R. v. Thorne

2007 BCSC 784 R. v. Thorne IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Thorne, 2007 BCSC 784 Date: 20070511 Docket: 21461-2 Registry: Prince George Regina v. Chase Douglas Thorne Before: The Honourable Mr. Justice E.G. Chamberlist Oral Reasons for Judgment May 11, 2007 Counsel for the Crown: J. Sutton Counsel for the Accused: N. Lauder Place of Trial: Prince George, B.C. [1] THE COURT: The accused Chase Douglas Thorne stands charged with a six count indictment, which charges as follows: Count 1: Chase Douglas Thorne, on or about the 17th day of December, 2005, at or near Prince George, in the Province of British Columbia, did commit assault of another person, Blake Cuthbertson, contrary to Section 266 of the Criminal Code. Count 2: Chase Douglas Thorne, on or about the 17th day of December, 2005, at or near Prince George, in the Province of British Columbia, did commit assault of another person, Eric Vanloo, contrary to Section 266 of the Criminal Code. Count 3: Chase Douglas Thorne, on or about the 17th day of December, 2005, at or near Prince George, in the Province of British Columbia, did commit assault of another person, Brock Brause, contrary to Section 266 of the Criminal Code. Count 4: Chase Douglas Thorne, on or about the 17th day of December, 2005, at or near Prince George, in the Province of British Columbia, did knowingly utter a threat to Brock Brause, to cause death or bodily harm to him, contrary to Section 264.1(1) of the Criminal Code Count 5: Chase Douglas Thorne, on or about the 17th day of December, 2005, at or near Prince George, in the Province of British Columbia, did commit aggravated assault of Dan Burton, contrary to Section 268(2) of the Criminal Code. Count 6: Chase Douglas Thorne, on or about the 17th day of December, 2005, at or near Prince George, in the Province of British Columbia, did commit robbery of Brock Brause, contrary to Section 344(b) of the Criminal Code. [2] The charges all relate to four complainants being in attendance at what is colloquially called a pit party, just off of Hilltop Road, in the City of Prince George, Province of British Columbia. The pit party was principally organized by the complainant Dan Burton, who lived nearby. [3] At the time of the party, all the complainants, other than Blake Cuthbertson, were 16 years of age. Blake Cuthbertson was age 15 at the time. [4] The reason for the pit party was to celebrate the last day of school before the Christmas break. The boys generally contributed to the costs of obtaining two kegs of beer through a third party, and the two kegs of beer were delivered to Dan Burton's home. One of the kegs was opened there and some beer consumed out of it. [5] Some time between 6 p.m. and 9 p.m. the complainants, the two kegs of beer, and other persons, were transported by Dan Burton's mother in her van to the location for the party. The two kegs of beer were carried to the pit area from the parking lot. Mrs. Burton thereafter drove home. She was to come and pick up her son and the other friends she had driven there upon him calling her on his cell phone. [6] It is difficult to determine, from the contradictory evidence, exactly when they arrived at the pit area. Nevertheless, a fire was started in the pit area, and beer was consumed by most of the complainants. Eric Vanloo testified, however, that he did not have any beer to drink. [7] Dan Burton in his direct evidence testified that he only had one beer at his house, from the one keg that was opened there, and only had one beer at the fire that was started in the pit area. Although he testified that there was marihuana at the party, he did not have any. His evidence was that the area where the pit fire started was approximately a five minute walk from where the cars were parked. [8] He testified that around 10 minutes to 12 midnight an older fellow approached him. He did not know who this person was. He testified that the person approaching him stumbled and Burton asked him if he was okay. He testified that after a few brief words he turned away only to be head butted twice. He fell to the ground where he was kicked and punched on the left side of his face. He tried to cover up with his hands on his face. [9] He described his assailant as being six foot one to six foot two with narrow eyes, a rounded face, big shoulders, and weighing between 200 and 250 pounds. He also described how his friend Eric Vanloo had jumped on the assailant. Mr. Burton got up and observed Eric Vanloo wrestling with the assailant and then his friend Eric Vanloo fell down. [10] At that point Mr. Burton got up, and he and Blake Cuthbertson started to carry one of the kegs, having called his mother to come pick them up. Partway down the trail to the parking area Mr. Burton determined to go back and get the other