Court File and Parties

Court File No.: Halton 11-2162, 11-2436 Date: 2012-02-29 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Konstintin Shumski

Before: Justice Lesley M. Baldwin

Heard on: November 1, November 3, November 23, December 13, 2011 and February 6, 2012

Reasons for Judgment released on: February 29, 2012

Counsel:

• Kelli Frew and Mary Ward for the Crown
• Larry Lebovits for the accused Konstintin Shumski

Judgment

L.M. BALDWIN, J.:

Charges

[1] Konstintin Shumski was arrested on July 11, 2011 and charged as follows:

1. On or about the 22nd day of June 2011 at the Town of Oakville did break and enter a dwelling house situate at 3378 Stocksbridge Avenue and did commit therein the indictable offence of theft, contrary to section 348(1)(b) of the Criminal Code; and further that he

2. On or about the 22nd day of June, 2011 at the Town of Oakville and or elsewhere in the Province of Ontario did unlawfully have in his possession a 2005 Chevrolet Uplander of a value exceeding $5,000.00 knowing that all the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to section 354(1) of the Criminal Code; and further that he

3. On or about the 22nd day of June, 2011 at the Town of Oakville and or elsewhere in the Province of Ontario did unlawfully have in his possession a Sentry safe bearing serial number AG-507068 of a value not exceeding $5,000.00 knowing that all the property was obtained by the commission in Canada of an offence punishable by indictment, contrary to section 354(1) of the Criminal Code; and further that he

4. On or about the 22nd day of June 2011 at the Town of Oakville and or elsewhere in the Province of Ontario being at large on his recognizance entered into before a Justice and being bound to comply with a condition of the recognizance directed by a said Justice, failed without lawful excuse to comply with a condition to wit: observe a curfew to be in his residence at all times except in the direct company of the surety, contrary to section 145(3) of the Criminal Code; and further that he

5. On or about the 22nd day of June, 2011 at the Town of Oakville and or elsewhere in the Province of Ontario did being at large on his recognizance entered into before a Justice and being bound to comply with a condition of that recognizance directed by said Justice failed without lawful excuse to comply with that condition to wit: abstain from communicating directly or indirectly with Alexander Malamut and Dani Brovman except in direct company of counsel or while attending court at Newmarket, contrary to section 145(3) of the Criminal Code.

[2] The Crown elected to proceed by Indictment on counts 3, 4 and 5.

[3] Mr. Shumski was assisted by a Russian interpreter at trial.

[4] No defence evidence was called.

Count #5

[5] During submissions, the Crown invited the Court to dismiss on count #5. Mr. Shumski had been jointly charged with Alexander Malamut. During the course of the trial, charges against Mr. Malamut were withdrawn by the Crown.

[6] Count #5 is dismissed.

Acknowledgments

[7] Mr. Shumski acknowledges being subject to a recognizance dated June 9, 2011, with respect to count #4, and marked as Exhibit #14.

[8] Mr. Shumski admits that the Chevrolet Uplander, referenced in count #3, was stolen.

[9] The vehicle belonged to Mr. Lev Kaganovitch and was kept at his car rental lot located at 4544 Dufferin Street in Toronto. The owner last saw his vehicle on the lot on June 21, 2011.

[10] Mr. Shumski admits that there was a residential 'break and enter' as specified in count #1.

[11] Items were stolen in that break and enter, including the Sentry Safe that was shortly thereafter seen being dumped in a ravine in York Region just off 112 Clark Street.

[12] At the end of trial, it was admitted that the stolen Van observed at the scene of the residential break and enter, was the same Van that was observed approximately one hour later in York Region. The Van was at the scene where the Sentry Safe, taken during the break and enter, was being dumped in a ravine by two men.

Issue

[13] The only issue at the end of the trial was whether the Crown had proven the identity of Mr. Shumski beyond a reasonable doubt.

[14] Two independent witnesses identified Mr. Shumski in photo line-ups.

