Court File and Parties

Ontario Court of Justice

Date: 2017-08-25

Court File No.: Brampton 3111 998 17 2949

Between:

Her Majesty the Queen

— and —

Freddy Mawick

Before: Justice G. P. Renwick

Heard on: 21, 22, 23, 24 August 2017

Reasons for Judgment released on: 25 August 2017

Counsel:

M. Morris — counsel for the Crown

J. Mencel — counsel for the defendant Freddy Mawick

RENWICK J.:

INTRODUCTION

[1] Mr. Freddy Mawick is charged on a nine-count Information with various fraud-related offences arising out of an alleged personation to apply for and obtain credit cards which were allegedly used to defraud three financial institutions. The prosecution called evidence from seven witnesses and entered financial transaction records, credit card statements, and photographic evidence to establish its case. In addition to the fraud-related charges, the defendant is also charged with two breaches of a recognizance of bail (attending a bank without his surety and possession of a credit card not issued in his name).

[2] The main issue in this trial is whether or not the prosecution has proven beyond a reasonable doubt that the defendant was the person who committed these offences. Ancillary to that, the defendant took issue with the continuity of exhibits, the authenticity of banking records and bank surveillance videos, and the accuracy of date and time stamps on some of the banking videos. With respect to the breaches of bail, if I am not satisfied to the requisite standard that the prosecution has proven the identification of the perpetrator of the offences, I cannot convict Mr. Mawick of these charges, and secondarily even if I am satisfied that Mr. Mawick is the male in the banking videos, there is no evidence that he attended a bank without the presence of his surety. Lastly, the defendant argues that there is no evidence that the recognizance in question was still effective on the dates when he is alleged to have attended two banking automated teller machines (ATMs).

THE EVIDENCE

[3] By and large, there was not a lot of controversy to the admissibility or the import of the evidence lead by the prosecution. This is not surprising given that the defence was not that fraudulent activity or personation had not occurred, but rather, the defence was founded upon an apparent insufficiency of evidence to establish that the defendant was the perpetrator of these offences, beyond a reasonable doubt. For this reason, I will provide a general overview of the evidence I accept.

[4] Upon receiving two credit bureau reports, Mr. Joshua Oak Layne, a resident of British Columbia, discovered that several credit cards (a Canadian Tire Master Card, a Capital One Master Card, and a Walmart Master Card) had been issued in his name, with his date of birth, associated to a billing address with which he has no knowledge or connection in Mississauga. Mr. Layne testified that he did not complete the online applications for these credit cards, he never received these credit cards, and he has provided declarations to the financial institutions to that effect. Moreover, Mr. Layne testified that he has not suffered any financial loss as a result of these matters and he does not know the defendant, who was pointed out to him in court.

[5] Given the issues raised in this trial, and the cross-examination pursued (which did not challenge the substance of this evidence), I have no hesitation in accepting the evidence of Mr. Layne. Moreover, he testified in a neutral, objective, almost passive manner, without any apparent bias.

[6] Ms. Wendy LeBlanc testified that she is a fraud liaison with Capital One. She explained that in this case the business records established that the Capital One Master Card with number 5491398713420647 issued to Josh O Layne of 5316 Churchill Meadows Boulevard, Mississauga, was applied for and approved on-line on 14 September 2016. Upon approval, Ms. LeBlanc advised that the actual credit card that was issued would have been mailed to that address within 7-10 business days. Ms. LeBlanc identified that Capital One never received any payments and incurred losses of $2403.09 for purchases made with the card and another $600 in cash advances. She also testified about two cash advances for $403 and $183 that were made on 15 October 2016. Exhibit 2 in the proceedings included the activity data for that credit card, the on-line application, and two monthly statements for the Capital One Credit Card.

