ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
ARSHDEEP SINGH BAINS
Before Justice J. Trehearne
Heard on September 11 and 12, 2025 and
Reasons for Judgment released on November 10, 2025
S. Aki..................................................................................................... counsel for the Crown
X. Xu....................................................... counsel for the accused Arshdeep Singh Bains
TREHEARNE J.:
I. Introduction
1Mr. Bains stood trial before me on nine counts of theft under $5,000 contrary to s.334(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, all counts involving alleged thefts of alcohol from various LCBO locations between February 8, 2024 and November 24, 2024. In addition, Mr. Bains is charged with failing to comply with a Probation Order contrary to s.733.1(1) of the Criminal Code, by breaching a condition not to attend any LCBO location on the date of the last alleged theft on November 24, 2024. The Crown elected to proceed summarily on all charges.1
2The parties very helpfully filed an Agreed Statement of Fact in this matter, which streamlined the issues on the theft counts to a single one – that of identity. There is no dispute that a person or different people stole the alcohol as alleged from the various LCBO locations on the various dates set out in the Information. Nor is there any dispute as to the value of the goods stolen. The only question on the theft counts is whether the Crown proved Mr. Bains’s identity as the thief in relation to each count beyond a reasonable doubt.
3To prove Mr. Bains’s identity as the thief in each case, the Crown filed video clips taken from surveillance footage from the various LCBO locations, and asked me to compare Mr. Bains’s appearance in Court with the appearance of the individual or individuals in the video clips, pursuant to R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197. In the Crown’s submission, this exercise reveals that Mr. Bains is the thief, beyond a reasonable doubt. In the defence’s submission, this exercise reveals that the individual in the video clips is different than Mr. Bains, or at least that I should have a reasonable doubt about whether the individual in the video clips is Mr. Bains. The defence conceded the authenticity and continuity of the LCBO video clips.
4The Crown submits in addition, or in the alternative, that I should compare the appearance of the person or people in the LCBO video clips to the body worn camera of the officer who arrested Mr. Bains on these charges, still photos from the booking hall video from 23 Division recorded at the time of Mr. Bains’s arrest on the charges before the Court, and a mugshot or arrest photo of someone the Crown claims is Mr. Bains. The Crown says that this evidence, too, shows that Mr. Bains is the thief on the dates in question. The defence did not contest the admissibility of the officer’s body worn camera, nor of the booking hall video still photos. The defence did contest the admissibility of the mugshot or arrest photo. The defence further submitted that a comparison of the individual or individuals who committed the thefts in the LCBO video clips with the body worn camera, booking video still photos, and mugshot or arrest photo shows Mr. Bains was not the thief, or at least that I should have a reasonable doubt.
5As for the alleged breach of probation, the defence again challenged whether Mr. Bains’s identity had been established as the person who breached the Probation Order beyond a reasonable doubt. As I understand the defence position, the defence argued not only that (as with the theft counts) the Crown had failed to prove that Mr. Bains was the person who entered the LCBO on November 24, 2024, but also that the Crown had failed to prove that the accused before me was the same person as the person bound by the Probation Order.
II. The Foundational Legal Principles Applicable to All Criminal Cases
6Every person charged with an offence is presumed to be innocent, unless and until Crown counsel proves every essential element of the charge against that person beyond a reasonable doubt: D. Watt, K.C., and J. Makepeace, Watt’s Manual of Criminal Jury Instructions, 2024, Thomson Reuters Canada Limited, Final 11 – Presumption of Innocence; R. v. Ménard, 1998 CanLII 790 (SCC), [1998] 2 S.C.R. 109 at ¶23.
7The obligation to prove an accused person’s guilt rests with Crown counsel. From start to finish, that obligation never shifts. A person charged with a criminal offence does not have to present evidence or prove anything: D. Watt, K.C., and J. Makepeace, Watt’s Manual of Criminal Jury Instructions, supra, Final 12 – Burden of Proof; R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 at ¶27.
8The phrase “beyond a reasonable doubt” is a very important part of our criminal justice system. It is one of the principle safeguards which seeks to ensure that no innocent person is convicted: R. v. Lifchus, supra, at ¶13. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in the trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence: D. Watt, K.C., and J. Makepeace, Watt’s Manual of Criminal Jury Instructions, supra, Final 13 – Reasonable Doubt; R. v. Lifchus, supra, at ¶¶30-31.
9Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. However, it is nearly impossible to prove anything to an absolute certainty. Crown counsel is not required to do so. If, at the end of the case, after considering all the evidence, I am sure that the accused person committed the offence, I must find that person guilty of it, since I would have been satisfied of the person’s guilt of that offence beyond a reasonable doubt. If, at the end of the case, based on all the evidence or the lack of evidence, I am not sure that an accused person committed an offence, I must find the accused person not guilty: D. Watt, K.C., and J. Makepeace, Watt’s Manual of Criminal Jury Instructions, supra, Final 13 – Reasonable Doubt; R. v. Lifchus, supra, at ¶14, ¶¶31-39.
III. The Thefts
A. The evidence
10As noted above, the Crown filed video clips from the surveillance videos from the LCBOs where the thefts occurred on the various dates in question. These were marked as numbered Exhibits without objection by the defence.