[15] The victim of the residential break and enter, Ms. Linda Davis, identified Mr. Shumski in a photo line-up that was video-taped by HRPS on June 25, 2011. A transcript of that video tape is now marked as Exhibit # 15 and the accuracy of the transcription is not in dispute.

[16] Mr. Corey Linhares, a construction worker, identified Mr. Shumski as one of the two men who he observed dumping the safe in a ravine in York Region.

[17] York Regional Police conducted a photo line-up with Mr. Linhares on June 27, 2011. That procedure was audio-taped and the tape was played for the Court and filed as an Exhibit.

[18] Mr. Kris Roze, a second construction worker, did not identify Mr. Shumski as one of the two men who he had observed dumping the safe in a ravine in York Region. (He did, however, identify Mr. Malamut, the co-accused whose charges were withdrawn by the Crown. Neither counsel asked that this evidence be considered in final submissions; accordingly, it was not.)

[19] This case involves an analysis of the reliability of the eye witness identifications and the integrity of the photo line-ups.

[20] The law of recent possession has application to this case.

Law of Recent Possession

[21] The Court can draw an inference from the unexplained possession of recently stolen goods, that the possessor stole the goods.

[22] In considering whether the criteria of 'recent possession' has been met, the Court can consider the nature of the object, its rareness, the readiness in which it can, and is likely to pass from hand to hand, the ease of its identification and the likelihood of transferability. R. v. Kowlyk, [1988] 2 S.C.R. 59; R. v. Wiseman, 52 C.C.C. (3d) 160; R. v. Saieva, [1982] 1 S.C.R. 897; R. v. Reid, [2004] O.J. No. 402 (SCJ); R. v. Gonsalves, [2008] O.J. No. 2711.

[23] It is reasonable to infer in this case, that the same man who was observed walking away from Ms. Davis' house and then entered the stolen Van, was the same man who dumped her stolen safe into the York Region ravine using the stolen Van approximately one hour later.

Summary of the Testimony of Ms. Linda Davis

Part One – Her Observations of the Thief at her Residence

[24] Linda Davis and her husband resided at 3378 Stocksbridge Avenue in Oakville. Photographs of the home were filed as Exhibits #6 and #7. One can see that this is a lovely home in a residential area.

[25] On June 22, 2011, Ms. Davis was at her work place located on Speers Road in Oakville. At approximately 11:00 a.m., she received a call from her home alarm company.

[26] As a result of that call, she drove to her home which took approximately 12 minutes.

[27] She parked in her driveway.

[28] She saw a man on the path side of her house and a white Van parked in front of the pathway.

[29] As she sat in her car, she turned her head to the left and saw a man coming from the pathway.

[30] The pathway was approximately 25 feet to her left.

[31] The pathway leads from her backyard to the street.

[32] The man she saw was tall (approximately 6'); slim; dark/short hair; tan/white/fair in skin colour; carrying her husband's black gym bag on his back; wearing a dark blue T-shirt with short sleeves with something written on the corner of the shirt; he was very relaxed with a big smile on his face until he saw her and then his face dropped; no earrings in his ears; no beard; round face; high cheek bones; approximately 25 years of age, not older than 30; square shouldered; big round/piercing eyes; no body piercings.

[33] The man looked right at her. It seemed like a "long time" to Ms. Davis but she agreed that it may only have been for seconds. Ms. Davis testified that she thinks when he saw her there in the driveway that it scared him.

[34] She saw the man walk about 10 steps toward the Van.

[35] She took down the licence plate number of the Van which was later given to police.

[36] She saw the young man trying to get into the Van.

[37] The driver of the Van had locked the door and the young man was speaking in a panicked voice trying to get in. The man said three or four words: "open the door, open the door." She did not hear an accent. He had a young sounding voice.

[38] She saw the man for maybe two minutes because he could not get into the Van. (Transcript November 1, 2011 p. 59)

[39] Ms. Davis did not see the driver.

[40] She entered her home and found that the back door had been forced open.

