COURT OF APPEAL FOR ONTARIO

DATE: 20001030

DOCKET: C32083

WEILER, ROSENBERG AND SHARPE JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

• and -

BURHAN HERSI
Appellant

Michael W. Lacy
for the appellant

W. Graeme Cameron
for the respondent

Heard: October 4, 2000

On appeal from convictions on two counts of robbery by Justice Mary Lou Benotto, sitting without a jury, dated March 17, 1999.

SHARPE J.A.:

[1] The appellant was convicted by Benotto J., sitting without a jury, on two counts of robbery. The robberies arose out of a single incident. The sole issue at trial was identity. The appellant submits that the finding of guilt was unreasonable and against the weight of the evidence, that the trial judge erred in the manner in which she assessed identity evidence and that she erred in her assessment of the evidence of a witness who was also charged with the robbery.

FACTS

[2] The two complainants, Babak Omidi (18 years old at the time) and Mihnea Galeteanu (16 years old at the time), were accosted by a young black man while they were rollerblading late in the evening. The assailant, using abusive language, asked the complainants for money and drugs. The assailant was joined by two other youths who also demanded money. The first assailant, perceived by the two complainants to be the leader, punched Galeteanu. The other assailants pushed Galeteanu and threatened further violence if he did not give them money. Galeteanu handed over $5.00 and Omidi handed over $35.00. They handed the money to the first assailant who also took from them a Metro pass and Nike jacket. Galeteanu’s backpack was searched and thrown over a fence. The assailants fled.

[3] The police were contacted and following descriptions were given. Galeteanu gave only one description, namely, “Suspect number one, male, black 175 centimetres, 17 years old”. Omidi gave descriptions of the three assailants as follows:

Black male, 5’10”, 140 pounds, wearing a reddish orange jacket with baggy pants.

Chubby guy, with a big hat; 5’6”, 190 pounds.

140 pound, 5’6”, blondish hair.

[4] The following evening, Omidi was getting on the elevator in the apartment building in which he lived. He testified that when the elevator door opened, he saw the three people who had robbed him the night before. They were accompanied by a fourth youth. Omidi was with his mother. He and his mother entered the elevator. He testified that he smelled the same distinct odour he had detected during the robbery. He acknowledged during cross-examination, however, that he had not mentioned this odour in his statement to the police the night before as he did not think it was relevant. He testified that he recognised the three individuals, the appellant, the “chubby guy” who was a “South American or Mexican”, later identified as Rudy Deleon, and a white male, B.C., later identified and charged as a young offender. Omidi testified that the accused and the others started giggling while he was on the elevator and that as he was leaving the elevator, he overheard one of them say “shit” which he interpreted to mean that they recognized him.

[5] Omidi immediately called the police. He also called Galeteanu whom he arranged to meet in the lobby downstairs. Galeteanu proceeded to the lobby. About one half hour after Omidi had seen the men on the elevator, Galeteanu saw them get off the elevator in the lobby. He recognized the same three men as the persons who had committed the robbery. He admitted, however, that on the basis of what Omidi had told him, he was expecting to see his three assailants from the night before. The police were nearby and in the presence of Omidi and Galeteanu, the appellant and his two companions were arrested.

[6] Omidi testified that he had seen the black male assailant, allegedly the appellant, at least twice prior to the night of the attack in his neighbourhood. In cross-examination, Omidi initially stated that he had told the police on the night of the robbery that he had previously seen the appellant. However, when confronted with the statement he gave the police he admitted he had not told this to the police that night. The first time Omidi told the police that he had previously seen the appellant was immediately after the appellant was arrested.

[7] The appellant testified and denied any involvement in the robbery. The appellant provided the police with an alibi upon arrest and testified to the alibi at trial. Three defence witnesses were called to corroborate his alibi. Their evidence, however, was not consistent. Two of the alibi witnesses were the appellant’s brothers. The third was a friend, Gillian Quest. The appellant’s brother testified that he had never seen Quest before the trial, although the appellant and Quest testified that they all were together on the night in question. A police officer involved in another case testified that she overhead the appellant greeting Quest in the waiting room outside the courtroom as follows: “Good you are here…Do you know what to say?” The appellant denied saying this and explained that he had greeted the witness in slang: “Good you are here, you know what I am saying”.

[8] B.C. testified for the defence. At the time of the trial he was 16 years old and awaiting trial on the charge of robbery in the youth court. B.C. denied seeing the appellant on the day of the robbery and provided an alibi for his whereabouts.

TRIAL JUDGE’S REASONS FOR JUDGMENT

[9] The trial judge reserved her decision at the conclusion of argument and delivered judgment seven days later. The reasons of the trial judge reflect a careful analysis of the evidence. She rejected most of the evidence led by the defence. She did not find the appellant to be a credible witness and gave detailed reasons in support of her adverse finding. Nor did she find the witnesses called in support of the appellant’s alibi evidence credible or reliable. She gave detailed reasons for rejecting the alibi evidence led by the appellant. She expressly found that the appellant had greeted one of the alibi witnesses with “Good you are here…Do you know what to say?” The trial judge explicitly found that the evidence led by the defence did not raise for her a reasonable doubt.

[10] The trial judge indicated that she approached the evidence of B.C. “with caution” and she gave reasons for explicitly rejecting his evidence.

[11] With respect to the Crown evidence, the trial judge found that the evidence of Omidi and Galeteanu proved beyond a reasonable doubt that they had been robbed. She identified the key issue to be determined as being the reliability of the identification evidence. The trial judge found that Galeteanu’s identification evidence was not reliable on the basis that he was expecting to see his attackers in the lobby of the apartment building after having been called by Omidi. The trial judge found, accordingly, that the Crown’s case effectively rested on Omidi’s identification evidence.

