Court File and Parties

COURT FILE NO.: CR-19-50000522-0000 DATE: 2020-12-04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

ZAYD CHAUDHRY

Counsel: Aaron Del Rizzo, Jim Cruess and David Reznikov, for the Crown Magda Wyszomierska and Charles Lamy, for Zayd Chaudhry

HEARD: October 27 & 28, 2020

By virtue of s. 648(1) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury hearing this trial retires to consider its verdict.

M. Dambrot J.:

[1] This ruling concerns the admissibility of recognition evidence. Specifically, the Crown seeks permission to call five witnesses to identify an individual captured on video surveillance as Zayad Chaudhry on the basis of the prior acquaintance each witness had with Mr. Chaudhry.

BACKGROUND

[2] Zayd Chaudhry is being tried by me with a jury on an indictment alleging that he committed the first degree murder of Abdulkadir Bihi. On Thursday, October 5, 2017, Mr. Bihi was parked in a Volkswagen Jetta in a parking lot outside 263 Dixon Road in Toronto. A lone gunman emerged from a forested area near the lot, approached Mr. Bihi, and shot him multiple times, killing him. The shooting was captured by video surveillance, but that footage is not of sufficient quality to identify the shooter. The Crown alleges that other evidence will establish that Mr. Chaudhry was the shooter.

[3] Following the shooting, the shooter and another male entered a taxi waiting on Dixon Road. A third male was in the taxi. The driver of the taxi drove the three men to the area of 55 Speers Road, a multistory apartment building in Oakville, and dropped them off at about 3:25 p.m. Surveillance video from the buildings in the area shows the three males entering 55 Speers a few minutes later. At approximately 3:30 p.m., the three men were captured by video at the elevator bay of the apartment building waiting for and then entering an elevator. At approximately 6:30 p.m. the same day three men, whom the Crown alleges were the same three men as had arrived in the taxi, were captured by video emerging from an elevator. Unit 1108 at 55 Speers Road is leased to Mr. Chaudhry.

[4] The Crown alleges that the three men who arrived at 55 Speers Road by taxi at 3:25 p.m. were Mr. Chaudhry, Zakariye Ali, and Faysal Omar, and seeks leave to call seven witnesses to identify them on the surveillance video. The Crown argues that each of these witnesses has a relationship with the person they seek to identify that places them in a better position than the trier of fact to identify that person. More specifically, the Crown applies to have Nagat Ali and Hodan Ahmed identify Mr. Ali, who is now deceased, and Constable Ammar Khan, Eri Guxholli, Sandip Randhawa, Gabean Satgunarajah and Kashif Yunus identify the accused.

[5] The accused concedes that Nagat Ali, who was the sister of Mr. Ali, and Hodan Ahmed, who was the mother of Mr. Ali, meet the threshold test for admissibility for recognition evidence of their family member. He argues that the other five witnesses do not.

THE LAW

[6] The law that I must apply to this issue is not in dispute. Recognition evidence that consists of a witness identifying an individual said to be the accused depicted in an image before the court is non-expert opinion evidence and is therefore presumptively inadmissible (R. v. Leaney, 1989 28 (SCC), [1989] 2 S.C.R. 393, 50 C.C.C. (3d) 289.) As Rosenberg J.A. stated in R. v. Brown (2006), 2006 42683 (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.), however, "this 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." If this test is not met, then the probative value of the evidence will be outweighed by the prejudice that might be caused by its introduction at trial.

[7] The "prior acquaintance" branch of the test requires the trial judge, on a voir dire, to sort out whether the potential witness is sufficiently familiar with the person sought to be identified to have "some basis" for the opinion – or "an articulated basis", as some have said (R. v. Berhe, 2012 ONCA 716, 133 O.R. (3d) 137 at para. 21.) A recognition witness is not required, however, to point to any uniquely identifiable features of the person depicted or identify any form of idiosyncrasy that differentiates that individual from the general population for the test for threshold reliability to be met. Such concerns are better resolved in determining the ultimate reliability of the evidence (Berhe at para. 22, and R. v. MB, 2017 ONCA 653, 356 C.C.C. (3d) 234 at paras. 36 – 37.)