[7] The activity data confirms that two cash advances were made on 15 October 2016 to a location on "HWY 10 & EGLIN," which Ms. LeBlanc believed, based upon her reading of the raw data, and the monthly Capital One statement was an RBC bank location in Mississauga. Again, the substance of Ms. LeBlanc's evidence was not seriously contested by the defendant in cross-examination, and there was no argument made by the defendant with respect to this evidence.

[8] I find as a fact that someone used the Capital One Master Card issued in the name of Josh O Layne at 5316 Churchill Meadows Boulevard, Mississauga at an RBC bank on 15 October 2016 for cash advances of $403 and $183.

[9] Mr. Jordan Weldon testified as a senior investigator with Canadian Tire Bank. He gave evidence that a credit card was issued on-line to Josh O Layne of 5316 Churchill Meadows Boulevard, Mississauga on 14 November 2016. Exhibit 3 established that the Canadian Tire Master Card was used for $2956.94 worth of purchases, without any payments ever being made toward that balance. There was no challenge to this evidence and I accept this evidence completely.

[10] On behalf of Walmart Bank, the Director of Fraud Operations, Mr. Stephen Dyer, testified. He authenticated business records and monthly statements that showed that a Walmart Master Card with a number ending "5881" was issued on 06 October 2016 from an on-line application made by Josh O Layne. Exhibit 5 was the first monthly statement mailed to the customer at 5316 Churchill Meadows Boulevard, Mississauga. Mr. Dyer explained that the reprint of the monthly statement has a truncated number of the credit card involved "for industry compliance" purposes.

[11] There were several interesting issues with the Walmart Master Card monthly statements which became Exhibit 6 in the proceedings. Firstly, the card was issued to Mr. Josh O Layne of Unit 102 – 279 Jarvis Street, Toronto. Also, there was an attempted payment of $2500 toward the balance on the account, which was made at the end of October 2016. The dishonoured cheque used for the attempted payment became Exhibit 4. That cheque showed an address for the payor, "Josh O Layne" of 5316 Churchill Meadows Boulevard, Mississauga.

[12] Mr. Dyer had no information of when the cardholder's address had changed from Churchill Meadows Boulevard to Jarvis Street. Mr. Dyer was able to say that an address change had been made to the account, but he did not have records present to suggest the address used for the on-line application for credit, or the address to which the credit card was sent. Given the brief time period from the date the card was approved (06 October 2016) until the first statement was mailed out (around 15 October 2016), I find as a fact that the address change did not occur until after the credit card and the first monthly statement had been sent to 5316 Churchill Meadows Boulevard, Mississauga.

[13] Walmart's loss was estimated by Mr. Dyer at approximately $3400, but once the investigator was satisfied that the actual person named Joshua Oak Layne was not responsible, he removed the charges against that name in the system. Other than clarifications of his evidence, Mr. Dyer's testimony was not challenged by the defendant, and I accept it as truthful and accurate.

[14] The prosecution called Mr. Ian Courier, a long-time fraud investigator with RBC to authenticate certain documents and apparent bank surveillance video. The defendant challenges the weight that should be given to this evidence because the investigator had only joined this case on the day he testified, he had never before seen the records which were apparently retrieved by his predecessor, he could not personally attest to the operation of the bank's surveillance cameras or the recording of the footage they capture, and he was not certain about the location of a fourth ATM at the branch to which the records related. I am satisfied that I can give substantial weight to the evidence of Mr. Courier for the following reasons:

i. Mr. Courier is neither a complainant, nor a participant in the investigation of the matters before the court. Given his evidence, the manner in which he testified (candidly, in a balanced manner, and careful to observe the limits of what he actually knew), and his limited role in the prosecution, I accept that he was truthful and accurate in his testimony;

ii. Mr. Courier's evidence about the process of retrieving photographic evidence from bank surveillance video dovetailed well with the evidence of Ms. LeBlanc who testified that she provided the date, time and location of the cash advances and received still photographs of the alleged fraudulent transactions as recorded on the RBC's surveillance camera system, directly from an RBC counterpart. Mr. Courier described the ability of an RBC investigator to capture still images but he was clear that the actual video recordings must be ordered from the third-party company that maintains the surveillance video system (TYCO); and

