CITATION: R. v. David, 2015 ONSC 3842

COURT FILE NO.: CR14100007200000

DATE: 20150616

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. David

BEFORE: Backhouse J.

COUNSEL: J. Witkin, for the Crown

J. An, for the Accused

TRIAL HELD: June 1, 2, 8, 9, 11 and 12, 2015

Reasons for Judgment of Backhouse, J. delivered June 16, 2015

[1] The accused is charged with a number of firearm and robbery with a firearm offences. The major issue in this case is identification.

[2] Norris Samuels and Chadrick Sinclair were robbed at gunpoint on August 3, 2012 on Dundas Street West and Centre Street in Toronto. The victims had come to Hong Shing Restaurant on Dundas Street West to get something to eat at around 3:30 a.m. While they were outside the restaurant, a black jeep pulled up and parked directly in front of Mr. Sinclair’s vehicle. Three to four Black males exited. One of the males held a black handgun at the height of Mr. Samuels’ waist and yanked off his gold rope chain worth approximately $1000.00. Mr. Sinclair described this person as a light skinned Black male (or Black with white skin) with braided hair, age approximately 20 to 23 years and 160 pounds, wearing dark clothes. Another Black male from the same SUV removed Mr. Samuels’ wallet from his back pocket. Mr. Samuels saw the same males go to Mr. Sinclair, rob him too and then get into the black jeep and drive away. Mr. Samuels was not able to identify the accused from a photo lineup in January, 2013 or recognize the accused at the preliminary inquiry or at trial as one of the persons who robbed him.

[3] Mr. Sinclair testified that he and Mr. Samuels got to Hong Shing Restaurant shortly after 3 a.m. Not long after they arrived, he saw a black jeep park directly in front of his vehicle on Dundas Street West. Four to five Black males exited the jeep. He saw one of the males from the jeep rip off Mr. Samuels’ necklace, holding what appeared to be a gun at his waist. Another person removed his wallet. The same person who ripped off Mr. Samuels’ necklace then came over to Mr. Sinclair with his gun at his waist. He told Mr. Sinclair not to say anything and removed Mr. Sinclair’s silver watch. Mr. Sinclair described the person who stole his watch as Black or mixed black and white but with a lighter complexion, longer braided hair, between 18 to 25 years of age, 5 feet 10 inches, 170 pounds and wearing dark baggy clothing. After his watch was stolen, Mr. Sinclair threw his 2 phones into his vehicle. Another male who had exited the jeep removed Mr. Sinclair’s wallet from his back pocket containing various pieces of identification including his driver’s licence. He then reached into Mr. Sinclair’s car and removed his 2 phones. This person was dark skinned, much darker than the first perpetrator, between 18 to 25 years of age and 5 feet 10 inches to 5 feet 11 inches and 160 to 180 pounds. The males who had arrived in the jeep including the two who had robbed them then drove away.

[4] Detective Higo created 2 photo lineups for each of the 2 suspects the police had identified, Orville Campbell and the accused. The victims did not look at the photo lineups until January 2013. For the photo lineup for Orville Campbell, Mr. Sinclair picked out photo #7 as the person who he was 70% sure had stolen his wallet and phones. Orville Campbell’s photo was photo #3. For the photo lineup for the accused, Mr. Sinclair picked out photos #1 and #7 as resembling the person who stole his watch but he was not 100% sure. He said it was his best recollection of what the person looked like. He stated that he was 85% sure with respect to photo #1. With respect to photo #7 which was a photo of the accused, he stated that “this also looks like the individual who approached me with a gun. I’m 90% sure.” He was unable to identify the accused as the person who stole his watch at the preliminary inquiry or at trial.

[5] After the robbery, the victims discussed what to do. They went back into the restaurant and then decided to follow the jeep. They drove towards University Avenue, made a left turn onto University and travelled southbound towards the Gardiner Expressway. They got close to the Gardiner without seeing the jeep so they returned to the restaurant. They saw a police cruiser which they pulled up behind and gave a statement to PC Bennett at 3:39 a.m. reporting the robbery.

