ONTARIO COURT OF JUSTICE DATE: 2022 01 25 COURT FILE No.: Brampton 19-13075
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
BRYAN BABIC
Before: Justice P.T. O’Marra Heard on: November 8 and 9, 2021 Reasons for Judgment orally released on: January 25, 2022
Counsel: D. Leitch................................................................................................ counsel for the Crown V. Houvardas........................................................... counsel for the accused Bryan Babic
P.T. O’Marra, J.: (Orally)
Introduction
[1] Mr. Babic is charged with two offences as set out in the Information:
Bryan BABIC on or about the 24th day of June 2019 at the City of Mississauga in the said region, did rob Nicholas RANKIN, Contrary to section 344 (b) of the Criminal Code of Canada
AND FURTHER THAT Bryan BABIC on or about the 24th day of June 2019 at the City of Mississauga, in the said region, with intent to commit an indicatable offence did have his face masked, Contrary to Section 351(2) of the Criminal Code of Canada.
[2] Mr. Babic pleaded not guilty to both charges. He elected to be tried in the Ontario Court of Justice. The trial lasted two days. The Crown called the complainant, Nicholas Rankin, his father in law, Brian Malina, the arresting officers Constable Gemmiti, Constable Scammura, Constable Charles and the seizing officers, Detective Constable Henderson, and Constable Vergillio. The Crown entered the following exhibits:
- a picture of a wrench and a tool belt seized from Mr. Babic’s vehicle after his arrest.
- Several still photographs and a surveillance video of Mr. Babic’s vehicle being driven through a gas bar on the day of the robbery.
- Certified Ministry of Transportation records confirming that on the date of the robbery and the date of his arrest, Mr. Babic was the registered owner of the vehicle used in the robbery, a 2005 black Nissan Altima, licence plate CHMY372.
[3] Mr. Babic did not testify, nor did he call a defence.
[4] At the conclusion of a voir dire that was held in this matter to determine the constitutionality of the Mr. Babic’s detention, arrest, and the search and seizure of items from his vehicle, I dismissed Mr. Babic’s Charter application. (See: R. v. Babic, [2021] O.J. No. 6981). The parties agreed that the voir dire testimony would apply to the trial proper.
[5] The sole issue for me to decide in this trial is whether the Crown has proven beyond a reasonable doubt the identity of Mr. Babic as the perpetrator of a home invasion style robbery of Mr. Rankin, while masked.
Overview of the Circumstances and Evidence
[6] By way of background and context, Mr. Babic was alleged to be the assailant in a home invasion style robbery on June 24, 2019 at a townhouse in the City of Mississauga.
[7] The perpetrator entered the unlocked front door of the residence and was met by the complainant, Nicholas Rankin, who then escaped into his parent’s bedroom. The assailant rummaged around his bedroom and was eventually chased out of the house, down a street, to a nearby gas station. He entered a vehicle and fled. A detailed description of the car, a black 4 door sedan style Nissan Altima and the licence plate CHMY372 was noted by Mr. Rankin’s stepfather, Brian Malina. A generic description of the assailant was noted as well. He was described as a white male, 22-26 years old, 5’10” heavier build, with dark short hair. The assailant wore a black mask that covered the lower portion of his face. He sported a light-coloured hoodie, shorts, and red shoes. He wore a black bag to the front with a hatchet or small axe inside and was carrying a metal object like a large wrench.
[8] On June 30, 2019, six (6) days after the robbery, PC Gemmeti and PC Scamurra were on general patrol near the intersection of Argentia Drive and Derry Road, checking out the parking lots of several hotels in the area, specifically the Four Point Hotel. This hotel was known for prostitution and illegal activity. PC Scamurra was driving, and PC Gemmeti was seated in the passenger seat. At 9:24 p.m. they entered the parking lot of the Four Point Hotel and queried marker CHMY372 on CPIC.
[9] The licence plate came back associated to the black Nissan Altima involved in the robbery on June 24, 2019.
[10] The registered owner was Bryan Babic, with an address of 15 Bainbridge Street in Sault Ste Marie, Ontario.
[11] After a high risk take down, Mr. Babic was arrested for the robbery. A search of the trunk of Mr. Babic’s vehicle, incident to arrest yielded a black wrench and black tool belt or pouch.
Nicholas Rankin’s Testimony
[12] On the date of the robbery, Mr. Rankin was living with his mother and stepfather, Brian Malina. Mr. Rankin was asleep in his bed, when he woke up to find a masked intruder in his bedroom. The intruder was looking for something. He was holding a silver wrench in his hand. It was described as a normal looking wrench, medium size and approximately half the length of Mr. Rankin’s arm.
[13] Mr. Rankin asked him “what are you doing?” He could not recall the intruder’s response despite his memory being refreshed by his police statement.
[14] Mr. Rankin jumped out of bed and ran to his parent’s bedroom. His stepfather ran to Mr. Rankin’s bedroom and held the door closed. The intruder began tossing around things around and trashing the bedroom.
[15] After struggling with the door, the intruder managed to open the door and fled downstairs. Mr. Rankin remained behind while his stepfather ran after the intruder.
