Her Majesty the Queen - v. -, 2012 SKPC 140

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 140 Date: September 6, 2012 Information: 43963058 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Emery Stewart (No. 2) Appearing: Michael Segu For the Crown Kim Armstrong For the Accused JUDGMENT P.S. KOLENICK , J BACKGROUND [ 1 ] The accused is charged that, on or about August 8, 2011, at Saskatoon, he committed robbery against Rosemary Anweiller of Esso (Imperial Oil) contrary to s. 344(1) (

b) of the Criminal Code .

[2] In my interim ruling dated May 15, 2012 (2012 SKPC 63 , 2012 SKPC 063), I had concluded that the opinion of thevarious peace officers who purported to identify the accused as the responsible person, from various video surveillance material photoswould be admissible without any consideration of weight, as recognition evidence. This is the contents of the evidence from that interimruling, commencing at para. 5: Rosemary Anweiller [5] Ms.

Anweiller advised that she was employed as a cashier at an outlet of Esso On the Run in Saskatoon when this matter allegedlyoccurred. [6] At roughly 8:20 p.m. she was alone in the store with one male customer, who was purchasing a slushy. She was in the process ofmaking a safe drop, placing money in the safe from the cash register. The male was there as well and grabbed her by the hand. Shebacked off but he jumped behind the counter at the cash register and said words like “don’t fuck with me” and “give me the money”. Hetook $250.00. [7] She did as she was told for fear of being hurt.

She had been working alone at the time and the male suspect had also been byhimself. [8] In her testimony she described him as being 5’6”, male native, caucasian, wearing a black hat, green jacket, black pants andsunglasses. He had also been carrying some nature of stick which was dropped by him near the coffee counter. She was not sure if hehad anything in his hands when having entered the premises. He picked up the stick and took it with him. [9] Ms.

Anweiller confirmed as well that she had called the police on her cell phone because he had taken the cordless handset whenhaving departed. [10] She also indicated that there was a video surveillance camera at the time and had reviewed that video with the police. It wasentered as an exhibit for the Crown and played for her while she was on the witness stand.

She was able to confirm the actions of hermale assailant, but could not identify the responsible party where he was apparently seated in the prisoner’s dock. [11] In addition to the video disc, the Crown also entered as an exhibit five still photos from the video disc. [12] There was no cross-examination of Ms. Anweiller. Sergeant Matthew Ward [13] Sergeant Ward of the Saskatoon Police Service was involved in a general investigation on this alleged matter, starting the followingday. He had not attended at the scene, but became aware from other officers of the video surveillance disc.

As part of his duties theofficer secured the disc for the technological officers of the Saskatoon Police Service. That resulted in five photos being circulated tovarious peace officers by e-mail. Seven officers replied, all of whom confirmed the assailant to have been the accused. No other suspectwas named by anyone. [14] Sergeant Ward also indicated that he had attempted a photo identification line-up procedure with the complainant.

She was notable to positively identify the accused in the process. [15] In cross-examination the officer confirmed the photo line-up procedure had used nine photos including the accused. As well, hewas unsure as to how many peace officers had been sent the photos of the assailant. Further, no fingerprints had been located at thescene, and he had not been involved in the arrest of the accused.

EVIDENCE OF THE VOIR DIRE [16] With the consent of counsel, a voir dire was convened at this point of the proceedings. As noted, the issue was to determine admissibility of the alleged opinion evidence by the peace officers. They had each concluded that the accused had been positively identified as the responsible party from their analyses of the photos at the scene and past contact with the accused. There was no Defence evidence on the voir dire . The parties agreed the evidence on the voir dire will be applied to the trial proper by consent.

The accused also reserved the possibility of calling evidence for the Defence, depending on the interim ruling herein on the voir dire . Sergeant Ernie Louttit [17] Sergeant Louttit of the Saskatoon Police Service advised that he has been a peace officer for 25 years. In the course of his duties he has made roughly 300 arrests per year. He was familiar with the accused in his professional capacity and purported to identify him where he was seated in the prisoner’s dock. [18] He knows the accused by his nickname “Doughboy” and has had occasion to arrest him on five occurrences since 2001.

