Court File and Parties

Court File No.: Central West Region 13-1481 Ontario Court of Justice

Between: Her Majesty the Queen — and — Sean Granger

Before: Justice Alan D. Cooper

Heard on: January 14, February 6, & May 13, 2014

Reasons for Judgment released on: June 4, 2014

Counsel:

• John W. M. Dibski and Monica A. MacKenzie for the Crown
• Fiona Wotherspoon for the accused Sean Granger

Cooper J.:

Case History

[1] Sean Granger is charged with breaking and entering a dwelling house at 621 North Shore Boulevard in Burlington, on May 16, 2013, with intent to commit an indictable offence.

[2] A house at that address was under construction. The property is situate on the north side of North Shore Boulevard just east of King Road. Jacek Podsiadly was sleeping in a bedroom on the top floor, and his mother was in another bedroom on the same floor. Jacek's father was sleeping in a trailer at the front of the property. Jacek is in his third year of university and is studying marine biology.

[3] Just after 2:30am, Jacek woke up and heard a slight noise and saw a man walking into his bedroom. He asked the man who he was, but there was no response. The man ran and was pursued to the main level of the house, at which time he lunged at Jacek and said "I'm here for you, I'm here to attack you." In his statement to the police, Jacek said those words were spoken with a "thick, deep accent."

[4] Jacek decided not to continue the chase, and the man ran off somewhere in the house. Jacek went out to get his father from the trailer, which was ten to twelve feet from the front door. While at the front of the house, Jacek heard a beep, beep sound, as if someone was electronically opening a car door. He noticed a car parked near a street light in their driveway, parallel to the road, and facing northbound toward King Road. Then the same intruder walked from one side of the house and managed to get in his car and drive off. Jacek went after him and got about a foot away from the car as it was driving off. It was a small, dark blue or black vehicle, and the licence plate number was BHBN172. Jacek described himself as having a "near-photographic memory."

[5] The car went straight north on King Road. The police were called and Jacek gave a description of the car and the plate number. In the garage, several boxes were stacked up. Some had tools in them. The rear garage doors were open and outside the house were more stacked boxes, some with tools and linens from the garage. Later, the family discovered that five or six power tools were missing.

[6] Jacek described the man as being Caucasian, with short hair and a slim build. He was approximately five feet and ten inches tall, and wearing dark clothing. He gave a description to the police shortly after the event in question, and identified Mr. Granger in court, as the male intruder.

[7] Under cross-examination, Jacek was asked to describe what type of accent the man was using, but could not say for certain what it was. Defence counsel had Mr. Granger speak the words used by the intruder inside the house, and Jacek agreed he had no accent. Jacek could not tell the colour of the man's eyes, but thought he had some type of facial hair. The hair on his head was short, or the man was balding. He had never seen this male before.

[8] Constable Jeff Sawatzky of the Halton Regional Police Service arrived at the house at 2:19am. He said that the house faced the lake and that North Shore Boulevard curves into and becomes King Road. He received a description of the man from Jacek, which was as follows: an older white male with an accent, with a beard or facial hair, five feet ten or eleven inches tall, with little hair on his head, and wearing dark clothing. The plate number given by Jacek was checked out and was for a 2000, black, four door, BMW vehicle. It was registered to the defendant at the address of 37 Cedar Avenue in Hamilton.

[9] Officer Sawatzky called the Hamilton police and an officer was sent to that address, and it was reported that the car in question was in the driveway of 37 Cedar Avenue, and that a male was in the driver's seat. At 3:07am, officer Sawatzky and his partner went to the Cedar Avenue address. The car was in the driveway and the hood was warm. Inside the vehicle, a drill and other tools could be observed.

[10] He went to the front door and spoke to Mr. Granger. He was wearing a dark jacket, with some facial hair, and thinning hair on his head. He was slim and was white and about five feet and eight inches in height. He said he had been visiting his girlfriend at 705 Surrey Lane in Burlington, and had left her between 12:30am and 1am, and just got home. At 3:40am, the officer formed his grounds to arrest the defendant for the breaking and entering charge, and after effecting the arrest, drove him to the police station in Burlington.

[11] When cross-examined, officer Sawatzky said Mr. Granger had a dark jacket and dark pants on, and had brackish hair in his chin area; it was not a full beard. He spoke without any accent. When speaking to the defendant at the front door of his home, he told the officer that he had been working on his car on King Road in Burlington, under a street light, and had been in a back yard at some point. This was before or after he had been visiting his girlfriend. A flashlight was found in his rear pocket after his arrest. The officer agreed that there had been no lineup conducted.

