Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 04 01 COURT FILE No.: 20-75004493 Location: Toronto, Ontario

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Aafaq SIDDIQUI and Keenan KAWALL

Ruling on Leaney Application

Before: Justice B. Jones

Heard on: February 18 and March 25, 2022 Reasons for Judgment released on: April 1, 2022

Counsel: V. Gallegos / D. Hogan...................................................................... counsel for the Crown R. Sansanwal...................................................................................... counsel for A. Siddiqui R. Moriah……………………………………………………………….counsel for K. Kawall

Jones J.:

Introduction

[1] In the late afternoon of September 27, 2020, Ahmad Massoud was assaulted by two men outside the rear entrance of the East York Town Centre in a nearby parkette and within close proximity to the Fraser Mustard Early Learning Centre. The assault caused significant injuries and he required immediate hospitalization. He was unable to identify his assailants when he provided an initial statement to the investigating police officers.

[2] Video surveillance cameras positioned outside the East York Town Centre and on a nearby school portable provided the investigating officers with recordings of the incident. These video recordings capture the two suspects and Mr. Massoud in a nearby parkette before, during and after the acts of violence that occurred.

[3] The surveillance video ranges in quality. It has all been admitted, on consent, during the course of the trial. Mr. Massoud testified previously and identified himself in the video and the two other persons as the men who assaulted him.

[4] The video was reviewed by the lead investigator, DC Janjanin, and a community resource or neighbourhood officer, PC Espino. The Crown seeks leave to have PC Espino provide an opinion on the trial proper as to the identity of one of the two men in the video surveillance footage in accordance with R. v. Leaney. PC Espino’s opinion was that one of the persons in the video was Mr. Siddiqui.

[5] A voir dire was held with respect to the admissibility of this portion of PC Espino’s evidence. It was blended with the trial proper as the balance of PC Espino’s testimony is admissible on other grounds and has probative value independent of his proposed opinion evidence.

The Video Surveillance Evidence

[6] The Crown’s application centres on video surveillance footage that was obtained from different cameras during the police investigation into these events. It also includes screen-captures of single frames from those videos. The videos capture different aspects of what happened between the parties during the incident in the parkette. For the purposes of this application, I have focused my analysis on these videos, although the Crown also tendered video evidence during the trial proper of events that took place inside the East York Town Centre before the events in the parkette occurred. I reference those other videos as necessary in these reasons.

Rear Entrance East York Town Centre Video

[7] A camera positioned outside the southern entrance of the Town Centre provided some footage of the complainant and the suspects in the nearby parkette. The camera was positioned too far from the parkette to provide quality footage of what occurred. During this hearing Mr. Hogan was able to zoom in on the relevant portion of the footage using a media player which assisted with providing enhanced details, but the footage remained somewhat grainy and pixelated.

School Portable Videos

[8] A video surveillance camera positioned on the front of the Fraser Mustard Centre’s nearby school portable provided high-definition video of what occurred in the parkette. That video was marked as exhibit #9. It is considerably clearer when compared to the video obtained from the rear entrance of the East York Town Centre. The likeness of both suspects in the parkette is well captured on this video. Nothing obstructed the camera’s view of them during their altercation with Mr. Massoud. Screen captures of the images of Mr. Massoud and the suspects obtained from this video were also made exhibits.

[9] The school portable had a second camera located on its west side. This camera captured the suspects walking along a pedestrian footpath following their altercation with Mr. Massoud. That video footage was marked as exhibit #13. This video is also in high definition. As the suspects walk along the southern edge of the portable it provides very clear images of them. Screen captures of the suspects captured on this video footage were also made exhibits.

Evidence of PC Espino

[10] PC Espino works as a community resource or neighbourhood officer at 53 Division with the Toronto Police Service. He has nearly 19 years’ experience as an officer. He has been employed in his current position since April 2016 and is assigned to Thorncliffe Park. His duties include familiarizing himself with the neighbourhood and its residents. He makes efforts to establish a close relationship with community members to serve them better. He is on regular patrol in this area.

[11] PC Espino testified that he was familiar with the area where the incident occurred on September 27, 2020. He routinely visits the East York Town Centre mall and surrounding areas and checks this particular area – including the parkette – two or more times per day. It is known to be an area where a considerable amount of public drinking, drug dealing, or even acts of violence occur. Complaints have been filed about illegal activity here by the principal of the Fraser Mustard Early Learning Centre and residents of a nearby apartment building.