keg. When he came back, he found that the assailant and a group of other persons were running down the trail with the keg that had been in the care of Blake Cuthbertson. He observed the assailant leave the parking area with other persons and described them leaving in a white truck. The trail from the parking area to the pit area, according to Mr. Burton, is some two to two and a half blocks. [11] Under cross-examination Dan Burton again confirmed that he had never seen the assailant before the night in question, and agreed that persons later told him that the assailant was the accused. He described the assailant as appearing to be drunk. Under further cross-examination he testified that the assailant had red hair, was wearing a grey hoodie, and wearing a baseball cap. [12] Eric Vanloo also gave evidence. He did not see the initial attack on Dan Burton, but he was called over by a friend to the fire area. He came directly over to find Dan Burton on the ground bleeding from his face. He described taking off his jacket and helping Mr. Burton up, when the assailant came over to him and asked him if he wanted a fight, to which Mr. Vanloo said "no". Thereafter Mr. Vanloo was hit twice in the face with a fist, and then tackled to the ground, and thereafter kicked in his head by the assailant. [13] Vanloo helped carry one of the remaining kegs. He testified that he heard a name "Chase" when he was in the parking area with Blake Cuthbertson. Thereafter the same assailant came back and asked if Cuthbertson wanted to fight, whereupon Cuthbertson said "no". Vanloo stated that Blake Cuthbertson started to walk away whereupon he too was hit in the back of his head with a fist. Vanloo then jumped on the assailant's back. Vanloo asked the assailant if he would give up, to which the assailant said "no". Mr. Vanloo let go. The assailant got up and Mr. Vanloo was again kicked by the assailant on the left side of his head. [14] Throughout the trial Mr. Vanloo remained adamant that the assailant was indeed the accused. In his cross-examination he was referred to the direct evidence he gave at the preliminary inquiry on December 6th, 2006, and in particular the questions and answers at page 8, commencing at line 31, where this exchange took place. Q And this person that you call Chase, would you be able to identify him if you saw him today? A Yeah. Q Is he here in court today? A Yes. Q Can you point him out for us, please. The gentleman in the front row? A I would think so. Q Well, you don't sound positive. A Not 100 percent positive. Like, the night was hazy, I -- but yeah, I'm pretty sure. Mr. Vanloo also testified that he was told by other persons that the assailant was Chase Thorne. He also testified that he had heard girls say "Chase". [15] Blake Cuthbertson also gave evidence. He testified at trial that he had had three to four beers when he first became aware of the fight, and that was when Dan Burton had come over to him. He advised that at that time he and Dan Burton had decided to take the kegs to the parking lot and Mrs. Burton was to pick them up. He then described taking kegs down the trail towards the parking lot, when he was approached by someone asking him if he wanted to fight, to which he had said "no", and that when he looked away he was hit on the side of the face, and was knocked unconscious for some five to 10 minutes. He recalled that when he woke up that friends were trying to get him to wake up. [16] He testified that he had had no knowledge of who his assailant was, yet he identified the accused at trial. Under cross-examination Mr. Cuthbertson agreed that he did not see who had hit him, and he was referred to the evidence he had given at the preliminary inquiry on December 6th, 2006. At that inquiry he was asked in direct by Mr. Sutton for the Crown, at page 23, line 23: Q And this person who hit you, would you be able to identify him if he was in court today? A I didn't see. I was told who hit me. I didn't actually see the person hit me at all. Thus the evidence of Mr. Cuthbertson at trial where he stated that he was able to identify his assailant is questionable. [17] Brock Brause testified at trial that he had only had five to six glasses of beer, but under cross-examination was referred to the evidence he had given at the preliminary hearing, where he had testified that he drank nine or 10 glasses of beer, and also smoked some marihuana. He testified at trial that he had been standing with Dan Burton by the kegs and the fire when the accused had come up to him. He testified that he knew him, that is the accused, at that moment to be Chase Thorne, because he, himself, used to attend Kelly Road School and had seen him once at the school. He testified that he was therefore able to recognize him at that time when Chase Thorne first approached