Court Information

Ontario Court of Justice (Toronto Region)

Date: May 25, 2018

Her Majesty the Queen Respondent

- And –

Khin Voong Applicant

Ruling on Identification Evidence

Submissions: 18, 23 April 2018 Judgment: 25 May 2018 (37 paras.)

Counsel for Applicant: Alan D. Gold, Laura J. Metcalfe, Alex I. Palamarek

Counsel for Respondent: David A. Mitchell

Libman J:

Background and Context

[1] In a companion decision released today, I found that the applicant lacks a reasonable expectation of privacy in order to challenge the search by the police of the MTO driver licence database under s. 8 of the Charter of Rights and Freedoms. As a result, his application to exclude the evidence seized by the authorities in this search was dismissed.

[2] It was through this search, however, that the police came to suspect that the applicant, Khin Voong, was the holder of several fraudulently obtained driver's licences which he had used in the past. Indeed, it is an offence under s. 35(1) of the Highway Traffic Act to retain more than one driver's licence, or to be in possession of one that is obtained fraudulently.

[3] The Act, as previously noted, also authorizes the use of photo-comparison technology to compare the photographs taken of any applicants for or holders of a driver's licence or photo card: s. 32.2.

[4] So it was in this manner that the authorities came to believe that a number of other driver's licences, issued under the names of Andy Lau, Junior Ma Fiah, Leon Li, Phuc Yu, Bruce Chan, Jackie Cheung and Bruce Li were one and the same person.

[5] Persons using driver's licences in some of these names were charged, in fact, by the police with Criminal Code drinking and driving and other offences in 2003 (Bruce Li) and 2004 (Jackie Cheung), as well as 2012 (Bruce Chan). However, the individual using these names never showed up for court after being released on bail and has never been located afterward.

[6] In 2015, using the facial recognition or photo comparison technology at its disposal, a search of the Ministry of Transportation (MTO) Driver Licence database led the authorities to believe the person who used these seven other identification documents is the applicant, Khin Voong.

[7] The applicant has brought a number of Charter of Rights challenges in respect of each of these interactions with the police, as well as the time of his arrest in 2015. They include applications to exclude evidence on the basis that there were no reasonable and probable grounds to stop and investigate him, warrantless samples of his breath were taken, that he was arbitrarily detained, and not afforded his rights to counsel or properly given the reasons for his arrest.

[8] In common, however, is the assertion that the Crown has failed to prove that the applicant, Mr. Voong, is the person who the police investigated for using and applying for false driver's licences, and thus the subject of all the 26 charges before the court.

[9] The identification issue arises in this case in most unique circumstances, as I shall endeavor to explain.

The Crown's Case on Identification

[10] To begin, the Crown acknowledges that the photo-comparison technology which gave rise to this investigation, and authorized under the Highway Traffic Act, is not of sufficient means to substantiate proof of identification. That is to say, while the authorities relied upon the technology to investigate Mr. Voong, it is not put forth as proof of identification of him as being the individual who used or obtained the fraudulent identification documents in question.

[11] Second, the Crown has adduced no proof of identification of the defendant through any of the witnesses it called during the presentation of its case. Thus, the police officers who investigated Bruce Li in 2003 were not asked to identify this person as the accused person, Mr. Voong, before the court. Neither did the officers who charged Jackie Cheung in 2004 provide such identification evidence. Finally, the officers dealing with Bruce Chan in 2012, were not asked to identify this party as being the defendant, Mr. Voong.

[12] In addition to the evidence of these investigating police officers, there are also booking hall procedure recordings in relation to the 2004 and 2012 charges. None of the officers involved in these interactions with the arrested person as he was being processed into custody, and ultimately released, has been asked to provide identification evidence, that is, to identify Mr. Voong as the person they dealt with at the police station.

[13] The Crown's case, then, comes down to the Court being asked to view the identification documents stored on the MTO driver licence database (Exhibit 1), including the photographs of the driver, as well as the booking hall videotapes, to find that Mr. Voong is the suspect in the 2003, 2004 and 2012 incidents, as well as the person who submitted the fraudulent documents in support of the other driver licence applications (Andy Lau, Junior Ma Fiah, Leon Li, Phuc Yu).

[14] In support of his position, Mr. Mitchell notes the pattern of use of obvious fictitious male Asian names, including movie or recording celebrities, or nonsensical terms when anglicized. The MTO documents summary reveals other similarities, such as the use of Citizenship Cards in support of most of the driver licence applications.

