N.S. judge lectures cops on suspect identification: ‘The reliability of the evidence is flawed at its core’

A judge delivered a lecture to police on properly identifying suspects after acquitting a man — who was homeless at the time — of torching a Dartmouth man’s car and assaulting its owner in the fall of 2021.

Dartmouth provincial court Judge Bronwyn Duffy absolved Brody Fox of five charges, including arson and assault with a weapon.

“In this court’s view, the investigative process here was deficient. Rigorous pre-trial identification procedures are particularly important for pure identification evidence, particularly when there is little corroborative evidence, to counterbalance the inherent reliability limitations in eyewitness identification,” Duffy said in a written decision released Wednesday.

“The reasons for properly executed photo lineups are essential to ensure trial fairness, to maintain confidence in eyewitness identifications, which operates to preserve the integrity and reliability of this very important evidentiary tool. Because of the inadequate pre-trial process, I am not satisfied that the identification of Mr. Fox can be relied upon, and therefore, as this element has not been proven on the criminal standard, acquittals are recorded on all counts.”

Car horn beeps

The court heard that Troy Rhude was upstairs at his Thompson Street home watching television at about 11 p.m. when he heard his car horn beep.

“He looked out his window and there was a man in his car; he was leaning over the driver’s side of Mr. Rhude’s white 2005 Ford Focus wagon,” said the judge.

“Mr. Rhude hollered out the window. The man in his car turned around and gave him the middle finger, and went down the street toward the end of Thompson, down the hill toward Pleasant Street. Mr. Rhude went down to follow.”

He spotted a flicker in his car and thought the dome light was on, Duffy said, noting Rhude approached the man and asked what he’d been doing in the Focus.

Teeth knocked out

The prowler started walking toward Five Corners and asking Rhude to leave. After exchanging some words, the man hit Rhude in the mouth, knocking out two teeth and splitting his lip.

After getting punched again in the jaw, Rhude said he grabbed the man and they wrestled.

“Mr. Rhude described the man as having a blue coat on, a wool hat, a dark pair of pants and a dark backpack. They hit each other and then, Mr. Rhude says, the man pulled something out of his pocket, and ‘I backed off then.’ It was a shiny object; Mr. Rhude said he thought it was a knife, and testified: ‘I backed off and left; he went the other way.’ The subject male lost his hat during the scuffle. His hair fell down, and Troy Rhude describes it as dirty blond hair, longer than his shoulders.”

‘Windshield was melted’

Rhude took the hat home, finding smoke and flames coming out of his car.

“The blaze was quite big, half the dash was melted down, the floor was on fire, the door was on fire, and the windshield was melted,” Duffy said.

“Mr. Rhude opened the door, and threw water from his dog’s dish on the blaze. He called 911, and ran out with more water to put the fire out.”

Rhude burned his hand and wrist fighting the fire.

‘It was him or he had a twin’

When asked if he knew the man, Rhude testified that his daughter had shown him a Facebook photo of someone she’d seen a few weeks earlier coming out of a neighbour’s driveway late at night.

“His reaction was ‘It was him or he had a twin,’” said the judge.

Rhude conceded he’d never seen the man before that night.

“He agreed that his daughter was the first person to mention the name Brody Fox,” Duffy said.

‘Pretty sure’

The court heard that police didn’t conduct a photo lineup.

“There was no request of Mr. Rhude by police to compare similar-looking persons to identify the subject. Upon it being suggested to Mr. Rhude that he was only ‘pretty sure’ it was Mr. Fox, he answered in the affirmative — ‘yes.’”

Halifax Regional Police Sgt. Joanne Sweeney told the court the white Ford Focus was “still smouldering” when she arrived on the scene.

Sweeney, who got Rhude to hospital, testified the only description she had of the prowler was that he was white “with long curly blonde hair, a blue, puffy jacket and a backpack.”

Fox, 25, testified that he thinks he was homeless at the time, and that he doesn’t know where he was on Sept. 27, 2021, the night the car caught fire.

He also told the court he didn’t start the blaze and that he didn’t get into a fight that night. Fox, who has 20 convictions under his belt, said he didn’t learn about the fire until six months later, when police arrested him.

‘Tunnel vision’

His lawyer, Bruce Muir, argued Rhude and Fox are strangers to each other, and that his client was identified after a fight at night.

“The defence emphasizes what is an insidious feature of false identification cases, that the witness may appear to be — and often indeed is — telling the truth as they believe it to be,” said the judge.

Muir pointed out “the flaws in the investigative process, the failure to engage the complainant in a photo lineup and instead to rely on the identification by the photos provided by the complainant’s daughter, which he characterizes as a ‘tunnel vision enhancement process,’” said the judge.

“Notably, he argues that the evidence of the complainant himself is that he can only be ‘pretty sure,’ which does not rise to the criminal standard of proof.”

‘Close proximity’

Crown attorney Hartwell Millett argued “Rhude had a significant period of time to observe the subject, during the period where he followed him and then particularly when they were engaged in a scuffle, which involved the parties being in close proximity.”

Millett also pointed to surveillance video from Rhude’s neighbour that corroborates the victim’s evidence somewhat, even though Fox couldn’t be identified in the footage.

Rhude identified Fox as the culprit a few days after his daughter showed him the photos, said the judge.

‘Inherently unreliable’

“The courts have long recognized that witnesses should be asked to identify an accused at the earliest opportunity and under the fairest of circumstances,” Duffy said.

The judge stressed the importance of rigorous pre-trial identification in cases like this.

“The danger associated with eyewitness identification is that it is inherently unreliable, though deceptively credible, largely because it is honest and sincere. The witness is trying to tell the truth, as they believe it to be; their veracity is not at issue. The witness can be credible, but the reliability of the evidence is flawed at its core.”