[8] The "better position" branch of the test requires the trial judge to determine if the proposed witness has some advantage over the trier of fact that can shed some light on the evidence. Considerations include having seen the accused closer in time to the date of the offence, the accused having changed his appearance since the date of the offence, the witness having seen the accused up close and the witness having had the opportunity to engage with the accused (see Brown, Berhe and R. v. Gouveia, [2013] O.J. No. 3373 (S.C.))

THE RECOGNITION WITNESSES

[9] I begin by placing the evidence of the proposed recognition witnesses in context.

[10] I have said that following the shooting, a taxi driver drove the shooter and two other men from the area of the shooting to the area of an apartment building at 55 Speers Road in Oakville, and that surveillance video shows the three men entering 55 Speers a few minutes later. The sister and mother of Mr. Ali will testify that he was one of the three men seen entering the building in this video. As I have said, the accused concedes that their evidence is admissible.

[11] Moments later, the three men can be seen in surveillance video ("the 3:30 video") waiting for an elevator at the elevator bay of the building and then entering an elevator together. The same two witnesses will testify that Mr. Ali is one of the three men in this video as well. Eri Guxholli will testify that Mr. Chaudhry was also in the 3:30 elevator bay video.

[12] At approximately 6:30 p.m. the same day, three men were captured by video emerging from an elevator ("the 6:30 video"). The Crown alleges they were the same three men as were seen in the 3:30 video. One of the men in the 6:30 video appears to be wearing the same hat and pants as the man identified as Mr. Chaudhry in the 3:30 video. Mr. Guxholli will again identify this man as Mr. Chaudhry, as will P.C. Ammar Khan, Sandip Randhawa, Gabean Satgunarajah and Kashif Yunus.

[13] I turn next to a description of the evidence of the five recognition witnesses in issue.

Constable Ammar Khan

[14] P.C. Khan was in the Somalian Liaison Unit of the Toronto Police Service, based in the Dixon Road and Islington Road area, from January 2013 to March 2016. In that role, he met and saw Mr. Chaudhry between 50 and 100 times while patrolling the neighbourhood, attending Islamic conferences, attending the mosque, and through a basketball league in which both P.C. Khan and Mr. Chaudhry participated.

[15] P.C. Khan coached a basketball team as part of a program for youth in the community. Mr. Chaudhry was a member of another team in the same basketball league, and P.C. Khan's team played against Mr. Chaudhry and his team nearly every Saturday for 6 to 8 months. P.C. Khan also saw Mr. Chaudhry at the mosque on a weekly basis when attending regular prayers. Furthermore, P.C. Khan often saw Mr. Chaudhry at the basketball court on Dixon Road when patrolling the area, as well as at some Islamic conferences. P.C. Khan spoke with Mr. Chaudhry many times when he saw him in the community.

Eri Guxholli

[16] Eri Guxholli was a security supervisor at the apartment buildings at 320, 330, and 340 Dixon Road from 2014 to January 2017. He worked at these buildings full time from January 2016 to January 2017, and on and off in the earlier period. He met and interacted with Mr. Chaudhry through his duties as a security supervisor there. Mr. Guxholli testified that while Mr. Chaudhry did not live in the buildings, he hung around with people from the area.

[17] Mr. Guxholli recalled specific encounters he had with Mr. Chaudhry, whom he described as a frequent visitor to the area. On one occasion, he found Mr. Chaudhry loitering in a stairwell in 320 Dixon Road with a group of six or seven individuals. Mr. Guxholli had received complaints about these people. He asked Mr. Chaudhry to leave and escorted him off the property. On a second occasion, he had a similar encounter with Mr. Chaudhry, who was with a group of friends in the parking lot to the north of 330 Dixon Road. Mr. Guxholli had seen Mr. Chaudhry in the area on eight to ten other occasions and knew his name and who he was. His encounters with Mr. Chaudhry were brief.

[18] With respect to the 3:30 video, Mr. Guxholli said that he could not see Mr. Chaudhry's face because he was concealing it, but recognized him by his demeanour, extended chin, beard and manner of walking. He was 70% sure that the man was Mr. Chaudhry. In the 6:30 video, he was able to recognize Mr. Chaudhry's face. This time, he was 100% sure it was Mr. Chaudhry.