[15] Further, all of these persons are Asian males, like Mr. Voong, with dates of birth not dissimilar to his (3 April 1977). Including the defendant, six of the parties have birthdays in the month of April, being 1 April 1974 (Andy Lau), 2 April 1978 (Junior Ma Fiah), 4 April 1974 (Phuc Yu), 1 April 1973 (Jackie Cheung) and 1 April 1980 (Bruce Chan). Three of these birthdays also correspond with April Fools' Day, being another indicator of their illegitimacy, in Mr. Mitchell's view.

[16] When one looks at the similarity of the person shown on the driver's licence photographs, and depicted on the booking videos, the odds are "astronomical", according to the Crown, that it could be anyone other than the defendant, Mr. Voong, who is the person responsible for applying for a driver licence in these other names. Indeed, he notes that the defendant in some of these cases revealed to the investigating officers that they suffer from asthma, and take the same medication for it, thereby enhancing the likelihood that the same person is involved.

[17] It is open to courts to base proof of identification on videotape or photographic evidence, in the absence of eyewitness identification evidence, submits Mr. Mitchell. He cites the Supreme Court of Canada's decision in R v Nikolovski, [1996] 3 S.C.R. 1197 in this regard. Hence, the absence of an "intermediary in the form of human witness to make some identification of the accused" (para. 22) is not fatal to the Crown's case.

[18] Thus, in the Crown's view, when the evidence of surrounding inculpatory circumstances is taken into consideration in this case, the identification of the defendant as the party responsible for all of these identification documents in the MTO database has been proven beyond a reasonable doubt.

The Defence Position

[19] Mr. Gold, for the defence, takes a very different view of the matter. There is a very real danger for a miscarriage of justice were the Court to act on the record before it, and provide, on its own, identification of the defendant as the party in question. After all, no police officer investigating the accused, or booking officer interviewing him, is able to identify Mr. Voong as one of these other individuals. Indeed, the MTO driver licence database that the police relied on to investigate him, is not sufficiently trustworthy to prove his identity either, as conceded by the Crown.

[20] In the view of the defence, then, the identification evidence relied upon by the prosecution falls far short of proof beyond a reasonable doubt that Mr. Voong is the party who is responsible for the impugned identification documents in the MTO driver licence database. There are numerous reasons for the exercise of caution in this regard.

[21] To begin, it is noted, the photo-comparison technology that the Crown relies upon, not for proof of identification, but to cast suspicion on the veracity of the seven other parties' identification documents, is not infallible. If the technology was sufficiently reliable to identify multiple parties as being one and the same, the Crown would avail itself of it. It should therefore not be used to cast doubt on the identification documents of others, given this concession.

[22] Moreover, there is no evidence before the Court as to how many parties in the MTO driver licence database have similar names such as the parties arrested by the police in 2003 (Bruce Li), 2004 (Jackie Cheung) and 2012 (Bruce Chan). In the absence of same, it is unknown how common or unusual these names in fact may be. Moreover, there is no evidence linking any of the eight names, including Mr. Voong, such as having the same address. Likewise, it is unknown how common the dates of birth, including April 1, are in the MTO driver licence database, or the motor vehicles being driven by these parties.

[23] The defence concedes that, in appropriate cases, it is open to the Court acting on its own to base proof of identification upon viewing photographs and videotapes. However, as the Supreme Court cautioned in Nikolovski, triers of fact, including judges "must exercise care" in reaching a conclusion as to identification based solely on such evidence (para. 30). The clarity and quality of the videotape evidence, in particular, is a relevant consideration.

[24] In this case, however, none of the witnesses called by the Crown, all of whom were police officers who investigated the parties in person, including booking hall officers, is able to identify the defendant as the person they dealt with. The fact that he is an Asian male whose photograph is said to be depicted on the identification documents in the MTO driver licence database carries with it a significant risk of a miscarriage of justice in the circumstances of this case, there being an even greater need for caution when approaching the inherent frailties of identification evidence in a cross-racial proceeding.

Court's Analysis and Findings

[25] Approaching the matter, then, with these respective positions of the parties in mind, I am of the respectful opinion that the identification evidence put forth by the prosecution falls far short of being cogent and reliable evidence of proof of the defendant's identity as the party responsible for applying for, and using, the alleged false driver's licences.