Familiarity with Aafaq Siddiqui

[12] Over the course of his career as a neighbourhood officer, PC Espino had multiple interactions with Aafaq Siddiqui. He saw Mr. Siddiqui near the parkette or in the mall itself “almost every day.” Mr. Siddiqui would typically walk away from PC Espino and not generally wish to speak to him as he was there to enforce the law. In addition to numerous undocumented interactions with Mr. Siddiqui, PC Espino had several documented interactions with Mr. Siddiqui beginning in 2017 and continuing up and until the time period immediately preceding the incident on September 27, 2020. Those interactions included the following:

(1) In August 2017, Mr. Siddiqui was identified as a victim of an assault by mall security officers. PC Espino approached him in person on or about August 16, 2017 and tried to speak to him face to face about what occurred the previous day. He would not cooperate.

(2) On January 30, 2019, PC Espino was on foot patrol in the East York Town Centre around 5 pm. He saw Mr. Siddiqui and placed him under arrest for violating the Trespass to Property Act. He issued him a ticket. This was a face to face engagement that lasted 10-15 minutes.

(3) On August 11, 2019, PC Espino was engaged in community enforcement activities with other police officers in an effort to prevent and reduce violence. He came upon a group of 10-12 males in the area of Linton Park. They arrested several persons including Mr. Siddiqui.

(4) On December 13, 2019, Mr. Siddiqui was in the East York Town Centre after 5:45 pm. PC Espino observed him walking with two other male persons and arrested him under the Trespass to Property Act. This was another face to face encounter that lasted 10 minutes.

(5) On April 17, 2020, PC Espino was patrolling the neighbourhood with his partner and located a vehicle outside 75 Thorncliffe Park Drive. They investigated the vehicle and located Mr. Siddiqui in the rear passenger seat. He had direct engagement with Mr. Siddiqui and the investigation lasted 20 minutes.

(6) On July 24, 2020, while on patrol near the East York Town Centre, PC Espino again located Mr. Siddiqui near the parkette. He had a brief face to face interaction culminating in him cautioning Mr. Siddiqui. It only lasted about one minute. [1]

(7) Finally, on September 23, 2020, while on patrol at the East York Town Centre, PC Espino located Mr. Siddiqui at the lottery kiosk. He arrested him for trespassing. He escorted him out of the mall and issued him a ticket.

[13] Additionally, PC Espino testified he issued tickets pursuant to the Provincial Offences Act to Mr. Siddiqui on June 3, 2019, January 23, 2020, and July 25, 2020. [2]

[14] During cross-examination Mr. Sansanwal established that PC Espino’s notes and occurrence reports were not always entirely accurate and he may have made some assumptions during his past interactions with Mr. Siddiqui about what he was doing. He also accepted there were significant gaps in time between some of these interactions, including nearly 18 months between his first and second documented interactions with Mr. Siddiqui. There were also periods of time when his attendance in or around the mall was regular, but for other periods of time there was a notable absence of his attendance in the area.

Interactions With An Unknown Male Person

[15] One undocumented interaction with Mr. Siddiqui and an unknown male person took on significance during the voir dire. On September 5, 2020, PC Espino testified that he encountered Mr. Siddiqui in the parkette again alongside a group of males. While he knew almost everyone associated with Mr. Siddiqui, he did not know one person. That person drew his attention.

[16] He had seen this unknown male person with Mr. Siddiqui approximately two weeks’ previously. At that time PC Espino had been on patrol in his vehicle and located Mr. Siddiqui and the unknown male. They walked away from him. Given his role as a neighbourhood officer, he wanted to make sure he was aware of who was in the community. As Mr. Siddiqui was someone with a prior history of unlawful behaviour, he took special note of his newfound associate.

[17] The unknown male person had an LCBO bag with him and told PC Espino he was “just leaving” when approached. It was clear to PC Espino that the male person did not want to engage with him. However, he was able to take two photographs of the unknown male person on his work cellphone.

Review of the Video Evidence

[18] PC Espino viewed all the video surveillance evidence during the initial police investigation into these offences. He was familiar with the footage when he testified on the voir dire.

[19] He reviewed the rear-entrance East York Town Centre video which captured the incident between Mr. Massoud and the suspects. He gave his opinion that one of the two suspects was Mr. Siddiqui. He was certain. He could not recognize the second suspect. When he first viewed the video with DC Janjanin shortly after the assault was reported, he thought that person might be someone named Andre. He later changed his opinion about that person’s identity. With respect to Mr. Siddiqui, he stated that he has seen him so often that he recognized various features of his appearance including his body proportions, his hair, and the way he walked. He also described him as having a peculiar face that made him recognizable.

[20] He further testified that he later realized the person with Mr. Siddiqui was the unknown male person he encountered on September 5, 2020 in the parkette. He said the person in the video appeared to have the same height, and same hair, as that person. He acknowledged he had erred when he originally thought it was someone else named Andre.

