COURT FILE NO.: CRIM J(P) 156/22 DATE: 2023 08 09

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Crown Devyn Noonan, for the Crown

- and -

JASGEEN SINGH Accused Carolyn Gandy, for the Accused

HEARD: May 29–31, and June 1, 2023

REASONS FOR JUDGMENT Justice Thomas A. Bielby

INTRODUCTION

[1] Initially the Accused was charged with four offences however Counts 1, 2 and 3 were withdrawn by the Crown.

[2] The remaining count (Count 4) reads:

That he, on or about the 8th day of June, 2021, at the City of Brampton, in the Central West Region, did rob Aditya Gupta, contrary to section 344 of the Criminal Code of Canada.

EVIDENCE

[3] On the morning of June 8, 2023, Aditya Gupta (Gupta) drove from Belleville to Brampton. Accompanying him was his friend Bhawana. Gupta was the owner/operator of a black 2002 Honda Accord motor vehicle (the vehicle), bearing Ontario licence plate number CPWB 845.

[4] At approximately 10:30 a.m., Gupta pulled into an Esso gas station located at the intersection of Airport Road and Steeles Avenue, in the City of Brampton. Gupta parked his vehicle in front of the store and went into the store, leaving Bhawana in the front passenger seat. The vehicle was left unlocked and Gupta left in the vehicle, his wallet containing his credit cards, his passport, cash ($1,000), his cell phone and his key fob to the car.

[5] At 10:36 a.m., a male got into the driver’s seat of the vehicle and drove away with the vehicle. When Gupta came out of the store, his car and Bhawana were missing. He had no idea who “car-jacked” his vehicle and in which direction it was driven.

[6] Gupta was initially unsure of what to do, but using another customer’s cell phone, he attempted to call is own cell phone but there was no response.

[7] A few minutes later, Gupta observed Bhawana walking towards the gas station. The police had been notified and upon arriving at the gas station, took statements from Gupta and Bhawana.

[8] At some point thereafter, Gupta and Bhawana were advised by the police that the vehicle had been located and they were driven to the parking lot adjacent to an apartment building, on Morning Star Drive in Brampton. The police returned Gupta’s key fob and he and Bhawana retook possession of the vehicle and drove the vehicle back to Belleville.

[9] Exhibit 1 in this trial is a surveillance video from the gas station. As noted above, it shows Gupta parking his vehicle in front of the gas station at 10:35 a.m. It shows Gupta entering the building. Shortly thereafter, the video shows a male wearing a surgical mask, a dark T-shirt, beige or white shorts and grey shoes with white soles. The male could be seen opening the driver’s door and driving the vehicle away from the gas station, with Bhawana in the front passenger seat.

[10] Bhawana testified that when Gupta went in to use the washroom she remained in the car. She could not recall if the vehicle remained running. Regardless, a male stranger got into the driver’s seat and yelled at her to get out. Bhawana was not sure what was happening or what to do. She remained in the car.

[11] Bhawana described the stranger as brown, 20-22 years of age, black hair, with a medium build and five feet, five or six inches in height. He was wearing a navy blue T-shirt and a light blue disposable face mask. She could not remember anything else. She was unable to identify the Accused as the male who took the vehicle, stating that she never saw the face of the carjacker because he was masked.

[12] As the vehicle was driving away, Bhawana utilized her cell phone and attempted to call 911. As a result, a struggle for possession of the phone ensued between the carjacker and Bhawana. She testified that she believed the call had already connected with the police who were trying to call her back. During the struggle the male kept yelling, “get out of the car”.

[13] Bhawana testified that during the struggle over her cell phone, the phone struck her on the left side of her head. From his facial expression she believed the male intended on hitting her.

[14] Shortly thereafter the male pulled the vehicle to the side of the road and although Bhawana was attempting to get out of the vehicle, the male pushed her with his hand in an effort to remove her from the vehicle. After exiting the car, Bhawana made contact with the police via her cell phone and started walking back to the gas station.

[15] At trial, Bhawana was able to confirm that the carjacker identified the male in the video (wearing a dark T-shirt and light-coloured shorts), as the male who took the vehicle (10:36:48).

