Her Majesty the Queen - v. -, 2013 SKPC 189

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 189 Date: December 13, 2013 Information: 36335574 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Shane Michael Longman Appearing: Ms. C. Choi For the Crown Mr. C. Demens For the Accused TRIAL DECISION M. HINDS , J INTRODUCTION [ 1 ] Shane Michael Longman is charged that on or about the 5th day of December A.D. 2012 at or near Regina, Saskatchewan, he did operate a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code .

[ 2 ] On December 5, 2012, Jenny Lynn Ditter was working as a Loss Prevention Officer for Forensic Investigations Canada in the Canadian Tire Store located at 655 Albert Street, Regina, Saskatchewan. At approximately 1:30 p.m., Ms. Ditter observed a male with tattoos on his face and the top of his hands enter the store. She followed him to the sporting goods aisle where he selected four mouthguards and concealed them inside the right side of his coat. Ms.

Ditter also observed this man to conceal two additional mouthguards in the left side of his coat and to subsequently leave the store without paying for any of the items. [ 3 ] Ms. Ditter followed the man outside of Canadian Tire and then identified herself to him as “security” and requested that he come back into the store. The man declined to go with Ms. Ditter and ran towards a silver Monte Carlo motor vehicle which was about 20 to 25 feet away. Ms. Ditter proceeded after the man and thought he was going to jump into the passenger seat of the Monte Carlo vehicle and take off.

The man did not get into the Monte Carlo vehicle right away. Rather he met up with the Monte Carlo some distance away on 1 st Avenue. Ms. Ditter observed that the licence plate number of the Monte Carlo was 922 IQE. Ms. Ditter ran alongside the Monte Carlo vehicle for about twenty seconds. During this time the driver’s side window came down and she observed the driver to be an aboriginal wearing all black clothing and had a very short haircut, light mustache and goatee and some facial tattoos. In particular Ms.

Ditter observed the driver to have one teardrop tattoo on one cheek and two teardrop tattoos on another cheek. Ms. Ditter did not apprehend either the driver of the Monte Carlo or the man she saw in the store. [ 4 ] Ms. Ditter subsequently called 911 and provided police with the licence plate of the Monte Carlo and a description of the driver, including his prominent features being the teardrop tattoos. [ 5 ] Constable Garth Tomaschefski of the Regina Police Service spoke to Ms. Ditter during the afternoon of December 5, 2012. Ms.

Ditter provided the plate number of the Monte Carlo vehicle and a description of the two men to Constable Tomaschefski. The officer did a search of the licence plate and found two males to be related to that plate number. One of the males was the accused. Constable Tomaschefski subsequently created a photo line-up consisting of a total of nine individuals including Mr. Longman. Constable Tomaschefski testified that in creating the photo line-up he tried to find photographs of other individuals who looked like the accused. The accused’s photo was given the number 1.

All other photographs were assigned a number ranging from 2 to 9. [ 6 ] The photo line-up was presented to Ms. Ditter the next day on December 6, 2012. Ms. Ditter chose photo number 1 as being the man she saw driving the Monte Carlo on December 5, 2012. She testified in-chief that she was 100% confident that the person she selected in the line-up was the driver of the Monte Carlo. Ms. Ditter also identified the accused in Court as being the driver of the Monte Carlo. At the time of the in-court identification, the accused was in the prisoner’s box, which was directly opposite from Ms.

Ditter who sat in the witness box. [ 7 ] On cross-examination, Constable Tomaschefski admitted that only one photo of the nine photos in the photo line-up showed teardrop tattoos on the person’s face. That one photograph (number 1) was of the accused. [ 8 ] On cross-examination, Ms. Ditter also admitted that photo number 1 was the only photograph which shows three tattoos on the person’s face. She also testified that the person in photograph number 8 may have a scar or tattoo on his right cheek. [ 9 ] The defence did not call any evidence at trial. ISSUE [ 10 ] The sole issue at trial is identity.

