R. v. Sykes, 2014 NSSC 320

Supreme Court of Nova Scotia Citation: R. v. Sykes , 2014 NSSC 320 Date: 20140905 Docket: CRH 410854 Registry: Halifax Between: Her Majesty the Queen v. Kenneth Curry Sykes Library Heading Judge: The Honourable Justice A. David MacAdam Heard: July 7 and 8, 2014, in Halifax, Nova Scotia Written Decision: September 5, 2014 Subject: Criminal law; robbery; evidence; identification

Summary: A bank was robbed by a masked man. He took money, which staff packed along with a dye pack. The accused was subsequently charged with several offences, including robbery, having his face masked with intent to commit an indictable offence, and assault. The evidence of several witnesses who were present during the robbery was inconclusive as to the robber’s skin colour. The bank’s surveillance video footage was also inconclusive, as were photographs derived from it.

An investigating police officer who was familiar with the accused from a previous matter viewed the surveillance footage and concluded that the accused was the robber. This was based on the physical features and skin tone visible through openings in the mask, as well as familiarity with the accused’s height and build and reference to witness statements as to the robber’s weight and size. He also spoke to a group of other officers who had been involved in the prior investigation of the accused, who collectively concluded that the robber was “most likely” the accused. The accused was subsequently arrested.

A pair of sneakers he was wearing was seized, but no dye or ink was found on them. There was no photo lineup conducted. Issues: The only issue was whether the accused was the masked robber. Result: There was no issue as to the elements of the robbery, assault and mask offences, other than identification. The witnesses whose evidence was tendered on the issue of identification were being truthful in their descriptions of the robber, but their reliability was weakened.

The only non-police identification witness identified the accused for the first time while testifying, having never previously identified him from either a photo or in person lineup. There was a serious concern about the frailties of “in-dock” identification in this circumstance. The police identification evidence was largely based on the bank surveillance video, which had serious weaknesses when used as a basis for a physical description of the robber, including significant issues with respect to the robber’s skin colour.

The alleged uniqueness of the robber’s facial features was not persuasive, and the variations in the evidence respecting the robber’s skin colour led this aspect of the description to be given little weight. Collectively, the identification evidence was not sufficient to establish beyond a reasonable doubt that the accused was the robber. He was therefore found not guilty on all counts. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: R. v. Sykes , 2014 NSSC 320 Date: 20140905 Docket: CRH 410854

Registry: Halifax Between: Her Majesty the Queen v. Kenneth Curry Sykes Judge: The Honourable Justice A. David MacAdam Heard: July 7 and 8, 2014, in Halifax, Nova Scotia Written Decision: September 5, 2014 Counsel: Christine Driscoll, for the Crown Luke Craggs, for the Defence By the Court: Introduction [ 1 ] The accused, Kenneth Sykes, is charged with various offences under the Criminal Code , R.S.C. 1985, c.

C-46, including one count of robbery contrary to s. 344 ; one count of having his face masked with intent to commit an indictable offence contrary to s. 351(2) , one count of assault contrary to s. 266 (a), and three counts of breach of recognizances contrary to s. 145(3) . Background [ 2 ] On the evening of February 16, 2012, the Toronto Dominion Bank branch on Quinpool Road, Halifax, Nova Scotia (“the bank”) was robbed by a masked man carrying a handgun, or a facsimile thereof. He approached a wicket and pushed aside a customer, Nancy Ackerman. The teller serving Ms.

Ackerman did not react to the robber screaming for her to “give me money”. The night manager, Nora Al Jameel, who was covering for another teller about three feet away, heard the demand and came to the wicket. She testified that the robber was wearing an orange jacket with a hood and a black ski mask, through which she could only see his eyes and a little bit of his forehead. She estimated his height at 5’8” to 5’9”. [ 3 ] Ms. Al Jameel said the robber was yelling and saying “give me money bitch” while waving the gun, which he had been pointing at the other teller and was now pointing at her.

She directed the teller to remain where she was. Seeing the robber’s gun, she told him she would give him what he wanted. [ 4 ] Ms. Al Jameel went to a cash machine located behind the wicket, swiped her card, and retrieved $200.00, which she placed in a President’s Choice reusable grocery bag provided by the robber. She also inserted a dye pack, which she believed at the time would be released within a minute or so. She said she later learned that this would only occur when the robber left the bank.

[ 5 ] Ms. Al Jameel testified that upon receiving the bag, the robber indicated that the cash was insufficient and pointed at the teller’s drawer. She showed him that there was no money in the drawer. From the machine, she withdrew another $200.00, which she gave him. The robber left the bank. She estimated that the robbery took at least three to four minutes, and not more than ten. [ 6 ] The bank was equipped with video surveillance cameras that captured photos of the robber from the time he entered until he left the bank.

A DVD containing four clips, and several still photographs taken from the video, were entered as exhibits. However, there are difficulties with this evidence. Ms. Al Jameel testified that although the colour in the video was similar to the visibility in the bank, there were differences in the color shades both with respect to the green colour appearing in the lobby of the bank and the color of the jacket worn by the robber. She testified that the robber’s jacket looked orange to her, while on the video she described it as a bit of orange and red. [ 7 ] Ms.