That was in addition to the various other times over the years when he has been required to check the identification of him in the course of his duties. [19] On September 2, 2011, he had contacted Sergeant Ward to confirm that it was the accused in the photos that had been circulated. He had drawn that conclusion almost instantaneously. [20] In regard to photos 1, 2, 4, and 5 he concluded they had the familiar look of the shape of his mouth, side profile and body shape. He had noted as well the physical build and shape of the head. He observed the accused to be not too tall and built like a wrestler.

He could recall having wrestled with the accused during one of the arrests. He was one hundred percent confident of the identification, no doubt. [21] In cross-examination the officer agreed that photo 1 had been extremely dark and the head was covered by a hat and glasses. Despite that the officer was of the view that the shape of the head, mouth and face were sufficiently distinctive for these purposes. [22] In regard to photo 2, the side profile showed the ear, cheek and mouth. However the eyes and nose cannot be seen, nor can the shape of the nose.

As well there is some visual impediment caused by the hat and glasses. [23] As to photo 3, the assailant is wearing a green shirt and blue pants. The whole face is not visible, just the chin. The officer agreed he could not read the logo on the cap nor the shirt. [24] It was agreed also that photo 4 shows better clarity with a side view of the face as he jumped over the counter. The face was squeezed somewhat as he jumped. There was a dark hat over his forehead.

Regardless the officer confirmed he had been face to face with the accused when he was placed under arrest. [25] Photo 5 shows a person standing with a side profile where the ear only is visible. The eyes are covered by the hat and it covers the face. [26] The officer indicated also that he had not attended at the scene. He claimed as well that the shape of the accused’s head was

distinctive despite that he was wearing a cap in the photos. As well, though there was nothing distinctive in the photos, such as facial hair or tattoo, his appearance is embedded in the officer’s mind despite no distinguishing characteristics. Mostly he was looking at the nose, mouth and chin only. The officer did not consider it to be someone else. He cannot help if he recognizes somebody. Sergeant Rhonda Ellingboe [27] Sergeant Ellingboe of the Saskatoon Police Service has been a member since December 1995 and identified the accused in the prisoner’s dock.

Her first contact with the accused as a peace officer was in 1996. That contact was only for roughly 10 minutes. She knew his nickname to be “Doughboy”. The only other contact she had with him was in 2003 when he had been arrested for operating a motor vehicle. [28] In regard to the photos in issue herein, when she first saw them she was uncertain as to the proper identity but very soon was able to put the name and face together as being the accused. She had regarded photo 1 straight on as being helpful to identify his nose, mouth and width of his cheeks.

There was no problem in that regard that he had been wearing a hat. Photos 3 and 4 indicated the accused’s personal build and stockiness. Photo 5 confirmed he was dark-skinned. The officer concluded she was ninety-five percent certain of his identity. [29] In cross-examination the officer agreed that the first contact had been 16 years ago. The incident was distinctive because some jewelry had fallen out of a sock in the course of an investigation.

She had contact with him face to face from a distance of roughly 12 feet when filling out the booking sheet in detention. [30] In respect to the matter in 2003, again she agreed it was 9 years ago which is a significant period. He had produced his driver’s license in the course of being detained and placed under arrest. [31] As regards photo 1, she agreed to being unable to read the logo on his hat, which had the effect of covering his forehead, glasses and eyes. He might have had a moustache. Even though it was not the best photo, she was aware of the distinctive line of his mouth, nose, jaw and lips.

She did not rely on photo 2 because it was too blurry. [32] With respect to photo 3 she agreed that the full body dark hat stopped her from seeing his eyes, however his stature and size were important. He appeared to be stout and stocky. Also apparent in photo 3 were the accused’s distinctive smile lines. Photo 5 only included his nose and ear. It was not possible to see any lines on his face. She agreed as well that there did not appear to be any piercings. Constable Dione Meier [33] Constable Meier has been a peace officer for three years.

She, too, purported to identify the accused where he sat in the prisoner’s dock. As children they had lived in the same neighbourhood. She is now age 30, and had attended the same elementary school, W.P. Bate, from kindergarten to grade 6 for seven years, as did the accused, he a grade ahead. They were not in the same grade. They went to different high schools, but she purported to have no problem confirming his identity.

