Court Information

Ontario Court of Justice

Date: 2013-12-11

Court File No.: Halton 1211 1100 1252

Parties

Between:

Her Majesty the Queen

— AND —

Darren Philip John

Before: Justice L.M. Baldwin

Heard on: March 30, 2012; August 15, 2012; January 31, 2013; February 28, 2013; March 14, 2013; March 21, 2013; July 16, 2013; July 26, 2013; September 11, 2013

Reasons for Judgment released on: December 11, 2013

Counsel

Mr. H. Apel — counsel for the Crown

The defendant Darren Philip John — on his own behalf

BALDWIN J.:

[1] Charges

[1] Darren Philip John is charged with two counts of fraud under $5,000.00 as follows:

(1) on or about the 6th day of October, 2010, at the City of Burlington in the Central West Region, he did by deceit, falsehood or other fraudulent means defraud Long & McQuade of an amplifier contrary to section 380(1)(b) of the Criminal Code;

(2) on or about the 13th day of October, 2010, at the City of Burlington in the Central West Region, he did by deceit, falsehood or other fraudulent means defraud Long & McQuade of a computer contrary to section 380(1)(b) of the Criminal Code.

[2] The charges were laid on April 27, 2011, just 14 days outside the limitation period for the Crown to elect to proceed by way of summary conviction. Accordingly, the Crown elected to proceed by Indictment. Pursuant to section 553 of the Criminal Code, these offences are within the absolute jurisdiction of a provincial court judge.

History of the Proceedings

[3] Mr. John first appeared in the set date court on June 1, 2011. The matter was put over to July 6, 2011 to set a trial date.

[4] On July 6, 2011 the trial date of March 30, 2012 was agreed upon with a trial estimate time of 1/2 day. Mr. John was warned to be prepared to proceed to trial on that date, with or without counsel. A JPT date was set for September 9, 2011.

[5] A Judicial Pre-Trial was held on September 9, 2011, with Mr. John representing himself. No motions, evidentiary hearings, Charter Applications or defences such as alibi were noted on the JPT form signed by the presiding judge. The trial date of March 30, 2012 was confirmed and Mr. John was warned again that he must be prepared to proceed on the trial date with or without counsel.

[6] Following a full day of trial on March 30th, 2012, there have been eight other appearances on this trial matter as noted above. Many of those days were marked peremptory on Mr. John to be prepared to continue and to complete this trial. There have been a number of requests for adjournment by Mr. John for various reasons. He discharged his counsel, Mr. Norm Bartels, during the course of the first day of trial. Another counsel appeared for limited motion purposes only, and on one occasion Mr. John failed to attend court altogether.

[7] During the course of this trial, Mr. John brought a number of applications including: several s. 11(b) Charter applications; numerous applications to adjourn the proceedings; an application to challenge the accuracy of a court reporter's transcript and have personal access to the court's DRD recording of the proceedings; a motion that I recuse myself from the case because of bias; motions for mistrials; an oral Charter application alleging infringement of s. 9 during the course of closing submissions with no notice to the Crown or the Court requesting that all the evidence before the Court be ruled inadmissible as there were no reasonable and probable grounds for his arrest.

[8] On the first day of trial, Mr. John testified that it was his brother that had committed these offences. He did not give any notice of this alibi/personation-type defence to the Crown in advance of his testimony. An adjournment was granted so the Crown could check out this defence. During the course of this long trial, the Crown called evidence that established that Mr. Darren John does not have a brother.

[9] On September 11, 2013, after hearing final submissions, which began on July 26, 2013, I registered two findings of guilt and ordered the preparation of a Pre-Sentence Report. I reserved the delivery of written reasons for the findings of guilt until December 11, 2013, which is also marked for a sentencing hearing.

(Attached as Appendix 'A' to this decision, is the dismissal of the final 11(b) Charter Application brought in this case on July 26, 2013.)

[10] At the outset of the trial, and again at the end of the trial, the sole issue in the case is identity.

Trial Proceedings on March 30, 2012

[11] Ms. Lorna Muller appeared for the Crown. Mr. Norm Bartels appeared for Mr. John until the lunch break, when he asked to be removed due to a breakdown in the solicitor-client relationship.

Facts Not in Dispute

[12] The victim of both frauds was the Long & McQuade music store located at 3180 Mainway Drive in Burlington.

October 6th, 2010 Fraud

[13] The item purchased this date was a Universal Audio Solo 610, serial 4541 amplifier that one plugs a microphone into. The item was purchased for $932.25 with a fraudulent cheque. The cheque bounced and Long & McQuade was out the money.

[14] During the purchase, a customer maintenance log was created based on information provided by the suspect. The suspect indicated his name was John Darren with an address of G[…] in St. Catharines, postal code […], with a phone number of [phone number 1].

