r v. Aaron SINARE, 2014 QCCQ 13209

R. c. Sinare 2014 QCCQ 13209 JM 2885 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-057708-114 DATE: April 25, 2014 ______________________________________________________________________ PRESIDING: THE HONOURABLE ÉRIC DOWNS, J.C.Q. ______________________________________________________________________ Her Majesty the Queen Prosecutor v. Aaron SINARE Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The accused was initially charged on three counts of robbery (s. 344(1)

b) Cr.c. ) and one count of using an imitation firearm while committing an indictable offence, here theft (s. 85(2)a)

(3) Cr.c. ). [1] [ 2 ] The substance of this case turns on the question of identification. [ 3 ] Following the crown’s case, the defense raised a motion for dismissal relative to the count of robbery committed on December 15, 2010 (the third count) and the count pertaining to the use of an artificial firearm (the fourth count). The prosecution consented to the motion and the Court accepted it. [ 4 ] What follows are the reasons for judgment on the remaining two counts. FACTS Overview [ 5 ] On December 3, 2010, two robberies of striking similarity took place.

The first occurred at around 8 p.m. at a tanning salon located at 255 Dorval Avenue ( Bronzage Melric) and the second transpired approximately an hour later at a tanning salon located at 1144 Marcel Laurin Boulevard ( Salon de Bronzage Point-Soleil ). [ 6 ] Similarities between the two robberies extend beyond the type of business targeted. In both cases, the acts were perpetrated by a male in a dark coloured hoodie who spoke French to the victims. [ 7 ] The witnesses’ ability to recognize and identify the perpetrator of these two robberies lies at the heart of this case.

As such, a review of the evidence provided by both parties is integral determining whether a case has been proven beyond all reasonable doubt against the accused. THE CASE OF THE PROSECUTION Monia Ghairi, First Victim [ 8 ] On December 3, 2010, Ms Monia Ghrairi (“Ghrairi”) was working alone at the front desk of the tanning salon Bronzage Melric . The Bronzage Melric , owned by Mr. Eric Peach (“Peach”) is connected by a sliding door to the hair salon (also owned by Peach) located next to it. During the event in question the sliding door between the tanning salon and the hair salon was open.

There were three (3) people working in the hair salon that evening: Peach, his wife and an assistant. [ 9 ] At around 8:00 p.m. a man entered the tanning salon. He was wearing a grey hooded sweater and had a scarf pulled tight across his face. His hands were in his pockets. The hood was pulled low over the man’s brow and his facial features were further obstructed by the scarf which covered the lower half of his face; from the tip of his nose downwards.

[ 10 ] The man approached Ghrairi, who was seated behind the cash register. According to the witness the man spoke the following words to her at that time: “J’aurais besoin de la caisse, s’il vous plaît”. Ghrairi responded with the question “What?”, prompting the man to repeat his request. In response to this repetition Ghrairi replied that she would need to get permission from her boss.

She then ran through the sliding door into the hair salon in order to inform Peach of the situation, prompting him to give chase. [ 11 ] At this point, 911 was called and the police were informed of the night’s events. [ 12 ] Ghrairi described the man as a non-caucasian male with light brown or tan skin. She clarified that she could not see much of the robber’s face, that she “basically just saw his eyes.” [2] In effect Ghrairi was only able to see from the bridge of the robber’s nose to just above his eyebrows. She claimed to have paid particular attention to his eyebrows and eyes.

The witness described the robber’s eyebrows as thick and bushy, but well-shaped. She described his eyes as dark brown in colour. By her reckoning the individual was around five feet ten inches (5’10”), perhaps taller, and of medium build. She stated: “He’s not a skinny person and he’s not too big.” [3] [ 13 ] Ghrairi described the manner in which the robber was dressed. She stated that he was wearing a “two-sleeved hoodie” which was grey in colour.

