COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Fearon, 2013
    ONCA 106

DATE: 20130220

DOCKET: C54387

MacPherson, Armstrong and Watt JJ.A.

BETWEEN

Her Majesty the
    Queen

Respondent

and

Kevin Fearon

Appellant

Sam Goldstein, for the appellant

Randy Schwartz, for the respondent

Susan M. Chapman and Jennifer Micallef, for the intervener,
    Criminal Lawyers Association

Matthew Milne-Smith for the intervener, Canadian Civil
    Liberties Association

Kevin Wilson for the intervener, Public Prosecution
    Service of Canada

Heard: September 7, 2012

On appeal from the conviction entered on December 20, 2010
    by Justice Diane I. Oleskiw of the Ontario Court of Justice.

Armstrong J.A.:

INTRODUCTION

[1]

This court is asked to carve out a cell phone exception to the common
    law doctrine of search incident to arrest.

[2]

The appellant, Kevin Fearon, was arrested for robbery while armed with a
    firearm.  Upon his arrest, a police officer conducted a pat down search and
    located a cell phone on his person.  The officer examined the contents of the
    phone and found photographs of a gun and cash as well as an incriminating text
    message. The appellant was brought to the police station and placed in an
    interview room.  When the police returned after unintentionally leaving him
    alone for five hours, he gave a full videotaped confession. Throughout his
    confession he maintained that the firearm used in the commission of the robbery
    was an imitation handgun.

[3]

At trial, the appellant sought to exclude the evidence that had been
    obtained from his cell phone upon his arrest. He claimed the search of the cell
    phone incident to arrest was a breach of his right to be free from unreasonable
    search and seizure protected by s. 8 of the
Charter of Rights and Freedoms
.
    The appellant also sought to exclude his confession, arguing that it was
    obtained in breach of his s. 10(b)
Charter
right to counsel and that it
    was involuntary.

[4]

The trial judge found that there was no breach of s. 8 and admitted the
    evidence obtained from the cell phone. However, in the event she was wrong in
    her conclusion on the s. 8 issue, the trial judge turned her mind to the
    application of s. 24(2). She held that, if there had in fact been a breach of
    s. 8, to admit the evidence would not bring the administration of justice into
    disrepute.

[5]

The trial judge also found that Mr. Fearons confession given later at
    the police station was voluntary.  Although she held that there was a technical
    breach of the appellants s. 10(b) rights, she concluded his statements should
    be admitted pursuant to s. 24(2) of the
Charter
.  In the result, Mr.
    Fearon was convicted of robbery and received a sentence of six years.  He
    appeals his conviction on the grounds that the trial judge erred in her
    analysis of ss. 8, 10(b) and 24(2) of the
Charter
.

[6]

The appellant contends that the warrantless search of the contents of a
    cell phone incident to arrest (except for a cursory examination to see if it
    contains evidence of the alleged crime) is prohibited by s. 8 of the
Charter
except in exigent circumstances.  The appellants position is supported by the intervener,
    the Criminal Lawyers Association of Ontario.  The Canadian Civil Liberties
    Association intervenes in support of the appellant and goes even further. They
    would not permit even a cursory examination of the contents of a cell phone
    seized during a search incident to arrest.

[7]

The Public Prosecution Service of Canada intervenes in support of the
    respondent Crowns position that the warrantless search in this case was
    incidental to the arrest of the appellant and was therefore lawful.

[8]

For the reasons that follow, I would dismiss the appeal.

THE FACTS

(a)

The Robbery

[9]

On July 26, 2009, Ms. Araksi Nar was operating a jewellery stall at a
    flea market in the Downsview area of Toronto.  At the end of the day (about 6:15
    p.m.) as Ms. Nar was packing her merchandise into her car, she was robbed by
    two men.  One of the men pointed a handgun at her and ordered her to open the
    trunk of her car.  The other man stood by.  The two men then grabbed the
    jewellery and other objects and fled to a waiting car.  The estimated value of
    the stolen jewellery was between $10,000 and $40,000.

[10]

Ms.
    Nar described the gun as an inch and a half in diameter, mostly silver, but
    dark grey toward the handle.  She said that the two men drove off in a black
    two-door automobile, which was located within 25 minutes of the robbery by
    virtue of a licence plate number given to the police by an eyewitness.  The car
    was left less than a kilometre from the flea market.  The car was registered to
    the appellants co-accused, Junior Chapman.

[11]

Eyewitnesses
    at the scene gave descriptions of the robbers, which included that the robber
    with the gun was wearing an oversized red hoodie.  When the car was located,
    the police observed a red sweater on the front passenger seat.  The car was
    sealed in anticipation of obtaining a search warrant.

[12]

Based
    on the description provided by Ms. Nar to police, P.C. Reynolds suspected that
    the appellant, who lived in the area, may have been involved in the robbery.
    The officer was also advised that the owner of the getaway car had previously
    been arrested with the appellant.

(b)

The Arrest

[13]

P.C.
    Reynolds drove to the apartment building where the appellant lived.  When he
    entered the lobby of the building, he saw the appellant and Mr. Chapman leave.
    P.C. Reynolds then detained the appellant and Mr. Chapman.  The appellant
    initially lied about his identity.  He was arrested for obstructing justice.
    When Sergeant Hicks and another officer from the holdup squad arrived, the
    appellant and Mr. Chapman were arrested for robbery with a firearm.  The
    appellant and Mr. Chapman were cautioned and advised of their rights to counsel.

(c)

Search
    and Seizure of the Cell Phone

[14]

A pat down search of the appellant followed. This resulted in the
    discovery of the cell phone containing the photographs of a gun and cash as
    well as the incriminating text message. The text message read: We did it were
    the jewlery at nigga burrrrrrrrr.

[15]

In
    order to access the photographs and the text message in the cell phone, Sergeant
    Hicks had to operate the keyboard on the phone.  The cell phone was turned on
    and there is no evidence that it was password protected or otherwise locked
    to users other than the appellant.  The photographs and the text message were
    not in plain view and it was necessary to manipulate the key pad in order to
    move the phone into its different modes.

[16]

When
    Sergeant Hicks returned to the police station, he gave the phone to another
    officer who attempted to determine whether the incriminating text message had
    been sent to anyone.  The officer determined that the message was a draft and
    therefore had not yet been sent to anyone.  He hit the save button in order
    not to lose the text message.  After about two minutes, the phone was returned
    to Sergeant Hicks who was told to look through it for recent calls or
    contacts.  In the course of the night and next morning, as the investigation
    progressed, officers made additional checks of the phone.  At trial, however,
    the only data from the phone relied upon by the Crown were the photos and the
    text message.

[17]

The
    police officers involved in the examination of the contents of the cell phone believed
    that they were entitled to proceed without obtaining a search warrant.
    Detective Nicol, in particular, testified that all inspections of the cell
    phone were done at his direction or with his approval. From his experience,
    cell phones found in circumstances such as the appellants contain text
    messages sent between co-accused that will assist police in recovering stolen
    property and apprehending suspects. His evidence at trial underscored the
    importance of acting quickly following the robbery.

[18]

Many
    months later, one of the police officers involved in the investigation believed
    that there was a court case that held a search warrant was required to download
    the contents of a cell phone.  He therefore applied for a warrant.  He included
    in the information to obtain the warrant the fact that the cell phone had been
    previously examined.  The search warrant was issued and the phone was
    re-examined and the photos and text message entered into evidence.  Counsel for
    the appellant at trial did not challenge the issuance of the search warrant.

(d)

The Right to Counsel

[19]

On
    his way to the police station, the appellant indicated that he wished to
    consult counsel.  At the police station, he was again read his right to counsel
    by the booking officer, who was told by the arresting officer that the
    appellant wished to speak to his lawyer.  The booking officer told the
    appellant that he would have access to a telephone.  The appellant was taken to
    an interview room in the police station at about 9:35 p.m. where he was searched
    again and then left alone while the arresting officer left to do his paperwork.