him. [18] He testified that he asked him if he wanted a beer to which Mr. Thorne had said, "Maybe later." He testified that the person he identified as Chase Thorne head butted his friend Dan. He described himself as being in shock. He described how his friend was head butted twice and thrown to the ground, whereupon Chase Thorne punched him. He described his friend Dan Burton getting up and was bleeding. He also testified to observing Eric Vanloo take his shirt off and Vanloo asking who had done this to his friend. [19] He further testified that girls who were there used the name "Chase" when telling the assailant to stop. He described how he did not want to jump into any fight, but when his friend Eric Vanloo was thrown to the ground, he then jumped on the assailant's back only to get pulled off. It was then, according to Brock Brause, that they started walking down the trail with the two kegs of beer. When they were halfway down the trail, Dan Burton went back to get their friend Stephan who had passed out from consuming too much alcohol. [20] He described how he was on the trail with the full keg, when a group of persons, including the accused, came up to him and asked him to let go of the keg and the accused attempted to remove it. He described then being tackled to the ground, and that the accused then picked up the keg and left with it. He thereupon went back to the fire pit and advised Dan Burton what had happened while Dan Burton was trying to help his friend Stephan up. [21] Thereafter he described Dan Burton running down the trail while he helped Stephan down the trail. When he got to the group he witnessed Blake Cuthbertson being hit in the head and knocked to the ground by someone and then observed Eric Vanloo jumping in. He then went to help Dan Burton whereupon he describes himself as again being hit over the head and falling to the ground. He then described seeing the accused going to a green truck and leaving. He proceeded to obtain the licence number of the green truck, which he gave to Ms. Burton who was then present. [22] Under cross-examination Brock Brause was cross-examined as to when he first identified the assailant as Chase Thorne. He was referred to the previous evidence he had given at the preliminary inquiry regarding when he first determined who the assailant was. The transcript of December 5th, 2006, page 38, line 46: A Yeah. You go to the special, like, notepad thing, and you can type in letters and numbers. And I showed that to Dan's mom. Somebody already got it before me, got both trucks' licence plates and handed it to Dan's mom, so mine was useless, but like I said, she already had it. A couple of guys that I went to school with that are much older than me came over and they're, like, "Yeah, that's -- we just saw exactly what happens," talking to Dan's mom, saying, "Yeah, this guy's name was Chase Thorne." And I didn't even, like, no one even said his name to Cheri, Dan's mom, before, like, this guy I went to school with said it to her. And then we're all, like, "Chase Thorne, Chase Thorne," I was, like, "Yeah." I was, like, I didn't, like, "Yeah, that was Chase," like, holy crap, I didn't, like, it just popped in my head as soon as I heard the name. Similar evidence was given by Brock Brause at page 61 of the same transcript at line 4: A Yeah. I know the one, the name. His name is Mitch Koch. He -- he was the one that said to Cheri, "Yeah, I saw everything that happened to Dan here, and if you want to know that guy's name, it's Chase Thorne." And then everyone, I could hear people, "Yeah, yeah," saying, agreeing with him, saying, "Yes." And that's when it popped in, I was, like, oh, like, I knew it was Chase, but Chase Thorne just did this, it just clued in my mind. [23] Obviously this evidence is quite inconsistent with his evidence at trial, that he first identified or recognized Chase Thorne when a person came up to him by the fire before any fighting began. As indicated previously, in the meantime, Cheri Burton, mother of Dan Burton, had been contacted by Dan Burton by cell phone, and had come to pick up her son and friends. She described arriving and having seen persons holding onto a keg of beer and thereafter throwing it into a vehicle. [24] She then described her son showing up in a bloodied state. She testified that other kids she did not know said that the assailant was Chase Thorne. She then described taking the children back to her house, calling the police, and then taking the children to the hospital where they waited. Her son and Blake Cuthbertson were given medical attention, and shortly thereafter Constable Pichler of the RCMP was in attendance. [25] Constable Pichler at that time made no attempt to obtain a statement from anyone. Ultimately the children came to the RCMP detachment on December 