iii. The RBC video was produced on a DVD entitled, "Image Request Disk Royal Bank of Canada" with an incident date of 15 October 2016, and a transit number (3370) that accorded with the RBC transaction journal produced from the RBC's "Personal Touch Banking System" (Exhibit 9). I note as well that the DVD had the TYCO Integrated Security logo on its face. In other words, although Mr. Courier did not personally retrieve the records about which he testified, there were too many corresponding indicators (date, time, branch number, title, third-party logo, etc.) that corroborated his understanding of the process by which electronic records and video recordings are stored and produced, which could not be explained away by happenstance or coincidence.

[15] Based upon his understanding of the records produced, Mr. Courier testified that the bank machine in question, TM50, would be at Branch 3372, and while relying on Exhibit 9 he described that this ATM would be on the left of the others in the video based on its number. Again, the defendant submits that there is no actual reliable evidence that the ATM in question is the one used by the unknown male on the bank surveillance video. Moreover, the defence asserts that there is no reliable evidence that the actual videotape is from that ATM. These submissions fail for several reasons.

[16] First, I am entitled to accept that there is a protocol for numbering ATMs and an investigator of 15 years with RBC is not guessing when he says the lower numbered machines are on the left and the ATM ID numbers increase as you move to the ATMs on the right. Accepting this fact, I find that if the video satisfies me that the recording includes ATMs TM50, TM51, and TW99, then I accept that TM50 is the machine on the far left of the video recording.

[17] How can I be satisfied that the DVD I have (Exhibit 10) includes the recordings of the ATM allegedly used to make fraudulent cash advances, and, how can I be satisfied that the date and time stamps on the recordings are accurate? There are indicators on the video itself that identify the two video recordings on the "Royal Bank of Canada" disc. The first clip, which appears to show a foyer and captures people entering and leaving an apparently public indoor space is entitled, "ABM Entrance." I interpret that to mean the entrance to the automated banking machines at that branch of RBC. The second recording on this DVD appears to show three ATMs, several feet away from the ABM Entrance. This recording is labelled, "ABM Vest TM50_TM51_TW99." Mr. Courier explained that the images captured by this video are three RBC ATMs in the vestibule area of the bank.

[18] Although Mr. Courier could not authenticate that this video actually came from the bank branch at Highway 10 and Eglinton (to correspond with that description in the "Activity Data" of Exhibit 2), that is reflected on the Capital One Master Card monthly statement (also part of Exhibit 2) as "RBC ROYAL BANK MISSISSAUGA ON CASH ADVANCE." Also, when I right click with my cursor on the frozen image of the video clip and select "Copy" and select "Image" and then paste that information into this document (my actual reasons for judgment), the following text appears:

Digital Video Snapshot

Site: Royal Bank/ON/Mississauga/RBC3372

Camera Name: ABM Vest TM50_TM51_TW99

10/15/2016 5:00:03 PM (Eastern Daylight Time)

[19] All of these pieces of information satisfy me that the video recording corresponds to the Activity Data for "TM50" and that the video time and date stamps are accurate and genuine. Although I have no witness who actually copied the video recording and could authenticate that what I have is accurate in terms of its content, I am not prepared to speculate that the recording is anything but what it purports to be. There is nothing in the video itself which causes me any concerns that it has been altered in any way and I accept the contents of the RBC surveillance camera DVD as accurate and reliable evidence.

