Cooper J.:

Case History

[1]     This case is concerned with identification evidence and whether the defendant has been correctly identified, beyond a reasonable doubt, of the crime he is charged with.

[2]     On the morning of June 22, 2006, J.G., a high school student, was waiting for a bus to take her to her school to write an exam. The bus stop was located on the north side of [...] Street, west of [...] Road in Oakville. When she gave her evidence she was 17 years old.

[3]     A young male riding a bright green and orange “kid’s bike” approached her and asked what time it was and, after getting an answer, began to ask her where she went to school and other personal questions. Ms. G. then told him it had been nice talking to him and turned around and the male grabbed her vagina with one hand, over her clothing. She screamed at him and asked what he was doing and she said she was “freaking out.”

[4]     The male then rode off on his bike and went into a nearby wooded area and less than one minute later came back out and told the complainant that girls from her school are sluts. Then he laughed and left the scene. The entire incident was no more than 10 minutes in duration, and the complainant testified that she had never seen this person before.

[5]     When she got to school she said she told her best friend A.C. what had happened to her. She also said she told her mother, who respected her decision not to make a complaint to the police. She made no notes or record of the description of the suspect.

[6]     On September 20, 2006, some 3 months after the crime was committed, Ms. G. was walking with her friend T.S. in a field behind W[...] High School. This school is located just west of the bus stop where the assault occurred but on the opposite side of [...] Street.

[7]     The complainant saw 3 males walking together, one of whom had the same bike she had seen when she was assaulted. She could not remember whether the bike had gears or not, but her friend Ms. S. said the bike was an older, green, ten-speed one. Ms. G. testified that the male pushing the bike was the same person who assaulted her on June 22, 2006. The male suspect kept looking back at Ms. G., according to both women. The males went into a nearby convenience store and the two women followed them in. After they left, the complainant called 911 and the police, on hearing it was not an emergency situation, told her they would call her back, but she testified they never did.

[8]     The next day, September 21, Ms. G. called the police again, and on September 27, 2006, she gave a videotaped statement to Halton Regional Police Service officer, Detective Alison Freeman. This videotape was entered as an exhibit and I was provided with a transcript. This comprises the first record of the complainant’s description of the assailant, and September 27 was 3 months and 6 days after the crime was committed. Also on September 21, before she called the police that day, she saw a Halton Police news release concerning a female jogger being sexually touched by an adult male on a BMX type bike, which was too small for the rider.

[9]     The description Ms. G. gave in her evidence was substantially the same she gave in her videotaped statement. The male was said to be between 17 and 24 years old, with greasy hair, and stubble all over his face. He did not wear eyeglasses. He was of medium build and about 5’6” to 5’8” in height. He was of east Indian or Pakistani descent, and had a slight “Pakistan” accent. He had an unclean appearance and the first time she had seen him he was wearing black jeans and a brown dress shirt with the buttons inserted into the wrong holes. On both occasions she saw the male, he had a lime green and orange bicycle, a kid’s bike, like a 12 year old would have.

[10]   In furtherance of the investigation, Detective Freeman went to W[...] School on  the same day the statement was taken, with the thought that the suspect may have been a student there. From her parked car, she saw the defendant on school property and approached him. He was on an adult bike, which was lime green and yellow, which is in contrast to the lime green and orange kid’s bike the complainant described.  

[11]   He was wearing a shirt with a Tommy Hilfiger logo on it, he was of Indian descent and spoke with a slight Indian accent. His had dark, greasy hair and his clothing was unclean and he had a stale smell about him. He was about 18 to 21 years old, with a slim build, and was 5’9” to 5’10” in height. When told about the investigation he strongly denied the allegations.

[12]   Officer Freeman managed to obtain some W[...] yearbooks and gave them to Ms. G. on October 11, 2006, and on October 12th, the complainant picked out what was, in fact, a photo of the defendant in a 2000-2001 yearbook. On July 15, 2007, at a photo lineup, she selected what was, in fact, a photo of Mr. Bains.

[13]   In his submissions, Mr. Brown, counsel for the defendant, conceded that the yearbook photo, and the lineup photo, were those of his client, and that the male who the complainant saw on September 20, 2006, at the school and convenience store, may well have been his client. However, he maintained that the perpetrator of the offence was a different person  than the defendant, and the identification of his client as the original suspect is fatally flawed. This is because no complaint to the police was made until long after the event, nor was any record made of the identifying characteristics of the offender until over three months after the offence was committed.

