Is it the Mayor or the police Chief or both who are deciding that this  act of political expression should be extinguished? And when, and how it shall be extinguished? This is a fundamental individual right, one upon which this society is founded. It has been enshrined in our very constitution in section 2(b):

2. Everyone has the following fundamental freedoms:

(a)  freedom of conscience and religion;

(b)  freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c)  freedom of peaceful assembly;

(d) freedom of association.

One thing that the above quote from the Mayor does not capture is the mid sentence “…uhhh…” which could be heard when it was played on the radio. Whether this was a truly pensive  “uhhh” or a pause to allow the brain to catch up to the mouth, is it sufficient thought or due process by which to tell a peaceful political protest to go to bed early without any supper? Hope nobody gets grounded.

Maybe a good way to advance the agenda of police accountability. But too bad it required the columnist to engage in some absolute fiction about the murder trial and resulting acquittals. Fact is, there was no evidence whatsoever that the witness whose recantation sunk the Crown’s case had ever been threatened in any way. [http://goo.gl/OGup4]. Nor was there any evidence of “gang” involvement.

In fact, the evidence in the trial was not even capable of ruling out the possibility that nobody shot Jordan Manners. The facts were equally consistent with a horrible accident in which the gun went off while the boys were inspecting it in the school bathroom. But not one single media outlet can resist repeating that the boy was a “shooting” victim, “gunned down” as the Post put it.

The possibility that this was not a murder is just completely unpalatable to a society in which scapegoats are essential cultural nutrition. The human mind needs this death to be the result of evil wrong-doing, not some stupid horrible accident.

At least the columnist referred to above invented the gangster intimidation angle for an ulterior purpose of chastising police who won’t enforce the law against other cops. That’s a bit better than all of the publishers and broadcasters who constantly presuppose the gangster intimidation angle out of ignorance of what the actual evidence was, or sheer greed for viewers/readers.

If evil wrong-doing is something the human mind absolutely needs in order to digest something so horrible, why not ponder the evil forces by which Canada is being continuously flooded with illegal handguns from the USA? That was probably the origin of gun that killed Jordan Manners. Why not publicize the fact that a lot of them come here as part of the drug trade which would not be nearly as voluminous and lucrative but for marijuana prohibition. Wide swaths of society – from doctors and lawyers and architects to builders, storekeepers and musicians – create a demand for the weed which would be less harmful than alcohol distribution but for the government forcing the entire supply chain into the hands of organized criminals.

Does the media ever look into how much of the weed that gets shipped south from our illegal grow houses gets paid for in illegal handguns coming north? No, it seems not. Those gangsters, though real, are too far removed to properly serve society’s scapegoating needs in the Jordan Manners death.

Easier to invent some local gangsters and mislead the public into thinking the trial was a travesty. Bonus: we don’t have to feel bad that two young men spent four years in jail for a crime they did not commit.

Sometimes family members are invited to provide “Victim Impact Statements” which are read aloud in court and taken into account by the Judge imposing sentence. These family members are readily recognized as “victims”, even though they did not personally and directly endure the violence for which the accused was convicted.

None of the above is controversial. Not even the most obstreperous defence lawyer would try to argue that they are not in fact victims.

Yet the Court of Appeal for Ontario describes a family’s interest in ensuring that a perpetrator is duly convicted by saying that they “may have derived some personal satisfaction from that conviction. That satisfaction, however, would have been a purely personal matter; it would have no reality in law.”

The interest of the family members of a homicide victim in seeing the perpetrator convicted has “no reality in law.”? Run that past a politician and see if they will publically agree.

But, to be fair, make sure you tell them this too. When the Court made this statement, it was in fact quoting from another well established case. And it was not talking about cases where an accused has been charged and put on trial. It was talking about cases where the police had failed to charge someone and the victim’s family wanted to sue police for negligent investigation.

The Court was referring to cases, for example, where someone wanted to sue because police negligently investigated complaints that a spouse was assaulting her children; or where a cyclist’s family sued one police officer for negligently investigating another police officer for impaired driving causing death. In those cases the family’s interest in seeing the perpetrator duly convicted would have “no reality in law.”

Thus in the case of Wellington v. Ontario the mother and sister of a 15-year-old killed by police at the wheel of a stolen van in a parking in 2006 could not sue the SIU for failing to interview the officer who fired the fatal shot and closing its investigation before even receiving a pathologist’s report.

The suspect police officer, or any criminal suspect for that matter, would be able to sue the investigators – whether police or SIU – for any negligence in the investigation.

