R. v. Ghaleenovee, 2015 ONSC 1707

R. v. Ghaleenovee, 2015 ONSC 1707

COURT FILE NO.: 62-14

DATE: 20150317

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SOHEIL GHALEENOVEE

Appellant

Dan Guttman, for the Crown, Respondent

Peter Lindsay, for the Appellant

HEARD: March 10, 2015

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

Goldstein J.

1Google Maps is incredibly powerful and useful. Images and maps downloaded from Google Maps are now very common in criminal trials and often accepted as authoritative. In fact, there is nothing wrong with a trial judge using Google Maps or some other indisputably accurate source for the purpose of taking judicial notice of a notorious fact. Google Maps has a function that permits a user to drill down to the actual Street View. But what happens when a trial judge, during the course of a criminal trial, uses an image from Google Street View that he himself has downloaded to make an adverse finding of credibility against an accused person?

2The Appellant, Mr. Ghaleenovee, was charged with assault causing bodily harm to Ms. Pouneh Ahmadi. The Crown’s theory was that Mr. Ghaleenovee punched Ms. Ahmadi in the mouth without provocation and that he cut his hand on her teeth. Mr. Ghaleenovee testified that he was in a fight with another man over the payment of the bill. He said that he cut himself on a fence at the club. After Mr. Ghaleenovee testified his counsel called another witness to testify. It was at that point that the trial judge accessed the image from Google, Street View and questioned the witness about it. The image showed the fence at the Muzik nightclub. The image was not put to Mr. Ghaleenovee.

3The trial judge found Mr. Ghaleenovee guilty. He relied on the downloaded image, in part, to find make an adverse finding of credibility against Mr. Ghaleenovee. In my respectful view, by doing so he compromised the fairness of the trial. For the reasons that follow, the appeal is allowed and a new trial is ordered.

TRIAL AND JUDGMENT

4The Crown called three civilian witnesses: Ms. Ahmadi, her friend Adina Goldfarb, and an acquaintance of the victim, Victoria Italiano. The Crown also called a police officer. The three civilian witnesses described the incident and the man who struck Ms. Ahmadi in very similar terms.

5On the night of December 3-4, 2011 Ms. Ahmadi was at Muzik, a popular nightclub, with Ms. Goldfarb. At about 3:00 to 3:30 a.m. she and Ms. Goldfarb left to go home. A man approached Ms. Ahmadi in an angry manner. The man punched her in the face for no apparent reason. She suffered a broken tooth and other injuries. Ms. Ahmadi testified that she did not know him. She fell to the ground. Someone, whom she believed to be a police officer, grabbed the man. In cross-examination she denied the suggestion that she was outside the club with her former boyfriend Ali Reza Moblsaz when she was struck.

6Ms. Ahmadi described the man as having dark skin and wearing a white long-sleeve shirt or dress shirt. The top of his shirt was unbuttoned and she recalled him having a tattoo around his neck. Ms. Ahmadi’s friend Ms. Goldfarb described him as being Middle Eastern looking. He was wearing a white dress shirt. The top few buttons were undone. She noticed he had a tattoo near his neck. Ms. Goldfarb noticed him being placed in a police car after he threw the punch. In cross-examination she said had never met Ms. Ahmadi’s ex-boyfriend Ali Reza. Mr. Ali was not there that night and she did not see an altercation between the man who punched Ms. Ahmadi and Ali.

7Ms. Italiano did not previously know Ms. Ahmadi or Ms. Goldfarb but approached them for a light. She heard swearing and shouting but had her back turned to Ms. Ahmadi. She did not see the actual punch but saw Ms. Ahmadi fall to the ground. She did not see any other fighting. She described the man who was shouting as wearing a low-cut white t-shirt. She could see a tattoo on his chest. Mr. Ghaleenovee’s booking photo shows a tattoo on his chest just below his neck. The three women were cross-examined vigorously. Their credibility, and not just their ability to recall, was challenged.

8The police officer, Constable Medulun, testified that Mr. Ghaleenovee was in custody when he arrived at Muzik at about 3:45 a.m. He observed the cut on his knuckle. Mr. Ghaleenovee told him that he cut his hand on the fence and discussed an earlier “bottling” incident. He told the officer that he was a trained martial artist. He denied striking the girl and further told the officer that if he had she would have been knocked out. Mr. Ghaleenovee’s statements were admitted as voluntary.