[20] I am entitled to take judicial notice that banking is a highly regulated activity in Canada and financial institutions (such as RBC) are statutorily required to keep accurate records of their business transactions. This protects the public, provides proof to regulatory agencies that proper industry regulations and protocols are followed, and assists the bank to keep track of the monies it receives and dispenses. There are redundancies in the information in the RBC banking documents before the Court which correspond to other information and provide a measure of reliability that the information contained in these necessary banking records is accurate. I have absolutely no reason to doubt the accuracy of the information contained in Exhibit 2 (Activity Data, Capital One monthly statements) and Exhibit 9 (Transaction Journal). An example of the overlap of information that satisfies me of the reliability of the contents of the video recordings and the banking records are the two entries for the cash advances noted on the Transaction Journal, which are dated "16OCT15" at "17:09:13" and "17:10:17." This information corresponds to the ATM video surveillance time and date stamps when a male appears to retrieve something from TM50 and leaves the automated banking machine with something in his hand, which is visible for all 9 frames of the recording at "5:11:10 PM."

[21] I am satisfied that the exhibits and evidence prove that a Capital One Master Card mailed to 5316 Churchill Meadows Boulevard, Mississauga was used to make purchases and cash advances, two of the latter of which were captured by RBC video surveillance, on 15 October 2016.

[22] The final civilian witness was Ms. Adrienne Nauth, a TD Canada Trust Production Order Specialist. Ms. Nauth authenticated her affidavit and the appendices, which became Exhibit 16, the "TD BANK GREEN MACHINE NETWORK TRANSACTION AUDIT REPORT." That report details the use of a credit card, which was not issued by TD Bank, and which was unknown to Ms. Nauth, for a cash advance withdrawal transaction on 14 October 2016 at 20:35:11 for $340 plus a $3 service fee. This transaction was identified on Exhibit 16 (page 4) as 005106 on ATM 370-1. Each ATM in the TD banking system has a unique number. Ms. Nauth testified that 370 is the branch and the ABMID for this transaction is 2727, which is an ATM at branch 370. The cash advance was made using a credit card with the number 543440866483 5881 (emphasis of last four digits is mine). This transaction corresponds to item 6 on the monthly statement for the Walmart Master Card (Exhibit 6) on 14 October 2016, referred to as "TD BANK Mississauga ON $343."

[23] Ms. Nauth fulfilled the production order in this case. She produced the Transaction Audit Report, she reviewed the TD banking video surveillance, and prepared the DVD which became Exhibit 17 of the video recording of the transaction in question. Although Ms. Nauth could not say how the video time and date stamp system operated or was maintained, or how video recordings were stored, but she was satisfied that the video recording she produced complied with the production order for "Video Surveillance from TD Bank automated teller machine #TD2727, located at 20 Milverton Drive, Mississauga, Ontario, on October 14, 2016, between the hours of 8:25pm to 8:40pm" (see Exhibit 12), and the transaction report was for this same machine, date, and time period. Notwithstanding Ms. Nauth's lack of knowledge of the technical aspects of the bank's surveillance camera system relating to operations, maintenance, and data storage, I am entirely satisfied that her evidence was truthful and reliable.

[24] Peel Regional Police Constable Daniel McCarthy also testified. He was the fraud investigator who received various pieces of information, investigated this matter, sought and received production orders, arrested the defendant, and orchestrated this prosecution. Given that Officer McCarthy's evidence was the lynchpin for the prosecution's theory that the defendant perpetrated these offences, I need to consider the content and value of this witness' evidence in great detail.

ANALYSIS

Identification Evidence

[25] I begin this part of my reasons by adopting the words of Mr. Justice Juriansz of our Court of Appeal in a recent (as yet) unreported decision:

Eyewitness identification is inherently unreliable. It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses, and is difficult to discredit on cross-examination for those same reasons. Studies have shown that triers of fact place undue reliance on such testimony when compared to other types of evidence. As a result, many wrongful convictions result from faulty, albeit convincing, eyewitness testimony, even in cases where multiple witnesses identify the same person.

