COURT FILE No.: Toronto 4817-998-10-70006041-00
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
— AND —
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
 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.
 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.
 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.
 As a result of this brutal and senseless attack, Mr. Crane was taken to hospital where he required stitches.
 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.
 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.
 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.
 As previously stated, the only issue at the preliminary inquiry was whether there was some evidence of identification.
 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
 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.
 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.
 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).
 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.
 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.
 In R. v. Herrera,  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.
 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:
 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.
 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.
 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.”
 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.
 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.
 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.
- A. Did Mr. Crane make a positive identification?
 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,  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”.
 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.
 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.
 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,  B.C.J. No. 2314 (C.A.) Rowles J. (whose dissenting judgment was adopted by the Supreme Court of Canada  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].
 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]
 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.
 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.
- B. Does the qualified identification amount to sufficient evidence of identification to support a committal to stand trial?
 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,  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”.
 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.
 In R. v. Willis,  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.
 The Crown also relied on R. v. Taylor,  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.
 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.
 In R. v. Brooks,  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.
 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.
 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.
 For the reasons noted above, Mr. V is discharged.
Released on February 28, 2011