Supreme Court
Decision Information
Decision information:
Abstract: Transcript of Ruling (re in-dock identification)
Decision Content
R. v. McDonald et al, 2009 NWT 20
S-1-CR-2007-000106/S-1-CR-2008-000052
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
LEONARD MORRIS MCDONALD
--------
HER MAJESTY THE QUEEN
- v -
IRVIN DOUGLAS MCDONALD
Transcript of the Ruling (re in-dock identification)
delivered by The Honourable Justice D.M. Cooper, in
Yellowknife, in the Northwest Territories, on the 26th
day of March, 2009.
APPEARANCES:
Ms. J. Luke: Counsel on behalf of the Crown
Ms. C. Wawzonek: Counsel on behalf of the Accused
Leonard Morris McDonald
Mr. J. Bran: Counsel on behalf of the Accused
Irvin Douglas McDonald
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Charge under s. 271 C.C.
Ban on Publication of Complainant/Witness
Pursuant to Section 486.4 of the Criminal Code
1 THE COURT: The accused, Leonard McDonald
2 and Irvin McDonald, stand charged with having
3 sexually assaulted Chantal Shae on March 10th,
4 2007, at Norman Wells, in the Northwest
5 Territories; specifically, there was one assault
6 by one of the accused acting alone at
7 approximately 4 a.m. and another assault,
8 allegedly, by the other accused acting alone at
9 approximately 11 a.m.
10 Prior to the commencement of trial, the
11 accused Leonard McDonald applied to prevent the
12 Crown from asking the complainant and another
13 witness, Lorraine Gardebois, from identifying him
14 "in-court" and to preclude the Crown from reading
15 from the transcript of the preliminary inquiry
16 evidence of prior identification. The
17 application was based on the Charter of Rights
18 and Freedoms and specifically, sections 7, 11(d),
19 and 24(2). I ruled that section 24(2) was not
20 available as a remedial tool since it could only
21 respond to evidence illegally or wrongfully
22 obtained and not that which was properly obtained
23 but may be deficient and potentially wrongfully
24 tendered. As well, I found the application to be
25 premature in any event. In dismissing that
26 application, I noted that it was always open to
27 the applicant to apply during the trial to have
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1 evidence excluded based on the residual
2 discretion in the trial judge to exclude evidence
3 which may be of minimal probative value when
4 compared to the prejudicial effect to the accused
5 in order to ensure a fair trial. Being alive to
6 the issue of alleged tenuous identification, I
7 directed that the Crown not attempt to have the
8 complainant or any other Crown witness identify
9 the applicant in court until after the conclusion
10 of cross-examination when counsel for the
11 applicant would have an opportunity to renew the
12 application based on my residual discretion.
13 The evidence of the Crown has now been
14 tendered and defence counsel have concluded
15 cross-examinations. In accordance with my
16 previous direction, the complainant has not been
17 asked to make in-court identification pending a
18 potential application to exclude and my ruling.
19 The Crown is not seeking to have Lorraine
20 Gardebois identify either of the accused but only
21 the complainant.
22 Both Leonard McDonald and Irvin McDonald
23 have now brought application to have me exercise
24 my residual discretion as trial judge to preclude
25 the Crown from having the complainant make
26 in-court identification of them.
27 The issue then to be decided is whether I
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1 consider the evidence so lacking in probative
2 value when measured against its prejudicial
3 effects that I should exclude it from
4 consideration by the jury or whether I should
5 leave the evidence to the jury to weigh since
6 findings of fact and credibility are exclusively
7 within its province while ensuring that
8 appropriate cautions about the frailties of
9 in-dock identification and specific portions of
10 evidence are given.
11 There are a number of cases which suggest
12 that in virtually all cases the evidence should
13 go to the jury.
14 In the case of R. v. Mezzo from the Supreme
15 Court of Canada, the court said:
16 It is impossible to disagree with
17 Lord Widgery when he speaks of the
18 danger of error in visual
19 identification. Nobody could
20 disagree with his assertion of the
21 need for a careful and complete
22 direction to the jury with regard to
23 their treatment of such evidence.
24 When, however, he introduces the
25 suggestion that the trial judge
26 should consider the quality of the
27 evidence and, where he finds it
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1 wanting, take the case from the
2 jury, he enters more controversial
3 ground and authorizes the trial
4 judge to encroach on the jury's
5 territory. Such a step blurs or
6 even obliterates the clear line
7 separating the functions of judge
8 and jury. Questions of credibility
9 and the weight that should be given
10 to evidence are peculiarly the
11 province of the jury. The term
12 "quality", as applied by Lord
13 Widgery, is really nothing more than
14 a synonym for "weight".
15 I note that that case was heard by the court
16 in 1985. It was cited with approval by Mr.
17 Justice de Weerdt, as he then was, of our court
18 in R. v. Abel, a case that was decided in 1986.
