The Ontario Court of Appeal acquitted Dino Phillips (“Phillips”) of 19 convictions, which included possession of a firearm, uttering death threats, kidnapping, unlawful confinement, robbery, breaking and entering, mischief, and pointing a firearm.
Phillips’ case took almost six years to get through the courts. It was one of the longest ever at the London courthouse.
He was sentenced in October, 2015 to eight years in prison after a jury found him guilty of 19 charges stemming from a home invasion and armed robbery in 2009. The question at the trial was whether Phillips was one of the three men involved in the crimes.
Phillips was identified from a photo lineup by one of the participants of the crimes. However, there was no physical or forensic evidence linking Phillips to the crimes.
The Ontario Court of Appeal held that the trial judge erred in her instructions on how the jury should treat the identification evidence, particularly the in-dock identification and the photo lineup evidence.
As the Court of Appeal found that the verdict was unreasonable in that no reasonable jury could convict Phillips on the evidence in the case, a new trial was not ordered and Phillips was acquitted of all charges.
On May 8, 2009, Shawn George (“George”), Floyd Deleary (“Deleary”), and an unidentified man set out to rob George’s drug dealer at his apartment in London, Ontario.
At the time of the intrusion, the dealer’s girlfriend, her infant daughter, and sister were also at the dealer’s apartment. Deleary held a gun to the girlfriend’s head and the other two men tied up the dealer and girlfriend. The girlfriend’s sister was forced to look for money. The intruders were angered by the amount of money that was in the apartment and threatened to kill all of its occupants.
George and Deleary did not cover their faces and referred to each other by their first names. The third intruder was described as a “black man” who had his face covered and threatened to kill anyone who looked at him.
Unsatisfied with the amount of money in the dealer’s home, the “black man” and Deleary stole the girlfriend’s car and forced their way into the home of the drug dealer’s parents. They proceeded to tie up the occupants of the home and rob them at gunpoint. George was driving another vehicle with the intention of meeting up with the robbers, but drove off when he thought he saw an undercover police car.
After they heard sirens, the “black man” jumped out of the bedroom window and ran away.
Deleary was later arrested in the stolen car, while George was not arrested until February 23, 2010.
Phillips was arrested shortly thereafter following his identification by George in a photo lineup.
PHOTO LINEUP IDENTIFICATION
Following his arrest, George told police that he only knew the “black man” as “Virus”, but would be able to identify him.
Detective Constable Ellyatt prepared a photo lineup of twelve different men. Phillips was the fifth in the lineup. George identified Phillips as the man he knew as Virus.
The police did not perform a photo lineup for any of the other witnesses.
The Court of Appeal held that the photo lineup was so problematic as to render George’s identification of Phillips as worthless. Further, the trial judge failed to properly instruct the jury regarding the nature of identification problems, thus causing the trial to be unfair.
During the preliminary inquiry (held to determine if there is enough evidence for an individual to be tried on their charges), witnesses were asked to identify who the “black man” was. Phillips was the only black man in the courtroom at the time of the preliminary inquiry.
Several witnesses pointed to Phillips in the courtroom. However, the drug dealer and the girlfriend’s sister could not identify the “black man”.
One witness testified that Phillips looked similar to the “black man”.
The trial judge instructed the jury to be cautious when relying on eyewitness testimony and alerted them to the possibility of mistakes.
The Court of Appeal concluded that the trial judge’s failure to instruct the jury concerning the dangers of in-dock identification was an error that undermined the fairness of the trial. The Court described the circumstances involving the in-dock identification as “egregious”. The victims had not been shown a photo lineup as it “never occurred” to the police to administer one and they only had one black man to choose from in the courtroom (the black man who had been charged with the crimes). The Court described this as highly prejudicial.
The question before the Court of Appeal was “whether, considering the evidence as a whole, the verdict was one that a properly instructed jury, acting judicially, could reasonably have rendered”.
Given that George’s pre-trial identification of Phillips was severely flawed, there was no independent confirmatory evidence supporting his identification, and there was no forensic evidence tying Phillips to the crimes, the Court of Appeal was “satisfied that no reasonable jury could have convicted the appellant [Phillips] on the evidence in this case, even assuming the jury had been charged properly”.
Therefore, the Court of Appeal allowed the appeal, set aside the convictions, and entered acquittals on all charges.
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