But the desire of the dead 15-year-old’s mother and sister to see a full investigation of the death has “no reality in law”. That’s just the way it is. It may be that the law thus protects police who protect other police by not properly investigating police criminality. Maybe not. Run it past a politician and see if they will publically agree.

This blog is not a vehicle to criticize particular parties either directly, or indirectly by supporting another party. That said, it cannot be ignored that some of the last federal government’s justice initiatives had to be criticized directly [http://goo.gl/jX1g5], if only for ignoring the lessons that even so-called “law and order” politicians in the U.S. seem finally to have acknowledged.

The April 6, 2011, 1 hour special on the Current on CBC Radio1 offers the opportunity to even the critique among the parties a bit.

The topic was supposed to be “access to justice” and started with the Chief Justice of the Supreme Court of Canada observing that the ‘middle class’ may be the most deprived of all. (At Legal Aid Ontario, you won’t qualify if your family of 5 has $3584 per month to live from, even though there is nothing left of that to pay lawyers for any significant work at the end of the month).

Later in the episode, three politicians came for a dog and pony show which utterly failed to address the very issue that was supposed to be under discussion. Current Minister of Justice Nicholson pounded the point that his government puts “the emphasis on victims and law-abiding citizens.” The unspoken corollary is that his government is NOT putting the emphasis on accused person’s rights. To presume that complainants are “victims” presupposes that the accused are guilty. No wonder the government’s solution to long remand times was to eliminate enhanced credit for pre-trial custody rather than making sure people can get earlier trial dates. The accused are all guilty anyways.

To their credit, Messer’s Leblanc & Comartin from the opposition did make the point that the government should get people to trial more quickly rather than reduce the credit for waiting in jail while supposedly presumed innocent. But all they seemed to say about it was that we need more Judges and more Crowns and more Police. This without any mention of the fact that there is a shortage of lawyers able to defend accused people already. Adding more crowns and judges without addressing the shortage of available defence lawyers means these two may be just as likely to overfill the jails as the opponent they claim to disagree with. Ironically, they missed the access to justice angle even when it naturally arose on an episode that was supposed to be dealing with that very issue in the first place.

So the politicians managed to obliterate the entire premise of the episode. But did the show offer anything to voters who are trying to make a reasonably informed decision about which political party is most likely to take Canada down the U.S. road to being a world leader in incarceration? You decide. This is not a partisan blog.

As reported: “Mr. Kassim. Now is not the time for you to give your evidence,” Clark said firmly. “Ask a question and only ask a question. Please Mr. Kassim. Don’t make statements.” [http://www.thestar.com/news/crime/article/959525--judge-removes-accused-murderer-from-trial]

It is hard to keep an untrained litigator on track in cross-examination and the Judge’s comments no doubt reflect this was a good example. But if this accused is convicted, his appeal might be based on this very issue.

To some extent cross-examination is about making statements. An effective cross-examination includes a series of statements with which the witness is required to either agree or disagree. Cross-examination is in a real sense “the time for you to give your evidence”. The statements with which the witness is to be confronted must include anything contradictory that the accused or any opposing witnesses will say in their testimony, a requirement based on fairness – a witness must be given a chance to respond to contrary testimony before arguments are made that the witness should be disbelieved in favour of the contrary testimony. This is known as the Rule in Browne v. Dunn.

Judge Clark is very experienced in criminal matters and knows the above as well as anyone, so it can be presumed that this self represented accused person was indeed way off track with his questions and making statements that did not properly relate to the Rule in Browne v. Dunn.

But criminal trials and appeals also require consideration of the appearance that is created. For example, where a Judge appears to be acting in favour of one side a mistrial can be declared requiring the case to start over again, even if the Judge really was not trying to help one side over the other. A recent example of that is described in the report “Mistrial declared in dominatrix murder plot case”. In that case the Judge – the same Judge coincidentally – had to declare a mistrial for the appearance. As His Honour noted, “It was certainly not my intention to guide the Crown, either tactically or procedurally.” It was the appearance that mattered. In the dominatrix case the accused was not self represented and was therefore better positioned to make the arguments before the matter had to be appealed. [http://www.thestar.com/news/crime/article/886178--mistrial-declared-in-dominatrix-murder-plot-case]

FN [1] In R. v. Lyttle [http://www.canlii.org/en/ca/scc/doc/2004/2004scc5/2004scc5.html] the Supreme Court of Canada confirmed the soundness of the rule from Browne v. Dunn [(1893), 6 R. 67 (U.K. H.L.)] requiring notice to be given in cross-examination to witnesses whose evidence is contradicted by other evidence (para.s 64-65).

