ONTARIO COURT OF JUSTICE

CITATION: R. v. Bao, 2017 ONCJ 944
COURT FILE No.: St. Catharines
DATE: 2018.03.16

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

AI MING BAO

Before Justice Fergus ODonnell

Reasons for Judgment

(Delivered orally on 31 August, 2017)[1]

Mr. P. Wenglowski............................................................................................ for the Crown
Ms. K. Schofield................................................................. for the defendant, Ai Ming Bao

Fergus ODonnell, J.:

1. Ai Ming Bao stands charged with possession of marihuana for the purpose of trafficking. He has pleaded not guilty.

The Incident

2. In the late afternoon of 15 August, 2015, there was a motorcycle collision on King Street in the town of Lincoln. Constable Michael Storozuk of the Niagara Regional Police Service was assigned to man a police road block at some remove from the collision scene when he noticed a Honda Odyssey mini-van coming out of the blocked-off area of road, a place it presumably should not have been, since the collision scene was also blocked from the other direction.

3. As the van passed him at a speed of about fifty kilometres per hour, Constable Storozuk justifiably called out to the driver to stop because he wanted to make inquiries about the vehicle having passed through a collision scene. Through the open van window, at a distance of about fifteen feet on a clear, sunny afternoon, Constable Storozuk saw a look of shock and panic on the driver's face, whereupon the driver of the Odyssey made an immediate right turn at a high rate of speed to travel northbound onto Mountainview Drive. He saw only the driver in the van. He did not notice or at least recall the colour of the driver's shirt. His observations were limited to seconds.

4. Constable Storozuk noticed that the driver was an Asian male with dark hair and, based on his familiarity with that particular vehicle, he placed the driver's height initially as being around 5'9" or 5'10", although in cross-examination Constable Storozuk fairly conceded that depending on a particular person's torso to leg ratio the driver could have been a couple of inches taller or shorter than his estimate.

The Pursuit

5. Constable Storozuk got in his patrol car, did a U-turn and pursued the mini-van northward on Mountainview, noting that by the time he had done the U-turn the Odyssey had gained a lot of speed and was already some distance away. Catching up to the mini-van was ultimately facilitated by the fact that the van ran into the ditch and came to rest against a hydro pole. There was nobody in the van when Constable Storozuk arrived. All of the doors were closed except for the driver's door, which was ajar. The driver's window was open. Since a typical person would not flee in such circumstances, Constable Storozuk called in a canine officer within three or four minutes of the van first passing his road-block.

Some Very Foolish Things to Leave In a Van Full of Drugs

6. Constable Storozuk looked in the mini-van for the usual documents associated with operating a motor vehicle. He found a wallet in the glove box that contained identification; the mini-van's registration and insurance were also in the glove box. He identified the typical items of particular focus for him to be a driver's licence or OHIP card as they tend to be the most reliable. In this case he said that the only piece of identification he paid attention to was the OHIP card, which had Mr. Bao's photograph on it. He said that the person on that card was the person who had driven by his road block minutes before.

7. The OHIP card was marked as an individual exhibit on the trial. The wallet and the rest of its contents were marked as a collective exhibit without further particularization. When I reviewed that exhibit in detail during the afternoon break, I noticed that among the many, many cards and receipts in the wallet were four valid credit cards in Mr. Bao's name and two debit cards. The most recent receipts in the wallet were four RBC transaction receipts from Beamsville, the most recent two being on 8 August (a week before this event) and 14 July (a month before this event). Beamsville is two or three kilometres from where the van breached Constable Storozuk's roadblock. Four of the seven RBC receipts were from the Royal Bank in Beamsville, covering the period from March to August, 2015. The other three were from various branches in Toronto. The amounts involved in the various receipts are very substantial, although I do not perceive any relevant inference to be drawn from that fact itself. The relevant inference is that each of the Beamsville receipts reflects the use of a client card that is consistent with Mr. Bao's client card in the wallet (the middle digits are anonymized on the receipt for security reasons) and they establish a fairly routine and substantial connection to the very close proximity of the van's flight and ultimate crash.

