HER MAJESTY THE QUEEN - v. -, 2003 ABPC 64

R. v. Robertson, 2003 ABPC 64 Date: 20030328 Docket: 021374202P10101,0102,0103 IN THE PROVINCIAL COURT OF ALBERTA BETWEEN: HER MAJESTY THE QUEEN - and - DANIEL BERNARD ROBERTSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. R. FRASER Counsel: C. E. Rideout for the Crown M. C.

Stephensen for the Accused [1] The accused is charged with stealing a truck, driving that truck in a dangerous manner, during which he ran over another vehicle causing injury and serious damage, leaving the scene of that accident and failing to offer assistance to the injured person. [2] There is no question and it is conceded by counsel, the evidence fully establishes all three counts.

In fact the driving was so dangerous it approached criminal negligence causing bodily harm - it showed such a wanton and reckless disregard for the life and safety of other persons. [3] Clearly the offences and the facts in support are serious and would attract serious sanctions and consequences to the offender. The starting point would be a penitentiary term.

[4] The sole issue in the trial is identification of the accused as the offender. In order to deal with this issue I must review the evidence of identification. EVIDENCE OF IDENTIFICATION 1 ) Kevin Aughey observed the truck being taken from his premises. He ran after it and then got in his own vehicle and followed it. He had two opportunities to view the driver - firstly when he drove off and secondly when he pulled up behind him at a stop light and could see his face in the large side mirror.

From his first view, a fleeting glance, all he could see was a side view as he drove by and his only description was, “I could not see him too clearly, just a native man driving by”. His second opportunity was much better. He pulled up behind him at a red light. He was within 25 feet of the image of his face in the side mirror. The sun was shining. He described the driver as about 35, believed he was wearing glasses but not sure, dark complexion, black or brown dark hair, crooked teeth and blemishes on his face. In cross-examination he described the blemishes as pockmarks or indents.

When asked to look at the accused in the dock to see if he could see such blemishes as described, he said he could see some on his right cheek, below his cheekbone. He then said: “It was just that his skin was not smooth”. He also said the marks could have been dirt on the windshield. He viewed him for about ten seconds. He identified the accused in the dock as that person.

He was never shown a photo line-up. 2 ) A number of witnesses observed the accident but none could describe or identify the driver. 3 ) Following the accident, the driver pulled into the Co-op parking lot in a manner that drew attention to himself. He was seen by three witnesses to jump out of the truck on the driver’s side and run northbound down an alley. Ms. Carolyn Harley saw him and described him as male, wearing a green coat, parka type, coming down past his butt, dark pants, dark hair. She did not see his face.

She was shown a green jacket and said that looks like the jacket but did not see any yellow marks or paint on it. In cross-examination she said the dark pants were either black or dark blue and not beige. When asked to look at the accused she noticed moles on his face but no blemishes or indents. [5] Ms. Carol Boll was with Ms. Harley at the time. The only description she gave was male, average height, 5'6" to 6', green parka-length coat coming down to the thigh, dark pants not beige. She was shown a green coat and thought it was the same one, but she did not see the paint marks on it. She said he had dark hair.

She did not see his face. Neither of these witnesses were shown a photo line- up for obvious reasons. Neither identified the accused. [6] Mark Spencer is a network engineer and was going to the Scotiabank in the mall when the truck drove in. He observed the driver as the truck came right at him within about three feet. He thought it was going to hit him. The truck turned and stopped about 15 to 20 feet from him. He saw the driver jump out of the driver’s side and run north down an alley.

He described him as having brown hair parted down the middle, a pock- marked face, 5'7" to 5'10", not well built but not obese, about 160 pounds, wearing glasses, a grey or green jacket; (although he thought it was like a lumber jacket), and light-coloured pants. [7] He saw him for about 30 seconds and he said “I was wearing my glasses at the time as I can’t see without them”. When shown the jacket he said, “That’s the one I saw him wearing”; however he didn’t recall seeing the yellow paint on the jacket. He also recalls he was wearing gloves when running.