Even though they did not go to high school together she still had some contact with him because they were in the same neighbourhood. [34] The last contact which the officer had with the accused was August 11, 2011, when he attended at detention and she was working there. She knew who he was. He started the dialogue by saying “you’re Dione Meier”. She confirmed that indeed she was. Their encounter at detention was for 2 or 3 minutes. [35] In respect to the photos in issue, photo 1 showed the accused’s distinctive smaller button nose which protrudes somewhat, in his heart-shaped face.

Photo 2 included cheekbones which are very high and smaller ears. In photo 3, the accused, who was 5’8”, was inclined to carry his arms somewhat out to the side. It also indicated a thicker mid-section and broader shoulders. It also suggested that the photo 4 cheek lines between the cheeks and mouth to be distinct, as well as caramel-coloured skin tones. Once again, photo 5

purported to show a body build and height consistent with that of the accused. [36] He had been known as “Doughboy” as a nickname when they were younger. She noted in court that the accused has a small button nose, full lips, a nose that does not protrude, caramel skin tones and distinct smile lines. His jaunty walk on the video was the same as the accused holding his arms out to the side somewhat as he walked. In general she was very confident the accused had been properly identified as the offender.

She confirmed that opinion from both the photos and the portion of the video disc which was played for her in court. [37] In cross-examination the officer confirmed that she had not looked at the photos for more than five minutes as well there had been a 12 year gap since high school graduation and longer since they had been in the same elementary school. There had been brief and fleeting contact for many years, but they had not been friends. [38] Regarding photo 1, she agreed that it was not possible to see his eyes with the dark hat and that she could not see the hat logo.

As to photo 2, the glasses appeared to stick out from the dark hat. The side profile is from the left and she was unsure if there was any facial hair. As well it was not possible to see a forehead because of the hat. As to photo 5, again the officer said that the accused was carrying his arms to the side and slightly out from his body. She also claimed in photo 4 to see his distinct facial lines despite that he was jumping over the counter, as well as the accused’s caramel-coloured skin tones.

In photo 5, the accused was seen to have a similar build in height to when he was in high school. [ 3 ] All pertinent evidence from the voir dire was applied to the trial proper, by consent. There was no evidence for the defence, and as such, the accused did not testify. ANALYSIS Is the evidence for the Crown sufficiently credible and reliable to prove beyond a reasonable doubt the accused had committed the robbery as alleged? What weight should be given to the recognition evidence of Sergeant Louttit, Sergeant Ellingboe and Constable Meier? [ 4 ] Counsel both filed briefs of law which is greatly appreciated.

None of the authorities which have been submitted are binding on this Court and they are a product of their particular facts in each instance. [ 5 ] In any event, the accused is charged with committing the offence of robbery, contrary to s. 344(1) (

b) of the Criminal Code . The material particulars of the offence are contained in s. 343 of the Criminal Code which provides as follows: Robbery 343. Every one commits robbery who (

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person; (

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof.

[6] In general, this Court is mindful of potential frailties of identification evidence and the risk of any miscarriage of justiceemanating from it. In R. v. Lascelle (D.J.) (2007), 2007 SKPC 73 , 300 Sask. R. 302, in general I had noted as follows, startingat para. 21 on the circumstances therein: [21] The onus is, of course, on the Crown to prove beyond a reasonable doubt all of the constituent elements of the offence. Includedtherein is the need to establish the identity of the accused as the person who committed this alleged offence.

Much of the identificationherein is from an eyewitness, dock identification or a combination thereof. As such, it requires careful scrutiny by the Court. [22] The accused has referred to the judgment in Rietsma v. The Queen (1998), (SCC), 125 C.C.C. (3d) 1 (S.C.C.),which noted as follows, at para. 59 on the issue of dock identification: [59] The identification of an accused person for the first time “in the dock” is generally regarded as having little weight.

In a dockidentification the witness is obviously not required to pick out the person whom he claims to have seen from among a number of otherpersons of similar age and size and general physical appearance. In a courtroom identification there is also the danger of the witnessanticipating that the offender will be present. That danger is accentuated when an accused is readily identifiable in the courtroom as theperson accused of the crime.