Ghrairi clarified that the hoodie was “not grey ‘foncé’, mais comme gris, grey”, and, upon prompting by the court, she defined the colour as a light grey. [4] She did not see any visible logo on the hoodie. [ 14 ] The witness described the scarf worn by the robber as “black and I guess like des petits pois blanc” but clarified that it was “not like actual polka dot [...] like it has a little colour [...] It wasn’t a full shade of black there was a bit of a different colour in it also, like a white.” [5] [ 15 ] The robber did not remove his hands from his pockets during the entire encounter. [ 16 ] The witness described the robber as not sounding local when he spoke to her in French.

In her opinion he had a French accent. She described his voice as soft and further recounted that he was not rude to her. [ 17 ] Ghrairi acknowledged that she had made two statements to the police.

The first statement was made on the night in question; the second occurred, by her reckoning, at her home one (1) to two (2) months after the event when she was shown a photo line-up and asked to identify the robber. [ 18 ] The visit to Ghrairi’s home in order to complete the photo line-up took place on May 19, 2011. [6] Ghrairi recounted that she was not able to select an individual when first shown the line-up because she had not seen the robber’s full face during the course of the December 3, 2010 event.

For this reason, the police officer conducting the line-up modified the manner in which she examined the photos. [ 19 ] Ghrairi described the modification method employed by the officer in the following manner: “I didn’t see him fully...I didn’t see his whole entire face, so what we did is we took a paper and went through each picture, and kind of covered the areas that I saw.” [7] [ 20 ] As a result of the modification to the manner in which she viewed the photo line-up Ghrairi was able to make a selection. Out of the eight (8) individuals depicted in the line-up she selected photo number six (6).

When questioned as to why she chose this particular photo, the witness stated: “because what I saw the most was his eyes and that’s the eyes I...I saw, I guess.” [8] [ 21 ] On the photo line-up itself Ghrairi wrote the following comments: Picture #6 While covering the nose and mouth looks the most like the man that came in that day maybe a bit darker, but he’s the one that caught my eye at first by the look in his eyes and the way his eyebrows are shaped . [9] [ 22 ] The photo line-up process was by the witness’s estimation short, between two (2) to five (5) minutes in duration. [ 23 ] The witness was asked by the prosecution to look around the courtroom in order to see if she could identify the man who came into the tanning salon on the evening in question.

She identified the accused and offered the following explanation: “It’s because when I walked in here today also, I recognized...just, I was... they told me to look in people’s eyes, if that’s what you notice the most and I looked around and that’s what appealed to me the most, I guess.” [10] Ghrairi added a little later on: “It sounds maybe weird, but it’s really the eyes and the way that...they are.” [11] The witness stated when further clarification was requested by the defense that she was a hundred percent (100%) certain that the individual she had identified was the man she had encountered on December 3, 2010 at the Bronzage Melric . [ 24 ] In cross-examination the witness made a number of clarifications.

She estimated that the entire event, from the moment the individual walked into the tanning salon up until she ran through the sliding door, was a period of less than two (2) minutes, and more likely closer to one (1) minute.

Upon further questioning by the defense, Ghrairi estimated that she had an opportunity of forty-five (45) seconds to observe the would-be robber, that she had never before seen the individual and that she had found the events of the evening stressful. [ 25 ] It was also revealed in cross-examination that Ghrairi had written the following in response to the question: Would you be able to recognize the robber if you saw him again?: “Juste s’il revenait avec les mêmes vêtements, puis sa face était couverte, mais pas s’il était dans la rue.” [12] The witness added that, to her knowledge, she has not seen the individual who came into the tanning salon in December of 2010 again, nor does she believe that she would be able to recognize the robber if he passed her in the street.

Eric Peach, Witness

[ 26 ] Peach is the owner of the Bronzage Melric and the adjoining hair salon Concorde . He was working at the hair salon on the night of December 3, 2010. Peach affirmed that Ghrairi ran through the door connecting the tanning salon to the hair salon in order to tell him that a robbery was in progress. He moreover confirmed that this exchange led to him running back through the sliding door and into the tanning salon in an attempt to catch the man. [ 27 ] Peach testified that as he ran into the tanning salon the individual was running out the front door and into the parking lot.