Sandip Randhawa

[19] Mr. Randhawa worked as a security guard at 320, 330, and 340 Dixon full time from August 2015 to January 2017. His duties included preventing illegal activities on the premises. He knew Mr. Chaudhry through this work, and explained that although Mr. Chaudhry was not a resident, he would often see Mr. Chaudhry loitering in the buildings or in the courtyard. He said that he saw Mr. Chaudhry eight or nine times and had four or five encounters with him. He last saw Mr. Chaudhry in perhaps November 2016. Mr. Chaudhry stood out to him because he was East Indian, while most of the people at the Dixon apartments were Somalian. He was particularly easy to recognize because he had a long beard and long curly hair at the time.

[20] Mr. Randhawa first met Mr. Chaudhry around August 2015, when, while doing a routine patrol, he found him smoking in an underground staircase in one of the apartment garages with probably three to four friends. Mr. Randhawa told Mr. Chaudhry that he was engaged in prohibited activity and walked him out. They had a bit of a back and forth discussion, but Mr. Chaudhry was compliant. Mr. Randhawa was with Mr. Chaudhry for about five minutes. Mr. Chaudhry did not identify himself on that occasion, but Mr. Randhawa came to know his name in the course of three or four additional encounters. One of his colleagues "trespassed" Mr. Chaudhry, meaning they issued him a trespass notice. Trespass notices were left on a desk for all to see. Mr. Chaudhry's notice, which Mr. Randhawa had seen, included his name, his date of birth, his description and a summary of the encounter.

[21] Mr. Randhawa described another encounter with Mr. Chaudhry in mid-2016. He recalled that Mr. Chaudhry was with someone Mr. Randhawa knew as Olad Olad on that occasion. When he was asked to leave the premises while others were not, Mr. Chaudhry accused the security staff of harassing him. There was more back and forth on that occasion, but when Mr. Chaudhry was told that he had already been trespassed and was arrestable, he stormed off. This encounter lasted about five to seven minutes.

[22] When Mr. Randhawa first identified Mr. Chaudhry, he knew he was being asked about the video because of his work at the Dixon Road apartments, but nothing more.

Gabean Satgunarajah

[23] Mr. Satgunarajah also worked full time as a uniformed security guard at the Dixon Road apartments, in his case from 2015 to 2019. He saw Mr. Chaudhry in the course of his work on at least ten occasions in a span of approximately six months. The year in which this occurred was unclear, but was most likely 2016. He found Mr. Chaudhry loitering in the stairwells with his friends on several occasions. The first occasion was in a stairwell in 320 Dixon, he thought perhaps in the winter of 2016. Mr. Chaudhry was with a group of eight to ten friends, listening to music, loitering and smoking marihuana. Mr. Satgunarajah did not know Mr. Chaudhry's name at this time but came to know it later because he had been trespassed. The friends included Olad Olad and the three Jama brothers. Mr. Satgunarajah explained that he was there because of complaints about people hanging out in the stairwells and told the group to "take it outside." Mr. Chaudhry and his friends did not respond, but after a ten-minute discussion, they left. Mr. Satgunarajah followed them to the rear doors of 340 Dixon Road and escorted them out to the street. Mr. Satgunarajah told Mr. Chaudhry not to be found in the common areas of the building in the future.

[24] Mr. Satgunarajah next saw Mr. Chaudhry entering the convenience store at 330 Dixon Road with friends to buy cigarettes and drinks. He had no interaction with Mr. Chaudhry on this occasion.

[25] In the course of his remaining encounters with Mr. Chaudhry, Mr. Satgunarajah trespassed him approximately three times, once in writing and the remining times verbally. On two of those occasions Mr. Chaudhry was with his friends in the same stairwell as the first encounter despite Mr. Satgunarajah's earlier admonition. Each time he was asked to leave, and he did so after some discussion.

[26] The third time Mr. Satgunarajah trespassed Mr. Chaudhry was during the winter, on the ramp onto Dixon Road between 330 and 340 Dixon Road. Mr. Chaudhry was with a group of about three friends who had their hoodies up. He recalled that Mr. Chaudhry was wearing his grey jacket. He described it as a heather or lighter grey with fur trim on the hood. He thought it was a Northface parka. Mr. Satgunarajah asked Mr. Chaudhry to leave. Mr. Satgunarajah said that he looked at Mr. Chaudhry and Mr. Chaudhry looked at him. He called Mr. Chaudhry to the side, spoke to him politely and asked him to leave. Mr. Chaudhry nodded and said, "[o]kay bro" and left.

