COURT FILE NO.: CRIMJ(P) 264/14 DATE: 20160524
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Patrick Quilty, for the Crown
- and -
BRANDON CLELAND Carol Letman, for the Defence
HEARD: January 4, 5, 6, 7, 8, 22, 2016, at Brampton
REASONS FOR JUDGMENT
Justice F. Dawson
1Brandon Cleland is charged with the robbery of a taxi driver, Tahir Khan, on June 8, 2012 in Mississauga. The main issue is proof of identity. Mr. Khan was not asked to identify the accused. The question of identity is tied to the use of photographs taken inside the taxi by an automated system. That system was taking photographs but it was malfunctioning. There are no photographs of the actual robbery. The accused did not testify or call any evidence.
2At the end of the trial counsel made their submissions on the basis that there were three issues: first, whether there was a robbery; second, whether the photos relied upon from the in-car system are of one of the robbers; and third, whether the accused is the person depicted in the photographs relied upon by the Crown from the in-car system.
The Evidence
3Tahir Khan was operating a taxi for Blue and White Taxi in Mississauga on June 8, 2012. His cab was a wheelchair accessible Dodge Caravan. Usually he drove handicapped individuals but when he was not doing so he also drove regular fares.
4Mr. Khan testified that at 2:30 a.m. on June 8, 2012 he was dispatched by computer to pick up three people at a Tim Hortons located in Central Plaza in the Streetsville area. He picked up two males and one female. They said they were going to 6555 Falconer Drive and gave a unit number as well. They wanted the female to be dropped off on Joymar, which was on the way. One male, alleged to be the accused, sat in the front seat. The other male and the female sat in the rear seat. The accused’s residence at that time was 6699 Falconer Drive, Unit 15.
5After dropping off the female Mr. Khan continued towards Falconer Drive. Falconer Drive is a street that appears, from maps that were made exhibits, to be the main thoroughfare within a residential area. There is a park in the middle of the area which is almost completely circumnavigated by Falconer Drive.
6When the taxi was approaching Falconer Drive the men asked to be taken to Oakington Place. That street is relatively short and ends in a circular court or cul-de-sac which is next to the park previously mentioned. There is a catwalk which allows pedestrians to access the park. Travelling through the park in almost any direction takes you back to Falconer Drive. The evidence indicates that there are a number of townhouse complexes on Falconer Drive.
7Mr. Khan testified that the front seat passenger directed him to stop on Oakington Place near the catwalk. The front seat passenger then produced a knife and demanded that Mr. Khan turn over his money. Mr. Khan said the passenger was poking him on the right side of his stomach with the knife.
8Mr. Khan produced cash from his front left shirt pocket where he also kept his cell phone. When he removed his cell phone from the pocket the rear seat passenger began to strike him. The robbers were not happy with the amount of money handed over. Mr. Khan said he is not paid in cash by his handicapped customers and that he thought the robbers would hurt him when they found out he did not have much money.
9As Mr. Khan took off his jacket at the robbers’ request he was able to undo his seatbelt and escape from the vehicle. He said he ran 20 to 30 metres away and used his cell phone to call 911. The robbers stayed in the cab for a short time looking for more money. One of them then put the taxi in gear. The taxi began to move slowly as the robbers headed to the park through the catwalk. The front seat passenger told Mr. Khan his cab was about to hit some parked cars and told him to tell the people he was calling that his (the robber’s) name was Jeffery. The taxi rolled slowly across a lawn and hit a tree at low speed.
10Cst. Tim Weatherly of the Peel Regional Police was dispatched to the scene of the robbery at 2:43 a.m. He arrived at 2:45 a.m. The taxi was on a lawn against a tree and had sustained minor front end damage estimated by the officer to be less than $1,000. Cst. Weatherly observed that Mr. Khan had a shallow cut to the inside of his right wrist and there was also blood on the front right side of Mr. Khan’s shirt.
11The cab, which Mr. Khan did not own, was towed to the identification bay of a police station. Consequently, the robbers were the last passengers before the cab went out of service.