Peach recounted chasing the man through the parking lot where he then made a right onto Dorval Avenue. [13] The witness was at no time able to catch up to the individual; however, he claimed that the robber remained in sight until the street corner, 25 to 30 feet away from the salon. Peach turned the corner and was no longer able to see the man. Following a short conversation with an elderly couple, Peach was led to believe that the man he had been chasing had entered an apartment building on Dorval Avenue. [ 28 ] The witness was only able to see the individual from the back.

As such he gave the following description of the man “he was skinny, he had a hood on [...] [14] and a bit later “ [...] he had a hoodie on, maybe with jeans [...] from the back, it was a dark kind of hoodie [...] he was shorter than me [15] [...] thinner than me.” [16] [ 29 ] During the defense’s cross-examination Peach clarified the following: that Ghrairi was “a bit frantic” when she informed him of the robbery in progress and that he did not actually see the individual enter a building.

Melissa Romera, Second Victim [ 30 ] On the night of December 3, 2010 Ms Melissa Romera (“Romera”) was working alone at the Salon de Bronzage Point-Soleil . Romera was in the back of the tanning salon when she heard the alarm signal that someone had walked into the salon; this was around 9 p.m. Romera walked to the front of the salon and sat down at the front desk. The individual then spoke to her, requesting “la caisse”. To this Romera replied: “This is my job. Does this really need to happen?” [17] The individual then repeated: “la caisse”.

She then opened the cash register and handed the paper money within it to the robber.

The robber then exited the salon, turned right and headed down the street. [ 31 ] A video was entered into evidence and reviewed by the Court on two occasions, once in the presence of Romera and the second following the closing arguments of both parties. [18] Upon viewing the evidence the Court acknowledges that the robbery lasted no longer then 48 seconds. [ 32 ] After the robber left the salon, Romera called the police. [ 33 ] Romera was unsettled by the appearance of the individual from the moment he walked in because, as she stated in her testimony, “he was fully dressed, from head to toe, covered.

Normally, when I have clients come in, you can see their faces quite well. Whereas this client was covered”. [19] She further told the court that she had never seen the individual before the night in question. [ 34 ] The witness testified that the robber’s face was mostly covered. As such, she was only able to see his eyes and eyebrows. Romera described the robber’s eyes as large, dark brown in colour and “almost droopy”. She described his eyebrows as thick and brown in colour. Given what she could see, Romera determined that the individual was darker skinned but not black.

She described his skin tone as “darker tanned skin”. [ 35 ] She stated that the robber was not a tall man, and described him as average height and weight. Romera estimated that the man was likely similar in height to herself, and gave her own height as five feet five inches (5’5”). [ 36 ] In court the witness estimated that the robber was under thirty (30) years of age but not a teenager. In the words of the witness: “Just by the ...his posture and his... the composure, he did not seem to be an older gentleman. He seemed below thirty. But he was not a teenager.

So I would give anywhere between twenty-two (22) and ... and I don’t know... Definitely not a mature, mature adult. Then nor was he a teenager. So in-between them.” [20] [ 37 ] Romera testified that the robber was dressed in the following manner: “Fully covered, he was wearing a thick mailed dark gray hoodie, completely up until...probably around his eyebrows. And then, underneath his hoodie, he had a thick scarf, which covered all the way up to his eyes.” [21] She said the scarf was dark in colour, but could not remember the exact colour.

Additionally, the witness testified that the robber was wearing gloves. [ 38 ] The thief had his right hand in his pocket for the entire event, which the witness understood as an implied threat. [ 39 ] The witness described the robber’s voice as low and assertive. She clarified that he had an accent when he spoke French and further described it as “ethnic”. [ 40 ] Romera made two declarations to the police.

The first declaration was made the night of the event and the second a number of months after the robbery during the course of a photo line-up. [ 41 ] The photo pack line-up took place at Romera’s home on May 18, 2011. [22] The witness testified that upon being shown the line-up she was immediately drawn to picture number five (5). She clarified that she was drawn to number five (5) without any modification to the examination process, but that it was only following modification of the manner in which she viewed each photo that she was able to positively select number five (5).