11In addition, the Crown called Officer Joshua Regisford as a witness. Officer Regisford testified that on March 10, 2025, he arrested Mr. Bains on the charges before the Court. Officer Regisford identified Mr. Bains in Court as the person whom he arrested. He identified the video from his body worn camera on the date in question, which video was marked as Exhibit 17 on the proceedings. Officer Regisford also identified himself and Mr. Bains in three still photos taken from the booking hall video from 23 Division at the time of Mr. Bains’s arrest. These photos were marked as Exhibits 18A-C on the proceedings. Officer Regisford agreed that he had never met Mr. Bains before arresting him on March 10, 2025. However, the defence did not dispute that Mr. Bains is the person in Officer Regisford’s body worn camera video. Moreover, while the defence did not explicitly concede that Mr. Bains is the person in the still shots from the 23 Division booking hall video, neither did the defence suggest that Mr. Bains is not the person in those still shots, nor cross-examine Officer Regisford to establish that Mr. Bains is not that person.
12Finally, the Crown sought to enter into evidence an arrest photo or mugshot, which the Crown introduced through DC Borch. DC Borch identified the photo as an arrest photo of Mr. Bains taken April 4, 2024, which he retrieved from a Toronto Police Service database. DC Borch testified that he compared this arrest photo to still images from the LCBO videos when identifying Mr. Bains as the person involved in those thefts. DC Borch did not take the arrest photo, nor was he present when it was taken. He agreed that his only interaction with Mr. Bains was a fairly brief glance at Mr. Bains when Mr. Bains was in the cells at 23 Division following his arrest on the charges before the Court.
B. The parties’ positions
13The Crown’s position was that I should compare Mr. Bains’s appearance in Court to the individual or individuals in the LCBO video clips, and that this exercise would reveal that Mr. Bains was the thief beyond a reasonable doubt. The Crown further submitted that I should also compare the individual or individuals in the LCBO video clips with the body worn camera video of Mr. Bains at the time of his arrest, the still photos of Mr. Bains at the time of his arrest taken from the 23 Division booking hall video, and the arrest photo or mugshot of Mr. Bains, and that this exercise would also reveal that Mr. Bains was the thief beyond a reasonable doubt.
14On the question of the admissibility of the mugshot or arrest photo, the Crown submitted that the arrest photo was authenticated pursuant to s.31.1 of the Canada Evidence Act, R.S.C. 1985, c. C-5. The Crown submitted that DC Borch identified the photo as one from the Toronto Police Service database, and that I could compare the appearance of the individual in the arrest photo to the appearance of Mr. Bains in Court, to the appearance of Mr. Bains in Officer Regisford’s body worn camera video, and to the stills taken from the booking hall at 23 Division to authenticate the mugshot or arrest photo. The Crown relied on R. v. George, 2023 ONCJ 303. In that case, the Crown sought to have admitted a photo which provided evidence of the identity of the shooter. The Crown asserted confidential informer privilege over the origin of the photo. The Crown also introduced video footage of the same events depicted in the photo, which video was unchallenged by the defence (see ¶14). Justice Fraser concluded at ¶22 of George that he could compare the background and clothing depicted in the photo with the video of the same scene to determine whether the photo was authentic.
15The defence submitted that a comparison of Mr. Bains’s appearance in Court to the LCBO video clips should cause me to have a reasonable doubt on the question of identity. As for the question of comparing the appearance of the individual or individuals in the LCBO video clips with Mr. Bains’s appearance in the body worn camera video and the stills from the 23 Division booking hall video, the defence position was that this was not a permissible legal exercise. According to the defence, that sort of comparison between photos or videos is not what the Court envisaged in Nikolovski. Counsel pointed out that there are a number of factors which affect how a person appears in a photo or video, such as the lens used, the lighting, and the relationship between the person being captured and the person with the camera. Thus, such a comparison might not result in reliable identification evidence, as it is not as high quality as having the very person in Court (as in Nikolovski) to compare to the photo or video of the offence. Moreover, even if I were to engage in the exercise of comparing the individual or individuals in the LCBO video clips to Mr. Bains in the body worn camera and the still photos from the booking hall video, I should nonetheless have a reasonable doubt that Mr. Bains is the person in the LCBO video clips.
16As for the mugshot, the defence position is that this photo could not be authenticated through DC Borch, who had no personal involvement in taking the photo, nor any personal knowledge of whether the date indicated on the photo was in fact the date it was taken. The defence further submitted that I could not authenticate the photo myself in the manner Justice Fraser did in George, because there was no evidence as to how Mr. Bains looked on the date the mugshot or arrest photo was taken. In other words, in George, Justice Fraser was asked to compare a known to an unknown, whereas here I am being asked to conclude that two unknowns corroborate each other. In the alternative, if I were to admit the mugshot or arrest photo, its comparison to the individual or individuals in the LCBO video clips should cause me to have a reasonable doubt on the issue of identity.
17Finally, the defence provided two additional cautions. First, the Crown relied heavily on the full lips and strong brow of the individual in the LCBO video clips, characteristics which Mr. Bains also has. However, the defence submitted that these features are common to people of South Asian descent, and therefore do not help to identify Mr. Bains as the thief in the LCBO video clips, or at least not to a sufficient extent. Second, the defence pointed out that zooming in on the LCBO video clips causes pixelation, which makes it hard to discern whether one is observing features of the individual in the video clips, or artifacts of the pixelation.