12Miriam Windmoller is a civilian employee of the Peel Regional Police who works as a “video analyst”. Her duties include downloading digital images recorded by the in-car security systems required in taxi cabs in Peel Region.
13Ms. Windmoller explained that when she attended at the cab the morning after the robbery the cab’s battery was dead. She had to arrange for the cab to be jumped. After that was done she returned to the cab and downloaded all images recorded between 00:55:08 and 10:35:37 on June 8, 2012. She explained how she did that using a laptop computer containing software designed to access information recorded by the “Verifeye” system installed in the taxi.
14Ms. Windmoller testified that she does about 40 such downloads per year. About 30 of these would be done using the Verifeye system. Frequently, the time on the cab’s system has “drifted” from the accurate time. The software she uses detects the degree of difference between the time in the cab’s system and her computer. She always instructs the software to adjust the times on the downloaded images based on the detected differential to the accurate time on her computer. She did so in this case. The downloaded images, therefore, had corrected times. The images of the last person in the front passenger seat of the cab were time stamped as taken at 2:33 a.m.
15Ms. Windmoller explained how she downloaded the images for the block of time she had selected and transferred them to various other computer drives for use by the crime analyst and the investigating officers. The software told her that 190 images had been downloaded.
16Ms. Windmoller testified that the camera system in the taxi cab was malfunctioning. While she says many of the systems she sees malfunction to some degree she had never seen a malfunction like this one before.
17When working properly the camera is triggered by the light inside the cab coming on when the door is opened. The system is supposed to record 12 images in succession at that time, then to record one image every minute for the next five minutes, and then one image every five minutes for the next 25 minutes. The sequence then stops but is supposed to begin again when the door is opened and the light comes on.
18The downloaded images from the taxi in this case show that the system always recorded 44 images over a period of about one minute and three seconds. Images recorded in this sequence from previous fares were included in the download. Although the images say they are being triggered by the door that seems not to be the case. Ms. Windmoller did not know what the nature of the malfunction was, what the cause was, or what was triggering the taking of the images. While Ms. Windmoller has experience working with technicians from Verifeye she clearly is not one herself. She explained that she understood that problems are often related to the improper installation of the systems.
19Images from the cab’s camera system and from a Tim Hortons’ security camera system were used to prepare a “Crime Alert” about the robbery. The Alert was circulated by email to all police divisions.
20Cst. Justin Shoniker was working in the break and enter squad. He saw the Alert on July 16, 2012. He testified he immediately recognized the perpetrator as Brandon Cleland based on two photos on the Alert. He circled those photos on the paper copy filed as exhibit 9. Cst. Shoniker testified about how he had contact with Mr. Cleland on November 15, 2010; December 1, 2010; February 26, 2011 and May 31, 2011. On those dates Cst. Shoniker attended at the accused’s residence at 6699 Falconer Drive, Unit 15 to verify that Mr. Cleland was abiding by the house arrest provisions of a recognizance of bail. On each occasion Cst. Shoniker said he had an opportunity to speak to the accused under good conditions.
21Cst. Shoniker testified that after he recognized Mr. Cleland based on the photos on the Alert he and his partner looked up the accused’s Facebook page. Four photos from the accused’s Facebook page have been filed as exhibits. Tattoos can be seen on some of those photos. Cst. Shoniker testified that he compared tattoos in the various photos and thought they were a match. He then provided all of this information to Cst. Chase in Central Robbery.
22I pause here to note that the Crown has taken the position that it will not rely on any photos from the Tim Hortons’ video that appear on the Crime Alert. One of those photos was referred to by Cst. Shoniker in making his tattoo comparison and I have disregarded that evidence.
23The accused was arrested on July 27, 2012 based on Cst. Shoniker’s recognition. No one else has been charged to my knowledge.
24As previously indicated, the accused did not testify and no defence evidence was called.
Analysis
25I have structured my reasons to respond to the three issues used by both Crown and defence counsel during their submissions. I will deal with each issue as framed by counsel in turn. I wish to point out, however, that by the approach counsel have taken they have divided the essential element of proof of identity into two sub-issues.