19 As well in R. v. Gagnon, Mr. Justice
20 McIntyre, speaking for the Ontario Court of
21 Appeal, had this to say:
22 The trial judge was correct that the
23 generally accepted state of the law
24 is that, where evidence is tainted,
25 either because identification was
26 suggested by the accused's presence
27 in the prisoner's box or as a result
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1 of inappropriate police procedures,
2 the evidence is not thereby rendered
3 inadmissible. Rather, the evidence
4 of tainting is a factor going to the
5 weight of the evidence...
6 Further, the court said:
7 It is not always easy for a trial
8 judge to know when to exercise his
9 or her role as the guardian of a
10 fair trial and when the judge is
11 trespassing on the exclusive
12 prerogative of the jury to weigh the
13 evidence.
14 There are, however, many, many cases where
15 convictions of accused have been overturned on
16 in-dock or so-called "fleeting glance"
17 identification, including R. v. Bennett, R. v.
18 D.R.H., R. v. Williams and R. v. Bigsky, to name
19 a few. In each case, the evidence of
20 identification was deficient and/or so tainted
21 that the appellate courts found that the verdicts
22 could not be supported by the evidence and were
23 unreasonable and entered acquittals.
24 The defence has tendered the case of R. v.
25 Sandhu where the trial judge excluded
26 identification of the accused in a murder case on
27 a motion prior to the trial while the judge
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1 exercised his residual discretion.
2 The Crown is correct in arguing that in most
3 cases dealing with this issue, the evidence went
4 to the jury as triers of fact or to put it
5 another way, the evidence was tendered and upon
6 conviction and appeal the verdict was overturned.
7 In some cases the appeals were dismissed. To
8 exclude evidence of identification from going to
9 the jury puts the trial judge just one short step
10 away from directing an acquittal. I am of the
11 view that a judge should only exercise his
12 discretion to exclude evidence of this nature in
13 the most compelling of cases where he is
14 satisfied that the ends of justice demand that he
15 do so.
16 The Crown asks that a distinction be made in
17 this case between identification and recognition
18 where the assailant is not someone the
19 complainant has never seen before. Here the
20 evidence is that the complainant observed Irvin
21 McDonald sleeping on a couch in the trailer but
22 never talked to him and paid little attention to
23 him since she was concentrating on talking to
24 Lorraine Gardebois and Justin McDonald. There is
25 some question of whether from her vantage point
26 at the kitchen table she could see the head of
27 Irvin McDonald. She says she was in close
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1 proximity to Leonard McDonald at the kitchen
2 table for a period of time long enough to have
3 one and a half beers, but the evidence is that
4 she did not engage in conversation with him and
5 basically paid no attention to him. And on this
6 occasion, the evidence points to her being
7 somewhat intoxicated. Therefore, while this is
8 not a "fleeting glance" case per se, the brief
9 and indifferent contact the complainant had with
10 both accused and especially given her level of
11 intoxication, would put them in or very close to
12 the category of strangers.
13 The Crown relies on R. v. Bob where the B.C.
14 Court of Appeal said:
15 The difficulty he (the accused)
16 faces, however, is that this was a
17 case of recognition, rather than
18 identification. There is a
19 significant difference between cases
20 in which a witness is asked to
21 identify a stranger never seen by
22 him before the offence, and cases in
23 which a witness recognizes a person
24 previously known to her. While
25 caution must still be taken to
26 ensure that the evidence is
27 sufficient to prove identity,
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1 recognition evidence is generally
2 considered to be more reliable and
3 to carry more weight than
4 identification evidence.
5 The accused here, however, were not known to the
6 complainant prior to the night of the assault and
7 as I have already said, the contact was
8 indifferent and brief.
9 There are many cases where the courts have
10 suggested that the judge could or should exercise
11 his or her discretion to exclude evidence,
12 including R. v. Gagnon and R. v. Aulakh and Gill.
13 Referring to the Gagnon case, the court
14 said:
15 It is now clear that a trial judge
16 enjoys a general discretion to
17 exclude evidence on the basis of the
18 trial judge's duty, now enshrined in
19 s. 11(d) of the Charter of Rights
20 and Freedoms to ensure a fair trial.
21 He cites the case of R. v. Harrer.
22 Identification cases are no
23 exception. In deciding whether the
24 admission of the evidence would
25 render the trial unfair, the trial
26 judge should engage in a balancing
27 exercise, balancing the probative
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1 value of the evidence against its
2 prejudicial effect. Prejudice in
3 this context means the danger that
4 the jury will use the evidence for
5 an improper purpose despite the
6 judge's instructions to the
7 contrary.
8 Further, the court said:
9 The decision in Harrer may have the
10 effect of pre-empting the need for
11 an appeal based solely on in-court
12 identification if the trial judge
13 exercises his or her discretion to
14 exclude the evidence on the basis
15 that its probative value is
16 overborne by its prejudicial effect.
17 A conviction based on in-court
18 identification evidence alone is
19 unsafe and will likely result in an
20 acquittal on appeal on the basis of
21 that the verdict is unreasonable and
22 cannot be supported by the evidence.
