2019 MBPC 7, 2019 MBPC 7

Citation: 2019 MBPC 7 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Hugh Crawley, for the Crown ) - and - ) ) Christopher Penney ) Nicole Beasse, for the Accused ) ) Judgment delivered: ) January 29, 2019 CORRIN, P.J. THE FACTS [ 1 ] This case involves an undercover sale of drugs. The only witness who was able to identify the accused was the officer who arranged and participated in the late evening dial-a-dealer style transaction. This officer later identified the accused via an internal photo lineup procedure that was conducted about a week after the purchase transaction.

The officer also identified the accused as being the drug vendor in court. The undercover officer testified that she had not worn a body videocam during the transaction. The Court assumes that any other police attempts to photograph the suspect from a distance were unsuccessful as nothing was mentioned in this respect by other police witnesses who attended the incident scene on the evening in question. [ 2 ] The dealer was not arrested after the sale.

However, the evidence disclosed that his vehicle, displaying the name “ABC Kitchen Exhaust Cleaning”, was followed by other officers back to the accused’s residence. These officers kept the vehicle under surveillance for twenty minutes prior to departing the scene. Although the suspect remained in the darkened vehicle during this observation period, no attempt to arrest or identify him was made prior to police departure.

A subsequent record check determined that the vehicle was registered to the accused’s father. [ 3 ] The accused acknowledged that he had been using the observed vehicle for personal as well as work use because his own personal vehicle had broken down at the relevant time but denied being involved in the drug transaction. He testified that he often worked nights and believed that he had probably been at work on a job site on the evening of the incident and likely had been transported to and from the site by a fellow employee, a common circumstance.

Although he couldn’t remember who had driven him and was unable to secure verification of his attendance at a particular job site, he did provide plausible reasons in support of his rudimentary ‘alibi’ theory. The parties agreed that the accused was unaware of the police investigation until he was arrested some five months after the incident. [ 4 ] The accused further testified that he believed that a man named George Krahn, a friend of his at the time, was the probable perpetrator of the crime.

According to the accused, he had previously given Krahn, a couch surfer, his access security code in order to allow him to visit his home from time to time. The accused related that he had, subsequent to the incident, become aware that Krahn had an addictions issue and consequently cut ties with him. SUBMISSIONS OF DEFENCE COUNSEL [ 5 ] Defence contends that the Crown has failed to prove that Mr. Penney was the person who sold the drugs to the undercover officer.

She argues that the officer’s identification evidence was flawed and accordingly of little value; also that the accused’s testimony was sufficiently credible to raise a reasonable doubt as to his guilt. [ 6 ] Defence submits that the police failed to follow some of the 2001 Sophonow Inquiry photo line-up procedures recommended by former Supreme Court Justice Cory. In particular she cited trial evidence respecting the following concerns: - The failure to record the photo line-up on video or audio-tape.

Justice Cory recommended that everything from the time that an officer meets the witness, before the photos are shown, until the completion of the interview should be recorded in such manner. - The failure to have a truly uninvolved and independent officer who was unaware who the suspect was conduct the photo line-up. Justice Cory stated that it was important that the conducting officer be unaware of the location of the suspect within the photo line-up.

He further recommended that the officer conducting the line-up should, before showing the photos, confirm that he or she does not know who the suspect is or even whether his photo is contained in the line-up. Cory also opined that such care was necessary as an investigating officer could inadvertently convey information to a witness, even if this was not done deliberately or consciously.

- The failure to have an independent police force conduct the interview and line-up in question.

Justice Cory acknowledged that such an approach, because it could lead to additional costs and loss of time, could be overlooked by lawenforcement so long as the officers dealing with the eyewitness were not involved in the investigation itself and were completelyunaware whether the suspect’s photo formed part of the line-up. - Defence also argued that the integrity of the photo line-up procedure was compromised by the fact that the accused’s photo wasnoticeably darker than the other photos, thus making it ‘stick out.’ Justice Cory recommended that all photos should be as close as possible to that of the suspect.

On this point, Defence elaborated, relyingon R. v.

Hanemaayer, 2008 ONCA 580, paragraph 24, wherein Rosenberg, J.A. stated as follows in reference to the setting aside of anappellant’s convictions: “As professor Lindsay explained, structural bias results when one person in the line-up is visually distinct from the others in some way.This bias can cause misidentifications because the person who stands out is more likely to be picked by the identifying witness.” [7] The appellate court had received evidence that the appellant’s line-up photograph, which had played a major role in hisconviction, was “the least sharp”, in the sense that it had been slightly unfocussed, in the line-up array presented to the Crown’s chiefwitness.