[41] The alarm system had been pulled out of the wall in the home and in the garage.

[42] There was significant damage to her home. The Sentry Safe was taken. Approximately $50,000.00 in jewellery was gone.

[43] The sheet from her bed was taken.

[44] Ms. Davis used her cell phone to call 911. She said to come quickly because the robbers were still in the area and she could describe one of them. (Transcript November 3, 2011 p.60)

[45] Police attended and she provided a description of the man.

Part Two – The Photo Line-up

Issue #1 – Fairness of the HRPS Physical Array

[46] Defence counsel submits that the photograph of Mr. Shumski in photo line-up Exhibit #3, photograph #12, is not fair in relation to other photographs for the following reasons: his face is slightly larger within the frame than the other eleven; his head is angled slightly to the right; he does not have a neutral expression on his face.

[47] I have reviewed the array in detail, which I am required to do as the trier of fact, and I conclude that it was fair.

[48] Photograph #12 is within fractions of an inch larger than the other face shots within the frame. This minor difference would not result in this photograph standing out as different from the others.

[49] Photograph #12 is a full face-on shot, as are the other eleven. The face is angled slightly to the right, as is photograph #5. Photograph #4 is angled slightly to the left. This slight angling would not make photograph #12 stand out unfairly in relation to the other eleven.

[50] In all 12 photographs, the men have their mouth closed. No one is smiling, smirking, or frowning. I do not find any basis for counsel's submission that Mr. Shumski's expression was "not neutral."

[51] The photographic array complies with all case law respecting fairness in photo selection. Further, it meets the recommendations of the Sophonow Inquiry.

Issue #2 – Witness Selection Process

[52] On June 25, 2011, commencing at 10:25 a.m., Linda Davis was shown the above-noted photo array after signing the HRPS Photo Line-up Directions marked as Exhibit #2. The process was video-taped and the DVD was marked as Exhibit #1; the transcript now marked as Exhibit #15.

[53] Defence counsel submits that when Ms. Davis wrote "Yes" on the back of photograph #3, #8, #11, she cannot be reliable about her final selection of "Yes" on photograph #12.

[54] The Crown submits that the protocol for a fair line-up and selection process was followed in this case.

[55] A neutral officer presented the array to Ms. Davis and very little was said by the officer to her.

[56] The photographs were presented sequentially.

[57] All the photographs were similar in physical characteristics to Mr. Shumski.

[58] Ms. Davis has reasonably explained why she wrote "Yes" on the 3 photographs that preceded #12. In a nut-shell, it was because she thought it meant she could go back and look at them again if she wanted to. In her mind, it was like writing "I'm not sure" but she was aware that was not an option. She understood that if she wrote "No", she could not go back.

[59] When she reached photograph #12, she immediately physically reacted.

[60] Ms. Davis testified at trial that when she saw photograph #12, it took her breath away. This reaction is apparent on the video.

[61] Ms. Davis testified that she knew it was him; she knew it was the guy.

[62] When asked during the line-up process why she was selecting photograph #12, she said:

His eyes the way he looked at me and the round face, and, I don't know it just really stood out, it really stood out. They all had this round face and dark hair. But I'm focussing more on their eyes because that's what was hitting me in my eyes. So I'm seeing that I – the guys with the earrings I didn't see he didn't have any earrings on I'm seeing the left side of him more. So I'm thinking do you take these earrings off when you go to rob? But their face was familiar to me. That guy kinda shook me up." (Exhibit #15 pp 8, 9)

[63] I am satisfied that the recommendations of the Sophonow Inquiry with respect to photograph identification evidence have been met in this case.

[64] I am satisfied beyond a reasonable doubt that Ms. Davis' identification of Mr. Shumski was accurate and reliable.

Summary of the Testimony of Corey Linhares

Part 1 – Observations at the York Region Ravine

[65] Mr. Linhares is 23 years of age and has worked as a contractor for five (5) years.

[66] On June 22, 2011, he was working on renovations at a residence in Thornhill with Kris Roze.

