Court File and Parties

Ontario Court of Justice

Date: October 14, 2016

Court File No.: Central West Region - Information # 15-8373

Between:

Her Majesty the Queen

— and —

Ali Ghorbani

Before: Justice Anthony F. Leitch

Heard on: October 11, 2016

Reasons for Judgment released on: October 14, 2016

Counsel:

• Gordon Akilie, Counsel for the Crown
• Beth Bromberg, Counsel for the defendant Ali Ghorbani

Reasons for Judgment

Leitch J.:

[1] Ali Ghorbani stands charged with Theft under $5000 and Possession of Property Obtained by Crime concerning items taken from Gerson Fajardo and Chris Nolan.

[2] Mr. Fajardo had sunglasses and a global positioning device stolen from his motor vehicle in the parking garage at 175 Hunter Street West of a total value of $400.

[3] Mr. Nolan had prescription sunglasses, an iPad touch, a Tim Hortons card and an undetermined amount of change taken from his motor vehicle in the parking garage of the same building. Both are residents there and left their vehicles parked in their reserved parking spots of the underground garage in the early evening hours of October 23, 2015.

[4] The only evidence of who perpetrated the crime is a surveillance video showing various portions of the building at 175 Hunter Street West which has been entered as Exhibit 1 on the trial. I accept from the evidence that the time stamps are correct and that it depicts the surveillance captured in the garage area and other portions of the building in the relevant time period, in spite of some deficiencies in the evidence of Officer McSween about its seizure and the steps he took to verify its accuracy and the accuracy of those time stamps.

[5] I am satisfied beyond a reasonable doubt, based on the contents of Exhibit 1, that the perpetrator of the thefts is a person wearing a Montréal Canadians Jersey with the name "Price" on the back. I can discern from the video and from the evidence of both officers called by the Crown that this person also had a grey baseball cap on and was carrying a white plastic bag.

[6] The perpetrator entered the building at about 12:25 AM on October 24, 2015, by following in a person, likely a resident, who used a fob to gain entry through the lobby door, a security door that could only be opened by using a fob or by making contact with resident who could permit access. I am satisfied beyond a reasonable doubt that this person entered both vehicles between 12:39 am and 12:59 AM and stole the items described by Mr. Fajardo and Mr. Nolan. I accept their evidence of what was taken from their vehicles and its value. The video shows the male person in the Montréal Canadians Jersey get inside the GMC terrain motor vehicle owned by Mr. Fajardo and I accept this is when the theft was perpetrated with respect to his property.

[7] The video shows the person in the Montréal Canadians Jersey trying several vehicles in the parking garage, likely looking for open doors for the purpose of stealing items of value from those vehicles. Although there is no video of the actual theft from Mr. Nolan's vehicle I find that circumstantially the theft was perpetrated on his property, from his vehicle, a Kia forte, in that same time period by the male in the Montreal Canadians jersey.

[8] In short, all of the elements that must be proven beyond a reasonable doubt by the Crown to make out these offences have been established, except for the element of identity.

Identification Evidence

[9] In this case the only evidence of identification comes from the surveillance video. There are two ways I can assess the video to determine whether the Crown has proved this element of the offences beyond a reasonable doubt: (1) my own observations of the accused in the prisoner's box compared to the images on the surveillance video of the perpetrator dressed in the Montréal Canadians Jersey, and (2) the evidence of a positive identification made by constable Kudo Park of 3 still images captured from that surveillance video by Constable Michael McSween which are contained in Exhibit 2 on the trial, an email dated October 27, 2015.

[10] To be clear Constable Park's evidence is that he was never sent the e-mail which has been entered as Exhibit 2, but rather viewed the same images on a computer screen in an e-mail broadcast on a crime fighting folder. The images as they would have appeared on the computer screen that he viewed were not entered as evidence before me. As a result I only have the images on a paper copy of the e-mail to assess the clarity of the images he viewed to make the identification. I cannot assess if he viewed images that were clearer than those put before me so I restrict myself to evaluating the identification issue on the basis of the photographs in Exhibit 2.

[11] After a voir dire to determine the admissibility of his identification, as directed in Regina v. Behre (2012) O.J. #5029 at para. 12, I held that the Crown had satisfied the threshold issue namely, that his past 2 or 3 interactions with the accused left him in a better position than me to identify the perpetrator. The evidence on that voir dire then applied to the trial on consent, and was only admissible to support the identification made from the surveillance and for no bad character purpose. Although the threshold issue was satisfied, the ultimate reliability of Officer Park's identification was left to be determined as part of all the trial evidence on identification.