[15] The Long & McQuade computer system logged this information and it sorted the name as Darren John, which is actually the accused's name. The name that had been given by the suspect was a reversal of the first and last name. (Transcript March 30, 2012 p. 9, 10)

[16] The suspect provided a driver's licence in the name of Darren John to identify himself with licence #[..]. Mr. John testified at trial that this is the number on his driver's licence.

[17] The suspect provided this identification to sales clerk, Mr. Jarrod Haddock.

[18] Video surveillance captures the suspect entering the store and 6:47 p.m. and exiting the store at 6:52 p.m., approximately five minutes later.

October 13th, 2010 Fraud

[19] The item purchased was a MacBook Pro 13.3 Apple, serial number MC374LL/A. The item was purchased with a fraudulent cheque in the amount of $1,404.48. There were no funds in the account and the cheque bounced.

[20] The same identification referred to above was provided to sales clerk Brian Hogue.

[21] Video surveillance shows the suspect entering the store at 6:22 p.m. and exiting the store at 6:28 p.m., approximately six minutes later.

[22] Both fraudulent cheques were written on account number 3318-1004-959. This is an account belonging to Darren Philip John in the company name of Exotic Car Customs and Sales. It was never a registered dealership, but Mr. John had a document showing that it had been a registered company at one time. This account was closed on October 31st, 2008. At the time of the frauds the company was no longer in existence and there were no funds in the account.

[23] The vehicle that was operated by the suspect on both occasions was a four-door silver BMW SUV.

[24] On March 5th, 2011, Mr. Jarrod Haddock attended the police station and was shown a photo line-up. Mr. Darren John's photo was in the line-up. It was a photo from 2007. Mr. Haddock did not pick out the accused's photo from the line-up. Mr. Haddock picked out another individual from the photo line-up.

[25] The still photographs from the Long & McQuade videos were marked as Exhibit #1. The DVD of the video surveillance was marked Exhibit #2.

Contents of Exhibit #2 – the video tapes and still photos

[26] The October 6, 2010 video shows the suspect leaving the store with the purchased item. He is a black skinned, tall, heavy set male wearing a black toque-like hat and clear glasses. He is wearing a coloured sweater, blue jeans and white running shoes.

[27] The October 13th, 2010 video shows the same suspect leaving the store with the purchased item. He is a black skinned, tall, heavy set male wearing a white toque-like hat and clear glasses. He is wearing a white sweat jacket over a white T-shirt and blue jeans.

[28] The Crown closed their case.

Summary of the Testimony of Darren Philip John

Examination in-Chief

[29] Mr. John testified that his address is 960 D[…] in M[…].

[30] In 2007 he registered a company called Exotic Car Customs and Sales under his name. The company had a bank account at the Bank of Montreal.

[31] By October of 2010 there was no money in the bank.

[32] Mr. John testified that it was not him that made the fraudulent transactions at the Long & McQuade store on October 6th and 13th 2010.

[33] Mr. John testified that it appears to be his brother, Lindon John, in the surveillance videos. His brother's birth date is […], 1979. (Transcript March 30/12 p. 21, 22) Mr. John spelled his brother's first name as "L-I-N-D-O-N".

[34] Mr. John testified that in October of 2010 his brother lived at the 960 D[…] address.

[35] Mr. John testified that his brother used to live at 960 D[…] up until three weeks ago (which would be as of early March 2012).

[36] Mr. John testified that his brother is about the same weight as he is, perhaps a bit heavier.

[37] Mr. John testified that he only wears glasses for driving.

[38] His brother wears glasses all the time.

[39] Mr. John testified that he has worn his hair in the dreadlocks fashion since he was a teenager.

[40] His brother shaves his head bald.

[41] Mr. John testified that he speaks with a bit of a lisp. His brother has no lisp.

[42] Mr. John testified that he does not know what his brother was doing in October of 2010.

[43] His brother may have taken his company cheques from the common area of the house because they lived together.

[44] Mr. John testified that the BMW SUV in the video was not his car. His brother drove a BMW X5 under his company name. "I bought it for him because it was cheaper on the insurance". (p. 24)

[45] Mr. John testified that he drove an Isuzu Rodeo SUV and he also had a BMW X5 at the time.

[46] Mr. John testified that the person who made the fraudulent purchases could not have produced his driver's licence to the sales clerk because he always has his driver's licence on his person. (p. 25)

[47] He brought two driver's licences to court today; the one from October 5th 2006 that had expired; the second that was renewed in 2011 and is his current licence. (p. 25, 27, 28)

[48] He has no idea how his brother produced the documents to the sales clerk.