[16] The evidence set out above is not contentious. The Accused does not contest the fact that Gupta’s car was stolen with Bhawana still inside the car. The real issue in this trial is identification. Can the Crown prove beyond a reasonable doubt that it was the Accused, wearing a blue T-shirt and light-coloured shorts who car-jacked the vehicle?

[17] Carjacking is a crime investigated by the Peel Police Central Robbery Bureau. On the morning of June 8, 2023, at 11:17 a.m., Police Constable Farrow of the Bureau, while operating an unmarked police car at 10:49 a.m., was advised via her police radio of the carjacking and provided with a description of the vehicle, a black Honda, the licence plate number (Ontario CPWB 845) and a description of the suspect. The suspect was described as male, Indian, 23, medium build, and wearing a blue T-shirt and white shorts. Officer Farrow, immediately attended at the area where the incident occurred and started driving around in an effort to locate the vehicle.

[18] Officer Farrow first observed the vehicle at the intersection of Goreway Rd. and Morningstar Dr. As the vehicle was turning on to Morningstar Dr., all the officer could see were the last 3 numbers of the licence plate, 845.

[19] In the direction travelled by the vehicle on Morningstar Dr., the road empties into a parking lot for the apartment building municipally known as 3520 Morningstar Dr., Brampton. Officer Farrow lost sight of the vehicle for a brief time after the vehicle had turned into Morningstar Dr. but reacquired it upon her entering the parking lot a short time later. The vehicle was parked in the visitors’ area of the lot. The officer was able to confirm that the full licence plate number was a match for the stolen vehicle.

[20] Upon her arrival Officer Farrow was able to observe three males in the process of getting out of the vehicle. Two of them appeared to have exited on the passenger side of the vehicle and the third male was closing the driver’s door of the vehicle. The male on the driver’s side was described by the officer as South Asian, over 20 years of age, wearing a blue crew neck T-shirt with buttons at the neck, beige or khaki coloured shorts. The officer testified that this description matched the description of the carjacking suspect as described over the police radio.

[21] Officer Farrow kept her eyes on the three males, who were walking eastbound in the direction of the Westwood Mall. Upon reaching the mall, the three males met up with other South Asian males.

[22] Officer Henderson, a member of the Central Robbery Bureau of the Peel Police, assisted Officer Farrow with the surveillance. He was operating an unmarked police car and was parked in a gas station in the vicinity of the Mall. Once the three males left the apartment building parking lot, he was able to keep them under observation.

[23] An arrest plan was formulated between Officers Farrow and Henderson and as the Accused walked out of the Mall, at 11:35 a.m., he was arrested. Officer Farrow testified that the male arrested was the same male she saw closing the driver’s door of the vehicle in the parking lot. Further, by the time of the arrest, the officers had been provided with a photo of the carjacker, taken from a frame of the Esso video (Ex. 1). The male arrested was a match for the male in the photo.

[24] Initially, the male arrested was identified as Jaspreet Singh. Sometime later the male suspect who was arrested was properly identified as the Accused, Jasgeen Singh.

[25] Upon his arrest, the suspect was searched, incidental to arrest, and a Honda key fob was located.

[26] Exhibit 2 contains surveillance video of the parking lot of the apartment building and surrounding areas. At 11:19:53 a.m., Officer Farrow can be observed entering the parking lot and approaching the vehicle in issue, to confirm the full licence plate number. As noted above, the three males can be seen leaving the vehicle and walking in an easterly direction. Officer Farrow testified that for a short period of time she lost sight of the males however, Officer Henderson had them under observation.

[27] Under cross-examination Officer Farrow agreed that when she had the three males under observation as they left the apartment building parking lot, she did not have the photo and was only working with a description. She testified that the male in the photo matched the description received over the radio. Officer Farrow could not say how or when the other two males came to be in the vehicle.

[28] Peel Police Officer Steven Lord, in 2021, was with the Central Robbery Bureau and shortly after 10:49 a.m. became aware of the carjacking. The description of the suspect he received was that of a male, Indian, 23 years old, 5 feet, 7 inches tall, with a medium build, and wearing a blue shirt and shorts.

