Restriction on Publication

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

Introduction

Tekele Ogbamichael is charged with five counts of sexual assault. He allegedly sexually assaulted the following complainants:

• Count 1: Sexual assault of H.T. sometime around December 5, 2022, on a York Region transit bus.
• Count 2: Sexual assault of H.T. a second time on December 21, 2022, on a York Region transit bus.
• Count 3: Sexual assault of B.G. on December 22, 2022, on a TTC subway car.
• Count 4: Sexual assault of S.K. on February 1, 2023, on a TTC subway car.
• Count 5: Sexual assault of A.-W-V. on February 1, 2023, on a TTC subway car.

1. The Evidence

(a) Evidence of H.T.

In December 2022, H.T. was 23 years old. She was in Canada on a student visa and working part-time. At the time of trial, she was waiting for a permanent work visa. She took the bus to and from work.

H.T. testified that on December 5, 2022, she was sitting on the bus talking to her mother on the phone. In cross-examination, she agreed that it was a “blue” York Region bus but wasn’t sure if it was the 501 or 105 bus. She regularly took that bus. She could not be sure the name of the stop. She did agree that she regularly got off at Dufferin and Steeles. Also in cross-examination, H.T. agreed that she could not be sure of the date. She initially thought that the incident could have been between December 12 to 15. She did remember speaking to her mother for hours that day and tried to figure out the date from her call log. She also remembered it was snowing. She also agreed that she did not remember much from the first incident. She agreed that she would have entered the bus between 3:00 and 3:30 pm and gotten off around 4:00 pm.

H.T. was sitting alone on the left side of the bus beside the window. A person sat next to her. H.T. described the person as male, tall, wearing a pixelly black and white coat. She described the coat as “salt and pepper”. He had a black bag with a red logo on it. She could not remember anything of his facial features, but she did not see any facial hair. He was wearing a hat, but she could not recall the colour. She thought he was wearing a baseball cap and believes it was turned to the side. He was Black and seemed around 43 or 46. His eyes were dark, but the whites of his eyes looked misty or cloudy. She described him as skinny.

H.T. testified that this person put his bag on her. It was very heavy. She was squished against the window. She had nowhere to move. She felt that something weird and uncomfortable had happened, but she wasn’t sure what. The person did not say anything. H.T. said that he put the bag on her right leg and her vagina. She felt a heavy push. It could have been books in the bag, but she was not sure, as it was so strong that it was almost painful. It felt like there was pointed pressure. There was a large surface area. In cross-examination she agreed that she thought it could be a book.

In cross-examination, she agreed that during this first incident sometimes she would feel it more or less when the bus was moving. The pressure might have been shifting. In the first incident she wasn’t concerned. She was pushing herself to the left as much as possible. She was not concerned that he had a bad intention or was harming her, but it was not a pleasant feeling. She did not identify anything she felt that might have been fingers.

She tried to move closer to the window, but he basically squeezed her up against the bus. The touching continued for about 30 minutes until she got up and left. She felt that something was happening, but she was not sure. She felt horrible. She called her friend. She did not go to the police because she wasn’t sure. She also testified in cross-examination that after this first incident she called her friend and said maybe someone had touched her, but she could not be sure. She had a very bad feeling. Her friend said it was probably nothing and she said that it was probably okay. She could not recall if, during the first incident, he was wearing a mask.

H.T. described the bag as large, black, and with a red logo although she did not recall the logo.

In cross-examination, H.T. agreed that the workers who got on the bus were mostly Latino workers. She assumed he came from the same stop, but she did not think he was part of that group. She was not sure which stop he got on at, but she knew it was near a building with a real estate developer. She did not know how long she was on the bus before he sat down. She wasn’t necessarily paying attention as she was speaking to her mother. She said that the top of the bag covered a portion of her left leg, although her right leg was closer to him. During the first incident H.T. did not remember if he touched her with his left hand or his right hand.