8. Curiously, Constable Storozuk did not refer to another document in the wallet, Mr. Bao's valid driver's licence, which showed an address in Scarborough.

9. There was an Air Miles card that was not in Mr. Bao's name, but in the name of Yan Then Chen. There was also an insurance slip in that name, also for a Honda but not for the Honda mini-van involved here.

10. The other documents, which added up to a hefty four centimetres or so in height when piled on top of each other included Mr. Bao's fishing licence(valid), his pleasure craft operator's card (issued about a month earlier), his Fallsview Casino card, various other receipts and seven gift cards, several loyalty cards, a couple of dozen business cards, membership cards and the like. The various credit and debit cards, in particular, are the sorts of documents that the average person (albeit not all) would be careful to keep in close proximity to his or her person.

11. The mini-van was not registered in Mr. Bao's name.

A Van Full of Drugs

12. The canine officer arrived quickly and set off on his tracking duties. Constable Storozuk understood that the canine officer apprehended four people, none of whom was Mr. Bao.[2]

13. Soon after that, Constable Storozuk heard a crackling sound and realized that the front of the mini-van had caught on fire. In order to ensure any evidence was preserved, Constable Storozuk opened the side sliding door of the mini-van and saw a black garbage bag. For the first time he also smelled marijuana. When he opened the bag it contained relatively fresh-looking marihuana. After securing that bag away from the van, Constable Storozuk opened the rear hatch and found six more such bags of marijuana. He also noted a drying cabinet that was about eighteen inches by eighteen inches by nine inches in size, which was located behind the passenger seat.

The Drug Squad

14. Sergeant Jeromie Sills responded once it became apparent that this was about more than a driver driving through a collision scene. In the passenger side door pocket, Sergeant Sills found an inhaler with Mr. Bao's name on it, with a Toronto address that is different from the address on his driver's licence, which is also in Toronto. The package was dated 23 July, 2015, i.e. about three weeks before the discovery of the marihuana in the mini-van. There were other documents found, both insurance-related and not related to insurance; those documents were not in Mr. Bao's name. They were on the floor behind the front passenger seat.

15. Sergeant Sills processed the marihuana, which he described as seven large bags of marihuana bud that had been trimmed but not fully processed. He characterized the marihuana from the van as being one stage removed from the end product that would be marketed.

16. Detective Constable Weasner helped document the marihuana bud which had a total weight of one-hundred-and-sixty-nine pounds. He agreed that some of that weight would be lost in the drying process, but did not feel sufficiently qualified to accept or reject the defence suggestion of how much the weight would diminish as a result of the drying process.

The Issues

17. Ms. Schofield argued that there were two issues that are fatal to the Crown proving its case against Mr. Bao beyond a reasonable doubt. She argues that the Crown has not made out a reliable case that Mr. Bao was the driver of the Odyssey. She argues that even if the Crown could make out Mr. Bao's identity as the driver beyond a reasonable doubt, it cannot make out possession of the contents of the van beyond a reasonable doubt. Proof of possession necessarily entails proof of knowledge of an item's presence and proof that the defendant exercised some measure of control.[3]

18. Ms. Schofield argues that the evidence of identity in this case was irreparably tainted by the fact that Constable Storozuk saw a single photograph of Mr. Bao (the health card) and then identified him as the driver. This, she says, was the equivalent of a "one person line-up" or a "show up" and has the equivalent evidentiary value, which Ms. Schofield places as at or very, very close to zero.

19. There are three pieces of evidence that are relevant to the issue of who was the driver of the van, namely the wallet and identification and documents in it, the puffer and the fleeting glance Constable Storozuk had of the driver as he zipped through the road block. I think it can fairly be said that none of those items standing alone would make out the Crown's case.