A leading informative judgment on the Rule in Brown e v. Dunnis that that of Justice Moldaver in R. v. McNeill. [http://www.canlii.org/en/on/onca/doc/2000/2000canlii4897/2000canlii4897.html]

Thank goodness the Globe and Mail has now made the piece unavailable (except for subscribers to GlobePlus). The full quotation referred to was “In fairness to him, Mr. Smith was willing to stick his neck out at a time when virtually no one else in his corner of the planet was.”

What I meant to convey with my “???!!!” comment was that the columnist in question either didn’t have a real concern at all – aside from churning out another column – or had really not thought it through. Perhaps a bit of both.

There has been a public inquiry to shed light on how and why the charlatan Smith was able as a ‘star crown witness’ to ravage the lives of so many innocent people. [http://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/index.html].

Smith’s victims were parents and other kin wrongly accused of having killed their deceased children. Their grieving could only take place under the harsh light of wrongful prosecution and/or behind prison bars. They were innocent, and unspeakably vulnerable witnesses.

The columnist referred to above could not of course attribute a single positive act to Smith but nonetheless was capable of writing that “he was willing to stick his neck out”. This is a term usually associated with courage or selflessness. The columnist can’t name one thing that Smith did that was actually courageous or selfless. Nor can she name anything specific that has been lost by his exposure as the worst kind of fraud against justice.

Earlier in the piece she states “his rise to stardom and fall to earth has altered the criminal justice system and rendered many of its participants timid.” If that means people are not willing to ‘stick their neck’ out by masquerading as a messenger of objective scientific information and basking in the spotlight while causing considerably more damage to human lives than all but the most heinous of criminals, then isn’t that good?

Smith was instrumental in create an entirely new genre of wrongful conviction. Traditionally wrongful convictions result from mistaken identity where a crime has obviously been committed. In these wrongful convictions, there had not even been a crime. Just the Crown and/or its ‘star witness’ ruining lives with impunity. Smith took self-righteous paranoia to new levels and gave new modern form to the term ‘witch hunt’. And apparently he is somehow missed by a columnist who often writes about criminal justice issues.

Among other things, Mr. Makin noted that “Judge Rosenberg told a weekend legal conference that plea bargaining is the result of “a big lie”: the legal system’s claim that defendants will not get a harsher penalty if they insist on a full trial and are convicted than they would if they plead guilty. In reality, he said, those convicted after a trial almost certainly get more punitive sentences than those who accept a plea offer.”

Nobody will disagree that Mr. Justice Rosenberg is “regarded by many to be the finest criminal law mind in the country.” I also agree that Justice Rosenberg’s message is absolutely essential information for politicians with the responsibility of legislating for criminal justice. They should hear and listen carefully to this warning, though it is almost certain that they will not.

I would add a clarification though, with great respect for Justice Rosenberg, to the claim that “those convicted after a trial almost certainly get more punitive sentences than those who accept a plea offer.” In my experience this is not always true. It is more likely to be true in those ‘more serious’ cases where police have conducted a serious ongoing investigation – the types of cases that Justice Rosenberg dealt with when he was a lawyer and that he now hears as a Court of Appeal judge. But those are surely a minority of cases.

But in the majority of cases the police investigation is over within hours of the alleged offence, punctuated by the photocopying of police notebooks and writing of a “Police Synopsis for Guilty Plea” in which the witness statements are regurgitated at their worst, sometimes with serious omissions and exaggerations, and sent along to the police court office. There is no further investigation. Any flaws in the investigation are now the sole responsibility of defence counsel.

Guilty pleas are usually taken in crowded courtrooms based on the Police Synopsis which a Crown lawyer presumes to be true and correct. But often in my experience the actual evidence cannot support the police claims fully, even if technically capable of proving guilt. In those cases, if the accused is convicted after trial, the facts on which the sentencing is based may be less serious than the ‘police facts’ which the Court would have heard on a guilty plea. This will often outweigh any ‘credit’ the accused might have been given for an early guilty plea and lead to a sentence that is not more punitive than the plea offer (see also http://www.gtclaw.ca/criminal-justice/hearings/), unlike the ‘more serious’ cases Justice Rosenberg probably had in mind (such as the case of Mr. Hanemaayer who pleaded guilty and served 2 years less a day in jail, instead of risking six- to 10-years if convicted on a trial. Police then conducted a further investigation and became satisfied that it was actually Paul Bernardo, not Hanemaayer, who broke into that house at night and jumped on the child’s back holding her mouth and threatening her with a knife: http://www.canlii.org/en/on/onca/doc/2008/2008onca580/2008onca580.html).