26The three issue approach may assist in organizing the discussion. However, I have approached my ultimate task of reaching a verdict on the basis of a consideration of all of the evidence in relation to the question of proof of identity. As indicated in many authorities, the standard of proof beyond a reasonable doubt is not applied piecemeal to individual items of evidence. It is applied comprehensively in respect of each of the elements of the offence after a consideration of all of the evidence. Proof of identity of the accused as one of the robbers is acknowledged by both counsel to be the critical issue in this case.
Did a Robbery Take Place?
27In cross-examination defence counsel suggested to Mr. Khan that the two men refused to pay the fare and that in the course of the subsequent argument his foot slipped off the brake, or something else occurred, which led to the cab colliding with the tree. Counsel suggested to Mr. Khan that he made up the robbery story to account for the damages to the cab, which he did not own. Mr. Khan denied all such suggestions. No evidence was called to support this version of events.
28Defence counsel also established that Mr. Khan still had money in his shirt pocket following the robbery. She submits this is inconsistent with a robbery having occurred. Mr. Khan testified that he keeps his money and his cell phone in his shirt pocket and that while sitting in an ambulance after the robbery he found some money that had been stuck in the bottom of his pocket. He explained that he was trying to get the money out of his pocket in response to the robbers’ demands but that one of them started to hit him when they saw him remove his cell phone. He said that he had intended to turn over all of the money and thought that he had.
29I accept Mr. Khan’s evidence. I found him to be a credible witness. He did not make any pretense of being able to identify the accused. He gave his evidence in a straightforward fashion. He readily acknowledged that his memory had been adversely affected by the passage of time. He acknowledged things that weakened his evidence. I accept his testimony that he does not report fare frauds to the police as the resulting investigations disrupt his ability to earn income by continuing to work. Here his report of the robbery led to a great deal of inconvenience for him.
30Defence counsel also points to the evidence of Agata Zytka to support her submission that I should have a reasonable doubt about whether there was a robbery. Ms. Zytka lived in a house on Oakington Place. The tree in her front yard was the one struck by the cab.
31Ms. Zytka thought she had been awakened by loud voices. She is a light sleeper. When she awoke all was quiet but she looked outside from her second floor bedroom window. She saw a van near the catwalk. She saw a tall white male pick something up and head down the catwalk to the park. She said that if you crossed the park in any direction you would come out on Falconer.
32Ms. Zytka said she started to go back to bed when she saw lights moving outside. She said she looked back outside and saw the van hit her tree while moving slowly. Based on the photographs of the tree and of her home it seems to me that foliage on the tree would have obstructed her view to some extent.
33Ms. Zytka said at one point she saw someone get out of the driver’s seat of the van using a cell phone. Defence counsel submits this is inconsistent with Mr. Khan’s version of events.
34I do not agree. Mr. Khan also testified that he ran after the taxi as it was moving slowly towards the tree. After it hit the tree he said he got back into the van to put it in park. He was already on his cell phone to the police. He testified he then got out of the van and waited for the police.
35This explanation by Mr. Khan is entirely reasonable in the circumstances. Ms. Zytka’s recall was incomplete. She was uncertain of a number of things. She had just awoken and was returning to bed just before looking out the window a second time. I infer her view was obstructed. She testified that at no time could she see that the van was a taxi cab. I conclude she saw Mr. Khan when he got out of the van after re-entering it to put it in park. I accept Mr. Khan’s evidence that the robbery occurred as he said it did.
36I also note that Mr. Khan had a cut on his wrist and blood on the front right of his shirt. These injuries were observed by Cst. Weatherly. While the evidence is unclear as to the manner in which these injuries were sustained the blood on Mr. Khan’s shirt was in the general area where he said he was poked with a knife.
Are the Images from the Cab Images of One of the Robbers?
37The downloaded photos alternatively show Mr. Khan in the driver’s seat and then the occupant of the front passenger seat. The camera does not capture much from the rear seat area. Because the van is designed to accommodate wheel chairs the rear seat is located quite far back in the van.
38There is no doubt that the Verifeye system in the cab was not operating as it was designed to. However, a review of the downloaded images shows that the system captured 44 images of each of two previous fares sitting in the front seat. It also captured images of Mr. Khan and an empty front seat, although there may have been passengers in the rear seat at that time.
