R. v. Chong, 2015 ONSC 1436
COURT FILE NO.: 14-3000002-0000
DATE: 20150304
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ADRIAN CHONG
Eadit Rokach, for the Crown, Respondent
Richard Elbert, for Adrian Chong
HEARD: February 23, 24, 25, & 26, 2015
r.f. goldstein j.
REASONS FOR JUDGMENT
[1] On April 13, 2014 someone broke into Barbara Tooth’s house at 24 Idehill Crescent in Toronto. Later that day the police executed a search warrant at 2821 Birchmount Road, Unit 1210. They recovered some of Ms. Tooth’s property from the apartment. They arrested three people who were found there and charged them with break and enter.
[2] One of the people they did not find in the apartment was Adrian Chong. Nonetheless, the Crown says that Mr. Chong participated in the break and enter. Did he? That is the question before the Court.
FACTS:
[3] A spate of break-ins in the Markham and Steeles area of Toronto attracted the attention of the York Regional Police and the Toronto Police in early 2013. They were suspicious of a group of young men.
[4] On April 3 2013 Constable Gill investigated Mr. Chong and Khalifa Topey in the area of Coleluke Lane and Wahba Way in Markham at 12:45 in the afternoon. The young men had no reason to be there as they did not live in the area. They told conflicting stories of how they got there. Constable Gill had no reason to detain the young men so he let them go. In the meantime, other officers set up surveillance on them. The officers watched Mr. Topey and Mr. Chong leave a Tim Horton’s and get into a Mazda 6 with dark tinted windows registered to Tullaram Naraine. The police followed the vehicle to 100 Sullivan Street in Ajax. Mr. Chong resided at 100 Sullivan Street at that time. It was unclear who else was in the vehicle but what was clear was that whoever was driving engaged in counter-surveillance. Such driving includes sudden U-turns to see if anyone is following and driving very slowly to see if anyone is tracking.
[5] The police decided to do more surveillance in the area of Birchmount Road and Finch. Some description of this area is necessary in order to put the evidence in context.
[6] Birchmount Road runs north-south. On the southeast quadrant is an apartment building at 2821 Birchmount Road. That apartment building figures prominently in the evidence. The first crossroad south of Birchmount and Finch is a crossroad with Glendower Circle and Timberbank Road running east-west. Glendower is the street to the east of Birchmount. Timberbank is the street to the west of Birchmount. Basically, if you are driving or walking eastbound on Timberbank and cross Birchmount you will be on Glendower. If you are driving or walking westbound on Glendower and cross Birchmount you will find yourself on Timberbank.
[7] As I have already mentioned, the southeast quadrant of Finch and Birchmount includes 2821 Birchmount Road. That apartment building is rectangular in shape, with the long side parallel to Birchmount. At the south entrance of the building there is a basketball court. This south exit features prominently in the evidence. There is a video camera inside the building facing the south exit and important evidence comes from that camera.
[8] To the south of 2821 Birchmount is a basketball court, and directly adjacent to the basket ball court is a small plaza. That small plaza sits at the corner of Glendower and Birchmount, and faces Glendower. If you were to walk out of the south entrance of 2821 Birchmount and across the basketball court, if you moved slightly to the west you would come along the east side of the small plaza. The municipal address of the plaza is 331 Glendower Circle.
[9] On April 8, 2013 the police set up surveillance in the area of this plaza. The Mazda registered to Mr. Naraine was parked there. Constable Rinna observed Mr. Naraine, Mr. Chong, Jihad Al Khasady, and Ricky Salmon get into the Mazda. He knew Mr. Naraine, who got into the driver’s seat. He knew Mr. Al Khasady from having arrested him. Mr. Al Khasady got into the front passenger seat. Other officers identified Mr. Salmon, who got into the rear passenger seat. Mr. Chong, who was wearing a very distinctive red jacket with camouflage patches on his shoulders and hood, got into the rear driver’s side seat. The police followed Mr. Salmon to a Home Depot that day and took a very clear surveillance photograph of him in the parking lot. Constable Romano identified him in that photograph, as did Constable Rinna and Constable Gillespie. Constable Gillespie knew Mr. Salmon very well from having investigated him on several occasions.
[10] The police followed the Mazda 6 insofar as they could that day. Mr. Naraine, who was observed getting into the driver’s seat, engaged in counter-surveillance driving. The Mazda drove into residential areas where the police could not easily follow them. A tracking warrant was subsequently obtained for the Mazda but it was not installed until April 10, 2013.
[11] I am satisfied that these were the four men who were in the Mazda 6 on April 8, 2013. I base this on the evidence of Constable Rinna as well as a combination of the evidence of other officers who knew these men well and surveillance photos taken on subsequent days. I am also satisfied that Mr. Naraine’s counter-surveillance driving was the result of a strong and well-justified suspicion that he was under police surveillance.
