CITATION: R. v. Abdi, 2011 ONCA 446
DATE: 20110610
DOCKET: C52469
COURT OF APPEAL FOR ONTARIO
Rosenberg, Juriansz and LaForme JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
Mustafa Abdi
Appellant
Daniel Lawson, for the appellant
Andreea Baiasu, for the respondent
Heard: April 4, 2011
On appeal from the conviction entered by Justice Thomas M. Dunn of the Superior Court of Justice on May 18, 2010 and the sentence imposed on June 29, 2010.
Rosenberg J.A.:
[1] The appellant, Mustafa Abdi, appeals his convictions by Dunn J. on charges of possession of stolen goods. He also appeals the sentence of 15 months imprisonment. While there was a piece of circumstantial evidence tying the appellant to others involved in the offences, the Crown’s case depended upon the identification provided in two video clips. The appellant’s principal submission is that the video recordings were not of sufficient quality to permit an accurate identification to be made. For the following reasons, I would dismiss the appeal from conviction and sentence.
THE FACTS
[2] The charges arise out of events on May 8, 2008 when the police observed a man alleged to be the appellant supervising the delivery of stolen high-end automobiles to a freight-forwarding business for export. The Crown’s case depended upon a comparison of the appellant’s appearance with that of a man seen in two short video clips. The video was taken by a police officer who was one of several officers conducting surveillance at the business premises. The officers later followed some of the perpetrators to the parking lot of a shopping plaza where they were arrested. The appellant was not amongst those men arrested. However, one of the people arrested had a set of car keys that opened a vehicle parked nearby and which had been rented by the appellant about two months earlier. This vehicle also contained a traffic ticket that had been issued in the name of the appellant two days before May 8.
[3] Constable Baxter, the officer in charge of the investigation, testified that by comparing a digital copy of the appellant’s driver’s licence photograph with the videos he concluded that the appellant was the man in the videos. Sergeant Childs, who was at the freight forwarding business on May 8, testified that he too believed that the appellant was the man in the videos. He also testified that the appellant looked like the man he had seen during the May 8 surveillance.
THE REASONS OF THE TRIAL JUDGE
[4] The trial judge began his reasons by stating that the “sole issue” is whether the Crown had proved that the appellant had been identified beyond a reasonable doubt as the individual in the surveillance videos. The trial judge found that the video recordings were of good quality. He described Constable Baxter’s evidence as being “fairly certain” that the person portrayed in the licence photograph was the person in the video. The trial judge referred to the fact that the keys to the car rented by the appellant were found in the possession of one of the people involved in moving the stolen cars. He said:
We do not have a lot more than that but, in my opinion, that may be sufficient unless there is good reason for me to doubt the accuracy of the evidence of identification that Police Officer Baxter gave to us.
[5] The trial judge said that he was “always reluctant to substitute [his] opinion for that of somebody else” but at counsel’s request he had reviewed the videotape several times. After describing the videos, the trial judge concluded as follows:
I have looked again and again at the evidence to discern a number of other things including the height of the accused as opposed to the man in the grey jacket. I do not have any evidence with respect to it, but my observation tells me it is not inconsistent. His facial features and structure—and I am looking at not only the evidence on the video, but also the evidence of the digital [driver’s licence] photograph and that of the accused in the courtroom. The type of haircut—many have it; the skin colour. All those things are part of it—none determinative. Glasses or not, as I have said before.
As I say, I am reluctant to substitute my view of that type of evidence for a witness that was there, but I have to tell you that a close observation by me leads me to the conclusion that the person in the digital photograph, the accused and the person in the grey coat are the same.
ANALYSIS
The Conviction Appeal
[6] The appellant submits that the video recordings were not of sufficient quality to form the basis for the identification in this case. Whether the video recordings were of sufficient quality was a question of fact for the trier of fact, here the trial judge. This court’s jurisdiction to review that finding is limited. The leading case on the issue is the decision of the Supreme Court of Canada in R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, where Cory J., speaking for the majority of the court, said the following at para. 23 :
If an appellate court, upon a review of the tape, is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accused as the person depicted in the videotape.
[7] In accordance with that decision, I have reviewed the video recordings to determine whether the trial judge’s assessment of quality was reasonable. There are two video clips. The first is ten minutes in length. It shows the person alleged to be the appellant and the others involved in delivering the vehicles but at some distance. This clip would not be of sufficient quality to allow for accurate identification. The second clip, and the clip obviously relied upon by the trial judge, is much shorter in length, just over 30 seconds, but the person alleged to be the appellant is much closer to the camera. The quality of the video is good and it is possible to make out this person’s features. I cannot say that the trial judge’s conclusion is unreasonable. He had the advantage, which this court does not, of being able to compare the person in the video clip with the accused’s appearance in the courtroom. We only had the digital driver’s licence photograph to compare to the video clip.
[8] The fact that the video clip was of relatively short duration did not make it unsuitable for use in making an accurate identification. Again, as Cory J. said in Nikolovski at para. 29: “The time of depiction may not be significant for even if there are but a few frames which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of fact has reviewed the tape on several occasions and stopped it to study the pertinent frames.” It is apparent from his reasons, that the trial judge did exactly that; as he said, he looked “again and again” at the recording.
[9] I was concerned that the trial judge may have delegated to Officer Baxter his own responsibility to decide whether the appellant was the person in the video. Officer Baxter was in no better position than the trial judge to make the identification. Unlike the police officer who testified in R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393, Officer Baxter had no particular advantage in identifying the appellant. There is no suggestion that he had known the appellant before this incident. However, having reviewed the trial judge’s oral reasons and, particularly, the passage set out above, I am satisfied that the trial judge reached his own conclusion as to the identification.
[10] Accordingly, I would dismiss the conviction appeal.
The Sentence Appeal
[11] In his submissions on sentence before the trial judge, counsel for the appellant sought a sentence of four to five months. Crown counsel sought a sentence of twelve months imprisonment. As indicated, the trial judge imposed a sentence of fifteen months imprisonment. Counsel for the appellant submits that while the trial judge was not bound by the sentence range suggested by counsel, there was no reason to depart from that range and in particular to impose a sentence above the twelve months sought by Crown counsel.
[12] The standard of review of sentence is whether the sentence is manifestly unfit. The position taken by Crown counsel at trial is a factor to be considered in making this determination. However, the appellant has not shown that the sentence imposed is manifestly unfit. The appellant is a mature offender, 33 years of age at the time of sentencing, with a prior criminal record including convictions for obstructing police, possession of counterfeit money, failing to comply with a recognizance and importing a Schedule IV substance contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19. This latter conviction was entered less than a year before these offences were committed.
[13] These were serious offences involving a sophisticated scheme to steal and export high-end motor vehicles. It is apparent from viewing the video recordings that the appellant is directing the other persons involved. It was open to the trial judge to conclude, as he did, that the appellant had “an important role in this operation.” Even allowing for the several mitigating factors – the appellant’s employment, positive role in his community and charitable work – given the appellant's role in the offence and his prior criminal record, I have not been persuaded that the sentence was unfit.
DISPOSITION
[14] Accordingly, I would dismiss the appeal from conviction. While I would grant leave to appeal sentence, I would dismiss the sentence appeal.
Signed: “M. Rosenberg J.A.”
“I agree R. G. Juriansz J.A.”
“I agree H. S. LaForme J.A.”
RELEASED: “MR” JUNE 10, 2011