39There are four factors which lead me to conclude that I can put significant weight on the photos relied upon by the Crown as photos of the robber who occupied the front seat of the taxi. These operate in combination to lead me to that conclusion.
40First, there is evidence from Ms. Windmoller to the effect that the images were not altered or changed.
41Second, there is the time the images are marked as having been recorded by the system. The images of the male said to be the accused were taken over a period of just over one minute commencing at 2:33:22 on June 8, 2012. The uncontradicted evidence of Ms. Windmoller is that the times were automatically adjusted to the accurate time on her laptop after the software determined any time differential between the taxi system and her computer. While I do not proceed on the assumption there is no possibility of error given that the system was malfunctioning in other ways, I note that there is no evidence the recorded times were in error. This time stamping is simply one factor to be taken into account together with the evidence that the system was not functioning properly.
42The time of 2:33 corresponds to the time when the robbers were in the vehicle. Mr. Khan testified he was dispatched by computer at 2:30 a.m. He thought he had driven for 10 to 13 minutes before the robbery. Cst. Weatherly was dispatched at 2:43 a.m. This all fits together reasonably well.
43Third, the cab was towed to a police station after the robbery. There were no more fares. No further images appear until 5:37 a.m. when there are a number of completely black images. By then the vehicle would have been at the police station. Ms. Windmoller was unable to say what accounted for those black images. We know that by later that morning the battery was dead. Starting at 10:35:10 there are images of an empty front seat and of an unknown person in the driver’s seat. A painted concrete block wall can be seen outside the driver’s door. This is almost certainly when the vehicle was being restarted.
44The main point of significance is that the photos time stamped 2:33 appear to be the last photos of a fare. They also appear to be taken in the dark. Ms. Windmoller explained that the system uses infrared photography at night, which distorts the colours.
45Fourth, while Mr. Khan did not identify the accused in court nor the photos in question as those of the robber, he did give a description of the front seat passenger who robbed him. That description is linked by his evidence to a time period from about 2:30 to 2:40 a.m. He described the person in the front seat at that time as a white male in his 20s. He could not describe the exact skin colour because it was dark in the car. He was certain the man was white. The man was wearing a ball cap, and it looked like he had not shaved for perhaps seven to ten days. He was skinny to medium in build and was wearing dark clothing.
46The images taken by the Verifeye system at 2:33 a.m. are consistent with Mr. Khan’s description in all respects except for the colour of clothing. While Mr. Khan said the individual wore dark clothing and the clothing in the black and white images from the taxi appears to be light or white, Ms. Windmoller testified that black often appears as white when the images are recorded at night using the system’s infrared filters. She said this depends on the nature of the fabric as much as the colour of the clothing. This does not mean that the person in the images was wearing black or dark clothing but it explains why the appearance of white clothing is not necessarily a dissimilarity. Mr. Khan testified he was wearing a black jacket. It appears to be a light colour in the photo.
47When I take all of these factors into account together I am satisfied that these images are evidence to be given considerable weight in determining whether I am satisfied that identity has been proven beyond a reasonable doubt. The fact that there were no more fares photographed and Mr. Khan’s description tend, in the context of all of the evidence, to restore my faith in the accuracy of the time stamps associated with the images notwithstanding that the system was not operating as designed in other respects.
Are the Images Relied Upon by the Crown Images of the Accused?
48After a careful evaluation of the images and of the other evidence I am satisfied that Brandon Cleland is the person depicted in the downloaded images time stamped at 2:33 a.m. There are a number of reasons for my conclusion. Again, it is the cumulative effect of these factors that I rely upon.
49First, I accept the evidence of Cst. Justin Shoniker that based on two of the photos he viewed on the Crime Alert he recognized the person depicted to be Brandon Cleland. Those images on the Alert came from the cab download. This recognition evidence was admitted following a voir dire. In my reasons for admitting the evidence I found that the requirements for admissibility of this type of evidence had been met. See R. v. Brown, 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 39; R. v. Leaney, [1989] 2 S.C.R. 393, at p. 413; R. v. Berhe, 2012 ONCA 716.