[27] Mr. Satgunarajah saw Mr. Chaudhry a number of other times from a distance. He recounted one occasion in which Mr. Chaudhry made a gun gesture towards him with his right hand as he was entering the property. Mr. Satgunarajah did not take this as a threat.

[28] When Mr. Satgunarajah came to the police station to see the video, he knew that it related to Dixon Road, but didn't know it related to a shooting. He did discuss whom he had identified in the video with some of his colleagues after they had made their identification.

Kashif Yunus

[29] Mr. Yunus worked full time as a uniformed security guard at 320, 330, 340, 370, 380, and 390 Dixon Road for seven years, and specifically at the 320-330-340 complex from March 2014 to July 2017. His duties included patrolling the complex, garage, stairs, courtyard and common elements, issuing parking tickets, responding to noise complaints and suspicious activities and enforcing the Trespass to Property Act. He actually met Mr. Chaudhry four times that he could recall through his work as a security guard, and frequently saw him visiting 320 Dixon. Mr. Yunus testified that the community at 320-330-340 Dixon Road was mostly Somali, and there were not a lot of "Pakistani" tenants. The 370 complex was more diverse.

[30] Mr. Yunus first met Mr. Chaudhry in 2015 in the lobby. He knew that Mr. Chaudhry did not live in the building and was not visiting anyone on the property, so he approached him and asked him why he was there. Mr. Chaudhry replied that he was waiting for a friend. When Mr. Yunus asked who, he shrugged his shoulders and refused to say. Mr. Yunus told him that if he would not say he would have to leave, and Mr. Chaudhry complied. Mr. Yunus followed him to ensure he left the property. This interaction took about four minutes.

[31] In the summer of 2016, Mr. Yunus encountered Mr. Chaudhry a second time. On this occasion Mr. Chaudhry was loitering in the underground parking lot with Olad Olad, who lived on the first floor in 320 Dixon Road. It was on this occasion that Mr. Yunus learned Mr. Chaudhry's name. Mr. Yunus told Mr. Chaudhry that he was not allowed to be there and gave him a written trespass notice. Mr. Yunus was carrying a book similar to a parking ticket book in which he recorded Mr. Chaudhry's first and last name and the place, date and time of the trespass. He asked Mr. Chaudhry to sign the notice, and then gave one copy to him, and kept the other for building management. He told Mr. Chaudhry that he could contest the notice. Mr. Chaudhry complied with the notice and left. Mr. Yunus accompanied him up the ramp, out the garage door, and off the property. This interaction took from 10 to 15 minutes.

[32] Two or three weeks later, Mr. Yunus encountered Mr. Chaudhry along with Olad Olad and others in a stairwell on the property. Mr. Yunus spoke to Mr. Chaudhry, reminded him that he was not allowed on the property as a result of the previous trespass notice, gave him another written trespass notice, told him that he could be arrested and directed him off the property. Mr. Chaudhry nodded and left.

[33] In the summer of 2016, Mr. Yunus approached Mr. Chaudhry in the courtyard of the Dixon buildings. Mr. Chaudhry was hanging out with two other men that Mr. Yunus did not know. Mr. Yunus verbally trespassed him because he didn't have his book. He told Mr. Chaudhry to leave, and Mr. Chaudhry complied. This encounter took about five minutes.

[34] When Mr. Yunus was shown the video by the police, he said that his beard and curly hair stood out, as well as the way he carried himself when he walked. Prior to coming to the station, Mr. Yunus did not know what the purpose of his attendance was other than that he was going to see pictures.

ANALYSIS

[35] I have already discussed the test for the admission of recognition evidence. In summary:

1. The proposed witness must be sufficiently familiar with the person sought to be identified to have "some basis" for the opinion; and

2. The proposed witness must have some advantage over the trier of fact that can shed some light on the evidence.

[36] Undoubtedly, each of the proposed witnesses has a prior acquaintance with the accused. Nevertheless, the accused challenges the admissibility of the proposed evidence of each of them. I will consider each witness in turn.