[26] The officer testified that he has known Mr. Mawick over the past three years because he has spent a significant portion of his investigative efforts pursuing the defendant for these and other charges. The witness believes he knows the defendant well enough to recognize him in video recordings or still photographs. The officer testified about all of the interactions he has had with Mr. Mawick from March 2015 until the present. I am prepared to accept that Officer McCarthy believes he knows Mr. Mawick beyond a superficial recognition given the number of times and the number of hours he has actually spent with and in the presence of the defendant. I accept that Officer McCarthy is genuinely interested in prosecuting the defendant, for a proper purpose and motive and his recognition evidence is truthful from his perspective.

[27] Nonetheless, I am also mindful that identification evidence is fraught with the dangers noted above, and I instruct myself to regard this type of evidence with extreme caution. In terms of the reliability of this type of evidence there are a number of factors, among others, to consider:

• Time between the event and the trial;
• Prior knowledge of the defendant;
• Opportunity to observe and conditions surrounding the opportunity;
• The presence of distinctive features;
• Duration of observation;
• Emotional state of the witness at the time of observation;
• Collusion, whether or not this is intentional;
• Contamination of opinion;
• Cross-racial identification;
• The amount of detail of descriptors;
• Cross-witness comparison of descriptors; and
• The absence or existence of corroborative evidence.

[28] In consideration of the referenced factors, I note that Officer McCarthy is well acquainted with the defendant. I am also mindful of the context of their relationship: investigator and suspect, and the potential this may have to colour the officer's belief that he recognizes the defendant (someone he is investigating for the crimes alleged) in the banking videos.

[29] I also find that the officer's recognition evidence is less fragile than other pieces of similar evidence in cases where virtual strangers are asked to pick someone out of a physical or photographic line up, where they expect to see the culprit, after experiencing a stressful situation, which may have only lasted for several minutes.

[30] However, in terms of the level of detail of the officer's description of the defendant, there is little beyond a generic description given: "late 40's, black male, very short hair, 5'10," thin build, no facial hair." There is so much detail lacking in this description, it causes me some concern. I doubt not that the witness and the defendant have spent many hours in the same room together, but I question whether the officer has spent a lot of time actually looking at Mr. Mawick. This considerably weakens the value of the officer's recognition evidence.

[31] Truthful and honest witnesses often make misidentifications of defendants because confidence in one's belief and the witness' apparent truthfulness cannot be a substitute for a proper, untainted, recognition. In this case, the witness is said to recognize the defendant based on a half-dozen incidents of presence together, over a 30 month period, where the officer is not related to the suspect, the two are from different racial backgrounds, and due to possible animus between the parties, the witness may not have spent much time looking at the face of the defendant. A trier of fact who relies solely on this type of evidence without extreme caution is doing a disservice to the presumption of innocence, at best.

[32] In M.B., the court confirmed that the admissibility of this type of evidence is governed by the Supreme Court of Canada's decision in Leaney. Our Court of Appeal applied Leaney in R. v. Berhe, [2012] O.J. No. 5029. Significantly in M.B., the court clarified that:

The issue in Berhe was the threshold admissibility of the recognition evidence. Berhe also confirmed the continued importance of unique identifiable features in determining the ultimate reliability of the evidence. The importance of unique identifiable features varies with how well the witness knows the person he or she identifies. The court made this clear by endorsing the following comment by Holmes J. in R. v. Panghali, 2010 BCSC 1710, [2010] B.C.J. No. 2729 at para. 42:

Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.

In my view, the trial judge was wrong to interpret Berhe as minimizing the importance of unique identifiable features in determining the weight of recognition evidence.

[33] Despite his professed familiarity with Mr. Mawick, Officer McCarthy was unable to provide any uniquely identifiable features of the defendant. However this is not the end of the analysis.