Al Jameel also testified that in the video the robber appears to be white, while her observation was that the robber was neither black nor white. She was referred to a statement she gave on the evening of the robbery in which she described him as being a white male. In responding to counsel she said that to her if he was not black he was white. By white she meant that he was light-skinned, not dark. [ 8 ] Among the photographs are two of the robber. In one of them he appears to be white, while in the other he appears to have skin colour.

The color of the windbreaker jacket he was wearing also varies in the two photographs. There are other instances where colours in the video-captured photographs vary from the professional photographs taken by the forensic ID police officer. [ 9 ] Ms. Al Jameel was not asked to identify the robber during her testimony. Ms. Ackerman, however, did identify Mr. Sykes as the robber. There is no suggestion that she had any previous involvement with Mr. Sykes. Therefore her identification was based on what occurred during the robbery, when the robber pushed her aside and took her place at the teller’s wicket.

She said the robber came up from behind and pushed her left shoulder, saying “get out of my way”. She said she then sat down with her back to the teller’s wicket. She considered retrieving her phone in order to take a picture, but thought better of it and did not do so. [ 10 ] Ms. Ackerman said she is 5’7” to 5’7.5”, and that the robber was a couple of inches taller than her. She said she identified him from “his eyes and his brow”. She said the ski mask covered the robber’s face from the tip of his nose down to his chin, and from his forehead upwards.

She said he had dark eyes and a bump on the bridge of his nose. She indicated he had a pronounced brow but she did not make note of his eyebrows. On cross-examination she said she noticed the brow of his forehead and that he had a “heavy brow.” She added that her reference to a “heavy brow” was not a reference to his eyebrows. All she could recall about his skin color was that it was not pale white nor dark black; she described it as similar to her own skin colour. She said she identified him from “his eyes and his brow”. She said the lighting in the bank was good.

She also said she does not wear glasses when she goes to the bank. [ 11 ] Ms. Ackerman also testified on cross-examination that she could not see the top of the robber’s head. She thought he had bangs, but she was not sure. Her impression was that the bangs were one-and-a-half to two inches and prevented her viewing the top of his head. [ 12 ] Ms. Ackerman was the only non-police officer to identify Mr. Sykes. [ 13 ] Another customer waiting in line was Clarence Gibson, who was being served by Ms. Al Jameel. He was about three feet from the wicket that was approached by the robber.

He said the robber was wearing a red/orange nylon jacket, a black hoodie and white and red sneakers that were mostly white but “with kind of like a Nike insignia or something like that on the side of them.” He said the insignia was red. [ 14 ] On receiving the call that there had been a bank robbery, Det. Cst. Robert Fox of the Halifax Regional Police, the lead investigator, went to the scene and obtained statements from some of the witnesses. He watched the surveillance video in the manager’s office and had a copy e-mailed to his office. Det. Cst. Fox was the only witness who had previous familiarity with Mr.

Sykes. He first met Mr. Sykes in November 2011 when he interviewed him for about one-and-a-half to two hours on another matter. At that time he was face-to-face with Mr. Sykes, with no one else present. He described him as having distinctive eyebrows and a bridge on his nose. He had also travelled in the back seat of the police car when they picked up Mr. Sykes and took him the station for the interview. [ 15 ] Detective Constable Fox created a booklet of photographs taken from the video and mug shots of Mr. Sykes from July 2010, September 2010, and February 2012.

In a second copy of the mug shots taken on February 18, 2012, he blocked out the face of Mr. Sykes, apart from the area from the top of the nose to the beginning of the forehead, showing only his nose, his eyes, his eyebrows, the

bridge of his nose and a small portion of his forehead. Alongside this altered photograph he included a still photograph from the February 16, 2012, video, in order to show the similarity between Mr. Sykes and the robber by showing a similar portion of the face as was visible through the robber’s ski mask. It appears that the skin tone of the robber is lighter than that of the portion of Mr. Sykes’s face visible in the doctored photograph. Whether this difference is the result of the colour variations in the video photographs is of course unclear.

There are other instances where the coloring of the robber is similar to that of Mr. Sykes in earlier mug shots. For example, the September 2010 mug shot would appear to show coloring similar to that of the robber as he entered the Toronto Dominion Bank. [ 16 ] Detective Constable Fox testified that he concluded that the robber was Mr. Sykes based on the physical features that he said were observable in the opening in the mask, including the skin tone, the bridge above his nose, and the arched eyebrow of the robber. He said he was aware of Mr. Sykes’s height and build from his earlier meeting with him.

The statements he obtained from the witnesses provided information on the robber’s weight and size. He said it appeared that the robber was of medium build, similar to his recollection of Mr. Sykes. [ 17 ] When he returned to the station, Det. Cst. Fox again watched the video. On cross-examination he said there were several cubicles in his vicinity and it was possible that other officers watched the video at the same time. He stated that there were 28 other people on staggered shifts so that it was “definitely possible that someone else was in the office”. Two other officers testified that they watched the video.

Detective Constable Fox agreed that he asked other members if they recognized the suspect. He had a discussion with the officers who had been involved in the prior November investigation as to who the person on the bank video might be. He wanted to see if they agreed with him that it was the same person. He testified that he “was looking for their opinion if they thought it was anybody else. I don’t know everybody but there’s only one person I thought it could be and so I had the other officers look at it”.