[20]

In
    the meantime, the getaway car was searched and the police located a gun hidden
    under the front passenger seat where the red sweater was found.  The gun was a
    .22 calibre handgun with its serial number removed.  It was loaded with two
    rounds of ammunition.  The gun matched the photograph of the gun in the
    appellants cell phone.

[21]

In
    a back pack found on the rear seat of the car, the police found two bandanas
    and a neoprene mask.  The DNA of Junior Chapman, the appellants co-accused, was
    discovered on one of the bandanas.

[22]

The
    appellant was left alone in the interview room until about 2:50 a.m. when two
    of the investigating officers entered the room.  During the time that the
    appellant was left alone, the police officers were engaged in various duties
    related to this investigation and other unrelated responsibilities.  They
    apparently did not think to assign someone to deal with the appellants request
    to speak to a lawyer until several hours had passed.

[23]

When
    the two officers entered the interview room at 2:50 a.m., they apparently woke
    him up.  After introducing himself and another officer, Detective Nicol again advised
    the appellant that he was charged with robbery while armed with a firearm.  The
    appellant responded, No, it wasnt a real thing.  Detective Nicol then told
    him the victim thought it was the real thing.  Then the following conversation
    between the appellant and Detective Nicol took place:

Nicol:           Do you understand your rights to counsel?

Fearon:        Yeah.

Nicol:           You
    told the other officers you wanted to call a lawyer, who is your lawyer and do
    you have their number?

Fearon:        I
    dont want to call a lawyer.  I want to go to sleep.  I want to plead guilty in
    the morning but not to no firearm charge.

Nicol:           So you dont want to call a lawyer?

Fearon:        No.

Nicol:           You
    understand youre being charged with robbery with a firearm.  Youre not
    obligated to say anything and if you choose to do so, it may be used in
    evidence.  Do you understand?

Feron:          Yeah.

Nicol:           If
    anyone in authority or anyone else has said anything to you or made you any
    promises to provide a statement disregard those statements and only provide a
    statement if you freely choose to do so.  Do you understand?

Fearon:        [Nodded
    yes.]

Nicol:          Do
    you want to tell us what happened tonight?

Fearon:        Not
    really.  I did some stupid thing and Ill do what I got to do.

Nicol:           Are you sorry for what youve done?

Fearon:        Yeah, I fucked up and Ill deal with it.

Nicol:           Are
    you sorry you got caught or sorry you scared that lady?

Fearon:        Im sorry I scared her.  I didnt hurt her.

Nicol:           What
    about your family, how are they going to take the news?

Fearon:        Not
    well.  My mums a good lady and my brothers never been in trouble, just me
    again.

Nicol:           Are
    they going to want to bail you out or visit you in jail?

Fearon:        [Now
    crying.] No, Im a fuck up and embarrassment.  My brother is getting a running
    scholarship and Im going to jail.

[24]

The
    discussion between Detective Nicol and the appellant continued. Detective Nicol
    asked the appellant if he wished to apologize to the victim. The appellant, in
    reply, asked whether such an apology could be put before the judge in the
    morning.  The appellant then provided a videotaped statement in which he
    admitted his involvement in the robbery although he continued to assert that
    the handgun was fake and had been discarded in a garbage can.

THE ruling on the cell phone searchES

[25]

The
    trial judge defined the issue concerning the cell phone searches at para. 36 of
    her reasons:

In this case, there is no issue regarding the lawfulness of the
    Applicants arrest.  The real issue here is whether the searches of the contents
    of Mr. Fearons cell phone during the early stages of the investigation on July
    26 and 27, 2009, and prior to obtaining the warrant on February 9, 2010, were
    truly incidental to his arrest on July 26, 2009.

[26]

The
    trial judge further defined the task at para. 41 of her reasons:

In my view, the searches requiring examination by this Court
    are: First, Sgt. Hicks cursory inspection of the contents of the phone at the
    scene of the arrest; and second, the intermittent searches of the contents of
    the phone from 10:48 p.m. on July 26
th
until the early morning hours
    of July 27
th
at the direction of the detectives.

(e)

The Search at the Scene
    of the Arrest

[27]

It
    was conceded at trial that there were reasonable and probable grounds to arrest
    the appellant.  The trial judge concluded, at para. 42 of her reasons, that
    Sergeant Hicks had a right to search the appellant and to take from him any
    property that he reasonably believed may constitute relevant evidence.

[28]

The
    trial judge concluded at paras. 44 and 45 of her reasons:

In these circumstances, I find that there was a reasonable
    prospect of securing evidence of the offence for which the accused was being
    arrested in searching the contents of the cell phone.  In particular, it was
    reasonable for Sgt. Hicks to believe that the arrestee, Mr. Fearon, may have
    had communications through the cell phone before, during or after the robbery
    with other perpetrators or with third parties.  His search of the phone at the
    arrest scene was brief and cursory.  There is no suggestion that this was an
    expansive or abusive search.

This case is distinguishable from the arrest in
R. v.
    Polius
, [2009] O.J. No. 3074.  In that case Trafford J. found that the
    arresting officer seized the accuseds cell phone during a search incident to
    arrest without any regard for its evidentiary value in connection with an
    arrest that he did not and could not particularize.  The arresting officer in
    that case did not have a reasonable basis to believe that the cell phone may
    have been evidence of the alleged murder when he arrested the accused.

(f)

The Searches
    at the Police Station

[29]

The
    trial judge concluded that the searches of the cell phone during the night and
    early morning hours of the next day were lawful searches incident to arrest.
    She found that although considerable time and distance had passed from the
    search at the scene, it was not significant because the searches of the cell
    phone at the station were closely connected to the search at the scene.  The
    searches at the station were essentially an extension of the search at the
    scene.

(g)

Are cell phones excluded from the common law power to search
    incident to arrest?

[30]

At trial, Counsel for Mr. Fearon submitted that the police exceeded
    their power when they retrieved the photographs and the text message from the
    cell phone.  This argument was premised on the theory that the expectation of
    privacy in the contents of a cell phone is so high that a warrant is required
    before the contents are examined.

[31]

The
    trial judge observed that there were conflicting trial judgments on this issue
    and no appellate authority to resolve the controversy.
[1]

[32]

The
    trial judge held at paras. 49 and 51 of her reasons:

While there is no doubt that cell phones can contain
    significant amounts of personal information, the evidence in this case does not
    lead to the conclusion that Mr. Fearon had an extraordinarily high expectation
    of privacy in this phone.  Mr. Fearon did not testify on the
voir dire
and there was very little evidence as to the devices capabilities.  There is
    no evidence that the phone was password protected or subject to any security
    barriers.  Nor is there any evidence that it had mini-computer capabilities
    like the Treo in
R. v. Little
, 2009 O.N.S.C. 41212.

...

In my view, an ordinary cell phone objectively commands a
    measure of privacy in its contents.  However, the expectation of privacy in the
    information contained in the cell phone is more akin to what might be disclosed
    by searching a purse, a wallet, a notebook or briefcase found in the same
    circumstances.  The evidence in this case is that the LG cell phone appears to
    have had the functions of cell phone operation, text messaging, photographs and
    contact lists.  While certainly private, the information stored is not so
    connected to the dignity of the person that this court should create an
    exception to the police ability to search for evidence when truly incidental to
    arrest and carried out in a reasonable manner.

(h)

Section 24(2) of the
Charter

[33]

Although
    it was not necessary to consider s. 24(2) of the
Charter
, the trial
    judge did so in the event that her analysis in respect of the cell phone
    searches proved to be wrong.

[34]

The
    trial judge applied the analysis set out by the Supreme Court of Canada in
R.
    v. Grant
, 2009 SCC 32,  [2009] 2 S.C.R. 353 in considering whether the
    court ought to admit evidence in spite of the fact that it was obtained in
    breach of the appellants
Charter
rights.