C. The applicable legal principles
i. The legal principles applicable to the comparison of Mr. Bains’s appearance in Court with the appearance of the person or people in the LCBO video clips
18In R. v. Nikolovski, supra, at ¶23, the Supreme Court of Canada made clear that a trier of fact can use video evidence as the sole basis for the identification of the accused before them as the perpetrator of the crime. In fact, as the Nikolovski Court recognized at ¶21, in some ways, video evidence such as that introduced in this case can provide better evidence than that of an eye witness. As the Nikolovski Court explained, the video tape acts as a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. In addition, as the Court noted in R. v. Sheardown, 2010 ONSC 4235 at ¶36, unlike a live witness feeling the pressure of an alleged crime as it occurs in real time, a trier of fact generally has the opportunity to observe the accused in a well-lit area, free of distraction or undue stress, and can observe the accused and the comparator video for as long as the trier deems necessary.
19However, as the Supreme Court cautioned at ¶¶30-32 of Nikolovski, although a trier of fact is entitled to reach a conclusion on identification based solely on videotape evidence, they must exercise care in doing so. A trier of fact should consider the clarity and quality of the videotape, as well as how long the alleged accused person appears on the video, in determining whether the accused’s identity as the perpetrator has been proven beyond a reasonable doubt. In addition, where the video evidence is the only evidence on the question of identity, the trier of fact must keep that in mind in applying the reasonable doubt standard. There may be changes or differences in the appearance of the persons involved. See also R. v. Anderson, 2025 ONCA 408 at ¶148, and R. v. C.B., 2019 ONCA 380 at ¶102.
20I would add to these legal propositions that the trier of fact must also consider the extent of their opportunity to observe the accused person in the courtroom in determining whether the Crown has proven identity beyond a reasonable doubt. It is only logical that a trier of fact’s ability to compare the appearance of the perpetrator on video with the appearance of the accused in Court is affected by the trier of fact’s ability to observe both. This proposition was also recognized by my colleague Justice Dellandrea in R. v. A.M., 2019 ONCJ 835 at ¶165, where the Court held that a trier of fact’s opportunity to compare the accused to the video evidence will depend on such things as the length of the proceedings, where the accused person is positioned in Court, whether the accused person gives evidence from the witness stand, and the Court’s ability to make simultaneous comparison between the images and the person.
ii. The legal principles applicable to the comparison of the person or people in the LCBO video clips with Mr. Bains’s appearance in the body worn camera video and the stills from the booking hall video
21With respect to the question of whether I can compare the person or people in the LCBO video clips with Mr. Bains’s appearance in the body worn camera video and the stills from the booking hall video, I note that numerous Courts have held that such an exercise is consistent with, and does not offend, the principles from Nikolovski. For example, in R. v. Keating, 2018 ONCJ 1005 at ¶70, affirmed R. v. Keating, 2020 ONCA 242 at ¶¶23-26, the trial Judge compared the accused’s mugshot with Facebook photos identified by the complainant as the person who trafficked her to conclude that the accused was the person who trafficked the complainant. See also R. v. Hudson, 2020 ONCA 507 at ¶¶46-47.
22In engaging in the exercise of comparing the person or people in the LCBO video clips with Mr. Bains’s appearance in the body worn camera video and the stills from the booking hall video, I will bear in mind Mr. Xu’s caution that a number of factors can affect how a person appears in a photo or video. However, on the other hand, as I noted above, the Supreme Court of Canada observed in Nikolovski at ¶21 that a camera, unlike an eyewitness, records accurately and dispassionately all that comes before it, and is akin to an unbiased witness with instant and total recall. Moreover, the trier of fact may review the photo or video evidence as often as desired. Here, not only has the Crown filed stills from the booking hall video, which only capture Mr. Bains in static images, but I also have available a fairly lengthy, and clear, body worn camera video of Mr. Bains as he interacts with the arresting officer and moves about. Thus, I can observe Mr. Bains’s mannerisms, as well as his appearance from various angles.
iii. The legal principles applicable to the comparison of the person or people in the LCBO video clips with the person in the mugshot or arrest photo purported to be of Mr. Bains
23I will now turn to the question of the admissibility of the mugshot or arrest photo which the Crown says depicts Mr. Bains. Section 31.1 of the Canada Evidence Act provides:
Authentication of electronic documents
31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.
Section 31.8 of the Canada Evidence Act defines “electronic document” as “data that is recorded or stored… in or by a computer system”, and includes a “display, printout or other output of that data”.
24In R. v. C.B., supra, at ¶¶63-68 and ¶78, the Court of Appeal for Ontario explained that at common law, authentication requires the introduction of some evidence that the item is what it purports to be. The requirement is not onerous, and may be established by either or both of direct and circumstantial evidence. Under s.31.1 of the Canada Evidence Act, the party who seeks to admit an electronic document has the burden of proving its authenticity. To meet the burden, the party must adduce evidence capable of supporting a finding that the electronic document is what it purports to be. As at common law, the threshold to be met is low. When the threshold is satisfied, the electronic document is admissible. However, it does not follow from admissibility that the trier of fact must find that the evidence is, in fact, what it claims to be. The trier of fact must still decide what weight, if any, to assign to the evidence.
25If the mugshot or arrest photo were to be admitted in this case, then I can consider to what extent I should give it any weight. If I choose to give it some weight, the same principles would apply as set out above in section III(C)(ii) of these Reasons, allowing me to compare the appearance of Mr. Bains in the mugshot with the appearance of the person or persons in the LCBO video clips.
iv. The legal principles applicable to the question of cross-racial identification
26Finally, I note that Mr. Bains and I appear to be from different ethnic or racial backgrounds, and I remind myself that cross-racial mis-identification is a well-recognized danger: R. v. Smith, 2025 ONCA 494 at ¶15; R. v. Richards, 2004 CanLII 39047 (ON CA), [2004] O.J. No. 2096 (C.A.) at ¶32. In R. v. Ali, 2021 ONCA 277 at ¶15, the Court of Appeal for Ontario expressed some hesitation that this danger necessarily presents itself in a situation such as this, in which the trier of fact has video clips they can watch and re-watch, as opposed to a situation in which an eye witness testifies as to their observations of an event. Nonetheless, I have cautioned myself to be mindful of this concern in assessing the evidence in this case.
