Her Majesty the Queen v. Bao

[Indexed as: R. v. Bao]

Ontario Reports

Court of Appeal for Ontario

Watt, Trotter and Paciocco JJ.A.

June 6, 2019

146 O.R. (3d) 225 | 2019 ONCA 458

Case Summary

Criminal law — Evidence — Identification evidence — Police officer identifying accused as driver of minivan that sped past him at speed of 50 kph and at distance of 15 feet — Officer finding minivan abandoned — Officer unable to describe any characteristics of male driver beyond being Asian and providing very inexact estimate of driver's height — Accused's wallet including his photo identification OHIP card found in glove box and inhaler found in minivan along with documents that suggested that vehicle was owned by someone else — Officer finding marijuana in vehicle — Accused's conviction for possession of marijuana for purpose of trafficking being based on officer's identification of accused as driver of minivan — Accused's appeal allowed — Presence of accused's wallet and inhaler in minivan not compensating for serious frailties in officer's fleeting identification of accused — Verdict unreasonable and not supported by evidence.

Facts

The accused was convicted of possession of marijuana for the purpose of trafficking. The investigating officer saw the driver of a minivan for a few seconds as the minivan sped past him at a speed of 50 kph and a distance of 15 feet. The officer described the driver as a dark-haired Asian male. Because the driver looked shocked at seeing the officer, the officer followed the minivan, which crashed into a hydro pole. By the time the officer reached the minivan, it was unoccupied. The accused's wallet was in the glove compartment and his inhaler was found in front passenger's door of the minivan. The wallet contained an OHIP card which bore the accused's name and photograph. The vehicle's ownership and insurance certificate, also in the minivan, were not in the accused's name. The officer examined the OHIP card and testified that he recognized the accused as the person who drove past him. Garbage bags full of fresh marijuana were found in the vehicle. The police discovered four Asian people, three men and a woman, hiding in the bushes nearby. The accused was not one of them. The trial judge relied on the presence of the accused's OHIP card, his inhaler and the observations of the officer, although insufficient in isolation to prove the identity of the driver, were together sufficient to satisfy him that the accused was the driver of the minivan. The accused appealed his conviction.

Decision

Held, the appeal should be allowed.

The trial judge's analysis failed to appreciate the significance of the weaknesses in the officer's evidence. The presence of the accused's wallet and inhaler in the minivan was merely consistent with the accused's recent presence in the vehicle, and was not capable of establishing that the accused was present in the vehicle on the occasion in question or that he was the driver of the vehicle. The officer's evidence was a necessary and critical bridge between those items and the identification of the accused as the driver. The items could not compensate for the serious shortcomings in the officer's initial, fleeting identification. The frailties in the officer's identification evidence included the brevity of his opportunity to observe the driver, the lack of detail in his description of the driver, the fact that this was a case of cross-racial identification, the officer's dubious estimation of the height of the driver, and the fact that the officer bolstered his identification of the driver by noting that the driver's side window was open, while a photograph of the crashed minivan showed that the window was closed. The officer's reliance on the OHIP card photo only served to acerbate the frailties of his identification evidence. It is dangerous and improper to present a potential identification witness with a single photograph of a suspect, as doing so is highly suggestible and contaminates the identification process. The officer essentially showed himself a single photograph and concluded that the person in the photograph was the driver of the minivan. The verdict was unreasonable and could not be supported by the evidence.

Judgment

APPEAL by the accused from the conviction entered by F.C. O'Donnell J., [2017] O.J. No. 7050, 2017 ONCJ 944.

Counsel:

• Mindy Caterina, for appellant
• Bradley Reitz, for respondent

The judgment of the court was delivered by

Reasons for Decision

A. Factual Overview

[1] TROTTER J.A.: — The appellant, Ai Ming Bao, was convicted of one count of possession of marijuana for the purpose of trafficking, contrary to s. 5(3)(a) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. His conviction rested on the fleeting observation of a police officer, who identified the appellant as the driver of a vehicle that sped past him at 50 km/h.