At the hearing, the Crown counsel informed the court that the Crown’s witness was still convinced that she had identified theright person, even though the perpetrator, the notorious Paul Bernardo, had admitted to the crime and police had subsequently confirmedthe accuracy of details provided to them by him. The Ontario court also, like Justice Cory, cited the inherent danger associated withinvestigation involved officers conducting the line-up, observing that such an officer may have even unconsciously conveyedinformation to the witness, causing her to select the suspect. [8] Defence also filed R. v.

Sheppard, 2002 MBQB 156 (Oliphant, A.C.J.Q.B.), another local case where a superior court judgealso adhered to the Sophonow recommendations. Sheppard dealt with a scenario that was highly similar to the case at bar. It alsoinvolved an undercover drug sale situation where identification was the sole issue. As in our case the undercover officer also identifiedthe accused in court. Oliphant, J.A. questioned whether the in-court identification was a result of an independent memory of events orwas wrongly based on the line-up photo shown to him during the investigation.

It was his view that the length of time between theoffence and the trial “militate against a reliable, independent recall” (see para. 34). He went on to sum up as follows at paragraphs 36 and37: 36 In arriving at my conclusion, I have taken into account all of the facts here and considered the various statements of the lawalluded to earlier. I also have borne in mind the grave danger of the possibility of a wrongful conviction where the Crown relies solelyon the unconfirmed eyewitness identification evidence of one witness. 37 Without in any way commenting adversely on the credibility of Const.

Spence, I conclude that the Crown has failed to satisfy theonus of proving beyond a reasonable doubt that it was Mr. Sheppard who sold the cocaine to Const. Spence on either of the two daysreferred to in the indictment. [9] Justice Oliphant, like Justice Rosenberg, also cited Justice Cory’s Sophonow recommendations with approval. THE LAW [10] Given that the accused testified in his own defence I must apply R. v. W.(D.), (1991) (SCC), 1 S.C.R. 742. W.(D.) established the following analytical approach in such circumstances (see Cameron, J.A., paragraph 16, R. v.

Menow, 2013 MBCA72): 16 Every person is presumed to be innocent until the Crown has proven his or her guilt beyond a reasonable doubt. In W.(D.), theSupreme Court warned that verdicts of guilt should not be based on “whether [triers of fact] believe the defence evidence or the Crown’sevidence” (at p. 757). Rather, the paramount question is whether, on the whole of the evidence, the trier of fact is left with a reasonabledoubt about the guilt of the accused.

To ensure the trier of fact remains focussed on the principle of reasonable doubt, the courtsuggested that the following analysis be undertaken (at p. 758):: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [11] Normally, I would first decide whether I believe the evidence of the accused or have been left in reasonable doubt by it. Inconsidering his testimony, I would of course consider his evidence in the context of all the other evidence that supports the Crown’s case(see R. v. Menow and R. v. Hoohing, 2007 ONCA 577).

However, given the importance of the so-called third W.(D.) factor, relative tothe issue of identification, I choose to start with the last analysis first. In other words I choose to determine whether the identificationevidence is in fact sufficient to establish the guilt of the accused beyond a reasonable doubt. W.(D.) ANALYSIS [12] In R. v. Hibbert

(2002) SCC 39, Arbour, J. eloquently described the dangers associated with eyewitness identification evidenceat paragraph 50: “... I think it is important to remember that the danger associated with eyewitness in-court identification is that it is deceptively credible,largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the

distorted value that the jury may place on it. I am not persuaded that the instruction quoted above, to the effect that such identificationshould be accorded “little weight”, goes far enough to displace the danger that the jury could still give it weight that it does not deserve.” And, at paragraph 51, Arbour J. went on to observe: “The danger of wrongful conviction arising from faulty but apparently persuasive eyewitness identification has been well documented.Most recently the Honourable Peter deC.

Cory, acting as Commissioner in the Inquiry regarding Thomas Sophonow, maderecommendations regarding the conduct of live and photo line-ups, and called for stronger warnings to the jury than were issued in thepresent case (Peter deC.

Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration ofEntitlement to Compensation (2001) (“Sophonow Inquiry”), at pp. 31-34.” Arbour J. continued, at paragraph 52 by emphasizing that there was a very weak link between the confidence level of a witness and theaccuracy of that witness. [13] The Court recognizes that the recommendations pertaining to line-ups, as set out in the Sophonow Report are not binding uponpolice services, nor does a failure to follow same necessarily mean that a related identification should be given little or no weight by atrier of fact.

However, that having been said, Cory’s recommendations definitely deserve to be given considerable deference as they havebeen endorsed by the Supreme Court of Canada. [14] In my view, two sub-issues are the focus of the identification issue: a. The photo line-up issues. b. The in-court identification issue. [15] In my opinion, as I will hereafter discuss, these two issues interrelate. [16] The first photo line-up sub-issue related to the accused’s photo being visually distinct from the other photos in the array.