Identification of an accused for the first time in the dock is analogous to a police “show up” in which theonly person shown to the identifying witness is the suspect, and for that reason it is open to the same criticism. Generally, anythingwhich tends to convey to a witness that a person is suspected by the police or is charged with the offence has the effect of reducing ordestroying the value of the identification evidence. [23] Generally in regard to eyewitness identification evidence as well, in R. v. Delorme (C.E.) (2004), 2004 SKPC 130 , 258Sask. R. 295 (Sask. Prov.

Ct.) the following comments, commencing at para. 12, were noted: [12] In R. v. Kutsenko (W.M.) (2001), (SK PC), 222 Sask. R. 1; 22 M.V.R. (4th) 42, I had observed as follows, atpara. 30: 30 As a preliminary observation, I would note that the court is well aware of “the inherent frailties of identification evidence” ingeneral. In R. v. N.B., [1998] S.J. No. 893, I had occasion to consider the issue of identification in the following terms, at para. 7: The issue of identification is a matter which must be determined in the proceedings.

In this regard, in McWilliams’ text Canadian Criminal Evidence (3rded.), the author affirms that, in every criminal case, it must not only be proved that an offence has beencommitted, but that also, the accused was the one who committed it. The court must always be concerned by the possibility of aninnocent person being mistakenly identified and convicted. This, of course, is reflected in the well-known observation by the House ofLords in Woolmington v. D.P.P., [1935] that it is better that ten (or even a hundred) guilty men go free than one innocent man beconvicted.

In this regard, the Commission of Inquiry into the Beck trials in England indicated in part that evidence as to identity basedon personal impressions, however bona fide, is perhaps of all classes of evidence the least to be relied upon. As such, evidence from awell-intentioned witness that the accused is the one, without describing features of appearance such as height, weight, age, clothing, hair,colour of skin or hair, or the complexion of the offender is little more than expression of opinion and is of little weight. In this respect, inR. v.

Burke, (SCC), [1996] 105 C.C.C. (3d) 205, Lamer C.J.C. made the following comments at pp. 224-5: The cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made bydirect visual confrontation of the accused. By reason of the many instances in which identification has proved erroneous, the trier of factmust be cognizant of ‘the inherent frailties of identification evidence arising from the psychological fact of the unreliability of humanobservation and recollection.’ R. v. Sutton, (ON CA), [1970] 3 C.C.C. 152. In Regina v.

Spatola, (ON CA), [1970] 4 C.C.C. 241 at p. 249, Laskin J.A. (as he then was) made the followingobservation about identification evidence:

Errors of recognition have a long documented history. Identification experiments have underlined the frailty of memory and the fallibility of powers of observation. Studies have shown the progressive assurance that builds upon an original identification that may be erroneous...

The very question of admissibility of identification evidence in some of its aspects has caused sufficient apprehension in some jurisdictions to give pause to uncritical reliance on such evidence, when admitted, as the basis of conviction... (see McWilliams ’ text, commencing at p. 18-1) [ 7 ] This Court also takes guidance from the legal brief filed by the defence as to the proper nature of the analysis herein, as set forth in para. 52: 52.

When assessing the weight to be assigned to the recognition evidence, the court recognized: . . . case law suggests that the indicia for determining whether the threshold degree of familiarity for the reception of recognition evidence has been met is threefold: (

i) the length of the prior relationship between the witness and the accused; (ii) the circumstances of the prior relationship between the witness and the accused; and, (iii) the recency of the contact between the witness and the accused prior to the event where the witness recognized the accused. The indicia also go to the weight to be assigned to the recognition evidence along with two other factors, namely: the cumulative effect of recognition evidence provided by more than one witness and the circumstances under which the witness recognized the accused. R. v.

Panghali, 2010 BCSC 1710 , at para. 10 citing Anderson , 2005 BCSC 1346 , at para. 25 [ 8 ] Reference is also made to the legal brief of the Crown in the case of R. v. Bob, 2008 CarswellBC 2793 . It was a situation somewhat similar to the situation herein, but once again driven mainly by its own circumstances. Regardless, the legal brief of the Crown noted as follows, commencing at para. 7 as to the approach taken therein: 7. In R. v.