[6] At 3:37 a.m. the police received a 911 call from someone at Lakeshore and the Don Valley Parkway who identified himself only as “Anthony”. By way of narrative and not as evidence tendered for its truth, “Anthony” reported that his brother was robbed by the occupants of a black Cherokee with 4 to 5 occupants. He was following the vehicle and one of the occupants had fired gunshots at him. The police called the cell phone number associated with the 911 call (416-923-4454) and spoke to the person whom they believed had made the 911 call. He did not wish to make a statement to the police and hung up on them. Subsequent attempts to reach him went to voicemail which was full. The police obtained subscriber information for the telephone number 416-923-4454. The response was that the subscriber was Anthony Williams on Trewartha Crescent, Brampton. The exact same address was in a lost property occurrence report in the Toronto Police database for August 4, 2012. The report stated that Osaigbovo Obazee, of the same address as Anthony Williams, had attended at 52 Division to report that on August 2, 2012 at 10 p.m. at Dundas and Centre Street, he had lost a black leather wallet, $800, a drivers licence, a SIN, a health card, a CIBC debit card and a Royal bank credit card. A wallet with identification belonging to Osaigbovo Obazee was subsequently found on the execution of a search warrant on the jeep Cherokee after it was abandoned and impounded at around 4:30 a.m. on August 3, 2012.

[7] Shortly after the 911 call from “Anthony”, a police broadcast went out informing all units to be on the lookout for a black SUV with 4 to 5 occupants last seen travelling northbound on Woodbine at Danforth Avenue. PC Dagonas observed a black jeep SUV travelling northbound on Woodbine Avenue at O’Connor Avenue. She was able to observe 2 Black males in the front seat but not the back seat. She activated the lights on her squad car and attempted to get the front passenger to put his hands out the window. The jeep took off at high speed, approximately 150 km. per hour, turning right onto O’Connor and ran a red light. Officer Dagonas lost sight of the jeep around O’Connor and Victoria Park.

[8] At 4:07 a.m. Ian Sanchez, a resident of 58 Hexham Drive made a 911 call reporting a suspicious incident involving a black SUV parked at a cul de sac on Hexham Drive next door to his house. He saw a group of Black males wearing baggie clothes leave the vehicle and enter a schoolyard. Mr. Sanchez had not seen the vehicle or the males before in the neighborhood. He observed 3 of the males going towards the left and one of the males going towards the fence where there was no exit.

[9] Officers arrived at 58 Hexham Drive at 4:11 a.m. on August 3, 2012. The jeep Cherokee remained parked on the street and locked. It was sealed and towed to the Forensics Identification Unit. Officers searched the school yard where Mr. Sanchez had reported seeing the group of males go. Officer Dagonas found a black loaded Glock firearm under a Pizza Pizza box which was located against the fence to the right in the schoolyard where Mr. Sanchez had reported seeing one of the males go. DC Smissen from Forensics Identification Services took swabs of the handgun on both sides of the handgrip and sidegrip which were subsequently analyzed.

[10] Officer Andrews with a canine dog began tracking human scent picked up from the jeep through the schoolyard to Courton Drive, approximately 1 block away. Near 27 and 29 Courton Drive, the dog indicated and Officer Andrews located 2 plastic bank cards and a health card in the name of Norris Samuels.

[11] Upon the execution of the search warrant on the jeep, a coke can was found inside the vehicle and was submitted for DNA analysis. A fingerprint was lifted from the left rear window and was matched to Jason Anthony Campbell born April 9, 1991. Further checks conducted on the police database disclosed that the person’s real name was Orville Campbell whose RICI photo (a photo taken of a person in custody charged with a crime and in the Toronto Police Service database) matched photographs on a blackberry curve phone found on the driver’s side of the jeep. Twenty-seven photos were found on the blackberry including a photo of 5 males with “2012-08-03 at 00040” which Detective Higo testified he believed meant that the photo was taken at 12:40 a.m. on August 3, 2012. Detective Higo testified that the person in the middle wearing a grey shirt with a large maple leaf on the front was the accused whom he recognized from his September 4, 2011 RICI photo. Detective Higo testified that he recognized another photo dated July 28, 2012 as that of the accused from his RICI photo. The accused has red hair in the July 28, 2012 photo. Detective Higo found the cellphone number for the blackberry to be 647-993-1233. He obtained a production order for the name of the subscriber which was Melissa Shaw.

[12] The jeep was rented from East and West Truck and Car Rental Inc. owned by Ankit Gathani. The police attended at its office where a notice was posted stating that the owner, Ankit Gathani, could be reached at 416-300-5104. Police contacted him at that number on August 3, 2012. He was not cooperative and did not wish to make a statement. The next day he faxed a copy of a rental agreement for the jeep by Chadrick Sinclair with Mr. Sinclair’s address and driver license information.