in which the accused pleaded guilty and spent two years less a day in jail, instead of the six- to 10-year term he would have faced on conviction. in April 2006 and then conducted a further investigation.  They are satisfied that Bernardo, not the appellant, committed the crime

Again, I am referring here to the ‘less serious’ cases for which police do not have the time or resources to conduct serious or ongoing investigations. What politicians are even less likely to hear and understand is that these so-called ‘less serious’ cases can still have a catastrophic effect on the accused and their entire families, sometimes on the uninvestigated word of a malicious vindictive liar or something more obviously shaky. Once the brief has left the police detachment, getting the truth out is nobody’s job – unless the accused retains an experienced criminal lawyer.

ONTARIO  COURT  OF  JUSTICE

BETWEEN:

HER  MAJESTY  THE  QUEEN

—  AND  —

T. V.

Before Justice Mara Greene
Reasons for Judgment released on Monday, February 28, 2011

M. Gharabaway..……………………………………………………………… for the Crown
G. Clark….. ………………………………….. for the accused Thushjanthan V

Greene, J:

Introduction

[1] Mr. V is charged with a number of offences arising from a vicious robbery of an elderly man, namely, assault with a weapon, assault causing bodily harm and robbery.  Mr. V elected to be tried by a Judge and Jury and to have a preliminary inquiry in the Ontario Court of Justice.   Identification was the only issue at the preliminary inquiry.

Facts

[2] On June 1, 2010 at approximately 12:30 pm, Mr. Desmond Crane was at a local laundromat when he was robbed.  The robber entered the laundromat on three different occasions.  The first two times, he approached Mr. Crane and attempted to sell him some cosmetics. On both these occasions, Mr. Crane spoke to the robber for a few minutes.

[3] When the robber entered the laundromat for the third time, he instructed Mr. Crane to put his laundry down. He then grabbed Mr. Crane’s shoulder and forced him to the ground.   The robber then took out a shovel-type object and hit Mr. Crane on the head with this object.  The robber then stole Mr. Crane’s wallet and fled the building.

[4] As a result of this brutal and senseless attack, Mr. Crane was taken to hospital where he required stitches.

[5] On the day of the robbery, Mr. Crane provided a full statement to the police along with a description of the robber.  Approximately three months later, on September 3, 2010, Mr. Crane was shown a photographic line-up. A video tape of this photographic line-up and the photographs from the line-up were made exhibits at the preliminary inquiry.

[6] Mr. Crane wrote the word yes on the fourth photograph he saw in the line-up. In doing so, he stated that the person in photograph number four (who was the accused) “might” be the person who robbed him.

[7] At the preliminary inquiry, Mr. Crane had no recollection of participating in the photographic line-up.  Instead, he testified that when he attended at the station he was only shown one small photograph of the person who robbed him.

Issues

[8] As previously stated, the only issue at the preliminary inquiry was whether there was some evidence of identification.

[9] The Crown argued that Mr. Crane made a positive identification of the robber when he wrote yes on the back of Mr. V’s photograph. Counsel for Mr. V argued that the identification by Mr. Crane amounts to nothing more than a resemblance and as such, there is no evidence upon which a properly instructed jury acting reasonably could convict.

Relevant legal principles

[10] The Crown properly pointed out that the role of the preliminary inquiry judge is not to assess credibility or weigh competing inferences.  Instead, a preliminary inquiry judge has a very limited role – to act as a gate keeper and only allow matters to proceed to trial “where there is admissible evidence which could, if it were believed, result in a conviction” (see R. v. Arcuri, (2001) 157 C.C.C. (3d) 21 (S.C.C.) per McLachlin C.J.C. at 30-31).  In other words, the preliminary inquiry judge must commit any accused person to stand trial where there is a scintilla of evidence upon which a properly instructed jury, acting reasonably, could convict.

[11] The test for committal is the same whether the Crown’s case is based on direct or circumstantial evidence. However, in each of these circumstances the process engaged in by the preliminary inquiry judge is different.

[12] Where the Crown’s case includes direct evidence, the task of the preliminary inquiry judge is straightforward.  As long as there is direct evidence of every essential element of the offence, the accused must be committed to stand trial.  The trial judge is not permitted to assess the reliability or credibility of this evidence (see R. v. Arcuri, supra).

