evolving description of her attacker

[47]

P.B. gave descriptive details about her
    attacker. Those details morphed between the time that she originally spoke to the
    police and her trial testimony. For instance, prior to trial, she said her
    attacker was between 25 to 30 years of age and later said he was 27. At trial,
    she said that he was between 25 to 40 years of age (consistent with Biddle who
    was 37 years old at the time of trial). Prior to trial, she also said that her
    attacker had a medium to heavy build. At trial, she said he was slender and
    athletic (consistent with Biddle).

[48]

P.B. was also able to provide details about her
    attacker at trial that she had never mentioned before. For instance, although
    she had not mentioned it to the police before, by the time of trial, P.B. stated
    that her attacker wore wide-rimmed glasses with clear lenses, not shaded
    (consistent with Biddles glasses); and his hair was sandy blonde (consistent
    with Biddles hair).


iv.

Conclusion

[49]

I agree with this courts assessment in
Biddle
    2
that the eyewitness identification evidence was faulty.
    Indeed, having regard to the intervening 25 years between
Biddle 2
and today, and the experience with eyewitness identification cases
    having gone wrong, one might reasonably choose an even stronger word to
    characterize that evidence today. Despite its frailties, though, this court
    concluded that the verdicts were safe. Read in context, this conclusion was
    informed by: (a) the full cross-examination that had been conducted; and (b)
    the fact that the trial judge had strongly cautioned the jury about the dangers
    of the eyewitness identification evidence.

[50]

Unfortunately, at the time that this conclusion was
    reached, no one but the police and P.B. knew about the relationship between
    P.B. and G.M. I will now discuss that fresh evidence, followed by an
    application of that evidence to the
Dixon
test.
    I find that whether the relationship started before or after the first in-dock
    courtroom identification, in accordance with the
Dixon
test: (a) the relationship should have been disclosed; and (b) there
    is a reasonable possibility that, had it been disclosed, the verdicts may well have
    been different.

(3)

The Nature of the Fresh Evidence

[51]

The Criminal Conviction Review Group (CCRG) commenced
    an investigation after Biddle applied for ministerial review under then s. 690
    of the
Criminal Code
. A lawyer at the CCRG
    first interviewed G.M. on April 29, 1999. The lawyer made handwritten notes
    about what G.M. told him at that meeting, including that G.M. and P.B. had been
    in a relationship.

[52]

The handwritten notes from the April 29 meeting contain
    the following: Married [P.B.] but was at arms length during (now divorced) 3
    months after the assault but there was no info exchanged. If the relationship
    started 3 months after the assault, that would place the start of the
    relationship around mid-October, 1986, before the centrally important December
    3, 1986 courtroom identification involving P.B. and G.M.

[53]

In 2017, the CCRG
    lawyer who originally interviewed G.M.
was asked to provide
    a typed version of his handwritten notes for purposes of this reference. In
    doing so, he commented that the notes were not created simultaneously with the
    interview. Between the interview and writing his notes, he recalls attending the
    Art Gallery of Ontario and having drinks with a friend. He was also recovering
    from surgery at the time and may have been taking medication. He concludes: [a]ll
    of which is to say that my notes of the timing of the relationship could have
    been faulty.

[54]

The lawyers current uncertainty as to the
    veracity of his handwritten notes from 1999 should be considered against the
    fact that he twice committed his then understanding of what G.M. had told him
    to two typed documents. First, in a typed memo to file, dated April 29/30, 1999,
    the lawyer wrote:

At the beginning of the interview, [G.M.] disclosed that he started
    to date [P.B.] about three monthes [
sic
] after the assault. He married
    her and subsequently they were divorced. He told me that he was well aware how
    their relationship might jeopardise [
sic
] the investigation and was very
    careful not impart [
sic
] any information about the case to her. When
    they first went out she suspected him of trying to dig out a motive for the
    crime;
eg.
that the attacker had been an old boyfriend.

[55]

Then, in a draft Investigation Brief, prepared
    in 1999, the lawyer commented:

At the beginning of the interview, Officer
    [G.M.] candidly disclosed to Departmental counsel that he started to date
    [P.B.] about three months after the assault. He married her and subsequently
    they were divorced. He told me that he was well aware how their relationship
    might jeopardize the investigation and was very careful not to impart any information
    about the case to her.