According to the witness, the officer conducting the line-up offered to modify the photos by using two pieces of paper to cover the majority of each photo. Romera stated that she was better able to identify the individual based on his eyes alone. [ 42 ] The witness testified that the entire procedure lasted a few minutes. [ 43 ] Romera wrote the following statement on the photo line-up report: “His eyes look the closest to the suspect (5). It is hard to tell because he was wearing a hood covering his forehead and a scarf covering his mouth and nose.” [23]

[ 44 ] The witness testified that she had seen the robber two times. The first was the night of the robbery and the second was the first court date in the present case against the accused.

Romera claimed that, in a waiting room full of people, she was able to recognize the accused as the robber. [ 45 ] The witness made an in-court identification of the accused stating, “This is the same individual that I recognized from the previous time and those are the eyes.” [24] The witness stated that she was a hundred percent (100%) certain that the individual she identified in the court room was the person she had seen in court the previous year. [ 46 ] In cross-examination the witness estimated that the robbery had lasted approximately ten (10) minutes.

When asked for further clarification by the defense, Romera stated that she had observed the robber for the entire period in which she was seated at the front desk. Romera further revealed on questioning from the defense that she had found the event, from beginning to end, highly stressful. She testified: “I still feel stressed, when certain people approached me in certain ways.” [25] [ 47 ] Romera’s declaration to the police on December 3, 2010 was again highlighted during cross-examination.

The witness acknowledged that she had written on the night of the event the following statement concerning her estimation of the robber’s age. “As I was sitting at my reception desk, a teenage male of eighteen (18) to twenty (20), wearing a dark hoodie...” [26] came in. Jean-Phillippe Huot, Detective Sergeant SPVM [ 48 ] In January 2011, Detective Sergeant Jean-Phillippe Huot (“Huot”) was mandated to act as the principal investigator in three tanning salon robberies.

Huot described the investigation which led to the arrest of the accused. [ 49 ] Using the description given to them by various witnesses, the police had determined that they were looking for a man who matched the following description: [...]Arab man, with a French accent. Every time he was asking for the cash; and according to the plaintiffs, the man had an olive or tan skin tone.

Since the person was hidden with a scarf on the face, it brought their attention to the eyes and the nose and the eyebrows of the suspect as being bigger . [27] [ 50 ] The investigation had been centred, in part, around 275 Dorval Avenue because of Peach’s comments to police that he had lost sight of the suspect at that address. Huot testified that he had questioned the maintenance person of the apartment building located at 275 Dorval in order to verify whether any person in the building matched the suspect’s description.

According to Huot this line of investigation was initially fruitless. [ 51 ] On May 18, 2011, however, Huot’s colleague, Constable Dany Poirier (“Poirier”), in responding to a noise complaint at apartment 305, 275 Dorval Avenue, came across the accused who, in Poirier’s opinion, matched the description of the suspect. [ 52 ] Based on the possibility that the accused was the man who had robbed the tanning salons on December 3, 2010, Huot obtained a search warrant for apartment 305, 275 Dorval.

The search took place on June 9, 2011 and two items were seized from the apartment: a grey hoodie and a pair of black gloves. [28] [ 53 ] Huot conversed with the accused during the course of the June 9, 2011 search. He testified that he had originally communicated with the accused in French, but at some point, switched to English. [ 54 ] Following the search the accused was arrested, interviewed and then released on a promise to appear before this Court. [ 55 ] Huot, using a program called Forcefield, created two photo-line-ups featuring the accused.

The investigator testified that photos in the line-up can be modified. He clarified that the photos used in line-ups are generally modified to remove the numbers which the SPVM give to arrested suspects, and occasionally modified to ensure that the foils closely match the description of the suspect. [ 56 ] The line-up created for Romera was based on a photograph of the accused from 2008. [29] Huot modified the computer generated line-up shown to Romera in two ways: (1) he hid the SPVM numbers of each individual and (2) he mixed the order of the photos twice.

In the line-up created for Romera the accused appears as number five (5). [ 57 ] Huot conducted the photo line-ups at the homes of the two plaintiffs. He gave the following account of his instructions to Romera: “First of all, I read the whole document, specifying that the person could not be—might not be—present or that the description might be different because it was an old picture.