[2] At the end of the oral hearing, the panel announced that the verdict was unreasonable and could not be supported by the evidence. The appeal was allowed and an acquittal was entered, with reasons to follow. These are those reasons.

Factual Overview

[3] On August 15, 2015, P.C. Michael Storozuk was investigating a collision involving a motorcycle. He parked his cruiser in a manner that prevented other vehicles from driving through the accident scene. As P.C. Storozuk was talking to a tow-truck driver, he saw a minivan drive past him, "out of the corner" of his eye, at a distance of 15 feet. It was travelling at a "normal rate of speed" of 50 km/h. He said that the driver's side window was open.

[4] P.C. Storozuk yelled at the driver to stop. Acknowledging that he had merely "seconds" to make his observation, P.C. Storozuk described the driver as an "Asian male" with "dark hair". P.C. Storozuk testified that the driver "looked shocked and almost panicked". From his fleeting glance, he estimated that the driver was 5'9" to 5'10". In cross-examination, he agreed that this estimate was "very approximate" and acknowledged that the driver could have been between 5'7" to 6'. He could give no further description of the driver, or of the driver's clothing.

[5] After the minivan went through the accident scene, it immediately made a right-hand turn and accelerated away. P.C. Storozuk got into his cruiser and gave chase. The minivan travelled about 300 meters before crashing into a hydro pole. By the time P.C. Storozuk caught up to the minivan, there was no one inside it. All of the minivan doors were closed, except the driver's side front door, which was ajar. P.C. Storozuk said the window of the driver's side door was still open.

[6] P.C. Storozuk searched the glovebox and found a wallet. It was conceded that the wallet belonged to the appellant. It contained numerous bank cards, credit cards, recent ATM receipts and other items. P.C. Storozuk "focused on" an OHIP card found in the wallet, which bore the appellant's name and photograph. P.C. Storozuk testified that he recognized the appellant as the person who drove past him at the first accident scene. P.C. Storozuk also found ownership and insurance documents in the minivan, both of which suggested that the minivan was owned by someone else. Another officer who subsequently arrived on the scene found an inhaler (still in its packaging) that had been prescribed for the appellant about a month earlier. It was in a compartment of the front passenger-side door.

[7] As P.C. Storozuk examined the contents of the wallet, the front hood of the minivan caught fire. Concerned about the destruction of evidence, he opened the sliding door of the minivan and discovered seven large garbage bags of "fresh" marijuana inside the vehicle. Fire services were summoned and the fire was extinguished.

[8] A canine unit was also on the scene, in search of the occupant(s) of the vehicle. The police soon discovered four Asian people (three men and one woman) hiding in the bushes nearby. The appellant was not one of them.

[9] Returning to the minivan, P.C. Storozuk insisted that the driver's side window was open when it passed him and when he found it abandoned after striking the hydro pole. He stated that he did not roll the window up. A photo from the scene taken by P.C. Storozuk showed that the window was rolled all the way up. P.C. Storozuk had no explanation for the discrepancy but said, "I know for a fact . . . it was down" (i.e., that it was open) when the minivan drove past him.

[10] Officers on the scene observed that the minivan seating had been modified. The middle bench seat was missing, leaving enough seating for only four people.

[11] As discussed in more detail below, the trial judge was satisfied that the appellant was the driver. He also concluded that the Crown had proved that the appellant possessed the seven bags of marijuana found inside the vehicle.

B. Issues on Appeal

[12] The appellant raised two issues on this appeal: Is the appellant's conviction unreasonable due to the frailties of the identification evidence? In the alternative, if identity were properly proved, did the evidence fall short of establishing the appellant's knowledge and control of the marijuana found in the minivan? In my view, the appeal should be allowed on the first issue.