[67] At approximately 1:00 p.m., he was outside on the back deck of the residence having a cigarette. He had a drill in his hand.

[68] He heard a loud noise like someone jumping into a pool.

[69] Originally from a distance of approximately 100 feet away, he saw two men dropping something into the ravine in a big orange cover. (Note: this was Ms. Davis' safe and her bed sheet)

[70] There was a parking lot raised up from the ravine in the next lot which was approximately 200 to 250 feet from the back deck. The (stolen) white Van was parked there and the Van lid was open.

[71] Mr. Linhares had an unobstructed view.

[72] He moved closer to the men after he heard the splash. He was approximately 50 to 60 feet away.

[73] He used his drill (with his arm raised up in the air as demonstrated in court) and made a noise with it. Both men looked up at him. He got a "glimpse" of their faces.

[74] He saw the men for approximately one minute.

[75] Mr. Linhares described the first man as having short-spiky hair (hair spiked-up a few inches), wearing blue jeans and a white T-shirt. He was lanky, tall, not very built, in his early 20's or 30's; elongated face; protruding ears; clean shaven; no tattoos; maybe 5' 10" to 5' 11" in height.

[76] The second man he only got a "glance of". He described this man as having a stocky build and other descriptors that are not relevant to this trial as the charges against Mr. Malamut have been withdrawn.

[77] The two (2) men fled in the Van with the tires "screeching". Immediately, either he or Mr. Roze called the non-emergency police hot-line and reported the incident.

[78] Police attended within 10 to 15 minutes and descriptions of the men were provided and statements were taken.

Part Two – The York Regional Police Photo Line-up

[79] On June 27, 2011, Mr. Linhares was shown a photo line-up (Exhibit # 9) that was audio-taped (Exhibit # 11) by York Regional Police.

[80] The Instruction Sheet that was signed before the presentation was filed as Exhibit # 8.

[81] Officer James Waugh of the York Regional Police conducted the photo line-up and he testified at trial. (Transcript November 23, 2011 pp. 37 to 53)

[82] I have concluded that the photographs selected and presented were fair and complied with the Sophonow Inquiry recommendations.

[83] Mr. Linhares was shown four (4) photographs sequentially. When he came to photograph #4 he said, "Yeah, that's him." On the back of photograph # 4 is written "Ya that's him" and it is initialled by Mr. Linhares.

[84] As per the York Region protocol, the photo line-up process concluded at this point.

[85] Photograph #4 is a picture of Mr. Shumski.

Summary of the Testimony of Kris Roze

[86] Mr. Roze is a young man appearing to be in his twenties.

[87] Mr. Roze's evidence with respect to observing the Safe dumping and the stolen Van was consistent with Mr. Linhares' evidence.

[88] Mr. Roze estimated that they saw the two (2) men for three (3) to five (5) minutes.

[89] Mr. Roze noted that the men spoke to each other in a different language. He did not tell the police about this because they did not ask him.

[90] He described the men as both wearing white T-shirts, aged between 20 and 30 and white skinned.

[91] One man had brownish spiked hair in the front.

[92] Mr. Roze was also shown a photo line-up by Officer Waugh.

[93] Mr. Roze did not identify Mr. Shumski in photo line-up Exhibit #9.

[94] He selected photograph #5. On the back of that photograph is written, "I have to say ya that's him he looks familiar" and it is initialled by Mr. Roze.

Witness Assessment

[95] Ms. Davis was an articulate, educated, precise, detailed and mature witness.

[96] She had a good opportunity to see the man walking away from her house and into the stolen Van.

[97] She had an unobstructed short distance view of him and she made direct eye contact.

[98] Corey Linhares was also a careful and precise witness.

[99] He had an unobstructed short distance view of the men at the ravine.

[100] After using his drill to alert them to his presence, he also had a full face-on view.

[101] Kris Roze was a sincere witness. He adds that both men were speaking to each other in a different language.

[102] It is noted that both Mr. Shumski and Mr. Malamut had the assistance of Russian interpreters during the proceedings.