When cross-examined about the pockmarks he said they were like acne scars and they were on his cheeks, he believed both cheeks. He saw this from 15 to 20 feet away. When asked if he could see the same pockmarks on the accused, he could not. Mr. Spencer identified the accused in the dock as that person. [8] He said a police officer interviewed him in the parking lot. The constable received a radio transmission that someone had been apprehended a few blocks away. He asked Spencer if he could identify the driver and drove him by the police car where the accused was apprehended and detained.

Spencer identified him as the driver of the truck although the accused did not have a jacket on nor was he wearing glasses. Subsequently, a photo line-up was shown to Spencer and he readily identified the accused as the driver. He said he was absolutely certain that was the person. I am satisfied the line-up was conducted properly and fairly and was not contaminated in any way by the line-up procedure utilized. [9] Constable Orr was driving in the opposite direction when the truck was being driven dangerously and made a U-turn to pursue it. When he first passed the truck he was within six feet of the driver.

He described the driver as male, of native descent, longer black hair, green or blue jacket, wearing glasses and having a rough complexion with pockmarks on his cheeks. Later when the accused was apprehended, he conducted a short interview with him at the District Office. He did not notice any pockmarks on the accused as he had described on the driver. When he examined the accused in the dock he could not see any similar marks on his face. Constable Orr

could not identify the accused as the driver. [10] Other evidence also related to identification. Earlier in the day the accused was released from the Calgary Correctional Centre. He signed for his clothing which included a green jacket. He then reported to a Probation Officer. That officer observed the accused wearing a green jacket. The jacket was shown to her and she said it was similar. She did not notice the paint stains on the back and sleeve. He told the probation officer that he was going to Water Valley, north of Calgary and he was going to hitchhike.

This jacket, entered as an exhibit, was located by an officer searching the area for the driver, moments after he fled the truck. It was located by a lane, directly north of the abandoned truck, approximately 75 metres away. Leather work gloves were in the pocket. [11] When the accused was arrested by Constables Suderman and MacLean, he was described as being in his thirties, native, long dark hair, crooked teeth and wearing glasses. The hair was shoulder length, he was wearing beige pants, a grey shirt, runners, and circular framed glasses.

His identification indicated he was born on April 16, 1964, (so he would turn 39 next month), a height of 5'8", a weight of 150 pounds, brown eyes and hair. He was out of breath when the officers came upon him about seven blocks from the abandoned truck, only minutes after the driver of the truck ran off. He was not wearing the green jacket. He was running his hand through his hair in a nervous gesture. When first observed he was walking at a medium to fast pace. No one else was seen by the police in the area who matched the description they had been given.

ANALYSIS OF THE IDENTIFICATION EVIDENCE 4 ) The identification evidence of Mark Spencer is strong. He presented as professional, intelligent, honest, with integrity. His identification at the photo line-up was strong and certain, saying he was absolutely certain. I accept his evidence as credible. There is no doubt in my mind Mr. Spencer believes the accused is the person he saw driving the truck. The only other person to identify the accused as the driver of the truck was Kevin Aughey.

His opportunity to see the driver was limited to viewing his facial features in a side mirror and a fleeting glance as he drove off in the truck. His only opportunity to identify the accused was in the dock. He was never shown a photo line-up. Dock identification by itself carries very little if any weight, especially if there was little opportunity to observe and there was no prior acquaintance. R. v. Browne and Angus (1951) 1951 CanLII 393 (BC CA) , 99 C.C.C. 141 (B.C.C.A.). 5 ) The only other identification evidence is circumstantial.

The accused was released from gaol earlier that day and claimed a green parka or jacket as his property. He was seen wearing that jacket when he attended the probation office within an hour prior to the incident. When he was apprehended, he was no longer wearing that green jacket. A green jacket was found discarded along a laneway just north of the abandoned truck in the direction the driver had run. Many of the eyewitnesses identified that jacket as the one the driver was wearing. The probation officer identified it as similar to the jacket the accused was wearing.