9Mr. Ghaleenovee testified. He said that he was at Muzik with some friends. He left at about 3:00 or 3:15 a.m. He said that he did not know Ms. Ahmadi but has seen her with her boyfriend Ali. He and Ali have mutual friends. On the night in question he said he was at a table with several others, including Ali and Ms. Ahmadi. When he left he noticed Ali standing with others, including Ms. Ahmadi and Ms. Goldfarb. He was angry that, as usual, Ali had not contributed to the bill. He said that they got into a fight. He said that he did not notice what happened to Ms. Ahmadi. He said that a police officer put him in cuffs very quickly. He denied that he struck Ms. Ahmadi. He said that he was pushed into the fence and that this was the cause of the cut on his hand. He denied telling Constable Medulun that he was a professional martial artist but agreed that they had discussed UFC.

10Mr. Ghaleenovee’s counsel also called Gott Chanthapathet, a friend of Mr. Ghaleenovee. He said he was at Muzik with his girlfriend and Ali on the night of December 3-4, 2011. He testified that he was at the table with, among others, Mr. Ghaleenovee, Ms. Ahmadi, and Ali. He testified that he left Muzik with his girlfriend at about 3:00 a.m. He saw Ali and Mr. Ghaleenovee arguing by the fence. It was at that point that the trial judge indicated that he was looking at a Google Street View image of the nightclub on his computer. The trial judge asked questions about the fence. Mr. Chanthapathet went on to testify that he saw Mr. Ghaleenovee and Mr. Ali get into a fight. He said that Ms. Ahmadi was standing beside Mr. Ali during the fight. The image was entered as an exhibit.

11Although there were problems with some aspects of the testimony of the three civilian witnesses, the trial judge accepted their evidence. He rejected the evidence of Mr. Ghaleenovee and Mr. Chanthapathet. He found that it was “unlikely” that the injuries to Mr. Ghaleenovee’s hand were caused by the fence. Although there was no expert evidence on the point, he said that the cuts were consistent with a punch to the mouth.

ISSUES

12Mr. Lindsay, on behalf of Mr. Ghaleenovee, makes two main arguments. The first and most important issue is whether the trial judge compromised Mr. Ghaleenovee’s right to a fair trial by downloading the Google Street View image and then using it to make an adverse finding of credibility against him.

13Mr. Lindsay also argues that the trial judge reversed the burden of proof. Although I reject that argument, it is not without force and I will deal with it at the end of these reasons.

14Mr. Lindsay further argues that the trial judge misapprehended the evidence and subjected the defence evidence to greater scrutiny than the Crown’s evidence. In my view, those arguments have no merit and it is not necessary for me to deal with them.

ANALYSIS

(a) Did the trial judge compromise the fairness of the trial?

15It is almost impossible for any adult person in Canadian society in 2015 to function without at least some access to the Internet. It is extremely difficult to apply for a job, book an airline ticket, or access government services without access to the Internet. Given the ubiquity of the Internet, including the mobile Internet, and the ease with which it can be used, it is very tempting for a trial judge to use it. Several trial courts in this province have considered the extent to which the Internet, and specifically Google Maps, can be used to take judicial notice of facts. The Court of Appeal has specifically found that a trial judge may rely on Google Maps when taking judicial notice as a readily accessible source of indisputable accuracy: R. v. Calvert, 2011 ONCA 379, 12 M.V.R. (6th) 18, [2011] O.J. No. 3086. See also: R. v. Gregory, 2009 BCCA, 2009 BCCA 26, [2009] B.C.J. No. 240.

16In Calvert the trial judge was dealing with an argument regarding the “as soon as practicable” test in “over 80” cases that is critical to the presumption of identity. The trial judge accessed Google Maps to determine the distance from the scene of the arrest to the police station. The summary conviction appeal judge dismissed the appeal. The Court of Appeal said this in denying leave:

The "as soon as practicable" test is well settled and, in the circumstances of this case, it was reasonable for the trial judge to take judicial notice of the distance between the arrest scene and the police station. In this regard, we note that the appellant accepts that generally speaking maps may be relied on by the courts when taking judicial notice because maps are a readily accessible source of indisputable accuracy.

17Trial courts in this province have used Google Maps to take judicial notice. In Yates v. Fedirchuk, 2011 ONSC 5549, 343 D.L.R. (4th) 171, [2011] O.J. No. 4718 the court was considering a nuisance action dealing with the property rights of swimming pool owners and neighbours with trees. Annis J. relied on years of general knowledge living in the area as well as Google Maps to take judicial notice of the green character of a neighbourhood.

18In R. v. Hill, [2013] O.J. No. 3176 (Sup.Ct.) Shaughnessy J. of this Court referenced a Google map to take judicial notice Scarborough was amalgamated with the City of Toronto and that a particular address was close to the former border between the two cities.