Constable Ammar Khan

[37] Counsel for Mr. Chaudhry concedes that Constable Khan meets the prior acquaintance test. She argues, however, that after seeing the accused in court each day throughout the trial, the jury will be in as good a position as Constable Khan to reach a conclusion about the identification of the man in the video. Further, she says that the evidence of Officer Khan should be excluded on the basis that its prejudicial effect outweighs its probative value. The basis for this argument is that prior to the identification procedure being conducted the officer knew that he was going to be questioned about the Bihi homicide, which he was familiar with because it took place in 23 Division where he was employed. He also knew that Mr. Chaudhry was one of the people who had been arrested for it. Finally, when he saw the video, he assumed the people depicted in it were from the Dixon area, since that was where he worked.

[38] In my view, Constable Khan easily satisfies the better position branch of the test. He has a longstanding acquaintance with Mr. Chaudhry. He saw him a great many times in a variety of contexts and spoke to him often. Such a relationship places him in a better position than the trier of fact to identify Mr. Chaudhry. To exclude his evidence on this branch of the test would effectively be ruling that only immediate family and very close friends can ever give recognition evidence. The jurisprudence conclusively points in a different direction.

[39] As for the suggestion that Constable Khan's evidence is so tainted by his assumptions concerning the investigation that his evidence should be excluded, I am unable to accept it. This is not a case where an inappropriate identification procedure was undertaken by the police. There is nothing about the procedure that renders the evidence of Constable Khan wholly unreliable or worthless, or that would render the trial unfair. The jury will be instructed about the dangers of identification evidence, and the specific concerns that have been raised about Constable Khan's evidence. I will not exclude it.

Eri Guxholli

[40] It will be recalled that Mr. Guxholli's evidence relates to both the 3:30 video and the 6:30 video. With respect to the 3:30 video, counsel for the accused says that it is not an identification at all, and accordingly is inadmissible. With respect to both videos, she submits that Mr. Guxholli's evidence falls short on both branches of the test, and that it should also be excluded because its prejudicial effect outweighs its probative value.

[41] I begin with the argument that Mr. Guxholli's evidence with respect to the 3:30 video is not an identification at all, and accordingly is inadmissible. This argument is grounded on Mr. Guxholli's testimony that based on the demeanour of the man in the video, his extended chin, his beard and his manner of walking, he was 70% sure that the man was Mr. Chaudhry. While his uncertainty is undoubtedly a consideration for the jury when they assess the weight of this evidence, it does not render the evidence inadmissible. The caselaw is replete with identification evidence where the witness is less than certain about identity. Indeed, we regularly instruct juries that there is little connection between the great confidence of the witness in the correctness of his or her identification and the accuracy of the identification. Even a very confident witness may be honestly mistaken or entirely wrong about his or her identification evidence.

[42] In R. v. Frimpong, 2013 ONCA 243, 1 C.R. (7th) 242, the conviction of the appellant for first degree murder rested on the identification evidence of one Chammas, who was an eyewitness to a shooting resulting in death, and a body of circumstantial evidence. When Chammas was shown a photo lineup by the police three days after the shooting, he paused at a photo of the accused and said that he was similar to the shooter, except that the person in the photo had facial hair and bigger lips. I note that there was evidence that the accused always had facial hair. The witness also paused at the photo of another man and said that he was not sure. The witness was shown a second lineup five days later. After looking at the accused's photo for twelve minutes, he said he thought that he was the shooter despite the facial hair, based on the shape of the face, the eyes and the nose. After he saw all of the photos, he said that he was 100% sure that he was the shooter. The appellant asked the trial judge to exclude the eyewitness testimony of Chammas because its prejudicial effect outweighed its probative value. The trial judge refused to do so.

[43] On appeal, the court observed that a trial judge can exclude evidence offered by the Crown where the prejudicial effect of the evidence outweighs its probative value and explained that evidence is prejudicial in the relevant sense if it threatens the fairness of the trial. The court continued, at paras. 18 – 21:

Evidence may be prejudicial if it cannot be adequately tested and challenged through cross-examination and the other means available in the adversarial process. Evidence may also be prejudicial if there is a real risk that the jury will misuse the evidence (e.g. propensity evidence), or be unable to properly assess the evidence regardless of the trial judge's instructions. This latter form of prejudice must, however, overcome the strong presumption that jurors can and do follow the trial judge's instructions.

