R. v. Forde, 2011 ONCJ 293

COURT FILE No.: Toronto Region Citation: R. v. Forde, 2011 ONCJ 293 ONTARIO COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent— AND — EARL FORDE Applicant Before Justice Peter Harris Reasons for Judgment on the Disclosure Issue (released on June 9th, 2011) Mr. Daniel Lerner.................................................................................................... for the Crown Ms. Maureen Salama............................................................................................. for the Defence P. HARRIS, J.: 1.

Introduction [1] This is a ‘Stinchcombe’ Application for Toronto Police Services “policies, procedures, and educational materialsregarding Identification evidence and photo line-ups”. By way of background, it is agreed by counsel that Earl Forde, the Applicant, wason duty as a door man at the Mink Night Club in Toronto in the early morning hours of November 1, 2009. At that time, an altercation took place in front of the Night Club during which it is alleged that a complainant was assaulted.

Weeks later, on November 28th, 2009, awitness to the alleged assault was driven to the Night Club and was asked if he could identify the person responsible for the assault, froma group standing outside the Club. The witness identified the defendant, Earl Forde. [2] The Defence takes the position that the Identification procedure undertaken by the investigating officers was fatallyflawed and unreliable.

The Defence further argues that the material sought is relevant to show that police “Suspect Identification”policies and procedures were not followed thus providing a context in which the reliability of the identification evidence can bemeasured. The Crown takes the position that the material requested is irrelevant ― it is the actions of the investigating officers that isthe logically relevant issue ― not police policy or the training of the officers.

Further, the Crown argues that if the disclosure sought wasordered, such a result would ‘open the floodgates’ and create a constitutional obligation on the Crown to disclose police procedures invirtually every case in the court system. 2. The Law [3] When an accused is charged with an offence, he or she has a constitutional right to disclosure as part of the right to fullanswer and defence, guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms: R. v. Sinchcombe (SCC),[1991] 3 S.C.R. 326 (S.C.C.); R. v. Chaplin (SCC), [1995] 1 S.C.R. 727 (S.C.C.).

The obligation to fulfill thatguarantee under the Charter rests on the Crown, who is ultimately responsible for ensuring that an accused receives full and timelydisclosure of information in the Crown’s possession or control. The Supreme Court of Canada stated in Stinchcombe: “the fruits of theinvestigation ... are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure thatjustice is done.” Accordingly, the purpose of disclosure is to ensure the accused’s ability to make full answer and defence.

The disclosure obligationcontinues, through all stages of the prosecution where the evidence might affect the validity or integrity of the trial. In this way, thedisclosure obligation ensures both the right to full answer and defence and protects against wrongful convictions. As the Court stated inChaplin (at para. 21): This Court has clearly established that the Crown is under a general duty to disclose all information, whether inculpatory or exculpatory,except evidence that is beyond the control of the prosecution, clearly irrelevant, or privileged: R. v.

Stinchcombe, supra, at p. 339; R. v.Egger, (S.C.C.), [1993] 2 S.C.R. 451. The Crown obligation to disclose all relevant and non-privileged evidence,whether favourable or unfavourable, to the accused requires that the Crown exercise the utmost good faith in determining which

information must be disclosed and in providing ongoing disclosure. Failure to comply with this initial and continuing obligation todisclose relevant and non-privileged evidence may result in a stay of proceedings or other redress against the Crown, and may constitutea serious breach of ethical standards. With respect to the latter, of necessity, great reliance must be placed on the integrity of the policeand prosecution bar to act in the utmost good faith. It is for this reason that departures from this onerous obligation are treated as veryserious breaches of professional ethics. (

a) Relevance of disclosure [4] On the basis of the principles enunciated above it can be stated that Stinchcombe principles require that the Crowndisclose all information in their possession or control whether inculpatory or exculpatory, subject to the Crown’s exercise of discretion torefuse to disclose information that is privileged or clearly irrelevant. In other words, the Crown must disclose all information relevant tothe charge(s), whether or not the Crown intends to introduce it in evidence.

