Court File and Parties

COURT FILE NO.: CR-15-10000-663 DATE: 20170217 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – SEAN GELLVEAR Accused

Counsel: Kim Walker, for the Crown John Struthers, Maija Martin, for the Accused

HEARD: January 20, 2017

Reasons for Decision

C. J. BROWN J.: (Orally)

[1] The accused, Sean Gellvear, comes before this Court on an indictment of 14 counts.

(i) He is charged with four counts pursuant to section 434 of the Criminal Code for recklessly causing damage by fire to a garage situated at 214 Augusta Ave., Toronto on November 24, 2014; and for recklessly causing damage by fire to dwelling houses situated at 10, 12 and 14 Oxford St., Toronto on December 1, 2014.

(ii) He is charged with three counts pursuant to section 433 (a) of the Criminal Code for intentionally or recklessly causing damage by fire to property at 10, 12 and 14 Oxford St., Toronto, knowing that or being reckless with respect to whether the said property was inhabited or occupied.

(iii) He is charged with five counts pursuant to section 430(2) of the Criminal Code for wilful damage to property situated at 214 Augusta Ave., Toronto, thereby committing mischief that caused actual danger to the life of Alfonso Segovia; wilful damage to property located at 214 Augusta Ave., Toronto, thereby committing mischief that caused actual danger to the life of Luis Vega; wilful damage to property located at 14 Oxford St. thereby committing mischief that caused actual danger to the life of Sheila Wawanash; wilful damage to property situated at 14 Oxford St. thereby committing mischief that caused actual danger to the life of Richard Porter; wilful damage to property situated at 10 Oxford St., Toronto, thereby committing mischief that caused actual danger to the life of Sek-hoo Wong.

(iv) He is charged with wilful damage to the contents of a garage, the property of Luis Vega, the value of which exceeded $5,000, thereby committing mischief contrary to section 430 of the Criminal Code.

(v) He is charged with one count pursuant to section 433 (a) of the Criminal Code for intentionally or recklessly causing damage by fire to property, namely a garage at 214 Augusta Ave., Toronto, knowing that or being reckless with respect to whether the said property was inhabited or occupied.

Position of the Parties

[2] It is the position of the Crown that the accused is responsible for two arsons in Kensington Market in November and December 2014, the first of which occurred November 24, 2014 regarding a freestanding garage at 214 Augusta St., behind a restaurant owned by Luis Vega, with an apartment above the restaurant. It is the Crown’s position that the accused formed a pyramid with debris and patio furniture found in the garage and backyard and then ignited the fire. There was a car in the garage which, during the fire, was moved by Alfonso Segovia.

[3] Surveillance video cameras around the property captured the perpetrator of the events.

[4] It is the position of the Crown that witnesses identified the arsonist as a Caucasian, age 30 to 40, clean-shaven, wearing a black jacket with red clothing hanging out under the jacket, light pants and smoking a cigarette.

[5] The Crown maintains that, one week later, the same person was seen on two surveillance videos in the Starbanks Variety store located at 340 College St., purchasing a lighter. Also, shortly thereafter, the same individual is seen on the surveillance videos at 214 Augusta St. visiting the scene of the first fire, wearing the same clothing, prior to the second fire being ignited.

[6] It is the position of the Crown that the second fire was set on December 1, 2014 in an alcove between two houses on Oxford Street. The fire was caused by building up a mound of debris found in the alcove and backyards of the houses. 10 through 14 Oxford St. burned and 16 Oxford St. was damaged. Residents in the houses had to flee to safety, while five cats perished.

[7] Again, a security video camera caught the perpetrator of the fire transporting cardboard to the fire that was already burning. It is the position of the Crown that the perpetrator of the second fire was wearing the same clothes as in the first videotapes taken November 24, 2014.

[8] It is the position of the defence that while there is no question that two instances of arson occurred on the dates indicated, the issue is identification and the evidence linking the perpetrator to the accused is frail. The defence does not contest the continuity or authenticity of the videos.

[9] It is the position of the defence that, as regards the first arson, no life was endangered.

The Evidence

The Crown’s Case

Mark Boorsboom

[10] Mark Boorsboom has been an officer for 18 years. On July 13, 2016, he was asked to go to the Cybercrime Unit to facilitate a meeting. On November 28, 2016, he was approached by Detective Fremith, who had a document with instructions regarding an interview with Ken McMillan of 41 Major St., a possible witness regarding the arsons.

[11] In cross-examination, as regards the instructions, he conceded that there was nothing in the instructions about whether the witness had any prior knowledge of the event, whether he had seen news accounts or other media accounts about the event. The video was shown to the witness two years after the accused had been arrested. Officer Boorsboom was aware of police bulletins going out, but did not recall media reports as regards the arsons. He acknowledged, however, that it was a fairly high profile case.

Luis Vega

[12] Luis Vega testified that on November 24, 2014, he was the owner of a restaurant located at 214 Augusta St., Toronto, called the El Arepazo, a Venezuelan restaurant. He worked at the restaurant, along with his business partner, Alfonso Segovia.

[13] At the back of the restaurant there is a patio which comprises most of the back yard. On the patio are wooden chairs which, at that time of year remained, although most of the patio furniture was stored in the garage. In the summer, they served patrons of the restaurant on the patio as well as in the restaurant. The property is 136 feet in length.

[14] He finished at the restaurant at about 9:30 PM and thereafter went to his apartment above the restaurant, to his room, took his shoes off and was sitting at his computer. His business partner, Alfonso Segovia, also lived in the apartment, where he had a bedroom, as well as his cousin, Enckoks.

[15] He heard Alfonso yell “fire”. He panicked, put his coat and shoes on, went downstairs, then returned to get his cell phone. It smelled like plastic burning. He saw that the garage was on fire and went to the back of the patio where he tried to call the police. He believes there was interference from the fire as the cell phone would not work. He saw a “pyramid” built with patio furniture and wooden furniture that was on fire in the garage. The car was in the garage as well and there was concern due to the gas tank which might explode. Alfonso Segovia went in to the garage, risking his life, and was able to start the car and drive it out of the garage. There was another car by the garage, a Corvette from the 1970’s.

[16] He called 911 and the fire trucks came shortly thereafter.

[17] He had 16 surveillance cameras in and around his property as he was concerned about vandalism and theft. He went back to the apartment and began browsing the camera monitors. He saw someone on the video that had been on the property 10 minutes before. The person was leaving the premises, smoking. He browsed further and found images of the person building a “pyramid” and the fire starting.

[18] He identified the video footage from his various cameras as well as photographs which he took after the fire. The videos depicted the perpetrator of the fire entering the alleyway going to the back, carrying furniture to the fire. Mr. Vega described the person’s clothing as a black jacket, red clothing hanging at the bottom of the jacket and he believed also at the neck, a toque, khaki pants and brownish boots. The person was smoking.

[19] He lost restaurant equipment, all of his patio furniture, a boxing game, equipment for the Kensington pedestrian Sundays, all of which were stored in the garage. After the garage was rebuilt by the owner of the property, which he rented, he and Alfonso spent two summers fixing up the interior of the garage again. They lost about $20,000 worth of restaurant equipment and Alfonso’s childhood toys, family photographs and other valuables which were stored in the garage.

[20] There was a business next to his with a family living on the second floor. He testified that that property could also have been in danger.

