R. v. Clarke, 2019 NLSC 208

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Clarke , 2019 NLSC 208 Date : November 25, 2019 Docket : 201801G7003 Her Majesty The Queen v. Leonard Clarke Before: Chief Justice Raymond P. Whalen Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: November 4 – 6, 2019

Summary: The compact issue in this case was the identification of the Accused as the getaway driver in an armed robbery. It has been a long recognized danger that identification testimony is frail and can result in a wrongful conviction. Where the criminal act is not contested and the identity of the perpetrator is the only issue, the accuracy of the identification becomes the focal issue at trial and must itself be put on trial and tested by close scrutiny of the other evidence. In the case at Bar, the Crown had proven beyond a reasonable doubt the identity of the Accused as the driver of the getaway van. The Accused was found guilty and a conviction registered. Appearances:

Alison M. Doyle Appearing on behalf of the Crown Mary L. Boulos Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320; R. v. Starr, 2000 SCC 40; R. v. Kennedy, 2015NLCA 14; R. v. T. (P.), 2017 NLTD(G) 27; R. v. Morin, (SCC), [1988] 2 S.C.R. 345; Thomas v. The Queen, [1972]N.Z.L.R. 34 (C.A.); R. v. Miaponoose, (ON CA), [1996] 110 C.C.C. (3d) 445, 93 O.A.C. 115 (Ont. C.A.); R. v.Atfield, 1983 ABCA 44; R. v. Wiseman, 2019 NLSC 161; R. v. Hibbert, 2002 SCC 39; R. v. Pickton, 2010 SCC 32; R. v. Brown, 2015ONSC 3725; R. v.

Helsdon, 2007 ONCA 54 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46 REASONS FOR JUDGMENT Whalen, C.J.: INTRODUCTION [1] By Indictment filed on October 14, 2018, the Accused, Leonard Clarke, stands charged that: Count 1 – On or about the 7th day of June, 2017, at or near Conception Bay South, in the Province of Newfoundland and Labrador, didrob monies and goods from Greens Pharmacy, thereby committing an offence contrary to sections 343-344(1) of the Criminal Code. [2] The Accused pled not guilty and elected trial by judge alone. [3] Video evidence supplemented by the direct testimony of four witnesses, all of whom were present at the time of the events,clearly proves an armed robbery took place on June 7, 2017 at Green’s Pharmacy, Conception Bay South, Newfoundland and Labrador. [4] A masked male with a shotgun, or imitation thereof, entered the Pharmacy and demanded drugs and cash.

He left the storewith narcotics totaling $4,914.79 and $229.44 in cash. [5] The Accused is alleged to be the getaway driver. ISSUE [6] While the Crown must prove each of the essential elements of the offence for which Mr. Clarke is charged beyond areasonable doubt, the issue in this case is whether the Crown has established, beyond a reasonable doubt, that it was the Accused whodrove the getaway van. APPLICABLE CRIMINAL CODE PROVISIONS [7] The provisions of the Criminal Code, R.S.C. 1985, c.

C-46 setting out the basis of the charge laid against the Accused aresections 343 to 344(1) which read as follows: 343 Every one commits robbery who (

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threatsof violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses anypersonal violence to that person;

(

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof. 344

(1) Every person who commits robbery is guilty of an indictable offence and liable (

a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of (

i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (

b) in any other case, to imprisonment for life. [ 8 ] Also, applicable is

section 21 which reads: 21

(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. evidence [ 9 ] There was eyewitness identification of the Accused as the driver. Cathy Peckford [ 10 ] Ms.

Peckford was an employee of Green’s Pharmacy who gave evidence that she was in a back room of the Pharmacy and first heard a man shout out, then became aware that a robbery was taking place. She exited the building through a rear door undetected by the robber. [ 11 ] Ms. Peckford was careful before opening the rear door, not to make any noise so as to be heard by the robber, and before leaving the building she looked closely to see if there was any vehicle parked at the rear of the building.

There had been a previous robbery at the Pharmacy several months earlier and the then getaway vehicle had been parked at the back of the Pharmacy. When Ms. Peckford did exit she also stopped at the corner of the Pharmacy building to again make sure there was no vehicle located at the side of the building. [ 12 ] With no cell phone, and feeling the coast was clear, Ms. Peckford first attempted to see if anyone at the next door apartment complex could help. With no success, she proceeded to a white van, parked in the adjacent gravel lot.