Chammas' eyewitness evidence could be fully tested by the defence. The entirety of the identification process was fully documented and available to the defence. Both photo line-ups were videotaped and the videotapes were before the jury. All of the witnesses involved in the identification process testified and all of the officers had notes. There was fertile ground for cross-examination and counsel worked that ground to full effect. The alleged weaknesses in Chammas' evidence were fully exposed for the jury's consideration.

There was also nothing peculiar or unique about Chammas' evidence that would impair the jury's ability to fairly assess its credibility and reliability. The assessment of identification evidence can be a difficult and, in some ways, counterintuitive process. That is why special instructions are given to juries to assist in their assessment of identification evidence. The potential problems with Chammas' identification evidence, while numerous, were standard fare for identification evidence cases. Juries, armed with the appropriate instructions, routinely assess that kind of evidence.

It follows from our finding of an absence of prejudice in the relevant sense, that Chammas' identification evidence could not be excluded. Absent prejudice, a trial judge cannot exclude evidence solely on the basis that the judge thinks that the evidence has little probative value.

[44] I take from Frimpong that the identification evidence of a witness who is only 70% certain of his opinion about identity is not deprived of its character as identification evidence and is not therefore excluded. Provided that the accused can adequately test and challenge the evidence, and there is not a real risk that the jury will misuse the evidence or be unable to properly assess the evidence, it is admissible. That is the case here, particularly because this evidence does not carry the weight of the Crown's case. The witness did not observe the shooting, and his evidence is but one piece of circumstantial evidence that the Crown argues points to the accused being the shooter. Absent prejudice, I cannot exclude this evidence solely on the basis that I may think it has little probative value.

[45] I note as well that in R. v. Kish, 2014 ONCA 181, 309 C.C.C. (3d) 101, the court rejected an argument that the trial judge erred in relying on manifestly unreliable identification evidence given by two witnesses, resulting in an unreasonable verdict. One of the witnesses conceded in cross-examination that she may have been interchanging the accused with another person present at the scene and that her recollection may have been influenced by the media. The other witness said that he was "fairly certain" of his identification.

[46] The court stated, at para. 53, that:

I start by noting that it is unhelpful generally in cross-examination to repeat a witnesses' statement to them that had been made in chief and ask if they are "100 percent certain" of that statement. First, it is not necessary for a witness to be "100 percent certain" -- that is not the criminal standard. Secondly, most reasonable persons would usually agree to a possibility they could be wrong or as the saying goes "anything is possible". The trial judge was alive to this, stating in his reasons:

Our reliance on the evidence of any eyewitness also recognizes that an eyewitness does not have to be certain in his or her identification. To the contrary, it is well-recognized that there is a weak link between the certainty of an eyewitness and the accuracy of that witness' evidence: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445 at para. 52. ...

Rather than detracting from their evidence, in my view, their willingness to acknowledge the reality that they might be wrong only serves to enhance the genuineness with which they gave their evidence. Ultimately, it is the trier of fact who must assess the evidence and decide what evidence to act on.

[47] The court went on to say that the trial judge was clear in his reasons that he was very much aware of the frailties of eyewitness evidence, and that it was open to him to accept the evidence of the impugned eyewitnesses.

[48] Similarly, in R. v. Mastin (1991), 1991 1138 (BC CA), 65 C.C.C. (3d) 204, the accused was charged with the armed robbery of a bank. Two bank tellers gave evidence identifying him as the robber at trial. One of the witnesses said he was ninety percent certain that the appellant was the man who had robbed him. The other witness identified the accused as the robber, but adopted her evidence at the preliminary inquiry that she was seventy percent certain that it was him.

[49] On appeal, the court observed that while the evidence of the two tellers required careful scrutiny, "it could hardly be said that it would be unsafe to base a conviction on it." The court went on to say that the trial judge's careful review of the evidence in his charge, together with the other instructions he gave, left the decision where it ultimately belonged: namely, with the jury.

[50] Having regard to these decisions, I can only conclude that this argument must fail.

[51] I turn next to the first branch of the recognition evidence test: the proposed witness must be sufficiently familiar with the person sought to be identified to have "some basis" for the opinion. I will not recount the evidence again. In my view, Mr. Guxholli easily passes the test. He met and interacted with Mr. Chaudhry through his duties as a security supervisor, observed Mr. Chaudhry hanging around the area of the buildings he was responsible for eight to ten times, knew his name and recalled two specific encounters with him in which he spoke with him directly and escorted him off the property.

