Her Majesty the Queen - v. -, 2010 SKPC 170

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 170 Date: December 6, 2010 Informations: 40471178 & 40471165 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jason Lee Bird Appearing: Ms. Erin Schroh For the Crown Mr. Carson Demmons For the Accused DECISION M. HINDS , J I. Introduction [ 1 ] The accused, Jason Lee Bird, is charged with four offences occurring on August 25, 2010, at or near Regina. Those offences are as follows:

Information: 40471178 Being bound by a probation order made by a judge of the Province of Saskatchewan on October 13, 2009, without reasonable excuse fail to comply with a condition thereof, to wit, that the offender shall keep the peace and be of good behaviour contrary to

section 733.1(1) of the Criminal Code of Canada . Being at large on his recognizance entered into before a justice or a judge and being bound to comply with a condition thereof, to wit, that the accused shall keep the peace and be of good behaviour, fail without lawful excuse to comply with that condition, contrary to section 145(3) of the Criminal Code of Canada .

Having the care, charge or control of a motor vehicle that was involved in an accident with a vehicle at 1055 McTavish, Regina, Saskatchewan, with intent to escape civil or criminal liability, fail to stop his vehicle and give his name and address contrary to section 252(1) of the Criminal Code of Canada .

Information: 40471165 Have in his possession property to wit: a 1994 Ford Aspire the property of Tanis McNab of a value not exceeding five thousand dollars knowing that all or part of the property was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to sections 354 and 355 of the Criminal Code of Canada . [ 2 ] Constable Chad Anderson, Constable Chadwick Hunt, Eric Harvey, Kaitlin Rossmo and Brad Lerminiaux testified for the prosecution. The defence called no evidence.

At the onset of the trial the Crown and defence provided the Court with the following admissions: 1. Tanis McNab was the registered owner of a 1994 Ford Aspire (the “vehicle”), licence plate 208 HQF, on August 25, 2010. This vehicle is red in colour and has four doors. 2. The vehicle was stolen from Ms. McNab on August 25, 2010 at 9:45 p.m. in the parking lot of Scott Collegiate, in Regina, Saskatchewan. The keys were in the ignition when the vehicle was taken. 3.

The value of the vehicle does not exceed $5,000.00. [ 3 ] The evidence establishes that at approximately 10:25 p.m. on August 25, 2010, the stolen vehicle struck the rear end of a 1984 Dodge Sprint motor vehicle owned by Eric Harvey and registered to his girlfriend, Kaitlin Rossmo, which was parked in front of their home located at 1055 McTavish Street. The rear end of the parked vehicle and the front end of the vehicle were damaged. The air bags in the vehicle deployed. There were two people in the vehicle.

A male was observed to be driving the vehicle and a female, named Megan Carty was the passenger. [ 4 ] There are three issues to be determined. 1. Identity. Has the Crown proved that Jason Bird was the driver of the vehicle which was involved in an accident at 1055 McTavish Street? 2. Has the Crown established that the driver of the vehicle intended to leave the scene of the accident to escape civil and criminal liability? 3. Does the doctrine of recent possession apply to this fact situation? 1. Identity.

Has the Crown proved that Jason Bird was the driver of the vehicle which was involved in an accident at 1055 McTavish Street? [ 5 ] The onus is, of course, on the Crown to prove beyond a reasonable doubt all of the constituent elements of an offence. In this case there is the need to prove the accused was the driver of the vehicle which collided with the other vehicle on McTavish Street and left the scene of the collision. Eyewitness identification evidence respecting the driver was provided from three witnesses, Mr. Harvey, Ms. Rossmo and Mr. Lerminiaux.

The evidence reveals that shortly after the collision between the vehicles occurred around

10:25 p.m., Eric Harvey, Kaitlin Rossmo and Brad Lerminiaux went outside to the scene of the collision on McTavish Street. Theidentification of the accused is based upon the witnesses’ observations of the driver of the vehicle after 10:25 p.m. on August 25, 2010,photo line-up evidence conducted during the early morning of August 26, 2010 and two witnesses in docket identification of the accusedat trial on October 14, 2010.

Such identification evidence requires careful scrutiny by the Court. [6] 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. [7] In R. v. Friesen, supra the Court stated as follows at paragraphs 8 and 9: 8 In R. v.

Burke, (SCC), [1996] 105 CCC (3d) 205 (S.C.C.), Lamer C.J.C. made the following comments at pp. 224-5, regarding the potential pitfalls of identification evidence: 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 proven 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. Regina v.