She said the engine of the van was running and it was located well deep into the lot but pointing towards the highway.

[ 13 ] The witness testified that she approached the driver’s side of the van, thinking it was a construction delivery van dropping off supplies to the site. She spoke to the driver for 30-40 seconds looking to use a cell phone or to have him call the police. She told the driver they were being robbed. Ms. Peckford testified that the driver of the van said, “fuck, fuck, fuck” when she told him they were being robbed. She described the driver as fumbling with his flip phone. She described then seeing a masked man dressed in black running “very fast” towards the van with “gun and a bag swaying from side to side”.

As she backed away from the driver’s window, the masked man jumped into the van telling the driver to “fucking drive, fucking drive”. The driver “pretty much fishtailed” out of the lot with “rocks and gravel and dust going everywhere”. The van came to an abrupt stop to avoid traffic before entering onto Conception Bay Highway. Ms.

Peckford attempted to memorize the license plate number of the van, first she tried to “scratch” the number with her foot into the ground and with no apparent success she ran to the Pharmacy where she immediately recorded the license plate number. [ 14 ] Before continuing with the narrative of Ms. Peckford’s evidence, we were told by the Investigating Officer that the license plate number supplied by Ms. Peckford drew their investigation to Mr. Clarke who had a white van fitting the description of the getaway van. The license plate of Mr. Clarke’s vehicle was one digit different than that supplied by Ms.

Peckford. Mr. Clarke lived within a kilometer of the robbery. [ 15 ] The Court was also left with unchallenged evidence that the Royal Newfoundland Constabulary (RNC) within approximately forty-five minutes of the robbery located a vehicle with the license plate number given to them by Ms. Peckford. The vehicle was at an address approximately fifteen minutes from the robbery. It was a white van of the same description as that of the Accused. The Investigating Officer described this vehicle as parked tight onto a building and blocked in behind other vehicles.

When he came upon the scene the owner was repairing a motorcycle in the area in front of the vehicles. The vehicle’s engine was very cold to the touch. In all, the Officer determined that this vehicle could not have been used in the robbery. [ 16 ] At approximately 7:30 p.m. on the day of the robbery Ms. Peckford was presented with a photo lineup of twelve individuals. The interview was audio recorded. After being given instructions on the process and advised to look at each photograph individually Ms. Peckford identified the Accused as the driver of the getaway van.

She used different language to express that identification. Exhibit LD #2, page 2-4: Ms. Cathy Peckford: Looks very, very, very much like number 11, you can see got kind of a down turned mouth, I noticed that now, as soon as I seen the picture. Constable Lynn Downton: Okay, Ms. Cathy Peckford: It looks a lot like the gentleman I spoke to in the van. Number eleven. Constable Lynn Downton: Okay number, Ms. Cathy Peckford: I don’t recall him having a mustache but everything happened so fast. … Ms. Cathy Peckford: Quickly look over again, Constable Lynn Downton: Okay? Ms. Cathy Peckford:

Yeah, do look a lot like him, Constable Lynn Downton: Okay, so ah, just for the purpose of the tape can you just repeat that Ms. Cathy Peckford: Um, hum Constable Lynn Downton: Little bit loud, Ms. Cathy Peckford: Yeah, it do look like number eleven on the, on the photo. Constable Lynn Downton: Okay, Constable Gwen Stacey: How confident are you that is the individual? Ms. Cathy Peckford: Ah, you need a percentage? (laughs) Constable Lynn Downton: Whatever, Ms.

Cathy Peckford: I’m almost sure, it’s just because of the way, the way the mouth is shaped, and I noticed that now that I’ve seen the picture, that something that I did ah in my statement today give as a description, his mouth had a down turn like this gentleman. But as soon as I seen the picture I noticed when he spoke that he had this down turn in the lip. Constable Gwen Stacey: Okay Ms. Cathy Peckford: He’s very, very, very similar to that, to that gentleman, number eleven. … [Emphasis added]

[ 17 ] During her evidence at trial, Ms. Peckford said she was certain the driver of the getaway van was the person she identified in the photo lineup and identified that person as the Accused in Court. She had otherwise only seen the Accused at the Preliminary Inquiry. [ 18 ] On cross-examination Ms. Peckford confirmed giving a Statement to the RNC within forty-five minutes of the robbery. Ms. Peckford was in the back seat of a police cruiser and the Officer recorded the witness’s description of events. Constable Cleary was the initial Officer on the scene and he took statements from Ms.