[21] He testified that after November 24, he was constantly paranoid and worried that someone may come back and start another fire. He began to look at the monitor screens daily. On November 30 at 10:15 PM, he saw the same person wearing the same clothing, smoking and entering the alleyway. He screamed to Alfonso that the person was back. He put his shoes on but could not find his jacket. He went downstairs. The person had already exited the property and headed south on Augusta. He ran to Bellevue Square Park where he encountered the person face-to-face. He saw him on a bench. He was about 1 m from the person and saw him reach through his jacket and light a cigarette. He saw red clothing inside the jacket. The person asked him “Got some weed?” He was concerned that the person may recognize him and also was freezing as he did not have his jacket. He left the park and felt there was nothing else that he could do that day so he went home and went to sleep. He did not call the police as he felt that the person would have left the park. The next day, the police came to 214 Augusta investigating a fire which had occurred the night before. He told them what he had seen and took them to the Park where he had encountered the person. The video taken from his camera monitors showed the person going into the alleyway that evening, looking at the garage, smoking and holding a can or a carton of some drink.

[22] He described the person as white, slim faced, about his height, namely 5’7”, about 30 to 35 years of age, shaven with about one day’s growth on a bony face. He could see his cheekbones. He had a flattened nose, as if it had been pushed in a little. In re-examination, he said that he meant that the bottom part of the nose was bigger than the upper part. He was unable to see his hair, as he was wearing a toque. He was wearing a dark jacket, white pants, a toque and brown boots. He had no accent.

[23] He was asked to identify the person from a photo lineup on September 17 or 18, 2015. He was unable to identify any person, but did take the longest time looking at the person who is shown in the photograph number five [the accused].

[24] He identified the person he had seen on the videos as the accused, who was sitting in court.

[25] In cross-examination he confirmed that he had never seen the person that he saw on the video prior to November 24, 2014. He had no idea who he was. He never saw him in person, but only on the video.

[26] He heard nothing further until September 2015, when he attended a preliminary inquiry. He was asked to do a photo lineup. He did another photo lineup on December 4, 2015. He was not able to pick anyone from the photo lineup. He was very careful to follow the rules. The faces he was asked to identify were not wearing a toque and the person he saw had been wearing a toque on all of the video footage.

[27] In cross-examination, he admitted that he had seen media reports of the November 2014 incident a year prior. He had also seen the variety store video on TV. He provided his own coverage to the media, CBC. He had a vague memory of the police coming to his residence to have him identify clothing. He stated that it was hard to see the eye colour of the suspect. He did not see a mole on the suspect’s cheek and stated that the person had been smoking in the videos, so it was hard to see.

Sek-hoo Wong

[28] Mr. Wong gave his testimony through a Cantonese interpreter.

[29] On November 30, 2014, Mr. Wong lived at 10 Oxford St., Toronto. He had owned 10, 12 and 14 Oxford St. for approximately 20 years. 12 Oxford St. was empty and Richard Porter and Sheila Wawanash lived at 14 Oxford St.

[30] In the early morning hours of December 1, 2015, the houses burned. He became aware of the fire when his dog jumped onto him barking noisily. He woke up, went with his dog to the kitchen and looked out the window. He could see that the building was on fire. Someone was banging on the living room door which he opened. He did not know the person who grabbed him and said “fire”. He ran out, with his dog in his pyjamas. He brought nothing with him. He was not able to go back into the house to get anything. He has never been able to live in the house since. He was unable to recover any belongings.

[31] The three houses that he owned burned down. He was uncertain whether the insurance for the homes had been settled. His son had taken over ownership of the property. The property is still fenced off. He is now living in a room in the home of his ex-wife.

Sheila Wawanash

[32] On November 30, 2014, Sheila Wawanash resided at 14 Oxford St. She had lived there 29 to 30 years. Mr. Wong purchased the property after she had moved in.

[33] She has been a freelance editor for 20 years, and is slowing down as she is nearly 70. She has a roommate, Richard Porter, with whom she rents the home.

[34] On November 30, 2014, she had gone to bed and, at about 1 AM, was awakened. She smelled smoke and saw an unnatural light. She looked out the window, shouted to Richard to wake up. Flames were coming up the alleyway quickly. She dressed quickly and, by that time, the window blew in and the curtain was on fire. She stated that she thought the fire was in the backyard and that the house was on fire, but stated that it was not her “best moment for calm reflection”.

[35] Her bedroom was on the second floor in the middle of the house, looking out on the back of the house facing north. Richard slept in a front room, facing south onto Oxford Street.

[36] She went downstairs, grabbed her coat and purse and went out. Neighbours across the street took her in.

[37] She testified that Richard was trying to do numerous things at once. He threw on clothes, went down the stairs, a window blew out and a firewall came at him.

[38] They had five cats, which were all killed. Their belongings are all gone. She collected art and furniture, her thesis, works on paper were all destroyed. The firemen came in a number of days later and salvaged some antique furniture. They had no insurance on their belongings due to the condition of the house, particularly the roof, which needed repair.

[39] There was an alcove between 12 and 14 Oxford St. In that alcove were two compost bins, a door to the storm cellar, an extension ladder, a decorative door along one wall which served as a visual piece, seen from the kitchen.

[40] The house was condemned and they had to move. She stated that their lives were gone with the house. They stayed with friends. Rick’s health was compromised. They rented another apartment for one year, also in Kensington Market, where they were tied to the community. She was on the community board. They ultimately moved to London, as accommodation is cheaper.

Richard Porter

[41] Richard Porter has been employed as a photographer, carpenter and courier driver. He has worked with David Cronenberg, among others, on films.

[42] In 2014, he lived at 14 Oxford St. and had lived there for approximately 30 years. He lives in the same house as Sheila Wawanash.

[43] On November 30/December 1, Sheila woke him up and said there was a fire. He went downstairs to the middle room, where he could see the flames shooting up above the north-facing window. He went to get a bucket of water, which he threw on the window. It blew out and a fireball came at him. The fire alarms in the house did not go off until the window blew out. There was fire and flames to the top of the house, to the peak of the roof.

[44] He tried to call 911, but the phone would not work. He got Sheila and said that they had to get out. Then he banged on Mr. Wong’s door at number 10 Oxford St. Mr. Wong was a long time landlord and friend. He is not the one who grabbed Mr. Wong from his home, but only knocked on his door.

[45] There is an alcove between 12 and 14 Oxford St. In the alcove was a compost bin, two garbage bags of leaves for compost, four tires for his car that were stored there for the winter, an old wooden barrel, a 14 to 16 foot extension ladder, a year-old Christmas tree for the birds at the back of the house.

[46] He was unable to take any of his possessions other than what he was wearing. He lost tools, personal items, family items, his photography and clothes, and income tax returns over the last five years which he was preparing for CRA.

[47] They continued to live in Toronto for one year after the fire, but accommodation was so expensive that they decided to move to London.

[48] He suffered greatly. All his cats were killed. He lost his home. He was diagnosed with lung cancer, although he does not know if it was due to breathing the smoke. He still goes through the nightmare scenario with the fire exploding over his head.

Michael Ross, Fire Marshal

[49] Michael Ross has been with the Fire Marshal’s office for 12 years. He has investigated 523 fires as the lead investigator and over 100, assisting others in the investigation. His expertise includes incendiary fires which were intentionally set. He is certified by the National Fire Investigation Services. He has a BA and MA in Fire Sciences, the origin, cause and circumstances of fires. The defence conceded his expertise.