[29] Officer Lord drove to the Mall to assist. By this time, he was in possession of the picture of the carjacker and testified it matched the description of the male arrested by Farrow and Henderson, adding that the blue T-shirt had a beige strip.

[30] Officer Lord received information that the male arrested was being redirected to the Brampton Civic Hospital and attended at the hospital. Exhibit 3 are copies of photographs taken by Lord of the male who had been arrested wearing a blue shirt and light-coloured shorts.

[31] The preliminary hearing was held in March 2022, and Officer Lord was in attendance. He testified that, while at the preliminary hearing, he observed the accused wearing the same T-shirt as he was observed wearing at the time of his arrest.

[32] Peel Police Officer Jake Henderson, member of the Robbery Bureau, confirmed that he heard the same information over the police radio, including the description of the carjacker.

[33] After being advised of the vehicle being located, Officer Henderson went to the area and observed the three males in the area of the Mall. He observed a male in a blue shirt and white shorts. He testified that said male was the same as the person in the photo taken from the surveillance video. He further testified that none of the other males under observation matched the description or the photo.

[34] Officer Henderson testified that when at the scene of the arrest, he asked the male arrested to verbally identify himself and came to the belief that the male’s name was Jaspreet Singh. It was only after a uniformed officer arrived that he learned the male’s name was Jasgeen Singh. Later, back at the police station (at 1:24 p.m.), Officer Henderson was able to confirm the identification of the Accused.

[35] Officer Henderson testified that during the search of the Accused incidental to his arrest, a Honda key fob was discovered in the suspect’s right front pocket of his shorts. Subsequent to the arrest of the Accused and his transport to the police station, Officer Henderson went to the parking lot where the vehicle was located and determined that the fob was that of the vehicle. He was able to use the fob to lock and unlock the doors of the vehicle.

[36] Officer Henderson was also involved in the search of the vehicle and located Gupta’s personal property. He also was able to confirm the licence plates on the vehicle were registered to Gupta.

SUBMISSIONS AND THE LAW

[37] Jasgeen Singh is charged, further to s. 343 (a) of the Criminal Code of Canada which reads:

Every one commits robbery who steals and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property.

Every one commits robbery who (a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;

[38] Section 322 (1)(a) of the Code states:

Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent (a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

[39] It is submitted by the Crown and not challenged by the Accused that the victim of the violence or threat of violence does not have to be the owner of the property stolen.

[40] The Crown submits that on June 8, 2021, the Accused stole Aditya Gupta’s black 2002 Honda Accord motor vehicle, bearing Ontario licence plate number CPWB 845. It is alleged that in doing so he assaulted Bhawana who was a passenger in the vehicle. The acts of violence included the struggle for the cell phone, the fact that during the struggle, Bhawana was struck in the head with the cell phone and by Bhawana being physically pushed out of the vehicle. The violence was the result of the Accused attempting to overcome Bhawana’s resistance to his theft of the vehicle and it is submitted, occurred contemporaneously to the act of stealing.

[41] The Crown submits that the violence component of the charge of robbery does not require proof of bodily harm. A simple assault, that is the application of force without consent, would satisfy a finding of the use of violence (R. v. Trudel, at pg. 346).

[42] The Crown submits that the only real issue is whether the Crown has proven, beyond a reasonable doubt, that the Accused was the person who committed the robbery. On that point, the Crown submits the evidence is overwhelming.

[43] Counsel for the Accused submits that in order to establish the element of violence, the Crown needs to establish that the carjacker intended to hit Bhawana in the face with the phone. The only evidence Bhawana gave in regard to intent, is the look on the carjacker’s face.

[44] Counsel for the Accused challenges the issue of identification, arguing the Crown has failed, beyond a reasonable doubt, to prove that it was the Accused who stole the vehicle.

