WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) of the Criminal Code. This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

517. ORDER DIRECTING MATTERS NOT TO BE PUBLISHED FOR SPECIFIED PERIOD

(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) FAILURE TO COMPLY

Every one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2018-03-27

Court File No.: Newmarket 4911-998-17-00905

Between:

Her Majesty the Queen

— AND —

Donaldson Smith

Before: Justice A.A. Ghosh (delivered orally)

Heard on: February 1st, 5th, 6th, 7th, 28th, 2018

Reasons for Judgment released on: March 27, 2018

Counsel:

• S. Kumaresan — counsel for the Crown
• D. Heath — counsel for the defendant Donaldson Smith

Judgment

Ghosh J.:

Overview

[1] Donaldson Smith was tried before me for charges relating to a robbery with an alleged firearm at a residential property in Vaughan. Much of the Crown evidence has been agreed upon or conceded. Notably, the fact that the robbery occurred has been admitted. Identification is the key issue that requires resolution.

[2] The evidence tendered by the crown to establish identification includes the following:

(i) Video surveillance footage that partially captured the face of the suspect;

(ii) GPS tracking of the suspect vehicle that included apparent travels between the scene of the robbery and Mr. Smith's residence at relevant times;

(iii) Cell tower evidence supporting that a phone number associated with Mr. Smith was within a certain range of the robbery and his own home at relevant times;

(iv) Cell phone contact proximate in time to the robbery between the same phone number and two men confirmed to have been actively involved in the robbery;

(v) Mr. Smith's DNA located on a glove found in the suspect vehicle within hours of the robbery;

[3] Three men exited a rental vehicle and assaulted the homeowner in his driveway in order to rob him. Two of these offenders were Tenzin Dorjee and Migmar Tenzin. The third was a black male, submitted to be the accused. The rental vehicle was quickly driven away by a fourth individual before the robbery was completed. The homeowner broke away from his assailants, ran across the street and called the police using his cell phone. All of this was visually captured on the exterior video surveillance system of the home.

[4] The suspects then moved off-camera into the garage and robbed the homeowner's two teenaged sons of their cell phones and wallets. One of the suspects, allegedly the accused, appeared to brandish a firearm while doing so. The suspects then ran in the direction of a nearby church. The church parking lot was also equipped with an exterior video surveillance system. It captured the three suspects running and the licence plate of the attending suspect vehicle.

[5] Police responded quickly. The licence plate of the suspect vehicle returned to a car rental company located near the scene of the robbery. The vehicle was equipped with a GPS monitoring system. Within hours of the robbery, police were live-tracking the vehicle by GPS and were soon actively conducting mobile surveillance on it.

[6] Approximately seven hours after the robbery, the police executed a high risk takedown of the suspect vehicle and its occupants. The vehicle was in the process of being returned to the rental company by the named renter while the other three observed occupants attended a restaurant across the street. All four men were arrested. The accused was not among them.

[7] Two of the four men, including the renter of the vehicle, were investigated, cleared and released unconditionally. It is agreed that the other two men, Tenzin Dorjee and Migmar Tenzin, committed the robbery with a black male suspect. The cell phones and identification of the two teenaged victims were found on Mr. Dorjee. Among other inculpatory evidence, Mr. Tenzin was arrested wearing clothing similar to that worn by one of the suspects captured on video surveillance.

[8] Several white cotton gloves matching the appearance of the gloves worn by the suspects were seized from the rear seating area of the rental vehicle. Mr. Dorjee's DNA was found on one of the gloves. Mr. Smith's DNA was also located on another of the gloves.

[9] The following core issues require resolution:

(i) Identification of one of the suspects on video footage: Has it been established that Mr. Smith's face is captured as one of the suspects running on the church surveillance video?

(ii) Cell phone evidence: In light of the limited evidence led to connect Mr. Smith to the relevant phone number, what weight, if any, should be afforded the cell tower and cell phone contact evidence?