19In R. v. Robinson, 2010 ONCJ 576, [2010] O.J. No. 5233 (O.C.J.) Bourque J. of the Ontario Court of Justice was faced with a situation where the Crown had not specifically proven jurisdiction. The information alleged an offence in a particular municipality. Bourque J. considered whether or not the Court could use Google Maps as a source of indisputable accuracy to take judicial notice of the location of the offence. He concluded that he could.

20I conclude that indisputable facts can be established accessing the Internet as a source. There are, however, two caveats. The first is that the Internet contains wheat as well as chaff. Everyone with a computer has been directed to a highly dubious “urban legend”. I see no difficulty, however, with consulting a reputable website that is generally accepted as containing accurate information.

21The second caveat is that a judge must not compromise the fairness, integrity, and reputation of the trial process. The Internet has not changed that. Judges have their role and counsel theirs: R. v. Brouillard, 1985 56 (SCC), [1985] 1 S.C.R. 39 at paras. 12-13. Checking indisputable facts is one thing. Conducting an investigation and drawing inferences – especially without giving the parties an opportunity to respond – is another.

22In R. v. Valley (1986), 1986 4609 (ON CA), 26 C.C.C. (3d) 207, 13 O.A.C. 89, [1986] O.J. No. 77 (C.A.) Martin J.A. considered when a trial judge can properly intervene in the questioning of a witness: to clear up ambiguities; to explore vague answers; or to bring out relevant matters that counsel have omitted. The over-arching question in determining whether a trial judge’s interventions have compromised the fairness of the trial is this:

The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial.

Valley at 26 C.C.C. (3d) pg. 232. See also: R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141, 303 D.L.R. (4th) 1, [2009] O.J. No. 600.

23When is the line crossed from un-controversially taking judicial notice of notorious facts to conducting an investigation, descending into the arena, or usurping the role of counsel?

24An example of a trial judge going too far and compromising the fairness of the trial is found in R. v. Balen, 2012 ONSC 2209, 258 C.R.R. (2d), 2012 CarswellOnt 4259 (S.C.J.). The accused was convicted of failing to remain at the scene of an accident. The issue was identification. One witness described the driver as wearing a “k-way” type of jacket. A police officer indicated that the accused was wearing a “k-way” jacket on arrest. The trial judge independently researched whether or not K-way, a company, manufactured tracksuits.

25Hill J. of this Court heard the summary conviction appeal. He noted, relying on Calvert, that in limited circumstances a court may obtain and use information from the Internet. The trial judge, however, had researched the type and style of fabric manufactured by K-way. That information was critical to the trial judge’s reasoning process. The defence had no opportunity to see the evidence, to cross-examine on it, or to lead evidence in response. That constituted an error. For that reason, and for others, Justice Hill allowed the appeal.

26In this case, the trial judge downloaded an image of the fence in question after the accused, Mr. Ghaleenovee, testified. The image was not put to Mr. Ghaleenovee. He did not comment on it. It was not the subject of extensive submissions. The trial judge, however, used it to make an adverse finding of credibility against Mr. Ghaleenovee, at least in part:

We are aware that Mr. Ghaleenovee had small cuts to the knuckles of his hand… He offers an explanation for how he got the cuts to his knuckles, but it does not seem very likely that he could have cut his hand on the fence in the way he described, or at all. The fences in question are tubular, they have corners, but not the kind of corners that anybody could cut their hands on, particularly in the way described by Mr. Ghaleenovee…

27In my respectful view, using an image that was downloaded from the Internet by the trial judge and not put to the witness compromised the appearance of fairness. A reasonable person would consider it unfair that Mr. Ghaleenovee was never asked to comment on the image. I might add that the trial judge’s comment was also problematic because of his observation – made without expert evidence – that Mr. Ghaleenovee’s cuts on his knuckles were consistent with tooth marks.

28Mr. Guttman, for the Crown, notes that Mr. Ghaleenovee never objected to the use of the image, or sought to re-call his client. If Mr. Ghaleenovee had truly been prejudiced, his counsel could have been expected to do either or both of those things. That argument has considerable merit, but I reject it for the following reasons:

• Whether or not to recall Mr. Ghaleenovee was an impossible choice. Mr. Ghaleenovee had already testified as to how he cut his knuckles when the image was introduced. If he were to have been recalled, and testified to a different version based on the image, he would have risked undermining his credibility, even if he were truthful and the image only refreshed his memory. If he did not testify, however, then he would have left questions about the nature of the injury and his impact on the fence unanswered. That, of course, is what happened.