D. The legal principles applied
i. What was not evidence of identity in this case
27I want to start my analysis by clarifying what evidence I did not consider on the question of identity in this case. In particular, I did not consider the evidence of Officer Borch that he had satisfied himself that the person or people involved in the thefts is Mr. Bains. In R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393 at p. 413, the Supreme Court of Canada held that a trial judge may admit the viva voce evidence of a witness who identifies a person on a video as the accused person. However, the witness must have a prior acquaintance with the accused person, such that he would be in a better position than the Court to identify the accused person in the video clips: R. v. Leaney, supra, at p. 413; R. v. Brown, 2006 CanLII 42683 (ON CA), [2006] O.J. No. 5077 (C.A.) at ¶39. Officer Borch did not testify to having a prior acquaintance with Mr. Bains, such that he would be in a better position than the Court to identify Mr. Bains in the LCBO video clips. Nor did he go through each theft incident and explain how or why he concluded that Mr. Bains was involved.
28In addition, the Crown did not bring a similar fact Application in this case. As such, I did not consider the evidence across counts.
29Having made those two clarifying points on the issue of identity, I will now turn to my application of the principles in R. v. Nikolovski, supra, by which I compared the appearance of Mr. Bains in Court to the appearance of the person or people in the LCBO videos committing the various thefts in question.
ii. A comparison of Mr. Bains in Court to the person or people in the LCBO video clips
30On the basis of the exercise of comparing Mr. Bains in Court to the person or people in the LCBO video clips standing alone, I am left in a reasonable doubt about whether Mr. Bains is the person in the LCBO videos. The following circumstances of my observations of Mr. Bains in Court made it impossible for me to conclude that the Crown had proven identity beyond a reasonable doubt based on that comparison.
31First, my opportunity to observe Mr. Bains in Court was limited by his placement in the prisoner’s box. I estimate the prisoner’s box to be approximately 15 feet from the bench in courtroom 1102, where the trial was held. The lighting over the prisoner’s box is not particularly good. I had to view Mr. Bains through the glass which surrounds the prisoner’s box, which appears to have a slight tint. The layout of the prisoner’s box means that when Mr. Bains was seated, as he was for most of the proceedings, my view of him was in profile, such that I only had an opportunity to observe the left side of his face. Further, the video screen used for Mr. Bains to view the LCBO video clips is in the lower part of the prisoner’s box, such that as he was watching the LCBO video clips, he was looking down, so my opportunity to observe his face was further limited. Moreover, Mr. Bains chose not to testify, as is his right, which meant I did not have a good opportunity to observe his mannerisms or affect.
32In this regard, I note that following the evidence and submissions, on October 10, 2025 Mr. Bains also briefly appeared before me 1001 Court to reschedule the date for this Judgment. I was very struck at how much more clearly I could see Mr. Bains in that courtroom. Courtroom 1001 is on an outer wall of the courthouse, and has an extra frosted window through which natural light can come from outside. On October 10, 2025, there was natural light streaming through the outer windows of the courthouse and on through the inner windows of courtroom 1001, which made a significant difference in my ability to observe Mr. Bains. However, Mr. Bains’s appearance in courtroom 1001 was brief, and I had only a couple of minutes to observe him. Moreover, the circumstances of this particular observation still required me to view Mr. Bains through glass, and largely in profile. As such, I do not feel comfortable relying on that very brief opportunity to observe Mr. Bains as proof beyond a reasonable doubt. However, that brief interaction was instructive, in that it highlighted the relatively poor lighting over the prisoner’s box during the trial.
33A second difficulty relating to my observations of Mr. Bains during the trial is that at the time of trial, he had long hair, which he chose to wear down and around his face. This made it more difficult to make observations of his face.
34A third difficulty of comparing Mr. Bains in Court to the person or people in the LCBO video clips is that Mr. Bains was clean shaven in Court, whereas the person in the LCBO videos (with the exception of the last incident) had facial hair. To be clear, I understand that facial hair can easily be changed. However, I found this difference between the appearance of Mr. Bains in Court and the appearance of the person or people in the LCBO video clips made it more difficult to assess whether Mr. Bains is, in fact, the person in the LCBO video clips.
35At the end of the day, by virtue of the observations of Mr. Bains in Court, I would have said that he exhibited in Court more of a woebegone affect than the individual in the LCBO videos. I would also have said that Mr. Bains’s skin tone appeared in Court to be somewhat paler than the individual or individuals generally depicted in the LCBO videos. However, none of this is to say that by virtue of my observations of Mr. Bains in Court, I have concluded that Mr. Bains is not the person in the LCBO videos; rather, it is to say that based on the circumstances of my observations of Mr. Bains in Court standing alone, I cannot say beyond a reasonable doubt that he is the person in the LCBO video clips. The woebegone affect to Mr. Bains’s appearance, as well as his paler skin tone, may well have been a result of any number of factors, including that Mr. Bains was in custody on criminal charges and may have been nervous, as well as by the difficulties of observing Mr. Bains in the courtroom due to the distance, tinted glass, and relatively poor lighting. The point is that based on my observations of Mr. Bains in Court, and comparing those observations to the person or people in the LCBO video clips, the Crown has not proven on that basis that Mr. Bains is the person in the LCBO video clips.