TheCrown conceded that the accused’s photo was visibly darker than all others in the array from a colouration point of view. However, itargued that the discrepancy was much more visible in court because the photos were being viewed side by side and not being presentedone by one as was the case at the line-up. The Crown attempted to further buttress its argument by reference to the over-all similarappearance of the other photos presented in the array. [17] Justice Cory’s ‘failure to record the photo line-up’ concern was completely disregarded by officers involved.

Rosenberg, J.A.at paragraph 27 of Hanemaayer made specific and critical mention of the same deficiency with respect to the wrongful conviction hiscourt was contending with.

In so doing he cautioned that a “taped record can provide valuable information for the trier of fact inevaluating the reliability of the identification.” In written argument the Crown submitted that the evidence presented in our case shouldnevertheless be accepted because same “was subject to significant corroboration.” The Crown cited the evidence linking the suspectvehicle to the accused’s residence in such regard, arguing that “in order for the undercover to be in error in her identification she wouldhave had to mistake the accused not just for any other dark haired, bearded, heavy set Caucasian male, but for another such individualwho happened to be driving a vehicle associated to the Accused back to the residence where the Accused lived.” The Crown remindedthe court that officers had followed the suspect’s vehicle back to the accused’s residence after the incident in question. [18] The Court observes that the forgoing evidence is essentially circumstantial in nature.

The officers following the suspect’svehicle only saw the outline or silhouette of the person driving the vehicle they followed. There was no direct identification evidence ofthe accused in such respect. Only the in-court identification of the accused and the photo line-up identification by the undercover witness was direct evidence. In R. v. Deacon (1947) 87 C.C.C. (Man.

C.A.) as referred to in McWilliams Canadian Criminal Evidence (3rd edition, Canada Law Book Inc.) at 5: 10510 the Manitoba Court of Appeal stated as follows: “While the usual rule with regard to circumstantial evidence is that a jury can not act on it unless it is not only consistent with guilt butinconsistent with any other rational conclusion, the rule applies only where the evidence is exclusively circumstantial.

If there be directevidence as well, the circumstantial evidence may be used to support and corroborate the direct evidence even though standing by itselfit is not conclusive.” [19] The central issue with respect to circumstantial evidence always relates to the inferences which can be deduced from suchevidence. Such inferences have to be reasonable whether they contribute to findings of guilt or innocence. So a trier of fact must considerthe full range of reasonable possibilities, including possibilities which are inconsistent with guilt (see R. v. Villaroman, (2016) 2016 SCC33 , SCJ No. 33 (SCC)).

Of course, one must be mindful that all such theories or possibilities must be based on the actualevidence or absence of evidence before the court, not speculation in reference to same. [20] I agree with Defence that there were significant problems with the photo line-up procedure leading up to the in-courtidentification of the accused. I also agree that such flaws negatively impact the weight of the in-court identification per se as theysuggest that the undercover’s in-court identification evidence may be unreliable. While such a conclusion on my

part is not based oncredibility, I agree with Defence that her in-court identification may have been induced by exposure to the flawed photo line-up processwhich was clearly inconsistent with Justice Cory’s Sophonow recommendations. Given the officer’s very brief, approximately thirtysecond, nighttime observation of the suspect and her evidence that such person had worn a toque and a hoody that covered his entireupper body to his hip area, one must look for distinguishing features.

The only such features provided were very general in nature; ablack beard and a heavy built body type, and an estimate that such person was six foot three in height. None of these can be described asparticularly distinguishing in the conventional sense. For instance she didn’t and couldn’t describe the suspect’s hair style or the lengthof his hair, whether he wore any distinctive tattoo or tattoos, or the color of his eyes. She provided no indication of the suspect’s age. Theman she saw was not very atypical in appearance.

He was bigger than most men but otherwise quite nondescript in reference to the norm. [21] On cross-examination, the officer also frankly admitted that she had actually struck out a reference to the suspect’s weightmade in her personal notebook after the incident, implying that she was then actually very unsure of how heavy the suspect was. The

Court agrees with Defence that a weight range could and probably would have been substituted if the witness felt only slight uncertaintyabout the suspect’s exact weight. The witness’s reliability was further compromised by her tacit and frank admission on cross-examination that the suspect was not as heavy as the accused, in reference to the latter’s actual appearance in the courtroom. [22] In

summary, the weight to be conferred on the undercover witness’s in-court identification evidence, was significantlycompromised by the flawed photo line-up process, particularly the ‘stand out’ photograph of the accused, because the photo line-upidentification took place only a week after the incident, while the witness’s courtroom identification was made more than two years later,suggestive of likely unreliability.

The Court is of the view that it is likely, given the known frailties of long-term memory, that the witness was really remembering the ‘stand out’ photo and not what she had only momentarily observed on the evening of May 24th,2016. DOES THE CIRCUMSTANTIAL SURVEILLANCE EVIDENCE NEVERTHELESS PROVE IDENTITY BEYOND AREASONABLE DOUBT? [23] The accused testified on his own behalf denying involvement in the drug transaction. As mentioned earlier, he also provided aspeculative exculpatory explanation respecting how his father’s van might have come to be involved in the incident.