[14]   Mr. Bains did not testify but the defence called the manager of a bike shop on Speers Road in Oakville. Joe Ruta gave evidence that has seen the defendant in his store several times over the previous two to three years. In the summer of 2006 Mr. Bains bought a bright green and yellow adult mountain bike from him. It had a 26 inch wheel, with multiple speeds, and was mid-size. By way of comparison, he testified that a BMX bike has only a 20 inch wheel and has no gears. One year before this sale, he had sold a dark burgundy adult bike to Mr. Bains.

The Law

[15] Common law has long recognized the dangers inherent in identification evidence. The Adolph Beck case in England was a notorious case of misidentification. [ For a contemporary account with useful references, see http// en.wikipedia.org/wiki/Adolph_Beck_case ].

[16]   In recent years, the discovery of DNA identification procedures has led to the reversal of several convictions based on faulty identification evidence. See “Eyewitness Identification: Guidelines and recommendations for identification procedures in the United States and in Canada”, A. Daniel Yarmey, University of Guelph, Canadian Psychology, August 2003, http://findarticles.com/articles/mi_qa3711/is_200308/ai_925843/print?tag=artBody,col1

[17]   In Manitoba, the Sophonow Inquiry dealt, in part, with the issue of faulty identification. [See www.gov.mb.ca/justice/sophonow].

[18]     Called as a witness at that inquiry was Elizabeth Loftus, an expert in eyewitness identification. A transcript of her evidence can be found in: Alan D. Gold Collection of Criminal Law Articles - ADGN/RP-115 (May 12, 2001) [LexisNexis Quicklaw]. See also: Elizabeth F. Loftus and James M. Doyle, “Eyewitness Testimony: Civil and Criminal,” (3d ed., 1997, Lexis Law Publishing). 

[19]  In R. v. Reitsma, 1998 CanLII 825 (S.C.C.), [ 1998 ] 1 S.C.R. 769, the Supreme Court of Canada unanimously endorsed the dissenting judgment of Rowles J.A. in the British Columbia Court of Appeal. Madam Justice Rowle’s entire decision was contained in the Supreme Court’s judgment and at paragraph 38 she stated: “Judicial warnings about the inherent frailties of eye-witness identification abound. In R. v. Burke, 1996 CanLII 229 (S.C.C.), [ 1996 ] 1 S.C.R. 474, Sopinka J., giving the judgment of the court, said: ‘The cases are replete with warnings about the casual acceptance of identification evidence even when such identification is made by direct visual confrontation of the accused. By reason of the many instances in which identification has proved erroneous, the trier of fact must be cognizant of the “inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection’: R. v. Sutton, [ 1970 ] 2 O.R. 358 (C.A.), at p. 368. In R. v. Spatola, [ 1970 ] 3 O.R. 74 (C.A.), Laskin J.A. (as he then was ) made the following observation about identification evidence (at p. 82 ): ‘Errors of recognition have a long documented history. Identification experiments have underlined the frailty of memory and the fallibility of powers of observation. Studies have shown the progressive assurance that builds upon an original identification that may  be erroneous…The very question of admissibility of identification evidence in some of its aspects has caused sufficient apprehension in some jurisdictions to give pause to uncritical reliance on such evidence, when admitted, as the basis of conviction…..”

[20]     At paragraph 40 of her dissent, Rowles J.A. goes on to say as follows: “The conviction in this case rests entirely on the identification evidence given by the complainant. As in many cases of eyewitness identification, the honesty and integrity of the eyewitness was not in issue. The jurisprudence on eyewitness identification makes clear, however, that testing the reliability of the evidence of identity goes beyond a determination of whether an eyewitness is being honest in his or her testimony.”

[21]   At paragraph 46 she said: “The Crown’s case against the appellant depended wholly on the correctness of the identification evidence of the complainant. As there was no other direct evidence or any circumstantial evidence which would minimize the inherent dangers of the eyewitness identification, the complainant’s evidence requires careful scrutiny.”

[22]     Rowles J.A., in paragraph 58, further said: “The frailties of eyewitness identification may be most pronounced in cases where the accused was not known to the complainant before the offence and where the complainant’s opportunity to observe the perpetrator was limited to a brief, stressful encounter.”