23 In the case of Aulakh and Gill, the court
24 said:
25 There are well entrenched
26 evidentiary rules to prevent
27 evidence from being "wrongfully
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1 tendered" in violation of an
2 accused's right to a fair trial.
3 Apposite to the instant application,
4 the trial judge has the discretion
5 to exclude evidence where its
6 prejudicial effect exceeds its
7 probative value. The exercise of
8 this discretion requires a case
9 specific analysis and the decision
10 will turn on the unique
11 circumstances of the case.
12 Turning to this case and the evidence.
13 Other than the ages of her assailants, the
14 complainant gave no evidence of physical
15 appearance of either accused, not of hair or
16 facial features or clothing or weight or the fact
17 that one of the accused may or may not have worn
18 glasses. There was an initial confusion
19 respecting the name of one of her assailants,
20 although I will say that this in itself is not
21 critical.
22 The accused Irvin McDonald was asleep on the
23 couch but there is no evidence from the
24 complainant that she got close to him or really
25 paid any attention to him. She did say that she
26 could see his face from where she was sitting,
27 but her own drawing of the trailer and the
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1 positions of the various individuals casts doubt
2 on that assertion. There is no evidence of
3 lighting in the living room or in the kitchen for
4 that matter.
5 The complainant testified on two different
6 preliminary hearings that Irvin had been the one
7 who assaulted her at trial. Excuse me. She
8 testified at a preliminary inquiry on November
9 26th, 2007, that Leonard McDonald was the one she
10 saw on the second assault in the morning yet she
11 changed her testimony to say that Irvin was the
12 one who had committed this assault here at trial.
13 At the first preliminary inquiry at --
14 rather at the inquiry for Irvin McDonald -- I'm
15 sorry -- for Leonard McDonald she identified
16 Leonard in court as the one who committed the
17 second assault, and at the second preliminary she
18 identified Irvin who committed the first assault.
19 Now she says she got mixed up at that time.
20 The complainant was 16 and is very slight
21 physically. She consumed a number of shots of
22 vodka and two or more beers on the evening in
23 question. The fact that on two separate
24 occasions an assailant was able to remove her
25 clothing without her waking would infer that she
26 was somewhat intoxicated. She agreed with
27 defence counsel that after consuming a number of
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1 beers and shots of vodka when she went to bed,
2 she did not as much go to sleep as she did "pass
3 out". Her powers of observation would be
4 diminished.
5 When asked if she saw the face of the man
6 who assaulted her in the first bedroom she said
7 she could not remember but added she would
8 recognize him. There was no evidence as to how
9 she would recognize him. And that, as defence
10 counsel has pointed out, is a conclusion and not
11 evidence per se.
12 There is no identification here prior to the
13 preliminary hearing whatsoever. Given this, the
14 Crown could have asked police to put together
15 photo arrays of the two accused for the witness
16 to identify and could have arranged for there to
17 be a number of older aboriginal males in court
18 for the preliminary inquiries and to have the
19 accused sitting in the body of the court. This
20 is hindsight but it does not change the fact that
21 the in-court identification of the accused is to
22 be accorded very little weight. Had the
23 preliminaries instead been trials, both accused
24 could stand convicted for acts the complainant
25 now says they did not do.
26 This case is unique. Assuming the sexual
27 assaults occurred, the evidence points to the
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1 perpetrator or perpetrators being one or both of
2 the accused as opposed to an accused or someone
3 whose identity is an utter mystery. I have
4 reviewed no cases where the complainant
5 identified one accused at the preliminary inquiry
6 and another at trial. This is akin, however, to
7 picking the wrong person out of a lineup or photo
8 lineup and then doing an in-dock identification
9 of another person. Also, while this is not a
10 situation of a fleeting glance, it falls short of
11 being a question of recognition as opposed to
12 identification.
13 As I understand the law, I have a duty to
14 exclude evidence to ensure the accused receive a
15 fair trial pursuant to section 11(d) of the
16 Charter where the probative value of that
17 evidence is outweighed by the prejudicial effects
18 to the accused. This is not done lightly. Here
19 it can be said that there is virtually no
20 evidence or reliable evidence of identification.
21 It is for all intents and purposes in-dock and
22 many courts have opined that this is to be
23 accorded little or no weight. This is especially
24 so when the complainant seeks to change her
25 in-dock identification. We are all familiar with
26 the many celebrated cases of mistaken identity or
27 identification which led innocent people to be
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1 convicted and sent to jail in some cases for many
2 years for offences they did not commit. The
3 exercise of judicial discretion in appropriate
4 cases is intended to prevent that.
5 Accordingly, I will exercise my judicial
6 discretion and I will direct that the Crown shall
7 not be permitted to ask the complainant to
8 identify either of the accused and order evidence
9 of identification excluded from this trial.
10 ..............................
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12 Certified to be a true and
accurate transcript pursuant
13 to Rule 723 and 724 of the
Supreme Court Rules of Court.
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16 Annette Wright, RPR, CSR(A)
Court Reporter
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