And I asked her if she had any questions and, after that I showed her the photo line- up.” [30] [ 58 ] Huot affirmed that he modified the manner in which Romera examined the photo line-up by covering the forehead and the mouth and nose of each individual with two sheets of paper. [ 59 ] The photo line-up created to show Ghrairi was made by “forcing” a photograph of the accused taken on May 15, 2011 into the line-up.

The line-up was modified in two ways: (1) the number associated with each photo was masked; and (2) the background of the photo in which the accused appears was modified to match the background in the photos of the foils. In the line-up created for Ghrairi the accused appears as number six (6). [ 60 ] Huot testified that he gave Ghrairi instructions similar to those he had given to Romera, and that he similarly modified the manner in which she viewed the photos with two pieces of paper.

In his opinion, Ghrairi arrived at a conclusion within approximately thirty (30) seconds to a minute. [ 61 ] During the defense’s cross-examination of the witness the description of the suspect used by the police following the events of

December 3, 2010 was revealed as being: Male, in his twenties, possibly Arabic, around a hundred and seventy-five centimetres (175 cm), seventy kilos (70 kg), French, a French accent or Arabic, had a grey coat, woody [sic] with a dark hood, dark scarf on the face, dark brown eyes, dark skin, thick eyebrows.

In an event [sic], he’s wearing gloves. [31] [ 62 ] Upon further questioning from the defense the witness clarified that the seized hoodie had a dark band along its edge and that a small logo appeared on its chest. [ 63 ] The witness additionally clarified in cross-examination that Romera did not select an individual from the photo line-up until after he modified each photo using the two pieces of paper. The witness affirmed that the process was over in a matter of minutes. In his estimation the entire process was no longer than five (5) minutes. Huot took no notes during Romera’s examination of the line-up.

Dany Poirier, Constable SPVM [ 64 ] Poirier responded to the 911 call made on December 3, 2010 from the tanning salon The Bronzage Melric on Dorval Avenue. [ 65 ] He testified to encountering the accused at apartment number 305 at 275 Dorval Avenue in response to a noise complaint made on May 15, 2011. Poirier stated that when the accused answered the door he was struck by his appearance which, according to him, corresponded to the description given for the robber on December 3, 2010. [ 66 ] Poirier spoke to the accused in French on May 15, 2011 regarding the noise complaint.

According to Poirier the accused was cooperative and communicated with them in accented French. [ 67 ] The witness was unable to discern the exact nature of the accused’s accent, but thought it might be Arabic, or English. [ 68 ] No report was made concerning the noise complaint; however Poirier testified to filing a complementary report explaining that he had encountered an individual when investigating a noise complaint who, in his opinion, matched the description of the robber from December 3, 2010. [ 69 ] Poirier also assisted in the June 9, 2011 search of 305-275 Dorval Avenue and the subsequent arrest of the accused. [ 70 ] The witness clarified during the defense’s cross-examination that he had read the accused his rights in English during the June 9, 2011 arrest, because he believed the accused was more comfortable in that language.

THE CASE OF THE DEFENSE Aaron Sinare, the Accused [ 71 ] In December of 2010, the accused was living at 275 Dorval, apartment 305 and working as a renovator five (5) days a week. [ 72 ] The accused testified that he did not commit the robberies that took place on December 3, 2010. He continued that he first became aware of the tanning salon robberies when he was arrested for them on June 9, 2011. The accused stated that he had no specific memory of what he was doing or where he was on the night in question. [ 73 ] The accused affirmed that he had been to the tanning salon on Marcel-Laurin before.

He explained that his girlfriend had at one time been a patron of the salon and he had on occasion accompanied her and waited for her in the waiting room. The accused testified that he had never before been inside the tanning salon on Dorval Avenue, but that he had walked past it many times. [ 74 ] After viewing the video taken from the robbery at Marcel-Laurin, the accused commented that he did not recognize himself as the person in the video.

