ONTARIO COURT OF JUSTICE DATE: 2021 09 17 COURT FILE No.: Brampton 20-1257-03

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JAIDEEP SINGH

Before Justice A.R. Mackay

Heard on August 30, 2021 Oral Reasons for Judgment released on August 31, 2021 Written Reasons for Judgment released on September 17, 2021

Counsel: Sarah Burton ...................................................................................... counsel for the Crown Carolyn Gandy.................................................... counsel for the accused Jaideep Singh

MACKAY J.:

Overview

[1] Mr. Singh is charged with possession of stolen property and dangerous driving as a result of being found in a stolen vehicle on January 8, 2020.

[2] The two issues I must determine are: (1) identification with respect to the dangerous driving charge; and (2) knowledge and control with respect to the possession charge.

[3] As in any criminal case the Crown must prove the guilt of the accused beyond a reasonable doubt.

[4] On January 8, 2020 Cst. Grove observed a red Chrysler driving erratically. The driver went through a red light, drove on a median and at one point drove into opposing traffic. After running the plate of the vehicle Cst. Grove believed the vehicle to be stolen. The driving conditions were poor, the ground was snow-covered and the traffic was heavy. Cst. Grove drove up to the vehicle and glanced briefly at the driver, however the driver drove off and given the dangerous manner in which the vehicle was driven, Cst. Grove decided it was safer for others on the road to abandon his pursuit.

[5] Approximately four hours later Cst. Grove was called upon to investigate another stolen vehicle, a BMW. When attending an address to have the BMW towed, he located not only the stolen BMW but, in the same driveway, he observed the red stolen Chrysler he encountered driving dangerously hours before. Mr. Singh was found in the front passenger seat. Another South Asian male was in the driver’s seat and another South Asian male was in the backseat. The vehicle in question, a red Chrysler, had been stolen approximately a week before Mr. Singh’s arrest.

Identification

[6] The defence contends that this is a case of honest but mistaken identification on the part of Cst. Grove.

[7] Cst. Grove was quite confident in his identification of Mr. Singh as the driver of the red Chrysler. He had observed the driver for a few seconds as he pulled up beside the red Chrysler. At the same time, Cst. Grove pulled alongside the driver, the culprit was brushing snow off his driver’s side mirror. Cst. Grove agreed that the culprit’s attention would be turned towards the mirror and not to him. However, Cst. Grove also stated that he had a few seconds to make direct eye contact with the driver. He described the culprit as a South Asian male who was approximately 25 years old with long black hair. Cst. Grove did not provide any further description.

[8] Immediately when Cst. Grove approached the parked red Chrysler, he recognized the defendant as the driver of the red Chrysler. However, at this point in time Mr. Singh was seated in the front passenger seat. Cst. Grove could not provide a description of the other two males, except to say that they were approximately, 26 and 30 years old, South Asian males with black hair. He did not advise whether the other males had long hair or whether any of them wore a turban.

[9] The description provided by Cst. Grove was a generic one of a young South Asian male with no distinguishing features. Although Mr. Singh now has a beard and a turban, Cst. Grove was equally confident that he was the same male he arrested. Ms. Burton asked Mr. Singh to pull down his mask in court and Cst. Grove confirmed that he was the culprit who drove dangerously on the day in question.

[10] Ms. Gandy, counsel for Mr. Singh, argued that the identification is suspect because Cst. Grove was, at the time he observed the culprit, affected by fear or excitement and that this may in turn have affected his ability to perceive clearly and to later recount the events accurately. While the Supreme Court has included such a factor as important to consider when assessing the reliability of an identification, I do not believe that this factor is applicable here. [1] Cst. Grove is a seasoned officer. I doubt that this HTA event would have caused him much excitement. In fact he decided early in his pursuit to end it so as not to cause other motorists any further danger.

Law and Analysis

[11] The law is well settled that identification evidence is inherently frail and that mistaken identification by honest witnesses has led to wrongful convictions. [2]

[12] Particularly where the suspect is unknown to the eyewitness, there is the danger of an honest but inaccurate identification. For the most part, it is the reliability, not the credibility, of the eyewitness' identification which must be established. [3]

[13] In R. v. Quercia, [1990] O.J. No. 2063, at para. 5, Doherty J.A. observed:

The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law.