He also agreed that was fair to say that at some point he would’ve told the other officers who he thought it might be. The other officers agreed that “most likely it was Sykes”. [ 18 ] Two days later Mr. Sykes was arrested. Although Det. Cst. Fox was not one of the arresting officers, he conducted the interview. During the course of the interview he noticed that Mr. Sykes was wearing sneakers that appeared to match the description given by one of the witnesses at the bank. (Mr.

Gibson was the only witness who described the sneakers on the robber.) Detective Constable Fox seized the sneakers and arranged to have them tested. He said the interview occurred around 2 a.m. on February 18, about 30 hours after the robbery. Further, during the interview he did not notice any dye or ink on Mr. Sykes’s skin. [ 19 ] Detective Constable Michael Barkhouse is in the forensic ID

section of the Halifax Regional Police. He attended at the bank on the evening of the robbery. He made no efforts to find fingerprints, having been told that the suspect had worn gloves. He carried out a visual and forensic light examination of the sneakers. On cross-examination he indicated he had been provided information that there may have been dye from a dye pack on them. He testified that he did not find dye on the sneakers. He further stated the sneakers were sent to the crime lab and no dye or ink was reported on them.

He agreed that he is not trained to look for dye so he, in fact, was looking for a splatter on the sneakers. He did not find any. [ 20 ] Detective Constable Fox said nothing was seized during the investigation apart from the video and the sneakers. On cross- examination he agreed that the type of “Air Jordan” sneakers seized from Mr. Sykes were very common and it would be fair to call them “basketball shoes” or “hightops”. The logo on the outside of the shoe shows a person playing basketball.

He agreed that there was no Nike logo on the sneakers, only the “Air Jordan” logo. [ 21 ] There was no photo lineup or database search. Detective Constable Fox said he did not have sufficient information to put together a photo lineup. In respect to database searching, he said it was not possible to search for unique or distinctive facial features such as an eyebrow and the bridge of a nose. On cross-examination he clarified what he meant by “the distinctive bridge of the nose” and “arched eyebrow”. He stated that Mr.

Sykes had “a very distinctive shadow on the bridge of his nose right above where your glasses would go…that I can observe.” He added that “his right eyebrow seems to be more arched on the right side going on an upward angle.” [ 22 ] While being cross-examined about the accused’s features, Det. Cst. Fox was asked if there was anything else that led him to believe that the person in the Toronto Dominion Bank was Mr. Sykes. He responded, “[w]ell for the physical features…that was inside the mask, that was it.

The other stuff was there’s similar robberies that I have been investigating that I believe him to be responsible for.” When asked whether his belief that he was responsible for some of these robberies tainted him, he replied, “I don’t believe so because Mr. Sykes had not been a suspect in a bank robbery up to that point.” He added that he believed that he was objective, and that “[w]hen I saw the eyebrows and the face through the mask of what I could see that’s the first person that came to my mind.” [ 23 ] Also testifying was Detective Constable Jonathan Beer. He drove to the bank with then-Det. Cst. Thomas.

He viewed the security footage, along with several other officers, including (he believed) Det. Cst. Fox and Det. Cst. Christopher Thomas. They were trying to see if they could recognize anyone in the video. He said he did not recall whether he was asked if the person looked like Mr.

Sykes, but he did recall recognizing him. Detective Constable Fox asked if he agreed it was Mr. Sykes, to which he responded in theaffirmative. [24] Detective Constable Beer said he had never arrested or been directly involved with Mr. Sykes previously, and that he had notseen him before February 2012. He said, however, that he had been aware of Mr. Sykes from previous investigations. He believed an e-mail containing a mug shot of Mr. Sykes had been distributed on an earlier occasion. He said viewing the video led him to theconclusion that the robber was Mr. Sykes.

He referred to the opening in the mask from the top of the nose to the forehead, saying that hisobservation of the eyebrows were that they pointed to the center of his nose, that the robber was a light-skinned black male, and that hewas under six feet. He said the shape of the robber’s eyebrows was distinctive and was consistent with Mr. Sykes’s eyebrows. He saidthe robber had a large forehead. He agreed with defence counsel that there are many light-skinned black males, but said it was acombination of factors that matched his memory of the mug shot. [25] On cross-examination Det. Cst.

Beer was shown two photographs in which the faces of the individuals were blocked out exceptfor most of the nose, the bridge, the eyes and the eyebrows. He said he did not believe that either one was Mr. Sykes. He said he did notknow anyone else with similar eyebrows as Mr. Sykes, although he agreed he has seen African Canadians with similar eyebrows. [26] Sergeant Christopher Thomas – then Det. Cst. Thomas – was working the evening shift when he received the transmission thatthe bank had been robbed. He drove with Det. Cst. Beer to the bank and took statements.

After viewing three of the four video clips hespoke to the other officers and they began looking for Mr. Sykes. He said they were positive that Mr. Sykes was the robber. In additionto the height, weight and build, he referred to the robber’s skin tone. He said there were unique features he had not seen before. Althoughhe had not previously dealt with Mr. Sykes, he had viewed digital mug shots taken in January 2012 and was also aware of his height andweight. [27] Sergeant Thomas and Det. Cst. Barkhouse arrested Mr.