[50] As regards the fire on December 1, 2014 at Oxford Street, he classified the fire as incendiary from the origin. There was suitable fuel ignition. He prepared a report regarding the fire. He was at the scene for two days. He evaluated the heat and impact on the buildings and in this way was able to trace the fire to its origin. He evaluated whether the fire had originated from the outside or the inside, and concluded that it was from the outside, and that the fire had originated within the alcove between the two buildings. He spoke with Richard Porter regarding the items stored in the alcove and determined that there were a garbage pail, compost, two bags of dried leaves, four summer tires, a ladder, a dolly, 4 x 4 green packaged plywood, an old Christmas tree and a futon. He stated that the bags of leaves and the Christmas tree would give sufficient heat to ignite the walls of the houses. He also found partially consumed, charred cardboard.

[51] He came to the conclusion that the fire had been intentionally set due to the types of materials present which are all solids and would require an application of heat for a period of time in order to produce a flame. This could be done, for example, from a lighter. The cardboard and tree would be sufficient and would only require application of the flame for 10 to 15 seconds. He was of the opinion that the fire could not have started accidentally, as there was no alternate ignition source found. In order to create a fire, it would require application of a heat source to the material for a period of time. Nothing was found. In cross-examination, he indicated that throwing a cigarette onto dried leaves could ignite a fire, depending on the configuration and the moisture content. However, in this case, that is not what occurred, based on his investigation.

Leslie Wyard

[52] Officer Wyard has been with the Toronto Police Services for 11 years. She is with the Forensic Identification Unit. On December 1, 2014 she was detailed to attend Oxford Street to document the fire scene. She took photographs of the houses located on Oxford Street and identified those photographs, all contained at Exhibit 9.

Jesse Van Nest

[53] Sgt. Van Nest has been with the Toronto Police Services for 18 years as an officer. He assisted in the preparation of the case and did a photo lineup on December 16, 2014, which lineup was prepared by Constable Alinas. He presented the photo lineup to Mr. Byung Song on December 16, 2014. Mr. Song was shown 12 photographs and was able to identify photograph number 4 positively. He indicated that it was a regular customer of his. He does not know if other customers were included in the photo lineup. Mr. Song was asked to notify the police if the customer came to the store again. He also did the paperwork, including the preamble and instructions provided to the witness and filled out by himself as regards the photo lineup. The photo lineup was his only involvement in the case. He had no further contact with Mr. Song.

[54] In cross-examination, he acknowledged that Mr. Song had seen the media reports prior to being shown the photo lineup and had quite a bit of information regarding the arson. He conceded that it was important to know this information as it may influence the identification of photographs.

Byung Song

[55] Mr. Song gave his testimony through a Korean interpreter.

[56] He is the owner of the Starbank Variety store located at 340 College St. The store has been there for approximately 15 years and he has owned the store for 13 years.

[57] He first became involved in the incident when a police officer came looking for someone. The incident, an instance of arson, was in the newspapers. The officer was looking for security videos within a certain date and time frame (around 10:30 PM) related to the incident. The police officer viewed the security videos in Mr. Song’s office. He was outside in the store and sometimes peaked in. The officer indicated that he had seen a person of interest in the video and was advised by Mr. Song that it was a regular customer of his. The police officer made a copy of the videos.

[58] The videos were shown at trial, one from an angle looking toward the back of the counter and one from an angle looking from behind the counter out onto the store. He identified the person in the video as his regular customer, did not know the person’s name, identified him in the courtroom as the accused. He indicated that he had known the person for 4 to 5 years as a regular customer who came to the store once or twice per week. They would have a simple, short conversation, mainly greetings, the weather and whether he was working. Sometimes he would say “Hi, how are you” in Korean. He does not know how the customer knew Korean. The person would buy cigarettes, John Players as he recalled. On the evening depicted in the video, he had purchased a lighter, pepperoni stick and a small container of milk. He believed the person lived on Major Street, nearby. He sometimes came into the store with a female, but he does not know whether it was the customer’s wife. He noticed nothing particular about how the customer walked. He does not believe that he walked with a limp.

[59] In the videos, he described the customer as wearing a black toque, black jacket, dark yellowy pants and yellowy/brown shoes. He does not recall seeing him in the same clothes previously.

[60] He was asked to go to the police station shortly thereafter to give a confirmation regarding the pictures. He did so on December 16, 2014, and had a Korean interpreter. He had seen the news coverage of the fire near his store and does not recall the details but remembers a big fire. At the police station, he was given 12 brown envelopes, each containing a photograph and asked to identify any person he knew. He had read a description from the media, the Toronto Sun. He said that because the fire occurred near his area, he read the article carefully. He was only able to identify one photograph, that being of the regular customer previously mentioned, and the same as the person he identified in the video. He had previously reviewed another photo lineup on December 11, 2014, but identified no one.

[61] In cross-examination, he acknowledged that he did not remember details and, particularly had not remembered whether he had spoken with his night employee about the video, had not remembered whether he had adjusted the clock on the video, did not recall whether his customer had a leg problem, was not sure about the customer’s eye colour but thought it may be a dark colour, such as brown. He did not recall whether his customer had a mole on his face, whether he had any teeth missing and stated that he does not usually pay attention to a particular part of a person’s body regarding their appearance. He believed that the customer was about his height which is 5’7”-5’8”, or a little taller. He had a medium build. He had described the customer’s face as long with a long sharp nose and his hair was balding. He estimated his age to be 35 to 40. He said there was nothing special to remember as there was nothing that stood out. He said that he generally did not remember details about his customers. He did not know the customer’s name, but stated that that was not unusual as regards his customers. He did not recall any particular conversations with the customer, did not know what his job was, but stated that he did not ask his customers about personal details of their lives.

Eric Corba

[62] PC Eric Corba had been with the Toronto Police Services for seven years. He was detailed to prepare the search warrant notes for the search warrant of 4-39 Major St. in Toronto for December 16, 2014 and to be present at the execution of the search warrant. He was accompanied by Det. McInnis, Det. Frimeth, Cstbl Claudio and PC Olivera. They entered the premises at 14:57 PM. It was a small one-bedroom attic apartment with a foyer, bedroom/living room and kitchenette. He drew the diagram of the unit, kept track of the items seized, and kept notes on the standard form. The others went through closets and drawers and checked the entire apartment for clothing. On a coat rack in the hallway, a navy blue Tommy Hilfiger jacket with red fleece lining was located, along with two black toques, one fitted and one elongated, which could serve as a neck warmer, but was usually worn as a hat, called a “Smurf hat”. It was a very popular accessory at the time and could be seen “all over the place”. In a dresser in the main room, in the middle drawer, a black Urban Heritage hoodie with grey lining was located. The items were seized, placed in a plastic bag and tagged for storage.

[63] There was a female tenant in the unit, named Andrea Stevenson, born May 27, 1958.

Donald Claudio

[64] Constable Donald Claudio has been with the Toronto Police Services for nine years. He was assigned to assist in the execution of a search warrant for 39 Major St., Unit 4, which had access from the back with metal stairs going to the third floor. He was informed that a male had been arrested. The search warrant was for clothing seen in the videotapes of November 24 and November 30 to December 1.

[65] They entered the apartment. There was a female resident at the apartment, Andrea Stevenson, who was cooperative, but was upset that they were there. She had been drinking.

[66] The apartment was small but very neat and tidy. It was all open concept. There were limited areas to look.