50In relying upon this evidence I have taken into account that at the preliminary inquiry, without the benefit of his notes, Cst. Shoniker testified that he had more contacts with Mr. Cleland and over a longer period of time than he now agrees he had. I have also taken into account that Cst. Shoniker exhibited bias by slipping something into his evidence about why the accused was previously on bail. Cst. Shoniker obviously knew he should not do that. I have excluded that deliberate attempt at manipulation on his part from consideration for anything other than assessing Cst. Shoniker’s evidence.
51After seeing the images in the Alert, Cst. Shoniker immediately went to the accused’s Facebook page. He could not have done that if he did not recognize Mr. Cleland. He had four prior opportunities to observe the accused in good conditions and he had observed the accused’s police file in connection with his earlier duties. He had a sound basis for recognition. He testified both in chief and in cross-examination that he recognized Mr. Cleland’s facial features. In cross-examination he referred to the shape of the nose and the face.
52Initially, Cst. Shoniker testified that he also relied on Mr. Cleland’s tattoos. Over the course of his evidence it became clear that he relied on the tattoos as confirmatory evidence of identification. He stated that the tattoos formed no part of his initial recognition.
53Second, pursuant to R. v. Nikolovski, [1996] 3 S.C.R. 1197, I have compared the images from the cab to the photographs Cst. Shoniker retrieved from the accused’s Facebook page. I have also compared all of the images to my own observations of the accused in the courtroom. For a number of reasons I have reached the conclusion that all of these images are of Brandon Cleland.
54When I view exhibits 10B and 10C from the accused’s Facebook page they appear to me to be photos of the accused. In each of those photos Mr. Cleland is wearing a cap as is the individual in the images from the cab. In both the cab images and exhibits 10B and 10C the face is depicted from just above the eyes to the chin. A common characteristic of these photos is the long straight nose and angular jawline to a prominent chin. The position in which the mouth is held and the shape of the lips is also the same. Based on facial features alone these seem to me to be images of the same person. I have carefully reviewed all of the cab images in electronic form on exhibit 6 on a computer monitor as they are sharper than the selected images that have been printed and filed as exhibit 6.
55I also observe that in both the photos from the cab and from Facebook there is facial hair, which I would describe as several days growth, predominantly along the jawline. The same thing appears on the “mug shot” from the accused’s arrest, which is also in evidence.
56Moving away from facial features, I note that a chain that appears to be very similar is worn around the neck of the robber as well as the neck of the accused in the Facebook photos. There is a cross at the end of the chain that can be seen in some of the images from the cab and in the Facebook photos.
57The lower photo on the seventh page of exhibit 6 shows the front seat passenger at 2:33:48 with his head turned left. Perhaps he is looking at someone in the back seat. In any event, a mark consistent with a tattoo can be seen behind his right ear. The mark cannot be seen with precision in the images from the cab but there is evidence the accused has the letters “F.T.P.” tattooed behind his right ear. This tattoo is clearly seen in exhibit 7 which is from Mr. Cleland’s Facebook page. Cst. Warren Chase testified that the “F.T.P.” tattoo shown on exhibit 7 matches the tattoo behind the accused’s right ear based on his observation of the accused at the preliminary hearing and at trial. Cst. Chase’s evidence on this point also offers additional support for the conclusion that exhibit 7 is a photo of the accused.
58I also note that the lower image at page two of exhibit 6 shows a number of tattoos on the left wrist and forearm of the individual. The tattoo on the back of the wrist appears to be in the same location and very similar to the tattoo seen on exhibit 10A from the accused’s Facebook page. The other forearm tattoos are not visible on exhibit 10A due to the position of the arm, with the exception of just part of one.
59I also observe that in some of the images from the cab time stamped 2:33 the person can be seen wearing pierced earrings of the same type the accused is wearing in the photos from his Facebook page. They are also of the same type and similar to those worn by Mr. Cleland in the courtroom at his trial.