The Crownsubmitted that his testimony was far-fetched and unworthy of belief because it was highly improbable that any person, other than theaccused could have been involved. The Crown argued that “the Court should, in accordance with R. v.

W.(D.), focus on thereasonableness of the explanation that was provided by the Accused rather than on the absence of other evidence that might havebolstered his position had it been made available.” [24] The Crown further characterized the accused’s testimony as alibi evidence and invited the Court to draw on adverse inferencefrom the accused’s failure to make a timely disclosure of it to the Crown so police could be instructed to investigate. The Court is of theopinion that the accused’s evidence cannot fairly or reasonably be characterized as alibi evidence.

Firstly, the Court must be mindful thatsuch evidence was only received under cross-examination, not direct examination. Secondly, I also must be mindful that the accused’sevidence does not constitute alibi evidence as was defined and described by the Supreme Court in R. v. Hibbert, (previously referenced).As such, the Crown’s argument that Mr. Penney deliberately fabricated an alibi (which he had not previously shared with the Crown) isunsustainable.

And of course, an alibi must be determinative of the final issue of guilt or innocence and that is certainly not the caserespecting any of the evidence provided by the accused. Mr. Penney never claimed that he could provide proofs for any of his alternativetheories respecting his whereabouts on the evening in question; he didn’t postulate in this respect, he just speculated about possiblescenarios in response to Crown questioning. The same approach was taken respecting Mr. Krahn’s possible involvement.

Overall hegave cogent reasons why he was unable to provide more substantive evidence with respect to his or Krahn’s whereabouts on the incidentdate. The Court found the very lengthy effluxion of time between the incident and his actual arrest to be particularly compelling. [25] The Crown further submitted that the accused’s evidence was insufficient to raise a reasonable doubt when viewed in thecontext of the over-all case (the second W.(D.) factor). The Court disagrees with such a conclusion. My principle reasons for doing so arebased on testimony elicited from the accused by the Crown on cross-examination.

This testimony was in response to two further subjectsthat were not canvassed by Defence during the accused’s direct examination. The questions were in reference to his brother and his 2016employment related income. [26] The accused confirmed that his brother Derek had lost his children because of involvement with drug addiction, that he hadbeen jailed for drug related offences.

The accused also testified that because he was concerned about his brother and wanted him toreceive help, that he had told his parents about his drug abuse problem when his brother was seventeen years old causing his brother tostop speaking to him thereafter. I believed the accused’s testimony in such respect.

As such, it makes it very difficult for me to believethat the accused would have himself become a drug dealer and thereby himself become a threat to susceptible people like his ownbrother and their families. [27] The second issue I averred to, the 2016 annual income, also bolstered the accused’s credibility. This was because he produceda T4 slip showing income from ABC Kitchen Exhaust Cleaning Inc., his father’s company, as being $71,000.

This certainly suggests thatthe accused was enjoying a solid middle class income in 2016 and presumably, because of his family affiliation, would very likelycontinue to do so in the future.

To my mind this would present a very good reason why the accused, a seemingly intelligent young man,would not likely deal in drugs or if he did, utilize his father’s “marked” company van for drug dealing purposes. [28] Accordingly, I conscientiously am compelled to state that I have a reasonable doubt with respect to the accused’s involvementin this drug related offence on two levels of W.(D.) analysis, both the second and the third considerations. [29] The second because I found his over-all evidence to be generally forthcoming and seemingly credible.

I reiterate, hisexplanation for not being able to confirm what the Crown called his ‘alibi’ (that he may have been at work on the evening in question),rung true - that his father’s company was a small old school company and did not keep electronic records and because he wasn’t arresteduntil November 2016, some five months after the incident, it was understandable why he could not remember exactly where he was on the evening of May 24th. [30] As for the third W.(D.) consideration in relation to the corroboration of the in-court identification evidence, I do not share theCrown’s opinion. I believe Mr.

Penney’s testimony respecting the possibility that other persons may have had access to his van doescreate a reasonable doubt as defined by the Supreme Court of Canada in the R. v. Lifchus case (1997) (SCC), 3 S.C.R.320: “A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based onreason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient.

In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.”

[ 31 ] Justice Cory, speaking for the court, then continued with these words: “On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such as standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.” (paragraph 39) [ 32 ] This is a case where I feel it appropriate to give the accused the benefit of the doubt because even if I were satisfied that the accused was probably the man involved in the transaction, I cannot say that I know with certainty that such was the actual case.

Indeed, this case may provide proof, as Mark Twain opined in his famous adage, that truth can often be stranger than fiction simply because we don’t meet it as often. “Original signed by:” CORRIN, P.J.