[21] Mr. Hogan also presented PC Espino with a series of still-frame screen captures taken from the surveillance video located inside the East York Town Centre and the LCBO on September 27, 2020. Those images are of the person theorized to be the second suspect and are taken from footage that recorded his movements earlier in the day. They depict the second suspect entering the mall, attending at the LCBO, and leaving the mall with a six-pack of beer. PC Espino gave his opinion that this person was the same as the unknown male person he photographed on September 5, 2020. At this point he realized his initial determination that the second suspect in the rear-entrance East York Town Centre video was Andre was in error.

[22] PC Espino also reviewed screenshots from the video of the incident captured by the cameras on the school portable. He watched the videos from the school portable cameras previously. PC Espino was asked to examine a screen capture taken from this video which captured the two suspects speaking with Mr. Massoud. In this screen capture the faces of both suspects are clearly visible. He also examined a screen capture obtained from the video retrieved from the other camera on the portable showing the two suspects leaving the scene of the assault along the footpath. It had another clear view of their faces from a slight side-profile. PC Espino was certain the shorter male was Mr. Siddiqui in these screenshots. They were obtained from high-quality video and are very clear.

Applicable Law

[23] In Leaney the Supreme Court of Canada held that prior identification of an accused from photographs or videotape evidence by a non-expert witness is admissible if certain criteria are met. The trial judge must determine, on a balance of probabilities, whether the evidence meets the threshold requirements for admissibility. If the evidence is admissible, the trial judge must then determine its ultimate reliability and weight (if any.)

[24] The admissibility criteria are best characterized as the “prior acquaintance/better position” test. The witness must be sufficiently familiar with the accused to have some basis for his or her identification opinion, and, as a result of that familiarity, the witness must be in a better position than the trier of fact to identify the accused because he has some advantage that can shed light on the photographic or video evidence: R. v. Aragon, 2022 ONCA 244 at para 19; Boutarene c. R., 2020 QCCA 1392 at paras. 10-11; R. v. Hudson, 2020 ONCA 507 at paras. 28-30; R. v. Field, 2018 BCCA 253; R. v. Berhe, 2012 ONCA 716 at paras. 20 and 21.

[25] At the admissibility stage the court should focus on the level of familiarity of the witness with the accused. The most important factor to consider is whether the witness can provide identifying information about the accused that the trial judge, even with access to the photographs and video evidence, will not be able to ascertain on his or her own: Hudson, supra at para. 31. The nature of the witness’ relationship with the accused, including the extent, degree, and frequency of past contact with the accused must be considered.

[26] Where the witness has extensive prior dealings with the accused, and thus has knowledge of the accused’s appearance, mannerisms and behaviour, this may place the witness in a better position than the trial judge to identify the accused: see R. c. Pépin, 2021 QCCS 284 at paras. 22-25; R. v. Walker, 2021 ONSC 404 at para. 7.

[27] There is no need for the witness to note a unique or idiosyncratic feature. While such an ability might enhance an argument that the witness is in a better position than the trial judge, it is not required to satisfy the Leaney test: see R. v M.B., 2017 ONCA 653 at para. 47; Behre, supra at para. 22.

[28] In this case the video surveillance footage obtained from the East York Town Centre and the nearby school portable were admitted on consent and counsel for the accused do not dispute they meet the authentication criteria required by section 31.1 of the Canada Evidence Act. However, the quality of the video surveillance evidence for the purposes of this application must still be carefully considered. Where a video captures the offence and the suspects involved in that offence, it will have probative value. But it may also be of such a poor quality that it renders any reliance on it for recognition evidence purposes dangerous: Field, supra, at para. 34; Hudson, supra, at para. 33. Even at the admissibility stage, the quality of the video evidence must therefore be evaluated. If the video evidence is simply of too poor a quality to be safely relied upon for recognition purposes the application may be denied.

Position of the Parties

[29] Mr. Hogan submits that PC Espino knew Mr. Siddiqui very well from his duties as a neighbourhood police officer. His degree of familiarity is more than enough to meet the test established in the prior jurisprudence. PC Espino is also better positioned than I am to recognize Mr. Siddiqui from the videos because he has seen him, face to face, on many occasions in the very area where the events forming the basis of this trial took place. The test at this stage is one of threshold admissibility, and any concerns with respect to any weakness in the officer’s evidence should be addressed at the end of the trial when I determine what weight to place on his evidence.

[30] Mr. Sansanwal submits that I should approach with great caution PC Espino’s evidence and his claim that he truly knew Mr. Siddiqui. He did not have nearly enough familiarity with Mr. Siddiqui in properly documented interactions. Some of the times they crossed paths happened at night, with poor lighting conditions. In most cases the person he believed to be Mr. Siddiqui never provided him with identification nor formally identified himself. Finally, there were credibility issues with the officer’s testimony and his notes lacked detail and specificity.

