R v KBP, 2011 ABQB 627

Court of Queen ’ s Bench of Alberta Citation: R v KBP, 2011 ABQB 627 Date: 20111012 Docket: 101442325Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - K.B.P. and R.T.T. Accused Restriction on Publication: By Court Order, there is a ban on publishing information that may identify the accused as having been dealt with under the Youth Criminal Justice Act . See the Youth Criminal Justice Act, s. 75(3). By Court Order, information that may identify the person or persons described in this judgment as the witness or witnesses may not be published, broadcast, or transmitted in any manner.

There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code , s. 486.5. Corrected judgment: A corrigendum was issued on November 8, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment.

Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons of Decision of the Honourable Madam Justice B.E. Romaine _______________________________________________________ INTRODUCTION [ 1 ] The criminal event in this case, a home-invasion robbery, is not contested and the only question is whether the accused are the perpetrators.

The evidence of identity is eyewitness testimony, and the issue is the reliability and accuracy of the identification evidence. FACTS [ 2 ] The event was described by M.N., a careful and credible witness whose evidence I accept in its entirety. [ 3 ] On July 9, 2010, Ms. N. was home visiting her parents at [...] Applewood Drive, S.E. in Calgary. At about 1:20 p.m., she had gone for a run and was lying on her bed in her downstairs bedroom when she heard the door-bell ring twice. The only other people at home were her elderly grandparents who do not speak English. [ 4 ] Ms.

N. walked upstairs and looked through a large side window to see who was there. She saw two young men, one she described as Asian and one as Filipino, clean-cut and dressed like school kids carrying clipboards. She asked them what they wanted through the window, and they said they were asking for a donation. She opened the door and they rushed into the house, together with a third man, whom she had not seen on the front porch, pushing her back. The third man was black and wearing a hoodie over his head. [ 5 ] Ms. N. screamed, and her grandfather rushed to help her. Her grandfather, S.

T., tried to push the Asian and the Filipino males back, but the Filipino male and the black male attacked him, beating him, kicking him and hitting him over the head with a weapon. Ms. N. was not sure what the weapon was, indicating that it looked like a dark stick or rod of some kind. Mr. S.T. tried to resist the two males beating him, including trying to lift a chair to throw at them, but he was bleeding, and they kept kicking him until he fell to the ground. [ 6 ] In the meanwhile, the Asian male had grabbed Ms. N. by her hands and wrists, facing her.

He was taller than her, probably around 5' 4" to 5' 5", and had a beauty mark on his face around his upper lip area. He told her to shut up and stop crying. Ms. N. looked over her shoulder from time to time to see what was happening to her grandfather, but would turn back to face the Asian male. [ 7 ] Ms. N.’s grandmother, N. H., had appeared at the top of the stairs leading to the second floor. The black male dragged her down and started to punch and kick her. At this point, Mr. S.T. was lying bleeding on the floor. [ 8 ] The assailants kept shouting, “where is the money”, “where is the safe”. Ms.

N. did not know where the safe was, because she was just visiting her parents. They kept beating her grandparents and demanding to know where the safe was. Ms. N. told them that her grandparents did not understand English and asked them to stop hitting them and to let her translate. They wanted to know where the

keys to the safe were, but her grandparents did not know. Ms. N. told them that her mother had left her some grocery money. The Asian youth handed her over to the two others who pulled and pushed her up to her parents’ bedroom where the money was. They took the money and kept demanding to know where the safe was, but she could not tell them. They pulled her back downstairs and she was handed over to the Asian male again. The Asian male duct-taped her hands and wrists in front of her. The Filipino male started to hit her, punching her a few times and kicking her to the ground.

The Asian male duct-taped her thighs, but this was not tight enough and the Filipino male helped him, taping her ankles. He slapped her buttocks, told her she had a nice butt and that, if she didn’t tell him where the key to the safe was, he would hurt her. Shortly after that, the Filipino male duct-taped her eyes and loosely duct-taped her mouth. [ 9 ] Before Ms. N’s eyes were duct-taped, she saw the black male duct-tape her grandfather. She heard her grandmother calling out in Vietnamese, asking them to stop and saying that they were hurting her. After her eyes were covered, Ms.

