r v. RALPH LOUIS-JEAN, 2020 QCCQ 1919

R. c. Louis-Jean 2020 QCCQ 1919 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU TOWN OF GATINEAU Criminal and Penal Division No: 550-01-095157-162 DATE: May 19, 2020 ______________________________________________________________________ PRESIDED BY THE HONOURABLE ALEXANDRA MARCIL, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. RALPH LOUIS-JEAN Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Ralph Louis-Jean is charged with three counts of assault with a weapon against three complainants, namely Mathieu Richer, Marc-André Bédard and Marc-André Robitaille, as well as three counts of assault causing bodily harm against the same complainants. [ 2 ] This case concerns identification. The issue is whether the Crown has proved beyond a reasonable doubt that the assailant is the accused. The complainants participated in a photo line-up. Both Richer and Bédard testified that the assailant was the same man as the one who came to Richer’s home to use the phone earlier that night, and that he is the accused.

The defence pleads that the Crown has not proved beyond a reasonable doubt that the assailant was the same person as “the caller”. The main issue is the reliability of the testimonies concerning identification. CONTEXT [ 3 ] The charges stem from an incident that occurred on April 9, 2016, at Richer’s home. After having gone out for dinner at a restaurant, the three complainants were at Richer’s home with Richer’s spouse, when a stranger knocked at the door and asked to use the phone. He stayed between 15 and 30 minutes until they asked him to leave.

According to Richer and Bédard, the caller did not want to leave and had to be urged to do so. When the caller was escorted outside, he threatened to come back. At some point after the caller’s departure, Richer’s spouse went to bed, while the three complainants stayed in the kitchen. [ 4 ] About an hour and a half later, the complainants heard the sound of the glass door to Richer’s home being smashed. They all went outside. The assailant began striking the three complainants with the bat he was carrying.

The assailant was accompanied by a man who, according to Richer and Bédard, was white or Latino and who participated in the altercation. There was also a black man standing about 50 feet away. [ 5 ] The charges of assault with a weapon and of assault causing bodily harm against the three complainants are not challenged. The evidence establishes that the three complainants were struck a number of times with a bat similar to a baseball bat. Richer was struck between five and ten times and testified that the two others were also hit.

Bédard first saw Robitaille receiving a blow and tried to help him before being hit himself. This occurred at least twice. The evidence also establishes that all of them suffered severe injuries. Photographs were admitted into evidence, [1] as well as medical reports.

Richer suffered injuries to his face and his arm. [2] Bédard suffered a head trauma and had a cut to his head about 15 cm long. [3] Robitaille suffered a severe head trauma and serious consequences which, to this day, render him unable to work. [4] ANALYSIS [ 6 ] The danger of wrongful conviction arising from faulty but apparently persuasive eyewitness identification has been well documented. [5] The Court must caution itself regarding the inherent dangers of identification evidence involving photo line-ups. Erroneous identifications do occur, resulting in the wrongful conviction of the factually innocent.

The most well-meaning, honest and genuine eyewitnesses can be and have been wrong. There are a number of such examples in Canadian jurisprudence. The Court must be cognizant of the inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection.

[ 7 ] Following the wrongful conviction of Thomas Sophonow, the commission of inquiry presided by former Supreme Court Justice Cory made a number of recommendations. [6] Those related to photo line-ups, which are particularly relevant to this case, are: • A photo pack should contain at least 10 subjects. The photographs should resemble as closely as possible the eyewitnesses' description. If that is not possible, the photographs 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 process. It is essential that an officer who conducts the photo line-up does not know who the suspect is and also that he is not involved in the investigation. Before the showing of the photographs, the officer conducting the line-up should confirm that he does not know who the suspect is or whether his or her photo is contained in the line-up.

In addition, before showing the photo line-up 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 line-up 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 officers conducting the line-up and the witness.

All comments of each witness must be noted and recorded verbatim and signed by the witness. The officer conducting the photo line-up should not speak to the eyewitness after the procedure regarding their identification or inability to identify anyone. [ 8 ] These recommendations constitute an analytical grid for the Court to assess the probative value to be given to eyewitness identification. The recommendations are not legally binding, as explained by the Quebec Court of Appeal: The Sophonow Report is one among several reports that offer guidelines on identification procedures.

The jurisprudence is clear that these recommendations are not legally binding in Quebec or anywhere else. They seek to improve investigative practices involving eyewitness identification by identifying best practices. It does not follow that identification evidence obtained in a manner that differs from these recommendations is inadmissible.