C. Analysis

(1) Introduction

[13] This case provides another example of an honest witness purporting to make an accurate eyewitness identification. However, given that P.C. Storozuk only made a fleeting observation, and in light of how events transpired that evening, his identification of Mr. Bao was rendered worthless. Accordingly, the appellant's conviction is unreasonable and cannot be supported by the evidence: see Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(a)(i); R. v. Quercia (1990), 75 O.R. (2d) 463, at pp. 465-66 O.R.; R. v. Malcolm (1993), 13 O.R. (3d) 165, at pp. 173-74 O.R.; R. v. Miaponoose (1996), 30 O.R. (3d) 419, at p. 423 O.R.

[14] In his reasons, the trial judge identified some of the inherent frailties generally associated with eyewitness identification evidence. They are well known and have been discussed by the courts on countless occasions: see, e.g., R. v. Hibbert, 2002 SCC 39, at para. 50; Peter deC. Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001), at pp. 31-34. Although these frailties are easily identified, problems sometimes arise in the failure to focus on the specific frailties presented in individual cases: see R. v. Lewis, 2018 ONCA 351, at para. 16; R. v. Baltovich (2004), 73 O.R. (3d) 481, at para. 79; R. v. Gough, 2013 ONCA 137, at paras. 34, 38-39; and R. v. Pimentel, at para. 11. That is what happened in this case.

[15] The trial judge relied upon three aspects of the evidence in finding that the appellant had been identified as the driver -- the presence of the appellant's wallet in the minivan; the discovery of his inhaler in the minivan; and the observations of P.C. Storozuk. He acknowledged that none of these alone could establish identification, but in combination they were compelling. However, this panoramic approach obscured the deficiencies in P.C. Storozuk's observations of the driver, upon which everything else rested.

[16] The discovery of the appellant's wallet and inhaler in the minivan was merely consistent with the appellant's recent presence in the vehicle. These items alone were not capable of establishing that the appellant was present in the vehicle on this occasion, or that he was the driver of the minivan. P.C. Storozuk's evidence was a necessary and critical bridge between the items and the identification of the appellant as the driver. The items found in the vehicle could not compensate for the serious shortcomings in P.C. Storozuk's initial, fleeting identification. Indeed, as discussed below, P.C. Storozuk's reliance on the OHIP card photo only served to exacerbate the frailties of his identification evidence.

[17] I will outline the frailties in P.C. Storozuk's purported identification of the appellant and then address the concerns related to his reliance on the OHIP card.

(2) The Specific Frailties in This Case

[18] There were numerous frailties apparent from the circumstances in which P.C. Storozuk made his observations of the person driving the minivan.

[19] I start with the fact, which is common to many identification cases, that this was a case of stranger identification. P.C. Storozuk and the appellant did not know each other. As this court cautioned in R. v. Tat (1997), 35 O.R. (3d) 641, at para. 100, concerns about eyewitness identification "are particularly high where the person identified is a stranger to the witness": see, also, R. v. Goran, 2008 ONCA 195, at para. 32.

[20] Perhaps most importantly, P.C. Storozuk had the opportunity to observe the driver for mere seconds, from a distance of 15 feet, while the vehicle passed at a speed of 50 km/h. As the trial judge noted in his reasons, the vehicle would have been travelling at 14 metres per second. By any measure, this was nothing more than a fleeting glance: R. v. Mezzo; R. v. Virgo, 2016 ONCA 792, at para. 12; R. v. Boast, 2019 ONCA 19, at para. 15.

[21] P.C. Storozuk's description of the driver was also bereft of any detail -- "Asian male, dark hair." As defence counsel at trial (not Ms. Caterina) submitted, this could describe any Asian male. It may even have been an apt description of the men who were found hiding in the bushes near the crashed minivan. Importantly, this description was not relayed to the dispatcher by P.C. Storozuk as the events unfolded; it was recorded in his notebook after he had viewed the appellant's OHIP card. The lack of any meaningful description of the driver seriously undermined P.C. Storozuk's identification evidence. As this court noted in Gough, at para. 37, generic descriptions are of little assistance: see, also, R. v. Jack, 2013 ONCA 80, at para. 16; R. v. Ellis, 2008 ONCA 77, at paras. 5, 8.

[22] P.C. Storozuk was also unable to identify any clothing that might have been visible from his vantage point, not even the colour of the clothing that the driver was wearing on the upper part of his body.