[49] Mr. John testified that he has discussed this situation with his brother and he asked his brother to come to court but his brother refused. (p. 25)

[50] His brother knows he has come to court to testify today and his brother has encouraged him to do so. (p. 26, 27)

[51] His relationship with his brother is strained over the situation. He hasn't been getting along with his brother lately. His brother did not say why he left the house three weeks ago. "I assume he's coming back". (p. 26)

[52] Mr. John testified that he lives with his parents and they are very upset about the situation.

[53] Mr. John has never seen the merchandise taken from the Long & McQuade store.

Cross-Examination

[54] In cross-examination Mr. John repeated that the suspect in both the October 6th and 13th videos looks to be his brother.

[55] Up until three weeks ago his brother lived with him, his sister and their parents at the D[…] residence.

[56] At various times, Mr. John testified that he also lived at G[…] in St. Catharines with his girlfriend. (p. 31, 32)

[57] On October 6th and 13th 2010 he lived at 960 D[…]. (p. 31)

[58] Mr. John testified that the D[…] address has always been his permanent address. (p. 33)

[59] Mr. John testified that he only wears glasses for driving. He could not see the glasses being worn by the suspect in the video to say if they are similar or not. He did not bring his glasses today. His brother wears glasses all the time. (p. 33, 38) Mr. John testified that his brother could not have produced his driver's licence at the Long & McQuade store. The suspect gave the name John Darren to the sales clerk so it could not have been his licence. (p. 33)

[60] Mr. John has never confronted his brother about using his identification. (p. 34)

[61] Mr. John testified that the suspect in the video does not look like the picture on his driver's licence. (p. 36)

[62] Mr. John's expired licence was marked as Exhibit #3. A photocopy of his current licence was marked as Exhibit #4. (p. 36, 42)

[63] Mr. John testified that his brother was similar to his height of 6 feet at the time. His brother's body size and weight was also similar to his.

[64] His brother's date of birth is […], 1979. Mr. John's date of birth is […], 1977 making him two years older than his brother. (p. 37)

[65] Mr. John testified that he never stuffs his dreadlocks up inside caps as seen in the both videos. (p. 38)

[66] Mr. John testified that he had not thrown out the cheques for the 'Exotic Car Customs and Sales' company that was closed. They were on a desk in the living room area of the D.[…] address. After he was charged, he noticed that some cheques were missing from the back of the cheque book.

[67] Mr. John testified that the BMW vehicle captured in the video exhibit does not look like the BMW that his brother drives. "…because the vehicle that I have under my company name that is an X5. That looked like an X3. And without being able to see the licence plate in the video, you couldn't really tell anyways, or the back of the car to see the model." (p. 40)

[68] Mr. John was asked to look at the signature that appears on his expired licence (Exhibit #3); his current licence (photocopy of which was made Exhibit #4); cheque presented to Long & McQuade on Oct. 6th 2010 (Exhibit #5); cheque presented to Long & McQuade on Oct. 13th 2010. Mr. John was asked if all the signatures looked similar to him. Mr. John answered that they did not look similar and that it looks like somebody attempted to try to do his signature.

NOTE: Exhibit #3 – #[…], JOHN, DARREN, P – 960 D[…], M[…]; CLASS G2 ; COND. Corrective lenses; Date of Birth 1977[…]; Sex Male; HT 180; ISSUED 2006/10/05 ; EXPIRES 2011,01,03. (photograph – short-style deadlocks, no glasses)

Exhibit #4 (front of licence only) – JOHN, DARREN, P – 960 D[…][…]M[…],#[…]; Issued 2011/11/23 Expires 2015/11/01; Height 180 cm; SEX M; CLASS G ; Date of Birth 1977[…]. (photograph short-style dreadlocks, no glasses)

Exhibit #7 – MTO Photo capture date 2011/06/02 ; JOHN,DARREN,P; […] (photograph short-style dreadlocks no glasses) (signature)

Exhibit #11(b) – MTO photograph Issued 20100902 DL# […]; Last Name: JOHN,DARREN,P. (photograph no hair visible – black/greyish knit cap and no glasses) (signature)

(Note: This is the photograph that matches the video (bottom still photograph of Exhibit #1 – the hat is the same; and note the 4 different dates of these pictures for Darren Philip John's driver's licences.)

[69] Mr. John testified that fingerprints were done on the cheques and no fingerprints came back to him. The Crown clarified that no fingerprints could be lifted from the cheques.

Adjournment to Verify the Existence of Mr. John's Brother

[70] After Mr. John testified on the first day of trial, the Crown stated that they would attempt to verify the brother's existence over the lunch break as there had been no prior notice of this information to the Crown. (p. 47, 48)

[71] When the matter resumed after the lunch break, the Crown advised the court that Officer Syring had checked the MTO system and found that "there is no Lindon John with the date of birth of […], 1979 as a licenced driver in the province of Ontario now or ever, nothing is showing up under that name." (p. 4 of the afternoon transcript)

[72] The Crown submitted that Mr. John had in his testimony provided an alibi-type defence and the Crown requested an adjournment to do further checks to determine if Mr. John has a brother.