The probative value of identification evidence is a question of weight. [7] [ 9 ] What will be required to displace the danger that the judge will give an eyewitness identification weight that it does not deserve will vary with the facts of individual cases. [8] The weight of eyewitness identification will vary depending on the circumstances. For instance, the conditions under which an observation is made, the care with which it is made, and the observer’s ability, psychological state, and previous knowledge of the person observed all affect the weight of the evidence.

The weight that should be given to eyewitness testimony is an issue to be determined by the ultimate trier of fact. [ 10 ] Two of the three complainants gave testimonies before the Court concerning the identification. Richer’s and Bédard’s identification evidence is admissible. [ 11 ] Credibility is not the main issue. The Court finds Richer and Bédard to be credible and believes both of them recounted the events to the best of their ability. They both appeared sincere and were not prone to exaggeration, nor did they seem to want to bolster their testimony.

The Court has no doubt regarding their good faith and that they testified as to what they honestly recalled. [ 12 ] As we will see, there are some reasons to be cautious with Richer’s and Bédard’s identification evidence. This has nothing to do with their credibility, but with the reliability of their testimony regarding the identification. [ 13 ] At trial, both Richer and Bédard provided a general description of the caller who went to Richer’s home that night to use the phone. [ 14 ] Richer testified that when the caller arrived, he did not know him and had not seen him before.

The man was taller than him, with black skin, and he was wearing dark jeans and a dark sweater. The man gave his first name as “Ralph.” [ 15 ] It should be noted that the Court has not found what the defence alleges in its Written Submissions concerning Richer’s demeanour and tone. [9] [ 16 ] Bédard testified that the caller knocked on the door not long after they had arrived from the restaurant. He did not know the caller. The individual was black and tall, nearly six foot three. He weighed between 180 and 200 pounds. He was wearing a Nike sweater and black jeans. He had a watch with a Haiti flag on it.

He had a lock of hair sticking out on the side. [ 17 ] The Court considers that Richer and Bédard had an excellent opportunity to observe the caller. [ 18 ] Indeed, the situation was not stressful, nor was it traumatic. The length of their observation is estimated at between 15 and 30 minutes. During that period of time, the caller made one or two short calls, lasting three or four minutes in all. After the phone calls, they all spoke to one another. The distance between the caller and both witnesses was minimal.

In fact, they stood together around a kitchen island, where the lightning was more than adequate. [ 19 ] After some time, the complainants became annoyed with the presence of the caller, so they asked him to leave. He did not want to leave. At that point, Mr. Richer touched the man to escort him out. Outside, they kept talking. The two other complainants came to join them outside. They had a verbal argument on the street that lasted nearly two minutes. Again the lighting was adequate.

There was a light outside above the balcony, as well as street lights. [ 20 ] In such circumstances, the accuracy of observations, not only inside Richer’s home but also outside while the caller was being

escorted out, is considered to be highly reliable. [ 21 ] After the caller’s departure, the complainants feared that he would return. For about 40 minutes, the complainants checked out the window. Then, about an hour and a half after the caller’s departure, the complainants heard the sound of the glass front door breaking. [ 22 ] Both Richer and Bédard testified that the assailant was the same man as the caller who had come earlier to use the phone. [ 23 ] According to Bédard, the assailant was Ralph, the same man that had come an hour before.

He had the same haircut and the same clothes and he was the same weight. [ 24 ] Richer testified that when he opened the door, the same man was there, standing on his balcony with a weapon. He said that he recognized the man that had come earlier, and he declared that it was the same man. It was a black man, taller than him, and thin. [ 25 ] They also testified that the assailant was accompanied by a white or Latino man wearing a hoody, who was shorter and seemed younger.

There was also a third man, standing at the end of the street about 50 feet away, who was bigger and was wearing a leather jacket. [ 26 ] Although both Richer and Bédard testified that the assailant was the same man as the caller, it is vital that their evidence be subjected to appropriate scrutiny.

Some circumstances can potentially impact the accuracy of the witnesses’ observations. [ 27 ] Richer had consumed a number of beers. [10] Although he was not highly intoxicated, [11] at some point during the night he was certainly under the effects of alcohol and possibly under the effects of cannabis. [12] On that evening Bédard was the driver. He did not drink any alcohol, but he had a bit of cannabis. However, there is no evidence that their consumption actually had an impact on their ability to identify the caller or the assailant.

The Court finds that, despite their consumption, both witnesses have shown good powers of observation. [ 28 ] The defence pleads that their identification is tainted by their fear that the caller would come back, that this circumstance is capable of tainting the identification and that the witnesses could have been mistaken in thinking it was the same man. [ 29 ] The Court notes that the evidence given by Richer suggests the opposite. Indeed, when asked if he thought the same man was back when he heard the noise at the door, Richer answered that he could not confirm until the door was open.