On December 21, 2022, H.T. left work around 3:30 or 4:00 pm and got on a different bus. It was a weekend, and the bus was empty. She could not recall when she got on the bus but based on her phone messages, she accepted that it might have been around 3:11. The bus stop was across the street from her workplace, but she could not say much more about the location. The same person from the earlier incident got on the bus. H.T. testified that he had on the same coat and was carrying the same bag, but he was wearing a blue mask. She recognized him from the first incident. She testified that she was 100% confident that it was the same person. The second he got on the bus she knew it was him.

This person stood in front of her. H.T. testified that she said “hi”. She moved her bag so he could sit down. She thought he was a nice person. In cross-examination she testified that she had no proof at that time that he aimed to harm her or do something uncomfortable. She gave him the benefit of the doubt that he had done nothing wrong during the first incident.

H.T. testified that he then sat down beside her. He again put his bag on her lap and leg, but this time he put the bag on her left leg. He had his left hand under the bag and his right hand under the bag. She froze. She was scared. She described the pressure as a 6 out of 10, the same as during the first incident. This incident did not last nearly as long as the first incident. She got up and went to a different seat. She moved very quickly and that is when she saw his hand on her vagina. In her head it happened very quickly.

In cross-examination, H.T. testified that there were three fingers, and his palm was down. She saw it for a split second. He said “sorry” and made a laugh. H.T. got off the bus a few stops later. She had no reaction at first. It was like she was frozen. She called a friend. The friend drove her to a Toronto Police station where she gave a statement.

The police obtained surveillance camera evidence from the York Region bus from December 21, 2022. At 15:11:26 H.T. got on the bus. She had her phone in her left hand. She sat down on the right side of the bus. She sat on a bench facing the middle of the bus.

At 15:33:08 a man got on the bus. He was wearing a dark baseball cap, a black mask, and a dark jacket. He had brown or black skin. He was carrying a dark knapsack over his left shoulder. He walked down the aisle of the bus and briefly held one of the overhead straps. Then he sat down on H.T.’s right side. At 15:35:59 H.T. stood up and moved to another seat. At 15:45:21 H.T. got up and moved to the exit. At 15:45:51 H.T. got off the bus.

H.T. made some notes on her phone. She did not note everything. She testified that she was in a state of panic. She was confident that the person was wearing a pixelated salt-and-pepper style jacket but the video on the bus didn’t really show the pixelation. She said that when he smiled, he had a wrinkled smile, with wrinkles around his eyes, but could give no real facial description. In cross-examination, she testified that he was wearing a blue mask, but she could not be sure that she had not mixed up the colour of the masks from the two incidents.

(b) Evidence of B.G.

On December 22, 2022, B.G. was 16 years old. She was coming from the gym with her friend and got on the subway at Pape station heading west. She was probably headed home but she could not remember. She sat down on an inside seat beside the window. Nobody was sitting beside her, but at around 6:40 pm someone sat beside her. There was no interaction when he first sat down. A bag was placed against her thigh. It was on top of her thigh. She noticed it was getting heavier. She felt the person next to her grab her thigh. The person’s hands were on her thigh while the backpack was placed over her. She could not remember which hand was under the backpack. The pressure felt like he was grabbing her thigh. She described it as a 6. She said it was his hand because it gripped her thigh. It was her upper thigh.

The person said sorry. She described it as a “my bad” kind of thing. She didn’t think about it, but the person did it again. She thought it was very weird and didn’t like it. She got up and got off at the next stop, which was Bathurst station. She testified that she thought that the person got on the subway maybe a couple of stops before Bathurst. She felt the pressure for maybe a minute the first time. She didn’t say anything, but it stopped. She glared at him, and he apologized. He then did it again and gripped her thigh. She knew it was not an accident because he squeezed her upper thigh, and it had happened a second time. She got off the train, called her friend, and went to the police that night.

B.G. did not get a good look at the person. She did recall that he was old, he had brown skin, the backpack was black, and he had dark spots on his face. She said he was probably 50. She could not recall what he was wearing. She could not describe his face, but he had a blue covid surgical mask on. In cross-examination, she agreed that she described the person to the police as Indian. She did not recall any details about the backpack.

(c) Evidence of S.K.