60While it is unknown when the Facebook photos were taken, the mug shot from the accused’s arrest on this charge was marked as exhibit 12B. This shows the state of Mr. Cleland’s facial hair at that time. It is consistent with what is shown on exhibits 10A and 10B from Facebook. In passing I also mention that the nature of the facial hair in all of these photos is consistent with Mr. Khan’s description of the robber and with what is shown in some of the images downloaded from the taxi cab. This is easiest to see in some of the electronic images from the cab contained on exhibit 5.
61I find that the images downloaded from the taxi cab are images of the accused.
Has Identity Been Proven Beyond a Reasonable Doubt?
62In addition to the evidence already discussed there is other evidence I have taken into account on this critical issue.
63Mr. Khan said that he thought the robber was shorter than he was. He is six feet one and a half inches tall. There is no doubt the accused is tall. However, I have no evidence as to his exact height. Cst. Shoniker testified that he is five feet ten inches to five feet 11 inches tall. In cross-examination he said that the accused was definitely taller than he was. When he was asked if he would disagree that the accused was six foot three he said he would not. The fact remains, however, that while I know the accused is tall and may be taller than Mr. Khan, I do not have evidence of his exact height.
64I also observe that at the time of the alleged offence Mr. Cleland was 18. He is now 22. This is a time when some young men are still growing.
65Proceeding on the assumption that the accused may have been taller than Mr. Khan, I observe that height is difficult to estimate with accuracy. There is no evidence that Mr. Khan and the person from the front seat of his cab who robbed him were ever standing side by side. However, I do take this into account as a potential discrepancy. In the circumstances here it is difficult to give it much weight.
66I also take into account that the accused lived on Falconer Drive, although at a different address than Mr. Khan said was given to him. Mr. Khan said that as he approached Falconer the two robbers were discussing whether to stop at Oakington or go on to Falconer. They decided upon Oakington and told Mr. Khan to turn into Oakington Place and to stop near the catwalk. In view of what occurred next I infer that there had been at least a degree of planning or contemplation of a possible robbery by the perpetrators before they got into the cab. They would not likely have given their own addresses. They then fled into the park which would take them to Falconer. There is no evidence Mr. Khan had taken any fares other than the men who robbed him to that area that night.
67The approximate location of the accused’s address was marked on a map, exhibit 1B. When this is compared to exhibit 1A, showing Oakington Place, and using the scale on the maps, it can be determined that the accused’s residence was about two hundred metres away going through the park. I take those factors into account as circumstantial evidence.
68Mr. Khan also testified that during the cab ride the front seat passenger told him he was originally from Scotland. I have no evidence of any connection between Brandon Cleland and Scotland. Mr. Khan also testified that the front seat passenger spoke with what he thought was a Scottish accent. He qualified that by saying he is not good at determining nationality from how someone speaks. Mr. Khan himself speaks with an accent. He agreed that the robber did not have a “plain Canadian accent”. Cst. Shoniker testified the accused did not have an accent. The robber also yelled out to Mr. Khan while Mr. Khan was on the phone to the police to tell them his (the robber’s) name was Jeffery. It seems highly unlikely the robber would have given his correct name. There is no way to know whether the accent was faked. However, based on a consideration of all of the evidence I am unable to proceed on the assumption it was genuine. I have taken all of this evidence and any competing inferences into account.
69In addition, I note that Ms. Zytka testified that the man she saw entering the catwalk and heading to the park was tall and white.
70Based on all of the evidence I find as a fact that Brandon Cleland was the front seat passenger who entered Mr. Khan’s taxi shortly after 2:30 a.m. on June 8, 2012. Based on the combination of factors I have referred to I conclude that Mr. Cleland and his companions were the last fare and that Mr. Cleland’s image was recorded by the in-car security camera at approximately 2:33 a.m. I am satisfied beyond a reasonable doubt on the basis of a consideration of all of the evidence that the accused was the person in the front seat of the cab who produced a knife and demanded that Mr. Khan turn over his money. In the absence of any contradictory evidence I conclude the guilt of the accused is the only rational inference from the proven facts.
71The accused is found guilty of robbery as charged.
Justice F. Dawson Released: May 24, 2016