[67] They located a blue Tommy Hilfiger jacket with red fleece lining, two toques and a black hoodie. There was very limited male clothing in the apartment, no winter clothing, winter jacket, no pants except a pair of jeans and a quantity of khaki shorts.

Kristal McCullough

[68] Ofc. McCullough has been with the Toronto Police Services since April 20, 2014. She has completed the Scenes of Crime Officer Course and takes photographs for the TPS.

[69] As regards this case, she was detailed to take photographs of boots seized on December 12, 2014. She identified the photographs of the boots taken on December 1, 2014, which she described as Blundstone boots. It was agreed among counsel that these were the boots worn by the accused when he was arrested.

Ken McMillan

[70] Ken McMillan resides at 41 Major St., which is just west of College and Spadina. He is retired. He worked at IBM from 2003.

[71] At the end of November 2016, the police attended at his residence at approximately 6:30 PM. They asked him to look at 5 to 6 videos and asked him to positively identify any persons he recognized therein. They advised him that they were investigating a crime committed in the area, but did not specify what crime or when it had occurred.

[72] He identified the individual who appeared in the Starbank Variety security video taken from behind the store counter as his next-door neighbor, Sean Gellvear. He stated that he sees him every day and that he is his next-door neighbour at 39 Major St. on the top floor. Sean uses the stairway just outside his back door and patio. He has been Mr. McMillan’s neighbour for about 3 to 4 years. Mr. McMillan recognized him from his face in the video shot. He testified that Sean works in the neighbourhood and is a pretty good carpenter.

[73] Mr. McMillan would guess that Mr. Gellvear is about 5’9” or 5’10”, possibly 5’11” and 40 years old. He is slim, with curly, thinning hair. However, he stated that he usually sees him in a toque in the winter and a hat or cap in the summer. Mr. McMillan has never paid attention to the clothing Sean wears. He never noticed the colour of his eyes or whether he had a mole on his left cheek. There was nothing unique about his walk, he does not walk with a limp. He does wear a neoprene knee support, which is visible in the summer when Sean is wearing shorts. He is a smoker.

[74] When Mr. McMillan was first shown the videos, he only knew that the police were investigating a crime. When he saw the date 2014 on the videos, he remembered that Sean had been arrested in about December 2014. He had seen the incident on the television and media. He recalled the media coverage, as it was his neighbour and he paid more attention. That did not influence his answer to the police or his identification of the person in the video as his neighbour, Sean Gellvear. He still wanted to be as careful, impartial, accurate and truthful as possible, and to be sure in his own mind that he was able to identify the person accurately. In cross-examination, he testified that the person in the last Starbank video in which he identified Sean was not “fairly generic”, but that he could see his face, knew it was Sean and would have bet money on that fact. He stated that when he saw that video, he had no doubt in his mind that it was Sean. When it was put to him that he had clues as to the identity, he stated that he nevertheless wanted to be absolutely sure that the person he saw and identified was Sean before he did so. That was the only video with respect to which he could make a positive identification.

[75] He stated that they always got along well. They just had small conversations, but he knew that if he needed anything he could ask Sean. He recounted an incident where Sean was working behind his house on the other side of the laneway with another contractor. His fence was broken, Sean had noticed it and had fixed it without his even asking Sean to do so.

Andrew Corrie

[76] Officer Corrie has been with the Toronto Police Service for 10 years. He was requested by Officer Boorsboom to conduct a video lineup. He was advised to attend a specific address to show the witness six videos to determine if the witness recognized anyone in the videos.

[77] He and his colleague went to the home of Ken McMillan. He asked if Mr. McMillan would be willing to review some videos and was told that it was understood that he may be a person who would be able to assist and recognize a suspect in a crime. He testified that he did not know the location of the crime. He confirmed that he showed the videos to Mr. McMillan, and that Mr. McMillan was able to identify the person appearing in video 6. He kept notes on a standard form of the interview of Mr. McMillan and the information provided by Mr. McMillan.

PC Alinas

[78] The defence acknowledged that PC Alinas put together the photo identification (Exhibit 11B) and that photograph number 4 was a photograph of Sean Gellvear, such that he need not testify.

Kevin Frimeth

[79] Detective Kevin Frimeth was the officer in charge of this case. He was in the Crime Investigation Unit, B Platoon. He became involved in the arson investigation on November 24, 2014, the first night of his night shift duty, which ran from 11 PM to 7 AM.

[80] He commenced his duties at 22:30 PM, was told that there was an ongoing fire at 214 Augusta which looked suspicious and received information about the fire from Sgt. Murray who was on road duty. At 12:03 AM, he arrived at Poncho’s Bakery, a churro place. He entered the premises. The fire was in the garage in the rear laneway.

[81] The proprietor of the premises, Luis Vega, was reviewing the surveillance videos around his property with the police. It appeared from the videos as though there was one person responsible for setting the fire.

[82] He drove around the area looking for the person he had seen in the video. It was a poor quality video and he did not see anyone resembling the person he had seen in the video.

[83] The next day, he obtained a copy of all of the videos from that night. They were all of poor quality.

[84] On November 25, he began his next night shift duty. He learned that a couple of persons had been investigated that day.

[85] On November 30, 2014, the last night of his night shift, he began to monitor a fire call regarding a fire at 14 Oxford St. He went to the scene and found a huge fire with one house fully engulfed and the fire spreading. He walked around the scene to see if he saw anyone suspicious or anyone resembling the person in the November 24 videos. At 2:30 AM, he returned to 14 Division and carried on with other duties, then went off shift and was off duty for several days.

[86] On December 5, 2014, he returned and spoke with Detective Morrison who advised of what had occurred in his absence. It appeared that the same person who had been seen on the November 24, 2014 video, had returned on November 30 to view the garage at 214 Augusta. As well, a photo lineup had been shown to Luis Vega. Two persons of interest had come to light.

[87] On December 5 or 6, 2014, he tried to look at all of the videos taken on November 24, November 30 and December 1. He wanted to also check some of the neighbouring stores in the area. He had a working theory that the person captured in the videos on November 24 looked like the same person as the one who returned on November 30 with a couple of exceptions, namely the hats worn: on November 24, a fitted toque and on November 30, an elongated toque which he referred to as a “Smurf hat” or a “hipster hat”. Also on November 24, the individual was wearing a red item underneath his jacket like a red hoodie and on the 30th, there was no red hoodie visible from under the jacket. On November 30, he was seen carrying a drink, and Detective Frimeth wondered if it had just been purchased.

[88] He attended at the Rexall Drug Store at College and Spadina and reviewed the security videos taken between 10 PM and 3 AM on November 30-December 1, 2014. On December 8, he attended Sam’s Variety, located at the southeast corner of College and Augusta and reviewed the surveillance videos taken there between 9:30 and 11 PM on November 30. On December 9, he attended the Starbank Variety, 340 College St. at Augusta/Major. He met with the proprietor, Mr. Song who permitted him to review the security videos. He saw, on the video taken it 10:46 PM on November 30, an individual enter the store. He observed the male, who looked similar to the male who appeared in the videos at 214 Augusta. He was wearing an elongated toque, dark jacket with hood, beigy pants and brown footwear. He does not recall verbatim what Mr. Song said to him, but was given the impression that Mr. Song knew the individual as a regular customer in his store and believed that he lived around the corner on Major Street. He put the videos on a thumb drive to compare them with all the other videos. He believed that all of the videos, including the videos from November 24, November 30, December 1 and Starbank Variety, depicted the same individual. The Oxford Street surveillance videos had also been turned over to him.