20. I shall not dwell long on the following points as they are notorious: incorrect identifications of alleged offenders are an omnipresent danger in the courts, incorrect identifications are often at the root of the most troubling miscarriages of justice and incorrect identifications can be particularly dangerous because they are often rooted not in malice or perjury but in an honest witness's honest and thus particularly convincing belief that he or she has correctly identified the defendant as the offender. Depending on the facts of the particular case, a cross-racial identification may introduce further challenges into the Crown's case. With that background and the burden on the Crown to prove its case beyond a reasonable doubt, caution in identification cases must itself be omnipresent. That caution, however, does not preclude reliance on eyewitness identification, or partial reliance on it, in appropriate cases. Each nuance of each case must be measured on its own merits and ultimately weighed cumulatively with any other evidence relevant to the same issue.

21. I shall make some observations on the various elements of proof on which the Crown can rely. I agree with Ms. Schofield that some people will leave their wallet in places where they are not. However, I think it can also fairly be said that most people do not leave items of economic or other significant value in places that are not secure. The presence of a single piece of identification may be mere happenstance, for example. The presence of something more substantial may justify a more robust conclusion. The contents of Mr. Bao's wallet covered a vast range of his life activities – financial, mercantile, social, recreational and so on. The presence of the wallet in the van is not, on the facts of this case, a trivial piece of evidence. I agree that the fact that there was no receipt in the wallet from that particular day obviously makes the wallet a weaker piece of evidence than it would be if there was a receipt from that day, but the absence of such a receipt does not render the wallet a triviality.

22. The puffer is also not a trivial piece of evidence. The presence of a person's prescription medications in a place is a relevant consideration in assessing a person's links to that place. The puffer is reasonably proximate in time to the discovery of the marihuana in the van. At the same time, a person might possibly have multiple puffers at the same time. I have no evidence on that issue. There is, of course, no obligation on Mr. Bao to clarify that point. The burden is on the Crown.

23. Ms. Schofield did not fault Constable Storozuk for having looked at the OHIP card in the wallet. She accepted that that was a natural thing for a police officer to do on facts such as these. However, she argued that his looking at that OHIP card eviscerated the value of his identification evidence, quite apart from any fault on his part. That outcome, she argues, was simply an inescapable consequence of the way things played out. In making that argument, Ms. Schofield placed particular reliance on two decisions of this court, namely R. v. Bethune, 2010 ONCH 556 and R. v. Hwang, 2016 ONCJ 319.

24. I stress that I do not believe either that Constable Storozuk did anything at all wrong in his investigation of the van. For example, this is not a case such as R. v. Hwang, supra, in which the circumstances easily allowed for a proper line-up and in which there was a catalogue of credibility, reliability, situational and process issues arising from the identifying officers' testimony and in which the identification issue was effectively irrelevant insofar as the Crown's case on possession was, to be charitable, forlorn. I think the present case is also materially different from the circumstances in Bethune, supra, in which the potential for taint or unintended bias was significantly more palpable. In cases such as this, the fine factual differences can make a difference.

25. It also bears noting, however, that whether or not Constable Storozuk did anything wrong in light of the situation he found himself in, that is an entirely separate issue from the issue of whether the way things happened in relation to his discovery of the photo-identification in the glove box, arguably that "one-person line-up" irreparably impairs any value of his assertion that Mr. Bao was the driver of the van that day.

26. In assessing the weight to be given to an argument, it is often worthwhile to take a proposition and line it up against other propositions in the same area of law and see if the various propositions sit comfortably with one another. I think that if one takes Ms. Schofield's proposition about the supposedly irreparable taint that arises from Constable Storozuk having seen the OHIP photo and lines it up with other routinely accepted practices and outcomes, the proposition loses a great deal of its steam.[4]

27. For example, it is a daily reality that police officers will testify to having pulled a car over, to having received a driver's licence from the driver, to having compared that licence to the person in the driver's seat and to having concluded that the person at the wheel and the person in the driver's licence were one and the same person. Other than perhaps in situations such as where the driver has an identical twin, such an identification of the defendant as the operator of the car would not attract even momentary scrutiny, but it is, in its general terms the same as what Constable Storozuk did here. What is different is that the police officer in my "hypothetical" will be somewhat closer to the driver at the time of the identification and will have a substantially longer opportunity to make the comparison between the driver and the photograph. What is in common to both situations is that most drivers either have their licence on their person or in the glovebox or console of the vehicle they are operating. Nobody would dream of challenging the traffic officer's identification as a "show up" or a "one person line-up". It was instead an immediately contemporaneous comparison of a piece of official identification with an in-the-flesh driver. Subject to the other factors affecting the reliability of such a comparison or identification, for example, distance, lighting, duration, face covering, the observer's emotional state, distraction, face covering, etc. the identification would never be challenged.

