ONTARIO COURT OF JUSTICE

CITATION: R. v. Kasper, 2021 ONCJ 649

DATE: 7 December 2021

COURT FILE No.: Central East - Newmarket – 4911 998 20 10071 00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KYLE KASPER

Before Justice A. A. Ghosh

Heard on December 6 and 7, 2021

Reasons for Judgment

Released on December 7, 2021

Ms. A. Pan............................................................................................ counsel for the Crown

Ms. E. Dyer............................................................ counsel for the defendant Kyle Kasper

GHOSH J.:

Overview:

[1] Mr. Kyle Kasper was tried before me for breaching his probation order, contrary to s.733.1 of the Criminal Code. It is alleged that he violated the “non-attendance” condition as it related to Ms. Dawne Smith, his former mother-in-law. The key issues were identification and proof of subjective knowledge of the violation.

Summary of the evidence

[2] Ms. Dawne Smith is a retired educator, living in Sutton, Ontario. She is of First Nations heritage, specifically of the Chippewa People of Georgina Island. Since it opened in February of 2017, she has been working at the “Tobacco Trails – Tobacco and First Nation Gifts Shop” in Sutton.

[3] On September 27, 2020, Ms. Smith was working as a supervisor in the shop in the backroom when she heard a male attempting to purchase cigarettes without presenting the status card that permitted a reduced cost. She did not recognize the voice in the moment.

[4] Ms. Smith came out into the front counter area where two of her clerks were stationed. She testified that she saw Mr. Kasper there with another woman. Ms. Smith knew Mr. Kasper was on a probation condition not to be near her. She made eye contact with the man and sensed he recognized her in return.

[5] The male whispered something to his female companion, took a step back as the woman paid for the cigarettes. The two customers then left. The encounter lasted approximately 2 minutes, at most. Ms. Smith promptly called her daughter to warn her that Mr. Kasper was nearby, as her daughter would routinely drive up to see her from Toronto. She then called the police.

[6] Video surveillance footage from the “Tobacco Trails” Shop was received in evidence. The video showed a male in a plaid shirt wearing a blue baseball cap and a facemask – This occurred roughly 6 months into the pandemic, and so all customers captured on the video were similarly masked. Ms. Smith is captured emerging from the backroom and staring at the male suspect until he left the shop. No defence was called.

Analysis:

Proof of Subjective Intent to Breach Probation:

[7] To prove Mr. Kasper violated his probation, the Crown must prove beyond a reasonable doubt that he subjectively knew or was wilfully blind that he was both subject to the probation condition and that he was violating it.[^1] One of the key issues at trial was whether the Crown has established that Mr. Kasper knew that he was violating the condition that he was not to be within a certain distance of Ms. Smith’s place of work. I note that the information is particularized this way. The probation order itself prohibited Mr. Kasper from also being within 250 metres of any place he knows Ms. Smith to be.

[8] There is no admissible evidence that Mr. Kasper knew or ought to have known that Ms. Smith worked at this store. Since he moved out of Ms. Smith’s home in 2014, they had only met again approximately 10 times. Ms. Smith never told Mr. Kasper she began working at this store, and any inadmissible hearsay from her daughter would not have supported that she told him Ms. Smith worked there. Ms. Smith lived some 11 kilometres away from the store.

[9] Setting aside whether it is proven he knew she worked there, the Crown submits that once Mr. Kasper was fixed with the knowledge that Ms. Smith was at the store, he was required to immediately leave the prohibited radius of her work. For that submission to have currency, of course, it must be proven that Mr. Kasper knew Ms. Smith was there.

[10] Firstly, there was no verbal exchange between them. At most, they may have briefly shared eye contact. Beyond that, there was no non-verbal communication between them. Nonetheless, Ms. Smith was confident that the person she identified as Mr. Kasper in turn recognized her. She relied on the fact that as she came out of the stock room to the front counter area, this man looked at her and then whispered to his female companion. He also then moved slightly away from the counter, as the female companion paid for the cigarettes. Then they both left the store.

[11] In assessing circumstantial evidence, the defence need not point to proven facts for the court to consider and draw exculpatory inferences. Guilt must be the only reasonable conclusion from the assessment of circumstantial evidence. If a reasonable exculpatory inference is available on an essential element of the offence, an acquittal must result.[^2]

[12] In this case, the male was having a minor disagreement with the store clerk about receiving discount prices without presenting a First Nations status card. He was running afoul of the store policy. Ms. Smith overheard and came out as the supervisor. It is reasonable to infer that the customer determined that this mature person who joined them was indeed a supervisor, and that he was on the wrong side of a losing argument for the discount. He reasonably may have then whispered to his companion to pay for the goods at the standard price and leave the store. She indeed paid and they left.

[13] Ms. Smith and the male never spoke, and at its highest, they made eye contact and shared an expression of mutual recognition. Even apart from the reasonable exculpatory inference I have just framed, it would be highly dangerous to impute any recognition of Ms. Smith to the male suspect.