[56]

While being examined by another CCRG counsel in
    2004, G.M. denied that he told the original CCRG lawyer that the relationship
    started three months after the offence. Alternatively, G.M. maintained that, if
    he told the first lawyer that, he must have been mistaken at the time. G.M. was
    adamant that the relationship started in the late spring or into the summer of
    1987, after the committal to trial and after he says he was no longer involved
    in the case.

[57]

P.B. was also interviewed by CCRG counsel in
    2004. She too was adamant that the relationship did not commence until the
    spring or summer of 1987. If this timing is correct, it would place the start of
    the relationship about six months after the flawed courthouse identification
    procedure.

[58]

I would make the following two observations
    about the timing issue. First, it is one thing for someone to make a mistake in
    a scratchy, handwritten note after an interview. It is quite another to commit
    ones understanding of what one has been told to more formal, typed documents,
    prepared at a later date. Although the original lawyer to interview G.M. has
    some present concern about whether his handwritten notes are accurate, this
    does not answer why, at a time when his memory would have been much fresher, he
    would have typed in a memo to file and a draft investigative report what he
    believed he had been told by G.M.

[59]

Second, in the memo to file, it seems clear that
    G.M. told the interviewer that when he and P.B. first went out [P.B.]
    suspected him of trying to dig out a motive for the crime; eg.

that the attacker had been an old
    boyfriend. Of course, on P.B. and G.M.s version, their relationship started
    long after P.B. had identified Biddle as her attacker  indeed, on their
    version, Biddle had already been committed to stand trial by the time that P.B.
    and G.M. started to date. There would quite simply be no reason for G.M. to be
    trying to figure out a motive of an old boyfriend at that point in time. Accordingly,
    one is left wondering why G.M. would say that P.B. 
suspected him of trying to dig out a motive for the
    crime when they first went out.

[60]

Although the police were concerned early on in
    the investigation about whether P.B. was holding back information about her
    attacker, that concern was being actively addressed in the late summer and into
    September of 1986. At that time, the officer-in-charge of the investigation
    asked G.M. to meet with P.B. to try and figure out if there was anything to
    that theory. This was before Biddle had even been identified as a suspect in
    the attack. Once Biddle was identified, the police were no longer concerned
    with whether P.B. was holding back information that could assist in the
    investigation.

[61]

Although there are questions about when the relationship between
    P.B. and G.M. started, the timing issue is not one that needs to be resolved for
    purposes of this reference. While the relevance of the fresh evidence increases
    if G.M. was with P.B. as both a police officer and her personal partner when she
    identified Biddle for the first time in court in December 1986, the relevance
    of the fresh evidence is not strictly limited to that identification procedure.
    There is no dispute that, by the time of trial, they had been involved in a
    serious relationship, at least for six months. As discussed previously, the
    full slate of P.B.s identification evidence  including the evolution of the
    details about her attacker  could have been tested against her personal
    relationship with a police officer who had been an investigator on the case and
    who had access to the full investigative file.

[62]

Accordingly, the question for this court is not when the
    relationship started, but whether the existence of the relationship was such
    that disclosure should have been made so that the defence could explore whether
    that relationship had any impact on an already fragile identification case.

[63]

As I will now discuss, simple principles of fairness required
    disclosure.

(4)

Applying
Dixon


i.

Disclosure
    obligations in 1986 and 1987

[64]

The respondent urges this court to consider
    the Crowns disclosure obligations as they existed in 1986 and 1987, about five
    years before
R. v. Stinchcombe,
[1991]
    3 S.C.R. 326 was released. Having regard to the disclosure rules, customs and
    practices at the time, the respondent maintains that, even if the trial Crown
    had known the relationship information, he would not have been required to
    disclose it. That submission leans heavily on the following factual assertions:

1.

the relationship information did not arise
    from the police investigation;

2.

the relationship commenced only after
    the courthouse identification; and

3.

P.B. and G.M. were adamant that they
    did not discuss the case when their personal relationship began and there is no
    evidence to contradict that assertion.

[65]

I disagree. At a minimum, the
undisclosed information
    could have been used to challenge the reliability of the eyewitness
    identification evidence. Even prior to
Stinchcombe,
basic principles
    of fairness required that this information be disclosed.