[73] Mr. Bartels, counsel for Mr. John on that day, opposed the adjournment stating that Mr. John wanted the trial to conclude that day. Mr. Bartels submitted that if the Crown uncovers something inappropriate in future checks into the existence of Mr. John's brother, the Crown could possibly deal with that by way of perjury charges. (p. 5) Mr. Bartels agreed that Mr. John's testimony did raise an alibi-type situation.

[74] I ruled that Mr. John's testimony had raised a clear personation and quasi-alibi defence. Mr. John had testified that it was not him that committed the frauds, it was a known person – his brother. I ruled that the Crown was entitled to a reasonable opportunity to check out the information provided to the Court by Mr. John.

[75] Mr. John was very unhappy with my ruling. Mr. Bartels asked to withdraw as counsel. Mr. John stated that Mr. Bartels was not following his instructions and the police were framing him. Mr. John stated that Officer Syring had spoken to his brother on the phone. Mr. John wanted Officer Syring to be put on the stand.

[76] Mr. Bartels' request to be removed as pro bono counsel of record was granted. (p. 12)

[77] Mr. John's request to have Officer Syring give evidence at this trial was granted. Mr. John wished to carry on with the trial representing himself. (p. 16,18,19)

Summary of the Testimony of Officer Adam Syring

[78] Officer Syring, with the HRPS, testified that he was not made aware that Mr. John had a brother until today. (p. 28)

[79] Officer Syring testified that it was on April 21st, 2011 that he had access to the Ministry of Transportation Ontario Motor Vehicle driver's licence photo I.D. which was previously not available to Halton officers.

[80] "At that time I was able to do a check on Darren Philip John, born 1977[…], at which time I was able to confirm the I.D. of that photo, matching that with the surveillance video which was provided to me by Long & McQuade, I was able to form reasonable grounds and satisfy myself that the identity of the…suspect would be Darren Philip John and at that time my grounds were formed." (p. 30)

[81] Officer Syring testified that he was 100 percent sure when he saw the MTO photograph that it was the accused before the court. (p. 30)

[82] Officer Syring testified that the photograph of the accused before the court as used in the photo line-up conducted with the sales clerk on March 5, 2011 was taken four years prior to the offence date. He wanted to find a more recent picture of the accused before he arrested him for these offences. (p. 31) (note: line-up conducted by Officer St. Denis in Syring's presence)

[83] The MTO photograph that officer Syring said he viewed was entered as Exhibit #7. (p. 40)

[84] The photo line-up that was used in this case was marked as Exhibit #8.

[85] Officer Syring testified that over the lunch break he had checked the information provided today about Mr. John having a brother with the MTO and there were negative results.

[86] He also checked CIPC with negative results.

[87] He conducted a second MTO check of any male with a last name of John registered to the 960 D[…] address and that came back with Darren John and a Philip John.

[88] A local police check was conducted with negative results.

Grounds for Arrest

[89] Officer Syring testified that the police had information that Mr. John's vehicle was used at the time of the offence. This was information provided by the Long & McQuade staff. (p. 63)

[90] "It (the plate number) was presented to me when I first arrived at the store, a description of the male along with the licence plate." (p. 64) This information came from Andrew Smith, the store manager, on October 19th, 2010.

[91] Officer Syring testified that he noted the licence plate as […], a silver BMW in his notebook. (p. 66)

[92] A vehicle registration check confirmed that Mr. Darren John was the registered owner.

[93] Officer Syring agreed that the video Exhibit does not show the licence plate or model of the silver four-door BMW vehicle leaving the scene. (p. 69)

Selection of Continuation Date

[94] At the end of the court day on March 30, 2012, trial continuation dates of May 30th and alternatively June 20th were offered. Officer Syring was still being cross-examined. Mr. John stated that he was not available on either of those days as he had Small Claims Court matters on both days in the Brampton Courthouse. (p. 80) An earlier date of April 16th was offered, but Mr. John was not prepared to waive the time period for serving any CEA notices with respect to the existence of his brother, so that day was not suitable.

[95] August 15th, 2012 was offered. Despite not being available on two earlier dates for the trial continuation, Mr. John was complaining about his 11(b) Charter rights being infringed. The matter was adjourned to August 15th, 2012.

Trial Proceedings on August 15th, 2012

[96] Ms. Muller appeared for the Crown. Mr. John appeared requesting an adjournment.