36I wish to make one final note with respect to my observations of Mr. Bains in Court. During submissions, Mr. Xu asserted that Mr. Bains has a light-coloured scar on his forehead. Mr. Xu conceded that the scar was hard to see at a distance. The Crown neither agreed with, nor disputed, the existence of the scar. From my vantage point on the bench, I could not observe the scar. This is not to say that I doubt Mr. Xu’s assertion as an officer of the Court. However, I am not sure how much it can assist me to determine this case that Mr. Bains has a scar which is difficult to see in person, and is also presumably difficult to see in moving or still images. Indeed, I did not receive a sufficient description of the scar to determine whether I should be able to see it in images of Mr. Bains, nor could I see it in the video and stills which are undisputed to depict Mr. Bains. This information about the scar therefore cannot assist in my deliberations to any great extent.
iii. The admissibility of the mugshot or arrest photo
37With respect to the admissibility of the mugshot or arrest photo of Mr. Bains filed as Exhibit ‘B’ on the proceeding, I am satisfied that the Crown has met its burden of proving authenticity pursuant to s.31.1 of the Canada Evidence Act. In other words, the Crown has adduced evidence capable of supporting a finding that the mugshot is what it purports to be. As noted above, the threshold to be met is low. I acknowledge that DC Borch was not present when the photo was taken, so he had no personal knowledge of when it was taken, nor whom it depicted. However, there is some value to DC Borch’s evidence that he drew the photo from a Toronto Police Service database of mugshots, as presumably the photo was taken, labelled, and entered into the database by someone having a personal knowledge of the matters being recorded and under a duty to make the record, which provides some circumstantial guarantee of trustworthiness: Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608 at 617, 626. Moreover, there is an identity between the birthdate listed under the mugshot and Mr. Bains’s birthday as listed on the Information.
38Even more importantly, pursuant to the principles of Nikolovski as applied in R. v. Keating (ONCA), supra, at ¶¶23-26 and R. v. Hudson, supra, at ¶¶46-47, I can compare the mugshot filed as Exhibit ‘B’ with the acknowledged depictions of Mr. Bains in the body worn camera video and the stills from the booking hall video to determine whether the Crown has established that the mugshot is what it purports to be. In this regard, the case is, as the Crown submitted, akin to R. v. George, supra, in that I am comparing the unknown of the mugshot to the known of the body worn camera and booking hall video stills. Having engaged in that exercise, I am satisfied that the mugshot is admissible in evidence. The following characteristics are similar as between the individual in the mugshot and Mr. Bains in the body worn camera video and stills from the booking hall: hair colour; skin colour; eye colour; thick dark eyebrows that extend fairly low down so as to end parallel to the corners of Mr. Bains’s eyes; a fairly bulbous nose; similar ears; and, an oval-shaped face. The mugshot is said to have been taken just under a year before Mr. Bains’s arrest, and the two individuals appear to be about the same age. Perhaps most striking is that not only does Mr. Bains and the person in the mugshot have full lips, but that both the individual in the mugshot and Mr. Bains in the known images and video have an upper lip which seems to be slightly lower, or to extend not quite as close to the nose, on the left side (when facing the images and video) than on the right. Below I have included a cropped still shot from the body worn camera video, which I paused at 0:00:33, which depicts the similarities in all these features, and in particular the slightly higher raise on the right side of Mr. Bains’s upper lip. I have also inserted the mugshot for comparison:
A comparison of the still photo from the booking hall marked Exhibit 18A in particular also reveals these similarities (albeit Mr. Bains’s lips are less visible in the booking hall stills). I include a cropped version of Exhibit 18(A) below for comparison purposes:
39I acknowledge that Mr. Bains’s hair in the mugshot seems to be slightly shorter than how it appears in the body worn camera video and booking hall still photos. However, this difference does not undermine my conclusion on the authentication of the mugshot, as his hair could easily have grown a small amount between April of 2024 and March of 2025.
40However, although I am admitting the mugshot into evidence, I caution myself against placing too much weight on it in assessing whether the Crown has proven beyond a reasonable doubt that Mr. Bains is the person in the LCBO video clips. The mugshot is a single static photo from only one angle, and captures Mr. Bains only from the shoulders up. Mr. Bains’s expression in the mugshot is quite different from that in the body worn camera and still photos from the booking hall video. I also note that the lighting in the mugshot casts shadows on Mr. Bains’s face, and that (perhaps because of the lighting), Mr. Bains’s skin looks more yellow in the mugshot than in the body worn camera video and the booking hall stills.
41On the basis of the admissibility of the mugshot, I will now compare the body worn camera video, the still shots from the booking hall, and the mug shot, to the person or persons in the LCBO video clips to determine whether the Crown has proven Mr. Bains’s identity in those clips beyond a reasonable doubt.
