R. v. Lough, 2011 ONCJ 22

Citation: R. v. Lough, 2011 ONCJ 22 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. J. Lalonde ) for the Crown ) — AND — ) ) ) charles lough ) Ms. M. Thomas ) for the defendant ) ) ) ) lipson J.: REASONS FOR JUDGMENT [1] Mr. Lough pleaded not guilty to charges of break, enter and commit theft as well as breach of probation. [2] The sole issue in this case is identification. [3] The allegation is that Mr. Lough broke into a dwelling house and stole a child’s piggy bank containing some money.

Theaccused was on two different probation orders at the time and if is guilty of the break and enter, it follows that he was also in breach ofhis probationary term to keep the peace and be of good behaviour. [4] An eye-witness identification of the accused was provided by the homeowner, Joshua Johnston. Mr. Johnston happenedto be in the basement of his home in Ottawa around 2:45 p.m. on October 14, 2010. He heard someone enter the house by the main floorfront door and then go upstairs to the bedroom area on the second floor. Mr.

Johnston quickly determined that this person was not hiswife because the footfalls he heard were too heavy to be those of his wife. As well, he determined that the person was wearing shoes. Hiswife never wears shoes in the house. Mr. Johnston ran upstairs to the main floor and came face to face with a complete stranger, who atthis point was standing by the front door. Mr. Johnston testified that this male was some 14-16 feet away. Mr. Johnston testified that theylooked at each other for “a good two seconds”. Not surprisingly, Mr.

Johnston was startled to see an intruder in his home and his firstreaction was to take a couple of steps backwards. The stranger then fled the house, slamming the front door behind him. Mr. Johnstonwent to put on his shoes in order to follow this individual but, by the time he did, the man was nowhere to be seen. Later in the day Mr.Johnston reported the crime to the police and provided a description of the culprit. Four days later Mr.

Johnston picked out a photographof the accused from a photo line-up. [5] There was also evidence introduced that four days before the break-in, police officers had investigated the accused for anunrelated incident in the same neighbourhood. At that time Mr. Lough was wearing a black hoodie and beige pants. Mr. Johnstondescribed the intruder as wearing a black hoodie and beige cargo shorts. [6] The photo line-up procedure used in this case was videotaped and the tape was introduced into evidence. I note that theprocedure used was very fair.

I am referring to the instructions given to the witness as well as the fact that the photographs were shownsequentially to the witness. Also, the photographs used in the line-up were of individuals with similar hair and facial characteristics.Counsel for the accused did not submit that the photo line-up procedure used in this case was tainted or otherwise unfair. [7] The Crown has the burden of proving beyond a reasonable doubt that Mr. Lough was in fact the intruder that Mr.Johnston confronted on October 14, 2010. Mr.

Lough is presumed to be innocent and is not required to prove anything. [8] Factors which support the Crown’s position that the accused was the culprit include the following: First, the Crownsubmitted, and I agree, that Mr. Johnston was an articulate and honest witness. He was also certain that the accused was the intruder inhis home on October 14, 2010. He said he was “100 per cent sure” that the accused was the culprit and his sincerity is not in doubt. AsCrown counsel points out, Mr. Johnston’s view of the man was unobstructed. The lighting was good. Also, the description provided byMr.

Johnston was rich in detail concerning his physical description and clothing of the intruder. The photo-line-up was conducted justfour days after the occurrence while this traumatic incident was still fresh in Mr. Johnston’s memory. This is not an in-dock identificationcase but one where the police used a fair identification photo line-up procedure. There is some support for Mr.

Johnston’s evidence bythe fact that the accused was seen in the neighbourhood just four days before the break-in wearing similar clothing. [9] It is, of course, the reliability of the eye-witness identification that needs to be scrutinized closely. A trial judge mustalways be mindful of the inherent frailties of eye-witness identification evidence when assessing its reliability. [10] While Mr. Johnston’s demeanour as a witness was most impressive, history teaches that demeanour has virtually nopositive probative value with respect to the reliability of the identification.

Sincerity and confidence does not necessarily translate intoaccuracy. As Arbour J. stated in R. v Hibbert (2001) 2002 SCC 39 , 163 CCC (3d) 129 at 148:

There is a very weak link between the confidence level of a witness and the accuracy of that witness. [ 11 ] There are real concerns raised by the evidence concerning the reliability of the eye-witness identification here. The opportunity for Mr. Johnston to observe the intruder was very brief-just two seconds. The witness was obviously startled at the time at the time he confronted the intruder. He described the intruder as being 5’ 10” -5’ 11”, weighing between 170-180 pounds with a somewhat muscular build and not slender.

The Crown did not call any evidence of the height and weight of the accused at the time of the incident or at the time of his arrest. It is therefore difficult, if not impossible, to assess whether the accused’s height and weight is similar or the same. In fact, the only evidence before the court on this is found in the occurrence report of October 10, 2010 (exhibit 6) and it is inconsistent with Mr. Johnston’s description. The occurrence report states that Mr. Lough is 5’ 8” inches and 132 pounds with a “thin/ slender build”. As well, Mr.

Johnston described the intruder as being a teenager between the ages of 17 and 20. It is agreed that Mr. Lough was 26 years of age at the time of this incident. [ 12 ] Usually in identification cases, there is evidence of when the photograph of the accused used in a line-up was taken. There is no evidence of the date of the photograph in this case. Was the witness picking out a recent photograph of the accused or a much younger Mr. Lough whose facial characteristics may have been different? Mr. Johnston described the intruder as having pronounced blemishes and sores on his face.

The photograph of the accused used in the line-up shows a single mark below the left side of his mouth but there are no apparent blemishes or sores. No evidence was called whether the accused had blemishes and sores at the time of his arrest. The witness said that the intruder had crooked teeth which were stained. All that can be seen in the photograph is a small gap between Mr. Lough’s two front teeth. No evidence was called to establish that he had crooked and stained teeth. An important facial feature for Mr.

Johnston was that the intruder seemed to be “slack jawed” and “seemed accustomed to having his mouth opened”. Mr. Lough is seen in the photograph with his mouth slightly opened, which lends some support for Mr. Johnston’s description. There was an absence of evidence that this is the way the accused usually looks. [ 13 ] In

summary, there are significant discrepancies between Mr. Johnston’s description of the intruder and other evidence in this case concerning the Mr. Loughs physical description. These discrepancies diminish the probative value of the witness’s photo pick- out. As well, the prosecution did not call evidence that could have supported other aspects of Mr. Johnston’s description such as whether the accused had facial blemishes or stained and crooked teeth or whether he was generally slack- jawed. The witness had a very brief look at the culprit. Despite Mr. Johnston’s supreme confidence in his identification of Mr.

Lough, there is insufficient evidence of reliability for the court to find beyond reasonable doubt that Mr. Lough was in fact the individual who committed the break in on October 14, 2010. [ 14 ] There is reasonable doubt on the issue of identification and therefore the charges against Mr. Lough must be dismissed. Released: January 14, 2011 Justice T. Lipson