R v. Thomas Date:, 2017 BCPC 212

Citation: R v. Thomas Date: 20170714 2017 BCPC 212 File No: 39197-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CLIFFORD ERSON THOMAS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: S. Richards Counsel for the Defendant: S. Sheets Place of Hearing: Duncan , B.C. Date of Hearing: June 12, 2017 Date of Judgment: July 14, 2017

The Issue [1] Mr. Thomas is accused of assaulting Mr. Meyer, and of causing him bodily harm during the assault. The only question iswhether the evidence at trial is legally sufficient to support the conclusion that Mr. Thomas is the person who assaulted Mr. Meyer. The Evidence [2] At about 7:00 p.m. on September 14, 2016, Mr. Meyer disembarked from a bus at a shopping mall in Duncan. As he put downhis bags, he was accosted by an indigenous man in his early 30’s, who challenged him to a fight. Mr. Meyer had never seen his assailantbefore, and there appeared to be no reason for the challenge. Mr.

Meyer tried to back away, but the assailant continued the attack. Punches were thrown, some of which reached their targets, and both men wound up in a wrestling match on the pavement. Mr. Meyersuffered a broken jaw, fractured ribs and many cuts and lacerations. His eyeglasses were broken, and rendered useless, during the fight. An employee of a pizza parlour at the scene came out and said that he had called the police. The assailant fled the scene. [3] Three police officers attended, in two police cars. Constable Ligget attended at the scene and interviewed Mr. Meyer.

Mr.Meyer told him about the fight and pointed to a person standing on the sidewalk across the street, about 50 feet away. Mr. Meyeridentified that person to Constable Ligget as the assailant. Constable Ligget went to speak with that individual. He quickly satisfiedhimself that Mr. Meyer was mistaken, and that the person in question had not been involved in the fight. [4] Corporal Hodge and Constable Congas attended at the shopping centre in a second police car. About 200 metres from thescene of the fight, they found Mr. Thomas.

He had scratches and bruises, was crying, smelled of alcohol, was unsteady on his feet, andwas leaning his head on his arm against the wall of a building. Corporal Hodge detained him for being drunk in a public place, andprovided Constable Ligget with his description by police radio. Constable Ligget advised that he should be arrested for assaulting Mr.Meyer. Corporal Hodge then arrested him and took him to the local RCMP detachment. [5] Mr.

Meyer said that, about 10 minutes after his assailant fled, the police directed his attention to a man seated in the rear seat ofa police car and asked whether that person was the one who had assaulted him, to which he replied in the affirmative. Neither ConstableLigget nor Corporal Hodge referred to such an incident during their evidence. Corporal Hodge said that she never spoke to Mr. Meyer,and that she transported Mr. Thomas directly to the RCMP detachment from the place where she arrested him. Constable Congas did notgive evidence. [6] It is clear that a police officer at the scene directed Mr.

Meyer’s attention to an indigenous man seated in the back of a policecar, and that that Mr. Meyer identified that man as his assailant. However, the evidence does not disclose which officer that was, or whyshe or he chose that method of identification. [7] At the opening of trial, Mr. Sheets asked that Mr. Thomas be seated in the public gallery, rather than in the prisoner’s dock orat counsel table, and I acceded to that request. When Mr. Meyer gave his evidence, the only men in the room were Mr. Thomas, Mr.Sheets, Mr. Richards and me. The latter three are all caucasians. Mr.

Thomas was the only indigenous man in the courtroom. The courtclerk and the sheriff are caucasian women. Two indigenous women were seated in the public gallery. In answer to questions from Mr.Richards, Mr. Meyer described the altercation. The following exchange ensued: Mr. Richards: So, this person who was punching you, can you describe that man? Mr. Meyer: He’s sitting right there. Mr. Richards: Indicating the accused. The Court: Indicating the gentleman in the second row. Mr.

Sheets then raised an objection, on the ground that: … to say …, “identifying the accused”, as my friend did, it confirms with the witness that, well that he has identified the accused …. I asked Mr. Sheets whether he wished to apply for a mistrial, and he replied in the negative. The Jurisprudence [8] Mr. Meyer encountered Mr. Thomas for the first time on the evening of September 14, 2016 - he had no previous knowledge ofhim. Different legal principles apply in cases in which the victim knew the accused before the incident in issue: R v. Smierciak (1946) (ON CA), 87 CCC 175 @ page 177; R v.

Field 2016 BCPC 423; [2016] BCJ No. 2758. I confine my discussion of theapplicable legal principles to cases, like this one, in which the victim and the accused were strangers at the time of the incident in issue. [9] Justice Rowles rendered the dissenting judgment in R v. Reitsma (BC CA), [1997] BCJ No. 2314. However, the Supreme Court of Canada adopted her reasons in their entirety when it allowed the appeal in that case: (SCC), [1998] 1 SCR 769. As a result, her judgment may be taken as a definitive statement of the law in similar cases. Justice Rowles

adopted the following statements of principle: 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 …”. (paragraph 38) The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comes fromwitnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonetheless mistaken.

Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriages of justicethrough mistaken identity.