N. heard the assailants moving about the house. She then heard one of them make a phone call, saying that everything was under control and that “you can come now”. [ 10 ] Someone started touching Ms. N. both on top and under her clothes, and told her that if she didn’t tell them what they wanted to know, he was going to rape her in front of her grandparents. Ms. N. could not identify who did this. [ 11 ] Ms. N. heard people coming into the house, heard footsteps throughout the house and someone commenting that he had been able to open the safe, which it turned out was in her parents’ bedroom closet.

After a period of time, she heard people leaving, and someone said to her that she better not call the police or they would come back and hurt her. [ 12 ] Despite that, Ms. N. waited only about five minutes before pushing the duct-tape up from her eyes and dragging herself to a cell phone to call the police. Her grandparents were moaning from their injuries. The police were there in only a few minutes. [ 13 ] The 911 call, which was played in evidence, corroborates Ms. N.’s version of the events, except with respect to the issue of whether a weapon was involved.

This issue will be discussed later in the decision. [ 14 ] The police arrived at about 3:15 p.m. They found Ms. N. at the front door, with her wrists and ankles still bound by duct-tape. She was visibly shaken and upset and had been crying. Ms. Ha was on the ground near the front window with her hands duct-tapped behind her and her feet duct-taped. There was duct-tape over her eyes, and she was moaning. Mr. S. T. was lying in a pool of blood with obvious facial injuries, his hands and feet duct-taped and duct-tape over his eyes. Paramedics arrived, and the grandparents were taken to hospital, with Ms.

N. accompanying them. The police observations of where the grandparents were lying and their condition corroborates Ms. N.’s testimony. [ 15 ] Plastic gloves were found, discarded, at the scene. There were no fingerprints belonging to the accused found in the residence. The house had been ransacked and the safe opened with a hacksaw. [ 16 ] The accused admit that jewellery of a value of $33,305 and other items of a value of $8,000 were stolen from the residence as a result of a break and enter and that the injuries suffered by Mr. S.T. meet the definition of an aggravated assault. [ 17 ] Ms. N. identified Mr.

P. as the Filipino youth and Mr. T. as the Asian youth in a photo line-up administered approximately eleven days after the event. She was unable to identify the black male. ANALYSIS [ 18 ] This case is heavily dependent on the eyewitness identification evidence of Ms. N. The fraility of eyewitness testimony is notorious, and I recognize that I must be cautious about relying on it. I am aware that mistaken identifications have been responsible for miscarriages of justice and wrongful convictions. I am also aware that, even if I find that Ms.

N. is credible and certain in her identification evidence (and I do), the issue is not her credibility or her certainty, but the reliability and accuracy of the identification evidence. Even a convincing witness like Ms. N. can make a mistake in her belief of identification. I will analyze the issue of identification by addressing the three categories of such evidence relating to Ms. N.’s identification of the accused:

a) the circumstances in which Ms. N. made her observations,

b) the descriptions given by her after the event, and

c) the circumstances of her identification of the accused as the perpetrators of the offences. A. The circumstances in which Ms. N. made her observations [ 19 ] I must take into account that both of the accused were strangers to Ms. N. and that she saw them for about a half-hour during the crime before her eyes were duct-taped, which is not a lengthy period of time. However, I accept Ms. N.’s evidence that she saw both accused through the front window outside the front door after they rang the door-bell and that this observation was made in early afternoon on a sunny day. I note that this was before Ms.

N. was under any stress caused by the violence of the crimes. [ 20 ] I also accept her evidence that she was in close contact, face to face, with Mr. T. while he held her wrists, and before she was dragged upstairs to her parents’ bedroom by Mr. P. and the other male. I appreciate that at that period of time, she was distraught over the treatment of her grandparents, and likely distracted, as she was turning her head from time to time to see what was happening to her grandparents. However, I accept her evidence that she also saw Mr.

T.’s face in close proximity during this part of the event, when she turned back to him and when he was haranguing her. I note that she was also in close contact with Mr. T. while he duct-taped her wrists and thighs, before her eyes were duct-taped. [ 21 ] I accept Ms. N.’s evidence that she saw Mr. P. when he and the other man were beating her grandfather, and that she was in close contact with him while she was dragged upstairs, pushed and pulled to the bedroom, threatened and then pushed and pulled back downstairs. [ 22 ] I note that Ms. N. had the opportunity to observe Mr.

