R. v Shire, 2017 ONSC 4411

Court File and Parties

COURT FILE NO.: CR-15-06232 DATE: 20170720

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – MOHAMED AHMED SHIRE Defendant

COUNSEL: J. Costain, for the Crown J. Stilman, for the Defendant

HEARD: July 17-18, 2017

Reasons for Decision

Charney J.:

1The accused is charged with six counts in relation to the possession and discharge of a firearm, namely a revolver, contrary to sections 244(2), 87(2), 88(2), 90(2), 91(3) and 92(1) of the Criminal Code.

2He is also charged with pointing a firearm at Kirpa Budwal contrary to s. 87(2) of the Code, and threatening, confining, and kidnapping Mr. Budwal contrary to s. 264.1(2), 279(1) and (2) of the Code (a total of four counts).

Facts

3The charges relate to events that occurred in the early morning hours at the Marhaba Café and Lounge (the lounge), a hookah lounge (since closed) where patrons gathered to smoke sheesha and eat food. The lounge was located in a plaza on Steeles Ave. W. in the City of Vaughan.

4The lounge was owned by Mr. Arsalan Basharat. He had installed eight surveillance cameras at various points throughout the property. The surveillance videos are the primary evidence in this case.

5After midnight on May 2, 2015, there were approximately 40 patrons inside the lounge. Mr. Basharat testified that the crowd was somewhat older than his usual crowd of university-aged students. Some time around 2:09 a.m. shots were fired outside the plaza in the direction of the lounge. It was a drive-by shooting in which one of the lounge patrons – Sayed Hersi – was shot outside of the lounge by unknown persons. He was later taken to hospital. No arrests were made in relation to this shooting.

6The drive-by shooting sparked a panic inside the lounge. The surveillance cameras captured patrons racing for the exit doors in confusion. At the same time two of the patrons pulled out revolvers and began to shoot. One, referred to as the “outdoor shooter” is wearing a baseball cap with a Detroit Tigers logo, a dark blue hooded jacket, running shoes and khaki pants. The other, wearing a Maple Leaf cap, is referred to as the “indoor shooter”. The surveillance video clearly shows the outdoor shooter holding his handgun and running outside of the front entrance to the lounge and firing his handgun. There are many people crowded around the doorway at this time.

7The Crown alleges that the accused, Mohamed Shire, is the person in the video identified as the “outdoor shooter”.

8Since the lounge was somewhat dark, the surveillance cameras used infra-red or night vision technology to capture images. As a result the colours are distorted. Dark colours often appear as white. The videos generally appear to be “black and white”, although there are instances when colour of clothing can be glimpsed. The surveillance cameras are mounted in the ceiling, and take video from above. Both the outdoor shooter and the indoor shooter are wearing baseball caps, and their faces are usually obscured by the peak of their respective caps. While there are several images of the outdoor shooter coming and going from the lounge, there are only a few fleeting frames when the face of the outdoor shooter is visible on video. There are better pictures of the face of the indoor shooter, who has a distinctive tattoo visible on his neck.

9Mr. Basharat testified that he was in the kitchen when the shooting occurred. There are no cameras in the kitchen and he did not see the shooters. He did not recognize any one from the videos.

10Kirpa Budwal was in the Marhaba Lounge with a friend at the time of the shooting. When he heard the shots Mr. Budwal and his friend left through the front entrance to go to Mr. Budwal’s car parked in front of the lounge. His intention was to get away from the shooting. He unlocked the doors with the remote on his key fob, and a male appeared at the car’s rear driver’s side when the door unlocked. The male appeared to be in a panic and got into the backseat of Mr. Budwal’s car. Mr. Budwal told him to get out of the car, but the person in the car told Mr. Budwal that he had to get a couple of intersections away from the lounge. Mr. Budwal followed the directions given by the man in the back seat and dropped him off in the parking lot. Before he got out, the man in the back seat asked to see Mr. Budwal’s driver’s licence. Mr. Budwal thought that he saw the man had a gun, and he complied, removed his licence (which was a temporary piece of paper) from the glove compartment and gave it to the man in the back seat. The man in the back seat took a picture of the licence with his cell phone and returned the licence to Mr. Budwal, who then drove home before reporting the incident to the police that night. Mr. Budwal was concerned because his driver’s licence had his home address on it, which meant that the man in the back seat had Mr. Budwal’s home address.

11Mr. Budwal testified that it was very dark out and he could not clearly see the features of the man in the back seat of the car, other than that he had “sharp” features. He testified that he did not think that he could recognize the man who got into the car, and he did not recognize the man as someone he had seen in the lounge earlier in the evening. Mr. Budwal was a reluctant witness and he made it clear that he did not want to cooperate with the police in their investigation.

12Detective Cook was the officer responsible for the investigation. For various reasons the accused, Mr. Shire, became the primary suspect. The police had retrieved a partial fingerprint from the rear of the car. Another possible suspect was eliminated by this partial print, but Mr. Shire could not be ruled out, although the partial print could not positively identify him.

13Detective Cook viewed a number of booking photos taken of Mr. Shire the year before, and compared them to the images of the outdoor shooter on the surveillance videos, and concluded that there was a strong resemblance between the photos of Mr. Shire and images of the outdoor shooter in the surveillance video. This view was confirmed when he saw Mr. Shire in person. Mr. Shire was arrested on May 27, 2015.