When apprehended, the accused was breathing hard as though he had been running and walking at a medium to fast pace. He made gestures that indicated nervousness. 6 ) I will now set out the problems with the identification evidence. Of all the eyewitnesses who saw the driver, Mr. Aughey, Constable Orr, Ms. Harley, Ms. Boll and Mr. Spencer; only three actually saw his face - Aughey, Orr and Spencer. All three described the driver’s face variously as a rough complexion, pockmarked, acne scarred or with indents. Constable Orr and Mr.

Spencer could not identify any similar markings on the face of the accused in the dock. Mr. Aughey thought he could see some indents on the right side below the cheekbone of the accused in the dock. I could not see any visible marks on the facial skin of the accused in the dock that could be described as pockmarks, acne scarring or indents, at least not that were so prominent as to be a descriptive marking. Constable Orr interviewed the accused at the District Office subsequent to his apprehension. He was very close to him.

He did not observe any pockmarks on the face of the accused as he had described on the face of the driver. In addition, it has been pointed out the accused exhibits two prominent large moles on his face, one on the left side of his face near his mouth and one on his forehead near his eye. I point out it is the left side of the driver’s face both Aughey and Orr would have been able to see most prominently. Mr. Spencer appears to have had a full frontal view.

None of the three noticed or identified these prominent markings on the face of the driver. 7 ) In regard to Mark Spencer’s identification by photo line-up, there was an intervening act between seeing the driver run from the truck and his viewing of the photo line-up and then his dock identification. Once the accused was apprehended, a police officer drove Mr. Spencer past the police vehicle where the accused was seated in the back of the vehicle for the very purpose of seeing if he could identify him. This is problematic.

It is the same as showing the witness one person or one photo and asking if that is the man. It is worse because the accused is in the custody of the police and there is often a presumption he is the person if he looks similar. The problem with this intervening act is the Court cannot be sure whether Mr. Spencer is identifying the driver of the vehicle or the person in police custody as the person in the photo line-up. I realize Mr. Spencer said they were one and the same and I accept he firmly believes that but because of the tainted intervening act by the police officer the Court cannot be sure.

There is an unfairness to the intervening act.

[12] There is also a problem with the identification of the green jacket. The jacket clearly had yellow paint stains on the back and sleeve. None of the eyewitnesses noticed those stains on the jacket of the driver. Neither did the probation officer notice them on the jacket of the accused. They are not that prominent and it is entirely possible they would not be visually prominent at a distance. But they are clear enough that one would expect them to be an identifying factor. [13] Of less importance was the different descriptions of the driver’s pants. Ms. Harley and Ms.

Boll described them as dark in colour, possibly black or navy blue, not beige. Mr. Spencer described them as light-coloured, possibly off-white. In fact, when apprehended, the police described his pants as beige. THE LAW 8 ) Direct evidence of eyewitnesses to a crime is preferable to circumstantial evidence but many grave injustices have occurred on the basis of such direct evidence.

The Commissioner reported at page 250 of the Commission of Inquiry into the Beck trials: “...evidence as to identity based on personal impressions, however bona fide , is perhaps of all classes of evidence the least to be relied upon, and therefore, unless supported by other facts, an unsafe basis for the verdict of a jury.” 9 ) In R. v.

Burke (1996) 1996 CanLII 229 (SCC) , 105 C.C.C. (3d) 205 the Supreme Court of Canada revisited the frailties of eyewitness identification at page 224-5: “The cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made by direct visual confrontation of the accused.

By reason of the many instances in which identification has proved erroneous, the trier of fact must be cognizant of ‘the inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection.’” 10 ) Fundamental factors affecting the weight of eyewitness evidence are: - opportunity to observe - the duration of the observation - light conditions - the distance from the witness to the person - the eyesight of the witness - colour perception - previous acquaintance by eyewitness with the person - presence or absence of distinctive features or appearance of the person.

All of these factors have been set out by various authorities over the years. 11 ) In R. v. McDonald (1951) 1951 CanLII 416 (BC CA) , 101 C.C.C. 78 (B.C.C.A.) Justice O’Halloran stated at pages 81-2: “The opportunity for honest mistake in cases of identification is too well known to require elaboration.” 12 ) In R. v. Quercia (1990) 1990 CanLII 2595 (ON CA) , 60 C.C.C. (3d) 380 (Ont. C.A.) the accused was charged with sexual assault. The attack lasted for a half-hour and took place at 7:30 a.m. The complainant had an adequate opportunity to view the attacker’s face.