31st, 2005 and provided statements to the constable. [26] Ms. Burton testified that when Brock Brause advised her that he knew the assailant, and that he lived in the Hart Highway area, Mrs. Burton contacted a friend in the Hart Highway area and asked her to see if there were any yearbook pictures that would have Chase Thorne in them. If so, she requested that her friend provide her with pictures. Pictures of the accused from a yearbook were provided to Ms. Burton by email. When she received the pictures she first showed them to her son Dan, and thereafter showed them to each of the children, immediately prior to taking them downtown on December 31st, to give their statements at the RCMP station. [27] Under cross-examination Mrs. Burton admitted that she wanted to find out who the person whose name she had heard was. She appeared to put some credence in the fact that Brock Brause had certainly said the person was Chase Thorne, because Brock had said that he knew him from school. She also admitted under cross-examination that she did not know the people who talked to her at the pit party, and who had indicated to her that the assailant was indeed the accused. [28] In addition to the four complainants' evidence of what they saw and heard that night, Audrey Andrews a friend of Dan Burton also testified. She attended the pit party at about 9:30 to 10:00 p.m. after having worked that evening. She denied having anything to drink. She testified that she saw a larger boy beating up on Dan Burton, and thereafter saw the attack on Blake Cuthbertson, and on Eric Vanloo. [29] She testified that she heard the name "Chase" at the time being spoken by male and female voices. She described the larger boy being six foot tall and weighing 200 pounds. She described the assailant as being strongly built. She testified to not noticing what the assailant was wearing, or what his colour of hair was. She acknowledged that she had never met the accused before, but stated she heard Chase Thorne was a Hart boy from a girl standing nearby. [30] She was asked in cross-examination if the name she had heard could have possibly been "Jase" rather than "Chase". She candidly answered it was possible, but she did not believe so. She agreed under cross-examination that she had been provided with pictures of the accused by Mrs. Burton, which Ms. Burton described as being pictures of Chase Thorne. She, like the other witnesses, confirmed that she had seen the accused on perhaps up to four or five occasions at previous court appearances. She specifically testified that Mrs. Burton had pointed the accused out at the courthouse to her and the other boys, and told them that he was Chase Thorne. [31] While Ms. Andrews was able to positively identify the accused in both the pictures at trial, she was referred in cross-examination to the evidence she had given at the preliminary inquiry regarding the same picture. This is on December 6, 2006, page 37, line 28: Q And do you know -- are you able to say who, if any person in this picture, is the person that you thought was there that night? A Not with lots of confidence, but -- I don't know, it seems like it would be this person here, but I'm unsure. [32] After statements were obtained by Constable Pichler on December 31st Constable Pichler arrested the accused on January 2nd, 2006. No line-up was conducted by the RCMP. The accused was released on January 3rd, 2006. As indicated the preliminary inquiry was held December 5th and 6th, 2006. [33] The defence gave an alibi notice to the Crown on or about March 23rd, 2007, or roughly some 21 days prior to the commencement of this trial. Constable Pichler, upon being given advice of the alibi notice, attempted to contact the two witness names provided by defence counsel, being Adam Jones Jr. and Doug Neil Jr. Constable Pichler testified that Adam Jones refused to make an appointment with him, while Doug Neil Jr. had set up an appointment for a Wednesday but did not show up for that appointment. It appears that in regards to the alibi notice and these two witnesses, all that Constable Pichler had done was to phone them and ask them to make an appointment to come into the police station. [34] Constable Pichler was cross-examined with respect to his investigation. He agreed that he had not asked about the opportunity the complainants or witnesses had to observe the assailant. He did however testify, that all of the witnesses he took statements from had said that they got the name of the assailant from Brock Brause, and that the other complainants understood that Brock Brause knew the accused from going to school with him. [35] At the trial of this matter Mr. Thorne testified on his own behalf. He testified that on the day in question, being December 16th, 2005, he had worked his regular day shift at