FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] On 5 November 2015, four men broke into the vestibule of a commercial building situated at 2444 Yonge Street and stole approximately $45,000 from the Bank of Montreal Automated Teller Machine (ATM) located within. When police investigated, they discovered that the break-in had been captured by a surveillance camera hidden inside the ATM.

[2] Reviewing the footage, the police discovered that two of the intruders wore masks concealing their faces. The other two, however, entered the property with their faces exposed. One of these men, alleged to be Naomi Shengelia, leaned forward into the full view of the camera to examine it. Realising to his regret, that he was being recorded, he recoiled, covering his face and took steps to destroy the camera.

[3] On 8 November 2015, a bulletin containing still images from the break in video was circulated to all police services.

[4] On 15 November 2015, Detective Tracey Turner, of the York Regional Police Service, examined the images and recognised Mr. Shengelia as the person whose visage had been captured by the camera.

[5] At trial, the Crown applied, pursuant to R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393, to adduce Detective Turner’s opinion of the identity of the man in the video as evidence that a jury could consider.

[6] I found the evidence to be admissible with reasons to follow. These are those reasons.

Legal Principles

[7] In Leaney, the Supreme Court of Canada held that prior identification of an accused from photographs or videotape by a non-expert witness is admissible so long as the witness has a prior acquaintance with the accused and is in a better position than the trier of fact to identify the person who committed the crime. The rule was re-affirmed by Rosenberg J.A. in R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.) at para. 39.

[8] In R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137 a new argument emerged: in addition to a prior acquaintance with an accused, there needed to be an ability to be able to identify unique features and show these on the videotape.

[9] Blair J.A., writing for the court, at paras. 19-20, rejected this additional requirement. At para. 22, he added:

In my view, however, it is going beyond what is necessary for threshold admissibility to add another layer to the test requiring the recognition evidence witness to show that he or she can point to some unique identifiable feature or idiosyncrasy of the person to be identified. Such concerns are better resolved in determining the ultimate reliability of the evidence. There are many ordinary people who do not have any particular identifiable features or idiosyncrasies differentiating them from the normal crowd; people familiar with them may well be able to identify their photograph, however. In that respect, I think the following comment by Holmes J. in R. v. Panghali, 2010 BCSC 1710, [2010] B.C.J. No. 2729, at para. 42, is apt:

Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.

[10] A different note was struck in R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, on appeal of a conviction for aggravated assault and discharge of a weapon with intent. The offence arose out of an altercation in a bar. Three witnesses who testified to prior interaction with the accused identified him as the shooter from a video. On appeal, the court set aside the conviction and entered an acquittal as the identification evidence was not sufficiently reliable.

[11] The court drew a distinction between threshold admissibility and ultimate reliability of the recognition evidence. In the former, particular idiosyncracies of the person being identified were immaterial as a requirement for admissibility. In the latter, however, where a trier of fact was being asked to determine guilt, the weight to be given to such evidence relied upon the identification of special or unique features. At para. 47, Juriansz J. remarked:

The issue in Berhe was the threshold admissibility of the recognition evidence. Berhe also confirmed the continued importance of unique identifiable features in determining the ultimate reliability of the evidence. The importance of unique identifiable features varies with how well the witness knows the person he or she identifies.

Is Detective Turner’s Opinion Admissible?

[12] Detective Turner was an officer assigned to 4 District’s Property Crime Unit (PCU). It was there, sometime in 2012, after Mr. Shengelia’s arrest by York Regional Police that he first came to her attention, leading her to review the police report, examine his arrest photo and conduct a background check.

[13] In August and September 2013, the PCU began an investigation into a series of break and enters in the Vaughan region and the team conducted a check on Mr. Shengelia. Subsequently he was put under surveillance as he had been charged with a break and enter the previous year.

