ONTARIO COURT OF JUSTICE DATE: 2021·03·25 NEWMARKET

B E T W E E N :

HER MAJESTY THE QUEEN

— AND — RAMSEY SAFIEH

JUDGMENT

Evidence and Submissions Heard: 25 March, 2021. Delivered: 25 March, 2021.

Mr. Philip Hsiung ....................................................................................... counsel for the Crown Mr. Stacey Taraniuk ............................................................................ counsel for the defendant

KENKEL J.:

Introduction

[1] Police went to an address to investigate a Mercedes SUV that had been involved in a hit-and-run incident where a police cruiser was struck. As they entered the area, they saw the vehicle behind them. The vehicle passed and entered a driveway. The driver got out and one officer called out “Hey Ramsey” as they believed Mr. Safieh would be driving the vehicle. The driver looked at them and then ran back into the car. The driver fled, driving across a lawn, sidewalk and curb to avoid the officers who had moved their vehicle behind the Mercedes. Both officers saw the driver and they identified him as Mr. Safieh at trial. Mr. Safieh is charged with dangerous operation of a conveyance, failing to comply with probation including a term not to operate a vehicle, and operating a conveyance while prohibited.

[2] The sole issue is whether the Crown has proved the identification of the driver beyond a reasonable doubt.

Identification Evidence

[3] It is well settled law that eye-witness identification evidence can be notoriously unreliable and should be approached with considerable caution by triers-of-fact – R v Bulloch, [1999] OJ No 3106 (SCJ) at para 49.

[4] This case is typical in that it is ultimately the reliability of the officers’ identification that is at issue not the credibility. See: R. v. Jack, 2013 ONCA 80, [2013] OJ No 519 (CA).

Analysis

[5] An assertion of identification in court is an opinion, a statement of conclusion. Whether that statement carries any weight standing alone depends upon the circumstances. In most cases, where a person is identifying a stranger, the statement of their conclusion in court alone (dock ID) carries little or no weight, even if conveyed with great certainty.

[6] In some cases involving recognition, the circumstances may show the opposite, that the conclusion should be given great weight. If a witness says, “Of course I recognized her, she is my sister. I’ve known her all my life”. That evidence may well be given significant weight even if the Crown does not go through every detail of the comparison head to toe. However, even in a recognition case, the same cautions about identification evidence apply and the trier-of-fact must still be warned of the general frailties of such evidence – R. v. Olliffe, 2015 ONCA 242, at paras 38-40.

[7] This case involves recognition. It is not recognition from lifelong association, but rather from seeing a photograph. One officer said he may have had past dealings with Mr. Safieh, but he couldn’t remember any particulars, so it’s plain that if he had such prior contact there was no memory that would assist his present recollection. This recognition by both officers was closer to a stranger identification, but the fact that the officers had seen the photograph and had the photo with them takes it out of the category of simple “that is the person” dock identification.

[8] There was some time spent at trial on the position of the officers and their vehicle at the time of their observation, but the photographic evidence shows the driveway in the recent subdivision was relatively small and any one of the estimates of distance would have been close enough to see the driver as they described. There was some suggestion of collusion between the officers on the point of identification, but the evidence of the two officers overall including some inconsistencies based on their personal vantage points showed there was no collusion. I accept both officers were testifying to the best of their recollection and belief.

[9] The Crown’s case focused on the direct identification of the officers. Considering all of the circumstances, while I accept that the officers were credible witnesses, I find their direct evidence does not identify the driver beyond a reasonable doubt for the following reasons:

• It was dark at the time of observation although I accept there was street lighting in the area as shown in the photographs of the scene.
• The officers had only a brief time to directly view the driver’s face. The entire incident was measured in seconds and only for a portion of that time did the driver look at the officers when they called out to him. That’s important because the officers had only a photograph of Mr. Safieh’s face for comparison.
• The officers did not provide reasons for their conclusion as to identity. Their testimony did not compare the driver they saw to the photograph they had studied. One officer wrote down no description, the other noted only a few general points that wouldn’t identify a particular person.
• The evidence of the officers was not supported by any pre-trial identification procedure.

[10] I find the circumstantial evidence adds little to the Crown’s case.

[11] There was evidence, in a statement of address on a probation dated January 13, 2017, that the accused resided at the address in question. However, several other documents from the Ministry of Transportation state his last known address was in Beeton as of May, 2019. There is no direct or circumstantial evidence showing his address at the relevant time. There’s no evidence he was related to anyone at that address. There’s no evidence of any association between Mr. Safieh and the vehicle or its owner.

[12] In some cases flight can be a relevant circumstance going to identification. In this case I find it does little to assist the Crown for two reasons:

• The police were in plain clothes, in an unmarked car at night, and never had the chance to identify themselves to the driver.
• While Mr. Safieh certainly had reason to flee given his probation and driving prohibition, there is evidence from both officers that they were investigating an incident where someone driving that Mercedes SUV hit a police car. In that case, any person driving the Mercedes may well have had a reason to flee in relation to the prior incident. The fact of flight in this case does not help identify the driver to the exclusion of others.

Conclusion

[13] Considering all of the evidence as a whole, I find that the Crown has not proved that Mr. Safieh was the driver as alleged beyond a reasonable doubt.

[14] The charges are dismissed.

Delivered: 25 March, 2021.

Justice Joseph F. Kenkel