[13] In cases where the Crown seeks a committal on the basis of circumstantial evidence, the task of the preliminary inquiry judge becomes somewhat more complex.   As McLachlin C.J.C. explained in Arcuri, at 31-2,

The question then becomes whether the remaining elements of the offence — that is, those elements as to which the Crown has not advanced direct evidence — may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established — that is, an inferential gap beyond the question of whether the evidence should be believed. . . .The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

[14] The preliminary inquiry judge’s limited weighing function means that the preliminary inquiry judge must not choose between competing inferences.  Instead, all inferences favouring the Crown must be accepted.   It is important to note that as long as the inference is reasonable, it must be accepted.  The inference need not be compelling or easily drawn.

[15] In R. v. Herrera, [2008] O.J. No. 3040 (O.S.C.), McCombs J. addressed the preliminary inquiry judge’s role in assessing identification evidence.  McCombs J. stated at paragraph 23,

For the purpose of committal, there is a distinction between cases involving frail identification, as in Mezzo, supra, and cases where, on the whole of the evidence, the identification does not meet the threshold requirement of a positive identification.  While a preliminary inquiry judge is not permitted to weight a positive identification, he or she is required to consider the whole of the evidence and determine whether an unsure “identification” or statement that a person “looks familiar’ amounts to an identification at all, much less an identification on which a reasonable jury, properly instructed, could convict.

[16] As the sole issue in the case at bar is identification, I must answer two questions (a) whether Mr. Crane’s identification of Mr. V in the photographic line-up amounts to a positive identification  and (b) if it does not amount to a positive identification, whether, when considering all the evidence, there is evidence of an identification on which a reasonable jury, properly instructed, could convict.

The relevant evidence of identification:

[17] At the preliminary inquiry, Mr. Crane testified that the person who robbed him was 5’10”, had a roundish face, straight nose that widened on the bottom, weighed approximately 190 lbs and was the same complexion as Mr. Crane, or possibly a bit darker.

[18] During the photographic line-up, Mr. Crane was shown 12 photographs consecutively.  Mr. Crane was instructed to write yes or no on the back of the photographs indicating whether or not the person seen in the photograph was the person who robbed him.

[19] Mr. V’s photograph was the fourth photograph viewed by Mr. Crane.  When Mr. Crane saw this photograph he stated, “this one is close”.  The officer asked Mr. Crane to explain why he thought this photograph was close.  Mr. Crane told the officer that the male in the photograph had a cleaner head than the male who robbed him, but the eyes and the shape of his face looked like the person who robbed him.   Mr. Crane also told the officer that the person in photograph four “might be him but I don’t know if the beard is 100%.” Mr. Crane further stated that, “this guy has the same eyes.  I think this could be him.”

[20] Mr. Crane asked the officer if he could keep photograph number four out so that he could compare it to the other photographs.  The officer properly advised Mr. Crane that this was not permissible. After looking at the photograph for approximately three minutes, the officer asked Mr. Crane if he believed this to be the offender.  Mr. Crane stated, “I think it could be him yes. You want me to keep looking?”  At some point, while Mr. Crane was looking at photograph number four, the officer instructed Mr. Crane that he had to write yes or no on the back of the photograph.  Mr. Crane ultimately wrote the word “yes” on the back of photograph number four.  After Mr. Crane wrote the word “yes”, the officer held up the photograph and stated to Mr. Crane, “so you believe this might be your offender?”  Mr. Crane replied yes.

[21] Mr. Crane continued to look at the remaining photographs one by one.  When he reached the ninth photograph, Mr. Crane studied it at length and stated that this photograph is the “closest” one.  He then wrote the word “no” on the back of the photograph stating that he was not 100% sure that this was a photograph of the man who robbed him.

[22] As previously stated, Mr. Crane testified at the preliminary inquiry that he had no memory of the photographic line-up described above.  Instead, he recalled only being shown one small photograph.  He testified that he identified the perpetrator in this one small photograph.  During the course of his evidence, however, portions of the video tape of his photographic line-up were played. When Mr. Crane saw himself on the video commenting that the person in photograph number four looked like the person who robbed him, Mr. Crane testified in Court that just because the eyes look like the robber, it does not mean that the person in photograph four was in fact the person who robbed him.