[14] Detective Turner’s first encounter with Mr. Shengelia took place on 22 August 2013 when she was advised by colleagues that Mr. Shengelia had been seen at the Esso gas station located at Drewry Avenue and Bathurst Avenue. When the team set up covert surveillance there, she saw Mr. Shengelia, recognising him from his arrest photos. During this particular assignment, she supervised the team whilst conducting observations. Mr. Shengelia was driving a silver Mercedes which was driven to a plaza at Bathurst and Rutherford, then travelling to the T2 Lounge at Whitmore and Wings Road.

[15] Detective Turner detailed six more occasions that she had an opportunity to observe Mr. Shengelia. They are as follows:

• 4 September 2013 - Detective Turner saw Mr. Shengelia at the same Esso station at Drewry and Bathurst and followed him from 7.40 pm to 7.45 pm. She watched him from a distance and the closest she got was approximately 40-50 feet. Mr. Shengelia was in her sightline for approximately five minutes.

• 26 April 2014 - Detective Turner saw Mr. Shengelia’s black BMW parked at 755 Steeles Avenue West. Waiting at the scene, Detective Turner saw Mr. Shengelia come out of the apartment building and move the car. Detective Turner was approximately 40 feet away and saw Mr. Shengelia for about one to two minutes.

• 23 October 2014 - At the rear parking lot in a building situated at Steeles Avenue West, Detective Turner saw Mr. Shengelia in the front passenger seat of a silver BMW. He exited the car and walked to the front of the building. Detective Turner’s distance on this occasion was approximately 10 feet away.

• 23 October 2015 - Detective Turner saw what appeared to be a silhouette of Mr. Shengelia seated in the rear passenger seat of a Honda Odyssey at front doors of 6030 Bathurst Street. She claimed to recognise him because he had a distinctive nose that appears to hook from the end. Following the van, she saw Mr. Shengelia exit the vehicle and enter a restaurant in a plaza. Detective Turner saw Mr. Shengelia emerge from the establishment to take smoking breaks on a “few occasions”. Later, she saw Mr. Shengelia enter another car at an Esso gas station at Bathurst and Drewry. The closest Detective Turner came to Mr. Shengelia was 30-40 feet but she observed him for around 10-15 minutes.

• 27 October 2015 - Detective Turner saw Mr. Shengelia enter a car in front of 6030 Bathurst Street to go to a convenience store. She saw him enter the store and return to the car. She kept a distance away from Mr. Shengelia to maintain secrecy but got as close as 10 feet whereas other observations were made approximately 40 feet away. She saw him, in total, for approximately 30 seconds.

• 28 October 2015 - Detective Turner conducted surveillance on Mr. Shengelia for a total of eight hours although Mr. Shengelia was only in her sightline for no more than two minutes

[16] In total, Detective Turner saw Mr. Shengelia on seven discrete occasions, all of which involved following him as a suspect under investigation. At times, she was as close as 10 feet and observed him for varying time periods, some as short as 20 seconds, others as long as 10-15 minutes.

[17] In my view Detective Turner’s proposed evidence satisfies the Leaney/Brown test. She was sufficiently familiar with Mr. Shengelia on 15 November 2015, having seen him on several occasions. Those occasions were not mere chance but surveillance operations where the officer had every reason to ensure that he was who he was since he was to be kept under observation whenever possible. Put simply, it was her job to recognise him and make sure that she kept her eyes on him when in view.

[18] Nor was Mr. Shengelia far from her thoughts or recollection. He was under investigation and Detective Turner testified to keeping his photo on her office wall.

[19] Moreover, even though it was not required for threshold admissibility, Detective Turner was able to identify unique features that could assist in identifying Mr. Shengelia such as his hooked nose and his larger bottom lip.

[20] As a result, I am satisfied that Detective Turner is in a better position that the trier of fact to identify Mr. Shengelia and her evidence is admissible.

S.A.Q. Akhtar J.

Released: 16 May 2018

COURT FILE NO.: CR-18-50000205-0000

DATE: 20180516

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NAOMI SHENGELIA

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

R. v. Shengelia, 2018 ONSC 3030

Case Summary

FACTUAL BACKGROUND AND OVERVIEW

Introduction

Legal Principles

Is Detective Turner’s Opinion Admissible?

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1