P. when he started punching her, throwing her to the ground and when he slapped her buttocks and threatened her. She also had the opportunity to observe him when he helped Mr. T. to duct-tape her ankles. [ 23 ] I note that the interior of the house was brightly lit from the sun through uncurtained windows. [ 24 ] I recognize that Ms. N. was distraught over the treatment being administered to her frail and elderly grandparents.

However, from her demeanour on the stand, from her quick reaction after the event and from the tenor of the 911 call (during which she was clearly upset but not hysterical), I observe that Ms. N. is a resourceful person. who was able to function despite her distress and to obtain help for her grandparents. I accept her evidence that images of the event were burned into her mind. I note that her descriptions of the suspects have not moved from tentative to certain, but have been consistent throughout. [ 25 ] Counsel for Mr. T. submits that Ms.

N. made an error in that she advised the 911 operator that no weapons were involved, and that this is indicative of her distress, casting doubt on her ability to properly identify the assailants. The sound quality of the 911 call made it difficult to hear in the courtroom and I have listened to it again on similar equipment. Ms. N. was asked whether there were any weapons three times by the 911 operator. The first time, at the beginning of the call, she did not answer, but urged the operator to call for help as her grandfather was injured. The second time the question was asked, Ms.

N. (whose hands and legs were still duct-taped) dropped the phone, and answered “no” after she managed to pick it up again. The voice of her grandmother, calling to her in Vietnamese, is heard in the background. The third time the question is asked, Ms. N. responds that she thinks the assailants had a knife with them, but that she wasn’t quite sure. There are no other inconsistencies between what Ms. N. reported during the call and her trial testimony concerning the event, including with respect to the identification of Mr. T. [ 26 ] Ms.

N. was cross-examined about this inconsistency, and her answer was that at the time of the 911 call, she was worried about her grandparents, and that her thoughts were not collected. She agreed with counsel that she was “in shock” over what had

happened, but denied having any trouble remembering events. [27] Given the difficult circumstances of the call and the fact that Ms. N. was distracted by questions and pleas from hergrandparents as well as responding to the operator, I do not find that this one seemingly inconsistent answer during the 911 call isindicative of Ms. N. being so affected by distress as to make her observations unreliable. B. Descriptions after the event [28] During the 911 call which occurred minutes after the event, Ms. N. gave a description of the Asian youth that shesubsequently identified as Mr. T.

She described him as being about 16 or 17, wearing a white T-shirt, confirmed that he had spiky hair,that he was slim, about 5' 5" and 120 lbs. This was consistent with the Criminal Description Sheet that she filled out later that day, whenshe added details such as his pale complexion and a beauty mark on his face on his upper lip. [29] Ms. N. did not have an opportunity to describe Mr. P. during the 911 call before the police arrived, other than she thought oneof the assailants was Filipino.

The Criminal Description Sheet she filled out later that day describes a dark-skinned, 17 - 20 year old, 5'7" - 5' 9", slim, with black hair. [30] I note that these Criminal Description Sheets were filled out as soon as reasonably possible after the event, after Ms. N. hadhad an opportunity to ensure that her grandparents were being helped. None of the features described in these sheets are inconsistent withthe actual features of Mr. P. and Mr. T. [31] Counsel for Mr. T. submits that the fact that Ms. N. did not mention that Mr. T. had blond high-lights in his hair wassignificant.

I accept as reasonable and credible Ms. N.’s explanation that this style is common among young Asian men and that whenshe sees it, she thinks of the person as having mostly black hair. In the circumstances, this is not a case where a prominent feature of theaccused that would be expected to be noted has been omitted from the description. C. Circumstances of Identification [32] The basic principles governing the reliability of police photo line-ups were expressed many years ago by the Ontario Court ofAppeal in R. v. Goldhar, R. v. Smokler (1941), (ON CA), 76 C.C.C. 270.

Nothing should be done by the police toindicate to the witness which person in the line-up they suspect. The line-up has to be done fairly, so the suspect does not appearconspicuously different from the others. [33] I note firstly that the photo line-up was administered to Ms. N. about eleven days after the event. This is a neutral factor, as ittook time to properly prepare the line-up after the police investigation led to the identification of certain suspects. [34] Cyndie Ireland, a civilian member of the Calgary police, testified about the process of composing the photo line-ups.