[97] On August 14, 2012, Mr. John filed a s. 11(b) Charter Application with the court. The material filed consisted of Form 1 with no transcripts attached.

[98] Mr. John had not complied with the rules respecting proper service on the Crown and the Court, and he had no transcripts in support of his Application. Mr. John requested an adjournment to properly bring his Application before the Court and to retain counsel, Mr. Alexanian, to assist him. Mr. John stated that Mr. Alexanian was not available to assist him in court today.

[99] The matter was adjourned to January 31, 2013.

Trial Proceedings on January 31st, 2013

[100] On January 31st, 2013 Ms. L. Muller appeared for the Crown and Mr. S. Alexanian attempted to appear as counsel for Mr. John for purposes of the s. 11(b) Application only.

[101] Mr. John was not present and Mr. Alexanian did not have a designation to file to speak to the matter on his behalf. Mr. Alexanian stated that he is a civil lawyer and is unaware of the requirements of the Criminal Code.

[102] Mr. Alexanian was given an opportunity to contact Mr. John and have him attend court so that matter could be dealt with. Mr. Alexanian was unable to contact Mr. John.

[103] Ms. Muller for the Crown had a witness in attendance to give viva voce evidence on the s. 11(b) Application. The witness, Josie Eusepio, had also filed an affidavit saying that Mr. John was not in the Small Claims Court in Brampton on either May 30th and June 20th, 2012 dates. Mr. Alexanian was not content for the Crown to rely on her affidavit evidence and he wanted to cross-examine the witness on instructions from Mr. John. (p. 10)

[104] The matter was adjourned to February 28th, 2013 with a warrant to hold for Mr. John's attendance. Mr. Alexanian was told to have Mr. John attend in person for the trial continuation.

[105] The witness Josie Eusepio was bound over to that day to attend and give evidence.

[106] Before the matter was adjourned, Mr. Alexanian indicated that Mr. John was alleging that the transcript of the March 30th, 2012 proceedings was inaccurate. Mr. Alexanian was advised of the procedure to follow to have Courts Administration confirm the accuracy of the transcript.

Trial Proceedings on February 28, 2013

[107] Mr. H. Apel appeared for the Crown.

[108] The witness from the Brampton Small Claims Court was present again.

[109] Mr. S. Alexanian appeared with a designation for today's date only. Mr. John did not appear.

[110] Mr. Alexanian advised the Court as follows: "I've sent three messages to him. He's aware of today, and I also conveyed to him that you expected him to be present today." (p. 1)

[111] Mr. Alexanian asked that the matter be stood down to reach Mr. John. The request was granted. Mr. Alexanian could not contact Mr. John.

[112] At 10:30 a.m., the Crown asked for a bench warrant with respect to the non-attendance of Mr. John. The warrant was ordered.

Proceedings on March 14, 2013

[113] Mr. John had been released on his own recognizance from bail court on March 6, 2013 and was put over to March 14, 2013 before me in a Duty Court to arrange for his trial continuation.

[114] Mr. John's trial continuation was put over to March 21, 2013 and it was marked pre-emptory on him to proceed with or without counsel.

Proceedings on March 21st, 2013

[115] On March 21st, 2013, Mr. Apel appeared for the Crown. An agent, named Anton Serikov, appeared for Mr. Alexanian, who was only acting with respect to the s. 11(b) Application.

[116] Mr. Alexanian's letter was requesting that the matter be adjourned so that a third lawyer could be retained. Mr. Alexanian's letter was marked as an exhibit on the adjournment application. The Crown opposed the adjournment.

[117] The motion to adjourn the trial once again was denied.

[118] Mr. John persisted in his request to adjourn the trial. The second adjournment request made on this date was because he was not prepared to proceed to represent himself.

[119] Mr. John made complaints about Crown counsel. (p. 3)

[120] Mr. John made complains about his former counsel. (p. 4, 6, 13, 14)

[121] The adjournment request was denied. The s. 11(b) Application was dismissed as it had no merit. I found that Mr. John had caused all the trial delays in the matter. The only reason he wanted the earlier dates in April of 2012 was because he did not want the police to check out his alibi-type defence.

[122] Mr. John complained that he cannot represent himself because he has ADD and PTSD and he has been shot in the leg in a home invasion.

[123] Mr. John again complained about trial delay.

[124] Mr. John asked that I recuse myself from the trial because I was biased against him. The application was dismissed.

[125] The trial evidence resumed.

Continuation of the Testimony of Officer Adam Syring

[126] Officer Syring testified that that he did not investigate the person that the Long & McQuade sales clerk, Mr. Jarred Haddock, had pointed out in the photo line-up. The Officer testified that he had no name for that person and no other information to connect that person to these frauds.