iv. Count 1 – The evidence of the theft on February 7, 2024
42The Crown filed three video clips, marked as Exhibits 2a to 2c, of the theft which occurred on February 7, 2024 at the LCBO located at 2181 Steeles Avenue West, Toronto. Exhibit 2c gives the clearest view of the individual who committed the theft. I have cropped a photo of the individual’s face from the still image the Crown filed as Exhibit C(1), which itself was taken from Exhibit 2c, to demonstrate my findings set out below:
43I am not convinced beyond a reasonable doubt that the person in Exhibit 2 is Mr. Bains. There are many similarities between Mr. Bains and the individual in Exhibit 2. However, the skin colour of the person in Exhibit 2 appears darker than Mr. Bains’s skin colour in the body worn camera video, stills from the booking hall, and mugshot. Moreover, the person in Exhibit 2 looks older than the person in the known video and images of Mr. Bains. I note as well that the individual in Exhibit 2 has deeper lines running from his nose to the sides of his mouth than Mr. Bains appears to have in the known video and images, as well as deeper lines running diagonally and down across his cheeks from the inner corners of his eyes. Finally, Mr. Bains’s upper lip appears fuller in the known photos and video than does the individual’s upper lip in Exhibit 2. While it is my view that Mr. Bains may well be the person depicted in the videos filed as Exhibit 2a-c, and that the differences I have observed between the individual in Exhibit 2 and the known images and video of Mr. Bains could be because of lighting, camera angles, and other variable factors, that is not enough. I am not sure Mr. Bains is the thief on this occasion. I therefore find Mr. Bains not guilty of count 1.
v. Count 2 – The evidence of the theft on February 14, 2024
44The Crown filed four video clips, marked as Exhibits 3a to 3d, of the theft which occurred on February 14, 2024 at the LCBO located at 2946 Finch Avenue East, Toronto. To demonstrate my findings as set out below, I have cropped two photos from Exhibit 3. First, I cropped a profile view of the individual from Exhibit 3c by pausing it at 0:00:07:
Second, I cropped a photo of the individual’s face more head-on by pausing Exhibit 3d at 0:00:06:
45I have a reasonable doubt about whether Mr. Bains was the thief on this occasion. This individual, like the individual depicted in Exhibits 2a-c, appears to have deeper lines around his mouth than does Mr. Bains in the known images and video. In addition, this individual’s features seem to be less spread out on his face than does Mr. Bains’s features in the known images and video. Moreover, the individual in the videos filed collectively as Exhibit 2 appears to have a less fulsome upper lip than does Mr. Bains in the known images and video. Finally, I note that in the crop of the still frame taken from Exhibit 3c set out above, the individual’s nose seems to come to a sharper point than does Mr. Bains’s nose. Again, I acknowledge there are many similarities between the thief and the known images and video of Mr. Bains. In fact, it appears to me that the individual in the videos filed as Exhibit 3 may be wearing the same mustard-coloured fleece or hoodie under his coat as Mr. Bains appears to be wearing in the mugshot. However, I cannot be sure that the garment is the same, and more than one person could own a similar mustard-coloured fleece. While I believe Mr. Bains could be the individual in the videos filed as Exhibit 3, I am not sure that he is that person. I therefore find Mr. Bains not guilty of count 2.
vi. Count 4 – The evidence of the theft on March 1, 2024
46The Crown filed four video clips, marked as Exhibits 5a to 5d, of the theft which occurred on March 1, 2024 at the LCBO located at 1563 Steeles Avenue East, Toronto. Exhibit 5d gives the clearest view of the individual who committed the theft, although 5b and 5c provide some more useful views as well. To demonstrate my findings as set out below, I have cropped three photos from Exhibit 5. First, I cropped a view of the individual by pausing Exhibit 5b at 0:01:39:
Second, I cropped a view of the individual by pausing Exhibit 5c at 0:00:17:
Finally, I cropped a view of the individual by pausing Exhibit 5d at 0:00:13:
47I have a reasonable doubt about whether Mr. Bains is the individual in Exhibits 5a-d. The individual in Exhibits 5a-d appears older and with more pronounced lines under his eyes than does Mr. Bains in the known images and video of him. The individual in Exhibits 5a-d appears to have darker skin than does Mr. Bains in the known images and video. The image immediately above depicts someone who almost appears to be missing a bit of facial hair from the upper moustache, exposing a bit of the cupid’s bow. While Mr. Bain’s upper lip appears to be higher on the right side, this individual has almost a heart-shaped bald patch above his lip which Mr. Bains does not share. The nose of the individual in Exhibits 5a-d appears bigger and broader than Mr. Bains’s nose in the known video and images. Mr. Bains does share many characteristics with the person in Exhibits 5a-d. While I think Mr. Bains could be the person depicted in Exhibits 5a-d, I am not sure. I therefore find Mr. Bains not guilty of count 4.
vii. Count 7 – The evidence of the theft on March 20, 2024
48The Crown filed four video clips, marked as Exhibits 8a to 8d, of the theft which occurred on March 20, 2024 at the LCBO located at 145 Silver Reign Drive, Toronto. Exhibits 8a-8c do not provide a good view of the individual’s face. Exhibit 8d provides a clearer view. To demonstrate my findings as set out below, I have cropped a photo from Exhibit 8d by pausing it at 0:00:08:
49I have a reasonable doubt that Mr. Bains is the person in Exhibits 8a-d. I note that the screenshot above from 8d shows the individual at a very similar angle to Exhibit 18a, reproduced here in a cropped version for ease of comparison:
While again, Mr. Bains looks similar to the individual in Exhibit 8, and in fact more similar in this case than those counts I have already considered, I still note some differences between Mr. Bains and the individual in Exhibit 8. In particular, Mr. Bains’s nose seems to be narrower across the bridge and to broaden more at the nostrils, while the nose of the individual in Exhibit 8d appears to be broader more uniformly from the bridge to the nostrils. Moreover, while the skin colour of the individual in Exhibit 8 appears to be lighter than the skin colour of the individual or individuals in the counts already considered, it still appears to be slightly darker than Mr. Bains’s skin colour. Again, it may be that Mr. Bains is the individual in Exhibit 8, and that the differences observed are due to lighting, camera angle, and other variable factors. However, on the basis of the evidence before me, the Crown has not proven identity on this count beyond a reasonable doubt. Accordingly, Mr. Bains is not guilty of count 7.