Nikolovski Issue

[34] The Court of Appeal describes the possible use of videotape evidence by the trier of fact:

Witness identification based on video recordings can under certain circumstances be more reliable [than traditional identification evidence] as it allows repeated and unhurried consideration. For example, R. v. Nikolovski, [1996] 3 S.C.R. 1197, at para. 23, contemplates a videotape of "sufficient clarity and quality" that it would be reasonable for the trier of fact to use it as the sole basis for identifying the accused:

It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime. It is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness. It follows that the same result may be reached with even greater certainty upon the basis of good quality video evidence. Surely, if a jury had only the videotape and the accused before them, they would be at liberty to find that the accused they see in the box was the person shown in the videotape at the scene of the crime committing the offence. 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.

The kind of clear video recording described in Nikolovski, however, sharply contrasts with the video recording in this case. The trier of fact must use greater caution where the video or photo quality is poor.

[35] I find that I am able to rely upon the videotape recordings in this case for the following reasons:

i. The video recordings are clear; the TD video quality is exceptional in this regard, but there is also a good level of clarity in the RBC video clips;

ii. The images last for several minutes and the lighting and colour is good in all cases;

iii. I am able to stop each video recording, zoom in, advance the recording frame by frame, and replay the recordings at various speeds;

iv. Due to the clarity and detail of the video recordings, I am able to note things about the male in the video based upon his movements and the fact that the image is recorded in a moving format (as opposed to static photographs), and the movement of light and the shadows cast, which would not be the case from a still image; and

v. I am able to replay the video recordings numerous times and capture images from one recording which may be compared on screen with other video clips, or printed for physical comparison with other evidence.

[36] I was invited by the prosecutor to move about the courtroom to get close enough to the defendant to be able to compare Mr. Mawick with the images of the male captured on the bank video recordings. I declined to leave my place in the courtroom for several reasons, already stated in open court. Essentially, while I am content that the trier of fact can make comparisons of photographic evidence with the defendant in court, pursuant to the principles enunciated in Nikolovski, I respectfully disagree that Nikolovski provides authority for what was proposed here.

[37] To move about the court in a manner that would be appropriate for a witness in order to get closer to the defendant for the purposes of comparison with photographic evidence seems to me to put the Court and the defendant in untenable positions. Firstly, it detracts from the dignity of the proceedings; I cannot imagine 12 jurors surrounding the defendant for such an examination, and a judge in a bench trial is not appreciably different. How long should the trier stare at the defendant, at what proximity, and from which angle(s), what should the defendant do, what can the defendant be requested to do (stand up, turn around), are all questions which have not been satisfactorily answered. A judicial walk-around is unseemly in my view. Secondly, it runs contrary to the principles of natural justice to permit the trier of fact to become a non-compellable witness who can never be cross-examined, but nonetheless is the arbiter who gets to decide the case.

[38] The bank video recordings are compelling and probative evidence that satisfies me that the two unknown males are the same person:

i. At 8:34:49 PM of the TD video the male approaches. At 8:34:50 PM a slight bulge on the right side of the male's head (above his left temple) is observed. This is an example of the level of clarity of this video recording;

ii. When paused before the male reaches the ATM, the TD video gives one a view of the complete head shape of the male. The following features are easily observed: the male has a round head with no hair, almost non-existent eyebrows, round, well-shaped ears that slightly protrude, high and prominent cheek-bones, a prominent nose which is wide, well defined large circular nostrils, full and well defined upper lip, less full and poorly defined lower lip, and an oval face;

iii. At 8:35:46 PM of the TD video the male's right profile reveals that he has a slightly receding chin, prominent cheek-bones, a bump in the plane along the top of the male's nose, a noticeable ridge under his eye, and an indentation on the back of his head slightly above ear level;

iv. In the RBC video of the ABM Entrance (clip 1) the overall shape, proportion, and profile of the head of the male entering at 5:08:15 PM is similar to the male in the TD video. At 5:11:11 PM the male is leaving the bank and his reverse profile is seen. Again, his cheekbones, nose, lips, jawline, and head shape are similar to the male in the TD video. When this video is frozen, an indentation at the back of the head on the right side above the ear is also visible in this clip;