[127] Officer Syring repeated that the photograph from the MTO that he viewed on April 21st, 2011 was the one marked at this trial as Exhibit #7.

[128] Mr. John pointed out that the photograph Exhibit states that it was captured on June 2, 2011, so this could not have been what the officer viewed on April 21st, 2011. (note: Officer Syring explains at p. 46 of his evidence, that it was the Crown, through a disclosure request made by the defence, that resulted in the MTO photograph marked as Exhibit #7 being produced. The request to the MTO was made in August of 2011. Officer Syring did not have the capacity to copy the MTO photograph he viewed on April 21, 2011). Officer Syring believed that the MTO photo he observed prior to arresting Mr. John was the photo he later obtained from them in August of 2011.

(Later in the evidence, the MTO driver's licence photograph issued September 2nd, 2010 was filed as Exhibit 11(b). I conclude that this is the photograph that Officer Syring viewed. This licence photo was taken approximately one month before the offences were committed. Officer Syring compared that photograph to the videos. In this MTO photograph, Mr. Darren John is wearing an almost identical hat to the hat he is wearing as seen in the bottom photograph of Exhibit #1)

[129] Officer Syring testified that in MTO photographs you are not allowed to wear hats. He was satisfied that the MTO photograph he viewed on April 21st, 2011 was the male as seen in the Long & McQuade videos. (p. 48)

[130] Officer Syring went back over his grounds for arresting Mr. John.

[131] Officer Syring repeated that he had been given the licence plate of the BMW that left the scene by the manager at Long & McQuade. (p. 42,43) (note: Mr. John was advised by me that this hearsay information only goes to the Officer's RPG to make the arrest).

[132] When Officer Syring had finally completed his testimony (given over the course of 2 days, and split up from March 30, 2012 to March 21st, 2013), Mr. John indicated that he had more defence evidence to call but he did not have any witnesses here today.

[133] The Crown had two civilian witnesses who had been waiting for two days to give reply evidence in this case. I permitted the Crown to call their witnesses out of order given how this matter had proceeded to date.

[134] Mr. John asked that the evidence be heard in-camera because he did not want any private information of his to be revealed. That motion was denied.

Summary of the Testimony of Barbara Iwaskiw

[135] Ms. Iwaskiw testified that she has lived at 956 D[…] in M[…] for 28 years. She was the first owner of that house since it has been built.

[136] She knows the accused as her neighbour who lives right next door to her.

[137] The accused, his mother, father and sister (named Laura) moved into their home 28 years ago.

[138] She has not seen the father living there for a long time, maybe 8 years.

[139] She has never seen a younger brother at that home.

[140] She has only seen his mother living with him there now.

[141] She has seen three or four cars parked in the driveway. (p. 90)

Summary of the Testimony of Jackson Chan

[142] Mr. Chan testified that he has lived at 968 D[…] in M[…] for over 30 years. He moved in February 1982.

[143] He knows the accused before the court by his first name, Darren.

[144] The accused's family moved in three houses down from 968 D[…].

[145] When he saw the accused's family first move in, it was a family of four: father, mother, daughter and son.

[146] He has not seen the father at the house for over 10 years. He believes the daughter moved out because of a job or something. He used to talk to the daughter when she worked in the grocery store.

[147] He has not seen a younger brother at the house.

[148] Mr. Chan testified that he has seen lots of different cars on the 960 D[…] driveway – Cadillac, Volvo, SUV, and a car parked there now with no licence plate.

[149] At the end of the court day, Mr. John stated that he had more witnesses to call in his defence and he has more questions for Officer Syring.

[150] May 24th was offered as a continuation date, but Mr. John stated he has other matters in Brampton court which he is a witness on. The Crown offered to make arrangements so that he could continue with this trial on May 24th. Mr. John wanted the adjournment to be for a later date so he could prepare his case.

[151] The matter was adjourned to July 26, 2013.

[152] Mr. John again disputed the accuracy of the March 30, 2012 transcript. He did not accept the letter sent to him from Courts Administration stating that the recording was checked and it is accurate.

[153] Mr. John was warned again to be prepared for the trial continuation to proceed with or without counsel.

Trial Proceedings on July 26, 2013

[154] Mr. Apel appeared for the Crown. Mr. John represented himself.

Summary of the Testimony of Vincenzo Racanelli

[155] Mr. Racanelli is with the Ministry of Transportation in the Office of Information and Data Retrieval.

[156] Mr. Racanelli produced two photographs for Mr. John's driver's licence.

[157] One photograph was taken on September 2nd, 2010. This photograph was marked as Exhibit #11(b) at this trial.

[158] Another photograph was taken on June 2nd, 2011. That photograph was marked as Exhibit # 10(b) at this trial. This is the same photograph as appears in trial Exhibit #7.