She saidthat she started with the most recent available photo of the suspects, identified by the investigating officer, and asked the computer tosearch for photos of people with a birth date within five years of either side of the suspect’s birthday, with the characteristics that weredesignated in the line-up request submitted by the investigating officer. She then compared the suspect’s photo with the first photoselected by the computer, and either accepted or rejected it as a good comparison.

If she accepted the new photo as part of the package,she moved aside the suspect’s photo and compared the first photo chosen with the next selected by the computer, and so on, sequentially,until she had chosen ten photos. [35] With respect to the characteristics that were relevant and were input in the computer with respect to Mr. T., Ms. Irelandreferenced hair colour (black), hair style (spiked), and a beauty mark “on the upper lip”, all from the detailed witness description of thesuspect.

She had not kept a record of what she did at the time she prepared the photo line-up, but identified these characteristics from thematerial she had on file. With respect to hair colour, Ms. Ireland acknowledged that the photos in Mr. T.’s photo line-up all had blondstreaks in their hair. She explained that this was because all of the photos that the police had on record of Mr. T. showed him with

streaked hair. This is consistent with the goal of ensuring that the suspect does not appear conspicuously different from the other photosin the line-up. [36] Since facial hair was marked “unknown” in the detailed witness description, she asked the computer to select clean-shavencandidates. She explained that this would depend on the photo of the suspect that she was working from. In Mr. T.’s most recent photo,he was clean-shaven. [37] There was some cross-examination of Ms. Ireland about whether the young men in various photos in the line-up that includedMr. T. could be described as having black-hair.

It is apparent that all of them have black hair with some degree of streaking, matchingthe hair in Mr. T.’s photo. Again, this is consistent with the goal of fairness, of ensuring that Mr. T. did not appear conspicuous amongthe others. [38] Ms. Ireland on cross-examination gave the opinion that most of the young men in the photo line-up, six out of ten in her view,have hair that can be described as “spiked”, although clearly there is room for difference of opinion with respect to this. In her opinion,six out of ten have moles or beauty marks near their upper lip. Ms.

Ireland explained that it may not be possible to match all of theparameters in every photo, and she looked at the comparison photos on an overall basis to find a suitable photo line-up. [39] With respect to the preparation of the photo line-up for Mr. P., it is clear that the investigating officer made a number of errorsin his line-up request form, mixing up the characteristics of Mr. T. and Mr. P. from Ms. N.’s Criminal Description Sheets. The officer,Detective Linklater, explained that when Ms. N. was describing the beauty mark on the face of the Asian assailant she later identified asMr.

T., he thought she was referring to the suspect he had identified as Mr. P. because he knew Mr. P. had a mark on his face. Hetestified that Ms. N. was not confused with respect to her descriptions, and that the error was his. Ms. Ireland, however, worked from themost current police photo of Mr. P., and while some of the other photos have moles on their faces, most do not. Detective Linklater’smistake in this regard, while unfortunate, did not taint the line-up, given how Ms. Ireland composed it. The photos in Mr. P.’s photo line-up resemble Ms.

N.’s description and are also as close as reasonably possible to the photo of Mr. P. [40] The composition of the photo line-ups of both accused follow the Eyewitness Identification Recommendations of The InquiryRegarding Thomas Sophonow (Winnipeg : Manitoba Justice, 2001) in their essential aspects.

There were ten subjects, the photosresembled the detailed witness description in large part, deviating only in order to be as close as possible to the suspect. [41] Defence counsel submitted that the process as described would result in photos subsequent to the first photo of the suspectdeviating more and more from that of the suspect, but that does not appear to be the result from the line-ups chosen.

While DetectiveLinklater admitted that he made a mistake and mixed up the estimated height range of the two suspects on the line-up request form, thephoto line-ups consist of frontal head photos only, and this mistake did not influence the selection of photos. [42] Ms. N. was cross-examined about how the photos in the line-up may have lacked features that she described as characterizingthe young Asian male in her Criminal Description Sheet. I have already noted the issue of streaking in the hair.