v. In the second RBC clip (ABM Vest TM50_TM51_TW99), we see the male enter the ATM area of the bank at 5:08:16 PM. His left profile reveals a consistency in terms of the lips, nose, skin, ear size and shape, and head shape with the male in the TD video. The male uses the ATM known as TM50 and withdraws money at 5:10:34 PM. We see the money in his left hand at 5:11:09 PM. At 5:11:12 PM the male turns away from the bright sun entering the window and he has the same nose, lips, eyebrows, ear, chin, and ridge below his eye that were observable in the TD recording. The slight bulge observed above the male's left temple in the TD video is clearly visible when the images are advanced frame by frame at 5:11:12 PM and 5:11:16 PM; and

vi. In each video a well-dressed, fashionable, middle-aged black male with a shaved head, a medium build and fit appearance, with the same distinguishable facial and head features, uses a bank card issued and sent to Josh O Layne at 5316 Churchill Meadows Boulevard, Mississauga.

[39] I find that the video recordings and my ability to view them and come to conclusions about the male in the videos can be augmented by Officer McCarthy's recognition evidence to provide compelling proof that the defendant is the male in the bank videos, beyond a reasonable doubt, for the following reasons:

i. The video and photographic evidence in this case establish beyond a reasonable doubt that the male in both banks is the same male;

ii. The male in the bank videos bears a striking resemblance to the defendant as captured in Exhibit 15 (photograph taken at the Fraud Bureau). I note that the lighting of the photograph does not reveal the level of detail as observed on the bank videos, but the left side of the defendant's head is rounder (because of the bulge) than his right side;

iii. The male in the bank videos appears to me to be the defendant, bearing in mind that I have a rather two dimensional view of the defendant (the front of his face) from my place in the courtroom, some 20 feet from his position in the prisoner's box, behind slightly tinted glass. As an aside, with little probative value, I also note that at all times in the videos the male maintains an emotionless face, which is similar to the photograph of the defendant (Exhibit 15) and the defendant's demeanor throughout these proceedings; and

iv. The officer recognizes the male in both videos as the defendant.

[40] When I combine this evidence with the evidence that the defendant resided at the address to which all of the credit cards were sent, and where he was arrested two months after the video recordings were captured, there is no reasonable doubt that the defendant is the male captured in the bank videos committing these offences.

[41] With respect to five of the charges, the evidence is insufficient to satisfy me of the defendant's guilt beyond a reasonable doubt.

[42] Specifically, the bank videos do not give me any view of the exterior of the banks themselves. The wording of the recognizance is specific: "Do not attend any bank or money services outlet unless in the presence of your surety." I am unable to draw any conclusions about whether or not the defendant attended those banks in the presence of his surety. I am satisfied that he is not captured by the bank videos using the ATMs with his surety beside him, but it seems to me that the wording of the recognizance does not require him to enter the banks with his surety as long as he attends the banks with his surety. Without any evidence that the defendant has not complied with this term of the recognizance, he is acquitted of this offence.

[43] The wording of count 9 is equally specific. I was not asked nor have I granted an amendment to permit the prosecution to prove the possession of a credit card on another date. I heard no evidence that the defendant was in possession of a credit card on the date of his arrest. Accordingly, this charge is also dismissed.

[44] I am satisfied that the defendant committed the offence of personation of Mr. Layne when he used the credit cards mailed to his home on two dates in October 2016 (the dates he was captured on bank videos). Unfortunately, without any evidence to suggest who made the on-line applications for the credit cards, I am not satisfied beyond a reasonable doubt that it was the defendant who personated Mr. Layne by applying on 14 September for a Capital One Master Card.