Sykes in the basement of a residence in Fairview, Halifax. [28] Sergeant Thomas was shown the two pictures with the faces blocked out apart from the eyes, eyebrows and the top of the nose.He said that, although there were similarities, he did not believe either of them to be Mr. Sykes. He was shown pictures of twoindividuals who he agreed were well-known African-Americans, Ice Cube and Rev. Jesse Jackson. On cross-examination he said he wasnot comfortable agreeing that heavy eyebrows is a trait common in African Americans. He said he knows black police officers who donot have heavy eyebrows.

He then agreed that heavy eyebrows like those in the video are common. Burden of proof [29] There are two basic and fundamental principles in every criminal trial: The presumption of innocence and the requirement forproof beyond a reasonable doubt. [30] The presumption of innocence remains with an accused throughout the trial. It only ceases to apply if, after considering all theevidence, the court is satisfied beyond a reasonable doubt that the accused is guilty. The accused has no obligation to prove hisinnocence, or to explain the evidence presented by the Crown.

The law presumes him to be innocent until a court of law, havingconsidered all of the evidence, is satisfied that the Crown has proven every element of the offence charged beyond a reasonable doubt. [31] This burden of proof on the Crown marks the second fundamental principle in our criminal law. It is not sufficient if, on thebalance of probabilities, the accused may have, or is likely to have, committed the offence. Every element of the offence must be provedbeyond a reasonable doubt. If the Crown fails to prove any one or more of the elements beyond a reasonable doubt, the accused must beacquitted.

Proof beyond a reasonable doubt is more than proof on a balance of probabilities and less than proof to an absolute certainty.It, however, lies "much closer to absolute certainty than to proof on a balance of probabilities": see R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320 (S.C.C.), R. v. Bisson, (SCC), [1998] 1 S.C.R. 306 (S.C.C.) and R. v. Starr, 2000 SCC 40,[2000] 2 S.C.R. 144 (S.C.C.). [32] In considering the evidence, including the exhibits, I recognize I do not have to necessarily accept or reject all the evidence ofany witness. I am permitted to accept part of it.

I am required to direct myself to all of the evidence bearing on the relevant issues in orderto attribute the correct weight, recognizing that individual pieces of evidence must not be examined in isolation but must be considered inthe context of all the evidence as a whole.

[ 33 ] Witnesses see and hear things differently and discrepancies do not necessarily mean that the testimony of a witness should be disregarded. Discrepancies in trivial matters may be, and often are, unimportant. In assessing credibility, one must consider the opportunity the witnesses had to observe the events to which they testified, the extent to which the witnesses had any interest in the outcome of the trial or any motive for either injuring or favouring the accused. In doing so, I must consider whether the witness is entirely independent and whether the testimony is reasonably internally consistent.

Issue [ 34 ] Counsel requested that the court focus on the robbery, assault, and mask offences, indicating that they anticipated making a joint submission in respect to the alleged breaches of recognizances. I will proceed accordingly. [ 35 ] In respect to the offences of robbery, assault and wearing a mask while intending to commit an indictable offence, the elements of time and place have clearly been established. The offences were committed on February 16, 2012, in Halifax, Nova Scotia.

The evidence establishes that an individual carrying a handgun, or a facsimile thereof, which was pointed at tellers and customers and waved about, stole money from the Toronto Dominion Bank. The offence of robbery is thus made out. In respect to assault, the evidence establishes that the robber intentionally applied force to Ms. Ackerman, that she did not consent to the application of force, and the robber knew that she had not consented.

In respect to the offence of committing an indictable offence while wearing a mask it is clear from the witnesses, as well as from the video evidence, that the robber wore a ski mask while committing the indictable offence of robbery. The only question is whether Mr. Sykes was the robber. As such, the only issue is whether the Crown has proven beyond a reasonable doubt that Mr. Sykes was the masked robber. [ 36 ] In submissions Crown counsel identified four witnesses as relevant in establishing that the Crown has proven beyond a reasonable doubt that Mr. Sykes was the robber.

In respect to each of these witnesses I am satisfied that they were being truthful in describing their observations of the robber. The issue is not whether the witnesses are being truthful, but rather the reliability of their recollections in the circumstances. [ 37 ] Ms. Ackerman made an “in dock” identification of Mr. Sykes as the person who assaulted her and robbed the bank. She testified that after the robber pushed her she turned and faced him from approximately one-and-a-half feet away, looking into his eyes.

She was not asked to estimate the time she would have been in this position; it would not appear to have been for an extended period, in the circumstances. There was no photo lineup, so her only chance to view him was in the courtroom. At the request of defence counsel, the Court agreed that Mr. Sykes could sit at the barristers’ bench furthest from the witness box. He would have been more than 15 feet from where Ms. Ackerman was sitting in the witness box. [ 38 ] Ms. Ackerman saw the robber briefly, albeit face-to-face and quite close.

The frailties associated with “in-dock identification” are applicable to her evidence. She identified him in a court room where every other person was wearing some form of uniform, such as judicial and barristers’ gowning and Deputies’ uniforms. He was the only black male present. She was sitting more than 15 feet from where he was sitting. In the circumstances, I can accord little weight to her identification. [ 39 ] Neither Det. Cst. Beer nor Sgt. Thomas had previous contact with Mr. Sykes, although each had been involved in investigations of him in respect to other matters.