[89] On December 11, he received information from another officer that another individual of interest had been located. A second photo lineup was conducted with Mr. Song, who identified no one. Also on December 11, a news release was created, which was released on December 12. The Starbank Variety videos were released and played by the media.

[90] On December 12, his last day of work before his days off, he was called back, as the area was to be flooded with officers to see if an individual could be identified. Tips had been received from the public. Members from the Major Crimes Office were tasked to check the area for one Sean Gellvear, once his name had been determined. On December 15, he was arrested on Major Street in the back laneway, near where he lived. He was not wearing the coat or pants that had been seen in the video of November 30. He was wearing a dark hooded sweatshirt, dark pants and the brown Blundstone boots. He was not wearing a winter coat. When the search warrant was granted on December 16, Detective Frimeth took part in searching the premises. He attended at 39 Major St., Apt. 4, which was, to their understanding, Mr. Gellvear’s residence. They searched the apartment and observed, at the entry, a rack with two hats, a dark fitted toque and a dark elongated toque, a blue jacket with red lining, without a hood. They searched the rest of the apartment and found another black jacket in a chest of drawers. He found no winter jacket or other clothing of interest. The clothing seized was not tested for DNA or smoke. They knew what clothing they were looking for, and did not recover that clothing.

[91] In December 2015, the preliminary hearing was held. Luis Vega was presented with a photo lineup, but picked no one that he recognized.

[92] As regards Ken McMillan, he was only identified as a potential witness a few weeks before the trial. They constructed a way to interview him and show him the videos in his residence, while taking a video of the interview. The videos were shown in a manner which was believed to be fair, with the videos in which an individual was least likely to be identified shown first, to those in which the individual is most likely to be identified. If it had been done the other way, an early identification could have contaminated the interviewee’s mind as regards identifying the other less evident videos.

[93] They wanted to call an expert in video evidence and first thought that they would have to call someone from the United States, then learned that the OPP had a person who could do the same identification work, Gerald Lanna.

[94] A map of the Kensington Market area was produced to Detective Frimeth. He had determined the distances among the various points of interest. From 39 Major St., the residence of the accused, to 340 College, the Starbank Variety store, was 210 m and would take a couple of minutes to walk between the two addresses, depending on how fast one walks. From the Starbank Variety to 214 Augusta St. was 300 m and took him three minutes and 15 seconds to walk. From 214 Augusta to 5 Bellevue Ave., which was the northeast corner of Bellevue Square Park, where Luis Vega encountered the person who had returned to view the garage on November 30, it took approximately three minutes and 14 seconds based on the time it took Detective Frimeth to walk from 340 College to 214 Augusta.

[95] He reviewed all of the videos and described each one. He described the clothing in the videos taken November 24, November 30, December 1 and in the variety store as being the same, with a 2 to 3 inch band at the bottom of the jacket which looked to be a slightly different tone or colour and which was easily discernible in the infrared videos taken at the scenes of the fires on November 24 and November 30-December 1. He noted that the two toques worn on November 24 and November 30-December 1 were both dark but of different styles (the one on November 24 being fitted and the one on November 30-December 1 being elongated).

[96] In the surveillance videos of the fire at 214 Augusta and Oxford Street, the individual in the video could be seen carrying more flammable material to the fire once it had been set: in the November 24 videos, wooden patio furniture and in the November 30-December 1 videos, a large armful of cardboard.

[97] In cross-examination, he was asked whether the coat had ever been identified, including make, model, retailer and how many other of the same coat had been sold in Kensington market, and indicated that this had not been done as the coat had never been found. He testified that they were not interested in what the make of the coat was, but only whether it matched the coat in the other video footage. They were unable to tell because the coat was never located. He conceded that a dark winter coat and toque is almost uniform in Canada in the winter. He conceded that the red lined Hilfiger coat found at 4-39 Major St., had been ruled out as it did not have a red hood, and it appeared from the videos that the red item of clothing under the jacket had a hood. The black jacket found in the chest of drawers was also ruled out as it is tight fitting. He further conceded that the toques seized were generic. No DNA or other testing for smoke, etc. were conducted on the clothing seized, as the clothing that they were looking for, which was depicted in the video footage was not recovered. The coat in the videos was never seized. The bottom of the boots were not analyzed. No drink container was found on site at 214 Augusta. There was no analysis of the accused’s height, although he estimated him to be about 5’10”. The two police officers, Detective Frimeth and Boorsboom, actually measured the accused in the court room. He is 5 feet 10 ½ inches tall.

[98] He acknowledged that there were several persons of interest who had been interviewed and eliminated. No one had picked any of these individuals out of a photo lineup. Further, once the Starbank Variety store videos were located, the investigation changed, as they finally had good video images. The task then became finding the person in the videos. Further, by that time, they had received numerous tips from the public. He conceded that once Mr. Gellvear was arrested, they stopped investigating.

[99] He testified that the woman living in the Major Street apartment was never shown the videos, nor were any members of the accused’s family, nor his employers, because they were not believed by the police to be independent witnesses.

Gerald Lanna

[100] Following a lengthy voir dire as regards the qualifications of Gerald Lanna, it was agreed among counsel that he would be able to give evidence of a technical nature without being qualified as an expert. Several small changes were made to his report, which he reviewed and approved. An amended report was filed with the court. The voir dire became a blended voir dire, such that the evidence could be used in this trial. The report was accepted for the truth of its contents by the defence.

[101] Mr. Lanna trained as a forensic video analyst, took courses with and was qualified by the Law Enforcement and Emergency Services Video Association (“L.E.V.A.”). He has subsequently sat on the Certification Board for L.E.V.A. He testified that there are 53 L.E.V.A. certified analysts in the world and approximately 8 to 12 in Ontario. He worked first with the York Regional Police from November 1999 to November 2001 and subsequently with the Ontario Provincial Police as a Certified Forensic Video Analyst from November 2001 to the present. He is also a founding member of the Ontario Forensic Video Analysts Association (“O.F.V.A.A.”). He has taken many hours of training in the area and has taught many courses and given seminars and lectures in the area. He has testified in 33 cases in Ontario, many as an expert and a number where he simply gave evidence of a technical nature, as in this case.

[102] Mr. Lanna was retained by the Crown’s office in 2016 to provide an analysis and comparison of the various video tapes in the possession of the police as regards the subject arsons, as well as the Starbank Variety video. As regards the videos, he explained why there were colour shifts in the Augusta Street and Oxford Street videos. He explained that the videos taken changed colour as the light changed and the camera switched from normal to infrared light. Due to the makeup of material and clothing or the dyes used, materials may reflect differently when photographed in infrared light. In the Augusta Street videos, depending on the light, the film switched from natural light to infrared which would cause the tonality of the clothing to change. A dark jacket in natural light became a light jacket in infrared light. Further, when he compares the videos he looks at class characteristics, meaning mass-produced items versus unique characteristics, which are unique to the subject being studied, such as clothing. He further explained the digital storage of materials on a video, which are compressed for storage. He stated that due to compression redundancy, some details are removed and may not be put back correctly when the image is expanded again. Details can be lost due to compression. This may have explained the reason why there was a reflective image on the sleeve of the jacket in the video taken at Starbank Variety and not the other videos. He conceded that it could also have been due to the fact that the jackets were not the same.

[103] He also used histogram technology to look at the light and dark values of the clothing and to clarify a strip on the bottom of the coat, which he was able to do.