Peckford and one other witness. The Officer stated he recorded, to the best of his ability, what the witness was saying but the Statement may not be exact. Ms. Peckford acknowledged she had signed the Statement. The Statement itself was not entered as evidence. Ms.

Peckford acknowledged that in the Statement it was recorded that after telling the driver of the van they were being robbed, she said he uttered “oh my god”, which was different from her evidence on direct examination where she had said the driver responded with “fuck, fuck, fuck”. [ 19 ] It was further confirmed on cross-examination that in the Statement she had described the robber as dressed in dark clothing wearing a mask but made no mention of seeing a gun or a bag in her description of the robber running towards the van.

Video Timeline [ 20 ] The Crown tendered a timeline of events supported by video and photo exhibits. This evidence (North Atlantic video) shows that on the day of the robbery a white van similar to the van owned by the Accused with distinctive passenger side windows entered onto the Conception Bay Highway, at 14:10:06, entering from Wiseman’s Lane where the Accused lived. The van turned east towards Green’s Pharmacy, which was approximately a half kilometer away.

A white van is seen driving into the gravel lot to the west of Green’s Pharmacy and on the same side of the Conception Bay Highway as Green’s Pharmacy at 14:11:54. This is the same gravel lot where Ms. Peckford approached a white van while the robbery was in progress. The robbery takes place as described earlier between 14:14:04 and 14:15:36. At 14:16:18, a white van with distinctive passenger side windows is recorded travelling on the Conception Bay Highway in a westerly direction in front of Green’s Pharmacy (Green’s Pharmacy video). Ms.

Peckford described this as the getaway van carrying the Accused and the masked man which had pulled out onto the Conception Bay Highway and headed west. Further at 14:15:50 a white van with distinctive passenger side windows is again recorded travelling on Conception Bay Highway in a westerly direction passing Wiseman’s Lane (North Atlantic video). The entire video timeline of events described spans six minutes, forty-four seconds. Statement Of The Accused [ 21 ] The RNC took an audio and video recorded statement from the Accused, on July 14, 2017.

The Accused Statement was entered into evidence as Consent Exhibit No. 1. [ 22 ] In the Accused Statement, at one point, the Accused says he’s innocent and he never did anything like an armed robbery in his life. [ 23 ] The Crown relies on the Accused Statement as an admission by the Accused that the van in question, as shown in the timeline video photographs, was owned by the Accused. [ 24 ] The Accused admits when shown a photograph of the van in question, that: “I got one like it”. [ 25 ] On five occasions, within the Statement, the Accused refers to the van as his van: … Leonard Clarke: You got no evidence there buddy, you got no evidence there not a fucking thing, you got me van going along the road Constable Jarrett Morgan: Yea Leonard Clarke: Then what’s this here?

Constable Jarrett Morgan: That’s your van parked down the side

Leonard Clarke: What side? Constable Jarrett Morgan: On down the side of the house going in alongside the house down there Leonard Clarke: Can’t see it can ya Constable Jarrett Morgan: Yea on the video and that you can see it. Leonard Clarke: Sometime it take, take ah you rushing through your investigation focus on one p- the wrong people, you does that a lot of times too, where does it see (unintelligible) fucking thing. All ya got my van right there and my van driving on the road . Well that’s only in, in cop town Constable Jerrett Morgan: That’s- the rest of them are the same Leonard Clark: Wha?

Constable Jarrett Morgan: The rest of them are, (unintelligible) Leonard Clarke: There’s no evidence there for fuck sakes. Boom take it to the prosecutor, you got nothing to show the prosecutor to. What are ya gonna show? A picture of my van going along by where I live? You got no evidence. You assume, you (unintelligible) investigation at times. You jump conclusions. Constable Jarrett Morgan: So tell me about that Lenny Leonard Clarke: I’m trying, you got no evidence, prosecutor gonna laugh at ye, crown whatever Constable Jarrett Morgan: Why though?

Leonard Clarke: Cause you, you got no evidence Constable Jarrett Morgan: Why do you think that? Leonard Clarke: Where’s the evidence to? Constable Jarrett Morgan: I just showed ya Leonard Clarke: Pffft jeez to try, picture of my van going along the road by the North Atlantic Constable Jarrett Morgan: Yea so tell me about that, where were ya going?