[103] The identification witnesses in this case perceived the situation before them well.

[104] Both Ms. Davis and Mr. Linhares observed full face-on views of the men.

[105] Police were contacted immediately and the description process began.

[106] The witnesses recalled the events in question clearly and articulately communicated them to the Court.

Frailties in Eye-Witness Identification Cases

[107] Much has been written about the dangers of eye-witness identification evidence and the need for courts to be very cautious with respect to its use.

[108] In this case, there were no problems with the identification witnesses being fatigued or impaired by substances at the time.

[109] There were no lighting or distance issues. Both Ms. Davis and Mr. Roze could hear the man/men speaking.

[110] Factors which increase identification errors were not present in this case such as: cross-racial identification; short exposure time; presence of a weapon; long periods of delay in reporting; multiple identification attempts; voice identification; instruction line-up bias; biased composite production.

[111] The witnesses were very alert during the events in question given the circumstances thereof.

[112] Ms. Davis was stressed but also very alert when she saw the man walking away from her house.

[113] The descriptions provided by the eye witnesses were detailed with respect to Mr. Shumski and they were accurate.

[114] The fact that Ms. Davis observed the man to be wearing a dark T-shirt and both Mr. Linhares and Mr. Roze observed the men wearing white T-shirts, does not trouble me. At the time Ms. Davis saw Mr. Shumski walking away from her house, he was also carrying her husband's dark coloured knapsack on his back. She did not realize this at the time but came to know it when she discovered what had been stolen. This fact reasonably accounts for this minor difference in the descriptions.

[115] The fact that Mr. Roze did not identify Mr. Shumski has been considered. Mr. Roze did not get a full face-on look at the man/men as testified to by Ms. Davis and Mr. Linhares. Mr. Roze's trial testimony was not as detailed with respect to the man/men's appearance as the other two. His failure to identify Mr. Shumski does not leave me in a state of reasonable doubt on the identification issue.

[116] This case does not rest only on the identification evidence. It is also based on the application of recent possession.

[117] When combined, the identification of Mr. Shumski as the man who had broken into the home of Ms. Davis has been proven beyond all reasonable doubt.

[118] For these reasons, convictions are entered on counts #1, #2, #3.

Count #4 – Breach of Recognizance

[119] On June 9, 2011, Mr. Shumski (born June 6, 1988) was released on a recognizance of bail with a surety named Svetlana Abramov (born July 30, 1970).

[120] Condition number one of the release required Mr. Shumski to reside with his surety at 56 Lady Nadia Drive in Maple.

[121] Condition number six required Mr. Shumski to observe a curfew to be in his residence at all times except in the direct company of his surety.

[122] It is reasonable to infer, and I do, that the surety is a woman who is 40 years old.

[123] When Mr. Shumski was observed walking away from the Oakville crime scene, and shortly thereafter dumping the safe in the York Region ravine, he was not with a woman who was 40 years old.

[124] The breach of recognizance has been proven beyond a reasonable doubt.

[125] Conviction is registered on count #4.

[126] The Information shall be endorsed as follows:

• Count #1 – Guilty
• Count #2 – Guilty
• Count #3 – Guilty
• Count #4 – Guilty
• Count #5 – Dismissed

Conclusion

[127] Five witnesses testified over the course of this four day in-custody trial, namely: Linda Davis; Corey Linhares; Kris Roze; Officer Brian Crawford; Officer James Waugh. All of the witnesses' evidence, the 15 Exhibits filed during the course of the proceedings, and all submissions have been carefully reviewed and assessed. It is not necessary for me to review all of the evidence in detail in these focused reasons. It must be understood that busy trial court Judges must deliver reasons in 100s of trial matters every year and we are required to do so in a timely fashion. This Court is aware of appellant authority governing the sufficiency of reasons by trial Courts and has been guided accordingly. (See R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869).

Released: February 29, 2012

Signed: "Justice Lesley M. Baldwin"