[12] The Crown filed as an exhibit, the willsay statement of the Hamilton police officer who had gone to Mr. Granger's residence at the request of the Halton police. This statement of Constable Christine Russo stated the following:

"On May 16th, 2013, at 2:35am, I was dispatched to assist Halton Police Service conduct a residence check. I was requested to check 37 Cedar Avenue, in the City of Hamilton for a 2000 black BMW with Ontario marker BHB M 172. [emphasis added] Upon arrival I observed the vehicle in the driveway with a male sitting in the driver seat with the vehicle door opened. I observed the vehicle dome light to be on. The male appeared to be baldish. I then called Halton Police to report my findings. I did not remain in the area. Although I did not note it, I arrived at approximately 2:45am, as I was attending from the area of Gage and Lawrence."

[13] Since the plate number given by Jacek Podsiadly and officer Sawatzky, namely BHBN172, led to the defendant's car and home, and since he told the police he had been in the area of the Podsiadly home, on the morning of May 16, 2013, it is obvious that the willsay of Officer Russo is incorrect in its recitation of the plate number. On May 13, 2014, the defence agreed that the willsay statement incorrectly described the plate number, and that the correct number is BHBN172.

[14] The defence called no evidence and submitted that Jacek Podsiadly made a mistake in saying Mr. Granger was the man who was in his bedroom and who ran to the car and drove off. It was argued that he must be in error because the defendant has no accent. Counsel pointed out the weakness of a dock identification and reminded the court of the inherent frailties of identification evidence. It was pointed out that Jacek could be honest but mistaken.

The Law

[15] The onus is on the Crown to prove the guilt of the defendant beyond a reasonable doubt.

[16] Common law has long recognized the dangers inherent in identification evidence.

In R. v. Miaponoose, [1996] O.J. No. 3216, the Court of Appeal dealt with an appeal against a conviction for sexual assault based on eyewitness identification. At paragraph 9 of the judgment, Charron J.A. states the following:

"The inherent frailties of identification evidence are well known to the law and have been the subject of frequent judicial consideration and comment. We must, however, never regard these principles as trite. They are fundamental. They merit repeating. One of the many useful writings on this subject can be found in the Law Reform Commission of Canada Study Paper (1983) on "Pretrial Eyewitness Identification Procedures." The Commission concludes in its study that "the need for comprehensive police guidelines is particularly acute in the area of pretrial eyewitness identification procedures, because eyewitness testimony is inherently unreliable" (at p. 7)."

[17] In R. v. Quercia (1990), 60 C.C.C. (3d) 380 at 383 (O.C.A.), Doherty J.A. made the following observation:

"The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law."

Analysis and Findings

[18] There is no issue that entering onto a person's home without lawful justification or excuse is deemed to be breaking and entering. See section 350 of the Criminal Code.

[19] The defendant's car was definitely outside the Podsiadly home on the morning in question. It was traced to his residence and he was the registered owner. He told the police he had been in a back yard at some point during the time he was fixing his car. It is reasonable to think he was the man who came from the side of the house and got into his car and drove off.

[20] Could he have been the burglar who had been inside the Podsiadly home? But for the thick, deep accent, the description Jacek Podsiadly gave to the police on the morning in question, matches very closely the appearance of Mr. Granger when he appeared before the court.

[21] The dock identification in this case is not what the court is relying upon in this case, and little, if any, weight can be placed on such evidence.

[22] Jacek Podsiadly impressed me as a truthful witness with keen powers of observation, and as someone who has excellent recollection. I accept his evidence and am satisfied beyond a reasonable doubt that he is accurate in his description of Mr. Granger as the man who was inside his home and who ran to Mr. Granger's car. As to the accent, I am of the opinion that Jacek did hear this accent, but that Mr. Granger was most likely modulating his voice to disguise his true one.

[23] It is also worth noting that a drill and other power tools were seen inside the defendant's car outside his home. They were apparently not seized as evidence, but Jacek Podsiadly testified that five or six power tools were missing after Mr. Granger's visit.

[24] The evidence presented by the Crown is accepted by this court as establishing the guilt of the defendant beyond a reasonable doubt.

Conclusion

[25] The defendant Sean Granger is found guilty as charged.

Released June 4, 2014

Signed: "Justice Alan D. Cooper"