[159] Mr. Racanelli produced a letter written by Pat Roberts of his office that states: "On August 3rd, 2011, Constable Adam Syring of the Halton Regional Police requested a copy of a digital photograph of Darren John, driver's licence number […]". This letter was marked as Exhibit #10(a) at this trial.

[160] As a result, the photograph taken on June 2nd, 2011 was provided.

[161] Mr. Racanelli explained that the police do not have the capacity to copy an MTO licence photograph that they see on the computer screen. It has to be ordered from the MTO. (p. 9)

[162] Exhibit 11(a) was entered. It is a letter from the MTO confirming that on September 2nd, 2010, the attached photo was taken and that photo remained valid on the above-mentioned driver's licence until a subsequent photo was taken on June 2nd, 2011.

[163] On April 21, 2011 (when Officer Syring viewed the MTO computer screen), the September 2nd, 2010 photograph would have appeared on the screen.

[164] Mr. Racanelli testified that the September 2nd, 2010 photograph shows a male wearing a hat with no hair visible. (p. 12)

[165] Mr. Racanelli testified that he has no record of Mr. John's licence being stolen. (p. 13, 14)

[166] Mr. Racanelli testified that driver licence photographs do not permit the wearing of hats except for religious or medical reasons. MTO's rules and procedures for taking these pictures were filed as trial Exhibit #12.

[167] Mr. Racanelli testified that in Exhibit 11(b) a toque is being worn. He has no information as to why the hat was permitted for this licence photograph.

[168] In cross-examination, Mr. Racanelli testified that when Mr. John made arrangement for him to come and testify in court today, Mr. John did not request that he bring any MTO information about a Lindon John.

[169] The evidence in this trial came to an end. (p. 21)

Accuracy of the March 30, 2012 Transcript

[170] The DRD was played in open court and found to be accurate. (p. 22, 23, 24)

Another Application on s. 11(b)

[171] Further oral submissions were heard on this s. 11(b). (p. 24 through to 39)

[172] The application was dismissed. (Appendix A) (p. 39, 40, 41)

Closing Submissions

[173] The Crown made submissions that they have proven this case beyond a reasonable doubt. (p. 41 to 45)

[174] Mr. John started his submissions (p. 45 to 73) wherein he alleged s. 9 Charter violation with no notice to the Crown or the Court.

[175] The matter was put over to continue the submissions. August dates were offered, but Mr. John was not available.

[176] The matter was adjourned to September 11, 2013. (p. 74)

Trial Proceedings on September 11, 2013

[177] Mr. Apel appeared for the Crown. Mr. John represented himself.

[178] Mr. John repeated his submission that the Officer could not have viewed Exhibit #7 to form the grounds for his arrest as that photograph was taken after the officer viewed it on April 21st, 2011. Mr. John repeated his position that the Officer has lied to the Court and that all the evidence should be thrown out.

[179] Mr. Apel submitted that when the photograph was requested by the MTO in this case, they sent the photograph captured in June of 2011. MTO was not asked to send the photograph that would have existed in their data at the time of the offence. That would be the September 2010 photograph, which shows the black toque hat.

[180] The Crown is not relying on Officer's Syring's identification of Exhibit #7 as being the photograph he viewed before making the arrest.

[181] Considering the evidence reviewed above as it relates to Officer's Syring's grounds for arrest, I dismissed the s. 9 Charter Application.

[182] Mr. John submitted that the Officer should have investigated the person picked out in the photo line-up. Mr. John stated that this person must have his driver's licence. (p. 11)

[183] Mr. John requested that the matter be adjourned so that he could recall Officer Syring to the stand for a third time. That request was denied. (p. 12)

[184] Mr. John submitted that there is no other evidence but the surveillance tapes that connects him to these offences, and based on the Nikolovski (1996), 111 C.C.C. (3d) 403 case, I cannot use that evidence standing alone to find him guilty.

Findings of Fact

[185] I find as a fact that Darren John has lied to the Court about having a brother named Lindon John. No records confirm the existence of such a person. Two independent neighbours have observed the John family for 28 to 30 years, and they have never seen this person. There is a sister named Laura who has moved out, a father, named Philip, who moved out 8 to 10 years ago and there is a mother, Rose, who it appears lives in the house alone with Darren John who apparently has a number of different cars parked in the driveway.

[186] Mr. John went to great lengths in his evidence to pin these frauds on his fictional brother. This included his testimony that the BMW SUV seen on the video appeared to be his brother's BMW X5, a car Mr. John claims he bought for his brother because it was cheaper on the insurance. In cross-examination he stated that the car did not appear to be his brother's. I find as a fact that Mr. John had trouble keeping the lies about his brother straight.