Sutton, (ON CA), [1970] 3 CCC 152. 9 In R. v. Spatola, (ON CA), [1970] 4 CCC 241 (Ont. C.A.) at p. 249, Laskin J.A. (as he then was) made thefollowing observation about identification evidence: Errors of recognition have a long documented history. Identification experiments have underlined the frailty of memory and the fallibilityof powers of observation. Studies have shown the progressive assurance that builds upon an original identification that may be erroneous...

The very question of admissibility of identification evidence in some of its aspects has caused sufficient apprehension in somejurisdictions to give pause to uncritical reliance on such evidence, when admitted, as the basis of conviction ... [8] Eric Harvey lives with Kaitlin Rossmo at 1055 McTavish Street. On August 25, 2010, a collision occurred on the street infront of his residence. He initially observed a male in the driver’s seat of the vehicle revving the engine of the car, “going at the gears”and trying to reverse the vehicle from the parked vehicle for approximately 20 to 30 seconds. The trunk of Mr.

Harvey’s vehicle wassmashed in. The other vehicle’s front end was also damaged. Mr. Harvey did not recall if the air bag had deployed. Mr. Harveytestified that the police were contacted right away. The police arrived approximately four minutes later. The male driver was not able toreverse the vehicle. Mr. Harvey next saw the male briefly check on the female beside him in the vehicle. He then saw the male exit thevehicle. Mr. Harvey was about two feet from the male and he had a brief conversation with him. Mr. Harvey asked the male if he wasokay. The male responded, “It’s all good”. [9] Mr.

Harvey next observed the male driver go over to and open the passenger door for the female passenger (Ms. Carty) andheard the male say, “Let’s go.” Ms. Carty got out of the vehicle but Eric Harvey observed that she was in no condition to run away fromthe vehicle. Mr. Harvey next saw the male driver run away from the scene of the collision. He also observed the female to brieflywander down the street. At this time the police arrived. He showed the police the direction the male and female went. The female cameback to the scene of the accident. [10] Mr.

Harvey testified that he believes the male driver was not wearing a shirt. He observed the male was wearing a white scarfand had a tattoo on his neck. He noted a strong smell of alcohol on the male’s breath, heard the male to be mumbling when he got out ofhis vehicle and observed the male to stagger when he walked. [11] Mr. Harvey gave a statement to the police later that evening. Mr. Harvey acknowledged on cross-examination that in hisstatement to the police he said the driver of the vehicle had a tattoo on his neck.

Later, on August 26, 2010, at 00:49 a.m., he picked Mr.Bird’s photograph out of a photo line-up consisting of nine photographs. He acknowledged on cross-examination that the photograph ofMr. Bird was the only photograph in the line-up with a tattoo on the neck of a person. [12] In Court Mr. Harvey identified Mr. Bird as being the driver of the vehicle. Mr. Bird was seated in the prisoner’s dock at the

[ 12 ] In Court Mr. Harvey identified Mr. Bird as being the driver of the vehicle. Mr. Bird was seated in the prisoner’s dock at the time. Mr. Harvey testified that he “recognizes everything about him”. Mr. Harvey emphasized that the male “looked right at me when he got out of the car”. [ 13 ] Kaitlin Rossmo also observed that the vehicle had collided with her vehicle. She called 911 and observed two people in the vehicle. She testified that the driver was a male with a handkerchief around his neck, wearing a white shirt. She described the male driver as being five foot, nine inches tall with a shaved head.

She also observed the male get out of the vehicle and attempt to assist the female passenger get out of the vehicle. [ 14 ] Ms. Rossmo was shown a photo line-up at 0:53 a.m., on August 26, 2010. She testified that she thought she was to identify the man who was driving the vehicle. She selected two photographs, one of which was that of the accused. [ 15 ] Ms. Rossmo was not able to identify the accused in Court as being the male she saw in the vehicle and leaving the scene of the collision on August 25, 2010. [ 16 ] Brad Lerminiaux lived at 1048 McTavish Street on the night of the collision.

He was standing at his kitchen sink getting some water and was looking out his kitchen window. Mr. Lerminiaux heard a big bang and observed the vehicle collide with his neighbour’s parked car. After putting on some pants he went outside. He also observed a male driver of the vehicle trying to reverse the vehicle away from the other vehicle for approximately twenty seconds. He then observed the male get out of the vehicle and go to his passenger. The male driver then helped the female passenger get out of the vehicle. The female passenger fell down to the ground several times after getting out of the vehicle.