[13] Mr. Sinclair denied any knowledge of the rental agreement or East and West Truck and Car Rental Inc. The signature on the rental agreement purporting to be his signature was completely different from his signature. The police concluded that Mr. Gathani received the driver’s license information from someone involved in the robbery and subsequent vehicle pursuit. A production order from Rogers communications for Mr. Gathani’s cellphone showed that his cellphone received 2 calls from 416-300-5104 on August 3, 2012, first at 4:30 a.m. for 4 seconds and a subsequent call for 107 seconds at 4:32 a.m. The subscriber for 416-300-5104 again turned out to be Melissa Shaw, the same name that the blackberry was registered in that was found on the floor of the jeep with the pictures of the accused and Orville Campbell. These 2 calls to Mr. Gathani’s cellphone at approximately 4:30 a.m. occurred shortly after the jeep was abandoned on Hexham Drive and was seized by the police. The police, then obtained production orders for the blackberry found in the jeep (#647-993-1233) and for the cellphone which called Mr. Gathani’s cellphone around the time the jeep was abandoned on August 3, 2012 (#416-300-5104), believing the user of both phones to be Orville Campbell. There were no calls made or received to the 647-993-1233 blackberry between August 3 and 4, 2012. With respect to the cellphone having the number 416-300-5104, the user did call Mr. Gathani’s cellphone number at 4:30 and 4:32 a.m. on August 3, 2012. The senior investigator in law enforcement at Rogers Communications, Lorne Ellison, testified that by looking at the cell towers, he determined that calls to or from the cellphone having the number 416-300-5104 were made on August 3, 2012:

• at 3:23 a.m. while in the coverage area of the cell tower at University Avenue and Dundas Street West;

• at 3:26:52 a.m. while in the coverage area of the cell tower beginning at University and Front and ending at the cell tower at York and Lakeshore;

• at 3:48:35 while in the coverage area of the cell tower at 825 Coxwell Avenue;

• at 4:01:24 while in the coverage area of the cell tower beginning at Pharmacy and Eglinton and ending at Kennedy and Lawrence;

• at 4:08 a.m. while in the coverage area of the cell tower at 1850 Victoria Park Avenue, which is 3 blocks from Hexham Drive where the jeep was abandoned.

[14] Ankit Gathani testified that a man who he knew as “Kumar” had rented the jeep abandoned on Hexham Drive from him sometime in July, 2012. “Kumar” called him around 4:30 a.m. on August 3, 2012 and said that the jeep had been involved in an accident. Four men, including “Kumar” attended at his office later in the day on August 3, 2012. They all had guns, including “Kumar” who took his gun out and laid it on the desk. “Kumar” demanded that Mr. Gathani write a rental agreement for the jeep in the name of Antonio Chadrick Sinclair. “Kumar” provided Mr. Gathani the details of Mr. Sinclair’s driver’s license and address for the rental agreement and “Kumar” signed it. He told Mr. Gathani to fax it to the police if they requested to see the rental agreement for the jeep which Mr. Gathani did.

[15] In February, 2013, Mr. Gathani was charged with obstructing justice and accessory after the fact. From the police disclosure, he learned that the police believed the real name of “Kumar” to be Orville Campbell and the other perpetrator of the robbery to be Stanton David. In a photo lineup for the accused, he picked out 3 photos as resembling one of the persons who came to his office with “Kumar” who he understood from the police disclosure to be Stanton David. Of the 3 photos he picked out in the photo lineup for the accused, one was a photo of the accused.

[16] James Currie testified as an expert in bodily fluid identification and forensic DNA analysis. Defence counsel accepted Mr. Currie’s qualifications as an expert. He gave the following testimony. There was a “match” from the profiles developed from the swab from the handgun and coke can with the accused’s DNA profile. This means that it is scientifically supported that the accused’s DNA was on the handgun and coke can and extremely unlikely that this is a coincidence. However, there were at last 3 DNA contributors to the handgun and at least 2 DNA contributors to the coke can. It cannot be scientifically determined when the DNA was deposited or if the DNA was by way of a primary or secondary transfer. A secondary transfer occurs where DNA is left behind on an element but the source of the DNA did not come into contact with the element. An example of a secondary transfer that was put to Mr. Currie and that he agreed was possible was if a person sneezed into their hand and prior to washing it off, shook another person’s hand and that other person then handled a gun.