He claimed that the individual in the video was broader-shouldered than him and later added that he did not own a hoodie similar to the one worn by the robber in the video. [ 75 ] The accused directed the Court to a small scar he has to the left of his left eye. [ 76 ] By the accused’s calculation, he is five feet ten inches (5’10”). [ 77 ] The accused testified that he had never seen Romera, nor Ghrairi apart from the court dates relative to the present case. [ 78 ] On cross examination from the prosecution the accused acknowledged the following previous convictions: 78.1.

As an adult: obstruction of justice, breaking and entering, assault on an officer, possession of an illegal weapon, breach of conditions and resisting arrest; 78.2. As a young offender: assault with a weapon, resisting arrest, assault on an officer, and robbery. [ 79 ] During cross-examination the accused also stated that his abilities in the French language are minimal and he additionally admitted that he had plucked his eyebrows in the past but that he no longer did so.

ANALYSIS Legal Principles in Identification Evidence [ 80 ] The trier of fact determines the weight and credibility accorded to eyewitness testimony. When identification is contested, such

as in the case at bar, case law dictates that particular care must be taken by the trier of fact when exercising this discretion.[32] [81] The vagaries of human memory and its role in erroneous identification have long plagued the justice system. The court’sawareness of this failing has led it to regularly define identification evidence as inherently frail and this definition has become, inessence, trite law. In R. v.

Burke, (SCC), [1996] 1 S.C.R. 474, Sopinka J. made the following observation: [52] 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": In R. v.

Spatola, Laskin J.A. (as he then was) made the following observation about identificationevidence (at p. 82): Errors of recognition have a long documented history. Identification experiments have underlined the frailty of memory and thefallibility of powers of observation. Studies have shown the progressive assurance that builds upon an original identification that maybe erroneous....

The very question of admissibility of identification evidence in some of its aspects has caused sufficient apprehension insome jurisdictions to give pause to uncritical reliance on such evidence, when admitted, as the basis of conviction....[33] [Emphasis inoriginal.] [82] As Charron J.A. (as she then was) of the Ontario Court of Appeal stated in R. v. Miaponoose (1996) (ONCA), 110 C.C.C (3d) 445, (Ont.

C.A.): “[e]yewitness testimony is in effect opinion evidence, the basis of which is very difficult toassess.”[34] An eyewitness’s opinion as to his/her identification of the suspect is only valuable insofar as that eyewitness is able to makereference to discernible facts related to the perpetrator’s appearance.[35] The value accorded to eyewitness testimony is assessed andanalysed, therefore, with reference to the various psychological and physiological factors which led the witness to identify theaccused.[36] [83] Hill J., of the Ontario Superior Court of Justice, in R. v. Gonsalves (ON SC), [2008] O.J.

No. 2711 (Ont.S.C.J.) provided a jurisprudential review of the questions triers of fact must ask themselves when they are faced with eyewitnessevidence of contested identification. To wit: [39] Our experience with eyewitness identification evidence has taught us to use discriminating scrutiny for badges of unreliability.Judicially created checklists, based on long experience with the inherent dangers of eyewitness identification evidence, assist inassessment of the circumstances of a specific identification. Was the suspect a complete stranger or known to the witness?

Was theopportunity to see the suspect a fleeting glimpse or something more substantial? (a fleeting glance of a suspect by an eyewitness isgenerally unsatisfactory. Was the setting in the darkness of night or in well-illuminated conditions? Was the sighting by the witness incircumstances of stress? Did the witness commit the description to writing or report the description to the police in a timely way? Is thewitness' description general, generic or vague or is there a description of detail including distinctive features of the suspect and his orher clothing?

Were there intervening circumstances, capable of tainting or contaminating the independence of the identification, betweenthe witness' initial sighting of the suspect and the rendering of the descriptive account to the police or the court? Has the witnessdescribed a distinguishing feature of the suspect not shared by the accused or conversely has the witness' description of the suspectfailed to include mention of a distinctive feature of the accused? Is the eyewitness identification unconfirmed?[37] [84] Triers of fact must, furthermore, remain wary of an eyewitness’s in-court identification of the accused.