On February 1, 2023, S.K. was 18 years old. She left work at around 8:15 pm. She took a streetcar to Bathurst station. She then got on an eastbound subway car. She sat down on a bench that contained two seats. For most of her ride, the other seat remained open. The subway was busy but not packed. There were 10 to 12 seats available in her car. S.K. was sitting beside the Plexiglas by the door. The Plexiglas on her right and an open seat to her left. She was facing the window.

Somewhere around Greenwood station a man got on and sat beside S.K. He looked over at her. He then walked over very quickly to where she was seated. It was very sudden. At the time she felt it was very weird. The man placed a large backpack partially on her lap. She then felt something on her upper thigh. She was jolted physically. He said “sorry”. She assumed it was an accident. Then a few seconds later she felt his hand on her leg, trying to move to her upper thigh. At that point she jumped up and got off the subway.

S.K. testified that the man’s hands were placed under the bag but not completely under. He was on her left side. She could not see where his left hand was. His right hand appeared to be on the right side of his body, on his leg, but then he moved it. She said that his hand was on her upper thigh, towards her inner leg, near her crotch area. Both times she felt pressure. It was kind of like a pressure point. She did not actually see his hand, but she could feel it on her leg. The second time he touched her she knew it wasn’t an accident because he was grabbing her leg. She knew something wasn’t right and her gut told her to get up and leave. She described the pressure on her leg as a 6 out of 10. The total amount of time he touched her was maybe 30 seconds in total.

In cross-examination S.K. agreed that the man’s jacket and body were touching her. He put his bag on his lap and the top part of it was closer to her knee. It was not completely on top, but it was touching her left leg. In her mind the bag did not have to touch her leg. She was feeling fingers, at least to some extent. She could not see his hand and at first it came across as an accident. She was trying to surmise where his hands were because she could not see them, and when she got up, she didn’t turn to see where his hands were.

S.K. disagreed in cross-examination that it was not possible that the touching was simply something in the bag. She had a gut feeling something was wrong, but she knew it was someone putting a hand on her leg. She disagreed with the suggestion that something else was touching her. She agreed that she met the police at Coxwell Station, who told her that sexual assaults of a similar nature had happened a lot, including one the day before.

S.K. testified that the man was wearing a regular blue mask, not an N95 mask. She could see his eyes but could not remember anything. He was wearing a white puffy jacket with a hood, with a grey coloured winter hat. The jacket was hip length. He had black pants on. She didn’t really get a good look at his shoes. She described his race as black or brown. He was in his 40’s. She could not be sure of his height, although he was taller than S.K., who is 5’6”. He had a medium to heavy build. In cross-examination she agreed that she said the man was 5’10”. S.K. described the man’s backpack. It was pretty large, and she felt it had a heavy weight and seemed like it was filled up with something.

When S.K. got off the subway she called her mother to tell her what happened. Her mother told her to tell the bus driver but there was no bus driver there, so she told the ticket booth operator. The ticket booth operator indicated that he would report it. She was in shock over the incident.

In cross-examination S.K. agreed that she described the man’s jacket as not being as puffy as her dad’s jacket. S.K. was shown a still shot from a police body-worn camera. She was standing beside her father who was wearing a winter jacket.

It is an agreed fact that the Toronto Police identified a suspect after reviewing TTC surveillance video. The suspect was at Keele station exiting a westbound train at approximately 9:21 pm on February 1, 2023. He headed up the escalator towards the eastbound platform at 9:22 pm. The suspect was walking near the escalator by the eastbound track up the stairs and toward the street at 9:43 pm.

(d) Evidence of A.W-V.