• Trial counsel (who was not Mr. Lindsay) could not have known that the trial judge would use the image in the manner he did.

• An objection by trial counsel to the provenance, authenticity, and accuracy of the Google Street View image might have put the trial judge in the position of being a witness or investigator.

• It is highly unusual for a trial judge to do what this judge did. There must have been a certain degree of uncertainty on the part of counsel as to the appropriate course of action to take. Under the circumstances, I don’t think Mr. Ghaleenovee’s counsel can be criticised for making a tactical decision that only became wrong in retrospect.

• Even if Mr. Ghaleenovee’s counsel should have objected or recalled him, and did not, that would not remove the taint of unfairness.

• As noted in Valley, the issue is not prejudice but fairness.

29I want to emphasize that the overall impression from the transcript up until the moment of the intervention is one of a trial judge being fair, impartial, and having a good grasp of the evidence. I have no doubt that the trial judge was conscientiously attempting to do his duty in conducting a search for the truth. Mr. Lindsay did not suggest otherwise. Unfortunately, however, a reasonable observer would conclude that the fairness of the trial was compromised.

(b) Did the trial judge reverse the burden of proof?

30Mr. Lindsay argues that these words show that the trial judge reversed the burden of proof:

He did not offer any explanation for how Ms. Ahmadi got punched in the face, or how she managed to sustain a significant injury to her mouth and teeth…

In this context, simply to say “the girl ended up on the ground” leaves questions unanswered, questions for which we need answers.

I respectfully disagree with Mr. Lindsay on this point.

31It is true that at first glance these words, standing by themselves, could be construed to show that the trial judge reversed the burden of proof. An accused person obviously need not prove anything. Mr. Lindsay relies on R. v. Robert (2000), 2000 5129 (ON CA), 143 C.C.C. (3d) 330, 31 C.R. (5th) 340, [2000] O.J. No. 688 (C.A.). In that case the accused was present at a fire. He was charged with arson. The trial judge convicted the accused. He assumed that the mere presence of the accused at the fire was enough to require him to provide an innocent explanation for the fire. As Sharpe J.A., for the Court of Appeal noted, the trial judge took an analytical framework designed to test the case for the Crown and applied it to the accused.

32That, however, is not what happened in this case. Mr. Guttman correctly points out that the trial judge’s words must not be scrutinized in isolation but must be read as a whole. An appellate court does not put a trial judge’s reasons under a microscope: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 at paras. 19-20; R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.).

33I reproduce the whole of the passage:

He was asked who shoved him, and he said “well, maybe it was Ali. Maybe it was the girl”, Ms. Ahmadi. All he felt was a shove and he went back and his hand hit the corner of the fence and that is how it got cut. He did not offer any explanation for how Ms. Ahmadi was punched in the face, or how she managed to sustain a significant injury to her mouth and teeth, nor did he offer much of an explanation to account for how he has no explanation for what happened to Ms. Ahmadi given that, according to his testimony, he was engaged in an exchange with Ali and Ms. Ahmadi immediately before she would have gone to ground. They were all standing in immediate proximity to each other.

In this context, simply to say “the girl ended up on the ground” leaves questions unanswered, questions for which we need answers.

34Context matters. Mr. Ghaleenovee testified that there was a fight involving Ali, Ms. Ahmadi’s supposed boyfriend. On Mr. Ghaleenovee’s testimony Ms. Ahmadi was intimately involved in the escalating situation. Defense counsel’s cross-examination was forcefully directed at Ms. Ahmadi’s credibility (and Ms. Goldfarb’s and Ms. Italiano’s). Although their ability to observe was challenged, identity was not really the issue. In those circumstances Mr. Ghaleenovee alleged (in contrast to the evidence of the Crown witnesses) that Ms. Ahmadi was part of a fracas. In my view it was open to the trial judge to point out that his evidence left many unanswered questions that impacted on his credibility. That is not the same as requiring him to answer questions as a matter of law.

35The real question is whether the trial judge applied the framework set out in R. v. W.D. 1991 93 (SCC), [1991], 1 S.C.R. 742. In my view he did. The trial judge was aware that the paramount question was whether the evidence as a whole left him with a reasonable doubt: R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5. I reject this ground of appeal.

DISPOSITION

36There was most certainly compelling evidence upon which the trial judge could have convicted Mr. Ghaleenovee. Thus, Mr. Ghaleenovee should receive a new trial rather than an acquittal.

37I thank both counsel for their very professional arguments.

Goldstein J.