Leonard Clarke: I live there, that’s every day, fucking look back another few days you see I going by again and back out you gotta give me the van back, I’m not paying to get that back either, gotta give me, give em back [Emphasis added] [ 26 ] The Accused later in his Statement denied saying earlier that it was his van and claimed to mean only that what the police had was a van like his going by where he lived. [ 27 ] Constable Morgan testified that as part of his normal patrol, he drove by Mr. Clarke’s house every day for several months previous to the robbery and Mr.

Clarke’s van had not been moved during that entire period. The Accused’s van was not at his residence when the RNC investigated on the day of the robbery. The Accused’s van was located the following day in a nearby community, on the property of a friend of the Accused who from time to time did mechanical work on the Accused’s vehicles. position of the crown [ 28 ] The Crown argues that the Accused has been specifically identified by a credible eyewitness to the robbery, as the person driving the getaway van.

The Crown suggests that this evidence, combined with the Accused’s admission in his Statement that the van was his, together with the timeline of events is proof beyond a reasonable doubt of the identity of the Accused as the driver of the getaway vehicle and a party to the robbery at Green’s Pharmacy, Conception Bay South, on June 7, 2017.

POSITION OF THE DEFENCE [ 29 ] The Defence argues that the inconsistencies in the eyewitness evidence on what the driver said to her during their brief encounter combined with her failure to mention the robber was carrying a gun and bag at the time of giving a statement to the RNC, immediately following the robbery, raises a serious credibility concern with the Crown’s key witness, such that the reliability of the witness’ testimony and the accuracy of her evidence is suspect which therefore raises a reasonable doubt that the Accused was the driver of the getaway vehicle.

Additionally, the Defence points out that during the photo lineup Ms. Peckford described her “degree of certainty” that it was the Accused who drove the van as “almost sure”. It is argued that such an identification does not meet the onus on the Crown to prove beyond a reasonable doubt the identification of the Accused as the driver. The Defence takes the position that the evidence does not amount to a positive reliable identification of the Accused and a verdict of not guilty should be entered.

LAW Reasonable Doubt [ 30 ] I remind myself that the presumption of innocence is a cornerstone of our criminal law in Canada. The Accused is presumed innocent unless and until the Crown proves his guilt beyond a reasonable doubt. The presumption of innocence remains with the

Accused throughout the trial and is only defeated if and when the Crown satisfies the Court of his guilt by proving each essential elementof the offence beyond a reasonable doubt. [31] It is not enough for me to believe that the Accused is probably or likely guilty; proof of probable or likely guilt is not proofbeyond a reasonable doubt. However, the Crown is not required to prove the guilt of the Accused to an absolute certainty which is animpossibly high standard.

I remind myself that if at the end of the case, after considering all of the evidence, I am sure that the Accusedcommitted the offence to which he stands charged then I should find him guilty of that offence as I will be satisfied of his guilt beyond areasonable doubt. If at the end of the case based on all of the evidence or the absence of evidence or the lack of credibility of one ormore of the witnesses or the lack of reliability of the evidence I am not sure that the Accused committed the offence, then I must find theAccused not guilty.

It is within this standard of proof beyond a reasonable doubt that I must assess the evidence presented at trial todetermine if the Crown has proven that the Accused committed the offence charged (R. v. Lifchus, (SCC), [1997] 3S.C.R. 320, R. v. Starr, 2000 SCC 40). [32] Reasonable doubt then is based on reason and common sense and is logically connected to the evidence or absence ofevidence.

In its analysis of the evidence, a court must not apply the standard of reasonable doubt to individual items of evidence; a courtmust instead look at the “cumulative effect” of all of the evidence in determining whether guilt is established beyond a reasonable doubt(R. v. Kennedy, 2015 NLCA 14; R. v. T. (P.), 2017 NLTD(G) 27; R. v. Morin, (SCC), [1988] 2 S.C.R. 345 and Thomas v.The Queen, [1972] N.Z.L.R. 34 (C.A.). Eyewitness Identification Evidence [33] It is accepted that eyewitnesses who see the perpetrator of an offence, frequently make mistakes when asked to identify thatperson.

This is primarily attributed to the frailty of memory and the fallibility of observation. In R. v. Miaponoose, (ON CA), [1996] 110 C.C.C. (3d) 445, 93 O.A.C. 115 (Ont. C.A.), paragraph 11 states: 11 … Since perception and memory are selective processes, viewers are inclined to fill in perceived events with other details, aprocess which enables them to create a logical sequence. The details people add to their actual perception of an event are largelygoverned by past experience and personal expectations. Thus, the final recreation of the event in the observer's mind may be quitedifferent from reality.