A.W-V. was 19 in February 2023. On February 1, 2023, she was on her way home from the gym. She boarded the subway at Osgoode station and changed lines at St. George. She went eastbound. It was about 9:00 pm. There were a few seats open in her car – more than five. She was sitting on a bench with two seats, facing in the direction of the train. She was beside a window. The window was on her left. A man got on the train at Yonge station and sat beside her immediately. He sat to her right. They had no interaction. He immediately started touching her leg. He touched her upper thigh on her underwear line, near her pelvis. The touching was painful. There was a lot of pressure. On a scale of 1 to 10 it felt like an 8. He did it twice. The first time she did not think she was being touched. She thought it was a water bottle or something like that in his bag. The bag was on his lap but was touching her leg a bit. He had one hand on top of his bag and the other was on her leg. The touching lasted about five minutes, until she got up and moved. She felt the pressure twice. The first time the pressure felt like an 8 out of 10; the second time felt like a 10 out of 10. She didn’t do anything. She felt the touching the second time. The first time may have seemed like an accident, but when it happened the second time, she was sure it was not. She saw his hand on her leg as she moved closer to the window. The hand that was touching her was underneath the bag. She got up because she was very uncomfortable. In cross-examination, she agreed that it appeared from the video that his hands were criss-crossed. She did not agree that he could only reach the outside of her leg. She did agree that she could not see his fingers.

TTC surveillance video of a car on the Bloor/Danforth line was entered into evidence. The video time-stamp refers to the running time of the video. At 31:20 of the video the train pulled into St. George Station and A.W-V. got on. She took a seat on the left side of the car beside the window. At 33:54 a man sat down on the seat beside A.W-V. He was wearing a white jacket with a hood, a surgical mask, and a black baseball cap worn backwards. In the video it is clear that he is Black, but his facial features and colour of his hair, if any, are unclear. There were several empty seats on the train. He placed his backpack over his left leg. The backpack did not cover his right leg. The backpack did cover part of A.W-V.’s right leg. His left hand was on top of the backpack and his right hand was underneath. The man was occasionally glancing at A.W-V. His right hand appeared to push towards her. At 36:20 A.W-V. shifted herself. The man pulled his right hand out from under his backpack. He then re-adjusted the backpack and put his right hand underneath it again. Again, his right hand appeared to push toward A.W-V. The man continued to glance at her. His body was shifted slightly towards her. At 39:18 of the video he moved his hand away again. About 10 seconds later A.W-V. got up and moved away from him. She stood in the doorway of the subway car.

A.W-V. testified that this man was wearing a blue surgical mask. He had a dark complexion. He had a blue outline around his pupils. He was wearing what she described as a cream-ish bomber jacket. She testified it was like a puffy jacket. The jacket went down to his waist and was closed. The jacket had a hood. She believes that he was wearing dark pants but could not recall if they were blue or black. She could not remember if he had a hat on, as he had a hood on at the time. In cross-examination, she agreed that the hood partially obscured her peripheral vision. The bag was black and had an elastic criss-crossing it at the time. She believed he was Indian, with a medium build. He was pretty tall. She believed he was in his 40’s, as his eyes were wrinkled.

A.W-V. got off at Warden station. She talked to the TTC employee at the ticket booth, who reported the incident. The police arrived quickly.

As noted, it is an agreed fact that the Toronto Police identified a suspect after reviewing TTC surveillance video. The suspect was at Keele station exiting a westbound train at approximately 9:21 pm on February 1, 2023. He headed up the escalator towards the eastbound platform at 9:22 pm. The suspect was walking near the escalator by the eastbound track up the stairs and toward the street at 9:43 pm.

(e) Evidence of Detective Constable Thomas Leney

On February 6, 2023 D.C. Leney of the Toronto Police was working as a uniformed constable. He was working with P.C. Osateo on high-visibility patrols on the TTC in 53 Division. They started at Rosedale Subway station at 2 pm. They received a news release bulletin and two photographs of a suspect. The officers were trying to identify a person involved in multiple sexual assaults on the Bloor-Danforth line of the TTC. The person had a large bag and used it to conceal sexual assaults. DC Leney was looking for a man who was 5’6” to 5’10”, wearing a white bomber jacket and carrying a large backpack. He could see that the man was Black, wearing a baseball cap with different shades of black, and that there was a red logo on the backpack with a number 5.

At 7:00 pm D.C. Leney and PC Osateo were at the Yonge-Bloor station. They were on the platform for southbound trains on the Yonge line. DC Leney saw an individual wearing an off-white winter jacket with a red logo on the sleeve, a blue medical mask, and carrying a black knapsack on his right shoulder. The knapsack had a red logo and the number 5 on it. D.C. Leney believed that this individual matched the description of the suspect. He detained the individual and took physical control over him. Within 5 or 10 seconds of detaining the individual, D.C. Leney was satisfied that he had reasonable grounds to make an arrest, and did so. Using an Ontario Health Card he identified the individual as Mr. Ogbamichael.