Analysis

1. A. Did Mr. Crane make a positive identification?

[23] Mr. Crane wrote the word “yes” on the back of Mr. V’s photograph.  On all the evidence, however, I cannot take the word “yes” on the back of the photograph to be evidence that Mr. Crane selected Mr. V as the man who robbed him.  This is because, while he wrote the word “yes” on the photograph, he made it clear that all he was saying in writing the word “yes” is that Mr. V “might be the person” who robbed him. During the photograph line-up, Mr. Crane told the officers that Mr. V’s eyes and the shape of his face looked like the person who robbed him.  At one point he also stated that the eyes of the man in the photograph looked like the eyes of the man who robbed him.  Moreover, when he wrote the word “yes” on the photograph, the officer clarified that all Mr. Crane was saying was that the person in photograph number four “might” be the person who robbed him.   In my view, this is very different from Mr. Crane saying, “this is the person who robbed me” or even “I think this is the person who robbed me.”  In my view, it would be an error for me to focus on what Mr. Crane wrote on the photograph and ignore the comments made by Mr. Crane when he wrote down the word “yes”.  I note that in R. v. Dorsey, [2003] O.J. No. 571 (C.A.), the Court of Appeal found that the trial judge erred by failing to consider the qualified nature of an identification.  In that case, the witness, upon seeing the photograph of the accused, initially stated that, “this guy looks like him a lot”.  He later stated that he was 99.9% certain he had selected his assailant.  The Court of Appeal found that the trial judge erred in that “by focusing on the complainant’s subsequent statement that he was 99.9% certain he had selected his assailant, the trial judge failed to consider the frailty of the initial photo identification”.

[24] The Crown further argued that the word “yes” on the back of photograph number four was particularly significant because Mr. Crane wrote the word “no” on the back of photograph number nine, a photograph that when first seen by Mr. Crane led him to state that it was “the closest”.  She argued that this evidence supports the inference that Mr. Crane’s yes on photograph number four meant that the person in photograph number four was the perpetrator and as such it was a positive identification.  I disagree.  In my view, the inference sought by the Crown is not reasonable and is nothing more than speculation.  There is no evidence upon which one can assess why Mr. Crane wrote “yes” on photograph number four and “no” on photograph number nine after stating that photograph number nine is the “closest one”.  The words he wrote do not appear to accord with his comments to the police.  In my view, it is his comments about the photographs that are significant and provide clear evidence about what Mr. Crane meant when he wrote the words “yes” and “no” on the different photographs.

[25] I agree with the Crown that my job as the preliminary inquiry judge is not to weigh competing inferences but only to decide if an inference can be drawn.  It is neither here nor there whether the inference the Crown seeks is easily supported by the evidence or the inference that I would make.  As long as the proposed inference is logically derived from the evidence, I must accept the inference that most favours the Crown.  In my view, however, the inference the Crown asks me to draw is not reasonable and is not supported by the evidence.   Mr. Crane was clear in the videotape.  In selecting photograph number four, all he was saying was that this person “might” be the man who robbed him because the man in the photograph had similar eyes and that the shape of his face was the same as the robber’s shape of face. It would be unreasonable to override this clear statement by trying to speculate on why he wrote “no” on photograph number nine when he was not 100% certain and “yes” on photograph number four when he also clearly stated he was not 100% certain this was the person who robbed him.

[26] In my view, the case law supports the conclusion that the identification made by Mr. Crane does not amount to a positive identification.  In R. v. Reitsma, [1997] B.C.J. No. 2314 (C.A.) Rowles J. (whose dissenting judgment was adopted by the Supreme Court of Canada [1998] 1 S.C.R. 769) stated at paragraph 48,

When the complainant was shown the photo line-up on the day after the break-in, he did not make a positive identification.  Instead he wrote on the line-up form ‘photo #7 is similar to the suspect although I cannot be 100% sure from the photo.  I feel that I could identify the individual in person [emphasis added].

[27] Moreover, in R. v. Dorsey, supra, the Court of Appeal confirmed that a qualified identification is not a positive identification.  The Court stated at paragraph 10,

The trial judge also failed to consider the qualified nature of the complainant’s initial identification of the appellant in the line-up.  It took the complainant five minutes to select the appellant’s photo, after which the complainant initially gave a qualified identification, “this guy looks like him a lot”.  This initial qualified statement cannot, without more, be elevated into a positive identification. [emphasis added]

[28] In the case at bar, Mr. Crane at no point stated that the person in photograph number four was the person who robbed him.  At its highest, he said the person “might” be the man who robbed him and that, his eyes and shape of face looked like the man who robbed him.   In my view, this is the same as saying that the person in photograph four “looks like him a lot” and as such does not amount to a positive identification.

