R v Campbell, 2018 MBCA 4

Citation: R v Campbell, 2018 MBCA 4 Date: 20180117 Docket: AR17-30-08864 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) J. A. Hyman ) for the Appellant Appellant ) ) J. L.

Ostapiw - and - ) for the Respondent ) TYLER SCOTT Campbell ) Appeal heard and ) Decision pronounced: (Accused) Respondent ) January 17, 2018 Cameron JA (for the Court): [ 1 ] The Crown appeals the acquittal of the respondent on one charge of trafficking in a controlled substance ( section 5(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 ) , one charge of failing to comply with a recognizance ( section 145(3) of the Criminal Code (the Code )) and one charge of failing to comply with a probation order (

section 137 of the Youth Criminal Justice Act , SC 2002, c 1 ) . All of the charges relate to one interaction that the respondent had with an undercover officer. [ 2 ] At the hearing, we dismissed the appeal. We indicated that further brief reasons would follow. These are those reasons. [ 3 ] The only issue at the trial of the respondent was identification. During the course of a major drug investigation, the respondent’s name became associated with a telephone number used for the sale of drugs.

On the date that the alleged offences occurred, an undercover officer viewed a photo of the respondent as a target of the investigation. Approximately one and one-half hours later, the officer was able to purchase three pieces of crack cocaine from an individual whom he identified as the respondent. The two then engaged in a brief conversation wherein the officer gave the individual a cigarette. The entire encounter lasted two to three minutes. [ 4 ] Less than two hours later, the officer identified the respondent in a photo line-up as the individual from whom he had purchased the cocaine.

The photo of the respondent in the photo line-up was the same as the target photo that the officer had viewed earlier in the day. Of note, the officer did not view all of the photos in the photo line-up. He testified that he stopped viewing them as soon as he identified the photo of the respondent. [ 5 ] The officer also identified the respondent at his trial. At that time, the respondent was in the prisoners’ dock in the courtroom.

Aside from the above, there was no other direct evidence identifying the respondent as the individual who sold the drugs to the officer. [ 6 ] The trial judge acquitted the respondent, concluding that it would be “dangerous to convict” on the identification evidence presented. In reaching his conclusion, he stated that the identification of the respondent was not reliable as it was “tainted” and that the officer identified the respondent “because that is the photograph that he was given.” [ 7 ] Pursuant to section 676(1) (

a) of the Code , the Crown has no right of appeal of an acquittal except on a ground that involves a question of law alone. The Crown cannot appeal factual findings or findings of mixed fact and law unless they give rise to an error of law. See R v JMH , 2011 SCC 45 at paras 24-28 . [ 8 ] The Crown claims that the trial judge erred in principle when he characterized the viewing of the target photo prior to the purchase of the cocaine as tainted as opposed to considering it to be recognition evidence. It contends that this recognition evidence

strengthened rather than weakened the identification of the respondent. While the jurisprudence often recognizes that recognition evidence may be afforded greater weight than stranger identification evidence, it is not, by necessity, a principle of law as argued by the Crown. In R v GS , 2008 MBCA 144 , Steel JA, writing for the Court, recognized that “highlighting the accused as a suspect by distributing his photograph to police officers, has its own frailties” (at para 3).

She continued to explain (at para 3): This is why each case involving identification evidence must be assessed according to the totality of the circumstances on which observation is made and the weight to be placed on those circumstances. See R. v. Klyne (C.L.G.) , 2007 MBCA 100 , 220 Man.R. (2d) 35 , and R. v. Andrilovic , 2007 ONCA 754 . [ 9 ] While it is unfortunate that the trial judge used the word tainted, when we read the totality of his reasons, we are of the view that he was merely underscoring the frailty of the evidence as he found in this case. That is, he found the identification to be unreliable.

Such a finding constitutes a finding of fact. Therefore, this ground of appeal does not raise a pure question of law and this Court is without jurisdiction to entertain it. [ 10 ] The Crown also argued that the trial judge failed to consider the totality of the evidence in relation to identification. To the extent that this argument raises a question of law, it is unsupported by the record. A review of the reasons of the trial judge demonstrates that he considered the positon of the Crown and defence in light of the evidence given.

He considered the strengths and weaknesses of the evidence of the officer who made the identification. In the end, the trial judge was not satisfied that the evidence was sufficient to prove the guilt of the respondent beyond a reasonable doubt. In our view, the Crown has not persuaded us that this ground of appeal should succeed. [ 11 ] Thus, for all of the above reasons, the appeal was dismissed. JA JA JA