[31] Ultimately, Mr. Sansanwal submits that PC Espino’s familiarity with his client rests on nothing more than descriptions that are best described as generalities with no reference to unique or idiosyncratic features. His opinion evidence is not reliable enough to even meet the test for threshold admissibility. This is particularly so with respect to the rear East York Town Centre video which was of poor quality. The officer’s review of the school portable videos, even if those videos are of a higher quality, was tied up with his review of the East York Town Centre video making it too difficult to separate one aspect of his opinion evidence from another. It should all be ruled inadmissible.

Analysis

[32] PC Espino had more than four years’ experience as a neighbourhood officer in Thorncliffe Park by the time of the events on September 27, 2020. During that time he had 7 documented interactions with Mr. Siddiqui involving face to face encounters in the local community. These ranged from August 2017 to September 23, 2020, only a few days prior to the events in question. He also had regular contact with him in and around the East York Town Centre outside those specific interactions. He was familiar with Mr. Siddiqui’s height, weight, mannerisms, and facial appearance. He had spoken to him regularly even if Mr. Siddiqui’s common reaction to seeing PC Espino was to walk away.

[33] This is more than sufficient to satisfy the familiarity requirement of the Leaney admissibility test. PC Espino also had the advantage of seeing Mr. Siddiqui as he would regularly appear in the very community where the events underlying this trial occurred. Courts have recognized that a peace officer who has this degree of familiarity with an accused person due to personal interactions and/or prior investigations with him can satisfy the test for admissibility: see, for example, Aragon, supra, at paras. 21-26; R. v. Rae, 2013 ONCA 556 at para. 4; Walker, supra at para. 21; Hudson, supra at para. 39; R. v. Morris, 2021 ONCJ 267 at para. 15.

[34] While PC Espino could not point reliably to any particular idiosyncratic feature of Mr. Siddiqui’s appearance that is not required at this stage. As stated by the Court of Appeal in Hudson, “the better a person knows the accused the less important the articulation of identifiable features becomes”: Hudson at para. 33; M.B. at para. 46.

[35] Furthermore, PC Espino is in a better position than I am as the trial judge to determine if the person in the videos and screenshots is Mr. Siddiqui. In addition to his level of familiarity of Mr. Siddiqui, PC Espino is familiar with his body language, mannerisms, and appearance. I have only seen Mr. Siddiqui over Zoom during this proceeding. While I can see his face, I have not had the opportunity to see him in person in a traditional courtroom.

[36] Mr. Sansanwal correctly noted that some of PC Espino’s notes and occurrence reports were not as thorough as they could have been, and many of his purported interactions with Mr. Siddiqui were not documented at all. There is no obligation in law that an officer must record every interaction he has in his memo book in order for his evidence to be accepted: see R. v. Machado, 2010 ONSC 277 at para. 121. Nevertheless, when an officer testifies to an independent recollection of specific and detailed events without any notes and in relation to what would have been a relatively routine matter after a considerable period of time that testimony should be carefully scrutinized: see R. v. Antoniak at para. 22.

[37] I find PC Espino was generally a credible witness, committed to his role as a neighbourhood officer. He did admit to the deficiencies in his notes when challenged on them by both defence counsel and acknowledged some of the errors he made during the course of the investigation into this case. With respect to his evidence respecting his familiarity with Mr. Siddiqui, I find that his evidence was sufficiently reliable to meet the threshold test for admissibility on this application. He knew him well from his regular interactions in the Thorncliffe Park neighbourhood. What weight may be placed on this recognition evidence will be the subject of argument at the conclusion of the trial.

Decision

[38] The Crown’s application is granted with respect to the videos and screenshots that PC Espino reviewed that were obtained from the school portable. Those videos are of a high quality and also yielded screen captures that are of sufficient quality to permit identification.

[39] The Crown’s application is denied, however, with respect to the videos and images that were obtained from the rear camera of the East York Town Centre. That video is not of sufficient quality for identification purposes. Indeed, even PC Espino testified that he initially thought the second suspect in that video might have been someone he knew as Andre, but later determined this was an incorrect identification. While he maintained that Mr. Siddiqui was the other suspect in this video, I find the video is simply not of sufficient quality to be lawfully considered for recognition evidence purposes.

Released: April 1, 2022 Signed: Justice Brock Jones

[1] Mr. Siddiqui was not wearing a mask, despite the public health guidelines in place at the time due to the COVID-19 pandemic.

[2] This prior discreditable conduct evidence was admitted on the voir dire solely to explain the association between Mr. Siddiqui and PC Espino. It will not be used for any other purpose: R. v. MRS, 2020 ONCA 667 at paras. 58-66.