r. v. PAYNE RICARDO, 2017 QCCQ 3644

R. c. Payne 2017 QCCQ 3644 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL « Criminal Division » No: 500-01-067615-127 DATE: April 26, 2017 ______________________________________________________________________ BY THE HONOURABLE LINDA DESPOTS, J.C.Q ______________________________________________________________________ THE QUEEN Procecutor. v.

PAYNE RICARDO Accused. ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused is facing a charge of robbery committed towards Ms Beauregard who had withdrawn money from an ATM cashier. [ 2 ] The defense submits that the evidence is not sufficient to declare the accused guilty. [ 3 ] The sole issue in this case is the following: is the accused the person who robbed Ms Beauregard? CONTEXT [ 4 ] On November 4th, 2011, Ms Beauregard was at the Galeries Lachine where she withdrew money at an ATM cashier.

Suddenly, she felt something like a knife on her back. Someone told her « Give me your money ». She did give the money and turned back to see a man with a kaki coat running away. [ 5 ] Ms Beauregard described her assaillant as being 30 to 40 years old, wearing a kaki winter coat with fur around the collar, shoes with red laces. His hair were long on his shoulder and dirty as well as his beard.

He was smelling bad. [ 6 ] Ms Beauregard specified that she didn’t see her assailant’s face and that she doesn’t have a good sight with her left eye. [ 7 ] Back to her residence, she called the police. [ 8 ] On January 17, 2012, detective Di Matteo went to visit Ms Beauregard in order to show her a line-up photo. After the usual instructions, she pointed out two pictures as being her aggressor. She specified being more positive concerning one of the picture, the accused’s one.

She said that she recognized the eyes of the person. [ 9 ] Ms Beauregard explained that she has seen the accused several times before the robbery while he was panhandling at Galeries Lachine. [ 10 ] In the courtroom, she identified the accused as being the person who robbed her. [ 11 ] The accused denied. He admits panhandling at Galeries Lachine but he has never seen Ms Beauregard. [ 12 ] On January 17, Ms Beauregard report to the police that she has seen the accused in the area. [ 13 ] The day after, the accused was arrested in his apartment.

Detective Di Matteo seized a kaki winter coat with fur around the collar. No shoes with red laces were found but the apartment was not search, police having no warrant to do so. ANALYSIS [ 14 ] In regards to the identification issue, the jurisprudence is clear: because of the fragility of this kind of evidence, based on witness’ observations, the Court shall be careful before entering a guilty verdict. [ 15 ] In Beaulieu [1] , the Quebec Court of Appeal writes : [42] Les erreurs d’identification visuelle sont possibles; le témoin le mieux intentionné et le plus honnête peut se tromper quand il s’agit

pour lui d’identifier un agresseur dont il n’a souvent eu que quelques secondes pour remarquer les traits du visage, souvent dans un moment de grande tension.

Les tribunaux canadiens reconnaissent depuis longtemps la fragilité inhérente de toute preuve de reconnaissance visuelle par les témoins. [43] Les erreurs d’identification ont été la cause de plusieurs erreurs judiciaires par suite de la condamnation injustifiée de personnes qu’un ou plusieurs témoins de bonne foi avaient identifiées par erreur. [ 16 ] The Court notes that the robbery lasted a very short time during which Ms Beauregard was unable to see the face of her aggressor because she was attacked from her back but also because she has difficulty with her left eye vision. [ 17 ] That being said, it is difficult to understand how she can identify the accused’s picture in the line-up photo as she said, because of his eyes. [ 18 ] Also, the Court cannot forget that Ms Beauregard pointed out two pictures from the line-up photo.

It is an element that diminish the value of the identification evidence. [ 19 ] How the Court can be satisfied, beyond a reasonable doubt, that Ms Beauregard, when pointing the accused, is identifying the robber instead of the panhandler she had seen numerous times? [ 20 ] Same thing for the identification in the Court room: who did she identify, the robber or the panhandler? [ 21 ] It is true that the accused was wearing the same kind of coat, he’s black male that could fit the description but it is not sufficient to demonstrate the guilt of the accused beyond a reasonable doubt. [ 22 ] Considering the circumstances and the evidence, the accused is acquitted. __________________________________ LINDA DESPOTS, J.C.Q Me Pierre Garon For the Prosecution Me René Saint-Léger For the accused Dates of hearing: September 6, 2016; February 13, 2017 and March 28, 2017.