In-court identificationhas long been recognized as the weakest form of identification.[38] As the Supreme Court emphasized in R v. Hibbert, 2002 SCC 39 , [2002] 2 R.C.S. 445, the value given to an in-court identification of the accused is limited to threethings:[39] Firstly, it confirms that a witness believes that the accused is the individual he has seen throughout the chain of events, fromthe act itself through all judicial intervention. As such, it is almost valueless as a positive identification.

Secondly, a witness’ inability toidentify the accused as the perpetrator may mislead the trier of fact into drawing an unjustified adverse inference. Thirdly, a witness’inability to identify the accused in court should carry some weight in favour of the defense. [85] It was recently affirmed by my colleague, Poulin J., in R. v. Haywood, [2014] Q.J.

No. 1974 (CQ), that confirmatory circumstantial evidence can be of use in eliminating many of the dangersinherent to eyewitness identification evidence.[40] In cases, however, where the identification evidence is unsupported by any direct orcircumstantial evidence, the fragility of the proof provided cannot support a conviction based on the reasonable doubt standard.[41] Application of the law to the case at bar [86] When the Court is faced with irreconcilable versions of the same event, it is incumbent upon it to analyse the elements of proofby applying the Supreme Court’s three-part test as described in R. v.

W.(D.) (SCC), [1991] 1 S.C.R. 742. The test is asfollows:

(1) If the Court believes the accused’s version of events, it must acquit.

(2) If the Court does not believe the version of accused,it must then ask itself whether the case submitted by the defense in its entirety raises a reasonable doubt. An affirmative response to thisquestion results in the accused’s acquittal.

(3) Lastly, If the defense is unable to raise a reasonable doubt, the Court must ask itself if thewhole of the evidence produced convinces the Court beyond a reasonable doubt that the accused is culpable of the infraction. [87] In R. v. C.L.Y.[42] the Supreme Court clarified that the three steps of R. v. W.(D.) “need not be religiously followed”. [88] In the present case, although the defense in its entirety could raise a reasonable doubt, the Court will focus instead on the thirdstep of the R. v. W.(D.) test: the broader context of the fragility of the identification evidence.

As a consequence, in light of the whole ofthe evidence brought to trial, the Court is left with a reasonable doubt as to the accused’s guilt. [89] The Court finds that the identification evidence is insufficient to convict the accused for the following reasons:

a) Ghrairi and Romera both had less than a minute to observe the robber. The conditions for observation were less than ideal in that the majority of the robber’s face was covered by clothing. Additionally, both of the eyewitnesses testified that they had found the situation very stressful. Both witnesses stated that they were highly stressed from the first moment that they saw the individual. It is, therefore, not surprising that neither witness was able to provide more than a general, vague description of the robber.

Both witnesses stated that the robber was of medium build with large brown eyes, thick eyebrows and tan skin. Romera was able to give a slightly more specific description when she stated that the robber’s eyes were “droopy”. The two eyewitnesses were both better able to describe the clothes the robber was wearing than the robber himself. When first questioned by the police neither eyewitness believed that she would be in a position to identify the robber if she saw him in the street.

b) The photo line-up declarations by both eyewitnesses do not clearly identify the accused as the man who committed the robberies. Rather Ghrairi wrote: “Picture #6 While covering the nose and mouth looks the most like the man that came in that day maybe a bit darker, but he’s the one that caught my eye at first by the look in his eyes and the way his eyebrows are shaped” (emphasis added). This is not a clear declaration of “this is the man.” Romera’s declaration is equally equivocal: “His eyes look the closest to the suspect (5). It is hard to tell because he was wearing a hood covering his forehead and a scarf covering his mouth and nose”. (Emphasis added.)

c) The five month delay between the night of the event and the photo line-up also makes the identification questionable. The Court recognizes that the police investigators assembled the line-up shortly after deciding that the accused was a possible suspect; however, it is truism that bears repeating that memory does not improve with the passage of time. In a case such as this, where the eyewitnesses are attempting to identify a stranger who stood in front of them for no more than a minute and whose face was almost entirely covered, a five-month period between the act and the line-up is of little service to the resulting identification. [43]

d) Both eyewitnesses identified the accused in the courtroom, and both affirmed that they were one hundred percent certain that the individual identified in the court was the individual who robbed them on December 3, 2010.