[52] Next, the second branch of the test: the proposed witness must have some advantage over the trier of fact that can shed some light on the evidence. Such advantages include having seen the accused closer in time to the date of the offence, the accused having changed his appearance since the date of the offence, the witness having seen the accused up close and the witness having had the opportunity to engage with the accused. Mr. Guxholli has each of these advantages. He easily passes this branch of the test as well.

[53] Finally, counsel for the accused argues that the prejudicial effect of Mr. Guxholli's evidence outweighs its probative value. She says that his independence was lost because when the police interviewed him, they told him that the reason he was being approached was his work at the Dixon Road apartments. At worst, this might narrow Mr. Guxholli's consideration of the man in the video to persons he had had contact with in the area of the Dixon apartments, who, I might add, number in the thousands, but it is a very far cry from the police telling the witness who they believed the man in the video to be. In any event, given his responsibilities at the Dixon Road apartments, it is inevitable that Mr. Guxholli would at least suspect that he was being asked to examine a video because of his work at the apartments. All in all, it seems to me that the "tainting" of Mr. Guxholli's evidence, and any prejudice that might flow from it, is marginal at best. It does not come close to outweighing the probative value of the evidence.

[54] I note that even R. v. Miapanoose, 1996 1268 (ON CA), [1996] O.J. No. 3216 (C.A.), the principal case relied upon by the accused in support of this argument, does not support exclusion of the evidence.

[55] In that case, the investigating officer advised the father of the complainant that he had a suspect who may have assaulted his daughter. He arranged for the father to bring the complainant to a particular location for the purpose of viewing the appellant. The complainant accompanied her father as requested and identified the accused as her assailant. It was clear from her testimony that she fully expected to see her assailant at that time.

[56] Unsurprisingly, the Court of Appeal described this as an "inappropriate pretrial identification procedure" that "rendered the complainant's identification of the appellant at the time very dubious and of very little weight." Despite this description, however, the court stated the following at paras. 33 – 34:

The use of inappropriate pretrial identification procedures does not render the subsequent identification inadmissible unless it is the subject-matter of an appropriate and successful application under s. 24(2) of the Charter. But, it is a factor affecting the weight of the evidence. There may be other evidence or other circumstances which serve to otherwise validate the witness's identification.

Here, the trial judge, having rejected the appellant's Charter application, was correct in admitting the evidence and considering it in the ultimate disposition of the case. The judge concluded as follows:

On the evidence, I find that the initial identification was not so tainted by the interpretation or suggestion as to be without weight. There is sufficient collateral supporting description to permit the court to accept the identification of the accused by the complainant.

[57] To paraphrase the court in Frimpong, juries armed with appropriate instructions routinely assess flawed identification evidence. The flaw here, as I have said, and any prejudice that might flow from it, is marginal at best. I will not exclude the recognition evidence of Mr. Guxholli on this basis either. His evidence will be admitted.

Sandip Randhawa

[58] Mr. Randhawa identified Mr. Chaudhry in the 6:30 video. Counsel for the accused argues that his evidence fails both branches of the test for recognition evidence and that it should also be excluded because its prejudicial effect outweighs its probative value.

[59] I begin with the first branch of the recognition evidence test: the proposed witness must be sufficiently familiar with the person sought to be identified to have "some basis" for the opinion. I will not recount the evidence in detail again. It is enough to say that he met and interacted with Mr. Chaudhry through his duties as a security supervisor, observed Mr. Chaudhry loitering in the buildings he was responsible for eight or nine times, had four or five encounters with him, knew his name, explained why Mr. Chaudhry was easy for him to identify and described two specific encounters with him in which he spoke with him directly.

[60] In my view, Mr. Randhawa easily passes the first branch of the test.

[61] Next, the second branch of the test: the proposed witness must have some advantage over the trier of fact that can shed some light on the evidence. Such advantages include having seen the accused closer in time to the date of the offence, the accused having changed his appearance since the date of the offence, the witness having seen the accused up close and the witness having had the opportunity to engage with the accused. Like Mr. Guxholli, Mr. Randhawa has each of these advantages. He easily passes this branch of the test as well.