(iii) Unrecovered firearm: In the absence of a seized weapon, has it been proven that the robbery was committed with a "firearm"?

Identification Evidence – Church Surveillance Footage Capturing Suspect

[10] It is clear that within minutes of the robbery, the suspect vehicle and the perpetrators of the robbery are captured on the exterior video surveillance of the parking lot of a nearby church. It is a high definition recording containing some limited pixilation. While a hoodie is draped over the head of the black male suspect, at least half of his face is visible on the recording.

[11] The Crown submits that this suspect can be identified as Donaldson Smith. She further submits that there are two independent or complementary bases by which I can make such a finding:

(i) R. v. Leaney: An officer testified that he was acquainted with Mr. Smith and could recognize him on the video footage;

(ii) R. v. Nikolovski: The court can compare the video footage to the accused in court and determine that he is the offender;

[12] I will discuss each of these analyses in turn.

i. Recognition Evidence – R. v. Leaney

[13] It is settled law that the lay opinion of a witness purporting to recognize a suspect from a still image or a video recording is admissible. The test to determine the admissibility of this type of recognition evidence has been referred to by our Court of Appeal as the "prior acquaintance / better position" test, or the "Leaney / Brown test". The principles are derived from the Supreme Court's seminal ruling in R. v. Leaney, [1989] 2 S.C.R. 393; and elaborated by Justice Rosenberg of our Court of Appeal in R. v. Brown, [2006] O.J. No. 5077.

[14] Earlier in the proceeding I granted the Leaney application of the crown and admitted on a threshold basis an officer's testimony that he recognized one of the suspects on the church surveillance footage as Mr. Smith. In that ruling I had referenced several substantive concerns with the officer's testimony that would collectively serve to diminish the weight I could accord his recognition of Mr. Smith.

[15] Detective Constable Lavella of the Toronto Police Service testified that he was acquainted with Mr. Smith through his investigative work in the Parkdale area. It was ultimately conceded that the officer only had a single "face to face" interaction with the accused in 2013.

[16] In December of 2016, Detective Constable Boulay of York Regional Police contacted Officer Lavella regarding the present investigation. Officer Boulay told Officer Lavella that he believed Donaldson Smith and others may have been involved in the Vaughan robbery. At that time, Officer Lavella provided information from the Toronto Police Service Versadex system involving arrest reports and contact information of Donaldson Smith.

[17] In January of 2017 Officer Lavella was asked by Officer Boulay to review the surveillance footage from the church. He identified one of the running suspects as Mr. Smith. During the voir dire the video footage from the church was again played for Officer Lavella. The officer confirmed that Donaldson Smith was one of the suspects captured on the video.

[18] He referred to Mr. Smith's facial features grounding his confidence in the identification. In terms of distinguishing features, the officer noted that Mr. Smith was a black male with a scar near centre of forehead, which he agreed could not be seen on the video. The officer also noted that Mr. Smith had elevated cheekbones and an oval face. He always recalled that Mr. Smith had short black hair.

[19] Officer Lavella's recognition of Mr. Smith was problematic on multiple fronts. He admitted during cross-examination that he only had a single face-to-face interaction with Mr. Smith, and this was contrary to the tenor of his evidence in chief. The officer agreed that he was likely mistaken in describing Mr. Smith as having short hair and a moustache at the time of an arrest, as the related report reflected "cornrows" and a "thick beard". He also acknowledged counsel's suggestion that Mr. Smith is much shorter than the officer estimated. Of some significance, the officer agreed that when he was shown the church surveillance footage he already knew that Donaldson Smith was a person of interest in the associated robbery.

[20] For these reasons I accord very little weight to the officer's evidence that he recognized Mr. Smith on the church surveillance video. His ultimate opinion, however, happens to align with my own.

ii. The Court's Assessment of the Video: R. v. Nikolovski

[21] It is has long been established that a judge can compare a video of sufficient quality to the accused in court in order to identify the offender. At paragraph 23 of the Supreme Court's direction in R. v. Nikolovski:

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.