They had seen mug shots, watched the video, and discussed the identity of the masked robber with Det. Cst. Fox. Although they each testified that they came to their own conclusions, it is clear they did so as part of a discussion involving themselves, Detective Constable Fox and perhaps other officers. Essentially the evidence of both Det. Cst. Beer and Sgt. Thomas is that they identified Mr. Sykes from the video and the photographic stills made from the video. As noted earlier, Det. Cst. Beer described distinctive features of the robber, particularly around the eyebrows. Sgt.

Thomas also spoke of the robber’s height, weight, build and skin tone. [ 40 ] I have already noted the color variations in the various photographic stills made from the video. Depending on the photograph, the robber could be white, or a light-skinned black male. Ms. Al Jameel told the police that the robber was white. This would not be Mr. Sykes, who is black, although not of a dark complexion. Ms. Ackerman described the robber’s skin colour as similar to hers, neither pale white nor dark black. The difficulties involved in this identification are also evident in the mug shots. Mr.

Sykes appears much darker in the mug shot of February 18, 2012, than in mug shots from July and September 2010. Whether this is due to lighting or to the 2012 photograph being taken closer-up is unclear. Nevertheless, to rely on skin tone as observed in the videos is fraught with danger. It would be an unsatisfactory basis for concluding beyond a reasonable doubt that the robber was Mr. Sykes. In addition, the facial features of Mr. Sykes that were described by some witnesses as distinctive are by no means unique, as Sgt. Thomas acknowledged. [ 41 ] The Crown identified Det. Cst.

Fox as a “recognition identification witness”. In November 2011 he traveled in the back of a

police car with Mr. Sykes, then interviewed him. It appears that on the initial viewing of the video in the bank manager’s office (beforehaving a discussion with other officers) he had concluded that the robber was Mr. Sykes, based on physical features such as skin tone,the bridge above his nose and the arched eyebrow. He watched the video again in his cubicle. He continued: Q: Do you remember having any discussions with other officers about who it might be in the video?

A: Yes, the officers that were involved in the previous incident from January November [sic] we were all working together on thoseother instance [sic] and we were the officers discussing that, who we thought it may be. Q: So you and some other officers put your heads together and discussed who the person depicted in TD video might be? A: Yes, to see if they felt I was correct and if they thought it was the same person. Q: Okay, to see if they felt you were correct? A: Yeah I was looking for their opinion if they thought it was anybody else.

I don’t know everybody but there’s only one person Ithought it could be and so I had the other officers look at it. Q: And you told the other officers who you thought it might be? A: I would say most likely, yeah I’d say that was fair to say. [42] The variations in the evidence respecting the robber’s skin colour cause me to give little weight to this element as a factor inidentification. The evidence respecting the allegedly distinct facial features is likewise a dangerous basis upon which to establishidentification to the required legal standard.

The bridge, for instance, is similar to (if more pronounced than) that evident in the profferedphotograph of Rev. Jesse Jackson; as to the eyebrow, I am not convinced that it is so unique as to support identification beyond areasonable doubt. The question is whether individually and collectively the factors noted by the identification witnesses put forward bythe Crown are so unique, at least on the evidence presented at this trial, to sustain the conclusion that Mr. Sykes was the robber. The law (

a) Identification Frailties [43] First-time in-dock identification is subject to particular frailties beyond those associated with identification evidence generally.In R v. Izzard (1990), (ON CA), 54 C.C.C. (3d) 252, the Ontario Court of Appeal referred to the frailties of a first-time in-dock identification, accepting that it was "generally agreed" to be "undesirable and unsatisfactory" (at 256). In R. v. Hibbert,[2002] 2 S.C.R. 445, 2002 SCC 39, the majority spoke of the "almost total absence of value as reliable positive identification" of in-courtidentification evidence (para. 49). More recently, in R. v.

McDonald, [2014] O.J. No. 867, 2014 ONSC 1254, Hill J. of the OntarioSuperior Court commented, at para. 62: As a general rule, in-dock identifications, by an individual previously unacquainted with a suspect prior to the relevant event, aregenerally almost valueless in terms of reliable positive identification. Not only has time passed since the alleged crime…but also thephysical set-up of the courtroom recognizably presents the accused as the individual on trial and therefore as the suspect toward whomthe finger of accusation has pointed… [44] In R. v.

Zurowski, [2004] 3 S.C.R. 509, 2004 SCC 72, the accused was convicted of, inter alia, dangerous driving causingbodily harm. The issue was the identification of the accused as the offending driver. The driver was treated at the scene by twoambulance attendants, one of whom spoke to him for about a minute and the other held his head while first aid was being administered.Another witness identified him from a newspaper photograph. Witnesses identified the driver on the basis of single photographs or by in-dock identification.

The Supreme Court of Canada reversed the decision of the Alberta Court of Appeal upholding the conviction, being“of the view that given the frailties of the identification evidence in this case, the appeal must be allowed and acquittals are entered.”

[45] Berger J.A. had dissented from the Court of Appeal’s majority judgment in Zurowski: 2003 ABCA 315, [2003] A.J. No. 1342.He discussed the need for close appellate scrutiny where a conviction is based solely upon honest but potentially mistaken eyewitnessevidence. He cited (at para. 47) the Alberta Court of Appeal’s earlier decision in R. v. Atfield (1983), 1983 ABCA 44 , 25 Alta.L.R. (2d) 97, [1983] A.J.