[62] Finally, I will not exclude the recognition evidence of Mr. Randhawa on the basis that when Mr. Randhawa first identified Mr. Chaudhry, he knew he was being asked about the video because of his work at the Dixon Road apartments, for the same reasons that I did not exclude Mr. Guxholli's evidence on this basis. His evidence will be admitted.

Gabean Satgunarajah

[63] Mr. Satgunarajah identified Mr. Chaudhry in the 6:30 video. Counsel for the accused argues that his evidence fails both branches of the test for recognition evidence and that it should also be excluded because its prejudicial effect outweighs its probative value.

[64] I begin with the first branch of the recognition evidence test: the proposed witness must be sufficiently familiar with the person sought to be identified to have "some basis" for the opinion. I will not recount the evidence in detail again. It is enough to say that he met and interacted with Mr. Chaudhry through his duties as a security guard, saw him at least ten times, found him loitering in the stairwells with his friends on several occasions, trespassed him on three occasions and remembered these encounters in some detail. In my view, Mr. Satgunarajah easily passes the first branch of the test.

[65] Next, the second branch of the test: the proposed witness must have some advantage over the trier of fact that can shed some light on the evidence. Such advantages include having seen the accused closer in time to the date of the offence, the accused having changed his appearance since the date of the offence, the witness having seen the accused up close and the witness having had the opportunity to engage with the accused. Mr. Satgunarajah has each of these advantages except, perhaps, that his encounters with Mr. Chaudhry may have been at a greater distance in time than the other witnesses. Despite this difference, he also easily passes this branch of the test.

[66] Finally, I will not exclude the recognition evidence of Mr. Satgunarajah on the basis that when Mr. Satgunarajah first identified Mr. Chaudhry, he knew he was being asked about the video because of his work at the Dixon Road apartments, for the same reasons that I did not exclude Mr. Guxholli's evidence on this basis. His evidence will be admitted.

Kashif Yunus

[67] Mr. Yunus identified Mr. Chaudhry in the 6:30 video. Counsel for the accused argues that his evidence fails both branches of the test for recognition evidence and that it should also be excluded because its prejudicial effect outweighs its probative value.

[68] I begin with the first branch of the recognition evidence test: the proposed witness must be sufficiently familiar with the person sought to be identified to have "some basis" for the opinion. I will not recount the evidence in detail again. It is enough to say that he met and interacted with Mr. Chaudhry through his duties as a security guard. He actually met Mr. Chaudhry four times that he could recall and frequently saw him visiting 320 Dixon Road. He gave him a written trespass notice twice, verbally trespassed him once and escorted him off the property on at least two of these occasions. He had a specific recollection of several of his encounters with Mr. Chaudhry and recalled details of his conversations with him. In my view, Mr. Yunus easily passes the first branch of the test.

[69] Next, the second branch of the test: the proposed witness must have some advantage over the trier of fact that can shed some light on the evidence. Such advantages include having seen the accused closer in time to the date of the offence, the accused having changed his appearance since the date of the offence, the witness having seen the accused up close and the witness having had the opportunity to engage with the accused. Mr. Yunus has each of these advantages and also easily passes this branch of the test.

[70] Finally, I will not exclude the recognition evidence of Mr. Yunus on the basis that when Mr. Yunus first identified Mr. Chaudhry, he knew he was being asked about the video because of his work at the Dixon Road apartments, for the same reasons that I did not exclude Mr. Guxholli's evidence on this basis. His evidence will be admitted.

DISPOSITION

[71] The Crown's application for leave to adduce the recognition evidence of Nagat Ali, Hodan Ahmed, Constable Ammar Khan, Eri Guxholli, Sandip Randhawa, Gabean Satgunarajah and Kashif Yunus is granted.

[72] I note that there are instances in the evidence of these witnesses where things are said that are arguably prejudicial to the accused and of little or no probative value, and that might properly be excised from the evidence. To the extent that counsel are unable to resolve any concerns of this nature that they may have, they may raise them with me at some convenient time.

M. DAMBROT J.

RELEASED: December 4, 2020

COURT FILE NO.: CR-19-50000522-0000 DATE: 2020-12-04

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

ZAYD CHAUDHRY

REASONS FOR DECISION

DAMBROT J.

RELEASED: December 4, 2020