[104] He stated that the videos taken from 214 Augusta St. were not good quality and it was difficult to make out details such as shoe laces, etc. He clarified the videos, but they remained of poor quality. The quality of the videos taken at Oxford Street, where one sees the person of interest stoking a fire are of better quality than the videos at 214 Augusta. The Starbank Variety store video was the best quality.

[105] As regards the coat worn in the video footage, he was unable to tell the actual colour of the jacket but only the tonality differentials. He was able to see, both with the naked eye and with clarification, a difference in tonality in a band at the bottom of the coat which may have been due to a different material, a difference in dyes or different clothing hanging under the jacket. He testified that one could see a stark difference in the band at the bottom of the coat when it was analyzed and with the naked eye.

[106] He reviewed his report for the Court. He was not able to tell colours from the videos but only tonalities. He could tell that the coat was dark, as were the toques, the pants were light and the boots were not black but a lighter tonality. He was able to discover similar clothing descriptions in the Starbank security video and the Augusta Street videos, but not the Oxford Street fire location sequences that were digitally recorded using infrared technology and did not allow for clothing tonality observations. He was not able to exclude that the person of interest in the Starbank security videos was the same as the person of interest captured on security video at the Augusta Street and Oxford Street security video locations.

Credibility

[107] All witnesses produced by the Crown who testified in this trial testified to the best of their ability and in a straightforward, candid and forthright manner. In both examination in chief and in cross-examination, they answered candidly to the best of their abilities. I did not find any witness to be unreliable or lacking in credibility.

Submissions of the Parties

Submissions of the Crown

[108] It is the submission of the Crown that the evidence in this case, including direct, circumstantial and similar fact evidence, when considered together, prove beyond a reasonable doubt that the defendant is the person of interest in the surveillance video tapes who deliberately set the fires on November 24, 2014 and December 1, 2014.

[109] The Crown submits that the person of interest in the Starbank Variety store video taken November 30, 2014, was recognized by Mr. Song and Mr. McMillan, both of whom were able to identify the person of interest as the accused based on their acquaintances with him over a period of several years. The Crown further submits that this Court may make an identification of the person in the video as the accused based on R v Nikolovski, [1996] 3 S.C.R. 1197.

[110] Further, it is the position of the Crown that the person in the Starbank surveillance video is the same person as the persons of interest in the Augusta and Oxford Street fires as seen on the surveillance video tapes taken in those locations on November 24, 30 and December 1, 2014. The Crown submits that there are two paths to proving that the person of interest in the Starbank video is the same as the persons of interest in the surveillance videos taken November 24, November 30 and December 1, 2014, namely the circumstantial evidence adduced at trial and the similar fact evidence admitted in this trial. As regards the circumstantial evidence the Crown submits that the same clothing is worn in all of the surveillance video tapes and the Starbank videotape, that there is a proximity of timing as regards the incidents as well as a proximity of location of the two arsons, the Starbank video and the residence of the accused. Further, two toques similar to those worn by the person of interest in the videotapes were located in the accused’s residence and boots similar to those worn by the person of interest were seized from the accused upon his arrest. Further, the person of interest in the videotape taken at the Augusta Street fire appeared to have returned to the scene of the arson one week later.

[111] As regards the similar fact evidence that was admitted at the trial, the Crown relies upon it as an additional means of identifying the individual who started the Augusta and Oxford Street fires. The Crown argues that it is highly improbable for another person to be attending the Augusta and Oxford Street locations in the late hours of the evenings of November 24, November 30 and the early hours of December 1, 2014 wearing identical clothing. The Crown submits that the high degree of similarities in the instant case makes the similar fact evidence so probative that it is capable of supporting the finding, beyond a reasonable doubt, that the same person of interest seen in the November 24 Augusta St. videotape and the person of interest on the three November 30-December 1, 2014 videotapes are the same person, namely the accused.

Submissions of the Defence

[112] It is the submission of the defence that no one was positively able to identify Sean Gellvear from any of the surveillance videos taken of the two arsons. The arson videotapes were of such poor quality that no one could make any positive identification.

[113] Mr. Struthers, for the defence, submitted that the description of Mr. Gellvear given by Mr. Vega was, in essence, a non-identification, as the description was wrong. Mr. Gellvear was not 5’7” or 5’8” with dark eyes and a squished-in nose, but rather was 5’10”, with blue eyes and a pointed nose. As regards the testimony of Mr. Song, he was not in the store on the evening of the videotape and could not recall whether he discussed the video and the events with the employee who was there. Again, his description of the accused was deficient in a number of respects and he appeared to have a poor memory.

[114] Mr. McMillan, Mr. Gellvear’s next-door neighbour, provided the best identification, it was of note that he was unable to identify Mr. Gellvear, whom he knew well, in any of the fire videos.

[115] It was the position of the defence that while persons in the fire videotapes may have been wearing similar clothing, “similar” is not sufficient in a criminal case. The test is not whether something is “possible”, “probable” or “likely”, but whether the Crown has proven its case “beyond a reasonable doubt”. Moreover, a dark coat and toque are essentially a Canadian uniform in the winter.

[116] As regards this Court’s use of a Nikolovski identification, as urged by the Crown, it was Mr. Struthers’s position that the videotapes of the fires were not of such quality and clarity that one could say that they were the same person. Further, the observations of this Court would not be as good as that of Mr. McMillan who had known the accused for three or four years as his next-door neighbour and saw him almost on a daily basis. Mr. McMillan was unable to positively identify Mr. Gellvear as the person of interest in the two fire videotapes, and this Court would be in no better position than he was to do so.

[117] The defence takes the position that the clothing, while it may be similar, and is the same combination of clothing (namely a jacket, pants and a toque), cannot be said to be the same, identical or unique. Looking like something else or similar to something else cannot raise the similarity to an identification beyond a reasonable doubt. Further, while the Crown may argue that it is highly improbable that two different persons wearing the same or similar clothing would undertake similar acts of arson, that is not the test; nor is “looks like” the test. Rather, it must be established, beyond a reasonable doubt, that it could be no one else.

The Law

[118] The law on identification evidence is central in this case, where the only issue is identification.

[119] In this case, security videotape evidence taken at the scenes of both fires, has been admitted. The security videotape evidence was also the subject of an application for admission of similar fact evidence on a count to count basis and was admitted on that basis pursuant to my Ruling of January 26, 2017. I found that there were a number of similarities which, in combination and by their cumulative effect, met the threshold test of admissibility of similar fact evidence. I further held that ultimately, the issues before this Court will be determined, not simply on the similar fact evidence, but rather on a full evidentiary record after having considered all of the evidence adduced at trial (Ruling on Similar Fact Evidence, paras. 34, 41, January 26, 2017).

[120] There was also other evidence as regards identity from a variety of witnesses and witness photo lineups.

[121] As regards the use of the videotape evidence, once it is established that a videotape has not been altered or changed and that it depicts the scene of a crime, it becomes admissible and relevant evidence. Not only is the videotape real evidence, but it is also, to a certain extent, testimonial evidence as well. It should be used by the trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. The degree of clarity and quality of the tape, and to a lesser extent, the length of time during which the accused appears on the videotape, will all contribute to establishing the weight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant, for even if there are but a few frames which clearly show the perpetrator, that may be sufficient to identify the accused: R v Nikolovski, [1996] 3 S.C.R. 1197.