Relevance is referable to full answer and defence and ischaracterized as follows in Chaplin (para. 22 in a quotation from R. v. Egger, supra): One measure of the relevance of information in the Crown's hands is its usefulness to the defence: if it is of some use, it is relevant andshould be disclosed — Stinchcombe, supra, at p. 345.

This requires a determination by the reviewing judge that production of theinformation can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in makinga decision which may affect the conduct of the defence such as, for example, whether to call evidence. [5] This broad threshold requirement favours the disclosure of evidence. Essentially, it ensures that the defence receives allmaterial, including information that may only have marginal value to its cause. The relevance threshold is set quite low according to theSupreme Court in R. v. Taillefer; R. v.

Duguay 2003 SCC 70 , [2003] 3 S.C.R. 307 (S.C.C.) (at para. 60): As the courts have defined it, the concept of relevance favours the disclosure of evidence. Little information will be exempt from theduty that is imposed on the prosecution to disclose evidence. As this Court said in Dixon, supra, “the threshold requirement fordisclosure is set quite low. . . . The Crown’s duty to disclose is therefore triggered whenever there is a reasonable possibility of theinformation being useful to the accused in making full answer and defence” (para. 21; see also R. v.

Chaplin, (S.C.C.),[1995] 1 S.C.R. 727, at paras. 26-27). “While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant”(Stinchcombe, supra, at p. 339). [6] The Supreme Court in Taillefer reiterated the test to be applied in determining relevance (at para. 61): This right is a constitutional one. It is protected by s. 7 of the Charter, and helps to guarantee the accused’s ability to exercise the right tomake full answer and defence (see R. v. Carosella, (S.C.C.), [1997] 1 S.C.R. 80, at para. 37; Dixon, supra, atpara. 22).

As Cory J., speaking for this Court, wrote in Dixon, at para. 22: . . . where an accused demonstrates a reasonable possibility that the undisclosed information could have been used in meeting the casefor the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence, he has alsoestablished the impairment of his Charter right to disclosure. [Emphasis in original.] [7] Consequently, the test of relevance in relation to the instant case is ― whether there is a reasonable possibility that theToronto Police Services “policies, procedures, and educational materials regarding Identification evidence and photo line-ups” could beused in meeting the case for the Crown, advancing a defence or otherwise making a decision which could affect the conduct of thedefence. [8] While it was not argued before me, I will assume for these purposes that the ‘Crown’ for disclosure purposesencompasses state authorities such as policing agencies and that the records, materials and documents sought for disclosure purposes fallwithin the scope of first party disclosure materials within the control of the Crown: R. v.

McNeil 2009 SCC 3 , [2009] 1 S.C.R.66 (S.C.C.). [9] In addition, I will assume for the purposes of this application that Toronto Police Services ‘policies and procedures inrelation to the obtaining of Identification Evidence’ actually exist, having been given assurances by defence counsel that her law firm hasreceived such materials in the past, which, due to the passage of time are very likely now out-of-date. As I will explain below, I haveconcluded that the disclosure request for police educational materials regarding Identification Evidence is so vague and limitless as torender it essentially irrelevant.

(3) The Law Relating to Identification Evidence [10] In R. v. Miaponoose (1996) (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.) the Ontario Court of Appealdiscussed proposals for policing to improve eyewitness evidence reliability: The inherent frailties of identification evidence are well known to the law and have been the subject of frequent judicial considerationand comment. We must, however, never regard these principles as trite. They are fundamental. They merit repeating.

One of themany useful writings on this subject can be found in the Law Reform Commission of Canada Study Paper (1983) on "PretrialEyewitness Identification Procedures". The Commission concludes in its study that "the need for comprehensive police guidelines isparticularly acute in the area of pretrial eyewitness identification procedures, because eyewitness testimony is inherently unreliable" (atp. 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 eyewitnesstestimony is difficult to assess through courtroom procedures. The study reiterates the fact that it has long been recognized bycommentators that, of all types of evidence, eyewitness identification is most likely to result in a wrongful conviction and this even incases where multiple witnesses have identified the same accused.