[66]

I
    agree with the respondent that
Stinchcombe
was an important
    development in the law and that, since
Stinchcombe,
we have developed
    a firmer idea about what must be disclosed: subject to some limited exceptions,
    anything not clearly irrelevant.



[67]

As
    the respondent fairly recognizes, although
Stinchcombe
elevated the
    Crowns disclosure obligations to a constitutional right, it did not create those
    obligations. Even before
Stinchcombe,
the Crown had a duty to disclose
    all relevant evidence to the defence, regardless of whether that evidence would
    assist the accused or not:
Taillefer,
at para. 64.

[68]

The
    pre-
Stinchcombe
common law duty to disclose all material evidence
    whether favourable to the accused or not was recognized in
R. v. C.(M.H.),
[1991] 1 S.C.R. 763, at p. 337, a case released before
Stinchcombe
and
    one that reviewed the pre-existing law of disclosure dating back many decades.
    Although McLachlin J. (as she then was) found it unnecessary to establish the
    exact ambit of the Crowns duty of disclosure, she emphasized that the Crowns
    duty to disclose was rooted in principles of fairness.

[69]

In
McTaggart v. Ontario,
2000 CarswellOnt 4808 (S.C.), the court heard
    evidence, both from the Crown and defence, that the prevailing disclosure
    obligations in 1986 were tied to the Crowns obligation to be fair. The classic
    quote from
R. v. Boucher
, [1955]
    S.C.R. 16,
at p. 24, was relied upon:

The role of prosecutor excludes any notion of
    winning or losing; his function is a matter of public duty than which in civil
    life there can be none charged with greater personal responsibility. It is to
    be efficiently performed with an ingrained sense of the dignity, the
    seriousness and the justness of judicial proceedings.

[70]

Although
    decided some years after this case, the words of LHeureux-Dubé J. in
R. v.
    OConnor,
[1995] 4 S.C.R. 411, at para. 101, are applicable: full and
    fair disclosure is a fundamental aspect of the Crowns duty to serve the Court
    as a faithful public agent, entrusted not with winning or losing trials but
    rather with seeing that justice is served. Although what constitutes full
    disclosure has grown over time, the Crowns commitment to fairness has always
    been a guiding principle.

[71]

The
    trial Crown acknowledged as much in his interview with the CCRG 17 years after
    the verdict in this case. He recognized that while he was uncertain whether the
    police would have told him about the relationship in 1986 and 1987, had he
    known about it, he would have disclosed it. He candidly expressed that he would
    have been, concerned about  whether there might be some sort of suspicion
    that the witness was being tampered with because of the close relationship with
    the officer.

[72]

Of
    course, if the Crown had a duty to disclose, the police had a corollary obligation
    to provide the discloseable information to the Crown. As noted by the
    Honourable G. Arthur Martin, Q.C., in his
Report of the Attorney Generals
    Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions
(Toronto: Ministry of the Attorney General, Queen's Printer for Ontario, 1993),
    at p. 167-68:

It is well settled and accepted by all,
    including the police, that the police although operating independently of Crown
    counsel, have a duty to disclose to Crown counsel all relevant information
    uncovered during the investigation of a crime, including information which
    assists the accused.  As one commentator has observed, the duty of the police
    to disclose relevant information about a case, to the Crown, is a duty that
    existed before [
Stinchcombe, supra
]. (See also:
R. v. McNeil,
2009 SCC 3, [2009] 1 S.C.R. 66
,
at para. 24).

[73]

I
    agree with the trial Crowns observation that, had he known about the
    relationship information, he would have disclosed it. Fairness required that
    approach. Disclosure was not required because P.B.s evidence was, in fact, tampered
    with, that she and G.M., in fact, spoke about the case, or that they were, in
    fact, involved in a relationship at the time of the December 3 courtroom identification.
    It is not this courts function to decide these factual issues on the
    reference. Rather, disclosure was required so that the defence could have used the
    information to test P.B. and G.M.s evidence in this already exceedingly frail
    eyewitness identification evidence case.

[74]

The
    respondent relies upon the fact that P.B. and G.M. have been unequivocal that
    they scrupulously avoided discussing the case prior to the trial when their
    personal involvement began and that their evidence on this point stands uncontradicted.
    Whether their evidence stands uncontradicted, though, does not resolve the
    issue. The question is whether the defence should have been granted the
    opportunity to explore the potential impact of that relationship on P.B.s
    evidence. The answer to this question must be yes.