D.C. Leney described Mr. Ogbamichael’s clothing as follows: he was wearing an off-white coloured winter jacket from “Canada Weather Gear” with a logo on the right side of the sleeve. The logo contained red, but also white and black. He was wearing a blue surgical mask and a black cammo baseball cap. He noted that the logo on the backpack was lettering in the shape of a crown with the number 5 written in blue and white. Mr. Ogbamichael appeared to be wearing the same shoes and pants from the photos provided to D.C. Leney. He could not recall the weight of the knapsack, but it was not empty.

Photos of Mr. Ogbamichael, the clothing he was wearing, and the backpack were entered into evidence.

It is an agreed fact that DC Leney received internal correspondence about a suspect containing screenshots from TTC surveillance video taken at Coxwell Station on February 1, 2023. The screenshots were entered into evidence.

(f) Evidence of Detective Jeffery Chabrzynski

Detective Chabrzynski is an officer with the York Regional Police. He became involved in the investigation into the alleged sexual assault on H.T. He investigated the suspect who allegedly sexually assaulted H.T. on December 21, 2022. He reviewed the video and identified the person who got on the bus and sat next to H.T. He determined that this person got on the bus at Dufferin and Confederation Parkway. He was the 7th person to get on the bus when he got on. The person used a Presto card. Detective Chabrzynski obtained a production order to obtain records from Metrolinx. He determined that the person got on the bus at 3:33 pm. He determined that there were two TD Bank debit cards used to add funds to the Presto card. He then obtained another production order to get information from TD Bank associated with those cards. Both cards were associated to Mr. Ogbamichael.

Detective Chabrzynski then made efforts to identify the suspect from the December 5, 2022, alleged sexual assault on H.T. He determined that someone used the same Presto card on that date and used it at least 10 times in December. He was unable to find any surveillance video from York Region transit for that day or the days around December 5, 2022, as the retention period had expired.

Detective Chabrzynski then obtained work records for Mr. Ogbamichael from his workplace at P&F Tool and Dye. That business is located near Dufferin Street and Confederation Parkway. At that point Detective Chabrzynski determined that he had reasonable grounds to arrest Mr. Ogbamichael. Mr. Ogbamichael was in custody at the Toronto South Detention Centre. Detective Chabrzynski attended at TDSC on April 11, 2023 and arrested him.

In cross-examination, Detective Chabrzynski agreed that he submitted swabs from H.T.’s clothing for DNA analysis but that no DNA was recovered from her pants. He disagreed that it would have taken 16 minutes to walk from P&F Tool and Dye to the Dufferin/Confederation Parkway bus stop. That was the distance from the front door of the business. Detective Chabrzynski noted that there is a much shorter route from the back door, although he did not test that. Mr. Ogbamichael’s work schedule was made an exhibit. Although it was a hearsay document, and was not accompanied by an affidavit, the parties agree that it could be admitted into evidence. The work timetable showed that Mr. Ogbamichael swiped out of work at 3:34 pm on December 21, 2022.

(g) Defence Evidence

Ms. Dulysh submitted an affidavit from Chris Woodroffe, the Vice President of Operations at the International Group of Companies. That company has five brands of men’s winter jackets, including Canada Weathergear. Men’s Canada Weathergear jackets are sold at multiple outlets across the Greater Toronto Area and have strong sales each year. About 13,500 units across the five brands are sold in the Greater Toronto Area each year. Mr. Woodroffe was unable to identify the exact model of the jacket worn by the suspect captured by the TTC surveillance video at Keele station, but he was able to identify it as a Canada Weathergear men’s jacket of the type sold in the Greater Toronto Area.

The Crown did not oppose the introduction of the affidavit into evidence and did not seek to cross-examine Mr. Woodroffe. I accept it for the truth of its contents.

Ms. Dulysh’s point about Mr. Woodroffe’s evidence is that I should infer that the jacket worn by Mr. Ogbamichael when he was arrested is not unique. I accept that point.

