Case Summary
Between December 16, 1994 and January 23, 1995, a string of ten bank robberies took place in Hamilton, Ontario. The police dubbed the thief the “plastic bag bandit” because he always gave a plastic bag to the bank teller and ordered them to fill it with money.1 Over the course of the robberies, several witnesses provided a description of the perpetrator: a short, clean-shaven, thin man in his early twenties, with dark hair, eyes, and skin. Descriptions of the suspect included differing speculations as to his race.2
On January 12, 1995, police received a tip via Crime Stoppers that implicated Jason Hill. Detective Matthews of the Hamilton Regional Police Service thought that he recognized Hill, whom he had previously arrested in connection with another offence, from a surveillance photo of the “plastic bag bandit” taken during one of the robberies.3 As a 25-year-old Indigenous man with dark hair, dark eyes, and a non-white complexion, Hill in some ways resembled the eyewitness descriptions. This said, he was also 5’11”, with a heavier build, goatee, and two missing front teeth – none of which matched the descriptions.4
Despite these discrepancies, Hill became the focus of the police investigation, led by Detective Loft. Officer McLaughlin, one of Loft’s team members, released Hill’s photo to the media on January 16, 1995, identifying him as a suspect in the robberies.5 Investigators also arranged a photo line-up in which Hill was the only Indigenous person, presented along with “11 similar-looking Caucasian foils” (from the point of view of police).6 Some of the witnesses who were shown this line-up identified Hill as the culprit.7
Police searched Hill’s home but did not find any evidence linking him to the offences.8 In addition, a further Crime Stoppers tip received on January 25, 1995 identified the perpetrators as two Hispanic men named “Frank” and “Pedro.”9 Nonetheless, Loft remained convinced of Hill’s guilt. Police arrested him on January 27, 1995 and charged him with all ten robberies.10
Two further “plastic bag” robberies took place on February 7 and 10, 1995, when Hill was in pre-trial custody. The perpetrator had employed the same modus operandi, but for the troubling addition that he now carried a gun.11 Police soon received another Crime Stoppers tip, which stated that “Frank” looked similar to Hill, had continued to rob banks, and was laughing because Hill had been arrested instead of him.12 Frank Sotomayer – a man who resembled Hill, but was a closer match to the surveillance photo – now became a suspect.13
All but one of Hill’s ten charges were gradually dropped as a result.14 Two of the charges were dropped when Detective Milin, who led the investigation into the February 7 and 10 robberies, persuaded Loft that all four of these were Sotomayer’s work.15 The Crown withdrew two more charges at Hill’s preliminary inquiry in response to eyewitnesses testimony that Hill was not the perpetrator. Five of the remaining charges were withdrawn before Hill’s trial.16
Regarding the one remaining charge, police concluded that Hill was a “copycat bandit” who had committed this offence in the same style as that of the “plastic bag bandit.”17 This charge pertained to the January 23, 1995 robbery of an Industrial Credit Union. The Crown proceeded to trial primarily based on the identification evidence of two bank tellers, Pamela Lepré and Lorene Caldwell.18
When they gave their police statements, Lepré and Caldwell were not separately interviewed (as is the general practice). Instead one officer, Cst. McLaughlin, interviewed both of the witnesses together.19 Lepré and Caldwell were presented with an enlarged newspaper photo of “the suspect” – that is, Hill. 20 They were not shown any line-ups that contained photos of both Hill and Sotomayer. Police did show Sotomayer’s photo to Lepré, but not until the night before she testified at Hill’s trial, at which time she said that Sotomayer was not the robber.21
Hill’s four-day trial began on March 4, 1996.22 The Crown called Lepré and Caldwell, who identified Hill as the perpetrator. A police officer also testified that he had once seen Hill – whom he recognized from his photos – move towards and then away from the Credit Union’s door, shortly before it was robbed.23 Hill did not testify but called alibi evidence, which Loft had failed to verify prior to the trial.24 His counsel also pointed out that while the witnesses had described the robber as clean-shaven, Hill had a “goatee of several weeks’ growth” at the relevant time.25
Despite the frailties in the Crown’s case, the jury convicted Hill of the Industrial Credit Union robbery on March 9, 1996. He was sentenced to three years in prison.26
Hill successfully appealed his conviction. Observing that there was “no police line-up for any of the witnesses, and there should have been,” the Court of Appeal quashed his conviction on August 6, 1997 and ordered a new trial.27
At Hill’s second trial, surveillance footage of the robbery was enhanced and clearly showed that the perpetrator was clean-shaven.28 The defence had asked Loft, before Hill’s first trial, if this enhancement could be performed; however, Loft had not followed up, instead telling prosecutors that it “could not be done in a way that would be useful for the defence.”29 Moreover, when Lepré and Caldwell were shown Sotomayer’s photo, they recanted their identification of Hill as the robber.30 Finally, the Crown called Sotomayer himself, who “implied” in his testimony that he had committed the credit union robbery.31
On December 20, 1999, the trial judge acquitted Hill.32 He had spent 20 months in prison.33
Hill subsequently sued the police for negligent investigation and malicious prosecution.34 His claims were dismissed on August 27, 2003.35 The trial judge found that the line-up where Hill was the only Indigenous person was not unfair to him because: “look[ing] at the images selected … though Caucasian, [the others] are very similar to the picture of Mr. Hill … I do not think that the Caucasian and native Canadian [ratio] in fact had any sway in the arrangement chosen, or in the results in regard to Mr. Hill being picked out.”36 The trial judge concluded that the witnesses chose Hill’s photo simply because there “was a real similarity between Mr. Hill and Mr. Sotomayer.”37
In this decision, the trial judge referred to the evidence of Hill’s expert witness that police had resisted best line-up practices, such as sequential (rather than simultaneous) presentation of the photos, by an officer who had no knowledge of the case (blind-testing).38 Still, the trial judge regarded such conduct as not unacceptable: “police work is challenging and difficult[,] and courts must be careful in not relying on facile hindsight in considering” their quality of work.39
Hill appealed this outcome to the Ontario Court of Appeal, where a three-to-two majority of the panel upheld the trial judge’s decision.40 Justice Feldman and Justice LaForme, in dissent, found that the police had been “negligent in their investigation of the robberies,” which “caused or contributed to the [witnesses’] misidentification of Mr. Hill and therefore to his wrongful prosecution and the miscarriage of justice that resulted.”41 They found that Loft’s “tunnel vision” pertaining to Hill had occasioned his investigative negligence.42
The dissenting judges held that the bank tellers’ identification evidence “was tainted from the outset” because they were interviewed together, and that the police had been negligent in failing to show them a line-up with both Hill and Sotomayer’s photos.43 Moreover, the apparent degree of resemblance between Hill and the 11 white men did not, in their view, dispel the inherent unfairness of the line-up: “structural bias [occurs] in a photo line-up when one person … is visually distinct from the others in some way. Its effect is to cause more incorrect identifications … because the person who stands out is more likely to be picked” – to the extent that an outlier photo is about equally likely to be chosen whether or not that person is innocent.44 In addition, Hill’s photo stood out even more because police had sent this exact picture to the media, to be published as that of the robbery suspect.45
Hill appealed this outcome to the Supreme Court of Canada. A majority of the Supreme Court held on October 4, 2007 that, by the standards of the time, the police had not been negligent in their investigation.46 The majority described the photo line-up composition as “not ideal”.47 However, it accepted the trial judge’s reasoning that “the lineup was not in fact structurally biased,” because “at least some” of the eleven white men chosen “appeared to have similar skin tones and similar facial features to Hill.”48