[23] There was another need for caution on the part of the trial judge -- this was a case of cross-racial identification: see R. v. McIntosh (1997), 35 O.R. (3d) 97, at p. 105 O.R., leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 610; R. v. Richards (2004), 70 O.R. (3d) 737, at para. 32; and R. v. Mey, 2011 ONCA 288, at para. 35. The trial judge included this feature in his reference to the inherent frailties of identification evidence generally. However, he never really grappled with this feature in the context of this case. This was a serious issue, especially in light of P.C. Storozuk's generic description. This was further compounded by the fact that three Asian men that were found hiding nearby, who along with the woman found with them, were presumably occupants of the minivan -- a vehicle with seats for four.

[24] Finally, there were two specific aspects of P.C. Storozuk's evidence which cast doubt on the accuracy of his observations. First, P.C. Storozuk's estimation of the height of the driver was dubious. After all, the driver was seated at the time of the observation. P.C. Storozuk made his appraisal -- again within seconds -- based on his experience with friends who own the same model of minivan. Any doubt about the value of the height estimate was put to rest in cross-examination, when the parameters changed from the initial 5'9" to 5'10" range, to a range of 5'7" to 6'0".

[25] Second, P.C Storozuk was adamant that the window was open when the minivan drove past him, and after it crashed. He relied upon the open window to bolster the accuracy of his identification of the driver. Photographic evidence contradicted P.C. Storozuk on this point. The trial judge said that he accepted the evidence of P.C. Storozuk that the window was open, but gave no explanation for this finding. In my view, given that this observation was tied to the reliability of P.C. Storozuk's observations that evening, it was incumbent on the trial judge to explain why he reached this conclusion. But even taking P.C. Storozuk's evidence at its highest and accepting that the window was open when he observed the driver, the other frailties in his evidence were such that the matter of the window being open was incapable of bolstering the accuracy of his evidence. The frailties in P.C. Storozuk's fleeting observations of the driver were compounded by his reliance on the OHIP card.

(3) The OHIP Card

[26] The trial judge was impressed with P.C. Storozuk's comparison of his own memory of the driver with the OHIP card photo. The trial judge said that this was similar to situations in which police officers verify the identification of drivers at roadside (i.e., by comparing a presented photo-bearing driver's licence with the seated driver). I am not persuaded that this analogy is sound.

[27] Many years ago, this court held that it is dangerous and improper to present a potential identification witness with a single photograph of a suspect. The danger is that the witness may have the photo image stamped on his or her mind, rather than the face of the true perpetrator: see R. v. Goldhar; R. v. Smokler, at p. 271 C.C.C. Presenting a single photograph is highly suggestible and contaminates the identification process in a manner that prejudices the accused person: see R. v. Smierciak, at p. 177 C.C.C. The holdings in these cases were recently endorsed by Rothstein J. in R. v. Araya, 2015 SCC 11, at para. 36, a case referenced by the trial judge in his reasons.

[28] In this case, P.C. Storozuk essentially "showed" himself a single photograph and concluded that the person in the photograph was the driver of the minivan. I do not criticize him for what he did. No doubt, it was sensible investigative work. However, it did not translate into reliable identification evidence.

[29] In considering P.C. Storozuk's use of the OHIP photo, the trial judge placed great reliance on this court's judgment in R. v. Li, 2013 ONCA 81, leave to appeal to S.C.C. refused [2013] S.C.C.A. No. 142. In Li, a police officer identified the accused person after viewing a photograph obtained from a Ministry of Transportation database and conducting surveillance of the accused. The officer in Li had run the licence plate of a vehicle he observed during the execution of a general warrant and viewed the driver's licence displaying a photo of the owner of the vehicle. The officer did not retain a copy of the photo. One week later he had the opportunity to observe the accused while he was under surveillance for eight-and-a-half hours. The officer identified the person he observed during the surveillance as the person depicted in the photo from the ministry database. The photograph was not produced at trial. Watt J.A. stated, at para. 38, that it was not improper for the officer to examine the photo and compare his surveillance observation to the photo that he had previously viewed. Rather, the officer

. . . was entitled . . . to compare the person in the photograph with the man he saw at 18 Damian Drive unloading the same vehicle that he had under surveillance for eight and one-half hours, and taking several things into the garage of Ng's house. In essence, he was refreshing his memory.