[14] An assessment of the reliability of the identification evidence always depends upon a thorough consideration of the basis for the witnesses' conclusion. [4] The poorer the quality of the eyewitness identification evidence, the greater the danger. [5]

[15] There are many factors set out by our appellate courts to consider when assessing the integrity of identification evidence. The following are applicable here: There is a greater concern when the suspect is a stranger or when the opportunity to see the suspect was only a fleeting glance. When a description of the suspect is committed to writing immediately after the incident more confidence can be had. In this case, Mr. Singh was a stranger to the officer. Cst. Grove did not make any notes of his observations of the driver for approximately four to five hours after the event and not until after he arrested Mr. Singh in the driveway where the BMW was located. Cst. Grove did not make a note earlier as he did not believe that he would have an opportunity to arrest the male.

[16] I would not say the circumstances in this case raise a concern of tainting. When the officer next saw Mr. Singh he was seated in the car but in the passenger seat. Had Mr. Singh been in the driver’s seat it could have been argued that this may have tainted the officer’s recollection.

[17] Another potential area of concern are the risks involved in cross-racial identification; that is, that there is a greater chance of error on the part of people of one race when identifying those of another than when identifying those of their own. [6] The Court of Appeal expects trial judges to self-instruct on this issue. [7] We do so without expert evidence because judicial notice can be taken of this phenomenon. [8] Cst. Grove is white and Mr. Singh is South Asian.

[18] Cst. Grove could not give any description of the culprit’s clothing nor any distinctive features of his physical appearance. Had the officer said that Mr. Singh was the only one out of the three men in the car with long black hair, this would have given me more confidence in his identification. Similarly, Cst. Swartz, a second officer on scene, only provided a very generic description of the three South Asian males found in the red Chrysler. He recalled that they were in their mid-20s, “not that old”. He did not record any description of the males in his notes. Cst. Swartz attended the location with Cst. Grove to seize the white BMW. He arrested Mr. Singh and transported him to the division while Cst. Groves dealt with the other two males.

[19] Other than Cst. Grove’s identification and the fact that Mr. Singh was in the passenger seat of the vehicle four hours later, I do not have anything else that would confirm that Mr. Singh was the driver of the red Chrysler at the time Cst. Grove saw the vehicle driving dangerously. Keys were not found on the defendant’s person.

[20] Although I am satisfied that Cst. Grove was being forthright with the court when he identified Mr. Singh as the driver of the red Chrysler, I am left in a state of reasonable doubt as to the reliability of that identification. Accordingly, with respect to the dangerous driving count, there will be a finding of not guilty.

[21] Turning now to the issue of whether the Crown has proven that Mr. Singh was in possession of a stolen vehicle.

Possession

Law and Analysis

[22] Possession requires both knowledge of and control over the thing said to be possessed. [9]

[23] Ms. Burton submits that given the doctrine of recent possession knowledge and control have been made out.

[24] Absent an innocent explanation, the possession of recently stolen goods may permit an inference of guilt on counts of possession of stolen property: R. v. Kowlyk, [1988] 2 S.C.R. 59 (S.C.C.). The doctrine of recent possession was explained as follows in R. v. L'Heureux, [1985] 2 S.C.R. 159 (S.C.C.):

[TRANSLATION] This doctrine allows the Court, when a person is in possession of a stolen thing, to infer that the person knew that the thing had been stolen even absent other evidence of guilt. Except in the event that the person contradicts himself while giving evidence, the Court must acquit him if it is possible that his explanation could be true, even though the Court is not convinced that it is.

[25] Determining if possession is recent is a question of fact. The period between the date on which the item was stolen and the date on which the person is found in possession of it is an important factor in this determination.

[26] Mr. Singh was found in the red Chrysler about a week after it was stolen and did not provide an explanation as to why he was in the vehicle. It is important to note however, that the defendant did not speak English very well and the officers were not able to carry on a conversation with Mr. Singh nor with the other males in the vehicle for the same reason.