His answer suggests that he took the time to identify the assailant instead of jumping to conclusions. [ 30 ] The altercation was a stressful and traumatic situation, where the three complainants were hit and seriously injured. Both Richer and Bédard received blows while witnessing their friends also being struck. They were certainly stressed, scared and traumatized. [ 31 ] However, in assessing a specific identification, the fact that a suspect is a complete stranger or known to the witnesses is a fundamental element.

Indeed, it may be quicker and easier to identify someone that you have already met. [13] If the two witnesses had not had previous knowledge of the accused to make them familiar with his appearance, they might have been in a weaker position to identify him and, consequently, greater care would have to be used. [ 32 ] Here, when the caller left Richer’s home, he was not a stranger to the complainants.

This is crucial in the case at hand. [ 33 ] Shortly before the altercation, both witnesses had a good opportunity to observe the caller, not only in Richer’s kitchen while he came to use the phone but also outside the house while they escorted him out. As explained earlier, Richer and Bédard had an excellent opportunity to observe the caller, for many reasons.

In addition, the period of time between the caller’s departure and the assailant’s arrival was relatively short. [ 34 ] According to the defence, the window of opportunity for Bédard to observe the assailant was limited to a few seconds since he received a number of blows to the back of his head and at some later point lost his glasses. There are no factual grounds for the defence's assertion at paragraph 75(

d) of its Written Submissions, according to which Bédard had only “a window of 5-10 seconds at most” to observe. [ 35 ] Bédard did not lose his glasses at the beginning of the altercation. He had the opportunity to see the assailant striking his friends a number of times and to receive a few blows from the assailant before losing his glasses. In fact, he lost his glasses just before receiving a final blow. This witness had ample opportunity to observe the assailant before being hit and before losing his glasses. [ 36 ] The Court finds that both witnesses had ample opportunity to observe the assailant.

The altercation may have lasted from three to five minutes. [14] The lighting above the balcony and in the street was adequate. [ 37 ] Both witnesses identified the accused in a photo line-up. The procedure in the line-up was less rigorous than what is recommended in the Sophonow Report. However, the Court finds that it was nonetheless adequate. [ 38 ] The witnesses were separated into different rooms before the procedure. No effort was made by Investigator Daniel Paquette to suggest or influence a positive identification by the witnesses of any suspect.

Richer recalls he was told that the picture of the suspect was not necessarily in the booklets. [ 39 ] The process was not videotaped. However, the form titled “ Marche à suivre pour une parade d’identification photographique ” dated and signed by both witnesses is certainly part of the recommended process. [15] The evidence shows that these instructions were read to all witnesses, which is also appropriate. All the witnesses wrote their comments on the forms and signed them. [ 40 ] The photographs were presented by the officer to each witness separately. They were shown sequentially and not as a package.

The number of photographs included in the booklets, which was 12, is also adequate.

[ 41 ] After careful consideration of exhibit P-13, the Court notes that the photographs selected closely resemble the accused. [16] Each of the pictures showed a young black man whose age, hair and features are similar to the accused’s. This is a crucial element to the case. [ 42 ] The officer did not apply all of Justice Cory’s recommendations in the Sophonow Report. The officer knew who the suspect was, and he was involved in the investigation. Also, the whole photo line-up process was not videotaped.

However, as explained earlier, these recommendations are not legally binding. [ 43 ] There is no indication that the police influenced the witnesses or that they followed an improper process. There is no indication that the officer spoke to the witnesses after the process regarding their identification or inability to identify anyone.

The evidence establishes that many safeguards were in place and that Investigator Paquette, who proceeded with the photo line-up, understood and respected his duty to ensure the integrity of the identification process. [ 44 ] The comments made by the witnesses during the photo line-up make it clear that both Richer and Bédard identified not only the caller but also the assailant.

Indeed, Richer wrote the following comment on his form: “ Ralph, lui qui est venu téléphoner, et qui est revenue (sic ) plus tard avec un bâton ”. [17] Bédard also wrote the following comment on his form: " Celui qui est venu faire le téléphone et celui qui étais ( sic ) armé d’un bâton de baseball " [18] . [ 45 ] At trial, Richer testified that he identified the photo of the accused the moment he saw it and that he was sure that it is the same man. He said that he recognized the shape of his face, his facial features, the eyes, everything.

