Witness Testimony Was Insufficient in Proving Theft Charges

Under Canada’s Criminal Code, a person is considered to have committed a theft if they move something with the intent to steal it. The penalties for theft vary according to the value of the item that was stolen and may include a fine, imprisonment or both, although the prosecution has some leeway in terms of the sentencing that they may ask the judge to apply in a particular case.

Theft under $5000 is classified as a hybrid offence as the Crown may choose to prosecute the case summarily or as an indictable offence. There is a maximum sentence of two years in the latter case, but if treated as a summary conviction, then the penalty is a maximum of 6 months in prison, up to a $2000 fine, or both. If the total value of goods stolen is greater than $5000, the case is tried as an indictable offence with a maximum sentence of 10 years in prison.

As with any criminal charges, the Crown must prove that the accused person is guilty beyond all reasonable doubt. Witnesses, video evidence and physical evidence may be produced by the Crown in proving a case of theft but in many cases, witness testimony is key and sometimes, it is the only evidence available. In 2014, three people allegedly assailed a Toronto man as he was walking home from work, held him in a headlock and robbed him. Only one of the alleged offenders, a man who was purportedly the ‘lookout’ for the group, was identified by the victim. The 2015 trial, R. v. Weydow, was to decide whether the third person (the lookout) was guilty of assault and theft charges, and the case hinged on the witness testimony of the man who was robbed.

The crime was not reported to police until a day after it occurred because the victim had an exam the next morning which he wanted to complete before dealing with the issue of the theft. The victim testified that he heard the other thieves refer to the lookout man as ‘Kadir’ and stated that he recognized this man from having occasionally seen him around the neighbourhood. The complainant also believed that the offender went to the same high school as he did. Before speaking with police, the victim asked a friend if he knew of a person named ‘Kadir’ and was told that Kadir was known to rob people. The victim then checked his high school yearbook photos but was unable to find a student named Kadir; however, he identified another student whom he believed to be the lookout for the men who robbed him.

Police subsequently arrested the man who was identified by the complainant. One inconsistency acknowledged during the trial is that the alleged thief was described by the victim as having long hair, but his hair was actually medium length. Also, the victim’s description of the assailant’s face was only that it is round and he had “seen it from somewhere”. Police did not conduct a photo lineup, likely because the complainant had already looked through his yearbook to find the identity of the alleged offender and this would have tainted a police lineup.

The trial judge concluded that the Crown failed to prove the identity of the lookout person beyond a reasonable doubt, and accordingly, the defendant was acquitted on the charges of assault and theft under $5000. The judge noted that even when a witness claims that they can identify the alleged offender with a certainty, there are inherent dangers in witness identification evidence. This is particularly true under poor lighting conditions such as during the evening, and during a traumatic event. In this case, the victim’s perusal of his yearbook amounted to improper and insufficient out-of-court identification procedures from a legal perspective. Further, the decision to use this method of identifying the alleged thief was based on hearsay and a vague feeling of seeing the offender around the neighbourhood months in the past.

Department of Justice studies on eyewitness identification and testimony acknowledge that when a confident prosecution witness testifies that they saw the alleged offender commit the crime, it can carry a great deal of weight with a jury. However, there have been many cases in the past where mistaken identifications have resulted in wrongful convictions, and judges are aware that even well-meaning and sincere witnesses can be wrong.

The positive identification of the accused is a fundamental part of the prosecution’s case. Accordingly, the Ministry of the Attorney General has outlined a number of proper practices that arresting officers and the Crown should follow to ensure that they gather reliable witness testimony. Some of the proper procedures include: refraining from using suggestive questioning; using thorough and exhaustive questioning of all witnesses; only discussing evidence separately with different witnesses; recording all witness testimony in writing, and never telling a witness that they are right or wrong. There are also proper procedures for conducting a photo lineup and a live lineup.

If you have been charged with theft or any criminal offence, contact Kruse Law at your earliest opportunity. It is our experience that the confidence of a witness’s testimony does not necessarily reflect the accuracy of their statements, and we ensure that the jury is made aware that there have been many historical cases involving a miscarriage of justice due to mistakes by honest witnesses and well-intentioned police officers. One of the many aspects we employ in building a strong defence is to thoroughly examine all witness statements as well as police methodology in gathering witness testimony, to identify inconsistencies in testimony and improper procedures in collecting evidence for your case. If any details can be brought to light that challenge the credibility of witness testimony, then we can raise reasonable doubt which is grounds for having your case dismissed.