2. The Crown’s Cross-Count Similar Fact Application

At the end of the evidence Crown counsel, Mr. Merenda, made a cross-count similar fact application. The evidence was admitted in the usual fashion. The only issue is the use that I may make of it. The Crown’s argument was that the alleged acts were so similar that I should apply the evidence across counts. The Crown theory was that the same person carried out each sexual assault. The similar fact evidence was relevant to the identity of the perpetrator.

Ms. Dulysh, for Mr. Ogbamichael, argued that the evidence of each alleged sexual assault fell short of being similar. The evidence was either very commonplace (such as being on public transit) or lacked the element of similarity that would permit me to draw the inference that the same person committed all the alleged sexual assaults. She argued, correctly of course, that I must conclude that the offences were committed by the same person without considering any evidence linking them to the accused person in the case.

The live issue to which the similar act evidence applies, if admitted, is identity: R. v. Handy, 2002 SCC 56 at para. 74.

Similar fact evidence is presumptively inadmissible. I will simply repeat what I stated in R. v. Nygard, 2024 ONSC 4263 at para. 78:

The law presumes that evidence that applies to one count on an indictment may not be used as evidence on a different count on an indictment when the counts arise out of different fact situations: R. v. T.C., 2019 ONCA 898 at para. 42. The presumption against similar fact evidence arises because of two dangers: reasoning prejudice and moral prejudice. Reasoning prejudice arises where the jury might put more weight than is logically justified by the evidence; moral prejudice arises where the evidence simply shows that the accused is the type of person likely to commit the crime: R. v. Handy, 2002 SCC 56 at paras. 31-34; R. v. M.(J)., 2010 ONCA 117 at para. 88; T.C. at para. 43.

For similar fact evidence to be admissible, the Crown must show on the balance of probabilities that the probative value of the similar fact evidence in relation to an issue outweighs the prejudicial effect: R. v. R.C., 2020 ONCA 159 at para. 55; R. v. Handy, supra, at para. 331.

In determining whether to grant the application, the trial judge is not to merely add up similarities and dissimilarities to determine the net balance. Rather, the trial judge must determine whether there is a “persuasive degree of connection” between the similar fact evidence and the issue: R. v. R.C., supra, at para. 61, quoting R. v. Shearing, 2002 SCC 58 at paras. 48, 60. Or, as Nordheimer J.A. put it in R. v. Baskaran, 2020 ONCA 25 at paras. 36 and 50, a trial judge must take generic similarities into account but should not approach each piece of similar fact evidence individually. Rather, the proper approach is to determine “whether the similarities, viewed collectively, are sufficient to establish on a balance of probabilities that they are the product of the same actors.” Nordheimer J.A. adopted Watt J.A.’s approach at para. 34:

The central issue in this case was identity. As stated by Watt J.A. in R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465 (Ont. C.A.), at para. 90, the use of similar act evidence to establish identity generally requires an analysis of the similarities between the acts:

In the usual course where evidence of similar acts is proposed for admission in proof of a perpetrator's identity, the trial judge should review the manner in which the similar acts were committed, that is to say, whether the allegedly similar acts involve a unique trademark or reveal a number of significant similarities. This review enables the trial judge to determine whether the alleged similar acts were likely all committed by the same person.

The court must be satisfied that the objective improbability of coincidence has been established: R. v. Arp, paras 43-44, 48.

In R. v. MacCormack, 2009 ONCA 72 at para. 72, Justice Watt set out some of the factors that a trial judge may consider when considering a cross-count similar fact application:

The similarity inquiry is a case-specific, highly individualized examination involving a consideration of all relevant factors including, but not limited to:

i. proximity in time and place;

ii. similarity in detail and circumstances;

iii. number of occurrences;

iv. any distinctive feature(s) unifying the various incidents;

v. intervening events; and

vi. any other factor that tends to support or rebut the underlying unity of the similar acts.