[22] As described earlier, the video footage in question is a high definition recording with some limited pixilation. While the suspect had his hoodie draped over his head, over half of his face is exposed and his facial features can still be relatively clearly discerned.

[23] While the Nikolovsky procedure is well established, a great deal of circumspection is required in such an analysis. The judge cannot be cross-examined. The application of the Nikolovsky analysis engages many of the cautions associated with identification evidence as distilled by the Supreme Court in R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445. It is an especially weighty obligation on the court to be precise and judicious in the assessment of this type of evidence, always bearing in mind the standard of proof.

[24] I have observed the video and the extracted stills multiple times. I observed Mr. Smith in court closely over the course of five days of evidence and submissions. I, of course, do not know him. I am, however, persuaded beyond a reasonable doubt that he is the individual captured running on the church video recording. At a minimum, there is a remarkable resemblance between the suspect and the accused.

The Foundation and Cogency of the Cell Phone Evidence

[25] The cell phone evidence, comprised of cell tower evidence, text messages, cell phone contact with the other perpetrators, is compelling. In accumulation with the rest of the evidence, it could comfortably support Mr. Smith's guilt beyond a reasonable doubt.

[26] The cell phone evidence, however, sits atop an unstable foundation. No cell phone hardware was recovered. The only evidence linking Mr. Smith to the relevant phone number is a document found in an abandoned rental car during an unrelated investigation some weeks before the robbery.

[27] Earlier in the proceedings I admitted this document over the objection of Mr. Smith's counsel. I will now expand on my reasons for doing so. On September 16th, 2016, two officers with the Toronto Police Service investigated a sedan with an unlatched hood. Before the officers could approach the suspect vehicle, it drove away. The officers pursued it and soon found that it had collided with a parked vehicle.

[28] The three occupants, which included a black male, exited the vehicle and fled on foot. Only a male named Ho Van Nguyen was apprehended and later charged with drug offences. The rental agreement seized from the vehicle was in Mr. Nguyen's name.

[29] Police also seized from the vehicle, an apparently completed application for compensation to the Criminal Injuries Compensation Board. It was dated August 31st, 2016, and bore the name of Donaldson Smith with a signature underneath. The listed cell phone number would be later used by York Regional Police to obtain production orders that would further connect Mr. Smith to the Vaughan robbery. The original document was digitally scanned into the police record keeping system and then apparently destroyed when the investigation was closed. A photocopy was received in evidence.

[30] Many of the representations made on the handwritten portions of the document were corroborated. The listed address and unit number was confirmed by the testimony of Mr. Smith's mother. She also confirmed that her son had indeed been shot as was claimed in the application.

[31] The nature of the document further supports its admissibility and cogency. The applicant was seeking monetary compensation, and it was completed, dated and signed. It can be inferred that the person completing such an application would take some care in providing accurate contact information. I will return to the listed phone number in my concluding remarks.

Unrecovered Firearm

[32] The Crown can establish that an unrecovered weapon is a "firearm" within the meaning of the Criminal Code where evidence is led to satisfy the standard of proof. This evidence will often involve the cumulative effect of a description of the weapon along with the circumstances of its use. See our Court of Appeal's analyses in R. v. Gordon 2017 ONCA 436, [2017] O.J. No. 2802; R. v. Charbonneau, [2004] O.J. No. 1503; R. v. Richards, [2001] O.J. No. 2286; R. v. Carlson, [2002] O.J. No. 1884 (C.A.); R. v. Wills, 2014 ONCA 178, [2014] O.J. No. 1069

[33] Pino Guido testified that one of his assailants showed him a "gun" partially concealed in the waistband of his pants. The video recording supported that the weapon at one point was held out by one of the suspects. Mr. Guido "absolutely" believed the firearm to be real. It was black with a barrel about six inches in length. He recalled one of the suspects using the word "kill" during the encounter, as they tried to direct him back into the house. Mr. Guido believed the threat to be real, but determined that if he was forced back into the house his jeopardy would heighten.