28. What Constable Storozuk did in this case was not materially dissimilar to what was done by one of the police witnesses in R. v. Li, 2013 ONCA 81. In that case, the police were investigating a number of suspected grow operations. One of the officers noted a vehicle licence plate and from that obtained information about the registered owner and viewed a photograph of the registered owner. In later surveillance, about a week after viewing the photograph, the officer had intermittent viewings of a suspect over much of a day of observations. He identified that person as Mr. Li based on the Ministry of Transportation database photograph he had viewed earlier. He had not kept a copy of the photograph and no copy was tendered at trial.

29. On appeal, counsel for Mr. Li objected to the use of a single photograph (paragraphs 22 and 26 of Li) and to the alleged hearsay nature of the Ministry of Transportation database. The Court of Appeal, consisting of Watt, Doherty and Pepall, JJ.A., dismissed the appeal, noting:

[38] D/C Henderson was entitled to examine the photograph and compare the appearance of the person depicted there with the person he saw driving the vehicle seen at the grow operation away from that area to 18 Damian Drive. He was entitled further to compare the person in the photograph with the man he saw at 18 Damian Drive unloading the same vehicle that he had under surveillance for eight and one-half hours, and taking several things into the garage of Ng’s house. In essence, he was refreshing his memory.

30. Although the detective in Li appears to have had more than one opportunity to observe Mr. Li over the course of the day, and while I am prepared to accept that that opportunity was for a longer period than Constable Storozuk had to observe the driver of the mini-van (it could scarcely have been less), the present point is that the single photo issue was squarely before the Court of Appeal and did not find favour with that court.[5]

31. Ultimately, while other trial cases can provide helpful insight and guidance, I do not take the judges in Bethune and Hwang, supra, to gainsay the proposition that the necessarily painstaking assessment of whether or not identity has been proved beyond a reasonable doubt must be most firmly rooted in a consideration of every piece of evidence that relates to the issue and of the strengths, weaknesses and limitations of each of those pieces of evidence. Ultimately, identification involves umpteen shades of grey rather than bright yellow lines in relation to particular items of evidence. The only bright yellow line is the need for proof beyond a reasonable doubt.

32. In the present case, just as I see no misconduct in it, I see no bright yellow line, no irreparable taint, from the fact of Constable Storozuk viewing the OHIP card from the wallet in the van. The fact of the viewing is not conceptually different from the traffic stop scenario I have outlined above and the events of Li, supra, even if the details vary. That general comparability of the three scenarios (traffic stop, Li, the present case), of course, does not resolve the issue, as one still has to assess the overall quality of the identification Constable Storozuk was in a position to make. Among other things, it bears noting that his description of the driver was scant, effectively a dark haired, Asian male. While Constable Storozuk benefited from close proximity to the driver, through a window he said was open (which I accept as true), in good light given the time of day, his observation would have been very brief, insofar as a vehicle travelling at fifty kilometres per hour covers about fourteen metres in a second.

33. Taken by itself, such evidence of identity would necessarily be insufficient to satisfy the Crown's burden. However, the Crown can also rely on the wallet and its contents, as well as the puffer in order to establish the identity of the driver. I see the vehicle registration as a neutral factor. Just as a vehicle being registered to a person may add little or no weight to a determination of identity of the driver, the fact of a vehicle not being registered to a person does not help materially in discounting the possibility that that person was the driver.