Bob, 2008 CarswellBC 2793 , the Court admitted recognition evidence of a police officer familiar with the accused, in the following circumstances: On January 5, 2006, a red mountain bike was stolen from a residence in Williams Lake. Around noon that day Cst. Skretting of the RCMP was responding to an unrelated call in Williams Lake when he saw a man on a red bicycle. He gave this evidence about the encounter: I was going to approach the male and speak with him. As I looked at him, I recognized the male as Corbin Bob. I wouldn’t say I was a hundred percent certain at that time. I was about 90 to 95 percent sure.

I knew at that point from the prior day that Mr. Bob was currently wanted on an outstanding warrant. Cst. Skretting said that the man began to ride away on the bicycle. He yelled at him to stop, but the man kept riding. The officer followed him in the police car, and the man eventually dropped the bike, and ran. The officer was unable to catch him. Cst. Skretting said that he was ten to 15 feet from the man when he first saw him, and had him in view for five to ten seconds before he rode away.

He was able to give a limited description of the man saying, that he wore a baseball cap, sunglasses, a hooded top with the hood down, and dark pants. He had pronounced lips and cheekbones. He testified that he had had past dealings with Corbin Bob on four or five occasions, when he was present during Mr. Bob’s arrests by other officers.

Cst. Skretting seized the bike, and returned to the police station. There, he pulled up a police photo of Mr. Bob on the computer, to confirm that the man he saw on the bicycle was indeed Mr. Bob. He testified that at that point he was “completely satisfied” that it was Mr. Bob. The photo made up his mind. At trial, Cst. Skretting identified Mr. Bob as the man he saw with the bicycle. [emphasis added] 8. The trial Court convicted Mr. Bob, and in dismissing the accused’s appeal, the Court stated that: There was no suggestion at the trial that Cst. Skretting was not a credible witness.

He had had previous dealings with Mr. Bob. He had an adequate chance to observe him with the bike, and he was 90-95 percent sure that he was the man he saw. He knew that there was a warrant out for Mr. Bob’s arrest, and was sure enough of his identity that he tried to stop him on that basis. He was able to describe Mr. Bob’s unique facial features, based on his previous dealings. CONCLUSION [ 9 ] As noted by this Court in Lascelle , supra , one must be very careful not to draw any adverse inference of guilt if not supported by the evidence.

That is particularly so where the Crown is relying mainly on the recognition evidence of the three peace officers. It is important to carefully scrutinize it in that context to determine whether it can support a finding of guilt, with proof beyond a reasonable doubt. [ 10 ] Initially in that analysis, one herein might otherwise be concerned the identification of the accused by both Sergeants Louttit and Ellingboe as the responsible party was more in the nature of their impression of “Doughboy”.

It appeared to lack sufficient detail of distinctive, reliable characteristics such that their conclusion might be in error. [ 11 ] That said, however, it was not apparent on the evidence that anyone else of similar vague description or appearance had been a potential suspect for the police. The three officers had, independent of each other, identified the accused as the responsible party. As well, if there were any lingering concerns on identification they were answered by the actions of the accused himself.

On the evidence, he had initiated the dialogue in the detention area with Constable Meier with words to the effect “you’re Dione Meier” to which she confirmed in the affirmative. All of that was because of them being previously familiar with each other in earlier years from both attending W.P. Bate School, in different grades. [ 12 ] Whatever shortcomings one might have had as to the value of the recognition evidence of Sergeant Louttit, Sergeant Ellingboe and Constable Meier, were sufficiently answered by the verbal exchange the accused had initiated with Constable Meier while in the detention area.

It is reasonable to infer on that basis that the person Constable Meier had known previously as the accused and the alleged robber are the same person. [ 13 ] Therefore all of the evidence, including the recognition evidence, is sufficiently credible and reliable to prove beyond a reasonable doubt the identification of the accused as alleged. As such, he is guilty of the offence of robbery contrary to s. 344(1) (

b) of the Criminal Code . ______________________ P.S. Kolenick, J