Dunkley Lumber and had arrived at his home in the Hart Highlands at approximately 6:00 p.m. He described having had a late dinner, lasting between 8:00 p.m. and 9:00 p.m., and then after dinner prepared to get ready for an ice fishing trip that had been arranged previously for early Saturday morning with two friends of his, being Doug Neil Jr. and Adam Jones Jr. [36] He described preparing his fishing equipment, and according to him at approximately 11:00 p.m. drove over to Doug Neil's residence on Sadler Drive in the Ridgeview area of the Hart Highlands. After arriving he testified as to how they loaded up their snowmobile and fishing gear into Doug Neil's crew cab. He testified to being there for about an hour. He further testified that he did not drink alcohol that night, and that after the loading was done, he went home and went to bed. The next morning he went out fishing after being picked up at about 5 a.m. [37] He testified that he did not go to the pit party. Was nowhere near the pit party. Was in the Hart area the whole night. Thorne testified that he was able to recall the specific event, because it was the week before Christmas, and he was arrested on January 2nd, 2006, being one week after Christmas. He also testified to not knowing any of the witnesses. [38] On cross-examination he remained adamant that it was about 11:00 p.m. that he went to his friend's to get the truck loaded for the fishing trip the following morning. He also testified that he first spoke to Doug Neil Jr. about this matter on January 3rd, 2006, but he maintained that he did not know of the relevancy of events on the 16th of December, given that the allegation of the crimes as set out in the indictment is that they occurred on or about the 17th day of December 2005. [39] Doug Neil Jr. also gave evidence on behalf of the accused. He described the accused as being a good friend. He described the events of December 16th, 2005. He testified that he remembered it as it was the weekend before Christmas weekend. He confirmed that he, Adam Jones Jr., and the accused, planned a fishing trip for the 17th of December, with that planning having taken place earlier that week. [40] He testified that it was around 11:00 p.m. that the accused showed up at his house. He testified that the three of them, being himself, Chase Thorne, and Adam Jones Jr., used his truck to load up the snowmobile. He also testified that it usually takes a couple of hours to load the equipment on the crew cab. He stated that the following morning he had set his alarm for 4:30 a.m., and proceeded to pick up the accused at the accused's residence. [41] He also testified that on January 2nd, 2006, he had been contacted by Mr. Thorne's mother regarding the accused's arrest, and that the next day on January 3rd he came with the accused's father and mother and Mr. Lauder to the courthouse. At that time he found out about the allegations, and at that time believed that it was alleged to have occurred the day that he had gone fishing. [42] Under cross-examination he denied just guessing that the time was around 11:00 p.m., and denied that it could have been 10:00 p.m. instead of 11:00 p.m. He was also questioned by Crown counsel as to when he found out that the incident involved times later on December 16th, 2005. He testified that he was not aware of the importance of December 16th until just recently. [43] Under further cross-examination he agreed with Crown counsel that Constable Pichler telephoned him, and he had made arrangements with Constable Pichler to attend the RCMP station, but because of other commitments was unable to attend. [44] Donald Robert Thorne, father of the accused, also gave evidence for the accused. He testified that on the night of December 16th he had gone to bed between 10:30 p.m. and 10:45 p.m., and that his son was home at that time. When he got up on Saturday the 17th his son had already gone fishing. [45] In this trial the Crown, of course, in order to succeed, is required to establish beyond a reasonable doubt that the perpetrator in each of the six counts charged was the accused Chase Douglas Thorne. The identification evidence is pivotal to the case for the Crown. I am obligated to consider all the evidence before deciding whether the Crown has proven that the perpetrator, in fact, was the accused. [46] In this case, there is no evidence put before me to establish identity, other than the evidence of eye witnesses, each of whom have identified the accused as the perpetrator. The Crown argues that the identity of the accused as the perpetrator is established beyond a reasonable doubt by the evidence of the eye witnesses, and the accused and Mr. Neil ought not to be believed. [47] It is important to begin with the realization that none of the eye witnesses, other than Brock