No. 870, where Belzil J.A. said, at 98-99 and 114: 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. In cases, where the criminal act is not contested and the identity of the accused asthe perpetrator the only issue, identification is determinative of guilt or innocence; its accuracy becomes the focal issue at trial and mustitself be put on trial, so to speak… [T]he jury (or the judge sitting alone) must be satisfied of both the honesty of the witness and thecorrectness of the identification.

Honesty is determined by the jury (or judge sitting alone) by observing and hearing the witness, butcorrectness of identification must be found from evidence of circumstances in which it has been made or in other supporting evidence. Ifthe accuracy of the identification is left in doubt because the circumstances surrounding the identification are unfavourable, or supportingevidence is lacking or weak, honesty of the witnesses will not suffice to raise the case to the requisite standard of proof, and a convictionso founded is unsatisfactory and unsafe and will be set aside.

It should always be remembered that in the famous Adolph Beck case, 20seemingly honest witnesses mistakenly identified Beck as the wrongdoer. …. It is important that investigating police should obtain from each identification witness, as soon as possible after the alleged observation,the fullest description of the person observed, which can be cross-checked with the descriptions given by other witnesses, and with theactual appearance of the person suspected, and with the descriptions given by the witnesses in court.

The witnesses should beinterviewed independently of each other, if at all possible before they have had the opportunity of communicating, and always withoutsuggestion or assistance. Meticulous notes should be taken of the descriptions obtained.... [46] Berger J.A. went on to cite the following comments of Sopinka J. in R. v. Burke, (SCC), [1996] 1 S.C.R. 474,at 498: 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': R. v. Sutton, (ON CA), [1970] 2 O.R. 358 (C.A.), at p. 368. In R. v. Spatola, (ON CA), [1970] 3 O.R. 74 (C.A.), Laskin J.A. (as he then was) made the following observation about identification evidence (at p.82): 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 ...[emphasis in original] [47] Another concern with identification raised by Justice Berger was in reference to the suggestion that the evidence of thewitnesses who identified the appellant were tainted. He summarized the suggested taints raised by the appellant as follows, at para. 56: 1.

The police failed to obtain from the identification witnesses, as soon as possible after the alleged observations, the fullestdescription of the person observed. 2. The police failed to conduct a live or proper photographic line-up. 3. Two Crown witnesses viewed a photograph of the accused in a newspaper account of the incident. 4. The police showed a single photograph of the accused to one of the Crown witnesses. 5.

Dock identification of the Appellant in shackles 16 months after the incident without the benefit of a prior live or photographicline-up. [48] Some of the suggested taints outlined by Justice Berger in Zurowski appear to be relevant in the present circumstances. Therewas no live or photographic lineup presented to Ms. Ackerman. She only identified Mr. Sykes as the robber while testifying in court,where he was the only black male and the only person not wearing a uniform. This would be similar to the police showing an eyewitnessa single photograph of an alleged offender.

Also, the in-dock identification occurred more than two years after the incident.

[49] In respect to the use of the single photograph Justice Berger observed that “[t]he risk of mistaken identification is even greaterwhen, as in this case, a single photograph is shown to a witness. The danger is that the witness will identify the picture as opposed to theface viewed at the scene of the crime” (para. 60). He cited the Ontario Court of Appeal’s comment in R. v. Goldhar, R. v.

Smokler(1941), (ON CA), 76 C.C.C. 270 at 271, that, while it may sometimes be necessary to show a photograph to someonewho may be able to identify a photograph of the person being sought, “there is always the risk that thereafter the person who has seenthe photograph will have stamped upon his memory the face he has seen in the photograph, rather than the face he saw on the occasionof the crime. The usefulness of such person as a witness may thereafter be seriously impaired…” (cited in Zurowski at para. 60).

On thesubject of dock identification, Justice Berger cited the comments in Hibbert respecting the dangers of reliance on such evidence andnoted that “[a]ll identifications in this case were of a shackled individual in the dock wearing remand clothing. There was no one else inthe courtroom who could conceivably have been the person who drove the vehicle” (para. 62). [50] A further concern is the manner in which the police officers involved reached the conclusion that Mr.

Sykes was the robber.Rather than each reaching this conclusion independently, it appears that they did so as part of a consensus in response to Det. Cst. Fox’squery as to whether they agreed with him that it was Mr. Sykes. I note the following passage in Det. Cst. Fox’s evidence on questioningby the Crown: Q: After making that determination yourself what if anything else did you do? Did you speak to any other officers about… A: Other officers at the scene had viewed the video with me and other officers that had been involved in previous incidents involvingMr.

Sykes and the other officers also agreed that the most likely suspect that matched that physical description was Mr. Sykes. Q: And as a result of that what did you do? A: I put out an APB to be on the lookout for to all other police officers for Mr. Sykes as a suspect in that robbery. [51] Counsel refers to the decision of Derrick Prov. Ct. J. in R. v. “X”, 2013 NSPC 127. The victim “Y”, then 15 years old, was shotin the abdomen. Just before the shot he was standing talking to a friend, “Z”, on a basketball court. Nine days later “X” was arrested.

Atissue was whether the Crown had proven beyond a reasonable doubt that “X” shot ”Y”. As in the present case, there was no physicalevidence to identify the shooter. Judge Derrick found that there were inconsistencies in the evidence of “Y” and “Z”, but found them tobe truthful, and accepted their evidence in identifying “X” as the shooter. There was a surveillance video, but it was not possible to makeout the shooter’s facial features. The video was of little use in identifying the shooter, though it provided evidence as to the timing of theevent.