Differences in thedegree of streaking and how much of the hair remained black did not make the photo line-up unfair, nor was Mr. T. renderedconspicuous among the other photos by reason of the degree of streaking. The degree of “spiking” is also a matter of opinion, I note Ms.Ireland’s evidence that she was looking for photos that incorporated most of the characteristics. Differences in the degree of spiking donot make Mr. T. conspicuous in the line-up, and even those photos where there may arguably be less or no “spiking” are merely aquestion of degree.

It is true that all of the young men in the photos do not appear to have a beauty mark near their upper lip, but anumber of them do. Ms. Ireland explained that it was sometimes not possible to assemble photos of ten people with a particular featuresuch as a mole or beauty mark. [43] The Crown and defence counsel agree that the test of whether the photos chosen bear a sufficient similarity to the accused isnot whether Ms. Ireland thinks so, but whether the trier of fact determines that they are, citing R. v. Nikolovski, (SCC),[1996] 3 S.C.R. 1197.

I am not sure that Nikolovski is determinative of this issue, but I have carefully reviewed the photo line-ups inquestion and reviewed the evidence of Ms. N. on the presence or absence of various characteristics that she observed and recorded in theCriminal Description Sheets. I have considered defence counsel’s submissions on the deficiencies in the photos compared to suchobservations. Some of these submissions and observations relate to arguable opinions about, for example, the degree of spikiness of hairstyle or the degree of streaking in a base hair colour.

Some are more substantive, such as the positioning or absence of a mole or beautymark. I note Ms. N.’s testimony that she made her identification from the faces as a whole and not on the basis of any one feature, andMs. Ireland’s testimony about the composition process.

[ 44 ] Although some photos in the packages do not include all the characteristics listed in the Criminal Description Sheets, I am satisfied that they are sufficiently similar to the descriptions of the assailants and not so dissimilar to the photos of the accused to be valid photo line-up packages, and that the composition process was not flawed. [ 45 ] The photo line-up identification by Ms. N. was video-taped.

I note the following : - Detective McCallum, who administered the photo line-up, was a recent addition to the robbery squad and she had not been involved in the investigation at the time of the identification. She testified, credibly, that she did not know who the suspects were. While she drove up to Edmonton to administer the photo line-up with another officer, she was not privy to details of the investigation other than an over-view description of the event. - I accept Ms.

N.’s testimony that she had not been advised of who the suspects were and that she had not previously been shown any photos. - The photo pack process was formal in nature and well-documented, with Detective McCallum asking Ms. N. whether she had seen any photos prior to the event or spoken to any other witnesses regarding the event. Ms. N. confirmed, both orally and in writing, that she had only spoken to her grandparents about the event. - Ms. N. was required to read out and initial instructions with respect to both photo line-ups.

These instructions confirmed that Detective McCallum did not know the identity of the suspects, that the suspect may or may not be among the photos presented and that Ms. N. was not obliged to choose any photo. She was asked to confirm in writing that she had been given no other instructions other than those set out in the photo pack. [ 46 ] Detective McCallum presented the photos sequentially, sliding them over to Ms. N. face down so that she would first see them when she turned them over. Ms.

N. appeared to look at each photo carefully, some a little longer than others, before she marked them with a yes or no as instructed. [ 47 ] With respect to the photo line-up that included Mr. T.’s photo, Ms. N., who had previously been calm and composed, had an immediate emotional reaction when she saw Mr. T.’s photo. She became very upset and started to cry and wring her hands. She commented that “he was in the house”, that he was the one holding her. Detective McCallum asked her to put her comments in writing. Ms. N. marked Mr.

T,’s photo “yes” and wrote “he was in the house, he was the one holding me” on the photo. [ 48 ] After Ms. N. had reviewed all the photos, Detective McCallum marked the order they had been shown to the witness, initialled Mr. T.’s photo as being the one identified on the back of the photos and reshuffled them. Ms. N. was then asked to go through the process again. She again became upset when she reviewed Mr. T.’s photo. Detective McCallum numbered the photos on the back again and then asked Ms. N. whether she was satisfied or whether she wanted to see them again. [ 49 ] After a short break, Ms.