[45] The Defence concedes that an individual wearing a blue shirt and khaki or white shorts was responsible for taking the vehicle but submits that the Crown has failed to prove beyond a reasonable doubt that the Accused is in fact, the same person. The Crown has failed to prove that the Accused was the person shown in the video (Ex. 1) stealing the car.

[46] Counsel for the Accused relies on the fact that when the Accused was originally arrested, he was wrongly identified as Jaspreet Singh.

[47] The Defence also relies on the fact that Bhawana was unable to identify the Accused in court as the male who perpetrated the crime. When in the vehicle with her, the carjacker was wearing a surgical mask. She never saw his face.

[48] Further, it is submitted that Bhawana was never asked to participate in a photo lineup nor was the vehicle tested for fingerprints. The police after the arrest, simply allowed the owner to retake possession of the vehicle and drive home.

[49] The Defence submitted that the description of the clothing worn by the perpetrator lacked any unique or distinctive qualities (see R. v. Hebert, 2016 ONSC 994).

[50] Regarding the alleged acts of violence, the Accused submits that the evidence falls short of proving the element of violence. The only witness regarding the element of violence was the alleged victim, Bhawana who was short on details and could not even confirm if her initial 911 attempted call was successful.

[51] Further it was submitted that the offence as charged does not include the identity of the victim of the violence. It is also submitted by the Accused that the theft must be in progress when the violence occurs to support a charge of robbery. Counsel for the Accused submits that the violence in issue occurred after the crime of theft was concluded and as a result, cannot be used as the essential element of violence required to commit a robbery.

ANALYSIS

IDENTIFICATION

[52] I have had regard to the Court of Appeal decision in R. v. F. A., 2004 ONCA 10491 and from paragraph 39, I quote,

The inherent frailties of eyewitness identification evidence are well-established and have frequently been commented upon by appellate courts. These frailties can lead to wrongful convictions, even in cases where multiple witnesses have identified the same accused. For that reason, it is essential that identification evidence be subject to appropriate scrutiny, especially where, as here, no confirmatory evidence exists that is capable of minimizing the inherent dangers of the eyewitness identification of the accused.

(see also R. v. Goran, [2008] O. J. No. 2069).

[53] Discrepancies in descriptions are also to be considered (R. v. F.A., para. 49).

[54] In the matter before me, there is little discrepancy in the descriptions provided by the witnesses which was the subject of confirmatory evidence regarding identification.

[55] In R. v. Nikolovski, 1996 S.C.J. No. 122, the Supreme Court of Canada, commented on the strength and use of video surveillance evidence. It was said,

The video camera on the other hand is never subject to stress. Through tumultuous events it continues to record accurately and dispassionately all that comes before it. Although silent, it remains a constant, unbiased witness with instant and total recall of all that it observed. The trier of fact may review the evidence of this silent witness as often as desired. The tape may be stopped and studied at a critical juncture.

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.

[56] The court went on to say, at paras. 21 and 22,

Thus the importance and usefulness of videotapes have been recognized. This is as it should be. The courts have long recognized the frailties of identification evidence given by independent, honest and well-meaning eyewitnesses. This recognized frailty served to emphasize the essential need to cross-examine eyewitnesses…This foreshortened list of the frailties of eyewitness identification may serve as a basis for considering the comparative strengths of videotape evidence (para. 19).

[57] The surveillance videos provide significant confirmatory evidence of the description of the carjacker. Such video evidence represents cogent and convincing evidence on the issue of identity.

[58] While Bhawana, during her testimony, was unable to identify the Accused as the perpetrator, she described the carjacker as to his age, hair colour, height and the clothing he wore. Her description would have been the description initially broadcasted to the police officers. Her description was confirmed by the video evidence including the surveillance video for the parking lot where the vehicle was located.

[59] Officer Farrow and Officer Henderson testified as to their observations which were confirmed by the video evidence. They testified that the one male in the group of males leaving the vehicle and walking over to the Mall matched the description provided to them. Officer Farrow identified the vehicle and confirmed it was driven to the apartment building parking lot on Morningstar Drive. The description of the male observed beside the driver’s door of the vehicle and in the act of closing the door was confirmed by the video evidence, including the apartment building parking lot video evidence (Ex. 2).