[27] The Crown also submits that in addition to recent possession Mr. Singh further implicated himself by providing a false name when being investigated. While I agree with the Crown that this is a factor I can take into account, it is also possible that Mr. Singh provided a false name for other reasons; for example, because he had other charges before the court or that he was aware that he was in possession of several pieces of identification not in his name.

[28] By itself, the fact that Mr. Singh was a passenger in the stolen vehicle does not establish guilt beyond a reasonable doubt. The Supreme Court of Canada has expressed the same view in a case of a charge of possession of a stolen car in which the accused was a passenger. In upholding the acquittal of the passenger, Justice Ritchie said:

... a constituent and essential element of possession under s. 3(4)(b) of the Criminal Code is a measure of control on the part of the person deemed to be in possession by that provision of the Criminal Code .... R. v. Terrence, [1983] 1 S.C.R. 357, at p. 364, 4 C.C.C.(3d) 193, at p. 198.

[29] In this case the evidence does not prove beyond a reasonable doubt that Mr. Singh drove the car, nor does it show that he had any measure of control over the vehicle. As well the evidence does not prove that Mr. Singh aided or abetted anyone else to possess the car. Evidence indicating that Mr. Singh was a passenger in the red Chrysler four hours after the chase does not prove by itself that Mr. Singh had possession of the car. Cst. Grove did not state that others were in the vehicle at the time he observed it on the road. Simply being a passenger in a stolen car does not give rise to an inference that the passenger knew the car was stolen. As noted by Justice MacKeigan in R. v. Orman (1975), 25 C.C.C. (2d) 337 (C.A.), at p. 341:

... merely being a passenger in the vehicle sometime after it was stolen is not by itself something from which one may reasonably infer any such knowledge [that the passenger knew or ought to have known that the vehicle was stolen].

[30] Accordingly, Mr. Singh is found not guilty of the possession charge as well.

Released Orally: August 31, 2021 Released in Writing: September 17, 2021 Signed: Justice A.R. Mackay

Footnotes

[1] R. v. Nikolovski, 1996 CarswellOnt 4425, at para 19.

[2] R. v. Quercia (1990), 60 C.C.C. (3d) 380 (Ont. C.A.), at 383; R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont. C.A.), at 451).

[3] R. v. Alphonso, 2008 ONCA 238, [2008] O.J. No. 1248 (Ont. C.A.) at para. 5; R. v. Goran, at para. 26-7; R. v. Costigan, [2003] O.J. No. 397 (Ont. C.A.) at para. 4; R. v. Knox (2006), 209 C.C.C. (3d) 76 (Ont. C.A.) at para. 50; R. v. Vickerson (2005), 199 C.C.C. (3d) 165 (Ont. C.A.) at para. 28; R. v. Richards, [2004] O.J. No. 2096 (Ont. C.A.) at para. 33; R. v. Dorsey (2003), 173 C.C.C. (3d) 443 (Ont. C.A.) at para. 5.

[4] R. v. Miaponoose, at 452; R. v. Quercia, at 383.

[5] R. v. Mezzo (1986), 27 C.C.C. (3d) 97 (S.C.C.), at 108; R. v. Gonsalves, [2008] O.J. No. 2711, para. 38.

[6] R. v. Campbell, [2001] O.J. No. 4954 (Ont. C.A.), at para. 7; R. v. Richards (2004), 70 O.R. (3d) 737 (Ont. C.A.), at para. 32.

[7] R. v. Gough, 2013 ONCA 137 (Ont. C.A.), at para. 38.

[8] McIntosh (1997), 35 O.R. (3d) 97 at pp. 394-5; R. v. M. (B.) (1998), 130 C.C.C. (3d) 353 (Ont. C.A.), at para. 105; R. v. Mey, 2011 ONCA 288 (Ont. C.A.), at para. 35.

[9] R. v. Robinson, 2016 ONCA 402, 336 C.C.C. (3d) 22 (Ont. C.A.), at para. 45; R. v. Pham (2005), 77 O.R. (3d) 401 (Ont. C.A.), aff'd 2006 SCC 26, [2006] 1 S.C.R. 940 (S.C.C.); Morelli, at para. 16. See also R. v. Beaver, [1957] S.C.R. 531, at pp. 541-42.