[29] In my view, it matters not that Mr. Crane had plenty of opportunity to observe his perpetrator.  This does not assist me in determining whether or not a positive identification has been made given the evidence presented in this case. I am not assessing the reliability of the identification.  I am determining whether or not a positive identification has been made.

1. B. Does the qualified identification amount to sufficient evidence of identification to support a committal to stand trial?

[30] Having found that this is not a positive identification, I must go on to determine whether this qualified identification is sufficient to support a committal to stand trial.  In R. v. Hererra, [2008] O.J. No. 3040 (S.C.J.), McCombs J. stated at paragraph 28:

Where the purported identification evidence is unclear, tentative, and contradictory, as it was in the present case, the preliminary inquiry judge must make some determination of what the evidence amounts to-not its strengths or weaknesses, but whether it amounts to evidence of identification”.
[31] I appreciate that in the case at bar, the identification evidence is not contradictory.  Neither counsel suggested one way or another whether the general description provided by Mr. Crane is similar or dissimilar to Mr. V’s actual appearance.  I do note, however, that the initial description provided by Mr. Crane was very general and could describe any number of people.   Given the fact that there is no positive identification of the robber, as the preliminary inquiry judge, I must determine whether the evidence presented amounts to some evidence of identification.

[32] In R. v. Willis, [2008] O.J. No. 1875 (S.C.J.), a key identification witness looked at a photographic line-up and selected the accused as the person he “thought” was the shooter.  He testified at trial that he was not 100% certain that the man in the photograph was the shooter but, from his recollection, he thought that this was the person who fired the gun.  The Crown argued that the case at bar is similar to R. v. Willis and supports the finding that the qualified identification put forward in the case at bar is sufficient evidence to support a committal to stand trial.  In my view, the Willis case is very different from the case at bar.  In that case, there was other circumstantial evidence of identification beyond that of the uncertain eyewitness.  That evidence included:  a) the accused was found in the van that the shooter was seen entering right after the shooting b) the accused fit the description of the shooter c) that gunshot residue was found on Mr. Willis at the time of his arrest just moments after the robbery d) the location of the gun also pointed to Mr. Willis being the shooter as it was found in a snow bank on the route taken by the van carrying Mr. Willis.  The trial judge relied on all this evidence combined in deciding that identification had been proven beyond a reasonable doubt. While I appreciate that the trial judge stated that Mr. Persaud’s evidence was reliable identification evidence, she at no point indicated that had his qualified identification been the entirety of the identification evidence she would have convicted.  Instead she stated, “considering the evidence as a whole…”  Given these key differences, I do not find R. v. Willis determinative of the issue I must decide.

[33] The Crown also relied on R. v. Taylor, [2004] O.J. No. 5644 (S.C.J.).  In that case, the defence sought to exclude the identification evidence.  Sach J. held that the evidence was admissible but recognized that many factors affected the weight to be afforded the identification evidence.  In particular, she noted that the identification was a “qualified” identification.  Sach J., in commenting on the identification stated as follows: “it is not an ‘that is the man’ identification, but rather a statement that ‘he looks like the man’”.   Ultimately, Sach J. found that had the qualified identification been presented alone it would “fall short of establishing Mr. Taylor’s guilt”.   As Sach J. was acting as a trial judge, she did not address whether this evidence alone would have met the test for committal to stand trial, but in my view, if this evidence alone could not support a conviction, it suggests to me that it would not meet the test for committal.  If the evidence can never be sufficient evidence to support a conviction, then the evidence cannot be seen as some evidence upon which a properly instructed acting reasonably could convict.   In my view, a review of other cases supports this conclusion.

[34] In R. v Reitsma, supra, the Supreme Court of Canada, in adopting the dissenting judgment from the Court of Appeal, found that the qualified identification from a photographic line-up (witness stated the perpetrator looked similar to the perpetrator) coupled with an in-dock identification was not sufficient evidence to support a conviction.  The Court held that the conviction was unreasonable and entered an acquittal.

[35] In R. v. Brooks, [1996] O.J. No. 1737 (S.C.J.), Chadwick J. quashed a committal to stand trial based on the absence of evidence of identification.  In that case, the main eyewitness selected Mr. Brooks out of a photographic line-up but in so doing stated that he looked “similar” to the perpetrator.  The reviewing Court found that this did not meet the “sufficiency test in that there is basically no evidence of identification”.   I note that there are some key differences between the case at bar and R. v. Brooks. In Brooks, the eye witness did not state that Brooks “might” be the perpetrator but instead only said he looked similar to the perpetrator.  Moreover, there were also important inconsistencies between the description the witness gave of the perpetrator when she spoke to the police and the description she gave of the perpetrator at the preliminary inquiry.  No such inconsistencies existed in the case at bar.