14The police conducted a search of Mr. Shire’s residence on May 23, 2015 but did not find any evidence associated with the shooting. They did not find the Detroit Tiger’s baseball cap or the hooded jacket or shoes seen on the video. They did not find a gun or ammunition, and while they found two working cell phones, neither contained the photo of Mr. Budwal’s driver’s licence.

Analysis

15In this case the sole issue is identity. Is the accused the person identified as the outdoor shooter in the surveillance videos? The security tapes bare the entire burden of the prosecution’s case. Neither of the witnesses could identify the outdoor shooter, there was nothing corroborative found at the search, and there is no other circumstantial evidence.

16The video evidence presented is a compilation of the eight surveillance cameras showing the lounge from various angles. The tapes have been edited so that only those portions in which the outside and inside shooters are visible have been shown. There is no dispute regarding the authenticity of the videos.

17The Defence position is simply that the images of the outdoor shooter captured by the cameras are not of sufficient clarity or quality to permit the court to conclude beyond a reasonable doubt that the accused is the same person as the outdoor shooter.

18In R. v. Nikolovski, [1996] 3 SCR 1197, the Supreme Court of Canada confirmed that a trier of fact can identify the accused before the court as the perpetrator of the crime on the basis of viewing videotape evidence alone without any corroborating testimony that the accused is the person depicted in the tape. The question is whether the picture of the perpetrator is of sufficient clarity and quality that it would permit the trier of fact to make that determination beyond a reasonable doubt. The Court stated (at paras. 22-23):

So long as the videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidence of the identity of the perpetrator. It is relevant and admissible evidence that can by itself be cogent and convincing evidence on the issue of identity. Indeed, it may be the only evidence available… The powerful and probative record provided by the videotape should not be excluded when it can provide such valuable assistance in the search for truth. In the course of their deliberations, triers of fact will make their assessment of the weight that should be accorded the evidence of the videotape just as they assess the weight of the evidence given by viva voce testimony.

It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime. It is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness. It follows that the same result may be reached with even greater certainty upon the basis of good quality video evidence. Surely, if a jury had only the videotape and the accused before them, they would be at liberty to find that the accused they see in the box was the person shown in the videotape at the scene of the crime committing the offence. If an appellate court, upon a review of the tape, is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accused as the person depicted in the videotape.

19The Supreme Court also explained that the weight to be given to the videotape is commensurate with its clarity and quality (at para. 29):

The weight to be accorded that evidence can be assessed from a viewing of the videotape. 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 go towards 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. Particularly will this be true if the trier of fact has reviewed the tape on several occasions and stopped it to study the pertinent frames.

20Based on this legal principle the Crown and the Defence have invited me to review the video tape evidence presented in court to decide whether I can identify the accused as the outdoor shooter depicted in the video. The task is complicated somewhat by the fact that the person depicted in the video has long hair, a beard and moustache, while the accused in court has short hair and is clean shaven. Accordingly, the Crown has presented evidence of a photograph of what the accused looked like the year before the events in issue. In this photograph the accused has long hair, a beard and moustache consistent with that seen in the video.

21I have reviewed the video carefully, both in Court and in chambers. While the video is approximately 45 minutes long there are only six instances in which the outside shooter’s face can be seen and each of these last for about a second or less. I have stopped the video at the relevant part to study the pertinent frames. The videos are grainy. They are not, in my view, of sufficient clarity or quality to permit me to positively identify the accused as the outside shooter depicted in the video. There is certainly a resemblance between the person in the video and the photo of the accused taken a year before the events in question. A large part of that resemblance is the long hair, moustache and beard, a style which I note was common to several of the male patrons depicted in the surveillance video taken at the lounge. There is also a resemblance between the accused as he appears today and the person in the video, but the brief glimpses of grainy video are simply not sufficient to identify the accused beyond a reasonable doubt. There is no distinctive marker, such as a tattoo, that would permit such a positive identification from the video.

22In R. v. Rybak, 2008 ONCA 354 at para. 121 the Ontario Court of Appeal stated that: “As a general rule, a resemblance, without more, does not amount to an identification.” Accordingly, I agree with Defence counsel that at best I can conclude that while the accused certainly could be the person depicted in the video, I cannot find that he is beyond a reasonable doubt that person.

23A reasonable doubt may be a doubt based on the evidence or the lack of evidence (R. v. Lifchus, [1997] 3 S.C.R. 320 at para. 30). In the present case I must also consider the fact that no corroborative evidence was found when the search warrant was executed on May 23, 2015. While this may not, on its own, be sufficient to raise a reasonable doubt, when combined with my inability to positively identify the accused from the surveillance video, this becomes a significant factor in my conclusion that the Crown has not proven its case beyond a reasonable doubt.

Conclusion

24Based on the foregoing analysis I find the accused not guilty of counts 1, 2, 3, 4, 5 and 6 of the indictment.

25At the close of the Crown’s case on July 18, 2017 the Crown fairly requested that the Court direct a verdict of dismissal on counts 7, 8, 9 and 10 of the indictment, and the charges related to those counts have also been dismissed.