Brause purported to have known the accused previously. To some extent I am prepared to accept that Brock Brause's statement to them, that he had gone to school with Chase Thorne, would have cemented their belief that he indeed was the perpetrator. [48] There are, however, problems with Brock Brause's evidence. Firstly, he admitted that he did not go to school with the accused, but had perhaps only seen the accused on occasion at Kelly Road Secondary. Secondly, he tried to paint a picture for the court that he had had less beer than apparently he had consumed. After testifying as to having only had five to six beers, he was reminded under cross-examination that he had previously testified at the preliminary inquiry to having nine to 10 beers, and also having smoked marihuana at the party. Thirdly, while he had testified under oath that he first recognized the accused when he came up to him at the fire before fighting, it is clear from his evidence at the preliminary inquiry that it was not until after the fights when someone identified the perpetrator as Chase Thorne, that it first came to him just who the perpetrator was. The mentioning of the name appears to have convinced him that the perpetrator was, indeed, Chase Thorne. [49] Aside from Dan Burton, not one of the complainants, or Audrey Andrews, was able to give a description of the perpetrator other than that the perpetrator was a large man. In direct examination Dan Burton described the perpetrator as follows: Height, six foot one to six foot two; narrow eyes; rounded face; big shoulders; weighing between 200 and 250 pounds. Under cross-examination he also described the perpetrator as having red hair, and having a broad nose. [50] As indicated previously, the accused took the stand in his own defence. My observations of him in the witness stand indicate that he did not have red hair, he did not have a broad nose, and he does not have narrow eyes. I do not recall him being asked any questions relating to the colour of his hair in December 2005. [51] Dan Burton agreed that Brock Brause had given him Chase Thorne's name, and had said he had gone to school with him at Kelly Road School, and that he, being Dan Burton, believed what Brock Brause had told him. [52] I have already described Audrey Andrews' evidence. It seems that her ability to identify the accused in a picture has improved over time. [53] There is no doubt that the lighting was poor. The only light came from the fire pit. It would have been very dark on the trail to the parking area. [54] Eric Vanloo, like the other witnesses, had seen the accused on four or five other occasions in court, and had been shown the two pictures of Chase Thorne before giving his statement to the police. He appeared positive in his identification, but four months earlier at the preliminary inquiry the following exchange took place between himself and Mr. Sutton on behalf of the Crown in direct examination. This is the December 6th transcript at page 8, line 31: Q And this person that you call Chase, would you be able to identify him if you saw him today? A Yeah. Q Is he here in court today? A Yes. Q Can you point him out for us, please. The gentleman in the front row? A I would think so. Q Well, you don't sound positive. A Not 100 percent positive. Like, the night was hazy, I -- but yeah, I'm pretty sure. One must keep in mind that this was after seeing the accused at the courthouse; after being advised that Brock Brause knew him, and had gone to school with him; and finally, after having been shown two pictures of the accused, which were identified by Ms. Burton as being pictures of Chase Thorne. [55] There is no doubt with respect to all of the witnesses who were present at the party, that the certainty of the witnesses with respect to identification got better over time. I have also concluded that in their identification they rely on events that occurred after the events of December 16th and 17th, 2005. [56] It is important that no one other than Brock Brause had seen the accused earlier than on December 16th, 2005, as they identify him. It is also clear to me that there were poor opportunities to observe the assailant immediately before, during, or after, the fighting. From the evidence I have concluded that it was dark, the events happened quickly, and the witnesses were dazed and confused by the events that occurred over a 20 minute period. [57] The frailty and danger of eye witness identification has been commented on by many learned jurists, primarily with respect to instructions from judges to jurors, where identification is in issue. The same instructions, of course, are relevant to a judge sitting alone. [58] In R. v. Sophonow (2), 25 CCC (3d) page 415, Twaddle J.A. of the Manitoba Court of Appeal said this at page 438 with respect to the issue