[35]

The
    trial judge found that the police acted in good faith and that the officers
    believed they were acting within their powers of search incident to arrest at
    the time they looked at the contents of the cell phone.  She observed that
    Detective Nicol applied for and obtained a warrant after learning about a case which
    held that warrants would be required for the Technological Crime lab search and
    downloads of information from cell phones. The trial judge noted that the
    warrant was not challenged on the
Charter
application and held that,
    although there was a six-month delay in obtaining a warrant, it did mitigate
    the seriousness of the searchs impact on the appellants
Charter
-protected
    interests. She found that the evidence obtained from the warrantless search in
    any event constituted cogent evidence of a very serious crime. In the result,
    the trial judge concluded that even if she had found a breach of s. 8, the cell
    phone evidence would not bring the administration of justice into disrepute.

the ruling on the admissibility of the
    appellants statements to the police

[36]

The
    trial judge reviewed the circumstances surrounding the making of the
    appellants statements and concluded that there was no atmosphere of oppression
    or anything in the conduct of the police that affected their voluntariness.
    There was no evidence that the appellant did not fully understand what he was
    saying or that his statements could be used against him.

[37]

In
    respect of s. 10(b), the trial judge concluded that the significant delay in
    providing him with the opportunity to consult a lawyer constituted a breach of
    his right to counsel.  However, in her s. 24(2) analysis, the trial judge
    concluded that the breach was not serious.  She found that the police fully complied
    with the informational component of s. 10(b) by advising the appellant of his
    right to speak to a lawyer.

[38]

Regarding
    the implementational component of s. 10(b), the trial judge found that the
    delay in providing the opportunity to contact a lawyer was not intentional.
    There was no attempt to thwart his exercising his right to counsel.  The delay
    on the part of the police was an honest mistake with no harm done.  The trial
    judge concluded: I am satisfied that Fearon knew exactly what he was giving up
    when he declined access to counsel to the detectives.

THE POSITION OF THE PARTIES ON APPEAL

(a)

The Appellant

[39]

The
    appellant advances two principal arguments on appeal. First, he submits that
    the trial judge erred in holding that the search of the cell phone was a lawful
    search incident to arrest and that the search did not infringe his s. 8 rights.
    The appellant contends that this court should carve out a cell phone exception
    to the doctrine of search incident to arrest.  Second, he argues that the trial
    judge erred by concluding that the appellants statements to the police were
    voluntary and did not infringe his
Charter
-protected s. 10(b) right to
    counsel. In addition, the appellant submits that the trial judge erred by admitting
    both the incriminating text and picture produced from the cell phone search and
    the appellants statements to the police. This evidence should have been
    excluded under s. 24(2) of the
Charter
.

(b)

The Respondent

[40]

The
    respondent submits that the examinations of the cell phone made by police fall
    properly within the ambit of the common law power of search incident to arrest.
    The respondent opposes the position taken by the appellant that an exception
    for cell phones ought to be carved out of the search incident to arrest
    doctrine. The respondent also submits that the statements made by the appellant
    to the police were voluntary and admissible and that the trial judge was
    correct to conclude that the breach of the appellants s. 10(b) rights was not
    serious. Lastly, the respondent argues that the trial judges s. 24(2) analysis
    is supportable and entitled to deference from this court.

(c)

The
    Interveners

[41]

The Canadian Civil Liberties Association requests the court to recognize
    that a warrantless search of an electronic device that has already been seized
    incident to arrest is unlawful, absent exigent circumstances.  The Criminal
    Lawyers Association takes a similar position but would permit the police to do
    a cursory examination of a cell phone to determine if it contained relevant
    evidence.

[42]

The
    Director of Public Prosecutions of Canada submits that there should be no cell
    phone exception to the common law search incident to arrest.  Such an exception
    is unwarranted and would complicate the law for the worse.

ANALYSIS

(a)

The Cell Phone

(i)

When is a
    warrantless search incident to arrest justified?

[43]

Counsel
    for the appellant makes two submissions for excluding the cell phone evidence.
    First, he submits that the examination of the contents of the cell phone did
    not satisfy the criteria for a search incident to arrest because the police did
    not have a reasonable belief that they would discover evidence in support of
    the robbery and, in any event, the search went well beyond the kind of examination
    required to determine if such evidence existed.  The second argument is not specific
    to the appellants case and invites this court to carve out an exception to the
    common law doctrine of search incident to arrest for cell phones.

[44]

Before
    addressing these submissions, I turn to the Supreme Courts decision in
R.
    v. Caslake
, [1998] 1 S.C.R. 51.  In
Caslake
, Lamer C.J., writing
    for a majority of the court, summarized the necessary limits of the common law
    doctrine of search incident to arrest. The Chief Justice stressed that its
    limits must be respected. He explained at para. 25 that:

[T]he police must be able to explain, within the purposes
    articulated in
Cloutier, supra
(protecting the police, protecting the
    evidence, discovering evidence), or by reference to some other valid purpose,
    why they searched.  They do not need reasonable and probable grounds.  However,
    they must have some reason related to the arrest for conducting the search at
    the time the search was carried out, and that reason must be objectively
    reasonable.  Delay and distance do not automatically preclude a search from
    being incidental to arrest, but they may cause the court to draw a negative
    inference.  However, that inference may be rebutted by a proper explanation.

[45]

I
    now return to the issues raised by the appellant.

(ii)

Did the cell phone search in this case satisfy the criteria
    for the application of the common law doctrine of search incident to arrest?

[46]

The appellant does not take issue with the legality of his arrest or the
    authority of the police to conduct a pat down search.  As a result, there are
    only two points in issue in this branch of his argument.  First, was the belief
    of the police that an examination of the cell phone would yield evidence of the
    robbery reasonable?  Second, did the search of the contents of the cell phone go
    beyond the permissible limits of a search incident to arrest?

[47]

The
    trial judge concluded that the police reasonably believed that an examination
    of the contents of the cell phone would yield relevant evidence.  Absent
    palpable and overriding error, such a finding is entitled to deference.  I
    discern no such error.  The appellant was arrested about three hours after the
    robbery.  The police had information that the appellant had acted with a second
    person and that a third person was involved in the stashing of the stolen
    jewellery.  There was therefore a potential for communication among the three
    suspected participants.  In addition, the police had a legitimate concern about
    the location of the gun and the stolen jewellery.  Any communication among the
    three suspects could lead to the discovery of one or both.  In respect of the
    photographs found in the cell phone, the police knew from experience that
    robbers will sometimes take photos of the stolen property and even of
    themselves with the loot.

[48]

The
    remaining question on this issue is whether the search went beyond the
    permissible limits of a search incident to arrest.  The position of the
    appellant is that the police were entitled to no more than a cursory
    examination of the contents of the cell phone and that they should have
    proceeded by way of an application for a search warrant after the pat down
    search produced the phone or, at least, after they discovered the photos and
    text message.  The appellant relies on two cases for this submission:
R. v.
    Polius
, [2009] O.J. No. 3074 (S.C.); and this courts decision in
Manley.

[49]

In
Polius
, the defendant was charged with counselling first-degree
    murder.  At the time of arrest, the police seized a cell phone from the accused.
    The phone was examined without a warrant. This search led the police to the accuseds
    cell phone number, which they used to obtain the production of his cell phone
    records.  The records were then tendered by the Crown in evidence.  Trafford J.
    concluded that there was a s. 8 breach but admitted the records pursuant to s.
    24(2) of the
Charter
.