[60] By the time of the arrest, the officers had been provided with a photograph of the carjacker taken from the surveillance video (Ex.1). The officers were able to confirm that the male in the photo was a match for the description of the male arrested and later identified as the Accused.

[61] Exhibit 3 is further confirmatory evidence. The picture of the Accused taken at the hospital matches the identification evidence and includes the Accused’s face.

[62] The most significant piece of confirmatory evidence is that of the key fob for the vehicle, was discovered on the person of the Accused when he was searched incidental to his arrest.

[63] All of the confirmatory evidence before me, negates the inherent dangers of any eyewitness evidence.

[64] In my opinion, the Crown has proven beyond a reasonable doubt, that on June 8, 2021, at 10:36 a.m., the Accused committed the theft of the vehicle. The officers were, by police radio, advised of the carjacking at 10:49 a.m. Less than an hour later, the Accused had been arrested and was in custody.

ELEMENT OF VIOLENCE

[65] R. v. Trudel, 1984 CarswellQue 129, is a decision of the Quebec Court of Appeal. The facts involve a “hold-up” at a convenience store. The cashier was immobilized by the tying of her arms, said to be an act of violence. At trial such evidence was said not to be sufficient to make a finding of guilt for robbery and the Accused was found guilty of theft. The trial judge opined that to commit a robbery the violence must be more than mere assault.

[66] The Appeal Court thought otherwise, and it was said;

With respect, I am of the opinion that this interpretation for the term “violence” in s. 302(a) is erroneous in law: - theft and a mere assault to extort the stolen thing or to prevent or control any resistance to theft are sufficient evidence to prove the application of s. 302(a) (para. 17).

[67] The force used to hold the arms of the victim was sufficient to constitute violence, an essential element of the charge of robbery, if the intention is to overcome resistance (R. v. Trudel, para. 20).

[68] Bhawana testified that she attempted to contact the police with her cell phone, which in my opinion, was an act of resistance. It was an attempt to thwart the theft of the vehicle. The Accused would not have wanted Bhawana to make contact with the police and initiated a struggle with Bhawana to get possession of her cell phone. During that struggle Bhawna was struck in the head with the cell phone. When she was attempting to exit the vehicle, the Accused pushed her with his hand.

[69] I accept the evidence of Bhawana as credible and reliable evidence which was not seriously challenged.

[70] Counsel for the Accused however, submitted that the Crown has failed to prove the Accused intended to Bhawana being hit in the head with the cell phone. In my opinion, it is unnecessary to do so. The hit to the head occurred within a struggle initiated by the Accused, and with intent, to overcome Bhawana’s resistance to the theft of the vehicle.

[71] The struggle, including the hit to the head, was an intentional application of force, and as such, can be said to be an act of violence as contemplated in s. 302(a) of the Code.

[72] The act of pushing Bhawana out of the vehicle was also an assault and a further act of violence on the part of the Accused.

[73] The Accused additionally submitted that the theft of the vehicle had concluded before the violence occurred and therefore was not contemporaneous to the theft and cannot be used to support a charge of robbery (see R. v. Newell, 2007 CarswellNfld 32).

[74] In my opinion, in the matter before me, the theft was not completed until Bhawana’s resistance was overcome and she was out of the vehicle. The violence occurred, in an effort by the Accused, to be in sole possession of the vehicle.

[75] The essential elements of robbery have been proven by the Crown, beyond a reasonable doubt.

PARTICULARIZATION

[76] In R. v. Saunders, [1990] 1 S.C.R. 1020, it was said that it is a fundamental principle of criminal law that the offence as particularized in the charge must be proven. Counsel for the Accused submits that the identity of the victim of the violence was not particularized as part of the offence.

[77] The charge, as particularized in the indictment, alleges that the Accused did rob Aditya Gupta. I find that the charged, as particularized, has been made out. It was Mr. Gupta who was robbed of his vehicle.

RULING

[78] I find the Accused Jasgeen Singh guilty of robbery as charged in Count 4 of the indictment.

Bielby J. Released: August 9, 2023