R. v. Gough-Hollohan (A.), (2014) 352 Nfld. & P.E.I.R. 313 (NLPC)

• Judge: Marshall, P.C.J.
• Court: Newfoundland and Labrador Provincial Court (Canada)
• Case Date: July 04, 2014
• Jurisdiction: Newfoundland and Labrador
• Citations: (2014), 352 Nfld. & P.E.I.R. 313 (NLPC)

R. v. Gough-Hollohan (A.) (2014), 352 Nfld. & P.E.I.R. 313 (NLPC);

    1097 A.P.R. 313

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. JL.041

Her Majesty the Queen v. Alexandra Gough-Hollohan

(Docket: 0113A03593)

Indexed As: R. v. Gough-Hollohan (A.)

Newfoundland and Labrador Provincial Court

Marshall, P.C.J.

July 4, 2014.

Summary:

The accused was charged with two counts of attempted robbery and two counts of possession of a weapon or imitation thereof (a knife) for a dangerous purpose. At trial, three witnesses provided evidence on identifying the accused as the perpetrator in the surveillance video of one of the attempted robberies (the Esso video). If the court was satisfied that the accused was the individual in the Esso video, the Crown applied to rely on similar fact evidence to prove that the accused was the individual in the surveillance video of the other attempted robbery.

The Newfoundland and Labrador Provincial Court concluded that the accused had not been positively identified as the person in the Esso video, and dismissed all charges.

Criminal Law - Topic 5252.1

Evidence - Witnesses - Identification - From videotape or audiotape - The accused was charged with, inter alia, the attempted robbery of a service station - The Crown sought to rely on the testimony of a police officer (Dorion) to prove that the accused was the perpetrator in the surveillance video of the robbery - Dorion testified that he recognized the accused in the video because he had prior experiences with her through his position as the missing persons coordinator with the Royal Newfoundland Constabulary from April 2011 to November 2012 - He also testified that he had a five minute conversation with her one week before the robbery - On cross-examination, it came to light that the accused had been incarcerated from December 2010 to November 2012 and therefore Dorion would have had dealings with her prior to December 2010 or after November 2012 and it would not have been in the context of his role as the missing persons coordinator - He was unable to confirm whether he was told that the accused was a suspect before he viewed the video - He could not point to anything specific or unique in the video which led him to believe that the perpetrator was the accused - The Newfoundland and Labrador Provincial Court refused to admit Dorion's testimony where it did not meet the threshold requirement for non-expert identification evidence - See paragraphs 15, 16 and 29.

Criminal Law - Topic 5252.1

Evidence - Witnesses - Identification - From videotape or audiotape - The accused was charged with, inter alia, the attempted robbery of a service station in December 2013 - The Crown sought to rely on the testimony of Yetman and Molloy to prove that the accused was the perpetrator in the surveillance video of the robbery - Yetman was the accused's adolescent mental health counsellor from March to October 2013 - Yetman had 12, 45 minute to one hour sessions with the accused during that time frame and saw her several times coming and going from the building - She recognized the accused in the video based on distinctive features - Molloy was the accused's probation supervisor from October 2011 to August 2012, but rarely saw the accused as she was incarcerated during that time - She became familiar with her from October 3 to November 28, 2013, while working as her youth services social worker - She met with the accused approximately 13 times for half hour sessions - She identified the accused based on her posture, mannerisms, pacing, facial features and blond hair - Both were 99.9 percent sure that it was the accused in the video - The Newfoundland and Labrador Provincial Court held that, given Yetman's and Molloy's consistent and somewhat intimate contact with the accused, their evidence met the threshold requirements for the admissibility of non-expert opinion evidence - As the court was unable to make a positive identification from the video, it had to look to Yetman's and Molloy's testimony - The court noted that Yetman, Molloy and a supervisor had viewed the video together at the request of a clerk who thought that she recognized the accused - An identification made in that context was inherently dangerous - Also, Molloy knew that the suspect was described as having a neck tattoo and she did not know the accused to have a neck tattoo - Both Yetman and Molloy were told by the police that the accused was a suspect before they viewed the video, leading to further possible contamination of their identification - The opportunity for a positive identification was very narrow - There were tips identifying two others as possible suspects - The court concluded that the accused had not been positively identified as the person in the video - See paragraphs 30 to 46.

Cases Noticed:

R. v. Leaney and Rawlinson (1987), 81 A.R. 247; 1987 ABCA 206, refd to. [para. 25].

R. v. Brown (L.A.) (2006), 219 O.A.C. 26 (C.A.), refd to. [para. 27].

R. v. Lifchus (W.) (1997), 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 33].

R. v. Nikolovski (A.), [1996] 3 S.C.R. 1197; 204 N.R. 333; 96 O.A.C. 1, refd to. [para. 43].

Counsel:

Glynne B. Faulkner, for Her Majesty the Queen;

Kevin S. Baker, for the accused.

This matter was heard at St. John's, N.L., on June 5, 6, 9 and 12, 2014, by Marshall, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered judgment on July 4, 2014, and filed the following reasons for judgment on July 17, 2014.