[23]     In R. v. Miaponoose, [ 1996 ] O.J. No. 3216, the Court of Appeal dealt with an appeal against a conviction for sexual assault based on eyewitness identification. At paragraph 9 of the judgment, Charron J.A. states the following: “The inherent frailties of identification evidence are well known to the law and have been the subject of frequent judicial consideration and comment. We must, however, never regard these principles as trite. They are fundamental. They merit repeating. One of the many useful writings on this subject can be found in the Law Reform Commission of Canada Study Paper (1983) on "Pretrial Eyewitness Identification Procedures." The Commission concludes in its study that "the need for comprehensive police guidelines is particularly acute in the area of pretrial eyewitness identification procedures, because eyewitness testimony is inherently unreliable" (at p. 7).”

[24]     In R. v. Quercia 1990 CanLII 2595 (ON C.A.), (1990), 60 C.C.C. (3d) 380 at 383 (O.C.A.), Doherty J.A. made the following observation: “The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law.”

Analysis and findings

[25]     In the case at bar it is necessary to consider the adequacy of Ms. 17;s identification of the defendant, and whether there was any other evidence which corroborated or confirmed her identification.

[26]     In my opinion, there is no question that she is honest and sincere. There is no evidence that she is hearing or vision impaired, or that the external conditions under which she made her observations were such as to interfere with her identification. For example, there was no pounding rain or obstruction of her view in any manner. However, the entire incident took less than 10 minutes, she “freaked out” after she was assaulted, and she did not previously know the male assailant.

[27]     Eyewitness identification can be based on many factors. The following are some of them:Male or female - Age –Height – Weight - Skin colour – Voice – Hair [ head, facial, arms, legs ]– Face [ eyes, nose, lips, jaw, chin, eyeglasses ] - Scars, tattoos, birthmarks, injuries - Clothing – Jewellery – Body build – Manner of walking

[28]   In her videotaped statement to the police, Ms. G. described the offender as a  male between 17 and 24 years old, with greasy hair, and stubble all over his face. He did not wear eyeglasses. He was of medium build and about 5’6” to 5’8” in height. He was of east Indian or Pakistani descent, and had a slight “Pakistan” accent. He had an unclean appearance and the first time she had seen him he was wearing black jeans and a brown dress shirt with the buttons inserted into the wrong holes. On both occasions she saw the male, he had a lime green and orange bicycle, a kid’s bike, like a 12 year old would have.

[29]     Given that this young woman had never seen this man before, and the short time in which this shocking incident took place, it is not surprising her description is not more detailed.

[30]     To compound the lack of specificity, the crime was not reported to the police until three months later, and the first record made of her description was on September 27, 2006, in the videotaped statement.

The Bicycle Evidence

[31]   As was stated earlier in this judgment, Mr. Brown, counsel for the defendant, in his submissions, conceded that the yearbook photo, and the lineup photo, were those of his client, and that the male with the bike the complainant saw on September 20, 2006, at the school and convenience store, may well have been his client. He did not concede that the bike she saw at the high school on September 22, 2006, was a BMX or kid’s bike, or that it was lime green and orange.

[32]     There is no corroborating evidence that the defendant ever owned such a bicycle. In fact, the bicycle shop owner Mr. Ruta had sold the defendant an adult bright green and yellow mountain bike in the summer of 2006. Detective Freeman saw Mr. Bains with the same bike Mr. Ruta described, when she went to W[...]high school on September 27, 2006.

[33]     Even T.S., the complainant’s friend who was with her on September 20, 2006, said the bicycle was an older, green, ten-speed one.

[34]   Ms. G. testified that on September 21, 2006, before she called the police that day, she saw a Halton Police news release concerning a female jogger being sexually touched by an adult male on a BMX type bike, which was too small for the rider. Given that no record of the particular bike originally seen by the complainant was made until six days after the news release, it is possible that her recollection may have been tainted by the information in this release, before she gave her statement.

[35]   After considering all the evidence, law, and submissions of both counsel, I find that it would be unsafe to convict the defendant based on this uncorroborated eyewitness identification.

Conclusion 

[36]     The defendant Gurakbal Singh Bains is found not guilty of the charge before the court.

 

Released: December 15, 2008