of identification: It is not in every case that visual identification is a crucial part of the prosecution's case. The accused may be known to identifying witnesses, scientific evidence of the accused's presence at the scene of the crime may exist, the accused may have made an unequivocal admission of guilt, or other circumstances taking the issue of identification beyond peradventure may be present. In these cases a perfunctory recognition of the accused as the culprit may well suffice without need for any special direction to a jury, but where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, there are guidelines, to which I shall refer shortly, which should be observed by trial judges in charging juries. Later on the same page His Lordship stated the guidelines as follows: (i) the judge should warn the jury of the special need for caution before convicting in reliance on the correctness of the identification; (ii) he should instruct them as to the reasons for the need for such a warning and make some reference to the possibility that a mistaken witness could be a convincing one and that a number of such witnesses could all be mistaken; (iii) he should point out that although identification by one witness can support that of another, even a number of honest witnesses can be mistaken; (iv) he should direct them to examine closely the circumstances in which the identification by each witness came to be made; (v) he should remind the jury of any specific weaknesses which had appeared in the identification evidence. [59] In this case there was no police line-up for identification purposes. While there was, what I would describe as equivalent to a one person line-up conducted by Ms. Burton when she showed the photos of the accused to each of the witnesses who testified in court immediately before she took them down to the police station to give their statements. This method is somewhat similar to the type of identification that was utilized in R. v. Todish, 18 CCC (3d) page 159. [60] In that case the police had telephoned the complainant manager of a store, which had been robbed. Some two hours after the robbery, the police telephoned the complainant and said they had a suspect in custody. When the witness arrived at the police station the police said they had the suspect upstairs in an office. The witness was asked to walk past the office and see if the person in custody was the person who had robbed her. She walked by the office, saw the suspect and two police officers there, and later identified the appellant in that case. [61] Mr. Justice Martin, speaking for the Ontario Court of Appeal said this at page 162 relative to the identification procedure that had been adopted by the police in that case: . . . the procedure adopted by the police with respect to the identification of the appellant by Mrs. Cranney was not in accordance with proper procedure. In addition to the danger inherent in identification evidence generally, the method used by the police to present the appellant to Mrs. Cranney made her identification of the appellant subject to an additional frailty. Evidence of identification may be strengthened where the identifying witness has picked out the person whom he claims to have seen on a previous occasion from a properly conducted line-up in which the suspect is placed with other persons of similar height, age, and general appearance. In this way, an additional assurance is obtained that the witness was forced to rely upon his own unaided recollection in picking out the person whom he claims to have seen on the previous occasion and was not unconsciously influenced by the fact that when he identified the suspect he knew that he was viewing a person who was already under suspicion by the police. Those conditions did not obtain in this case. Still within the quote in R. v. Smierciak (1946) 87 C.C.C. 175, at page 177; [1947] 2 D.L.R. 156; [1946] O.W.N. 871; Ontario Court of Appeal, Mr. Justice Laidlaw speaking for the court said, and then Mr. Justice Martin quotes this: ... His recognition ought to proceed without suggestion, assistance or bias created directly or indirectly. Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonably prejudice the accused, the value of the evidence may be partially or wholly destroyed. Anything which tends to convey to a witness that a person is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful. Submitting a prisoner alone for scrutiny after arrest is unfair and unjust. Likewise, permitting a witness to see a single photograph of a suspected person or of a prisoner, after arrest and before scrutiny, can have no other effect, in my opinion, than one of prejudice to such a person. [62] I have concluded that the suggestive nature of the actions of Mrs. Burton make it equivalent to a one person line-up. This action, coupled with the lack of distinguishing features of identification by all the eye witnesses, other than Dan Burton, makes their eye witness identification suspect. This together with the description provided by Mr. Burton causes me concern as to the reliability of the evidence upon which the Crown relies to establish identity beyond a reasonable doubt. [63] In short, this inappropriate pre-trial identification procedure renders the identification of the accused very dubious, and is accordingly of little weight. [64] In addition, I am also faced with the fact that Mr. Thorne has taken the stand in his own defence and denied being the perpetrator, and denied being present at the party at the times in question. He was subjected to lengthy cross-examination, and remained consistent in his evidence that he was not the perpetrator, and was not present at the party. I have determined that I have no reason to disbelieve his evidence. [65] In R. v. W.(D.), [1991] 1 S.C.R. 742, the Supreme Court of Canada has instructed trial judges, firstly, that if I believe the evidence of the accused or defence witness Mr. Neil I must find the accused not guilty. Secondly, if I do not believe the evidence of the accused and Mr. Neil, but their evidence leaves me with a reasonable doubt regarding identification, I must find the accused not guilty. Third, if after reviewing all the evidence, I do not know whom to believe, then I must find the accused not guilty. Finally, even if I am not left with reasonable doubt by the evidence of Mr. Thorne and Mr. Neil, I must still ask myself whether, on the whole of the evidence, I am satisfied beyond a reasonable doubt that Chase Thorne is guilty. [66] I am cognizant that the notice of alibi was not provided to the Crown until late March 2007, being some 14 to 15 months after the accused was arrested. There is in Canada, a developing rule of practice, that if an alibi is not disclosed in time to permit the Crown to test it, then the weight may be diminished. [67] In McWilliams' Canadian Criminal Evidence, Fourth Edition, at 30:20:50 the learned authors say this relative to the effect of failure to disclose an alibi [as read in]: The failure to disclose an alibi in good time affects its weight, and the trial judge may comment adversely on the failure. In R. v. Flynn, Lord Goddard L.C.J. said, "Alibis which are set up at the last minute and have never been indicated before are always open to the gravest suspicion." In R. v. Ford, Southern J.A. questioned the scope of the foregoing statement of Martin J.A. in R. v. Dunbar and Logan, that the court may make no reference to timeliness if the circumstances are such that the alibi was incapable of meaningful investigation or because there was inadequate time to investigate it. Then in the same quote: In R. v Letourneau, Cumming J.A. seems to have put the requirement of disclosure somewhat higher. After referring to R. v. Russell as to the rule requiring timely disclosure being one of expediency and a test which may well be applied by a jury weighing the evidence, he opined that this was another way of saying that a juror may find that an alibi is untrue because it was not disclosed when it is reasonable to assume an innocent person would have disclosed it. Then the authors with respect to that say this: With respect, whether a jury may think this, it is not the law that an accused must disclose the defence in advance. And it is contrary to the right of silence. It seems to me that the jury should be instructed that only an alibi which is raised too late to investigate may not be entitled to much weight. [68] In the case at bar the Crown was given notice of the alibi defence at least three weeks before the commencement of this trial. All the RCMP did was to telephone the two persons mentioned in the alibi notice and ask them to come to the station. One of them refused to cooperate, and the other, being Mr. Neil, did not come down for his appointment, but testified at trial. [69] I am of the view that this is not an alibi that could be said to have been raised too late for the Crown to investigate it. I agree with the view of the authors of McWilliams' Canadian Criminal Evidence that it is not the law that an accused must disclose the defence in advance, as such an interpretation would be contrary to the accused's right of silence. [70] In this case, I find the eye witness evidence to be suspect for the reasons I have set out, and I believe the evidence of Mr. Thorne and the evidence of Mr. Neil. I therefore conclude that the Crown has failed to prove beyond a reasonable doubt that Mr. Thorne was the perpetrator and assailant as charged in the six count indictment. [71] I therefore find you, Mr. Thorne, not guilty on all six counts. You are free to go, sir. Chamberlist J.