Has the Crown proved beyond a reasonable doubt that the accused was the driver of the Monte Carlo motor vehicle? ANALYSIS [ 11 ] I am mindful of the case law which clearly sets out the frailties of eyewitness testimony and the need to test its reliability.

[ 11 ] I am mindful of the case law which clearly sets out the frailties of eyewitness testimony and the need to test its reliability. This case law is set out in great detail by Madam Justice Jackson of the Saskatchewan Court of Appeal in R. v. Bigsky , [2006] S.J. No. 801 and by Judge Whelan of the Provincial Court of Saskatchewan in R. v. Friesen , [2005] S.J. No. 417 . [ 12 ] In R. v. Friesen , supra , Judge Whelan referred to the recommendations of former Mr.

Justice Cory of the Supreme Court of Canada in the Sophonow Inquiry [ The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001) ]. The recommendations from the Sophonow Inquiry regarding photo line-up identification are as follows: Photo pack line-up The photo pack should contain at least 10 subjects. The photos should resemble as closely as possible the eyewitnesses’ description. If that is not possible, the photos should be as close as possible to the suspect.

Everything should be recorded on video or audiotape from the time that the officer meets the witness, before the photographs are shown through until the completion of the interview. Once again, it is essential that an officer who does not know who the suspect is and who is not involved in the investigation conducts the photo pack line-up. Before the showing of the photo pack, the officer conducting the line-up should confirm that he does not know who the suspect is or whether his photo is contained in the line-up.

In addition, before showing the photo pack to a witness, the officer should advise the witness that it is just as important to clear the innocent as it is to identify the suspect. The photo pack should be presented by the officer to each witness separately. The photo pack must be presented sequentially and not as a package. In addition to the videotape, if possible, or, as a minimum alternative, the audiotape, there should be a form provided for setting out in writing and for signature the comments of both the officer conducting the line-up and the witness.

All comments of each witness must be noted and recorded verbatim and signed by the witness. Police officers should not speak to eyewitnesses after the line-ups regarding their identification or their inability to identify anyone. This can only cast suspicion on any identification made and raise concerns that it was reinforced. It was suggested that, because of the importance of eyewitness evidence and the high risk of contaminating it, a police force other than the one conducting the investigation of the crime should conduct the interviews and the line-ups with the eyewitnesses.

Ideal as that procedure might be, I think that it would unduly complicate the investigation, add to its cost and increase the time required. At some point, there must be a reasonable degree of trust placed in the police. The interviews of eyewitnesses and the line-up may be conducted by the same force as that investigating the crime, provided that the officers dealing with the eyewitnesses are not involved in the investigation of the crime and do not know the suspect or whether his photo forms part of the line-up.

If this were done and the other recommendations complied with, that would provide adequate protection of the process. [ 13 ] I am of the view that while strict compliance by the police of the Sophonow recommendations concerning identification procedure is not required by the law, the recommendations do provide a useful tool when examining identification procedures employed by police. In the present case some of the identification procedures adopted by the police complied with the recommendations of the Sophonow Inquiry . Some did not. For example: 1.

In this case 9, rather than 10 subjects were contained in the photo pack. 2. Constable Tomaschefski testified that he prepared the photo line-up based upon the photograph of the accused. The photo of Mr. Longman shows he is an aboriginal man with closely cropped hair, a mustache and one teardrop tattoo on his right cheek and two teardrop tattoos on his left cheek. The eight other photographs are also aboriginal men of a similar age to Mr. Longman. In addition, five of the eight other photographs (2, 4, 7, 8 and 9) reveal photographs of individuals with closely cropped hair.

However, many of the photographs used in the line-up differ from the photograph of Mr. Longman. For example: I. Only two of the eight other photographs (2 and 6) reveal individuals with mustaches.

II. Only one of the eight other photographs (8) appears to have a scar or tattoo on the right cheek. III. None of the eight other photos show individuals with teardrop tattoos on the face. The absence of a teardrop tattoo on any of the eight other photos used in the photo line-up is cause for concern. No police witness offered any explanation for this. Together these three deficiencies, in my view, go to the heart of the fairness and reliability of the photo line-up. The eight other photographs used in the line-up were not as close as possible to the photo of the suspect, Mr. Longman.

