Between
Her Majesty the Queen, and
Dennis Johnson
[2003] O.J. No. 3580
Ontario Superior Court of Justice
Toronto, Ontario
Croll J.
Oral judgment: September 10, 2003.
(14 paras.)Counsel:
J. Rinaldi, for the Crown.
L. Sabsay, for the accused.
1 CROLL J. (orally):- The defence moves pursuant to sections 7, (11)(d) and 24(1) of the Charter for; one, an order excluding evidence of the preliminary inquiry in-court identification of the defendant, Mr. Johnson, by Atalbert Roberts; two, for an order excluding evidence of any in-court identification by Mr. Roberts of Mr. Johnson at the upcoming trial; and three, an order precluding the Crown Lawyer from asking Mr. Roberts to make an in-court identification of Mr. Johnson at the upcoming trial.
2 The defence position is that this evidence has no probative value and if included, it will be so prejudicial as to deny Mr. Johnson's right to a fair trial. I will briefly review the relevant facts as they relate to the identification issues.
3 Mr. Johnson is charged with, among other counts, attempted murder of Charles Soole on May 27th, 2001 at the Jane and Finch Mall in Toronto. Mr. Atalbert Roberts was a witness to the alleged shooting.
4 On June 20th, 2001 Mr. Roberts was interviewed on video tape at 31 Division. At that interview a photo line-up package was placed in front of Mr. Roberts and the photo line-up included a photograph of Mr. Johnson. When asked to try to identify the shooter from among the photos, Mr. Roberts told police interviewers that honestly he couldn't remember faces. In the interview Mr. Roberts also referred to his health problems and stated that he does not remember what he sees when he is afraid. He indicated on the video tape the closest face that came to his mind, and that face was not the photograph of Mr. Johnson.
5 Mr. Roberts then gave evidence at preliminary hearing in November 2002. Mr. Roberts maintained that an individual at the Jane Finch Mall fired four shots at another person, including two at close range. Mr. Roberts identified Mr. Johnson in court that day as the shooter. His evidence at the preliminary hearing was that when he saw Mr. Johnson coming into court that day, he realized or remembered that Mr. Johnson's face was the face that he had seen on the shooter. He acknowledged at the preliminary hearing that until that morning he had blocked out the shooter's face. The evidence of Mr. Roberts at the preliminary hearing also refers to his medical problems and Mr. Roberts frankly admitted that he forgets a lot as a result of him being on a oxygen machine since about 1987.
6 The Crown concedes the weakness of identification evidence generally and the specific problems that arise from in-dock identification. It is also not in dispute that the trial judge has the discretion to exclude evidence to ensure a fair trial and for that I cite R. v. Harrer (1995), 42 C.R. (4d) 269.
7 What is in dispute is whether the inclusion in this case of the evidence of the in-dock identification from the preliminary hearing and any potential in-dock identification at the upcoming trial, would be so prejudicial as to prevent a fair trial.
8 In his submissions the defence also points to discrepancies in the information that Mr. Roberts gave to police at different times about the shooter's height and weight and the discrepancies between Mr. Roberts physical description of the alleged shooter and the descriptions given by other witnesses. If these were the only problems with Mr. Roberts' evidence, I would be satisfied that they could be addressed by thorough cautions about identification evidence. However, this is not the case.
9 Here Mr. Roberts was unable to identify Mr. Johnson in a photo line-up at the police interview some three weeks after the alleged shooting, but at the preliminary hearing some 18 months after the alleged shooting he was certain that Mr. Johnson was the shooter. The recognized frailties of in-dock identification are made even more acute in this case by Mr. Roberts' admitted memory problems. These memory problems remove any evidentiary basis for Mr. Roberts' identification of Mr. Johnson.
10 For all these reasons I conclude that at the preliminary hearing Mr. Roberts' evidence, however well intentioned, was premised on suggestion, created directly or indirectly, by Mr. Johnson's presence in the courtroom that day. (See R. v. Smierciak (1946), 87 C.C.C. 175 as cited in R. v. Miaponoose (1996), 110 C.C.C. (3d) 445. As was held in Reitsma 125 C.C.C. (3d) 1, anything that tends to convey to a witness that a person is suspected by the police or is charged with the offence has the affect of reducing or destroying the value of the identification evidence.
11 As such the in-dock identification evidence of Mr. Roberts has little or no probative value. Against this probative value, or lack thereof, I must weigh the prejudicial effect of the in-dock identification, that is the risk that the jury will use the evidence for an improper purpose, notwithstanding instructions to the contrary. (R. v. Gagnon 147 C.C.C. (3d) 193.)
12 As acknowledged by the Crown, the problems of identification, especially in-dock identification, are well documented and the book of authorities provided by the defence includes the leading cases in this area. These cases recognize that of all types of evidence, eyewitness identification is most likely to result in a wrongful conviction.
13 In R. v. Holmes, a recent decision of the Ontario Court of Appeal, 169 C.C.C. (3d) 344, the witness tentatively identified someone other than the accused at the photo line-up, but she identified the accused at the trial, facts I find similar to those before me. The Crown submits that the facts in Holmes are distinguishable as the witness only caught a fleeting glimpse of the accused. However, I do note that in this case, Mr. Roberts' view of Mr. Johnson happened during the chaos of a shooting and he left the scene to go inside the mall to call 911. As such, I am satisfied there were similar limitations on Mr. Roberts' ability to observe. In Holmes, a new trial was ordered for reasons other than the problems with the identification evidence. However, Justice Rosenberg noted that the prejudicial effect of the in-dock identification outweighed its probative value and said that on the new trial, if exclusion of the evidence is sought, the trial judge should exclude it.
14 I am satisfied that in this case, like Holmes, the prejudicial impact of the inn-dock identification outweighs any probative value and puts a fair trial in jeopardy. As such the defence application is granted.