[16] Mr. Rankin discovered that the following items were taken by the intruder: A Gucci side bag; a Ferragamo side bag; two ounces of marijuana and clothing items.
[17] Mr. Rankin testified that before the robbery, on an earlier occasion he had a group of friends over to his home and money was stolen from a safe.
[18] Mr. Rankin did not know Mr. Babic before the robbery. He also did not recognize him in court.
[19] To say that Mr. Rankin was a very reluctant witness for the Crown is an understatement. He testified that he did not recall giving a statement to the police shortly after the robbery. He was asked to refresh his memory regarding statements that he made to the police about his theory on who was the perpetrator, however, that did not assist him in restoring his memory.
Brian Malina’s Testimony
[20] Mr. Malina had a much clearer recollection of that day than his stepson.
[21] Mr. Malina testified that after his stepson told him that he was being robbed, Mr. Malina jumped out of bed and ran to the bedroom. The intruder was inside the bedroom throwing around things. He observed that the intruder was a “big guy” and had a bag over his shoulder. He was also holding a black hatchet. Mr. Malina yelled for someone to call the police and to slow him down he held the door closed. Eventually, the intruder pulled the bedroom door off its hinges and ran downstairs outside. He stopped on the grass, looked back at Mr. Malina, and laughed. He took off again, ran to a gas station and jumped into a car and drove away. Mr. Malina noted that the car was a black Nissan with licence plate CHMY373.
[22] Mr. Malina described that the intruder was wearing a short sleeve t-shirt, a bandana around his neck, red shoes, and a black duffel bag around his neck. His face was white with no tan. However, most of his face was covered from the nose down with a bandana. He was approximately 6’1”, 200 lbs with black hair.
[23] Mr. Malina identified the intruder as the same person depicted driving by the gas pumps in the photograph entered as an exhibit. However, he was uncertain whether the photograph of the seized wrench from Mr. Babic’s vehicle was the same object held by the intruder.
[24] The final witness was Constable Vergillio who seized the surveillance video from the gas bar. It is not necessary to detail his evidence as it was very brief. The video was played during the trial. I have reviewed the video and the still photographs very closely.
[25] The following can be observed from the video: The driver’s side window was down. The driver was a white male. Dark clothing was visible. His hair was dark. The video was somewhat grainy. However, the zoom function did improve the clarity somewhat.
Analysis of the evidence
[26] The identity of the accused as the perpetrator of these offences is the sole issue before me.
[27] The Crown submitted that it has proven beyond a reasonable doubt the that the individual in the black Nissan depicted in the photographs and the surveillance video was Mr. Babic. The Crown fairly conceded that due to the lack of clarity and precision by just examining both the photographs and video and viewing Mr. Babic during his trial over zoom was too difficult to conclude that the driver was Mr. Babic. However, the Crown argued that there was enough circumstantial and resemblance evidence to prove the identity of Mr. Babic as the culprit.
[28] The Defence argued that there was some resemblance to Mr. Babic in the photographs but there was still not enough circumstantial evidence for the Crown to discharge its heavy burden.
[29] In my view, the video and photographic evidence did lack clarity. However, the lack of clarity was not an issue that affects the admissibility of the resemblance evidence, but it did touch upon its weight when the recognition was based on materials of poor quality: (See: R v Field, 2018 BCCA 253). The camera was located high up in the ceiling over the gas pumps and pointed downward.
[30] Both the distance and the lack of clarity made it impossible for me to conclude on this evidence standing alone that the driver of the black Nissan was Mr. Babic. Another compounding factor was that I have only observed Mr. Babic over zoom and not in a courtroom. There were simply not enough sufficient features for me to conclude, with any degree of confidence that Mr. Babic was the driver in the black Nissan.
[31] I find that the surveillance evidence on its own was of little assistance to the court in identifying Mr. Babic as permitted by the Supreme Court of Canada’s decision of R. v Nikolovski, [1996] 3 S.C.R. 1197. Prior to using a video to establish identity the trier of fact must ensure that the video has not been altered or changed, that it depicted the crime. The trier of fact must also ensure that there was a high degree of clarity and quality and, to a lesser extent, show the perpetrator for a sufficient period in order to make the identification beyond a reasonable doubt. (See: Nikolovski, paras. 28 – 32).
[32] I also agree that the Crown's further submission was sound, namely, that there was a resemblance between Mr. Babic and the driver. The skin tone, hair color and jaw line were all similar, as between Mr. Babic and the driver.
[33] The law is clear that evidence of a "resemblance," established pursuant to the rule in Nikolovski, can be considered by the trier of fact together with other evidence of identification, in determining whether the Crown has proved its case. See: R. v. Brown (2009), 2009 ONCA 563, 251 O.A.C. 264, at para. 26 (Ont. C.A.); R. v. Cole (2006), 69 W.C.B. (2d) 760, at para. 60 (Ont. S.C.J.). Furthermore, evidence of a "resemblance" can complete the Crown's proof of identity, depending on the strength of the other identification evidence. As Watt J.A. put it in R. v. Rybak (2008), 2008 ONCA 354, 233 C.C.C. (3d) 58, at para. 121 (Ont. C.A.), giving the judgment of the Court:
As a general rule, a resemblance, without more, does not amount to an identification. But the combined force of evidence of a resemblance and other inculpatory evidence may assist in completion of the prosecution's proof.