[36] None of the cases I have considered are on all fours with the case at bar.  It is rare indeed to find a case with the exact same facts the Court has to consider.  While there is no clear rule of law that a qualified identification standing alone will never amount to sufficient evidence of identification to support a committal to stand trial, in my view, when I consider the relevant case law, the qualified identification given by Mr. Crane, without some other evidence, is not sufficient evidence to amount to some evidence of identification that a properly instructed jury, acting reasonably, could convict on.   I reach this conclusion because a)the initial description provided was vague b)Mr. Crane was clear that while there were some similar features between the accused and the perpetrator, he was unable to state definitively that the accused was the person who robbed him c) Mr. Crane confirmed that this was all he meant when he testified at the preliminary inquiry d) five photographs later, Mr. Crane stated that the ninth photograph was the “closest” (having already seen Mr. V’s photograph), and e) there was no other evidence to bolster the qualified identification into an actual identification.   In my view, the evidence presented by the Crown in this case falls short of that required to support a committal to stand trial.

[37] I note that the Crown did present a still photograph taken from a surveillance camera.  The officers who testified at the preliminary inquiry, however, were unable to state where the surveillance video came from without resorting to hearsay evidence.  It appears that the video was dropped off by someone (there was no evidence as to who dropped it off) at the division and then reviewed by Detective McIntyre who then passed it on to Detective Crawford.  The Crown did not ask to admit the hearsay evidence and did not rely on the still photograph to bolster the identification evidence.  Had there been evidence that Mr. V was in a nearby store around the same time of the robbery, this additional evidence when considered with Mr. Crane’s qualified identification would likely have been sufficient to meet the test for committal to stand trial.

[38] For the reasons noted above, Mr. V is discharged.

Released on February 28, 2011

“In my career as a family lawyer, I came to realize that judges are abysmal at discerning liars from truth-tellers. And when they are uncertain about the facts, judges typically search for a compromise position. It is apparent that the judge in this case had reasonable doubts about the rape allegation. Rather than acquit, his compromise was to find the man guilty and then invoke mitigating circumstances to reduce the normal sentence, bringing condemnation upon himself.”

The original story was “No Jail For Rapist Because Victim ‘Wanted To Party,’”.

The letter was striking because it touches on the issue of how-on-earth are lawyers supposed to suddenly be gifted at divining truth-tellers from liars just because they have been appointed to the bench? There’s no training for that (divining). Moreover, the way this writer puts it (“judges are abysmal at discerning liars from truth-tellers…”) is a pretty heavy indictment of the judging in question. I wonder if the writer is no longer practicing law because I wouldn’t be surprised to see a complaint to the Law Society about public statements like that. For the same reason, I would be reluctant here to say “ain’t it the truth” even if I had encountered some similarly abysmal judging myself (which I am not saying I have).

What I can say is this: if you have something on a witness that can impeach them or draw their credibility into question, do not hold back. Use it all, and then some. Throw whatever book you may have at them, figuratively speaking. Even experienced judges, it seems, can end up believing a witness when nobody else in the room did. There are so many examples in the appellate case law that one is reluctant to single out any case or judge in particular as an example, but here is a recent one worth reading.

Meanwhile in Canada the federal government appears to be intent upon implementing some of the very worst and most discredited criminal law policies of all time, from more and increasingly severe mandatory minimum sentences to the general expansion of the utterly failed ‘war on drugs’. All of this while crime rates are clearly falling and certainly offer no rationale whatsoever for a knee-jerk ‘law and order’ reaction. [See, e.g., http://fullcomment.nationalpost.com/2011/02/19/conrad-black-the-case-against-being-dumb-on-crime/ ; http://www.theglobeandmail.com/news/opinions/jeffrey-simpson/playing-the-politics-of-slogans-and-fear/article1916381/]

What this means is that public safety is being reduced while so-called conservatives expand the government in order to fix something that ‘ain’t broken’.

Again the irony of being a criminal defence lawyer is brought home because although I am less safe as a citizen, my job security is ever increased. On an purely economic analysis, when these politicians shamelessly pander to irrational fears that I don’t actually entertain I should seriously consider voting for them anyway.

PS: this is not a partisan comment. I also have observations about how the liberals, not without the support of the NDP, have also tried their hand at needlessly expanding the state’s ability to put more humans in cages faster and for longer than ever before.