Although it is clear that both eyewitnesses were sincere and credible in their testimony and identification of the accused, in-court identification has long been recognized as being of almost no value as a reliable positive identification. [44] In the facts particular to this case, as both eyewitnesses had already identified the accused in the photo line-up, there is no way of knowing if their in-court identification of the accused was the result of their recognizing him as the December 3, 2010 robber, or of their “recognition” of him from the photo pack.

Moreover, continued contact with the accused over the course of the trial has likely served to reinforce their identification of him.

e) Contrary to the prosecution’s position that there is enough circumstantial evidence surrounding the identification of the accused to determine that he is the December 3, 2010 robber, the Court finds that this is not the case. Of the circumstantial evidence before the Court, the most incriminating is Peach’s assertion that the individual he chased from his tanning salon entered the apartment building at which the accused was residing in 2010. Peach, however, did not actually see the accused enter the building.

The second most incriminating piece of circumstantial evidence is the seizure of the grey hoodie and black gloves from the accused’s place of residence in May 2011. These two items of clothing, however, are so generic as to be of no use whatsoever. [ 90 ] The Court would like to take a moment to discuss the manner in which the photo pack line-ups were conducted in this case. Photo line-ups serve an obvious purpose in criminal identification particularly in those cases where the perpetrator of the crime is unknown to the witnesses.

The investigator conducting the line-up should, therefore, make a considerable effort to ensure that the evidence gleaned from the line-up procedure is accorded the weight it deserves. [ 91 ] In The Inquiry Regarding Thomas Sophonow , former Supreme Court Justice Peter Cory gave a list of recommendations for officers conducting photo line-ups. These recommendations ensure that the accused is treated in a fair manner and that the identification made during the course of the line-up is irreproachable.

The recommendations are as follows: • 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 otherthan the one conducting the investigation of the crime should conduct the interviews and the line-ups with the eyewitnesses. Ideal as thatprocedure might be, I think that it would unduly complicate the investigation, add to its cost and increase the time required. At somepoint, there must be reasonable degree of trust placed in the police.

The interviews of eyewitnesses and the line-up may be conducted bythe same force as that investigating the crime, provided that the officers dealing with the eyewitnesses are not involved in theinvestigation 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 otherrecommendations complied with, that would provide adequate protection of the process.[45] [92] These recommendations are not rigid instructions, and as Arbour J. stated in R. v.

Hibbert, [2002]: “What will be required to displace the danger that the jury will give an eyewitness identification weight that it doesnot deserve will vary with the facts of individual cases”.[46] In this case, given the time lapse between the events in question and the trialitself, it may have been useful to have had access to a videotape of the photo line-up. [93] The Court has, however, reached its decision independent of the manner in which the photo line-up was conducted. Theprosecution has not successfully proven beyond a reasonable doubt that the accused is the December 3, 2010 robber.

The circumstantialevidence admitted is, in this case, insufficient to overcome the inherent frailties of the eyewitnesses’ identification of the accused. CONCLUSION: [94] For these reasons the accused is acquitted on counts one and two. __________________________________ Éric Downs, J.C.Q. Me Geneviève BoutetCounsel for the Prosecutor Me Patrick BouletAccused's Attorney Date of hearings: September 23, 2013 and February 28, 2014 [33] R. v. Burke, (SCC), [1996] 1 S.C.R. 474, para 52. [39] R. v. Hibbert, 2002 SCC 39 , [2002] 2 R.C.S. 445. [40] R. v. Haywood, [2014] Q.J. No. 1974 (CQ), para. 53 citing R. v.

Quercia (1990) (ON CA), O.J.No. 2063 (Ont.CA) (Q/L), para. 25. [43] R. c. Burke, (SCC), [1996] 1 R.C.S. 474 [44] R. v. Browne and Angus, (1951) (BC CA), 99 C.C.C. 141 (B.C.C.A.); R. c. Hibbert, 2002 SCC 39 ,[2002] 2 R.C.S. 445.