Eyewitness testimony is in effect opinion evidence, the basis of which is very difficult to assess. The witness's opinion when she says"that is the man" is partly based on a host of psychological and physiological factors, many of which are not well understood by jurists. One example is pointed out by the Commission (at p. 10): Simply by way of illustration, psychologists have shown that much of what one thinks one saw is really perpetual filling-in.

Contrary tothe belief of most laymen, and indeed some judges, the signals received by the sense organs and transmitted to the brain do not constitutephotographic representations of reality. The work of psychologists has shown that the process whereby sensory stimuli are convertedinto conscious experience is prone to error, because it is impossible for the brain to receive a total picture of any event. Since perceptionand memory are selective processes, viewers are inclined to fill in perceived events with other details, a process which enables them tocreate a logical sequence.

The details people add to their actual perception of an event are largely governed by past experience andpersonal expectations. Thus the final recreation of the event in the observer's mind may be quite different from reality. Witnesses are often completely unaware of the interpretive process whereby they fill in the necessary but missing data. They will relatetheir testimony in good faith, and as honestly as possible, without realizing the extent to which it has been distorted by their cognitiveinterpretive processes.

Thus, although most eyewitnesses are not dishonest, they may nevertheless be grossly mistaken in theiridentification. While the circumstances surrounding the witness's identification can be subject to scrutiny in cross-examination, many of the moresubjective processes that have led to it are impossible to expose in this fashion. [11] Referring to the judgment in R. v.

Smierciak, (1946) (ON CA), 87 C.C.C. 175 that set out a numberof relevant factors to be considered in the assessment of identification evidence, the Court in Miaponoose concluded that: Later in the reasons for decision, the Court reiterates the need for constant watchfulness on the part of judges and Crown counsel to seethat nothing unfair to an accused person is done or put in evidence in connection with identification procedure. I would add that it isclear that the police also have a duty to ensure the integrity of the identification process.

Their role indeed may be most important of allsince they are usually in control of the methods chosen to recall or refresh the memory of eye witnesses. While it may not be possible toimprove upon the reliability of a witness's original perception of a person, it is crucial that procedures which tend to minimize theinherent dangers of eyewitness identification evidence be followed as much as possible in any given case.

Irreversible prejudice to anaccused may flow from the use of inappropriate police procedure and, unless adequately counterbalanced during the course of thejudicial process, may result in a serious miscarriage of justice. [12] In addition, the Ontario Court of Appeal has held that a trier of fact must understand the frailties of identification evidenceand must be able to evaluate this evidence and articulate the specific problems presented by a case involving identification evidence: R.v. Richards, (2004) (ON CA), 186 C.C.C. (3d) 333 (Ont. C.A.). The Court concluded:

The trial judge also addressed some of the specific frailties of the eyewitness evidence, and referred to others in his recharge. However,in my opinion, the charge as a whole did not adequately address the particular frailties of the identification evidence in this case. It isincumbent upon a trial judge to not only instruct the jury as to the general frailties of identification evidence, but also as to the specificproblems presented by the case before the court: See for example, R. v. Hibbert, 2002 SCC 39 , (2002) 163 C.C.C. (3d) 129(S.C.C.), per Arbour J. at para. 50, R. v.

Tebo, (ON C.A.), (2003) 175 C.C.C. (3d) 116 (Ont. C.A.), per Feldman J.A.at paras. 18, 19. [13] The question for consideration then is: how does a court arrive at an understanding of the specific problems created bycertain kinds of identification procedures? And is there a role for the defence to play (in the course of making full answer and defence) inassisting the trier of fact with a fuller understanding of the procedural factors that can result in witness error and mistaken identification?