[12] On April 9, 2013 the police again conducted surveillance of the Mazda and the suspected thieves. Constable Romano took series of surveillance photos showing four men walking into the plaza at Glendower and Birchmount, and then getting into the Mazda just after 9 am that day. Constable Romano did not know the four men and could not identify them. Constable Gillespie, who was conducting surveillance that day, reviewed the photos and recognized three of them: Mr. Naraine, who got into the front passenger seat; Mr. Salmon, who got into the rear passenger side seat; and Mr. Al Khasady, who got into the driver’s seat. Constable Gillespie did not recognize the fourth person, but Constable Cultrera did: that was Mr. Chong. Constable Cultrera knew him personally. He had personally dealt with Mr. Chong, had seen many photographs of him, and had conducted surveillance on him in the past. He also knew Mr. Al Khassady and Mr. Naraine. Constable Cultrera viewed the surveillance photos from that day for the first time in Court.
[13] The police then conducted surveillance on the Mazda. The driver, who, based on the photographs, I believe was likely Mr. Al Khassady, engaged in counter-surveillance. The police were not able to conduct constant surveillance on the residential streets without exposing themselves. The Mazda was, however, observed to be driving slowly up and down residential streets.
[14] On that day, April 9, 2013, there was a break and enter at 54 Dearborn in the area. This occurred while the police had the Mazda under general surveillance but during the period where they could not easily follow onto a residential street. Although the police were suspicious that the men in the Mazda had committed the offence, they did not have enough evidence to arrest them. I think it is likely that the four men in the Mazda committed the break and enter at 54 Dearborn, but I cannot make that finding of fact based on the evidence before me.
[15] I am, however, satisfied that the four men in the Mazda on April 9, 2013 were Mr. Chong, Mr. Al Khasady, Mr. Salmon, and Mr. Naraine.
[16] On the morning of April 10, 2013 the police set up surveillance on the silver Mazda 6 registered to Mr. Naraine. It was parked on Timberbank, not that far from 2821 Birchmount. Police also installed a tracking device on the Mazda. The tracking device data were entered into evidence by way of a spreadsheet and maps. The tracking device shows very comprehensively the route taken by the Mazda that day, including the stops along the way. It clearly went out to Ajax and came back to the Scarborough area. The Mazda certainly took what looks like counter-surveillance movements: it engaged in frequent u-turns, went back on its own track, and drove slowly around several residential streets.
[17] Constable Gillespie and Constable Rasmussen were set up in the area on the morning of April 10, 2013. Constable Gillespie took a series of photographs. The officers observed Mr. Naraine, Mr. Al Khasady, and Mr. Topey walking from the direction of 2821 Birchmount at 11:26 am. Mr. Naraine was wearing very distinctive shoes. A close-up shot of the shoes was entered into evidence. The vehicle was then followed to the area of 100 Sullivan Drive in Ajax by a combination of tracking device and physical surveillance. Officers observed the Mazda engage in counter-surveillance driving along with way. The tracking device data bears out those physical observations. The Mazda parked in that area of 100 Sullivan Drive in Ajax between 12:02 and 12:06 pm.
[18] Although nobody actually saw Mr. Chong leave 100 Sullivan Drive, it is obvious that he did so, and got into the Mazda with the other three individuals. The Mazda then left the area and went back to Toronto. The driver engaged in more counter-surveillance on the way back.
[19] The Mazda parked in the area of Idehill Crescent and Dibgate Boulevard between 1:05 pm and 1:25 pm. At 1:38 pm an officer confirmed that 24 Idehill Crescent had been broken into. Barbara Tooth, the homeowner, testified. She identified a number of items that were stolen from the house, including jewellery and foreign currency. She received some of her stolen property back.
[20] Constable Coroghly, the officer-in-charge of the case, caught sight of the Mazda as it exited the general area after 1:25 pm. He attempted to follow but the Mazda engaged in more counter-surveillance. Eventually the vehicle was tracked back to the area of Birchmount and Glendower/Timberbank. Mr. Al Khasady was arrested as he ran from the Mazda. Other officers converged on the building at 2128 Birchmount as the likely refuge for the other men.
[21] The video camera at the south entrance to 2128 Birchmount caught the movements of persons going in and out that day. At 1:41 pm the camera caught Mr. Chong outside the window. He was carrying a backpack. He appeared to bend down. Constable Gillespie testified that he knew from experience that the south entrance door can sometimes be opened from the outside if a person can get his or her fingers under the lip of the door. It appears that was what Mr. Chong was trying to do.