She gave a detailed description of him including build, hair colour and style, eyebrows, and colour of eyes. The description did not match the accused in two respects. The complainant told the police that her attacker’s left eye was noticeably different from his right eye and that he had acne marks or pockmarks on his face. She picked the accused out of a photo line-up. The photograph clearly showed the accused did not have any acne marks or pockmarks and his eyes were normal. The accused was subsequently arrested and remained in custody until his trial. He did not exhibit these two identifying features.

He was convicted of aggravated sexual assault.

13 ) The Court of Appeal said at page 387: “ The fact that the victim, with absolute certainty, picked the appellant out of a properly constituted and conducted photograph line-up enhances the reliability of her identification evidence. The fact that the appellant’s photograph did not reveal two of the most prominent features of her description of her assailant detracts from the reliability of her identification evidence.” At page 390-1 the Court said this: “ 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 her assailant during the attack. The second is the selection of the appellant from the photograph line-up. After very anxious consideration, I am satisfied that both are fatally flawed. The victim’s opportunity to observe and her determination to mentally record the appearance of her attacker magnify the significance of the marked differences between her initial recollection of what her assailant looked like and the actual appearance of the appellant.

I refer particularly to the pock-marked facial skin and the askew left eye. On the victim’s evidence, these inconsistencies cannot be explained by difficulties inherent in her opportunity to see her attacker or in her ability to mentally record the appearance of her attacker. Nor did the victim testify that her initial description was in error, although she suggested that the prominence of these two features were being over-emphasized by counsel for the appellant. These two differences remain totally unexplained.

One must conclude that, in at least two vital respects, the appellant quite simply does not fit the description initially given by the victim and verified by her as accurate at trial. The selection of the appellant in the photograph line-up suffers from the same difficulty. Accepting the fairness of the line-up procedure, the reality remains that the photograph of the appellant is inconsistent with the description given by the victim of her assailant in two significant material respects.

One is driven to the conclusion that either her initial discription ( sic ) 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 photograph line-up. If the latter conclusion is drawn, it is difficult to accept her subsequent and different recollection at the time of the photograph line-up as totally reliable.

I acknowledge the victim’s honesty and integrity and I applaud her courage, but I am driven to conclude that her evidence identifying the appellant as her assailant was significantly flawed and could not, standing alone, justify a conviction. There is virtually no other evidence confirming her identification. The weight of the remaining evidence points away from the appellant’s involvement in the attack. In my judgment, the verdict is unreasonable and cannot be supported by the evidence.

I would allow the appeal, quash the conviction and enter an acquittal.” 14 ) This case suffers from the same flawed identification. Three eyewitnesses observed the rough complexion, variously identified as pockmarks, acne scarring or indents. No such marks are visible in the photographs of the accused nor are they visible to the Court, to Constable Orr or Mr. Spencer on the accused in the dock. In addition, two prominent moles on the face of the accused that should have been visible to Mr. Spencer and at least one to both Mr. Aughey and Constable Orr, were never noticed.

That evidence points away from the accused as being the driver of the truck. 15 ) In R. v. Miaponoose (1996) 1996 CanLII 1268 (ON CA) , 110 C.C.C. (3d) 445 (Ont. C.A.) the accused was charged with sexual assault of a 12 year old girl. He was a stranger. A comprehensive description was given. A few days later a suspect was located. The police officer obtained the accused’s consent to come into the police vehicle with him and by prior arrangement drove by a location where the complainant and her father were waiting. She fully expected to see her assailant at that time.

She recognized the accused as her assailant although she only had a view of him from the chest up. She did not see him again until the preliminary hearing. At trial the accused was convicted on this identification. 16 ) In overturning the conviction and entering an acquittal, the court stated at page 450-1: “ The inherent frailties of identification evidence are well known to the law and have been the subject of frequent judicial consideration and comment. We must, however, never regard these principles as trite. They are fundamental. They merit repeating.