[14] Assuming the suspect was Mr. Kasper, I cannot find that he ought to have known Ms. Smith would be at the store in any capacity. There is no evidence in support of such a finding, beyond a tenuous connection that Ms. Smith lived some 11 kilometres away. The witness understandably proposed speculative avenues by which Mr. Kasper may have discovered she worked there. Of course, none of that is admissible as evidence. If Mr. Kasper knowingly came to the store to encounter Ms. Smith, he certainly did nothing with the opportunity. The person completed the transaction and left without a word to her.

[15] The only reasonable finding on the evidence was that this was a chance encounter. That leaves the determination of what reasonable steps Mr. Kasper was legally required to take to avoid criminal responsibility for breaching the distance prohibition on his probation order.

[16] When a probationer accidentally crosses paths in a public space with someone he is prohibited from being near, reason must animate the assessment of any intent to breach. It cannot be expected that the defendant run frantically away to secure immediate factual compliance with the distance prohibition. A contextual assessment of the circumstances is warranted.

[17] Here, the person identified as Mr. Kasper acted reasonably. Upon seeing the prohibited person, he stopped arguing for the discount. He quickly arranged payment, completed the purchase, and left the store. There was no engagement with the prohibited party at all. This conduct cannot attract criminal responsibility in the circumstances.

Identification as Recognition Evidence:

[18] Identification is the next trial issue. Ms. Smith is confident that she recognized Mr. Kasper in her store. Recognition evidence is a subset of identification evidence. The dangers of sincere but mistaken identification evidence and their contribution to wrongful convictions are well established in the jurisprudence. The Supreme Court in R. v. Hibbert, specifically confirmed the “very weak link between the confidence level of a witness and the accuracy of that witness.[^3] It is important to pause here and observe that all I have is Ms. Smith’s unflappable confidence that the person she saw wearing a facemask and a baseball cap was Mr. Kasper.

[19] This was a virtual trial. I understand why the Crown may not have pursued in-court identification, given Ms. Smith testified that she recognized her former son-in-law on the date of the incident. I note there was no continuous chain of identification events bridging the observations of Ms. Smith at the scene and the arrest of Mr. Kasper some time thereafter.[^4] This is one of several deficiencies with the identification evidence as it is applied to the reasonable doubt standard.

[20] I found Ms. Smith credible and persuasive. There is an insidious danger to that finding when it comes to identification evidence. Ms. Smith clearly and understandably views Mr. Kasper in a negative light, as he has been found guilty of violence against her daughter and for threatening Ms. Smith. It is important to note this justifiable animus as I assess her identification evidence against the reasonable doubt standard.

[21] Regarding recognition evidence, Justice Rosenberg in R. v. Brown simply stated the law at paragraph 39: “This type of non-expert opinion evidence is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator”.[^5] I accept that Ms. Smith was better acquainted with Mr. Kasper than myself and better positioned than the surveillance camera to capture the identity of the suspect. I am not asked to compare the suspect on the video to the defendant to find that they are the same person.[^6]

[22] The defence properly conceded threshold admissibility that the witness would recognize her former son-in-law. However, the witness could only see the eyes of the suspect. The male was masked and wearing a baseball cap with a full-sleeved plaid jacket. While this is not a dispositive fact, she did not recognize the voice as belonging to Mr. Kasper as she listened from the back room. The surveillance footage revealed that Ms. Smith came out of the back room and looked at the male for mere seconds before moving back towards the stock room. She came back out and stared at the male for the few remaining seconds before his companion completed the transaction and they left.

[23] The evidence that Ms. Smith recognized a hand tattoo on the male of her daughter’s initials is facially cogent and the most compelling evidence in support of a positive identification. She knew Mr. Kasper had this tattoo. The facial cogency of this evidence also serves to illustrate the dangers of this sort of identification.

[24] The surveillance footage supports Ms. Smith looked at this male for a handful of seconds. While it is possible her eyes in the moment glanced down to his hands, this is not readily apparent from my review of the video. I have already mentioned the dangers of how Ms. Smith’s animus towards Mr. Kasper can inform confident but mistaken identification.

[25] As I apply the identification evidence and its inherent frailties to the reasonable doubt standard, I cannot find that identity has been established.

Conclusion:

[26] The Crown has failed to establish on the standard of proof the essential element that Mr. Kasper knew he was violating the distance prohibition of his probation order. The Crown has also failed to establish that the male suspect was identified as the defendant. Each deficiency independently requires an acquittal. Mr. Kasper, I find you not guilty. My thanks to counsel.

Released: December 7, 2019

Signed: Justice A. A. Ghosh

[^1]: R. v. Zora, 2020 SCC 14, [2020] S.C.J. No. 14, paras. 115; R. v. Docherty, 1989 45 (SCC), [1989] 2 S.C.R. 941, para. 27

[^2]: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 (S.C.C.), paras. 35-37

[^3]: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R., 445.; see also R. v. Alvarez, [2021] O.J. No. 6736 (Ont.C.A.), para. 72

[^4]: Hibbert, paras. 49 and 85

[^5]: R. v. Brown, 2006 42683 (ON CA), [2006] O.J. No. 5077 (Ont.C.A.).R. v. Leaney, 1989 28 (SCC), [1989] 2 S.C.R. 393 (S.C.C.)

[^6]: R. v. Nikolovsky, 1996 158 (SCC), [1996], 3 S.C.R., 1197 (S.C.C.), para. 23