R. v. Jack (C.), 2013 ONCA 80

• Jurisdiction: Ontario
• Judge: Juriansz, Watt and Epstein, JJ.A.
• Neutral Citation: 2013 ONCA 80
• Citation: 2013 ONCA 80,(2013), 302 O.A.C. 137 (CA),294 CCC (3d) 163,[2013] OJ No 519 (QL),(2013), 302 OAC 137 (CA),[2013] O.J. No 519 (QL),302 O.A.C. 137,302 OAC 137
• Date: 22 November 2012
• Court: Court of Appeal (Ontario)

R. v. Jack (C.) (2013), 302 O.A.C. 137 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. FE.006

Her Majesty the Queen (respondent) v. Chadwick Jack (appellant)

(C53683; 2013 ONCA 80)

Indexed As: R. v. Jack (C.)

Ontario Court of Appeal

Juriansz, Watt and Epstein, JJ.A.

February 7, 2013.

Summary:

The accused was charged with two counts of robbery. The only issue at the accused's jury trial was identification. The only evidence on the issue was the eyewitness identification of the two victims. The jury convicted the accused on both counts.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 4397, sentenced the accused to 10 years concurrent on each count, with three years credit for pre-sentence custody. The accused appealed the conviction and applied for leave to appeal the sentence.

The Ontario Court of Appeal allowed the conviction appeal and acquitted the accused on both charges.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - The Ontario Court of Appeal stated that "The dangers inherent in eyewitness identification evidence and the risk of a miscarriage of justice through wrongful conviction have been the subject of much comment ... Such evidence, being notoriously unreliable, calls for considerable caution by a trier of fact ... It is essential to recognize that it is generally the reliability, not the credibility, of the eyewitness' identification that must be established. The danger is an honest but inaccurate identification ... The jury must be instructed to take into account the frailties of eyewitness identification as they consider the evidence relating to the following areas of inquiry. Was the suspect known to the witness? What were the circumstances of the contact during the commission of the crime including whether the opportunity to see the suspect was lengthy or fleeting? ... Was the sighting by the witness in circumstances of stress? ... As well, the jury must be instructed to carefully scrutinize the witnesses' description of the assailant. Was it generic and vague, or was it a detailed description that includes reference to distinctive features of the suspect? ... In some cases, a failure to mention distinctive characteristics of a suspect is sufficiently important, especially where there is no other inculpatory evidence, to reduce the case from one of identification effectively to one of no identification. Finally, the charge must caution the jury that an in-dock or in-court identification is to be given negligible, if any, weight ..." - See paragraphs 13 to 17.

Criminal Law - Topic 4361

Procedure - Charge or directions - Jury or judge alone - Directions regarding identification - The accused was charged with two counts of robbery - The only issue at the accused's jury trial was identification - The only evidence was the eyewitness identification of the two victims - The jury convicted the accused on both counts - The Ontario Court of Appeal allowed the accused's appeal - First, contrary to the Crown's assertion, this was an identification case, not a recognition case - The victims had brief contact with the accused months earlier in the normal course of business such that they had no particular reasons to make note of his features - Any impact from that previous contact became negligible in light of the brief, stressful contact during the robbery - Second, the charge did not provide the jury with adequate assistance on how to assess the reliability of the victims' description of the robber given that the descriptions were generic and did not contain any reference to the accused's distinctive features (gold teeth, a scar and a tattoo) - The judge did instruct the jury to consider the impact of the victims' failure to notice the accused's distinctive features, but failed to caution them to consider that together with their generic descriptions in performing their critical analysis of assessing the reliability of the identification evidence - Compounding those problems was the failure to caution the jury about the inherent unreliability of the victims' in-court identification - The jury should have been given a Hibbert caution (i.e., that certainty was not to be taken as an indicium of accuracy) tailored to the specific concerns of the case: the in-dock identifications and one victim pulling the accused's identification card from his business records and advising the police immediately after the robbery that that was who had robbed them - See paragraphs 18 to 40.

Criminal Law - Topic 5241

Evidence and witnesses - Eyewitness identification - [See both Criminal Law - Topic 4361].

Criminal Law - Topic 5250.1

Evidence and witnesses - Identification - Dock identification - [See both Criminal Law - Topic 4361].

Cases Noticed:

R. v. Goran (M.) (2008), 234 O.A.C. 283; 2008 ONCA 195, refd to. [para. 13].

R. v. Bardales (R.A.), [1996] 2 S.C.R. 461; 198 N.R. 235; 78 B.C.A.C. 161; 128 W.A.C. 161, refd to. [para. 13].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [para. 13].

R. v. Alphonso (T.), [2008] O.A.C. Uned. 158; 2008 ONCA 238, refd to. [para. 14].

R. v. Carpenter, [1998] O.J. No. 1819 (C.A.), refd to. [para. 14].

R. v. Francis (M.W.) (2002), 165 O.A.C. 131 (C.A.), refd to. [para. 15].

R. v. Ellis (C.), [2008] O.A.C. Uned. 52; 2008 ONCA 77, refd to. [para. 16].

R. v. F.A. (2004), 184 O.A.C. 324; 183 C.C.C.(3d) 518 (C.A.), refd to. [para. 16].

R. v. Richards (L.) (2004), 186 O.A.C. 378; 70 O.R.(3d) 737 (C.A.), refd to. [para. 16].

R. v. Boucher (D.), [2007] O.A.C. Uned. 48; 2007 ONCA 131, refd to. [para. 16].

R. v. Hibbert (K.R.), [2002] 2 S.C.R. 445; 287 N.R. 111; 165 B.C.A.C. 161; 270 W.A.C. 161, refd to. [para. 17].

R. v. Tebo (K.) (2003), 172 O.A.C. 148; 175 C.C.C.(3d) 116 (C.A.), refd to. [para. 17].

R. v. Miller (M.) (1998), 116 O.A.C. 331 (C.A.), refd to. [para. 26].

R. v. Gonsalves (D.), [2008] O.T.C. Uned. 799; 56 C.R.(6th) 379 (S.C.), refd to. [para. 29].

Counsel:

Chadwick Jack, acting in person;

Jill Presser, as duty counsel;

Eric Siebenmorgen, for the respondent.

This appeal was heard on November 22, 2012, by Juriansz, Watt and Epstein, JJ.A., of the Ontario Court of Appeal. Epstein, J.A., released the following decision for the court on February 7, 2013.