In “X” the mask only covered the lower portion of the shooter’s face, leaving the eyes, eyebrows and forehead visible. [52] “Y” and “Z” were friends. “Z” testified that when the shooter came toward the court he saw that it was “X” even though theshooter was wearing a mask that covered the lower part of his face and was pulled up over the end of his nose. It was not a ski mask butone that just covered the lower part of the face, leaving the ears exposed. “Z” said he was 15 to 20 feet from the shooter and could seethe person’s eyes. He had known “X” since childhood. “Y” had also known “X” all of his life.

Judge Derrick made the followingcomments about “Y’s” testimony: 53 According to "Y", sometime between 10 - 20 minutes after he got to the basketball court, he saw "X" walking toward it. Theireyes locked and they stared at each other. Neither of them spoke. "Y" testified that "X" was wearing an orange top. 54 "X" turned and took off running. "Y" figured something was up so he stepped out of the court for a second and picked up a largerock. Based on a history of animosity, he thought that "X" might be going to get a knife.

He felt that "something was going to happen."He figured that "X" would be coming back. 55 Police seized some items from the basketball court which corroborate "Y"'s description of these events prior to the shooting.These items included a grey hoodie which "Y" had been wearing. The hoodie (Exhibit 24) had head phones and a phone charger (Exhibit22) in one pocket and a large rock (Exhibit 23) in another.

"Y" identified these items in the police photographs in Exhibit 3 andconfirmed that he had been wearing the grey hoodie shown in Photograph 75 of Exhibit 3. 56 Approximately a half-hour later, while "Y" and "Z" were on the court talking, "Z" said there was something in the woods. "Y"had not heard anything. He turned to look and saw "X" over by the fence on the outside of the court. He had a gun and was pointing it at"Y". "Y" and "Z" were standing together: when asked how he could be so sure it was "X", "Y" testified: "Because I was stuck at the timewhen I seen the gun pointing at me. I didn't know what to do.

So I just stared at him ..."

57 "Y" testified that he could see the shooter's eyes, eyebrows, and forehead. It was his evidence that when he was looking at theshooter the scope was not in front of the shooter's face and therefore did not obscure it. 58 According to "Y"'s trial testimony, "X" was wearing a black leather jacket. He had a black ski mask on that covered the lowerhalf of his face, including his nose. He said nothing to "Y". [53] Like “Z”, “Y” was positive in his identification of “X” as the shooter. He said he saw his eyes and his eyebrows.

Judge Derrickmade the following comments about the treatment of identification and recognition evidence: 67 Any eyewitness identification evidence, even where it involves recognition, must be viewed through a critical lens. Trial judges arerepeatedly warned to be "wary of eyewitness identification" and reminded that "Generally, it is fraught with danger." (R. v. Provo, [2001]N.S.J. No. 247, paragraph 21 (S.C.) In R. v. Burke, (SCC), [1996] S.C.J.

No. 27, Sopinka, J. identified the dangers: 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." (Burke, at paragraph 52) 68 Where the criminal act is not in dispute and the identity of the accused as the perpetrator is the only issue, the accuracy andreliability of the identification evidence "becomes the focal point of the trial and must itself be put on trial." The correctness of theidentification "must be found from evidence of circumstances in which it has been made or in other supporting evidence." (R. v.

Atfield,1983 ABCA 44 , [1983] A.J. No. 870 (C.A.), paragraph 3) 69 Determining that a witness is credible does not settle the issue. The evidence of the honest and confident eyewitness must still bevery carefully scrutinized to determine its reliability. As Arbour, J. noted in R. v. Hibbert, 2002 SCC 39 , [2002] S.C.J.

No. 40,the trier of fact must understand there is a "very weak link between the confidence level of a witness and the accuracy of that witness." ...(Hibbert, paragraph 52) 70 The need to exercise caution, an appreciation that a mistaken witness can still present convincingly, and the need to examineclosely the circumstances in which the identification was made are all essential elements of the trial judge's task of assessing eyewitnessidentification evidence. (R. v. Shermetta, [1995] N.S.J.

No. 195 (C.A.), paragraph 46) 71 And as the Ontario Court of Appeal has held, eyewitness testimony is effectively, opinion evidence "the basis of which can bevery difficult to assess." (R. v. Miaponoose, (ON CA), [1996] O.J. No. 3216, paragraph 11) [54] Judge Derrick noted the “significant difference” between identification by a stranger and identification of a person previouslyknown by the witness; she cited the comment in R. v. Bob, 2008 BCCA 485, [2008] B.C.J.

No. 2551, that, “[w]hile caution must still betaken to ensure that the evidence is sufficient to prove identity, recognition evidence is generally considered to be more reliable and tocarry more weight than identification evidence” (para. 13, cited in “X” at para. 73). [55] Judge Derrick also cited R. v. Smith, 2011 BCCA 362, [2011] B.C.J. No. 1665, where the court said that recognition evidence“is not a distinct category”, but “simply intimates the witness's evidence is based in part on his or her dealings with the accused beforethe crimes were committed.