(4) Analysis and Conclusion [14] Eyewitness misidentification has been shown to be the single greatest cause of wrongful convictions in the United Statestoday, playing a role in more than 75% of convictions overturned through DNA testing." [1] In the United Kingdom, the Criminal LawReview Committee, writing in 1971, stated that cases of mistaken identification "constitute by far the greatest cause of actual or possiblewrong convictions".[2] [15] One of the primary reasons that eyewitnesses to crimes have been shown to make mistakes in their recollection ofperpetrator identities, is the police procedures used to collect eyewitness evidence.

Various factors have been discovered to make policeidentification procedures more or less reliable as a test of eyewitness memory, and these procedural mechanisms have been termed"system variables" by social scientists researching this systemic problem.[3] "System variables are those that affect the accuracy ofeyewitness identifications and over which the criminal justice system has (or can have) control."[4] These variables have been ranked bysocial scientists as factors that increase the risk of errors or unreliability.

While no current identification procedure can eliminateselections of innocent people, the avoidance of procedures that are related to increased errors has been shown to increase the reliability ofeyewitness evidence. [16] Acknowledging the importance of these procedural precautions recommended by leading eyewitness researchers, the U.S.Department of Justice published a set of best practices for conducting police lineups in 1999.[5] Since many police agencies in NorthAmerica have adopted these model procedures designed to reduce the chance of mis-identification, the obvious line of defencequestioning in the instant case is: what witness identification procedures have been adopted by the Toronto Police Service?

How closelydo those policies align with modern social science recommendations for reducing the chance of witness error? Why did investigatingofficers in this case not follow established Toronto police procedures designed to reduce error and improve reliability? Without theability to pursue such a line of questioning there is no way to demonstrate to the trier of fact how relatively flawed and unreliable theeyewitness evidence may be. I say “may be” because I make no such assumption.

Nevertheless, such questioning supplies a context andstandards of practice from which to critically evaluate the identification procedure utilized in this case. [17] It may well be that there is a perfectly valid and understandable reason why investigating officers chose to use a “groupshow-up” approach in this case. There may not have been a police photo of the defendant available, the defendant may have refused toparticipate in a line-up procedure and officers may have obtained independent corroborative evidence to bolster the reliability of theeyewitness evidence.

However, at the pre-trial stage, I have to assume that identification will be a hotly contested issue. The reason thisis a special case in which police process and procedures are one of the main issues ― is because the Crown cannot show the trier of factexactly what the eyewitness saw in this ‘group show-up’ technique and the judicial decision-maker is left with the hopeless task of tryingto sort out competing claims about what was observed and whether it was a fair or flawed test of the witness’ memory.

In this unusualcase the procedure is really all there is of substance to evaluate and the disclosure requested will provide the trier of fact with a basisfrom which to assess the reliability and fairness of the approach taken. I am not particularly concerned about constitutionalizing an ever-expanding disclosure requirement respecting police procedures. There was an extremely unusual identification procedure utilized in thiscase and as in a few very special areas of criminal evidence, there are rare circumstances in which process trumps substance (see forexample R. v.

Horzempa 2005 MBQB 282 in which the Court ordered the disclosure of Winnipeg Police Service policy respecting therequirement for videotaping suspect’s statements). [18] In all the circumstances, it is at least arguable that the disclosure requested is not clearly irrelevant and that there is areasonable possibility that the information sought could be useful to the accused in making full answer and defence. Consequently, theorder of this court is that the Toronto Police policies and procedures for obtaining eye witness identification evidence will be providedto the defence.

As I indicated above, I have concluded that the disclosure request for police educational materials regardingidentification evidence is so vague and limitless in time and substance that I am satisfied that in the context of this case they areessentially irrelevant. Released: June 9, 2011 Justice Peter Harris

[3] Gary Wells & Elizabeth Olson, Eyewitness Testimony , 54 Annual Rev. Psychol. 277 (2003). [4] Ibid at 285 . [5] Eyewitness Evidence, A Guide For Law Enforcement , United States Department of Justice (Oct. 1999).