[45] Also, without any evidence whatsoever, I am equally unable to conclude that the charges against the Canadian Tire credit card were caused by the defendant. Given the defendant's use of the Walmart Master Card at the TD bank on 14 October and the Capital One Master Card used at the RBC on 15 October 2016, both for cash advances, I am suspicious that this may be the case, but there is no evidence to satisfy me beyond a reasonable doubt. Both of the charges with respect to the Canadian Tire Master Card fail for this reason.

CONCLUSION

[46] I find Freddy Mawick guilty beyond a reasonable doubt of counts 1, 2, 4, and 5, and not guilty of counts 3, 6, 7, 8, and 9.

Released: 25 August 2017

Justice G. Paul Renwick

APPENDIX A

Reasons for Judgment

R. v. Freddy Mawick

Digital Video Snapshot

Site: Royal Bank/ON/Mississauga/RBC3372

Camera Name: ABM Vest TM50_TM51_TW99

10/15/2016 5:00:03 PM (Eastern Daylight Time)

Capture Size: 704 x 240 pixels

Device Network Name: Transit_3372

Device Serial Number: KBDAA0088

Device Station ID: 2418

Case Note 1: [Enter a comment here]

FOOTNOTES

[1] This is not the case for the identification evidence, which will be canvassed in depth, below.

[2] At all times, I have kept in mind that I can accept some, none, or all of what a witness says, there is no presumption that witnesses will be truthful or accurate (this is also true for apparently neutral third-parties, like the majority of the witnesses who testified before me), honest witnesses can be mistaken, and the burden of proof never shifts from the prosecution to the defence regardless of the number of witnesses called by either side.

[3] It was also explained in the evidence that the actual cash advances were less than the amounts recorded in the activity data, as there would be a $3 service fee for each cash advance.

[4] The November to December 2016 monthly statement noted $3284.54 as the outstanding balance owing.

[5] Along with this text is a screen capture of the frozen image from the video. See Appendix A to these reasons for the entire text and photograph as they appear once the "Copy" function is used, as described above.

[6] I note that the RBC Transaction Journal (Exhibit 9) describes the branch (03372), the banking machine (TM50), the address (B2-4557 HURONTARIO S), the city (MISSISSAUGA), and the transit (3372). Also, the fourth line down from the top in the middle of the page includes "MISSISSAUGA HWY 10 EGN (TZ92) AU" (bolding mine, see below). Page 2 of Exhibit 9 includes "3372 HWY 10 & EGLINTON AVE BR FULL SERVICE BRANCH 4557 HURONTARIO ST-UNIT B2, MISSISSAUGA, ON" among other pieces of information, including the "ATM ID" and four entries for the ATMs at that branch. Curiously, I note that the last ATM ID "TZ92" also appears at the end of the location description noted on the fourth line on the first page. The Transaction Journal is dated "2016 OCT 15."

[7] The prosecutor did not use the single frame advance or reverse feature, but the buttons "-1" and "+1" are clearly visible on the top of the image near the "Back 5 Seconds," "Play Backward," "Pause," and "Play" buttons (to see these labels you must rest the cursor on the buttons). The single frame advance feature allows the viewer to see fractions of seconds of the actual recording (there are 9 frames per second) without any loss of visual clarity. In fact, by freezing the video recording and advancing the images frame by frame, one can see details of the recording that are not observable when it plays at normal speed. This will be discussed in greater detail, below.

[8] Although Mr. Dyer of Walmart Bank did not produce the on-line application for the Walmart Master Card issued to Josh O Layne, nor did he have the entire credit card number, he testified that the last 4 digits of the card were 5881.

[9] R. v. M.B., [2017] ONCA 653 (released 14 August 2017), at para. 29.

[10] This is not intended to be an exhaustive list.

[11], [1989] S.C.J. No. 90.

[12] M.B., supra, at paras. 46-47.

[13] M.B., supra, at para. 32.

[14] Ironically, the lighting and colour is better in the RBC videos than the TD bank video, but again, each clip is good and certainly adequate for these purposes.