[26] To be sure, the presence or absence of surrounding inculpatory circumstances serves to bolster, or detract, from weaknesses in identification cases. In respect of the former, its effect may so "enmesh a criminal that his physical identification at the time of the crime may be of little importance": R v Harrison, [1951] B.C.J. No 97 (C.A.), per O'Halloran J.A. at para. 3.

[27] In this case, however, there is very little such evidence linking the defendant to either the three incidents resulting in the arrest of the party in question, or identification documents contained in the MTO driver licence database. With respect to the former, no police officer from the 2003, 2004 or 2012 investigations has identified Mr. Voong as the party he/she investigated, charged or released. In such circumstances, it seems to me, there is an especial need for caution when acting on such identification evidence.

[28] This is not a case, in other words, where no witness is available to identify the defendant as the suspect in question. To the contrary, the police witnesses are unable to identify the defendant based on the same evidence that the Court is urged to act on, such as the booking hall videotapes, or photographs retrieved from the MTO driver licence database.

[29] It is also significant, in my respectful opinion, that at the time of Mr. Voong's arrest on 18 March 2015 there was no evidence found on him, such as fraudulent identification documents, or motor vehicle registration information, that ties him to any of the other alleged fraudulent incidents. Apart from being an Asian male with a date of birth in early April, there is no evidence that he owned or drove a car similar to the ones used by the other parties suspected of using false identification documents in the MTO driver licence database.

[30] Indeed, on the day of his arrest he was followed while driving a blue Tundra motor vehicle which was registered to a post office box address on Yonge Street. He was observed, in fact, leaving a residential address on Empress Avenue in Toronto and going to a civic building in Etobicoke, where he was waiting in line for a building permit, when he was apprehended by the authorities. Neither this vehicle, nor any of the others located at the defendant's residential address, are associated with the previous incidents or MTO driver licence documents.

[31] I am prepared to find, as submitted by the Crown, that the seven identification documents culled from the MTO driver licence database are very likely questionable. But to what end, one may ask. While Mr. Mitchell submits that the chances are astronomical that anyone other than one party, in this case the defendant, would be responsible for applying for such driver's licences, the question is "astronomical" in which universe. That is, there is simply no evidence how many other driver's licences have been issued in similar names, and with similar dates of birth, and how common or uncommon these names and dates of birth may in fact be.

[32] Finally, I do not think it would be safe to act on the fact that I have viewed Mr. Voong in court, appearing on a booking hall videotape many years ago, or note the way that he parts his hair in the middle or seems to speak, including the reference to taking medication for asthma in more than one instance. I appreciate voice recognition evidence is not required to identify a speaker, or any special training must be gained in order to express an opinion on the person's physical appearance. However, the differing vantage points in the booking procedure videotapes, tone of audible voice of the subject, angle of the person's height, distance from facial features such as eyes and nose, all point to the need for the exercise of caution in basing proof of identification on such evidence alone.

[33] It would be manifestly unsafe to act on such evidence, having regard to the inherent frailties of identification evidence, in addition to the absence of virtually any other evidence confirming the identification evidence put forth by the Crown: R v Quercia, 75 O.R. (2d) 463 (C.A.).

Conclusion

[34] In summary, it may well be that the suspicious driver's licences and supporting documents put forth by the prosecution, including the party's photograph, are not legitimate. But it is quite another matter to conclude, beyond a reasonable doubt, based on the record before me, that Mr. Voong is the party either associated with the seven questionable driver's licences, or the subject of the 2003, 2004 and 2012 arrests and charges. Respectfully, I am unable to reach the conclusion that Crown counsel urges the Court to draw with respect to proof of identification.

[35] For these reasons, the accused will be found not guilty of all the charges before the Court.

[36] As a result of this determination, it is not necessary for me to consider the various Charter of Rights challenges brought by the applicant in relation to the respective incidents giving rise to the arrest of the parties in 2003, 2004, 2012 and 2015.

[37] A final comment is in order. Three weeks were set aside for these proceedings. The evidence was heard, in fact, over five days, and submissions on less than two others. This case demonstrates that where counsel narrow the issues and use court time economically and wisely, including filing written submissions, document briefs, casebooks and the like, it is of great benefit to the administration of justice, especially in this post-Jordan world. It would be remiss of me to conclude these reasons without acknowledging the exemplary manner in which all counsel, including their associates, have conducted themselves. They are role models for all.

R. Libman J.

Date: 25 May 2018