[50]

Trafford
    J. discussed the notion of a cursory inspection of an item seized as incident
    to arrest, at para. 41 of his reasons:

In my view, the power to SITA [i.e., search incident to arrest]
    includes a power to conduct a cursory inspection of an item to determine
    whether there is a reasonable basis to believe it may be evidence of the crime
    for which the arrest was made.  However, any examination of an item beyond a
    cursory examination of it is not within the scope of the power to SITA.  Using
    other words, the evidentiary value of the item must be reasonably apparent on
    its face, in the context of all of the information known by the arresting
    officer.  Where the purpose of a SITA is to find evidence of the crime, the
    standard governing the manner and scope of the search is a ... reasonable
    prospect of securing evidence ....  See
R. v. Caslake, supra
, at
    para. 21.  The police ... must be in a position to assess the circumstances of
    the case so as to determine whether a search meets the underlying objectives
    ... of the SITA.  See
Cloutier v. Langlois, supra
, at paras. 60-62.

[51]

At
    para. 57, Trafford J. expressed his view that once a cell phone is found at the
    time of the arrest and there is a reasonable basis to believe it may contain
    evidence of a crime, it can be seized for the purpose of preserving its
    evidentiary value, pending the search of its contents under a search warrant.

[52]

I
    shall return to
Polius
during my analysis of whether this court should
    carve out a cell phone exception to the common law doctrine of search incident
    to arrest.

[53]

In
    this courts recent decision in
Manley
, the appellant was arrested for
    a number of offences related to the robbery of two retail stores in Trenton.
    The police seized a cell phone from the appellant on his arrest.  The police
    opened the cell phone and examined its contents.  They found a photograph of
    the appellant holding a sawed-off shot gun taken the day after the second
    robbery.  A warrant was later obtained to search the contents of the phone.  At
    trial, the appellant objected to the admissibility of the photograph on the
    ground that the original search was unlawful and, as a result, the search
    warrant was tainted.  The trial judge ruled the search was reasonable and the
    search warrant was valid.

[54]

In
Manley
, the police had information that the appellant had stolen cell phones
    in the past.  The trial judge found that the first police officer who opened
    the cell phone did so to determine its owner.  Ownership of the phone was
    relevant to the offences for which the appellant was arrested.  Sharpe J.A.,
    writing for the court, said at paras. 37 and 38 of his reasons:

In my view, this combination of circumstances provided the
    police with a lawful basis for conducting a cursory search of the cell phone to
    determine whether it had been stolen.  As I can see no basis to interfere with
    the trial judges factual finding that the first officer came upon the
    photograph while conducting a search of the cell phone to determine its
    ownership, I would uphold the trial judges determination that the cursory
    search of the cell phone was lawful.

I wish to emphasize, however that my decision rests on two
    points. First, that the police had a legitimate interest in determining whether
    the cell phone had been stolen and second, that the police did not search the
    stored data in the cell phone for any other purpose.  According to the
    testimony on the
voir dire
that was accepted by the trial judge, the
    cell phones telephone number was identified after the discovery of the
    photograph.  A telephone number is sufficient information from which the
    ownership of a phone may be determined.  Had the examination of the phone continued
    after the telephone number had been found, this would be a different case.  If
    the telephone number had been written or inscribed on the exterior of the cell
    phone or visible or easily found when the phone was opened, any further search
    obviously could not be justified as a cursory inspection to determine ownership.
    Likewise, in a case where there was no reason to doubt the arrested partys
    ownership of the phone and no link between ownership and the offence for which
    the person was arrested, a search of the stored data in the phone could not be
    justified on the basis that the police were simply trying to determine who
    owned the phone.

[55]

Sharpe
    J.A., at para. 39 of his reasons, concluded that it was neither necessary nor
    desirable [in this case] to attempt to provide a comprehensive definition of
    the powers of the police to search the stored data in cell phones seized upon
    arrest.

[56]

Sharpe
    J.A. declined to apply
Polius
in
Manley
.  However, he
    observed that he was not persuaded that
Polius
was wrongly decided.

[57]

This
    case is not significantly different from
Manley
.  I cannot conclude,
    in the circumstances of this case, that the original examination of the
    contents of the cell phone fell outside the ambit of the common law doctrine of
    search incident to arrest.  Apparently, the cell phone was turned on and it
    was not password protected or otherwise locked to users other than the
    appellant.  The police officers had a reasonable belief that they might find
    photographs and text messages relevant to the robbery.  The initial search at
    the time of the arrest involved a cursory look through the contents of the cell
    phone to ascertain if it contained such evidence.

[58]

The
    subsequent examinations of the contents of the cell phone at the police station
    are more difficult to analyze.  Arguably, those examinations went beyond the limits
    for a search incident to arrest.  See
Caslake
, at para. 25.  In my
    view, the proper course for the police was to stop the examination of the
    contents of the cell phone when they took the appellant to the police station
    and then proceed to obtain a search warrant.  Detective Abdel-Malik agreed that
    there was no urgency to search through the cell phone.  There is no evidence
    that it would have been impracticable to appear before a justice to obtain a
    search warrant in the usual manner.  If it was impracticable for an officer to
    appear before a justice to obtain a search warrant, the police could have
    proceeded to obtain a telewarrant under s. 487.1 of the
Criminal Code
.  That
    said, the trial judge concluded that the examination of the contents of the
    cell phone at the police station were connected to the search at the scene of
    the arrest.  Although some time and distance had passed from the arrest, the
    trial judge found that the police were still looking for evidence of the
    location of the jewellery and the gun as well as for contacts among the parties
    to the offences.  These were findings of fact made by the trial judge.  While I
    would have come to a different conclusion, I cannot say that these factual
    findings reflect palpable and overriding error.

[59]

There
    is also another observation to make about the search of the cell phone at the
    police station.  No additional evidence appears to have been discovered by the
    police and none was tendered in evidence from that search.  Even if the search
    at the police station went beyond the limits of
Caslake
s. 24(2) is
    not engaged.

[60]

In
    the result, I conclude that the trial judge did not err in her finding that the
    examination of the contents of the cell phone at the time and place of arrest
    and later at the police station were within the ambit of the common law
    doctrine of search incident to arrest.

(iii)

Should
    this court carve out a cell phone exception to the common law doctrine of
    search incident to arrest?

[61]

The
    appellant argues that until the Superior Courts decision in
Polius
,
    the paradigm for analyzing the warrantless search and seizure of cellular
    devices incident to arrest was the briefcase and analogous containers such as
    wallets and purses.  The point is made that cell phones are sophisticated
    devices which have a capacity for storing an infinite variety and amount of
    personal information in which there is a high expectation of privacy by the
    owner. The contents of a briefcase, purse or wallet are finite while the
    contents of a cell phone and other electronic devices are potentially
    infinite.  A cell phone can continue to provide incriminating evidence after it
    has been seized because of its transmitting ability.

[62]

Trafford
    J. in para. 47 of his reasons in
Polius
observed that a warrant is
    required to search a locked briefcase and that [a] cell phone is the
    functional equivalent of a locked briefcase in todays technologically
    sophisticated world.
[2]

[63]

The
    appellant also relies on observations made by Fuerst J. in
R. v. Little
,
    [2009] O.J. No. 3278 (S.C.) concerning the distinction between briefcases and
    cell phones.  It is important to note that in
Little
, the judge concluded
    at para. 147 that the cell phone in issue functioned as a mini-computer, the contents
    of which were not immediately visible to the eye and were extracted by a
    police officer with specialized skills using specialized equipment.

[64]

Counsel
    for the intervener, the Canadian Civil Liberties Association, submits that cell
    phones should be excluded from warrantless searches incident to arrest except
    in exigent circumstances.  The Civil Liberties Association would not permit
    even a cursory examination of the contents of cell phones.

[65]

Counsel
    for the intervener, the Criminal Lawyers Association of Ontario, takes the
    position that a cursory examination is acceptable for the limited purpose of
    determining whether there is evidence relevant to the alleged crime.  However,
    after the cursory look, the examination should cease and a search warrant
    obtained.

[66]

Counsel
    for the respondent supported by counsel for the Director of Public Prosecutions
    submits that the law in respect of search incident to arrest does not require a
    paradigm shift in the thinking of the court or a carve out of a cell phone exception
    to the police power to search incident to arrest.