[75]

This
    conclusion is supported by G.M.s own evidence from 2004, where he acknowledged
    that, in hindsight, perhaps he regretted not telling the trial Crown. He
    placed emphasis, though, on having told his superior officer. As well, G.M. and
    P.B. both emphasized that their relationship was not a secret within the police
    community. Indeed, P.B. told the CCRG in 2004 that she and G.M. attended the
    police Christmas party together in 1987. (This would have been around the
    time of Biddles trials.) G.M. told the CCRG that, although he may regret not
    telling the Crown about the relationship, he felt that by telling his superior
    officer, he had done all that was required of him.

[76]

Further
    support for the conclusion that the information had to be disclosed lies in
    P.B.s and G.M.s acknowledgement of their discussions surrounding whether the
    relationship was a problem for the prosecutions case. These discussions demonstrate
    that they knew that there were trial fairness concerns, ones that they turned
    their minds to and then dismissed. As P.B. noted:

We talked about it, like: my conscience is
    clear, your conscience is clear, fine. This is no different than dating a
    lawyer that might be, you know, with a law firm, the law firm thats
    representing Biddle. So we looked at our conscience, and no, no, no, were
    clean, weve done nothing wrong and certainly nothing to compromise the
    integrity of the investigation. We were conscious of that. I was painfully
    conscious of that. I wanted him behind bars for my own safety.

[77]

What
    they took upon themselves to decide was the wrong question. This was never
    about whether they were doing something personally wrong. It is possible that
    they may not have done anything to compromise the case, but that misses the
    point. The question is what the defence was entitled to know about their
    relationship so that the already frail eyewitness identification evidence could
    be put to the test. I conclude that as a matter of fairness, the information ought
    to have been disclosed.

[78]

Having
    determined the need for disclosure, I will now turn my attention to what
    difference it would have made.


ii.

Reasonable
    Possibility that the Undisclosed Information Impacted the Outcome of the Trial

[79]

As I earlier explained, finding a failure to disclose does not
    result in the breach of full answer and defence on its own. The burden is on
    the appellant to show that had the information been disclosed, there is a reasonable
    possibility that the jury would have been left with a reasonable doubt about
    his guilt:
Taillefer,
at para. 81. It is not
    the appellate courts function to assess the probative value of the evidence,
    item by item. Rather, it is this courts function to reconstruct the overall
    picture of the evidence that would have been presented to the jury, had the
    undisclosed information been given:
Taillefer,
at para. 82.

[80]

It is the respondents position that there is no reasonable
    possibility that the verdict would have been different even if the fresh
    evidence had been disclosed having regard to the fact that: (1) P.B.s evidence
    was strenuously challenged at trial; and (2) the jury charge on the dangers of
    identification evidence was strong. The respondent maintains that to reach the
    opposite conclusion requires speculation that is unsubstantiated on the record.

[81]

The
    respondents position aligns with this courts view in
Biddle 2
that

the identification procedure was faulty, but not so
    faulty as to render the evidence of identification valueless. P.B. was fully
    cross-examined, she was confronted with her inconsistencies and she gave
    explanations. This was all available for the jurys consideration in the
    context of a strong jury charge on eyewitness identification evidence, at least
    strong in 1987 terms.

[82]

In my view there exists a reasonable possibility that the jury would
    have acquitted Biddle had they known then what we know today.

[83]

The fact is that the jury could not convict unless they accepted
    P.B.s identification evidence as both credible and reliable. The problem is
    that her evidence was never tested against a critical fact: she was personally
    involved in a relationship with one of the investigators on the case, an
    investigator who would have known everything about the case, and the one who
    sat with her in the courtroom when the first critical and inherently suspect
    identification was made.

[84]

I do not agree that the potential impact of the relationship on her
    evidence is entirely speculative. I say this for several reasons.