Credibility of the Witnesses

[17] The victims Norris Samuels and Chadrick Sinclair were credible. There is no doubt that they were victims at gunpoint of a robbery on August 3, 2012. The fact that they were not able to definitively identify the accused from the photo lineup 5 months after the robbery or in court when they had only a short time to observe the perpetrators in a highly stressful situation is hardly surprising.

[18] The police officers and 2 experts for the Centre of Forensic Identification and from Rogers Communications gave their evidence in a straight-forward way without exaggeration and I found their evidence credible.

[19] Ankit Gathani was not a credible witness. He had numerous telephone calls with “Kumar” before and after the police contacted him in regard to the jeep he rented. He was unable to explain the number of calls other than to say that they were related to rental matters. It seems likely that he was more involved with “Kumar” than he has admitted. In any event, one has to be very cautious about accepting his evidence because he admitted preparing a fake rental agreement for the jeep, sending it to the police to mislead them and then ultimately cooperated with the police in return for the charges against him being withdrawn. In addition, he was very vague in his evidence and this appeared to be a deliberate tactic.

Analysis

[20] Identification evidence has often been proved wrong. In this case, the identification evidence is no better than “maybe the accused was a robber.” One victim could not identify the accused. The other was 90% certain about the accused but 85% certain about a person who was not involved. I cannot agree with Crown counsel’s submission that the fact that Mr. Sinclair wrongly identified photo #1 in the photo lineup for the accused should be discounted because it was the first photo he was shown in that photo lineup and because he was more sure of photo #8. Mr. Sinclair did not say at the time of the photo lineup or at trial that he had been mistaken with respect to photo #1.

[21] Neither Mr. Samuels nor Mr. Sinclair described the person who stole their gold necklace and watch as having red hair or as wearing a gray shirt with a large maple leaf on it as the accused appears on the photos found on the blackberry in the abandoned jeep apparently taken close in time to the robbery. Neither victim was able to identify the accused at the preliminary inquiry or at trial. Mr. Gathani picked out two persons from the photo lineup for the accused who had nothing to do with the events. He did not identify the accused at trial.

[22] From the evidence of Officers Dagonas and Andrews and Rogers Communications employee, Lorne Ellison, it appears highly likely that the vehicle in which the 2 men involved in the robbery fled the scene was the same vehicle that was involved in a police chase at Woodbine Avenue and O’Connor and that ended up abandoned on Hexham Drive. There are a number of other suspicious circumstances. The driver fled at a high rate of speed when the police attempted to get it to stop. Photos of the accused, one apparently dated just hours before the robbery, were found on the blackberry in the abandoned jeep. The accused’s DNA was found on a coke can inside the jeep and on the handgun located in the schoolyard where Mr. Sanchez testified he had seen one of the men go after exiting the vehicle. Identification stolen from the victims was found with the assistance of the canine dog along the route taken by the men who had abandoned the jeep. Mr. Gathani was forced to write a rental agreement for the jeep in the name of Mr. Sinclair using his stolen driver’s licence. However, photos of the accused on the blackberry do not prove that he committed a robbery or had a firearm. There is no way of knowing when his DNA was transmitted to the coke can or the handgun or whether his DNA on the handgun was through a secondary source. Identification stolen during the robbery which was found along the route taken by the occupants of the vehicle points to their being involved in the robbery but does not assist in determining whether the accused was one of the occupants of the vehicle or one of the robbers. The stolen driver’s licence which was used for the fake car rental agreement points to the persons attending at Mr. Gathani’s office as being involved in the robbery. However, Mr. Gathni was not a reliable witness. His identification of the accused coupled as it was with the identification of two others who were not involved, is not reliable.

[23] Crown counsel submitted that any frailties in the identification evidence were overcome by the balance of the circumstantial evidence. In my opinion, the circumstantial evidence is open to many different inferences, some of which are consistent with the accused not being the robber and not being in possession of the handgun. Considering the evidence as a whole, there is no evidence from which I can conclude the accused was a robber or that he was in possession of a gun, let alone the one used in the robbery. Although I think it is likely that the accused is guilty, the standard is proof beyond a reasonable doubt. I have a reasonable doubt. The charges are dismissed. The accused is discharged.

Backhouse J.

Date: June 16, 2015