[12] In accepting Omidi’s evidence as identifying the appellant as the perpetrator of the robbery, the trial judge provided the following detailed analysis:

1. He was approached by the perpetrator at close range, they were a few meters away.

2. He identified the man who first approached him as the leader of the group. He would therefore most likely have been focusing more on him.

3. He was looking at the perpetrator for 5 to 10 minutes.

4. He was talking to him directly.

5. There was nothing obstructing the view.

6. There was nothing distracting him except for the upset at the event.

7. It was evening, therefore dark out, but according to Mr. Omidi, not too dark to recognize the people.

8. The description given to the police the night of the robbery was too general to identify anyone. He mentioned no distinguishing features. He did not mention a distinctive smell. He did not mention that there was facial hair on one of the perpetrators (not the accused). He did not mention that he had seem them before.

9. His description, albeit general, was consistent with the accused. Although, due to the generality of the descriptions was consistent with the accused although he admitted that, because of the baggy pants, and his own rollerblades, these factors may be inaccurate [sic].

10. Mr. Omidi realized at some point that he had seen the perpetrator before. He did not mention this to the police the night of the robbery.

11. It was the following night that he saw Mr. Hersi and identified him. That night he had 5 seconds before getting in the elevator and 10 to 15 seconds once in. He was 100% sure of their faces.

12. Mr. Omidi thought he had seen the accused twice before the robbery. He thought it was around his neighbourhood, perhaps at the IGA, outside his building, at the basketball court.

There is evidence which shows, evidence that I accept, which shows that the accused was in the neighbourhood and indeed, as [B.C.] said, he had been in the apartment building about six times.

[13] The trial judge concluded as follows:

I believe Mr. Omidi’s evidence that he had seen the perpetrator before the robbery. This fact diminishes the dangers in eyewitness identification where the victim sees the perpetrator only once. He had the opportunity to look at his face for at least a 5 minutes. He recognized the perpetrator as someone who he had seen before, a very short time that passed before he saw him again. These factors eliminate for me any doubt about the reliability of the identification of Mr. Hersi by Mr. Omidi.

ANALYSIS

1. Unreasonable Verdict

[14] It is well established that special caution is called for when assessing eyewitness identification evidence. It has also been held that as the danger of such evidence is posed by the honest but potentially mistaken witness, it is well-suited to appellate review under the Criminal Code, s. 686(1)(a)(i): see R. v. Biddle (1993), 1993 8506 (ON CA), 84 C.C.C. (3d) 430 (Ont. C.A.) at 434-5; R .v Quercia (1990), 1990 2595 (ON CA), 60 C.C.C. (3d) 380 (Ont. C.A.) at 383-4; R. v. Miaponoose (1996), 1996 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.) at 451.

[15] The appellant submits that the identification evidence displays badges of unreliability that render the verdict unreasonable. The appellant places particular emphasis on the concluding passage of the trial judge’s reasons where she indicates she is satisfied that Omidi had seen the appellant before and that this strengthened his identification of the appellant as one of the perpetrators of the robbery. The appellant submits that the trial judge’s reasoning is flawed as she drew the unwarranted conclusion that Omidi had identified the appellant as the individual who perpetrated the robbery rather than simply recognizing him on the elevator as someone Omidi had previously seen.

[16] In my view, the appellant has failed to show that the trial judge erred in her assessment of the identification evidence or that her verdict was unreasonable. The trial judge’s reasons demonstrate that she was very much alive to the dangers posed by eyewitness identification evidence. She took meticulous care in scrutinizing the strengths and weaknesses of the Crown’s identification evidence. The trial judge expressly discounted the evidence of Galeteanu on account of what he had been told by Omidi, and she expressly adverted to other potential sources of frailty in the identification evidence. There was evidence before her to support her finding that Omidi had previously seen the appellant. She took into account the failure of Omidi to mention this fact to the police on the night of the robbery and assessed Omidi’s explanation for not mentioning that fact or the distinctive smell.

[17] In my view, taking into account all the circumstances, it was open to the trial judge to conclude that Omidi’s familiarity with the appellant, taken together with the fact that he had looked into the face of his assailant for several minutes only one day before he identified the appellant as the perpetrator of the offence, strengthened his identification of the appellant as the perpetrator of the robbery. I am not persuaded that the trial judge erred in law or that she misapprehended the evidence.

[18] Having conducted my own review of the evidence, as mandated by s. 686(1)(a)(i), I would also reject the submission that the verdict “is unreasonable or cannot be supported by the evidence”. In my view, the verdict was one that a properly instructed trier of fact, acting judicially, could have reasonably rendered: R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168; R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 (S.C.C.).

2. Trial Judge’s Treatment of Defence Witness B.C.

[19] The appellant submits that the trial judge erred in approaching B.C.’s evidence “with caution”. It is submitted that there was no reason for the trial judge to take this approach to B.C.’s evidence, that he was not an unsavoury or otherwise suspect witness nor did he have any interest in the proceedings that rendered his evidence untrustworthy.

[20] In my view, there is no merit in this submission. B.C. faced an outstanding charge on precisely the same matter. He testified in chief that his trial had been adjourned pending the outcome of the trial of the appellant because “they said they had more evidence against [the appellant] than against us [sic]”. In those circumstances, it was open to the trial judge to consider that his evidence that he was not present at the time of the robbery might well have been motivated by self-interest. I see no reason to interfere with the trial judge’s finding that he was someone whose evidence she should approach with caution.

CONCLUSION

[21] For these reasons, I would dismiss the appeal.

Released: October 30, 2000

“Robert J. Sharpe J.A.”

“I agree K. M. Weiler J.A.”

“I agree M. Rosenberg J.A.”