N. went through the same process with the photo pack that included Mr. P.’s photo. When she reached Mr. P.’s photo, she immediately turned away and started to cry. She looked carefully at the photo again and cried for a moment, with her head in her hands. She then marked the photo “yes” and wrote “he was the one hitting my grandpa and me.” Detective McCallum retrieved the photos, marked the order on the back, initialled Mr. P.’s photos on the back and reshuffled them. Ms. N. asked whether she could review them again and the process was repeated. The second time Ms. N. saw Mr.

P.’s photo, she was upset, but less so. [ 50 ] Defence counsel criticized the process of having the witness review the same photos a second time, since Ms. N.’s comments made the first time through were marked on the photos. Counsel submitted that this second run-through only serves to confirm the first impressions of the witness and to reinforce what may be a faulty identification made the first time.

[51] While it may be prudent to give the witness fresh photos for a second run-through, and while the process as followed in thiscase thus weakens the reliability of the second run-through identification, this was not a case where an initial hesitant identification wasinappropriately reinforced. Ms. N. was not hesitant or tentative in her identification of either accused. Any delay in marking the photoswas due to her emotional reaction to them.

I recognize that research has shown that there is a weak relationship between the confidenceof a witness with respect to identification and the accuracy of the identification: R. v. Hanemaayer (2008), 2008 ONCA 580 ,234 C.C.C. (3d) 3 (Ont. C.A.) at para. 21. However, this lack of hesitation dispels the concern that the second run-through may havereinforced an initial uncertain identification. [52] Counsel for Mr. P. submits that the description given by Ms. N. in the Criminal Description Sheets of the Filipino suspect issparse, and can be characterized as a generic description based on ethnic origin.

It is difficult, however, to determine what else Ms. N.may have said about Mr. P. that would be more detailed. She described approximate age, height, weight, build, complexion, hair colourand ethnic origin. While many of these characteristics may be shared by other young Filipino males, making the identification of anassailant with these characteristics more difficult, Ms. N. had a strong, visceral reaction to Mr. P.’s photo among nine photos of otheryoung men of Filipino origin. This reaction is admissible evidence: Simpson v. R., (ON CA), 58 C.C.C. (2d) 122 (Ont.C.A.) at para. 20. I also note Ms.

N.’s evidence that, other than Mr. T., she had most contact with Mr. P. among the assailants, and had agood opportunity to observe him. [53] Counsel for Mr. P. also submits that Mr. P. in his photo line-up picture has a distinctive hair style that was not referenced bythe witness in the Criminal Description Sheet, and that it is noteworthy that this was not mentioned by Ms. N. at the time she filled outthe form. While Mr. P.’s hair style is slightly different from those worn by the young men in some of the other photos, I am notpersuaded that it was so distinctive as to bear specific mention.

Defence counsel also noted that Mr. P.’s hair style at trial was differentfrom the photos, and that he wore glasses throughout the trial. These are cosmetic differences that are easily changed over time. WhileMs. N. identified both accused at trial, I have placed no weight on such identification, which is the least reliable eyewitness evidenceavailable in this trial. [54] The photo line-up that included Mr. P.’s photo includes an additional issue that must be considered. Detective McCallum hadnever before administered a photo line-up.

After she had received the photo line-up packages from the other detective and before she metwith Ms. N., she pulled out the photo line-up package that included Mr. P.’s photo, and marked the photos in the order she first receivedthem with a small number in the lower bottom corner of the front of the photos. She quickly realized that this was an error, and that sheshould be marking the photos on the back. It is apparent that she re-shuffled the photos before administering the line-up.

However, Mr.P.’s photo bears a very small number “1" in the bottom right hand corner of the front and the other photos bear other numbers. There isno indication in the video that Ms. N. noticed this number during the photo line-up and in fact her demeanour when she first saw thephoto, her immediate strong emotional reaction, suggests otherwise. I do not take this as any indication that Mr. P.’s photo wasintentionally singled out by the police. Having reviewed the video recording of the photo line-up, I find no indication that Ms. N. wasprompted by this small mark to choose the photo. Ms.

N. testified on cross-examination that she did not know if the photos werenumbered, just that she saw Detective McCallum write something on them during the photo line-up process. This small error did notaffect the fairness of the photo line-up, nor did it predispose Ms. N. to pick out Mr.