[122] Although triers of fact are entitled to reach a conclusion as to the identification based solely on videotape evidence, they must exercise care in doing so. They must carefully consider whether the videotape is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. They must be satisfied beyond a reasonable doubt that the videotape identifies the accused: R v Nikolovski, supra.

[123] Non-expert recognition evidence based on photograph or videotape, as a type of non-expert opinion evidence, is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator: R v Leaney, [1989] 2 S.C.R. 393; R v Brown, [2006] O.J. No. 5077 (C.A.). This has been termed the “prior acquaintance/better position” test. The test for the admission of such evidence does not require the witness to have sufficient familiarity with the accused’s unique features to identify the accused’s idiosyncrasies as portrayed in the photograph or videotape. However, sufficient prior acquaintance is required: R. v Behre, 2012 ONCA 716, 113 O.R. (3d) 137 (C.A.).

Analysis

[124] Sean Gellvear is charged with 14 counts related to arsons which occurred in Kensington Market on November 24, 2014 and November 30-December 1, 2014, as listed at para. 1, supra. While there is little, if any, issue as regards the facts supporting the counts, the seminal issue is identity, namely whether the perpetrator of the crimes was Mr. Gellvear.

[125] Sean Gellvear is presumed to be innocent unless and until the Crown proves his guilt beyond a reasonable doubt. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice against anyone involved in the trial. It is a doubt based on reason and common sense; a doubt that logically arises from the evidence or lack thereof. If, after considering all of the evidence, this Court is satisfied beyond a reasonable doubt that Sean Gellvear committed the offences charged, it must find him guilty. If this Court is not satisfied beyond a reasonable doubt, it must find him not guilty.

[126] The accused, Sean Gellvear, did not testify, as is his right. The accused is entitled to remain silent and need not present any evidence in his defence.

[127] No one saw the perpetrator of the fires in person at the scenes of the fires. Mr. Vega testified that when a person of interest returned to the scene of the Augusta Street fire on November 30, he was watching the security videos and, believing the person on the video to be the same as the person on the video who set fire to the garage on November 24, he followed the person to Bellevue Square Park, where he was ultimately able to see him face-to-face. However, when he was shown a photo lineup of persons, including Sean Gellvear, he was not able to identify Mr. Gellvear as the person he saw.

[128] Further, when asked to describe the perpetrator of the arson who returned to the scene one week later, he described him as about 5’7” or 5’8”, dark eyes, with a squished-in nose. This description did not fit Sean Gellvear, who is 5’10”, with blue-green eyes and a pointed nose.

[129] Of the witnesses called by the Crown, no witnesses were able to positively identify the person of interest depicted in the fire videos taken November 24 at Augusta Street and November 30-December 1 at Oxford Street. No witness at trial was able to positively identify the accused as the person of interest in either videotape regarding either fire.

[130] I do not find the videotapes of the fires at Augusta Street, taken November 24, the return of a party of interest to 214 Augusta St. on November 30 or the videotapes of the fire at Oxford Street on November 30--December 1, to be of sufficient quality and clarity, to prove identification of the person of interest as the accused. Nor do the videos show the perpetrator of the fires for a sufficient period of time to prove identification beyond a reasonable doubt. While Mr. Lanna described the Oxford Street videos to be of better quality than the Augusta Street videos, I find that the Oxford Street videos, while somewhat better than the Augusta videos, are still lacking in clarity and quality.

[131] The only videotape of sufficient clarity and quality and which depicted the person of interest for a sufficient period of time to provide identification was that taken at the Starbank Variety store, which did not depict any discreditable conduct nor any conduct which is the subject of any count before this Court. Based on that video, the owner of the store, Byong Song, was able to identify the person depicted therein as his regular customer, and in Court, as the accused. Further, on the basis of that videotape, Ken McMillan was able to identify the person depicted in the videotape as his next-door neighbour, Sean Gellvear, the accused. However, when shown the other videotapes of the fires at Augusta Street on November 24, the return of a person of interest to the Augusta fire scene on November 30, and the videotapes of the fire at Oxford Street on November 30-December 1, Mr. McMillan was unable to identify the person of interest therein as Sean Gellvear. He testified that the videotapes were not clear and only showed the person for short periods, and without the face being clearly visible, such that he was unable to make a positive identification. To his credit, he stated that he needed to be certain before making a positive identification, as he wanted to be able to sleep at night.

[132] The best independent evidence was provided by Mr. McMillan, the next-door neighbour of Mr. Gellvear over a 3 to 4 year period, who indicated that he saw Mr. Gellvear almost daily, described him as 35 to 40 years of age, approximately 5’10”, with currently, slightly balding or thinning hair, who did not have a limp or a distinctive walk, but who wore a knee brace, which he saw when Mr. Gellvear was wearing shorts in the summer. He was a reliable lay witness who knew the accused over a period of time and was in a good position to identify him in the videotapes. It is of note that he was only able to identify Mr Gellvear in the Starbank Variety store video, which was of a good clarity and quality. He was unable to identify Mr. Gellvear in either of the fire videotapes which were not clear nor of good quality. He attempted to be completely fair and unbiased, and I accept his evidence. Therefore, there was no one who was able to identify Mr. Gellvear as the perpetrator of the arsons.

[133] While the Crown urged, based on Nikolovski, supra, that I was in an equally good position to make the identification sought from a comparison of the fire videotapes with the Starbank variety video, I do not find this to be the case. Mr. McMillan had a significant prior acquaintance with the accused and was in the better position to make an identification. He was unable to do so as regards the arson videotapes. Given the lack of clarity and quality of the videotapes and the short periods of time in which the person of interest is seen, this Court is in no better position to make such an identification. Indeed, I find that Mr. McMillan was in the best position to make such an identification, which he was unable to do.

[134] Further, Mr. Song was in a better position than I to make such an identification. While he did identify Mr. Gellvear in the Starbank video, he was not shown the fire videos. As regards a Nikolovski identification by this Court, I am of the view that I am not in a better position than Mr. McMillan to make a positive identification. Indeed, when looking at the videotapes and stills taken from the videos and comparing them to the accused in Court, the faces are similar, but I am unable to say, beyond a reasonable doubt, that they are the same person. In the Starbank video, the individual wears a toque pulled down over the forehead, and wears no glasses, while the accused in court wore large glasses and his forehead was, of course, bare and not covered by a toque.

[135] As regards the identity of the perpetrator of the fires, the Crown submits that determination of the person of interest in the fire videos as the accused can be made based on a comparison of the person of interest in the videos with the videotape taken at the Starbank Variety store.

[136] As regards identification of the perpetrator of the fires, the Crown urged that a comparison of the clothing worn by the person of interest in the fire videotapes admitted as similar fact evidence on a count to count basis, and a further comparison of this with the Starbank Variety store video would assist in a positive identification of the accused as the person of interest. The Starbank Variety store videotape was the only videotape in which the person of interest was positively identified as Sean Gellvear by two persons, the owner of the Starbank Variety store, Byung Song, who knew him as a frequent customer over a period of 4 to 5 years, but did not know his name and, most importantly, by the next-door neighbour, Ken McMillan, who knew him and had seen him almost every day over a period of 3 to 4 years.

[137] It was the position of the Crown that with that positive identification, the comparison of clothing worn in the security videotapes taken at the scenes of the fires, the evidence of the clothing seized, testimony of the witnesses and circumstantial evidence, as well as this Court’s own observations of the videotaped evidence and the appearance of the accused in Court, applying Nikolovski, a positive identification of the accused as the perpetrator of the arsons could be had.