viii. Count 8 – The evidence of the theft on May 2, 2024
50The Crown filed seven video clips, marked as Exhibits 9a to 9g, of the theft which occurred on May 2, 2024 at the LCBO located at 145 Silver Reign Drive, Toronto. To illustrate my findings as set out below, I have included a cropped still photo of the individual from Exhibit 9a, paused at 0:00:06, and a cropped still photo of the individual from Exhibit 9g, paused at 0:00:05:
51I have a reasonable doubt about whether the individual in Exhibits 9a-g is Mr. Bains. The skin colour of the person in Exhibits 9a-g appears darker than the known images and video of Mr. Bains. The lines on the individual’s face in Exhibits 9a-g appear deeper than those on Mr. Bains’s face. And, the features on the face of the individual in Exhibits 9a-g appear to be more crowded together than Mr. Bains’s features. Again, the individual in Exhibits 9a-g may be Mr. Bains, but that has not been proven beyond a reasonable doubt.
52I acknowledge that it appears that the individual in Exhibit 9 is wearing a black hoodie under his jacket which appears to be very similar to the black hoodie worn by Mr. Bains in his mugshot, with a distinctive white stripe around the hood and some black lettering in the white band. However, I cannot get a good enough look at the hoodie from the videos marked collectively as Exhibit 9 to determine if the markings are the same. To the extent that I can discern the markings in Exhibit 9 and in the mugshot, they appear to be different. I have drawn the following cropped photo from Exhibit 9f paused at 0:00:38 to illustrate this, as compared to the mugshot photo. As best as I can tell, the markings in black in the white stripe of the hoodie in Exhibit 9 are more like hieroglyphics, whereas those in the mugshot are largely letters:
Mr. Bains is therefore found not guilty of count 8.
ix. Count 11 – The evidence of the theft on May 6, 2024
53The Crown filed three video clips, marked as Exhibits 10a to 10c, of the theft which occurred on May 6, 2024, at the LCBO located at 1563 Steeles Avenue East, Toronto. Neither 10a nor 10b provide a particularly good view of the individual. 10c provides a clearer view. To demonstrate my findings as set out below, I have cropped a photo from Exhibit 10c by pausing it at 0:00:12:
54To the extent it is possible to tell, it appears this individual is wearing the same hat, as well as the same black hoodie with the white stripe with black characters, as the individual in Exhibits 9a-g. Like the individual in Exhibits 9a-g, this individual appears to have darker skin than Mr. Bains, and deeper lines between his nose and mouth than does Mr. Bains. This individual also appears to have a slight bald spot in his moustache, as did the individual in Exhibit 5, although Mr. Bains does not appear to share this bald spot. Again, the individual in Exhibits 10a-c may be Mr. Bains, but I have a reasonable doubt. Accordingly, Mr. Bains is not guilty of count 11.
x. Count 15 – The evidence of the theft on May 23, 2024
55The Crown filed four video clips, marked as Exhibits 13a to 13d, of the theft which occurred on May 23, 2024, 2024 at the LCBO located at 1571 Sandhurst Circle, Toronto. Exhibit 13d provides the clearest view of the individual. To demonstrate my findings as set out below, I have cropped a photo from Exhibit 13d by pausing it at 0:00:08:
56I have a reasonable doubt about whether the individual in Exhibits 13a-d is Mr. Bains. The individual in Exhibits 13a-d appears to have darker skin than Mr. Bains, as well as more pronounced lines under his eyes and between his nose and mouth than Mr. Bains has. This individual also appears to have a mark on his nose, which Mr. Bains does not have in the known images or video. While the mark may simply be a cut which subsequently healed, I cannot tell that from the videos filed as Exhibit 13. Mr. Bains may be the individual in Exhibits 13a-d, but I am not sure. Accordingly, I find Mr. Bains not guilty of count 15.
xi. Count 16 – The evidence of the theft on May 28, 2024
57The Crown filed four video clips, marked as Exhibits 14a to 14d, of the theft which occurred on May 28, 2024, at the LCBO located at 145 Silver Reign Drive, Toronto. Exhibit 14d provides the clearest view of the individual. To demonstrate my findings as set out below, I have cropped a photo from Exhibit 14d by pausing it at 0:00:06:
58I have a reasonable doubt about whether Mr. Bains is the individual in Exhibits 14a-d. The individual’s skin appears darker in 14a-d. This is particularly noticeable in his hands. A cropped still photo drawn from the body worn camera (Exhibit 17) as paused at 0:00:03 shows this distinction:
In addition, the lines on the individual’s face in Exhibits 14a-d appear deeper than the lines on Mr. Bains’s face in the known images and video. Again, the observed differences may be due to lighting, camera angles, or other variable factors. However, based on the evidence before me, I have a reasonable doubt about the individual’s identity. Accordingly, I find Mr. Bains not guilty of count 16.
xii. Count 17 – The evidence of the theft on November 24, 2024
59The Crown filed four video clips, marked as Exhibits 15a to 15d, of the theft which occurred on November 24, 2024, at the LCBO located at 2181 Steeles Avenue West, Toronto. To demonstrate my findings as set out below, I have cropped a still image taken from Exhibit 15d, paused at 0:00:04:
60Of all the incidents of theft, this is the one where the individual looks the most similar to Mr. Bains. The lines around the individual’s nose and mouth are less pronounced than in the other incidents, and are more similar to the lines on Mr. Bains’s face. The skin colour of the individual in Exhibits 15a-d is more similar to Mr. Bains’s skin colour in the known stills and video than in the other incidents. However, I am still not sure this individual is Mr. Bains. Mr. Bains’s nose appears wider near the bottom than the above individual’s, and his eyebrows appear thicker. In addition, Mr. Bains’s skin appears to be a richer brown than the individual above. I have included below the still image drawn from the body worn camera video paused at 0:00:33 for comparison:
Of all the counts, this one gave me the most anxious consideration. However, while I think Mr. Bains is likely guilty of this count, that does not meet the standard. I find Mr. Bains not guilty of count 17.