[67]

The
    respondent argues that placing cell phones in the exceptional category is
    overly simplistic and illogical.  The nature of information that may be
    stored in a cell phone is no different than the kind of information that people
    carry in tangible form in briefcases, purses or other similar containers.  In
    all of these cases, the potential for discovering highly personal information
    exists.  The fact that there may be more such information in a cell phone ought
    not to justify the creation of a cell phone exception.  The respondent relies
    on the British Columbia decision in
R. v. Giles
, [2007] B.C.J. No. 2918
    (S.C.) in support of this position.

[68]

Counsel
    for the respondent further submits that the Supreme Court of Canada has never
    defined the scope of search incident to arrest by the kind of item searched.
    Counsel argues that the Supreme Court has limited search incident to arrest in
    two cases: the first situation is when personal body integrity is the subject
    of a search: see
R. v. Stillman
, [1997] 1 S.C.R. 607 and
R. v.
    Golden
, 2001 SCC 83, [2001] 3 S.C.R. 679.  The second situation is the
    search of a persons home: see
R. v. Golub
(1997), 34 O.R. (3d) 743, (C.A.)
    and
R. v. Feeney
, [1997] 2 S.C.R. 13.

(iv)

Conclusion on the proposed cell phone exception

[69]

Much
    of the argument in this case, both here and in the court below, focused on
Polius
.
    The appellant argued that the reasoning in
Polius
should apply in this
    case.  Counsel for the respondent distinguished
Polius
from the case
    at bar.  The Director of Public Prosecutions, on the other hand, took the
    position that
Polius
was wrongly decided.

[70]

I
    agree that
Polius
is distinguishable from this case.  In
Polius
,
    the arresting officer received his instructions from a senior officer who did
    not brief him on the circumstances of the alleged offence.  When the cell phone
    was seized on arrest, the arresting officer had no instructions to seize it and
    no reason to believe that it would contain relevant evidence.

[71]

The
    cell phone in
Polius
was turned over the next day to a technician of
    the Toronto Police Service who conducted an examination of the phone over two
    or three days without obtaining a search warrant.  The technician prepared a 15
    page report that included an appendix of over 200 pages of the information in
    the defendants cell phone. Given the facts of
Polius
, it is not
    surprising that Trafford J. concluded it was a case that called for a search
    warrant.

[72]

The
    problem I have with the appellants position and, in particular, the position
    of the Canadian Civil Liberties Association, is that it would appear to mark a
    significant departure from the existing state of the law on the basis of a
    record that does not suggest it is necessary.  While I appreciate the highly
    personal and sensitive nature of the contents of a cell phone and the high
    expectation of privacy that they may attract, I am of the view that it is difficult
    to generalize and create an exception based on the facts of this case.  The
    facts of this case, with the correct application of the existing law, suggest
    that the search and seizure of the cell phone at the scene of the arrest were
    carried out appropriately and within the limits of the law articulated by the
    Supreme Court in
Caslake
.

[73]

In
    this case, it is significant that the cell phone was apparently not password
    protected or otherwise locked to users other than the appellant when it was
    seized. Furthermore, the police had a reasonable belief that it would contain
    relevant evidence.  The police, in my view, were within the limits of
Caslake
to examine the contents of the cell phone in a cursory fashion to ascertain if
    it contained evidence relevant to the alleged crime.  If a cursory examination
    did not reveal any such evidence, then at that point the search incident to
    arrest should have ceased.

[74]

The
    appellant directed this court to statements made by the trial judge in
Little
,
    where she concluded at para. 147 that the cell phone in issue functioned as a
    mini-computer.  Furthermore, the court in
Little
found that the
    contents of the cell phone were not immediately visible to the eye and were
    extracted by a police officer with specialized skills using specialized
    equipment.  There was no suggestion in this case that this particular cell
    phone functioned as a mini-computer nor that its contents were not
    immediately visible to the eye. Rather, because the phone was not password
    protected, the photos and the text message were readily available to other
    users.

[75]

If
    the cell phone had been
password protected or otherwise
    locked to users other than the appellant, it would not have been appropriate
    to take steps to open the cell phone and examine its contents without first
    obtaining a search warrant.

[76]

In
    short, I find myself in the same position as this court found itself in
Manley
.
    To quote from the reasons of Sharpe J.A. again, it is neither necessary nor
    desirable to attempt to provide a comprehensive definition of the powers of the
    police to search the stored data in cell phones seized upon arrest.

[77]

It
    may be that some future case will produce a factual matrix that will lead the
    court to carve out a cell phone exception to the law as articulated in
Caslake
.
    This is not that case.  To put it in the modern vernacular: If it aint broke,
    dont fix it.

(v)

The application of s. 24(2) of the
Charter

[78]

In
    the event that I am found to be in error concerning the s. 8 analysis, I agree
    with the trial judges s. 24(2) conclusion.  I see no error in her application
    of the principles articulated in
Grant
and I agree that the admission
    of the evidence from the cell phone would not bring the administration of
    justice into disrepute.

(b)
The Admissibility of the Appellants Statements to Police

[79]

I see no basis to interfere with the trial judges finding that the
    appellants statements to the police were voluntary.  I agree with her finding
    that there was no atmosphere of oppression while he was detained in an
    interview room for several hours.  It appears, for at least part of that time,
    he was asleep.  While he waited in the interview room, the appellant decided
    that he wanted to plead guilty as soon as possible the next day.  There certainly
    was no pressure to force him to come to that conclusion.

[80]

It
    was unfortunate that the appellant was denied his s. 10(b) rights during the
    period of delay.  However, the trial judge found that the denial was not
    intentional. Accordingly, it did not affect the voluntariness of his statement.

[81]

In
    deciding to admit the evidence of the police statements, in spite of the breach
    of s. 10(b), the trial judge undertook the appropriate s. 24(2) analysis in
    accordance with
Grant
and concluded that the evidence would not bring
    the administration of justice into disrepute.  I agree with her conclusion.

conclusion

[82]

In
    the result, I would dismiss the appeal.

Released:

RPA                                       Robert P.
    Armstrong J.A.

FEB 20 2013                          I agree J.C.
    MacPherson J.A.

I agree
    David Watt J.A.

[1]
I note that the release of the trial judges reasons in respect of the cell
    phone search pre-dated this courts decision in
R. v. Manley,
2011 ONCA
    128, 269 C.C.C. (3d) 40 by almost two months. Since it was not argued before
    the trial judge, I will defer my comments on
Manley
until my analysis of
    the issues on appeal.

[2]
Counsel for the Director of Public Prosecutions challenges this as an
    inaccurate statement of the law.  Trafford J. referred to
R. v.
Mohamad
(2004), O.R. 3(d) 481
(C.A.) where the
    court held in the particular circumstances of the case that an unlocked
    briefcase could be searched as incident to arrest.  It was suggested by counsel
    that Trafford J. simply concluded that a locked briefcase required a search
    warrant.


WARNING

The President
    of the panel hearing this appeal directs that the following should be attached
    to the file:

An order
    restricting publication in this proceeding under s. 276.3 of the
Criminal
    Code
shall continue.  This section of
the Criminal Code
provides:

276.3 (1) No
    person shall publish in any document, or broadcast or transmit in any way, any
  of the following:
(a) the contents of an application made
  under section 276.1;
(b) any evidence taken, the information
    given and the representations made at an application under section 276.1
    or at a hearing under section 276.2;
(c) the decision of a judge or justice
    under subsection 276.1(4), unless the   judge or justice, after taking   into account the complainants right of privacy  and the interests of
    justice, orders that the decision may be published, broadcast or
  transmitted; and
(d) the determination made and the reasons
  provided under section 276.2,         unless
(i) that determination is that evidence is
  admissible, or
(ii) the judge or justice, after taking
    into account the complainants right of privacy and the
    interests of justice, orders that the determination and reasons
    may be published, broadcast or transmitted.
Offence
(2)
    Every person who contravenes subsection (1) is guilty of an offence punishable  on summary conviction; 1992, c. 38, s. 2; 2005, c. 32, s. 13.

COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Green, 2013 ONCA 74

DATE: 20130206

DOCKET: C53413

Doherty, Simmons and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bruce Allen Green

Appellant

Sherri J. Beattie, for the appellant

Scott Latimer, for the respondent

Heard and released orally:  January 28, 2013

On appeal from the conviction entered by Justice W.
    MacPherson of the Superior Court of Justice, dated October 25, 2010 and the
    sentence imposed on October 25, 2010.

ENDORSEMENT

[1]

The appeal turns on the admissibility of the evidence that the
    complainant had on two prior occasions alleged that she had been sexually
    assaulted only to later recant those allegations.  In our view, evidence of the
    allegations/recantations does not engage s. 276.  That evidence does not
    involve evidence of sexual activity.  The admissibility of this evidence turns
    on questions of relevance and the proper application of the collateral fact
    rule.

[2]

We think that the allegations/recantations questions were clearly
    relevant to the credibility of the complainants allegation against the
    appellant.  Nor, in our view, was their relevance such that it could be said
    the evidence had minimal probative value.  The questions were, therefore,
    proper questions to put to the complainant on cross-examination.

[3]

We are also satisfied that the evidence of the recantations, at least to
    the extent that the evidence of the recantations came from the witness, Landry,
    was not collateral and was, therefore, properly the subject of further
    evidence.  According to Landry, the complainant made the recantations to her in
    the very same conversation in which the complainant alleged she had been
    sexually assaulted by the appellant.  The Crown led evidence of that
    conversation to support the allegation against the appellant.  The contents of
    the conversation were not, therefore, collateral.

[4]

Cross-examination of the complainant on the alleged recantations to Ms.
    Landry could have assisted not only in assessing the complainants general
    credibility, but also in assessing the very reliability of her statement to Ms.
    Landry that she had just been sexually assaulted by the appellant.

[5]

The defence could have led evidence from Ms. Landry to contradict the
    complainant if the complainant in cross-examination denied making the
    recantations to Ms. Landry.  On this record, we have no idea what the
    complainants response to those questions would have been.

[6]

We need not decide whether evidence from the appellant to the effect
    that the complainant had recanted the babysitter allegation a few weeks
    earlier could also have been admitted had the complainant denied making the recantation.

[7]

The trial judge properly excluded the evidence of the police officer
    regarding the landlord incident, one of the two incidents that led to the s.
    276 hearing.  The police officers evidence about his investigation and his
    opinion as to the complainants veracity had nothing to do with whether the
    complainant had made an allegation of sexual assault that she subsequently
    recanted.  We stress that it is the combination of the allegation and the
    recantation that make this evidence relevant to the complainants credibility.

[8]

We see no merit in the unreasonable verdict argument.  There was ample
    evidence to support the trial judges finding of guilt.

[9]

We cannot say that the error made with respect to the allegations/recantations
    evidence was harmless in the context of this record.

[10]

The
    appeal must be allowed, the conviction quashed and a new trial ordered.

Doherty J.A.

Janet Simmons J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Jack, 2013
    ONCA 80

DATE: 20130207

DOCKET: C53683

Juriansz, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chadwick Jack

Appellant

Chadwick Jack, acting in person

Jill Presser, as duty counsel

Eric Siebenmorgen, for the respondent

Heard: November 22, 2012

On appeal from the conviction entered on April 21, 2011 and
    the sentence imposed on June 10, 2011 by Justice Edward Belobaba of the
    Superior Court of Justice, sitting with a jury.

Epstein J.A.:

Overview

[1]

The appellant appeals his April 21, 2011
convictions, after a trial by judge and jury, of two counts of robbery
    arising out of an incident that took place in January of 2010 at a car rental
    establishment known as AutoHire Rent-A-Car.  The assailant, armed with a gun,
    entered the rental agency and robbed two men who were in the office at the
    time. The robber stole $2,500 from Mr. Syed Badar Munir,

who owned AutoHire,
    and $50 from Mr. Abner Omar Zuniga, a customer and friend of Mr. Munirs.  The
    appellant was sentenced to ten years for each count, to be served concurrently.
    He appeals against conviction and seeks leave to appeal his sentence.

[2]

The only issue at trial was identification and the only evidence on that
    issue was the eyewitness testimony of the two victims.

[3]

Shortly after the robbery, the two victims described their assailant to
    the 911 operator.  When the police arrived, Mr. Munir provided them with a copy
    of the appellants health card that was in the files of the car rental agency
    on the basis that he was the man who had robbed them.  Several hours later, Mr.
    Munir again described the assailant during a police interview.  At trial, both
    victims gave an in-dock identification.

[4]

The appellant did not testify.  A friend gave evidence in support of his
    alibi defence.

[5]

In his conviction appeal, the appellant submits that the trial judge
    committed reversible error in his charge to the jury.  He argues that the jury instructions
    with respect to the eyewitness identification evidence and the alibi defence
    were deficient.  The appellant also contends that the sentence was harsh and
    excessive and the trial judge did not properly consider the potential for
    rehabilitation.

[6]

For the reasons that follow, I agree that the jury was not provided with
    adequate instructions with respect to the identification evidence.  On that
    basis I would allow the appeal and quash the convictions.  In the circumstances
    of this case, I would direct that the appellant be acquitted of both charges.

FACTUAL BACKGROUND

[7]

On January 11, 2010, Mssrs. Munir and Zuniga were at the rental car
    office when a man kicked the door in, pointed a gun at each of them, took their
    money, and left. The entire event took place quickly  around two minutes.  In
    addition to giving details of the theft of their cash, the victims testified
    that during the brief encounter, the assailant picked up and smashed Mr.
    Zunigas two-way phone. Mr. Zuniga recalled that at one point during the
    robbery the assailant referred to him by his first name, Omar.

[8]

Both complainants testified that they had previously seen the
    perpetrator when he came into AutoHire to rent a car. However, they were both
    clear that on these occasions their interaction was brief.  Neither victim had
    assisted the man with his transaction.  Both testified that the last time they
    had seen the appellant was more than two months earlier. Mr. Munir recalled the
    man with whom he had had this contact as a 58 black guy.  He did not
    remember anything unusual about the mans teeth or whether he had any visible
    scars or any tattoos. Mr. Zuniga described the man as male black (
sic
),
    like 59, medium build. He too had no memory of observing anything unusual
    about his appearance.

[9]

When the police arrived, Mr. Munir went into the car rental files and
    provided them with a photocopy of the appellants health card identification
    that was maintained as a result of his previous transactions with AutoHire.
    With the appellants picture in hand, Mr. Munir identified him as the
    assailant.

[10]

A
    few weeks later the police located the appellant and laid the robbery charges.

ISSUES

[11]

The
    appellant raises three issues:

1.    The trial judge erred in failing
    properly to instruct the jury on the frailties of eyewitness identification evidence.

2.    The trial judge erred in charging
    the jury on the permitted use of alibi evidence.

3.    The trial judge erred by imposing
    a sentence that was harsh and excessive.

ANALYSIS

(1)

The instruction to the jury regarding the eyewitness identification

Applicable Legal Principles

[12]

The
    jurisprudence is replete with guidance about how the jury should be instructed
    in cases where identity is the issue and where, as here, the Crowns ability to
    satisfy the jury that it was the accused who committed the crime depends on eyewitness
    identification.

[13]

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: see for example
R. v. Goran
, 2008 ONCA 195, 234 O.A.C.
    283, at para. 19. Such evidence, being notoriously unreliable, calls for
    considerable caution by a trier of fact:
R. v. Nikolovski
, [1996] 3
    S.C.R. 1197, at pp. 1209-10;
R. v. Bardales
, [1996] 2 S.C.R. 461, pp.
    at 461-62;
R. v. Burke
, [1996] 1 S.C.R. 474, at p. 498.