[138] As regards comparison of the clothing worn by the person of interest in the videotaped evidence, all the videotapes in evidence were reviewed a number of times during the course of the trial and have been reviewed since by myself prior to this ruling. The videotapes all depict a person who is wearing a dark hooded jacket, loose-fitting in the torso, with the back of the coat slightly longer than the front of the coat, although this latter detail is not always evident. It appears in the video of November 24, that there may have been an undergarment that was red, as some red can be seen extending above the hood around the collar area and potentially at the bottom back of the coat.

[139] As regards the clothing, the videos captured the clothing in various lighting conditions which caused the security cameras to switch from normal to infrared. The video taken on Augusta Street in front of the business and apartment at 214 Augusta were in dim, normal light and depicted the clothing in its normal tonalities, the dark hooded coat, dark toque, light pants and darkish boots. The camera switched to infrared when the person entered the darker alleyway to go to the back where the garage was located. In infrared light, the dark tones became light and showed a band of dark colour at the bottom of the coat. Gerald Lanna, a forensic video analyst, testified at the trial as regards “reading” the videotapes. On the consent of the parties, he was not presented as an expert, but was presented to assist the Court in understanding how to view the videotapes and interpret what was being seen on them. As explained by the analyst, when viewing a videotape taken in infrared light, dark toned clothing becomes light and such colour differential as that seen on the band at the bottom of the coat occurs where different materials are used in an item of clothing or where certain dyes are used. He further explained that spots or marks in a videotape may disappear once the videotape is stored and then the image recalled due to the effect of compression of images for storing. He testified, after viewing the videos as regards the coats, that he could not say that it was not the same coat.

[140] As regards the clothing, the dark toned jacket and boots became lighter and the light pants became even lighter. The dark band is seen at the bottom of the coat in the infrared portions of the Augusta Street video taken on November 24 and in the Oxford Street video taken on November 30-December 1, which is all in infrared. This is a readily discernible, consistent feature on the coat in the fire videos, readily discernible in the infrared videos.

[141] As regards the normal light of the Starbank Variety store video, the dark band was, according to the analyst, faintly discernible to the naked eye. To the untrained naked eye, it was not necessarily visible. While the analyst testified that it was discernible or at least fairly discernible, I cannot say beyond a reasonable doubt that I saw it, uninfluenced by the analyst’s suggestion that it was there. No one else identified that band in the Starbank video or in normal light. As a result, it cannot be concluded beyond a reasonable doubt that the unique or distinctive feature, namely the band at the bottom of the coat, was present in the fire videos and the Starbank video. While the fire videos appeared to have that banding at the bottom in infrared light, such cannot be said beyond a reasonable doubt in the Starbank video.

[142] The individual depicted in all of the videos is wearing light pants and darker boots. In the security video of November 24, he is wearing a dark fitted toque, while in the security videos of November 30-December 1, he is wearing an elongated “Smurf” or “hipster” toque, which was described by an investigating officer, Constable Corba, as being a very popular accessory at the time, and seen all over. The toques were described as generic by Detective Frimeth. The person is a male of average build and height. While the Crown maintained that the person of interest was Caucasian, I note that no evidence was presented as regards what would happen in infrared light to dark toned skin and whether it would become light, in the same way that materials and certain dyes do. Thus, it is not possible to determine the skin tone of the person in the Oxford Street video, which was all infrared light. I note in that video that there is very little depiction of the face of the perpetrator in any event.

[143] In all of the videos, when the person turns in certain directions, one can see a slim face, which I would describe as somewhat gaunt, with slightly hollowed cheeks under the cheekbones. When the individual turns in a certain direction one can see a profile with a pointed nose, all of the videos showing a very similar, if not the same, profile. The defence submitted that while Mr. Gellvear had a visible mole on his face, none of the witnesses testified that they had noticed such a mole. I do not find this to be of significance as in Court, I was unable to detect such a mole on the accused’s face.

[144] Throughout the videos, the person of interest appeared to have a longer stride, with a fairly straight leg extended on the stride, and a heel-to-toe footfall, the heel somewhat forcefully planted with toe in the air. While the Crown indicated that the gait was most noticeable or most readily noticeable when the person of interest was not hurrying in step, I noted from the fire videos that his walk was still distinctive when he was taking more hurried, shorter strides. The stride was not noticeable in the Starbank Variety store videos. I note that those who identified the accused in the Starbank Variety store surveillance tapes, namely Mr. Song and Mr. McMillan, both of whom knew the accused over a period of years, testified that they did not notice that Mr. Gellvear had a distinctive gait or walk.

[145] Clothing was seized from what was believed to be the apartment of Sean Gellvear, including two dark toques, one fitted and one elongated and two dark jackets. No winter jacket of the type seen in the videotapes, nor any light pants were located. The two dark jackets were found not to be relevant to the investigation, as they did not meet any description of clothing seen in the videotapes. Brown boots were seized from the accused when he was arrested, which may have matched the boots seen in the videotapes, although this was never confirmed in the evidence. No analysis of the boots or the treads of the boots was done to determine whether any material matching either arson location could be detected. No clothing, such as the toques, was analyzed for DNA, detection of smoke or any other potential analysis. There is, therefore, no forensic evidence which would assist in any identification of a perpetrator of the arsons.

[146] Based on the evidence adduced, I am unable to determine that the clothing seen in the various videotapes, including the Augusta and Oxford Street videos and the Starbank video, is identical or exactly the same, as urged by the Crown. While the clothing appears to be similar, I am unable to say beyond a reasonable doubt that it is all identical or exactly the same.

[147] The investigating officers were unable to find any other witnesses than those who testified in this trial. They did not call any neighbours of Mr. Gellvear, did not interview any family members, employers of Mr. Gellvear, nor the woman found to be living in the residence at 39 Major St., believed to be Mr. Gellvear’s residence, as they were not considered to be independent and unbiased witnesses.

[148] Thus, the only thing linking Mr. Gellvear to the arsons was the circumstantial evidence of similarities of clothing in the three videotapes. The facial features were not clearly visible in all videos and the distinctive gait was not evident in the Starbank video.

[149] While the Crown urged that it would be highly unlikely that different persons would wear such similar clothing on two different occasions and engage in similar activities, namely arsons, I am unable to say, beyond a reasonable doubt, that the persons depicted in the various videotapes are the same person, nor am I able to conclude beyond a reasonable doubt that the persons depicted in the arson videos are Mr. Gellvear. While acknowledging that the evidence may raise some suspicions, I am unable to make a positive identification of the persons in the videotapes as the same as the accused in this courtroom. Further, I am unable to say beyond a reasonable doubt that those persons depicted in the fire videotapes, even were I able to say that they were the same person, are the same person depicted in the Starbank Variety store video and are the same person as the accused in the courtroom.

[150] I have considered the videotape evidence, the testimony of all parties, documentary evidence adduced, the submissions of the Crown and defence and the applicable case law. Based on all of the above, I am not satisfied that the Crown has proven its case beyond a reasonable doubt.

[151] Accordingly I find Sean Gellvear not guilty of the 14 counts in the indictment.

Carole J. Brown, J.

Date: February 17, 2017

COURT FILE NO.: CR-15-10000-663 DATE: 20170217 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – SEAN GELLVEAR Accused REASONS FOR DECISION Carole J. Brown, J. Released: February 17, 2017