[34] Eighteen year old Anthony Guido heard the commotion and walked into the garage from inside the home. The suspects were now inside of the garage and had pulled his younger brother out of the parked truck. One of the suspects pointed a "gun" at Anthony Guido's pockets and demanded its contents. He turned over his cell phone and wallet. Anthony Guido also believed the firearm to be "real", given the manner in which it was used. He described it as a black handgun or pistol with a grey top.

[35] Sixteen year old Michael Guido tried to exit the passenger seat of the truck parked in the garage after he saw his father assaulted in the driveway. One of the suspects, a black male, quickly pointed a "gun" at his chest and directed him out of the vehicle. He complied and turned over his cell phone and wallet. Michael described the gun as dark grey or black.

[36] The three victims consistently described the weapon as a firearm that they believed was real. By pointing it and threatening harm, the suspect brandishing the weapon used it to instill fear and the impression that the weapon was operable. The crown additionally led police firearm expert evidence that extracted photographs from the cell phone of one of the perpetrators corroborated that the weapon brandished during the robbery was an operable firearm.

[37] Based on the evidence of the victims, I am satisfied that the crown has established beyond a reasonable doubt that the robbery was conducted with the use of a "firearm".

Conclusion

[38] Between 12:50-6:22 a.m. on the morning of the robbery, the cell phone number associated with Mr. Smith connected repeatedly to a tower near his home at 25 Martha Eaton Way. By 8:26 a.m., just after the robbery, this same phone number connected with a tower within several kilometres of the victimized home. By 9:11 a.m., the cell phone connected again with a tower near Mr. Smith's home in Toronto.

[39] Cell tower evidence, while compelling in appropriate circumstances, is associated with well-established limitations. Generally a signal from a cell phone will connect with the nearest cell phone tower generating a locational record. There are exceptions and limitations to this rule involving physical obstructions and growing distances between towers in more remote areas. The range of the captured signal can expand to several kilometres.

[40] The cell tower evidence in this case is arguably superfluous in light of the GPS evidence of the rental vehicle. Eddy Stevens testified as the owner of GPS I-track solutions, the company that equipped the rental vehicle with the tracking device. I disagree with counsel that the witness testified with the undue zeal of a product promoter. His evidence was not substantially contested.

[41] Mr. Stevens testified that the device installed in the suspect vehicle relayed its location every few seconds and was accurate to within several metres. In his experience, the locational information conveyed by one of these devices was almost one hundred percent accurate.

[42] The GPS data supported that the vehicle used in the robbery attended at 25 Martha Eaton Way at 6:13 a.m., the apartment building where Mr. Smith resides. The exterior video surveillance system of that address revealed that a vehicle matching the description attended the property at that time. The home video surveillance system of the victimized residence supported that a vehicle matching the description dropped off the three offenders at 8:07 a.m. This, too, was supported by the GPS evidence.

[43] By 8:52 a.m., the GPS data supported that suspect vehicle returned to 25 Martha Eaton Way. A vehicle matching the description can again be observed on the exterior video surveillance system of the property. A male can be observed exiting the vehicle wearing clothing similar to that worn by the suspect that I have determined to be Donaldson Smith from the church footage.

[44] During the robbery, the perpetrators wore white gloves. This was captured on the home and church video recordings. Seven hours after the robbery, the vehicle used during its commission was in police custody. Mr. Smith's DNA was found on one of the cotton gloves found within the vehicle.

[45] Considering the evidence in totality, I am persuaded beyond a reasonable doubt that Donaldson Smith committed the robbery with the use of a firearm. Accordingly, there will be findings of guilt on all counts.

Released: March 27, 2018

Signed: "Justice A.A. Ghosh"