[22] At 1:44 pm an unknown male came to the door. He was speaking on a cell phone. He held the door open for Mr. Naraine, who then held the door open for Mr. Topey. Mr. Topey was wearing his distinctive black Blue Jays cap and carrying a Jansport knapsack. The police later seized that Jansport backpack from Apartment 1210. It was underneath a couch where Mr. Topey was sitting. It contained a crowbar. Mr. Naraine was wearing a hoodie and also carrying a knapsack. Mr. Topey walked out of the view of the camera at 1:45 pm while Mr. Naraine continued to hold the door open. Constable Cultrera was driving up the back lane at 1:43 pm. He observed Mr. Chong walking across the basketball court and towards the south entrance of the building. He was no longer carrying a backback. The south entrance video camera captured him entering the south entrance at 1:46 pm.
[23] At 1:52 Mr. Chong walked out of the south exit of 2128 Birchmount where he immediately encountered a police officer. That encounter is captured on the south exit video camera. Constable Coroghly, who was running by, told the officer to detain Mr. Chong.
[24] Police officers, who were acting on information that they had received, attended outside Apartment 1210. That was the apartment where Ricky Salmon resided. Eventually they went in and froze the premises in anticipation of obtaining a search warrant, as they were concerned with the preservation of evidence. When they obtained the warrant they went in and searched. They found the Jansport backpack carried by Mr. Topey with the crowbar. They found Mr. Naraine and Mr. Topey in the apartment. They found them on a couch with clothing beside them. The clothing was the clothing that Mr. Naraine and Mr. Topey were wearing when the surveillance photos were taken. They also found Mr. Naraine’s distinctive shoes, although he wasn’t wearing them. Ms. Tooth testified that a large amount of cash was taken from her home. When the police arrested Mr. Salmon he was in possession of 7 $100 bills. When they arrested Mr. Naraine he was found in possession of 15 $100 bills and 3 $20 bills. When Mr. Al Khasady was arrested he was in possession of 37 $100 bills, 1 $50 bill, and 2 $20 bills for a total of $3,790.
[25] Most importantly, the police found multiple items stolen from 24 Idehill Crescent. Ms. Tooth identified those items as hers, including some of her jewellery.
ISSUES AND ANALYSIS:
[26] Before commencing my analysis I note that defence counsel did not take objection to any of the evidence of Mr. Chong’s previous interaction with police officers. As a judge sitting alone, I only take account of these encounters as evidence of identification and nothing more. Mr. Elbert, for Mr. Chong, did not take issue with any of the search or seizure action conducted by the police on Apartment 1210 at 2128 Birchmount Road, although it is difficult to see what standing he would have had to do so anyway.
[27] In any criminal case, the Crown bears the burden of proving each element of the offences charged beyond a reasonable doubt. The Crown is also required to prove that the person named in the indictment is the person who committed the offences. In this case, there is no doubt that the offences of break and enter and possession of property obtained by crime were committed. The real question is the identity of the perpetrators, and, specifically, whether Mr. Chong was one of those perpetrators.
[28] As Mr. Elbert correctly pointed out in cross-examination and submissions, nobody actually saw Mr. Chong get into the Mazda in the area of 100 Sullivan Street on April 10, 2013. Nobody saw Mr. Chong – or anyone else, for that matter – break into 24 Idehill Crescent. Nobody saw Mr. Chong carrying any of the stolen property. In fact, he did not have any stolen property on him when he was arrested, unlike Mr. Naraine, Mr. Topey, and Mr. Salmon, who were arrested in Apartment 1210 with some of Ms. Tooth’s property. Mr. Chong did not have large amounts of cash on him, unlike Mr. Al Khasady. The Crown’s case, therefore, is entirely circumstantial. It rests on showing that whoever was in that Mazda committed the break and enter of 24 Idehill. It also rests on showing that Mr. Chong was in that Mazda. Where the Crown’s case is circumstantial, a Court may only convict where guilt is the only reasonable explanation: R. v. Mezzo, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802.
[29] I find as a fact that whoever was in the Mazda 6 carried out the break and enter of 24 Idehill Crescent. The Mazda was stopped right in front of the house for twenty minutes between 1:05 pm and 1:25 pm on April 10, 2013. The police discovered the break-in at 1:38 pm. Police surveillance shows very directly that Mr. Naraine, Mr. Al Khasady, and Mr. Topey got into the Mazda 6 on the morning of April 10, 2013.
[30] Further circumstantial evidence points to these men carrying out the break and enter. Mr. Naraine and Mr. Topey entered the south entrance of 2128 Birchmount at 1:44 pm. Mr. Topey was wearing a distinctive Jansport backpack. The police seized a Jansport backpack under the couch in Apartment 1210 – Ricky Salmon’s apartment – where Mr. Topey was seated. The Jansport backpack had a crowbar in it. As a matter of common sense, people generally do not carry crowbars in their knapsacks. The presence of Mr. Topey, Mr. Al Khasady, and Mr. Naraine in the Mazda combined with a crowbar in a knapsack, in an apartment with stolen property points quite conclusively toward the conclusion that Mr. Topey, Mr. Al Khasady, and Mr. Naraine carried out or were parties to the break and enter at 24 Idehill Crescent.