Witnesses are often completely unaware of the interpretative process whereby they fill in the necessary but missing data. They will relatetheir testimony in good faith, and as honestly as possible, without realizing the extent to which it has been distorted by their cognitiveinterpretive processes. Thus, although most eyewitnesses are not dishonest, they may nevertheless be grossly mistaken in theiridentification. … [34] The accuracy of eyewitness testimony must be tested by a close scrutiny of other evidence. In R. v.

Atfield, 1983 ABCA 44,paragraph 3 states: 3 The authorities have long recognized that the danger of mistaken visual identification lies in the fact that the identification comesfrom witnesses who are honest and convinced, absolutely sure of their identification and getting surer with time, but nonethelessmistaken. Because they are honest and convinced, they are convincing, and have been responsible for many cases of miscarriages ofjustice through mistaken identity.

The accuracy of this type of evidence cannot be determined by the usual tests of credibility ofwitnesses, but must be tested by a close scrutiny of other evidence. In cases where the criminal act is not contested and theidentity of the accused as the perpetrator the only issue, identification is determinative of guilt or innocence; its accuracybecomes the focal issue at trial and must itself be put on trial, so to speak. … [Emphasis added] [35] Justice Stack of this Court in R. v.

Wiseman, 2019 NLSC 161, at paragraph 39 expressing caution with identification testimony,said “Identification testimony is fraught with fragility and can result in a wrongful conviction”. ANALYSIS [36] Within this framework of the law, the evidence presented by the Crown must be analyzed to answer the question: Has it beenproven beyond a reasonable doubt that the Accused was the driver of the getaway van and a party to the offence of robbery? [37] The starting point is the direct evidence of Ms. Peckford who specifically identified the Accused as the driver of the van.

It isthe accuracy of this eyewitness identification that is the focal issue and must itself be put on trial (R. v. Atfield). Reliability Of The Eyewitness [38] During her testimony, I detected no sign of evasiveness from Ms. Peckford. She gave straightforward answers to the questionsthat were put to her and appeared to precisely recall events. I did not observe any sense of exaggeration.

While she did admit sheremains traumatized by the events, she was rather unemotional in her demeanor in giving evidence and there was, during her cross-examination, ample opportunity for her to embellish the circumstances or be argumentative. This having been said, it has long beenaccepted that credibility is not dependent solely on demeanor and sincerity. Subjective factors may play a role in assessing the overallcredibility of the witness and the reliability of testimony proffered, however, any witness may herself believe their version of the factsbut be mistaken. [39] After Ms.

Peckford was alerted to the robbery her actions did not display any sense of panic. She was deliberate and cautious

when exiting the Pharmacy. The Pharmacy had experienced a robbery in April, 2017. Ms. Peckford was careful not to make any noise when opening the locked back door so as to alert the robber of her presence and she looked carefully to see that no possible getaway vehicle was parked at the back or side of the Pharmacy. Events occurred over a short period of time but the description of her actions was detailed. The Circumstances In Which The Witness Made Her Observations [ 40 ] Allow me to examine the circumstances of the observation in which the identification came to be made. An encounter between Ms.

Peckford and the driver of the van unfolded on a bright June afternoon. There was no suggestion the witness’ view was obstructed or compromised. She spoke directly to the driver while positioned at the driver’s window for what I would describe in the circumstances as a sustained period of time, 30-40 seconds. Her total interaction with the driver and with the robber jumping into the van was close to a minute. This cannot be described as a fleeting view, nor an identification from any considerable distance, nor was the identification made from within a crowd.

The witness had also realized before seeing the robber running to the van that the driver “probably is someone involved with the guy inside”. I believe it is reasonable to infer in the circumstances that Ms. Peckford’s attention may have been more acute because her suspicions were raised. The Description Given By The Eyewitness After She Made Her Observation [ 41 ] Within 6 hours of the robbery and the taking of the Statement from Ms. Peckford she participated in a photo lineup and identified the Accused out of twelve photos as the driver of the van. The Officers who conducted this interview with Ms.