[12] Although I found that the threshold test was satisfied, allowing me to receive the evidence of Officer Park's identification, I find that his prior interactions with the accused fall closer to the description in Regina v. Behre, supra at para. 22 of a witness that has, "little acquaintanceship with the accused". As the Court points out in that case the recognition evidence will be of little value unless the witness can explain its basis in some considerable detail. He is a long way from the other end of the spectrum described in the case of a, "person long and closely familiar with the accused" where an inability to describe particular features or idiosyncrasies may not affect the reliability of the recognition evidence.

[13] I first approach the identification evidence by asking myself whether the surveillance video is of sufficient clarity and quality to allow me to identify the accused as the person in the tape beyond a reasonable doubt. I took many opportunities during the trial to make close observation of the accused to prepare myself to review the surveillance video in chambers for this exercise. I have watched the surveillance video, particularly the video captured on camera 1 in the lobby area both on the perpetrator's entry to the building and his exit from the building to determine if I could be so satisfied. The surveillance video satisfies me that the offences were committed by the man in the Montréal Canadians Jersey but is not of sufficient clarity and quality to be able to say beyond a reasonable doubt that the defendant is the person in the videotape. The video has no sound and gives no clear images of the face of the perpetrator such that I could be satisfied on the criminal standard. I find that the video is not of sufficient clarity and quality that it would be reasonable for me to identify the accused as the person in the tape beyond a reasonable doubt, the test set out in Regina v. Nikolovski (1996), SCJ 122 at para 23. The best I can say is the man in the Canadians jersey is somewhat similar in appearance to the accused.

[14] I next evaluated the evidence of Constable Kudo Park and his identification from the 3 still images drawn from the surveillance video. I have studied those closely and find that they are of even worse clarity and quality than the video itself. I accept that Officer Park was in a better position than me to make the identification but find that the ultimate reliability of his identification cannot satisfy me beyond a reasonable doubt that his identification is correct. I believe he honestly made the identification, but the frailties of this kind of identification evidence are well known. Even independent, honest and well-meaning eyewitnesses can be mistaken and in my view he fits this category.

[15] Officer Park arrested the accused on October 31, 2014 almost a year before the thefts under consideration in this trial. He was with the accused for approximately a half hour. Some of the time they were in the cruiser together in close proximity such that he could see his face well. He may have seen him one other time before October 22, 2015 but he cannot provide any details of the circumstances and in my view that interaction, if it happened, is of no assistance. His last interaction with the accused was on October 22, 2015 when he saw him for approximately 10 seconds and made eye contact for some portion of that while the accused was leaving the Central Police Station, after being released on a promise to appear on another charge.

[16] He bases his identification on the clothing the accused was wearing at the time of that release, namely a fitted grey baseball cap and grey jeans (slim fitting jeans) in combination with the shape of the accused's face, which he describes as a distinctly slim jaw, and the shape of his eyes, without any description of that shape or why it is distinctive. With due respect to the officer and his powers of observation, I find that it is impossible to discern from Exhibit 2 the shape of the eyes of the man wearing the Canadians Jersey or how slim his jaw line is. He acknowledges in cross examination that the face is not clear in the photo and that you can only generally see the shape of his eyes. He further acknowledges that the person wearing the Canadians Jersey has baggy jeans on, although he attributes that to how far down the jeans are being worn. In my view the hat and the jeans are not unique and the bagginess of the jeans is factually dissimilar to his description of the jeans that the accused wore when he was released on October 22 on the promise to appear. Further, he acknowledges that he could be wrong in the description he provided of the accused wearing slim grey jeans on his release when it is put to him in cross examination that he was wearing grey sweatpants that day. The best evidence of his appearance and clothing on October 22, 2015 is not available because the video that captured his appearance at the front desk of the Central Police Station has been deleted, in spite of requests for its preservation by the defence and the Crown Attorney's office.

[17] Lastly I evaluated whether the combination of Officer Park's evidence and my own viewing of the surveillance video was capable of combining together to prove the identification element beyond a reasonable doubt. Given that I cannot make an identification other than to say it may be the same person as the person under charge here and the deficiencies I have found in the identification made by Officer Park I find that the combination does not satisfy me beyond a reasonable doubt.

[18] The authorities, including Regina v. Henderson (2012) M.J. #344 (Man C.A.) make clear that recognition evidence, although considered more reliable than identification evidence of a stranger, must be treated with as much caution as any other form of identification evidence because it is an inference drawn from human observation and recollection and a statement of opinion as to what the witness saw, or in this case identified from the surveillance video. The nature, length and memorable features derived from Officer Park's previous contact with the accused are insufficient to meet the criminal standard of proof beyond a reasonable doubt.

Disposition

[19] The Crown has failed to prove the charges beyond a reasonable doubt so they are dismissed and an acquittal will be entered on the information.

Released: October 14, 2016

Signed: "Justice Anthony F. Leitch"