[31] Was Mr. Chong the fourth person in the Mazda 6 that day? Did he also participate in that break and enter? In my view, he did. Guilt is the only reasonable explanation. I say that for the following reasons:
• Mr. Chong is clearly associated with Mr. Topey. They were together on April 3 and April 10, 2010.
• On April 3, after the encounter with Constable Gill, Mr. Chong and Mr. Topey got into the Mazda registered to Mr. Naraine. The Mazda drove Mr. Chong back to his residence at 100 Sullivan Street in Ajax. While doing so, whoever was driving the Mazda was engaged in counter-surveillance driving. Most people do not employ counter-surveillance driving unless they are concerned that they are under observation. The men in the Mazda very obviously wanted to avoid the police. They knew that Mr. Topey and Mr. Chong had been investigated and released only a short time before.
• On April 8 Mr. Chong was observed in the Mazda with Mr. Salmon, Mr. Naraine, and Mr. Al Khasady. The Mazda engaged in more counter-surveillance driving. The Mazda also drove very slowly around residential streets. I find as a fact that the men in the Mazda were scouting for locations to break into on that day or future days. I also find that they were engaged in counter-surveillance to avoid detection by the police.
• On April 9 Mr. Chong was once again observed in the Mazda, again with Mr. Salmon, Mr. Naraine, and Mr. Al Khasady. Again, the Mazda engaged in counter-surveillance driving and appeared to scout around for locations to break into. In fact, one residence was broken into although it cannot be stated with any degree of certainty that these men were responsible.
• On April 10 Mr. Topey, Mr. Al Khasady, and Mr. Naraine drove the area of Mr. Chong’s residence in Ajax. They engaged in counter-surveillance driving on the way there and on the way back to Scarborough. As I have mentioned, it is obvious that they went to Ajax to pick up Mr. Chong.
• The tracking device clearly shows the route taken by the Mazda to Ajax, back to Scarborough, to the area of 24 Idehill Cresecent, and then to the area of 2128 Birchmount. If Mr. Chong did not get out of the Mazda, then he must have participated in the break and enter.
• Did Mr. Chong get out of the Mazda? I find as a fact that he did not, except, perhaps, when the break and enter was committed. Even if he did not, he was certainly still a party. He did not somehow magically exit the Mazda and then find his way to 2128 Birchmount. I find that he had no opportunity to get out of the Mazda. Certainly the police, who had the Mazda under physical observation for much of the time, did not observe Mr. Chong exit the vehicle at any time prior to the stop at 24 Idehill, although I acknowledge that they did not have the Mazda under constant observation.
• At 1:41 pm, only 16 minutes after the Mazda left the area of Idehill and Dibgate, Mr. Chong was caught on video with a backpack at the south entrance to 2128 Birchmount Road. It is clear from the video that it is Mr. Chong bending over and it is also clear that Mr. Chong is wearing a backpack. At 1:43 pm Constable Cultrera observed Mr. Chong walking without the backpack towards the south entrance. At 1:46 pm Mr. Chong entered the building. It is clear from the video that he is no longer wearing the backpack. This suggests to me that he well knew that the police were in the area and stashed it so that he would not be found with stolen property. Much of Ms. Tooth’s property remains unaccounted for.
• Moreover, Mr. Naraine, who was clearly implicated in the robbery, held the door of 2128 Birchmount open at 1:46 pm so that Mr. Chong could get into the building. That suggests that whatever they were up to, they were up to together.
• Mr. Topey and Mr. Naraine entered the 2128 Birchmount only about 15 minutes after the break and enter, and Mr. Chong shortly after that. Mr. Topey and Mr. Naraine found refuge in Mr. Salmon’s apartment. The police seized property belonging to Ms. Tooth from Mr. Salmon’s apartment. When they executed the search warrant, Mr. Topey and Mr. Naraine were present and arrested.
• The proximity of the crowbar, the Jansport knapsack, the stolen property, and Mr. Topey and Mr. Naraine only short minutes after the crime, after holding the door open for Mr. Chong, is more than just a coincidence.
Thus, in my view, guilt is the only reasonable explanation.
DISPOSITION
[32] Mr. Chong is found guilty on Count 1 on the indictment, break, enter, and theft. I find that he was in joint possession of the stolen property with his co-actors. He is therefore also guilty on Count 8.
R.F. Goldstein J.
Released: March 4, 2015
CITATION: R. v. Chong, 2015 ONSC 1436
COURT FILE NO.: 14-3000002-0000
DATE: 20150304
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ADRIAN CHONG
REASONS FOR JUDGMENT
R.F. Goldstein J.