Bédard testified that he recognized the assailant without any doubt and specified that the moment he saw his picture, he did not even need to turn the next pages. He was sure of who it was. [ 46 ] There is no doubt that the accused’s photo in the booklet shows the same man as the accused sitting in the courtroom during his trial. Both witnesses confirmed the identification at trial.

Since the accused was the only black man in the court room, the identification of the accused in the courtroom dock will be given no probative value. [19] [ 47 ] Each of the two testimonies leaves no reasonable doubt in the Court’s mind concerning the identification of the accused as the assailant. [ 48 ] The Court may conclude, notwithstanding the frailties of eyewitness identification, that an eyewitness’s testimony is reliable and enter a conviction on those grounds.

This is so even where the Crown has relied on only a single eyewitness. [20] In the case at hand, the Court finds that each of the two witnesses could have supported a finding of guilt beyond a reasonable doubt. [ 49 ] The defence pleads that collusion between Richer and Bédard may have tainted the identification process and that, accordingly, the Crown should establish on a balance of probabilities that collusion did not occur.

According to the defence, the Crown has failed to meet its onus. [ 50 ] Both Richer and Bédard travelled to the police station together before the identification process, wondering whether they would identify the assailant or not. Both of them testified that they have discussed some aspects of the case on different occasions. They work together and travel together.

The Court has not found what the defence alleges at paragraph 62 of the defence Written Submissions, according to which the witnesses spoke of the incident “every day.” It is not unusual that Richer and Bédard spoke to one another about what they experienced on that night. They are friends, and they work together and travel together. [ 51 ] In this case, the Court does not consider the evidence to be tainted by collusion. [ 52 ] First, Richer’s and Bédard’s testimonies do not appear to have been manufactured. They do not seem to have been memorized.

On the contrary, their testimonies seem natural and sincere. [ 53 ] Second, their testimonies do not appear to have been coordinated. The evidence establishes that the two witnesses did not attempt to match their evidence, since their versions are not identical. For instance, according to Richer, the caller stayed in the house about 20 to 30 minutes maximum, while according to Bédard, he stayed 15 to 20 minutes. According to Richer, the caller made one phone call, while according to Bédard, he made two phone calls.

Richer testified that he physically seized the caller’s arms to escort him out, while Bédard did not agree on this point. Richer stated that, when they heard the noise of the front door breaking, he ran downstairs and, when opening the door, he saw the caller on the balcony with his weapon, backing up, missing a step and falling. Bédard does not seem to have witnessed this incident.

Richer described the weapon as a small stick, brown, 16 to 20 inches long, while Bédard described it as black and the length of a standard baseball bat, approximately 30 inches long. [ 54 ] Third, there is no evidence of a conversation about specific features identifying the suspect. There is no indication of a verbal exchange between them that could have lead them, separately, within an adequate photo line-up process, identifying the picture of the same man among the booklets.

After careful consideration of Exhibit P-13, the photographs used in the photo line-up, the Court considers that even if the witnesses discussed the events that occurred that night, it does not affect the value and the weight of the photo line-up identification. [ 55 ] The Court is aware that it must be very cautious about relying on eyewitness testimony alone to find the accused guilty. It should exercise real caution before convicting someone on this type of evidence alone.

Even with no confirmatory evidence and even though the Court must exercise caution because of the frailties of eyewitness identification evidence, it can nevertheless convict on the basis of eyewitness evidence if it accepts that identification and finds that it proves guilt beyond a reasonable doubt. [ 56 ] In this case, the evidence has established beyond a reasonable doubt that the caller and the assailant are one and the same, namely the accused.

The Court concludes that the prosecution has proved beyond a reasonable doubt all the essential elements of the charges, including the identification. [ 57 ] The accused chose not to testify. There is no explanation that could raise a reasonable doubt. As explained by Justice Sopinka in

R. v. Noble : Some reference to the silence of the accused by the trier of fact may not offend the Charter principles …: where in a trial by judge alone the trial judge is convinced of the guilt of the accused beyond a reasonable doubt, the silence of the accused may be referred to as evidence of the absence of an explanation which could raise a reasonable doubt. If the Crown has proved the case beyond a reasonable doubt, the accused need not testify, but if he doesn’t, the Crown’s case prevails and the accused will be convicted.

IN CONCLUSION, THE COURT: CONVICTS THE ACCUSED on counts 1, 2, 3, 4, 5 and 6. __________________________________ Alexandra Marcil, J.C.Q. Mtre Sandra Bonanno For the Crown Mtre David Anber For the accused Dates of hearing: January 27 and 28, 2020.