Peckford had no knowledge of who in the photo lineup may be a party of interest to their investigating colleagues. There was nothing done during the interview to indicate to the witness, the person in the lineup, who was a suspect to the police. All candidates in the lineup were selected through acceptable practices and investigative findings such that the suspect was not conspicuously different from all others in age, build, color or complexion or in any other particular. [ 42 ] The witness identified the Accused and stressed recognizing a distinguishing physical feature of the Accused, “a down turned mouth”.

Twice in the photo lineup she states: Looks very, very, very much like number 11, you can see got kind of a down turned mouth, I noticed that now, as soon as I seen the picture. and … I’m almost sure, it’s just because of the way, the way the mouth is shaped, and I noticed that now that I’ve seen the picture, that something that I did ah in my statement today give as a description, his mouth had a down turn like this gentleman.

But as soon as I seen the picture I noticed when he spoke that he had this down turn in the lip.” … [Emphasis added] [ 43 ] It was also recorded by the Officer conducting the photo lineup interview that the witness comment on the “down turned mouth” of the person she was identifying in the photo as the driver. [ 44 ] The Defence argues that the witness at one point when asked about her degree of confidence that she was identifying the getaway driver replied, “I’m almost sure”, which raises a reasonable doubt in itself as to the accuracy of the identification. [ 45 ] In the context of the entire statement made by Ms.

Peckford during the photo lineup interview in question, it appears to me that the witness indeed held a high degree of confidence in her identification of the Accused as the driver and during her evidence at trial the witness stated she was very confident with her recollection of the Accused as the driver of the getaway van. However, with eyewitness identification evidence there is a weak link between the confidence level of a witness and the accuracy of that witness. [ 46 ] In R. v.

Hibbert , 2002 SCC 39 , the Court wrote: 51 The danger of wrongful conviction arising from faulty but apparently persuasive eyewitness identification has been well documented. Most recently the Honourable Peter deC. Cory, acting as Commissioner in the Inquiry regarding Thomas Sophonow, made recommendations regarding the conduct of live and photo line-ups, and called for stronger warnings to the jury than were issued in the present case (Peter deC.

Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001) ("Sophonow Inquiry"), at pp. 31-34). 52 While it is unnecessary to consider these recommendations in detail, I share the concern expressed by the Commissioner and, in this particular case, I think it would have been prudent to emphasize for the benefit of the jury the very weak link between the confidence level of a witness and the accuracy of that witness (Sophonow Inquiry, at p. 28) . …

[Emphasis Added] The Identification Does Not Stand Alone [47] The identification of the Accused as the driver does not stand alone: (

i) The witness described the getaway vehicle as a white van with distinctive passenger side windows. TheAccused owned a white van with the same described distinctive passenger side windows. (ii) Ms. Peckford memorized a license plate number that was within one digit from that of the Accused vehicle. (iii) The Accused vehicle was known to be located unmoved for previous several months, at the residence of theAccused which was within a kilometer of the robbery but could not be located by the RNC on the day of the robbery. (iv) The Accused admitted owning a van “like the one” in the video exhibits which was described to the Accused asthe getaway vehicle used in the robbery. (

v) A white van with distinctive side windows was captured on video minutes before the robbery entering ontoConception Bay Highway from the street where the Accused lived, a half kilometer from the site of the robbery. (vi) A similarly described van was seen shortly thereafter turning into the gravel lot close to the Pharmacy whereMs. Peckford described having an encounter with the driver of a white van. (vii) Within a minute of the robber exiting the Pharmacy, a white van with distinctive side windows was captured onvideo on the Conception Bay Highway immediately in front of the Pharmacy, which again Ms.

Peckford had described as the getawayvan. [48] The Defence points out an inconsistency between what Ms. Peckford said the driver uttered when she approached the van andasked if he had a cell phone she could use because they were being robbed. Her evidence at trial was he said “fuck, fuck, fuck”. In aStatement given to the Investigating Officer within an hour of the robbery, it was suggested the witness recalled the driver as saying “ohmy god”. It was further noted on cross-examination that Ms. Peckford failed to mention in her Statement seeing the robber carrying agun or bag when running towards the van.

At trial the witness did not recall if she told the Officer who took her Statement or not, thesefacts, but was confident the robber was carrying a gun and bag and that he uttered “fuck, fuck, fuck”. The Statement itself was in thehandwriting of the Officer and while he attempted to record what the witness was saying, he testified, it was possible his recording wasnot exact. The Statement was given in the back seat of the police cruiser, immediately following the robbery.