In my view this departure from the Sophonow recommendations significantly adversely affects the reliability of the identification procedure used in this case. 3. There is no evidence before me as to whether or not everything was recorded on video or audiotape from the time Officer Tomaschefski met with Ms. Ditter before the photographs were shown through until the completion of the interview. Hence I cannot determine whether or not this Sophonow recommendation was complied with in this case. 4. Constable Tomaschefski prepared and conducted the photo line-up. He knew that Mr. Longman was a suspect and that Mr.

Longman’s photograph was included in the photo line-up. The recommendations of Mr. Justice Cory in the Sophonow Inquiry clearly state the preferred procedure is to have an officer who does not know who the suspect is and who is not involved in the investigation conduct the photo pack line-up. Hence, I am of the view this Sophonow recommendation was not complied with. 5. The evidence reveals that before showing the photo pack to Ms. Ditter, Constable Tomaschefski read the Regina Police Service Photographic Line-up Instructions to the witnesses which state as follows: 1.

The person who committed the crime may or may not be in the group of photographs. 2. You are in no way obligated to select anyone. 3. Study each photograph carefully before making any comments. Consider that the photographs could be old or new, that hairstyles change and that persons can alter their appearance by growing or shaving facial hair. Constable Tomaschefski did not specifically advise Ms. Ditter that it is just as important to clear the innocent as it is to identify the suspect.

However, I am of the view his instruction partially addresses the need to ensure neutrality of a witness who is viewing a photo pack line-up. I am of the view this Sophonow recommendation was largely complied with. 6. In this case the photo pack was presented sequentially and not as a package. Ms. Ditter viewed one photograph at a time. This procedure is in keeping with the Sophonow recommendations. 7. In this case there is no evidence that indicates that Constable Tomaschefski spoke to the witnesses after the photo line-up. This procedure is in keeping with the Sophonow recommendations. [ 14 ] In

summary, I am of the view that the photo line-up procedure used in this case does not conform with several key recommendations of the Sophonow Inquiry concerning photo pack line-up identification. The photos did not as closely as possible resemble the witness’ description of the suspect. The eyewitness, testified that she observed three teardrop tattoos on the face of the driver. Only the photo of Mr. Longman revealed teardrop tattoos on his face. In addition, I am of the view that the eight other photos were not as close as possible to the photograph of the police suspect, Mr. Longman.

Only two other photographs revealed mustaches on the face. Apart from Mr. Longman’s photo, only one other individual had what could be described as a scar or a tattoo on his right cheek. Significantly, only the photo of Mr. Longman showed three teardrop tattoos on his face. Furthermore, Constable Tomaschefski should not have presented the photo line-up to the witness as he knew that Mr. Longman was a suspect and his photo was included in the line-up. As a result, I am of the view the photo line-up procedure was deficient.

I am also of the view that the deficient line-up procedure adversely affects the reliability of the subsequent identification evidence of the sole witness, Ms. Ditter, who selected the photo of Mr. Longman as being the driver of the Monte Carlo. In particular, I am of the view the deficient line-up procedure tainted her subsequent photo line-up identification evidence and in dock identification of Mr. Longman at trial.

Such evidence in my view is not built upon a solid foundation of a fair and reliable photo line-up procedure and presents “ the progressive assurance that builds upon an original identification that may be erroneous ” . [ 15 ] While I found Ms.

Ditter testified in good faith and was credible and sincere, I was unable to find that her identification of the accused in Court was reliable, having regard to the criminal burden of proof, the frailties of eyewitness identification evidence and the problems in the photo line-up procedures employed by the police which I have commented upon. [ 16 ] I find that the Crown has not proved beyond a reasonable doubt that the accused Shane Longman was the driver of the silver Monte Carlo motor vehicle on December 5, 2012. I therefore find the accused not guilty of the charge before the Court.

M. Hinds, J