The male driver helped the female passenger get up from the ground a few times and then ran away towards 5 th Avenue. [ 17 ] Mr. Lerminiaux was approximately fifteen feet away from the male driver facing the passenger side of the vehicle. He described the male driver to be bald with a bit of facial hair, “a bit of a goatee”, of first nations or metis ancestry and approximately six feet tall. Mr. Lerminiaux also testified that once the male driver got out of the vehicle and started running away he observed a tattoo on his neck and arm. He was unable to describe the tattoo. [ 18 ] Police attended Mr.

Lerminiaux’s home and conducted a photo line-up with him at 1:01 a.m. on August 26, 2010. Mr. Lerminiaux selected Mr. Bird’s photograph from the photo line-up. He testified in-chief that he understood that he was trying to pick out “which guy it was” and that the tattoo on the neck of the photograph he selected “stood out”. Mr. Lerminiaux acknowledged on cross- examination that the photograph he picked out was the only photograph of nine he was shown in the line-up of a guy with a tattoo on his neck. [ 19 ] In Court Mr. Lerminiaux identified Mr. Bird as being the driver of the vehicle. Mr.

Bird was seated in the prisoner’s dock at the time. [ 20 ] Constable Chad Anderson arrived at the scene of the collision around 10:25 p.m. He testified that he observed that the front end of the suspect vehicle had collided with the rear end of a parked car. Both vehicles had extensive damage. Both air bags had deployed in the suspect vehicle. Constable Anderson subsequently took a female, Megan Carty from Constable Kreiger who was near the scene of the collision. [ 21 ] Constable Chadwick Hunt became a member of the Regina Police Service on January 6, 2010.

He was on duty with the Regina Police Service on August 25, 2010, working with his field training supervisor, Constable Sebastian. Constable Hunt became involved in conducting a photo line-up with respect to the motor vehicle collision which occurred earlier that evening at 1055 McTavish Street. The accused, Jason Lee Bird was in police custody and was considered by police to be a suspect in relation to the incident on 1055 McTavish Street. The evidence does not reveal why the police considered Mr.

Bird to be a suspect. [ 22 ] Constable Hunt testified that he used a previous photograph which the Police Service had of Mr. Bird as a baseline to create a photo line-up of similar looking individuals. Constable Hunt took into account the suspect’s ethnicity, hair, hair colour, eye colour and any marks on the face such as tattoos. Using an internal police electronic information system a total of nine photographs including that

of Mr. Bird were selected for the photo line-up. Nine black and white photographs of a similar size were put into a booklet [Exhibit P-1]. Each photograph had a number on it, ranging from 1 to 9. No other information was on the photographs. A separate “answer key” which contained the same nine photographs along with the name of the individual appearing in the photograph and their date of birth was also prepared [Exhibit P-2]. Mr. Bird’s photograph was number 2. The answer key is not shown to the witnesses. [ 23 ] Constable Hunt acknowledged on cross-examination that he saw Mr.

Bird in cells prior to arranging the photo line-up. Constable Hunt testified that he personally noticed a tattoo on Mr. Bird’s neck. Constable Hunt also acknowledged that the photograph of Mr. Bird in the photo line-up booklet [Exhibit P-1] is the only photograph of nine with a visible tattoo showing on the neck of an individual. [ 24 ] Constable Hunt showed the police line-up booklet [Exhibit P-1] to four witnesses: Eric Harvey, Kaitlin Rossmo, Bradley Lerminiaux and Dennis Flamont.

Each of these witnesses was instructed that they were about to be shown a group of photographs in relation to: “Hit and Run/MVA”. [ 25 ] On August 26, 2010, at 00:42 a.m., Dennis Flamont was shown the photo line-up and selected photo number 6. Mr. Flamont commented that this photograph “closest resemplance [sic] to person I saw tonite”. Mr. Flamont did not testify at trial. [ 26 ] On August 26, 2010, at 00:49 a.m., Eric Harvey was shown the photo line-up and selected photo number 2.

He had no comments on his selection. [ 27 ] On August 26, 2010, at 00:53 a.m., Kaitlin Rossmo was shown the photo line-up and selected photos numbered 2 and 5. She made no comments on her selection. [ 28 ] On August 26, 2010, at 01:01 a.m., Brad Lerminiaux was shown the photo line-up and selected photo number 2. Reliability of the Photo Line-up [ 29 ] In R. v. Friesen , 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 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. [ 30 ] 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 the identification procedures adopted by the police complied with some of the recommendations of the Sophonow Inquiry and did not comply with other recommendations. For example: 1.