[14]

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:
R. v. Alphonso
, 2008
    ONCA 238, [2008] O.J. No. 1248, at para. 5;
Goran
, at paras. 26-27.

[15]

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?
R. v. Carpenter
,
    [1998] O.J. No. 1819 (C.A.) at para. 1. Was the sighting by the witness in
    circumstances of stress?
Nikolovski
, at 1210;
R. v. Francis
(2002), 165 O.A.C. 131, at 132.

[16]

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?
R.
    v. Ellis
, 2008 ONCA 77, [2008] O.J. No. 361, at paras. 5, 8;
R. v.
    F.A.
(2004)
, 184 O.A.C.
    324, at para. 64;
R. v. Richards
, (2004) 70 O.R. (3d) 737, at para. 9.
R. v. Boucher
, 2007 ONCA 131,
    [2007] O.J. No. 722, at para. 21.  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.

[17]

Finally,
    the charge must caution the jury that an in-dock or in-court identification is
    to be given negligible, if any, weight:
R. v. Hibbert
, [2002] 2 S.C.R.
    445, at pp. 468-69;
R. v. Tebo
(2003), 172 O.A.C. 148, at para. 19.

Application of the legal principles to this case

[18]

Here,
    the identification evidence was not without its problems. The eyewitness
    identification evidence was that of two victims who had but a few minutes to
    observe their assailant.  Their encounter  facing a man in close range pointing
    a gun at them  was highly stressful.  Moreover, their descriptions of the
    robber can only be described as generic.  Notwithstanding their evidence about
    how close they were to the assailant, neither Mr. Munir nor Mr. Zuniga noticed
    any distinctive features.  The appellant has two permanent gold front teeth, a
    7 scar on his jaw, and a 3.5 cm tattoo he sports on his left hand.

[19]

To
    add to the Crowns challenge of proving identity beyond a reasonable doubt was
    the absence of any physical evidence tying the appellant to the crime. There
    was no surveillance footage and no DNA from the appellant.  Although the
    victims testified that the assailant picked up and smashed Mr. Zunigas phone
    with his bare hands, the appellants fingerprints were not found on the phone. Mssrs.
    Munir and Zuniga also provided an in-court identification of the appellant as
    the person who committed the crimes.  Thus, the entire prosecution case rested
    solely on the identifications of the appellant by the Zuniga and Munir.

[20]

The

trial judge addressed the frailties of the identification evidence as
    follows:

The case against Mr. Jack depends entirely on eyewitness
    testimony. You must be very careful when relying on eyewitness testimony. In
    the past there have been miscarriages of justice and persons have been wrongly
    convicted because eyewitnesses have made mistakes in identifying the person
    whom they saw committing a crime.

Eyewitness testimony is an expression by a witness of his or
    her belief or impression. It is quite possible for an honest witness to make a
    mistake in identification. Honest people do make mistakes. An apparently
    convincing witness can be mistaken.

[21]

The
    deficiencies in this instruction upon which the appellant relies focus on the
    trial judges failure to adequately deal with the reasons why, on the evidence
    in this case, the identification evidence had to be scrutinized with
    considerable care. The most notable of these problems was that the victims
    contact with the robber was brief and stressful and their descriptions of him
    were generic in nature, lacking any mention of any distinctive features.  The
    appellant also relies on the trial judges failure to provide any caution
    regarding the use of in-dock identification.

[22]

The
    Crown argues that the reliability of the identification evidence was
    strengthened by a number of factors. The Crown contends that this is a
    recognition case, not an identification case. The victims recognized the robber
    as someone with whom they had had contact  evidenced by their independent
    recollection and the fact that his health card was in AutoHire files.   As
    well, the jury had Mr. Zunigas testimony that the robber referred to him by
    his first name.

[23]

The
    Crown submits that while the charge was brief and perhaps not as tailored to
    the case as it could have been, there was evidence linking the appellant to the
    robbery.  The jury did receive instructions that contained a caution about the identification
    evidence  instructions that came at the end of a short trial preceded by
    strong defence submissions. The Crown therefore maintains that the jury was
    adequately equipped to determine whether the prosecution had proven identity
    beyond a reasonable doubt.

[24]

As
    I will explain, I do not agree.

[25]

First,
    I do not see this as a recognition case. I see it as an identification case.
    The previous contacts between the victims and the appellant took place months
    earlier, were brief, and were in the normal course of business such that the
    men would have no particular reason to have made note of the appellants
    features.  The best evidence of this is that neither witness remembered observing
    anything distinctive about the mans face.

[26]

Furthermore,
    any impact from this previous contact became negligible in the light of the
    brief, stressful contact during the robbery.  As Charron J.A. observed in
R.
    v. Miller
(1998)
, 116
    O.A.C. 331, at pp. 338-39, despite the fact the complainant testified that she knew
    the accused reasonably well, the limited time she had to observe the
    assailant diminished the reliability of her identification evidence.

[27]

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 their
    descriptions were generic and did not contain any reference to the appellants distinctive
    features  the gold teeth, the scar and the tattoo, features that would have
    been apparent given the proximity of the contact between the perpetrator and
    his victims.

[28]

Admittedly,
    the trial judge did instruct the jury to consider the victims failure to
    notice the appellants distinctive features.  After summarizing the evidence
    relevant to this issue, including the fact that the arresting officer testified
    that he did not notice these features when he located the appellant several
    weeks after the robbery, the trial judge instructed the jury as follows:

Are the gold teeth, facial scar, or hand tattoo something that
    the two eyewitnesses should have noticed if indeed the robber was Mr. Jack?
    Does the failure to do so raise a reasonable doubt about whether Mr. Jack was
    the robber?  This is for you to decide.

[29]

However,
    I agree with the appellant that this instruction did not go far enough.  As
    discussed in
R. v. Gonsalves
(2008)
, 56 C.R. (6th) 379 (Ont. S.C.J.), at para. 39, eyewitness
    identification evidence has taught us to use discriminating scrutiny for badges
    of unreliability. One such badge is whether a witness description of the
    suspect fails to include mention of a distinctive feature of the accused:
Ellis
,
    at para. 5, 8;
F.A.
, at para. 64.  The caution contained in the above
    paragraph simply advises the jury to consider the impact of the evidence that
    the victims did not notice the appellants distinctive features.  It does not
    caution them to take this factor into consideration together with the generic
    description they provided to the police in performing their critical analysis
    of assessing the reliability of the identification evidence upon which the
    Crowns case wholly depended.

[30]

Compounding
    the problems associated with the insufficient instruction about the reliability
    of the identification provided by the victims prior to the trial is the trial
    judges failure to caution the jury about their use of the victims in-court
    identification.  The charge, in fact, contains no reference to this evidence at
    all let alone a warning about the inherent unreliability of such evidence,
    particularly a caution about the diminished correlation between a witness
    confidence level and his or her accuracy.

[31]

The
    jury should specifically have been given what is known as a
Hibbert

instruction. The seeming persuasiveness of eyewitness identification can be
    misleading as there is a very weak link between the confidence level of a
    witness and the accuracy of that witness:
Hibbert
,
at p. 469. This was further discussed
    in
Richards
, at para. 33, in which this court noted that certainty on
    the part of an honest identification witness is part of the reason that
    eyewitness identification evidence is dangerous.

[32]

The
    portion of the charge set out above does contain a caution that [a]n
    apparently convincing witness can be mistaken, but this was in the context of a
    discussion of generic descriptions in eyewitness testimony in general and fell
    short of the requirements established in
Hibbert
and reinforced by
    many decisions that followed.