One of the many useful writings on this subject can be found in the Law Reform Commission of Canada Study Paper (1983) on ‘Pretrial Eyewitness Identification Procedures’. The Commission concludes in its study that ‘the need for comprehensive police guidelines is particularly acute in the area of pretrial eyewitness identification procedures, because eyewitness testimony is inherently unreliable’ (at p.7).

In discussing the dangers inherent in eyewitness testimony, the Commission reviews actual cases of wrongful conviction based on eyewitness testimony; psychological studies that reveal the inherent unreliability of this kind of evidence; and the reasons why eyewitness testimony is difficult to assess through courtroom procedures.

The study reiterates the fact that it has long been recognized by commentators that, of all types of evidence, eyewitness identification is most likely to result in a wrongful conviction and this even in cases where multiple witnesses have identified the same accused.” and at pages 456-7: “The trial judge described the viewing of the appellant by the complainant as having been ‘achieved in a most unusual manner’. The police officer, a man with almost twenty-four years of experience as a police officer, conceded that the procedure he adopted was inappropriate.

He agreed that he was taught and was aware of proper identification procedures and that the method chosen in this case did not in any way meet appropriate standards. There were no exigent circumstances preventing the use of non-suggestive methods. He conceded that he knew that the method he chose was wrong and ‘probably’ unfair to the appellant, yet he still chose to proceed in this fashion. The pre-trial identification procedure in this case was totally unjustifiable in the circumstances.

There may be situations where a confrontation between a single suspect and a complainant is the only possible way to ascertain whether the suspect can be recognized. Even in such exigent circumstances, every effort should be made to maintain as much impartiality as possible and to clearly document all details, and all statements made by all parties, from the beginning of the identification process to the end. In all cases, the suspect should be presented to the complainant in circumstances that minimize any suggestion that the police believe the suspect is the offender. Here, there were no exigent circumstances.

No efforts were made to ensure some fairness to the process. The highly inappropriate procedure adopted can only have resulted in grave prejudice to the appellant. It also did nothing to assist the complainant and the community as a whole, both of whom have a substantial interest in correctly identifying the perpetrator of this offence.” 17 ) I am faced with the same highly unusual procedure here. The unfairness of showing Mr. Spencer one candidate for identification who was in police custody taints and contaminates the excellent identification evidence of Mr. Spencer. I accept Mr.

Spencer’s evidence that he has an honest belief that the accused was the driver. Unfortunately the police procedure has tainted that evidence to the point that I cannot be sure beyond a reasonable doubt that he was identifying the driver in the photo line-up and subsequent dock identification, uncontaminated by the improper procedure of driving him past a suspect in custody. No attempt was made to address this contamination or to limit it. CONCLUSION 18 ) The best identification evidence of the Crown is tainted and contaminated.

All three eyewitnesses who saw the driver described prominent facial characteristics on the driver that were not present on the face of the accused. All three did not notice prominent characteristics on the face of the driver that were on the face of the accused. No one noticed the paint marks on the jacket back and sleeve either on the jacket of the driver or the jacket of the accused.

Of somewhat less importance, there is a major difference in the description of the pants worn by the driver that do not match the pants worn by the accused. 19 ) There is other circumstantial evidence of identification such as the accused and the driver were wearing similar green jackets; the accused was apprehended within minutes from the abandoned truck about seven blocks away; that he had discarded his jacket; that he was breathing hard as though he had been running; that he was walking at a moderate to fast pace; and that he ran his hand through his hair in a nervous gesture.

Although this would be corroborating evidence of uncontaminated and clear eyewitness identification evidence, by themselves they do not present as strong enough evidence to do more than raise suspicions of suspicious circumstances and cannot form a basis for conviction on their own. 20 ) From a review of all the evidence and bearing in mind the cautions from the authorities as to the frailties of identification evidence and the grave injustices that could occur, I find it would be unsafe to convict based on the identification evidence as a whole in this case and I have a reasonable doubt as to the identity of the accused as the driver.

I therefore acquit of all charges. [14] Dated at the City of Calgary, in the Province of Alberta, this 28 th day of March, A.D., 2003

_____________________________ Judge B. R. Fraser