[34] Also see: R. v. Boucher (2000), 146 C.C.C. (3d) 52, at para. 19 (Ont. C.A.).
[35] I am therefore satisfied, based on my own observations, that there was a resemblance between Mr. Babic and the driver of the black Nissan who was the intruder. That evidence was entitled to some weight in relation to the ultimate issue of identity.
[36] No witness was called by the Crown that identified Mr. Babic in the video surveillance or the photographs. (See: R. v. Leaney, [1989] S.C.J. No. 90).
Other Identification Evidence-Circumstantial Evidence
[37] The licence plate of the black Nissan “get away car” was registered to Mr. Babic, who was found driving the same car only six days later in the same city as the robbery.
[38] The generic description given by Mr. Malina seemed to match Mr. Babic. I am uncertain if Mr. Babic is 6’ 1”. I was not able to determine Mr. Babic’s height, nor was there any evidence to suggest his height. With respect to his weight, over the zoom platform I was unable to make that determination beyond that he has a heavy build.
[39] There was a wrench located in the trunk of Mr. Babic’s vehicle. It may be like the object that was held by the intruder; however, the description and the length was inconsistent with the wrench in the photograph. Mr. Rankin described the weapon as a medium size wrench, silver in colour and measured half the length of his arm. Mr. Malina described the weapon as a hatchet. The wrench in the photograph was black and narrowed down at one end. I am unable to determine the length of the wrench as there was no evidence regarding the length of the wrench in the photograph. Mr. Malina could not identify the wrench in the photograph as the weapon he observed in the intruder’s hand.
[40] The black tool belt did not corroborate any of the identification evidence given by Mr. Malina and Mr. Rankin.
[41] The Crown argued all the evidence when taken in totality there was only one reasonable inference, that Mr. Babic was the driver of the car.
[42] The defence cited R. v. Villaroman, [2016] 1 S.C.R. 1000, 2016 SCC 33, at para. 35:
At one time, it was said that in circumstantial cases, "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts" see R. v. McIver, [1965] 2 O.R. 475, at p. 479 (C.A.), aff'd without discussion of this point , [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, [2009] 1 S.C.R. 104, 2009 SCC 4, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.
[43] Even though Mr. Babic’s car was used in the robbery, the defence argued that there were other possibilities or reasonable inferences other than Mr. Babic was the driver. The defence suggested that there could have been someone else that resembled Mr. Babic driving the car away.
[44] The Crown is not required to disprove every fanciful explanation or possibility. An innocent explanation must be supportable by something else and not impermissible speculation. The evidence must be reasonably capable of supporting the inference.
[45] The combined force of the Crown’s case was the following:
- Mr. Babic’s resemblance to the driver.
- He was the registered owner and operator of the vehicle used in the robbery.
- At the time of the robbery Mr. Babic’s home address was in Sault Ste Marie.
- The robbery and his arrest were in Mississauga.
- He was found by the police driving the same vehicle six days after the robbery, with a wrench and tool belt in his trunk. Mr. Rankin described the intruder holding a silver wrench.
[46] None of these discrete bodies of evidence was persuasive, but the difficult question in this case was whether combining them together meets the Crown's burden and degree of proof. That degree of proof, of course, is closer to certainty than it is to probability. (See: R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.)).
[47] In this case it was not just the weaknesses in each of the bodies of evidence relied on by the Crown, but there were potentially important areas where evidence was absent. For example, a photo line up was not conducted. But given that the assailant was masked that was understandable. However, there was no recognition evidence called to identify Mr. Babic as the driver depicted in the still photographs or the surveillance video. There was no forensic evidence that linked Mr. Babic to the robbery. None of the items taken from Mr. Rankin’s bedroom were in Mr. Babic’s vehicle after his arrest. Finally, there was no evidence of past associations, disputes, contacts, or incidents that could have provided a motive for the crime that pointed to Mr. Babic as the perpetrator. The absence of evidence in these areas must be considered in deciding whether the Crown has met its burden of proof. (See: R. v. Bero (2000), 151 C.C.C. (3d) 545, at paras. 57-58 (Ont. C.A.) and R. v. John, 2010 ONSC 6085, [2010] O.J. No. 4738, at para. 110).
[48] In my view, there was some compelling evidence that did point to Mr. Babic as the culprit such as the involvement of his vehicle linked to the crime and his resemblance to the driver in the video recording, but that was not enough to sustain or ground a conviction. There was evidence lacking in other areas. In the result, all the evidence pointed only to probable guilt.
Conclusion
[49] In conclusion, I am not satisfied on all the evidence that the Crown has met the requisite standard of proof of Mr. Babic as the perpetrator beyond a reasonable doubt. He is not guilty on both counts.
Released: January 25, 2022. Signed: Justice P.T. O’Marra