Ontario Court of Justice
Date: 2019-05-17
Court File No.: Newmarket 18-09-213
Between:
Her Majesty the Queen
— AND —
Ali Reza Shalforoushzadeh
Judgment
Evidence Heard: 17 May, 2019
Delivered: 17 May, 2019
Ms. Pakosh ........................................................................................ Counsel for the Crown
Mr. Shalforoushzadeh ............................................................. Pro Se
KENKEL J.:
[1] Mr. Shalforoushzadeh is charged with assault contrary to s.265. A witness saw a man push a woman down into the street then get in a car and drive away quickly around her. A dash cam video of the end of the incident shows the car moving dangerously close around the woman at speed just as the witness described. The woman in the street was injured by being pushed onto the pavement.
[2] The defence did not call evidence. The witness was credible and the video evidence was consistent with her testimony in all respects except for the direction the car turned when it left. The sole remaining issue was identification.
[3] The complainant did not testify. The independent witness directly identified the accused from the dock. She did have an opportunity to see the person involved at the time of the incident, but she was unable to provide details to support her recollection. She testified that the person involved was of Persian background, darker skin with black hair. Not tall but muscular.
[4] The Crown submits that the dock identification combined with those details is sufficient to prove identity beyond a reasonable doubt. I disagree. The dock identification is an admissible expression of opinion, but the weight given to that identification depends upon the details provided. R v Jack 2013 ONCA 80 at paras 12-17. In this case the basic, general description could fit almost any male of that background. There's nothing that could reasonably support the identification of a particular person.
[5] The witness didn't think that the person who drove away had a beard like the accused has today. That's a prominent identifying feature and the lack of memory on that point is yet another circumstance showing the frailty of the dock identification. That might even be an exculpating feature if the accused had a beard at the time of the alleged incident.
[6] I find the Crown has failed to prove the accused before the court was involved in the altercation as alleged. The charge is dismissed.
Delivered: 17 May, 2019.
Justice Joseph F. Kenkel