In this case 9, rather than 10 subjects were contained in the photo pack. I am of the view this non-adherence to the Sophonow recommendations did not adversely affect the reliability of the identification procedure used in this case. 2. It appears Constable Hunt prepared the photo line-up based upon a photograph he had obtained of the suspect, Mr. Bird, rather than eyewitness descriptions of the driver. I am of the view this non-adherence to the Sophonow recommendations, alone, did not adversely affect the reliability of the identification procedure used in this case. 3. The photo of Mr.

Bird shows he is an aboriginal man with a bald head, with a mustache, facial hair on his chin and a distinct tattoo on the right side of his neck. While the eight other photographs show aboriginal men of a similar age to Mr. Bird, the 8 other photographs used in the line-up differed from the Mr. Bird’s photograph in three ways: i. One of the eight other photos, number 5, shows a man with a bald head. The other seven photographs show men with some hair which is very short, cut or growing close to the scalp of the individuals. ii. Two of the eight other photos show men with facial hair.

Photo number 1 shows a man with a mustache. Photo number 5 shows a man with a mustache and what appears to be some hair on his chin. Six of the nine photos show men without any facial hair. iii. None of the eight other photos show individuals with a tattoo on their neck. One photograph, number 3, appears to have marks resembling tattoo markings on the left cheek area, just below the left eye. The absence of a neck 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, despite the fact that Constable Hunt and presumably his field training supervisor, Constable Sebastian saw Mr. Bird in cells prior to arranging the photo line-up and observed a tattoo on Mr. Bird’s neck. 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. Bird.

In my view this departure from the Sophonow recommendations significantly adversely affects the reliability of the identification procedure used in this case. 4. There is no evidence before me as to whether or not everything was recorded on video or audiotape from the time Officer Hunt met with each of the witnesses 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. 5. Constable Hunt conducted the photo line-up.

While Constable Hunt does not appear to be involved in the investigation at the scene of the incident it is evident that he knew that Mr. Bird was a suspect and that Mr. Bird’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 departure from the Sophonow recommendations adversely affects the reliability of identification procedure used in this case. 6.

The evidence reveals that before showing the photo pack to the witnesses, Constable Hunt did not specifically advise the witnesses that it is just as important to clear the innocent as it is to identify the suspect. However, it is noted Constable Hunt did 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. I am of the view this instruction partially addresses the need to ensure neutrality of a witness who is viewing a photo pack line-up. As a

result I am of the view this non-adherence to a Sophonow recommendation does not adversely affect the reliability of identification procedure used in this case. 7. In this case the photo pack was presented sequentially and not as a package. Each witness viewed one photograph at a time. This procedure is in keeping with the Sophonow recommendations. 8. In this case there is no evidence that indicates the police officers spoke to the witnesses after the photo line-up. This procedure is in keeping with the Sophonow recommendations. [ 31 ] 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 witnesses’ description of the suspect. Two of the three eyewitnesses who testified observed a tattoo on the neck of the driver. Only the photo of Mr. Bird revealed a tattoo on his neck. 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. Bird. Apart from Mr.

Bird’s photo, only one other individual had a bald head. In addition, apart from Mr. Bird’s photo only two other individuals had facial hair. Significantly, only the photo of Mr. Bird showed a tattoo on his neck. Furthermore, Constable Hunt should not have presented the photo line-up to the witnesses as he knew that Mr. Bird 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 witnesses, particularly Mr. Harvey and Mr. Lerminiaux who selected the photo of Mr. Bird as being the driver of vehicle involved in the collision. In particular, I am of the view the deficient line-up procedure tainted their subsequent photo line-up identification evidence and in dock identification of Mr. Bird 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”. [ 32 ] While I found Mr. Harvey and Mr.

Lerminiaux each testified in good faith and were credible and sincere, I was unable to find that their identification 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. [ 33 ] I find that the Crown has failed to establish beyond a reasonable doubt that the accused Jason Bird was the driver of the vehicle which collided with the parked car at 1055 McTavish Street on August 25, 2010.

As a result of this finding I need not consider the remaining issues. I therefore find the accused not guilty of all charges before the Court. M. Hinds, J