The accuracy of this type of evidence cannot be determined by the usual tests of credibility of witnesses, butmust be tested by a close scrutiny of other evidence. (paragraph 41) The frailties of eye-witness identification may be most pronounced in cases where the accused was not known to the complainant beforethe offence and where the complainant's opportunity to observe the perpetrator was limited to a brief, stressful encounter. (paragraph 58) 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. (paragraph 59) [10] In R v. Miaponoose (ON CA), [1996] OJ No. 3216; 30 OR (3d) 419, the Ontario Court of Appeal set asideMr. Miaponoose’ conviction and directed an acquittal.

It necessarily follows that the court considered the evidence in that case to belegally insufficient to support a conviction. In that case, a child was sexually assaulted. Three days later, by use of a subterfuge, thepolice induced Mr. Miaponoose to take a ride in a police car, during which the victim had an opportunity to see him. She identified himas her assailant, and repeated that identification at trial. Justice Charron, speaking for the court, said: The pretrial identification procedure in this case was totally unjustifiable in the circumstances.

There may be situations where aconfrontation between a single suspect and a complainant is the only possible way to ascertain whether the suspect can be recognized. Even in such exigent circumstances, every effort should be made to maintain as much impartiality as possible and to clearly document alldetails, and all statements made by all parties from the beginning of the identification process to the end. In all cases, the suspect shouldbe presented to the complainant in circumstances that minimize any suggestion that the police believe the suspect is the offender. Here,there were no exigent circumstances.

No efforts were made to ensure some fairness to the process. In Smierciak, Justice Laidlaw said: Anything which tends to convey to a witness that a person is suspected by the authorities, or is charged with an offence, is obviouslyprejudicial and wrongful. [11] In R v. Osborne [2012] OJ No. 3384; 2012 ONSC 4287, Justice Forestell said @ paragraph 31: Two dangers arise from improperly conducted pretrial identification procedures. The first is that a flawed pretrial identification processimproperly influences the choice made by the witness or their level of confidence in their choice.

Such tainting can occur intentionallyor inadvertently. However, the concern is that the identification or level of confidence is not the result of what the witness recalls, butrather is the result of the biased process employed. The second danger flows from the first. The second danger is that once the evidenceof the witness has been tainted by a biased process, the process may taint any subsequent descriptions, identifications or statements ofconfidence made by the witness.

Here the concern is that the witness’ evidence stems not from the original event, but from the earlier,flawed identification process. [12] Where a witness is asked to participate in an identification process, the witness should not be told, at any stage of the process,whether her identification was correct. To do so can “… only serve to increase her confidence in the accuracy of the identification andthus make her a more convincing witness …”: R v. Hanemaayer 2008 ONCA 580 , [2008] OJ No. 3087; 2008 ONCA 580 @paragraph 26.

Applying the Principles in This Case [13] This is a case in which “… the accused was not known to the complainant before the offence and where the complainant'sopportunity to observe the perpetrator was limited to a brief, stressful encounter”. Particular care must be taken in such cases to guardagainst the risk of mistaken identification. [14] In this case, the procedure followed by the police officers at the scene was clearly inappropriate. It seems a fair inference thatthe man in the back of the police car was Mr. Thomas, but that is not proven.

a. Constable Liggett knew that Mr. Meyer had already made one incorrect identification of his assailant at the scene, and ought to have proceeded with greater than usual care to limit the risk of a second incorrect identification. Instead, one of the officers asked Mr. Meyer if he could identify Mr. Thomas, then seated in the rear of a police car, as the assailant. It must have been obvious to Mr. Meyer that the police regarded Mr. Thomas as a suspect. b. They failed to document the process which they followed.

In any case, such an omission will render it difficult for defence counsel to cross-examine respecting factors which might have influenced the victim to make an incorrect identification. In this case, it was even more difficult for Mr. Sheets to conduct such a cross-examination because the police officers made no reference to the on- scene identification in their evidence. c. It would not have been difficult for the police to employ a more fair and objective identification process. Corporal Hodge detained Mr. Thomas for public drunkenness before Mr. Meyer was asked to identify him as the assailant.

She could have transported him to the detachment without displaying him to Mr. Meyer, photographed him at the detachment, and detained him while a photo pack of similar individuals was prepared for review by Mr. Meyer. [ 15 ] Mr. Meyer’s identification of Mr. Thomas in the courtroom is similarly flawed. It is “tainted” (in the sense described in Osborne ) by the flawed identification process at the scene. Mr. Thomas was the only indigenous male in the courtroom. The problem was exacerbated by Mr. Richards’ comment, quoted in paragraph 7, above. I am conscious that: (

i) Mr. Richards’ comment was conventional; and (ii) it is desirable to have on the record a note of the person identified by the witness. However, that need not, and (for the reasons given in Hanemaayer ) should not, be done until the cross-examination of the witness has been completed. [ 16 ] Mr. Meyer’s identification of Mr. Thomas is legally insufficient to support a conviction. For that reason, Mr. Thomas is entitled to be acquitted. July 14, 2017 _________________________________ T. Gouge, PCJ