[85]

First, although P.B. and G.M. are adamant that they never discussed
    the case, P.B. clearly had information that was not derived from her personal
    knowledge. For instance, at one point during cross-examination at trial, she
    acknowledged that she knew that Biddle lived in her area and that this
    information came from someone else:

Q.
You know that Mr. Biddle lives in your
    area, dont you?

A. I know that now.

Q. How do you know that?

A. You just told me.

Q. Well, have you known that beforehand?

A. I believe I was told that he lived in the
    area, yes.

Q.  By whom?

A. Im sorry, I have no idea.

Q. One of the policemen?

A. I dont know.

Q. Well, Im quite interested in what you know
    about Mr. Biddles background, maam. Would you think a little harder about
    that? You seem to have been told something about Mr. Biddle apart from your own
    personal knowledge. Could you think about who could have told you this?

A. Im sorry, but I dont know. Im the last
    person anyone tells me. Nobody tells me anything. I want to know.

Q. You were told by someone that he lives in
    the area, right?

A. I remember being told theres a possibility
    he lives in this area. There had been a similar attack afterwards.

Q. By a policeman, right?

A. Im not sure. I dont know.

[86]

It is worth noting that the first question G.M. was asked in
    cross-examination was whether he had told P.B. that Biddle lived in her area.
    He denied having done so. Although I accept that P.B. may have learned this
    information from someone other than G.M., it takes little imagination to think
    about how this cross-examination would have gone had defence counsel known
    about the personal relationship. The defence was entitled to that
    cross-examination.

[87]

Second, although P.B. and G.M. deny having discussed the case, they
    admit that G.M. prepared P.B. for her testimony at trial, coaching her on
    matters of courtroom procedure. For instance, he testified that he told P.B. to
    think about questions before answering, take her time with exhibits and collect
    her thoughts. The defence was entitled to explore the exact nature of those
    discussions, particularly in light of P.B.s strength and conviction as a
    witness.

[88]

Third, although P.B. and G.M. are clear in their
    own minds on the timing of the start of their relationship, the defence was
    entitled to explore that issue. In a rather prescient way, defence counsel
    suggested to P.B. that Biddle had been pointed out to her as her attacker. She remained
    firm in her evidence and denied that occurred:

Q: And you were taken to a courtroom and shown
    Mr. Biddle in custody and had him pointed out to you?

A: You are wrong. It was the face that I saw
    in that room was the same face I saw in my nightmares prior to the photograph
    and after I saw him in person. You are wrong.

[89]

Again, one can readily imagine how that cross-examination might have
    gone had the defence known about the relationship. The reliability of the in-dock
    identification on December 3, the day before Biddle was charged with the July
    attack, may well have been badly shaken. This would be particularly true if the
    defence had been able to establish, or even raise a doubt, about whether G.M.
    and P.B. were involved at the time of the courtroom identification.

[90]

In short, the evidence of P.B. and G.M.s relationship may well have
    tipped the balance of an already extraordinarily thin prosecution case. I find
    that there exists a reasonable possibility that had the information been
    disclosed, the trial may have ended differently.

D.

CONCLUSION

[91]

P.B.
    was brutally attacked and undoubtedly believed that the appellant was her
    attacker. I accept the honesty of that belief. The jury also accepted the
    honesty of that belief. But the jury had to do more. The jury had to accept the
    reliability of her identification evidence.

[92]

We
    cannot know with any certainty what the result of this case would have been had
    the disclosure been made and had the Crowns case been considered against the
    fresh evidence. What we do know, though, is that in a case already hanging so
    finely by a thread, information potentially relevant to the strength of the
    eyewitness identification evidence was withheld from the trial Crown and,
    therefore, not disclosed to the defence. Accordingly, the matter was decided
    without reference to this important information.

[93]

I
    would answer the questions posed by the Minister of Justice as follows. First,
    for the reasons given, I would admit the fresh evidence. Having regard to my
    conclusion on the fresh evidence, the convictions must be quashed, leaving the
    question as to what remedy should be imposed.

[94]

The
    appellant leaves the issue of remedy in this courts hands. This is not a case
    in which a verdict of acquittal should be entered. The appeal was dismissed in
    1993. Although the fresh evidence could shake a trier of facts confidence in
    the identification evidence, this is not a determination to be made here. All
    that can be said at this stage, is that there is a reasonable possibility that
    the fresh evidence could have changed the result at trial.

[95]

I
    would therefore allow the appeal, quash the convictions and order a new trial. While
    this may be a difficult, if not impossible prosecution to remount, fairness requires
    this result.

Released: June 7, 2018

Fairburn J.A.

I agree John Laskin J.A.

I agree Robert J. Sharpe J.A.