In my view, the similar acts are admissible across counts. The degree of similarity of the commission of the alleged offences is striking. The variations between the incidents are all very minor. All four complainants were young, female, and sitting by themselves on public transit with an empty seat next to them. All four complainants in all five incidents described the suspect as having dark skin (each described him as a black or brown male), older in his 50’s (or in one instance in his fifties) wearing a covid mask in four of the five incidents (in the first instance involving H.T. she could not recall if he was wearing a mask). In each of the five incidents the male individual was carrying a black backpack. The suspect was wearing a mask, or a hat, or had his hood up (or some combination of the above). All five incidents took place on public transit (two on a York Region bus, three on a TTC subway car). In all five incidents the suspect sat down in an empty seat beside the complainant. The suspect then put his backpack on his lap. In each case the backpack covered part of the complainant’s lap. In each case the suspect touched the complainant on the upper part of the leg, on the vagina, or the crotch area generally. In each incident (except the incidents involving H.T.) the suspect touched the complainant twice. It seemed at first to be an accident, but the second time each complainant described the touching as definite (to use my words). In the cases of B.G., S.K., and A.W-V., the suspect made a kind of apology after the first touch. In the second incident involving H.T., the suspect also made an apology. Each complainant described a relatively high level of pressure – from 6 out of 10 to 10 out of 10 in one case. I recognize that the degree of pressure is subjective, but what is important is that each described the pressure as high.

Considering the factors mentioned in MacCormack, it is highly improbable that more than one dark-skinned person wearing a covid mask and a hat in his 40’s or 50’s was going around on public transit over a period of less than three months in the Greater Toronto Area in late 2022 and early 2023 placing a black backpack on a young, female person’s lap while he sat beside her and touched her on the upper leg, crotch, or vaginal area. Whether it was on the leg, the underwear line, or the vagina matters not in my opinion: the actions come under the generic category of “groping”. The signatures or fingerprints are simply too similar to create a likelihood of coincidence. The modus operandi, including the use of the backpack, is a distinctive fingerprint or striking similarity. The similarities are so strong as between the incidents that I would say that the probability of coincidence is vanishingly small.

I accept that there were some generic aspects of the incidents – such as being on public transit – that detract from the similar fact analysis. I also accept that there are differences in the clothing worn by the suspect on the York Region bus and the clothing worn by the suspect on the TTC. The suspect on the York Region bus was wearing a different jacket from the suspect on the TTC. It appears that the suspect may have been wearing a different hat. Despite those differences, the similarities are simply too great. I don’t think that it requires taking judicial notice to observe that a person may own more than one jacket or more than one hat.

I also accept that some complainants described the suspect as Indian, others as Black. This is a dissimilarity but in my view what matters is that all the complainants described the suspect as dark-skinned.

Ultimately, I find that the similar fact evidence is extremely probative for all the reasons I have mentioned. The prejudicial effect of the evidence is very limited. The evidence might operate unfortunately against the accused, but it does not operate unfairly: R. v. Jesse, 2012 SCC 21 at para. 52. Although I am the trier of fact in a judge-alone trial, I would have come to the same conclusion if this case were being tried by a jury.

I therefore grant the cross-count similar fact application. I am satisfied that the suspect in all five incidents is the same person. But was that person Mr. Ogbamichael? That is the question that I turn to next.

3. Identity Analysis

The first step of the identification analysis is to instruct myself on the frailties of eyewitness identification evidence. Eyewitness identification evidence often seems to be the most compelling type of evidence, but long experience has taught that it can be dangerous to rely on such evidence. In R. v. Nikolovski, para 45, the Court quoted the Ontario Court of Appeal:

In R. v. Quercia (1990), 60 C.C.C. (3d) 380 (Ont. C.A.), at p. 383, Doherty J.A., speaking for himself and Osborne J.A., stated:

This is a case in which the conviction of the appellant depends entirely on the identification of him by the victim. Where the Crown's case rests on eyewitness identification, one is always very concerned about the reliability of a finding of guilt. Legal history and data compiled by behavioural scientists demonstrate the validity of that concern: see "Pretrial Eyewitness Identification Procedures", Law Reform Commission of Canada Study Paper (1983), at p. 7-15. The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law.