P.’s photo. [55] These issues aside, the photo line-up procedure was conducted entirely in accordance with the recommendations of theSophonow Inquiry and with the up-dated recommendations of the 2011 Report of the Federal/Provincial/Territorial Heads ofProsecutions Subcommittee on the Prevention of Wrongful Convictions: The Path to Justice: Preventing Wrongful Convictions. [56] It was recorded on video-tape, both audio and visual, by an officer who did not know who the suspect was and who was notinvolved in the investigation.

The witness was advised that the administering officer did not know who the suspects were or whetherthey were in the line-up. Certain cautions as recommended by the Sophonow Inquiry were either read out to the witness or read andinitialled by her and the package included formal documentation to be signed. The photos were presented sequentially. There were nohints or inappropriate reactions from the officer. [57] Mr. Tran and Ms. Ha did not identify the accused from the photo line-ups. In fact, they marked “no” with respect to the photosof each accused when they reviewed the packages.

Given their age, their physical condition, the fact that they each had merely a“fleeting glance” at the assailants before they were kicked and pushed to the ground and duct-taped with tape over their eyes, and theirinability to understand English, this failure to identify their assailants is not a great significance, nor does it cast doubt on Ms. N.’sidentification evidence. [58] I note that Mr. T. was seriously injured during the attack. He testified that he had poor vision, and could not determine thefeatures of his attackers. Ms. Ha admitted candidly that her memory was bad, due to her age.

What they were able to remember andrelate, however, was largely corroborative of Ms. N.’s testimony.

[59] I note that Ms. N. did not over-state her evidence, that she was candid about her inability to identify the black male involvedin the crime, and that her evidence throughout demonstrated her careful and thoughtful approach to identification. She was unshaken inher evidence on cross-examination. [60] Counsel for Mr. T. submits that Ms. N. was inconsistent in her evidence of who duct-taped her. There were noinconsistencies: isolated phrases that form the basis of this argument have no force when viewed in context. Counsel for Mr. T.referenced an additional statement that Ms.

N. had given to the police on August 4, 2010, apparently related to the issue of sexual assault.The first sentence of that statement which was put to Ms. N. in cross-examination reads “After the initial entry and my hands were boundup, the dark-skinned. . ., etc.” This does not evidence inconsistency or suggest that Ms. N. had changed her testimony about Mr. T.binding her hands. [61] It is clear that there is no other evidence to corroborate Ms. N.’s identification. I am mindful of the comment made by Green,J. in R. v. Sokolov, [2009] O.J. No. 1941 (Ont.

C.J.) that the inherent frailties of identification evidence in this type of case demandspecial care, but that: . . .(S)uch care, however, does not translate into a rule of exclusion or complete probative negation. It is most certainly not the rule thateyewitness identification evidence - even standing alone - can never ground a proper conviction. The rule, rather, is that the exercise ofadjudication in this type of case must be especially cautious. (para. 80) See also Nikolovski, supra at para. 23. [62] Defence counsel submits that there was no properly conducted interview with Ms.

N. after the event, citing R. v. Atfield, 1983ABCA 44 , [1983] A.J. No. 870 (Alta. C.A.) at para. 60. Atfield was a very different case from this one, involving a “totallyunacceptable” identification parade, a “botched and farcical investigative line-up” and exculpatory evidence of an appellant who testifiedat trial. The evidence before me is that Ms. N. met with police later in the day of the event, wrote out a statement and filled out theCriminal Description Sheets. Her evidence is that a portion of the sheet was filled out by a police officer, and the rest by her.

There isinsufficient evidence before me to determine the extent or scope of the interview. [63] Defence counsel rely heavily on R. v. Quercia , (ON CA), [1990] O.J. No. 2063 (Ont. C.A.). In Quercia,the appellant testified that he was home during an alleged sexual assault and his alibi was corroborated by his mother. The assault tookplace in an unlit room, and the victim was tortured as well as raped. Crucial and material parts of the description provided by the victimdid not match the accused, including a noticeable problem with one eye and pock marks on the assailant’s face.

The accused did not haveeither of these material facial characteristics. [64] Doherty, J. commented at para. 29 and 30: In my analysis, two features of the evidence are potentially capable of placing this verdict beyond the limited review permitted by s.686(1)(a)(i). The first is the victim’s good opportunity and sustained effort to observe and mentally record the appearance of herassailant during the attack. The second is the selection of the appellant from the photo line-up. After very anxious consideration, I amsatisfied that both are fatally flawed.