[30] The trial judge likened the situation in this case to Li. While he acknowledged that the opportunity to observe in this case was considerably shorter, he said [at para. 30], "the present point is that the single photo issue was squarely before the Court of Appeal and did not find favour with that court".

[31] If this statement is meant to suggest that the decisions in Goldhar and Smierciak are no longer authoritative, I disagree. Li refers to neither of these cases and does not purport to address the reliability of eyewitness identification based on a single photograph.

[32] Moreover, the Supreme Court of Canada's endorsement of Goldhar and Smierciak in Araya came after this court's decision in Li. This aspect of Araya (in para. 36) is considered dicta of the Supreme Court of Canada that is binding on this court, as it was on the trial judge: R. v. Henry, 2005 SCC 76, at paras. 53, 57; R. v. Prokofiew (2010), 100 O.R. (3d) 401, 2010 ONCA 423, at paras. 18-21, affd without reference to this point, 2012 SCC 49; Canada (Attorney General) v. Bedford (2012), 2012 ONCA 186, at para. 69, revd in part, but not on this point 2013 SCC 72.

[33] Further, this case is entirely different from Li. The officer in Li had hours to observe the accused, essentially giving rise to a situation of recognition, rather than stranger identification. In this case, all the officer had was a fleeting glance. In Li, the officer saw the photograph first, and then observed the accused over a prolonged period of time. In such circumstances the risk that the single photograph would become stamped on his mind, rather than the face of the true perpetrator was significantly attenuated. In contrast, that is squarely the concern that is presented in this case. P.C. Storozuk's own direct observations were fleeting and marred with other frailties which I have reviewed above. In such circumstances, there was a heightened risk that the photo, which P.C. Storozuk acknowledged he "focused on", would overtake or contaminate the identification evidence.

[34] As noted above, the trial judge likened P.C. Storozuk's use of the OHIP card to the typical traffic stop scenario where police officers compare the driver with the photo identification presented. This identification process is not unique to traffic stops. It is used in other contexts -- e.g., airport check-in; customs clearance; proof of age at public houses; professional or educational testing -- occasions when it is necessary to verify the identity of individuals presenting themselves for a particular purpose.

[35] This comparison is not helpful. The traffic stop scenario entails a process of simultaneous comparison between the person and the photograph. The officer and the driver will be in close proximity. Questions may be asked. Within legal limits, the length of the encounter is controlled by the officer. During a traffic stop, the driver will be anxious for the officer to accept the licence photograph as authentic.

[36] In this case, P.C. Storozuk did not have an opportunity to make a simultaneous comparison of the OHIP photo and driver. All he had was his memory of the driver from his fleeting glance, which he compared with the only photo ID that he found in the minivan. The circumstances in which this comparison was made was highly suggestible. The use of the OHIP photo could not bootstrap an irretrievably valueless attempt at identification.

D. Conclusion

[37] For these reasons, the verdict is unreasonable, and the appeal must succeed. In light of this conclusion, it is not necessary to address the appellant's other argument concerning knowledge and control of the marijuana.

[38] As mentioned at the outset of these reasons, the appeal was allowed at the conclusion of the oral hearing in this case. An acquittal was entered at that time.

Result

Appeal allowed.

Notes

1. The other individuals were originally charged along with the appellant on the same information. At the outset of trial, due to the absence of a certain witness which diminished the prospect of conviction, the Crown withdrew the charge as against them and proceeded against the appellant alone.

2. I accept that the number of seats in the vehicle is not conclusive of the number of occupants. Had the four individuals been found to be occupants of the vehicle, it was still possible that another person could have been in the minivan, but not properly seated.

3. The appellant's actual height was not determined at trial.