Knowing these facts andcircumstances and when considering all the evidence, I do not see the inconsistency in what the driver may have uttered as having suchsignificance so as to undermine the credibility of the identification. For the same reasons, I do not consider that the witness may not havedescribed the robber as carrying a gun and bag in her Statement to the RNC, of such weight so as to undermine the credibility of theidentification. conclusion [49] Based on the forgoing analysis, I accept the eyewitness identification evidence of Ms. Peckford.

Her direct evidence establishesa fact which resolves the matter at issue. The Accused was the driver of the getaway van. [50] In making this finding, I do so not accepting the Crown’s position that the Accused admitted in his statement that the van inquestion was indeed his van. When I view the full video and audio recorded Statement of the Accused, I cannot conclude with anydegree of certainty whether the Accused is admitting it is his van or if indeed he is being rhetorical and repeating only the claim of theOfficer.

I find that the Accused did not admit in his statement that the van in the video recordings was his. [51] In this case it was alleged that Mr. Clarke was the driver of the van used as the getaway vehicle in a robbery. Considering all ofthe evidence, I have found the allegation to have been proven by the Crown beyond a reasonable doubt. The Crown alleges that Mr.Clarke drove the van for the purpose of aiding the unknown robber to commit the robbery.

Being an aider to an offence makes anindividual a party to the offence within section 21(1) of the Criminal Code. [52] It has been considered a matter of indifference at law whether an individual commits the crime or aids and abets another in thecommission of a crime. In R. v.

Pickton, 2010 SCC 32, the Supreme Court of Canada wrote: 51 Generally speaking, there are two forms of liability for Criminal Code offences, primary or principal liability (actually orpersonally committing the offence), and secondary liability (also known as party liability), both codified in s. 21 of the Criminal Code.Whether an accused is found guilty either as a principal offender or as a party to the offence, the result is the same in law: the accusedwill be convicted of the substantive offence.

It is for this reason that it is sometimes said that it is "a matter of indifference" at lawwhether an accused personally committed a crime, or alternatively, aided and/or abetted another to commit the offence: R. v. Thatcher, (SCC), [1987] 1 S.C.R. 652 (S.C.C.), at p. 694; R. v. Bew (1955), (SCC), [1956] S.C.R. 124 (S.C.C.), atp. 127. This is also why the Crown need not specify in an indictment the nature of an accused's participation in an offence: R. v. Harder, (SCC), [1956] S.C.R. 489 (S.C.C.); Thatcher, at p. 694. [53] In R. v.

Brown, 2015 ONSC 3725, Justice Fairburn wrote at paragraph 93: 93 … At its core, aiding within the meaning of s. 21(1)(

b) means helping the principal offender to commit the offence: R. v. Briscoe,2010 SCC 13 , [2010] 1 S.C.R. 411 (S.C.C.) [Briscoe] at para. 14. [54] The Crown must prove beyond a reasonable doubt that the offence charged was committed. The video evidence and testimonyof four eyewitnesses lays to rest any doubt that an armed robbery took place as per the Indictment filed.

[ 55 ] Accepting the evidence of Ms. Peckford identifying the Accused as the driver of the getaway van, I find that the Accused committed the actus reus of the offence. He did the driving. [ 56 ] When it comes to the mens rea , a person aiding in an offence must do or omit to do something for the purpose of aiding the principal commit the offence. The aider must know the principal intended to commit the office and the aider must have intended to assist the principal in some way. The aider’s purpose must be to aid in that offence ( R. v.

Helsdon , 2007 ONCA 54 ). [ 57 ] Within the facts of this case we have the Accused parked in a vehicle in a gravel lot with the engine running next to the scene of the robbery. The bandit runs from the Pharmacy and jumps in the van and tells the Accused to “fucking drive, fucking drive”. There is a total absence of any apparent protest by the Accused as he started to drive fishtailing out of the lot with rocks and gravel going everywhere. [ 58 ] I find beyond any reasonable doubt from this evidence that the Accused knew that the perpetrator intended to commit a robbery.

He was waiting for the perpetrator with the engine of the vehicle running and when the masked man carrying a gun came running and jumped into the van, the Accused quickly drove away from the robbery. The Accused intended to aid and did aid the perpetrator in the offence by acting as the getaway driver to the armed robbery. [ 59 ] The mens rea has been satisfied. disposition [ 60 ] I find the Accused guilty of the offence charged and a conviction will be entered. _____________________________ Raymond P. Whalen Chief Justice