The extent and quality of those encounters is but one factor to be considered in weighing the witness'sevidence” (para. 31, cited in “X” at para. 74). [56] Further, in R. v. Bardales (1995), (BC CA), 101 C.C.C. (3d) 289, [1995] B.C.J. No. 2105 (B.C.C.A.),affirmed at (SCC), [1996] 2 S.C.R. 461, Wood J.A. (dissenting in the result), said, at para. 106 (cited in “X” at para.97): [W]here recognition is a factor, considerable weight may attach to the opinion of an eye-witness, depending on the intimacy of therelationship between that witness and the accused and the length of time it has subsisted.

Indeed, the nature of the relationship may be

such as to obviate the need for all but the most cursory of cautions. On the other hand, where the "recognition" is based on a casualrelationship characterized by infrequent contact, the potential weight of the opinion may not be much greater than that offered by acomplete stranger... [57] In this instance, Det. Cst. Fox had dealt with Mr. Sykes on one occasion, some three months previously while riding with him inthe back of the police car and in the subsequent interview.

In “X”, by contrast, the two eyewitnesses had known the accused for years.“Z” and “Y” not only knew “X” very well, but they had seen him shortly before the shooting. They recognized him when he initiallyapproached the basketball court and turned and left. This was material on the issue of the reliability of their identifications of him as theshooter. Judge Derrick noted that “Y” testified that when he saw “X” prior to the shooting, he and “X” “caught eyes, stared at eachother.” [58] In R. v.

Hill, 2005 NSCA 108, the trial judge had convicted the appellant of a robbery committed at a service station, where theissue was identification. The robbery was photographed by a security camera. The robber held a towel or T-shirt over his face. Twopolice officers who had prior contact with the appellant had identified him from photographs. As in respect to the identification evidencein regard to these offences there was also no corroborating evidence in R. v. Hill. A pair of sneakers seized from the accused was inevidence.

It was not established that they were the same sneakers worn by the perpetrator, though there were similarities; all that couldbe said was that the sneakers were not inconsistent with those on the robber. In this case, in view of Mr. Gibson’s uncertainty regardingthe logo or insignia on the robber’s sneakers, I am likewise satisfied that although the sneakers are not inconsistent with the sneakersworn by the perpetrator, I am unable to conclude that they were the same sneakers. [59] On cross-examination, Sgt. Thomas agreed that thick eyebrows like those on the person in the video are common.

Combinedwith the inconclusiveness of the evidence respecting the robber’s skin colour, and the lack of evidence that the shading on the robber’sbridge is unique, I am left with similar concerns to those raised by Hamilton J.A. in R. v. Hill, at para. 45: 45 The small amount of the robber's face that is visible in the emailed photographs causes me a concern similar to the one the trialjudge's concern with respect to the seized sneakers referred to earlier in para. 29. There are certainly similarities between what can beseen of the robber in the emailed photographs and the August photograph of the appellant.

Both show black males with hairstyles thatsome of the witnesses described as "Afros" and bushy eyebrows. The danger is that these features are not distinctive to the appellant.They apply to many others.

Any distinctiveness of the robber is covered by the t-shirt or towel. 46 The difficulty of identifying the robber when most of his face is covered is confirmed by the cashier's testimony to the effect thatthe reason he could not identify the robber from the photo lineup was because so much of his face was covered during the robbery. 47 Considering the minimal amount of prior contact the officers had with the appellant, especially Officer Boon; the significantamount of the robber's face that is covered in the emailed photographs; the different angles from which the August photograph and theemailed photographs seem to have been taken; the fact the cashier could not identify the robber because so much of his face wascovered; the fact that, as the trial judge noted, according to Officer Graham there was nothing specific about the appellant's face thatstood out; the fact two other officers who had significant prior personal contact with the appellant did not identify the appellant from theemailed photographs and the fact the quality of the emailed photographs does not permit a close examination of the robber's righteyebrow, I am satisfied the basis of Officers Graham and Boon's identification is not reliable making the verdict unreasonable and notsupported by the evidence. [60] Justice Hamilton distinguished R. v.

Nikolovski (1996), (SCC), [1996] 3 S.C.R. 1197, where the trial judgeconvicted on the basis of identification from a video, as in that case it was clear that the view of the accused on the video wasunobstructed. In Hill, by contrast, the robber’s face was “almost completely covered” in the relevant photographs (paras. 48-50). Conclusion [61] Detective Constable Fox testified that after viewing the video the officers felt that the robber was “most likely” Mr. Sykes.Admittedly, he testified, as did Cst. Beer and Sgt. Thomas, that they each believed it was Mr. Sykes.

The defence acknowledged that itcould have been Mr. Sykes. It could also have been someone else. On all the evidence, including the exhibits, I am equally satisfied thatit could have been Mr. Sykes, and likely was him. However, that is not the standard. The standard of “beyond a reasonable doubt”demands something much closer to certainty than to the civil onus of a balance of probabilities; it requires more than “probability” or“most likely.” [62] The lack of corroborative physical evidence; the difficulties with colour and shading on the video and still photographs; the

inconsistency in the description of skin tone by Ms. Al Jameel; the tainted group-based consensus of the officers after viewing the video; the fact that Det. Cst. Fox was the only witness with a prior personal involvement, on a single occasion; and, ultimately, the need for caution in relying on in person identification, all serve to establish reasonable doubt. Consequently, I find Mr. Sykes not guilty on each charge. MacAdam, J.