[187] It is a very serious matter to lie to the Court by claiming a false alibi-type offence. It takes on a whole new degree of seriousness when that lie includes fabricating the existence of another person.

[188] I am entitled to use this deceit in assessing all the rest of Mr. John's evidence. And I do reject his evidence where it differs from the other witnesses in this case.

Evidence Connecting Mr. John to the Offences

(1) Information provided by the suspect to support his identity to Long & McQuade staff

[189] For both frauds, the same identification information was provided to the two store clerks.

[190] The suspect gave an address of G[…] in St. Catharines. Mr. John has testified that he was bouncing back and forth from that address and the address on his licence which was 960 D[…] in M[…] at the time of these offences.

[191] The suspect produced a driver's licence in the name of Darren John which has the accused's driver's licence number on it.

(2) Cheques used to commit the Frauds were in the accused's exclusive possession

[192] Having found as a fact that Mr. Darren John does not have a brother, I find as a fact that the cheques he used in committing these frauds were in Mr. John's exclusive possession. The cheques were both drawn on an empty BMO account in the name of a company formerly registered to Mr. John called 'Exotic Car Customs and Sales'.

(3) Signatures on the Cheques appear to match all signatures on the Driver's Licences filed at trial

[193] The signatures on Exhibits #5 and #6 (cheques) appear to match the signatures on Exhibits # 3, #4, #7 and #11(b) – all the driver's licence photograph signatures. All contain the same initials-only type scribbled signature.

(4) The video tape images, still photos (Exhibits #1 and #2) match Exhibit #11(b) – Mr. John's driver's licence picture

[194] Exhibit #11(b) was the licence photograph taken the month before these frauds were committed. It can clearly be seen that the person wearing the hat in the video is the same person on the driver's licence photo belonging to the accused before the court.

[195] I find as a fact that Darren John has frequently changed his driver's licence photographs in a deliberate attempt to obscure his physical identity. Between October 5th, 2006 through to November 23rd, 2011 (a five-year period), Mr. John has had four different photographs taken by the MTO.

[196] I find as a fact that Mr. John could stuff his hair up into the toque-like hats to make it appear that he has no hair. I find as a fact that Mr. John could wear glasses at times and not at other times to further disguise his physical identity.

[197] The body size, height and facial features of the person committing the frauds as seen on the video is the same as the body size, height and facial features of Darren Philip John before the Court. Officer Syring gave extensive evidence on the similarities between Mr. John's appearance on video and comparing that to all the driver's licence photographs in evidence, with the exception of Exhibit #11(b) which was not introduced into the evidence until July 26, 2013, which was after Officer Syring had completed his second day of testimony.

[198] Having considered all the evidence presented at this trial in its entirety, and having applied the three-pronged test set out in R. v. W.D., I am satisfied beyond a reasonable doubt of Mr. John's guilt.

[199] The original frailties in the Crown's case, which consisted of Mr. John not being identified in the photo line-up and Officer Syring honestly but mistakenly thinking that the photo he viewed in April of 2011 was Exhibit #7, has been overcome by the remainder of the reliable and credible evidence which establishes identity in this case. (reference R. v. Hay, 2013 SCC 61)

[200] For these reasons findings of guilt were registered on September 11, 2013.

Sufficiency of Reasons for Judgment

[201] During the course of this trial, all of the witnesses' evidence, Exhibits filed, and submissions made, have been carefully reviewed and assessed. It is not necessary or reasonable for me to review all of the evidence in any more detail than I have in these focused reasons for judgment. It must be understood that busy trial court Judges must deliver both oral and written reasons in hundreds of trial matters every year and we are required to do so in a timely fashion. Judgment writing time is not factored into trial time estimates. The OCJ Judges do not get judgment writing weeks like the SCJ Judges. In Halton, the fastest growing Region in Canada, judgment time is being eroded by the increasing trial case load and the pile up of long, split-up trial continuations.

[202] This Court is aware of appellant authority governing the sufficiency of reasons by trial Courts and has been guided accordingly. See R. v. Vuradin 2013 SCC 38; R. v. S. (T.), [2012] ONCA 289; R. v. H. (J.M.), 2011 SCC 45; R. v. Drabinsky, [2011] 107 O.R. (3d) 595 (OCA); Decision-makers under new scrutiny: sufficiency of reasons and timely decision-making, David Stratas, Administrative Law Roundtable (C.I.A.J.) May 2010; R. v. Dinardo, 2008 SCC 24; R. v. R.E.M., 2008 SCC 51; R. v. Walker, 2008 SCC 34; R. v. Gagnon, 2006 SCC 17; R. v. Braich, 2002 SCC 27; R. v. Sheppard, 2002 SCC 26.

Released: December 11, 2013

Signed: "Justice L.M. BALDWIN"