The victim’s opportunity to observe and her determination to mentally record the appearance of herattacker magnify the significance of the marked differences between her initial recollection of what her assailant look like and the actualappearance of the appellant. I refer particularly to the pock-marked facial skin and the askew left eye. On the victim’s evidence theseinconsistencies cannot be explained by difficulties inherent in her opportunity to see her attacker or in her ability to mentally record theappearance of her attacker.

Nor did the victim testify that her initial description was in error, although she suggested that the prominenceof these two features was being over-emphasized by counsel for the appellant. These two differences remain totally unexplained. Onemust conclude that, in at least two vital respects, the appellant quite simply does not fit the description initially given by the victim andverified by her as accurate at trial. The selection of the appellant in the photo line-up suffers from the same difficulty.

Accepting the fairness of the line-up procedure, thereality remains that the photograph of the appellant is inconsistent with the description given by the victim of her assailant in twosignificant material respects. One is driven to the conclusion that either her initial description was accurate in its main features, in which

case the appellant could not have been her attacker, or that her recollection of what her assailant looked like had inexplicably changed significantly in the several days between the attack and the photo line-up. If the latter conclusion is drawn, it is difficult to accept her subsequent recollection at the time of the photo line-up as totally reliable. [ 65 ] This case does not suffer from these types of material flaws. Ms. N.’s initial descriptions fit the appearance of the accused, despite counsel’s attempts to magnify minor differences. There were no material prominent features that were omitted in Ms.

N.’s initial descriptions or that are inconsistent with the appearance of the accused. It is noteworthy that the Court in Quercia described the photo line-up process as fair, despite the fact that not all of the photos contained features that were consistent with the victim’s descriptions. The failure to pass the threshold of being a reasonable verdict in that case arose from identification of the accused as the perpetrator despite his failure to fit the initial description in a material way. That is not the case here. [ 66 ] In

summary, while the event was stressful, Ms. N. had a reasonably good opportunity to observe the assailants, in good lighting and in close proximity. She was consistent in her description evidence throughout. The composition of the photo line-ups and their administration were fair, and in accordance with recommendations of the Sophonow Inquiry and more recent recommendations by the Subcommittee on the Prevention of Wrongful Convictions. I have carefully considered factors that may tend to make the evidence unreliable, and am satisfied that they do not do so in the circumstances of this case.

On examining the evidence as a whole, and aware of the particular caution that must exist when conviction depends solely on eyewitness testimony, I am nevertheless satisfied beyond a reasonable doubt that the accused were the perpetrators of the crimes with which they have been charged. CONCLUSION [ 67 ] Defence counsel do not contest that the Crown has established the elements of the charges facing Mr. P. and Mr.

T., subject to submissions that may be made on multiple convictions. [ 68 ] However, for clarity, I find ample evidence to substantiate the charges of breaking and entering a dwelling house, unlawful confinement (in that Ms. N., Mr. S.T. and Ms. H. were bound and confined in their home, and that the accused were either directly involved as principal or a party to the offence), that Mr. S.T. was assaulted and his injuries constitute an aggravated assault (in that Mr. P. was directly involved as principal in such assault and Mr.

T. a party to the offence as aider or abettor), that the assault involved a weapon, that the accused stole property of a value exceeding $5,000 from Hoa Tran and Hoa N. (either directly or as parties to the offences), and that the accused threatened M. N. with bodily harm (either directly in the case of Mr. P. or as a party to the offence in the case of Mr. T.). I am satisfied that the Crown has established the guilt of the accused with respect to counts 1 through 9 of the indictment beyond a reasonable doubt. Heard on the 3rd and 4th day of October, 2011.

Dated at the City of Calgary, Alberta this 12th day of October, 2011. B.E. Romaine J.C.Q.B.A. Appearances:

Tiffany Dwyer for the Crown James Conway, Q.C. for K.B.P. Stephen R. Wojick for R.T.T. _______________________________________________________ Corrigendum of the Reasons of Decision of The Honourable Madam Justice B.E. Romaine _______________________________________________________ Please note the Citation line on the first page of the Reasons for Decision has been changed to R v. KBP, 2011 ABQB 627