[33]

Of
    importance is the fact that the
Hibbert
caution that certainty is not to
    be taken as an indicium of accuracy was not tailored to the specific concerns
    in this case  the certainty apparent from Mr. Munirs retrieval of the health
    card and Mr. Munirs and Mr. Zunigas in-dock identification. It was in these
    two areas where the victims conviction that the appellant was the perpetrator was
    palpable and specific instructions were required.

[34]

Mr.
    Munir testified that he knew the appellant and that the appellant was the
    robber.  For this reason, right after the robbery he pulled the appellants
    identification from his files and presented it to the police as being a picture
    of the assailant.

[35]

Defence
    counsel was justifiably concerned that this conduct  retrieving the
    appellants ID immediately after the crime is the precise type of conduct that
    may add to the creation of a witnesss perception rather than confirm it.
The trial judge was put on notice that this was an issue.  Defence
    counsel requested the trial judge instruct the jury that the pulling of the
    photocopy of the health card was, for this reason, problematic and not, as
    suggested by the Crown, confirmatory of the victims identification of the
    appellant as the robber.

[36]

The
    trial judge, however, declined to give such an instruction and further declined
    to call the jury back to instruct them after defence counsel objected again
    following the charge.

[37]

The
    transcript clearly demonstrates the degree of confidence the victims had in
    their identification of the appellant as the robber.   In court they both said
    they were certain that the person in the prisoners box was the man who robbed
    them.  The charge contained no instruction at all about the jurys use of this
    evidence.

[38]

In
    my view the danger posed by the in-dock identification evidence in this case was
    even greater than that in
Hibbert
as here, two eyewitnesses gave an
    in-dock identification that the appellant was the assailant.  The heightened risk
    was that, with two in-court identifications, the jury would attach increased unwarranted
    weight to this evidence.  There was therefore a need for the jury to be specifically
    cautioned in a manner that not only conveyed the untrustworthiness of in-dock
    identification evidence but also brought home to the jury the danger of allowing
    the fact that there were two witnesses who testified, each with considerable
    confidence, that the man in the prisoners box was the robber, to bolster the
    reliability of evidence the nature of which is so fundamentally unreliable.

[39]

In my view, the deficiencies in the charge, deficiencies that can
    be described in a general fashion as a failure to connect the standard
    instruction on the frailties of eyewitness identification to the specific
    concerns raised by the evidence in this case, in a case devoid of other
    evidence linking the accused to the crime, amounts to a reversible error
.

[40]

I
    would therefore give effect to this ground of appeal and allow the appeal,
    making it unnecessary for me to deal with the appellants arguments concerning
    the instructions relating to alibi or, obviously, the sentence appeal.

CONCLUSION

[41]

As
    I have said, the victims identification provided to the police immediately
    following the robbery was problematic. The victims subsequent in-dock
    identification of the appellant as the assailant did not add any weight to this
    initial identification. And, the Crown led no other direct or circumstantial
    evidence connecting the appellant to the robbery.

[42]

In
    these circumstances, I conclude that the identification evidence was insufficient
    to support the verdicts. A properly instructed jury, acting reasonably, could
    not have found that the identification evidence in this case met the requisite
    criminal standard of proof.

DISPOSITION

[43]

Given
    my view that the verdicts are unreasonable, the appropriate order is an order
    quashing the convictions and entering an acquittal on each charge.

Released:

FEB -7 2013                           Gloria Epstein
    J.A.

RGJ                                       I agree R.G.
    Juriansz J.A.

I agree
    David Watt J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v.
    Jack, 2013 ONCA 82

DATE: 20130208

DOCKET: C55039

Doherty, Simmons and Tulloch JJ.A.

Her Majesty the Queen

Appellant

and

Jason Andrew Jack

Respondent

Christopher Webb, for the appellant

Jack McCulligh, for the respondent

Heard and released orally:  February 1, 2013

On appeal from the order of Justice F. Dawson of the
    Superior Court of Justice, dated January 18, 2012.

ENDORSEMENT

[1]

The respondent was convicted on two charges after a lengthy trial in
    May 2010.  The Summary Conviction Appeal Court (SCAC) ordered a new trial in
    September 2011.  The Crown seeks leave to appeal from that order and if leave
    is granted appeals from that order.

Should Leave be Granted?

[2]

The grounds of appeal raised by the Crown do not raise jurisprudential
    issues.  The Crowns arguments rely on the application of well-established case
    law to the specifics of this case.  A preliminary review of the arguments
    advanced by the Crown, however, satisfies us that the grounds have considerable
    merit.

[3]

When, as in this case, the respondent was convicted at trial and a new
    trial was ordered by the SCAC judge on grounds that seem to this court to be
    suspect, the administration of justice may be served by granting leave and
    addressing the merits.  By doing so, the court potentially avoids an
    unnecessary retrial years after the relevant events.  That retrial would come
    at significant cost to limited judicial resources and at considerable inconvenience
    to the many witnesses involved in this matter.

[4]

Taking into account our preliminary assessment of the merits and the potential
    advantage to the administration of justice by a consideration of the merits of
    the appeal, we are satisfied that this is an appropriate case in which to grant
    leave to appeal.

the merits of the appeal

[5]

We agree with the Crowns submission that the SCAC judge erred in law in
    concluding that a miscarriage of justice had occurred by virtue of the trial
    judges failure to take into account the evidence given by one of the police officers
    on what was referred to as the zipper issue.  We will refer to that officer
    as the second officer.

[6]

The SCAC judge concluded that the evidence of the second officer
    supported the respondents evidence that his zipper was broken at the time of his
    arrest, thus explaining why his zipper was down when he was confronted by the
    police (but not explaining why his penis was erect and visible under his
    underwear through the opened zipper).  The SCAC judge further held that the
    trial judge, in rejecting the respondents evidence, particularly his alibi
    evidence, had relied on her finding that the zipper was not broken.  The SCAC
    judge concluded that the trial judge had failed to consider the evidence of the
    second officer and that the evidence was material to the trial judges
    determination that the respondents alibi should be rejected.  The SCAC judge
    concluded that as the trial judge had failed to consider material evidence, the
    convictions must be quashed as a miscarriage of justice.

[7]

On our review of the record, we are satisfied that it was the SCAC judge
    and not the trial judge who misapprehended some of the evidence relating to the
    zipper issue.  Contrary to the SCAC judges review of the evidence, the first
    police officer at the scene did not give evidence that was substantially different
    from the evidence given by the second officer.  It was the evidence of the
    second officer that the SCAC judge concluded the trial judge had failed to
    consider.

[8]

On the evidence of the first officer, the respondents shorts were unbuttoned
    and unzipped when the first officer confronted him.  On the evidence of the
    second officer, the respondents shorts were unbuttoned and unzipped when
    sitting in that officers vehicle shortly after his arrest.  There was no evidence
    that the respondent ever buttoned up his shorts.  The evidence given by the
    officers about the zipper and the undone button was substantially the same.
    The second officers evidence, like that given by the first officer, suggested
    that the zipper had come down because the pants were not properly buttoned and
    not because the zipper was broken.

[9]

Nor was there any basis upon which to find that the trial judge failed
    to consider the evidence of the second officer.  The trial judge specifically
    identified that officers evidence by reference to its transcript location and indicated
    that, in her view, his evidence did not add anything to the narrative or the evidence
    relevant to the zipper issue.  Those assessments were available to the trial judge
    on this record.

[10]

Lastly,
    we agree with the Crowns submission that whatever may be said about the evidence
    relating to the zipper issue, that issue was far from central to the trial
    judges analysis of the evidence in this case.  This was quite simply an overwhelming
    circumstantial evidence case against the respondent and the trial judge saw it
    as such.  There were several weaknesses in the alibi evidence which fully
    justified the trial judges conclusion that the alibi evidence did not leave
    her with a reasonable doubt.

[11]

Leave
    to appeal is granted, the appeal is allowed, the order directing a new trial is
    set aside, and the convictions entered at trial are restored.

Doherty J.A.

Janet Simmons J.A.

M. Tulloch J.A.