IV. Count 18 – The alleged breach of probation on November 24, 2024
A. The evidence
61With respect to the alleged breach of the Probation Order, the Crown filed as Exhibit 1 two certified Informations, to which a single Probation Order dated November 5, 2024 attached. That Order prohibited the person bound by it from attending any LCBO in the Province of Ontario for a period of 12 months. The Order binds an accused person with the same first, middle, and last name as Mr. Bains, as well as the same birth date. The accused’s address on the two Informations which underlie the Probation Order is the same, but a second address for the accused is found on the Probation Order itself. Mr. Bains’s address as reflected on the Information before me is not the same as the addresses found on the two Informations underlying the Probation Order and the Probation Order itself.
62Officer Cameron Parry testified that he arrested someone named Arshdeep Bains on two warrants, one relating to one count of theft under $5,000, and the other relating to four counts of theft under $5,000. Those charges are reflected on the Informations to which the Probation Order attaches. Officer Parry identified the accused in Court as the person whom he arrested on the two warrants. Officer Parry agreed that his interactions with the Arshdeep Bains whom he arrested were fairly brief. He also acknowledged he did not ask the person whom he arrested to identify himself by name. However, Officer Parry said he identified the Arshdeep Bains whom he arrested via MTO, ISS, and mugshot. Officer Parry agreed he did not make a note of identifying the person whom he arrested by mugshot, but testified he had an independent recollection of doing so.
B. The parties’ positions
63As noted above, the defence challenged whether Mr. Bains’s identity had been established as the person who breached the Probation Order beyond a reasonable doubt. In Mr. Xu’s submission, not only had the Crown failed to prove that Mr. Bains was the person who entered the LCBO on November 24, 2024, but also that the Crown had failed to prove that the accused before me was the same person as the person bound by the Probation Order. The Crown did not make submissions on this issue, but presumably relied on the evidence of Officer Parry to establish Mr. Bains was bound by the Probation Order.
C. The applicable legal principles
64With respect to the question of whether the accused person before me is the same person who was bound by the Probation Order in question, the law permits me to consider the identity of names between the person named in the Probation Order and the person before me, as well as the identity of address or other biographical details: R. v. Webster, 2016 ONCA 189 at ¶6; R. v. St. Pierre, 2016 ONCA 173 at ¶10.
65In addition, I remind myself that in-dock identifications are notoriously unreliable and should be given little weight: R. v. Izzard, 1990 CanLII 13295 (ON CA), [1990] O.J. No. 189 (C.A.) at ¶13; R. v. Reitsma, 1997 CanLII 3607 (BC CA), [1997] B.C.J. No. 2314 (C.A.) at ¶¶56-60 per Rowles J.A. dissenting, appeal allowed 1998 CanLII 825 (SCC), [1998] S.C.J. No. 38 at ¶1. I also remind myself that in-dock evidence is deceptively credible because it is largely honest and sincere: R. v. Hibbert, 2002 SCC 39 at ¶50.
66As for the question of whether Mr. Bains is the person who stole the items from the LCBO on November 24, 2024, the same principles relating to identity apply as I have articulated in the above section relating to the theft counts.
D. The legal principles applied
67I am satisfied beyond a reasonable doubt that the accused person before me is the same as the person bound by the Probation Order. I put very little weight on Officer Parry’s identification in Court of Mr. Bains as the person whom he arrested on the charges which underlie the Probation Order. This is because of the frailties of in-dock identification, as well as the fact that Officer Parry only had a brief interaction with the person whom he arrested. However, Officer Parry’s evidence is corroborated by the identity of names and birth dates as between the person bound by the Probation Order and the accused before me, Mr. Bains. While the address noted for the individual bound by the Probation Order is not the same as the address noted for Mr. Bains on the Information before me, neither is the address the same as between the Probation Order and the Informations which underlie it. This does not cause me to have a reasonable doubt, as addresses can easily change.
68However, as I have concluded that the Crown has not proven beyond a reasonable doubt that Mr. Bains was the individual in the LCBO on November 24, 2024, I find Mr. Bains not guilty of count 18.
V. Conclusion
69Mr. Bains is therefore found not guilty of counts 1, 2, 4, 7, 8, 11, and 15-18, with the other counts having been disposed of in his favour previously. I would like to thank both counsel for the highly professional, collegial, and organized way in which they conducted this case.
Released: November 10, 2025.
Signed: Justice J. Trehearne
Footnotes
- The Information alleges 18 counts of theft under $5,000 (counts 1-17 and count 19) and two counts of breach of probation (counts 18 and 20). However, before the trial began, the Crown withdrew counts 9, 10, and 13. Further, at the close of the evidence in this matter, the Crown invited me to acquit Mr. Bains of counts 3, 5, 6, 12, 14, 19 and 20. Therefore, this Judgment pertains to counts 1, 2, 4, 7, 8, 11, and 15-18.