34. Each of the wallet (with its various contents and dates) and the puffer, standing alone, would be insufficient to make out Mr. Bao as the driver of the van. The question is whether or not the combined effect of Constable Storozuk's observation and identification of the man on the health card as the driver of the van along with the wallet and its contents and the puffer suffices to meet the Crown's burden to prove identity beyond a reasonable doubt. I do not accept Ms. Schofield's contention that reliance on Constable Storozuk's observations plus reliance on the health card found in the van is a form of boot-strapping. It is, to the contrary an entirely routine process engaged in during tens of thousands of traffic stops every year. The presence of the wallet and its contents and the comparison of the image in Constable Storozuk's mind from a few minutes before with the image on the OHIP card are two conceptually independent pieces of evidence. In addition, there was much more to the wallet than just the health card. The visual observation of the driver and comparison to the health card is one element of proof, the contents of the wallet are a second and the presence of the puffer is a third. I have concluded on the facts of this case that the Crown has proved beyond a reasonable doubt that Mr. Bao was the driver of the van. I have reached that conclusion with one eye firmly on the concerns over eyewitness identification. I recognize that there will be stronger cases of identification than the present one, but the question is never whether the Crown's case might theoretically be stronger, but whether the Crown has met the standard of proof beyond a reasonable doubt. It has.

35. That, of course, is not the end of the matter. The Crown not only has to prove that Mr. Bao was the driver of the van but also that he was in possession of the van's illicit contents. As I have said, the concept of possession necessarily entails proof of knowledge of the presence of the items and some degree of control over those items. It is often the case that proof of one or both of knowledge and control will be found by inference from the evidence rather than directly.

36. Ms. Schofield argued that if the court cannot be satisfied that Mr. Bao was the driver, the presence of the wallet and the puffer are insufficient by themselves to prove beyond a reasonable doubt that he had possession of the van's contents. I agree with that proposition entirely. Here, however, I am satisfied that Constable Storozuk's identification of Mr. Bao as the driver does have value and am satisfied that the Crown has proved beyond a reasonable doubt that he was the driver.

37. Ms Schofield then goes on to argue that even if Mr. Bao was the driver, it does not necessarily follow that he had the requisite knowledge and control of the van's contents. She followed up that observation by noting that this was not her best argument. I agree with that last proposition also. While it is fair to say that Constable Storozuk did not notice the smell of marihuana on his first, seemingly brief, foray into the van to find documents, it is equally clear that he did notice the smell when he re-attended the van. The amount of marihuana in the van was very substantial. While the burden on the Crown is to prove knowledge and control beyond a reasonable doubt, that burden does not require the Crown to refute fanciful or spurious propositions. The quantity of marihuana, the smell and the flight from police are all circumstances that combine to make out the Crown's case on possession. I am satisfied beyond a reasonable doubt that Mr. Bao knew the marihuana was in the van and, as the driver of the van, had the requisite degree of control over it, even if there is a possibility that others shared that knowledge and control with him. In reaching that conclusion, I accept that there are various other possibilities for why a driver might flee from police, but my assessment of the sufficiency of the Crown's evidence cannot descend into consideration of other possibilities where that consideration would necessarily be speculative.

38. Accordingly, I find Mr. Bao guilty as charged of possession of marihuana for the purpose of trafficking.

RELEASED: 16 March, 2018[6]

[1] These reasons (but not the footnotes) were read in court at the time of Mr. Bao’s finding of guilt on 31 August, 2017.

[2] No evidence was placed before me about the tracking process so I can draw no inferences from the apprehension of those four people.

[3] Section 4(3) of the Criminal Code provides some particular rules for possession, none of which is helpful here.

[4] I have spent some time considering the comments of the Supreme Court of Canada in R. v. Araya, [2015] 1. S.C.R. 581, particularly the discussion around paragraph 36. In light of my reasoning hereafter, those comments do not alter my conclusion. That is not to say that a trier of fact should ignore the possibility of error in circumstances such as these, simply that the sequence of events is far from fatal.

[5] The Li decision was not available to the judge in Bethune, supra, and does not appear to have been referred to before the judge in Hwang, supra.

[6] Footnote 1 was corrected on 23 March, 2018. It previously referred to the wrong date of the finding of guilt.