Where there is identification evidence from videotape the trier of fact must approach that evidence with care. A jury should be instructed to carefully consider whether the video is of sufficient clarity and length to enable an identification. A jury should also be told that where the video is the only evidence, they must be satisfied beyond a reasonable doubt that the person identified in the video is the accused: R. v. Nikolovski, supra, at para. 30.

In my view, the surveillance tapes in this case – tape of the one incident involving H.T. and the other involving A.W-V., as well as the still shots of the suspect at Keele and Coxwell stations – are clear enough to identify certain important features of the suspect (including the clothing), although not the suspect himself. The tapes in the case of the two incidents are sufficiently clear to identify the modus operandi of the suspect, and in the case of A.W-V., particularly clear: R. v. Nikolovski, supra, at para. 32.

I am instructing myself on the frailties of eyewitness evidence, but I also note that these frailties are not fully engaged here. None of the complainants identified Mr. Ogbamichael in the courtroom. There is no evidence that any complainant was shown a photo-line up or that the police used a photo line-up to narrow the pool of suspects.

(a) Arrest and Identification of Mr. Ogbamichael

I have carefully reviewed the surveillance video from York Region transit, the TTC, the still shots from the TTC, and the arrest photos of Mr. Ogbamichael.

The identification of Mr. Ogbamichael depends on the surveillance video of the incident involving A.W-V., the evidence of the complainants, the still photos taken proximate in time, and the clothing and backpack worn by Mr. Ogbamichael on arrest. If I am satisfied beyond a reasonable doubt that it is all the same person who assaulted A.W-V. and was arrested five days later, and that person was Mr. Ogbamichael, that goes a long way to identifying him as the person who committed all of the assaults.

A trier of fact should consider the similarities of the clothing evidence. The trier of fact should not apply the criminal standard of proof to individual pieces of evidence, but rather to the evidence as a whole: R. v. McKay, 2017 SKCA 4 at paras. 17, 24.

When I compare the still shots of the suspect admitted into evidence to the TTC surveillance video of the incident with A.W-V., I am satisfied on a balance of probabilities that it is the same person. The proximity in time of the stills, the jacket, the hat, the backpack, the logo on the backpack, the pants and shoes, the covid mask, and the suspect’s dark skin are all circumstances I take into account in reaching this conclusion. While each individual piece of evidence – the jacket, the skin colour, and the mask, for example – may not be enough to find that the suspect is the same person, when I examine the totality of the evidence, I am satisfied that it is.

Am I satisfied beyond a reasonable doubt that the suspect in the video involving A.W-V. and on the stills is Mr. Ogbamichael? I am, based on the following:

• The clothing worn by the suspect and the backpack carried by the suspect match the clothing and backpack worn by Mr. Ogbamichael upon arrest. I acknowledge that the arrest took place on February 6 and the incidents captured on the TTC surveillance took place on February 1, but the passage of time does not alter my conclusion because the similarities are so obvious.
• The arrest took place at a TTC station; three of the incidents took place on the TTC.
• Although I acknowledge that the jacket is not unique, the logo is visible in at least some of the stills. It is clearly the same jacket worn by Mr. Ogbamichael on arrest. It is true that there are several of these jackets sold (and presumably worn) in the GTA, but that does not detract from the fact that the jackets appear to match.
• The black backpack has some distinctive writing but is otherwise an ordinary backpack. Again, some of the writing is distinctive and can be seen on some of the stills, and it matches the writing on the backpack that Mr. Ogbamichael was arrested with.
• The suspect in the stills and on the TTC video was wearing dark shoes and pants. Upon arrest, Mr. Ogbamichael was wearing dark shoes and pants.
• The suspect in the stills and on the TTC video was wearing a black peaked hat; Mr. Ogbamichael was wearing a cammo pattern black peaked hat upon arrest.
• The suspect in the stills and on the TTC video was wearing a blue covid mask; Mr. Ogbamichael was wearing a blue covid mask when he was arrested.

None of these things on their own would prove identity. It is the totality of the evidence that satisfies me beyond a reasonable doubt that Mr. Ogbamichael is the person in the TTC stills and the video.

Ms. Dulysh relies on R. v. Babbington, 2020 ONSC 1000, where LeMay J. noted that “clothing is not a unique identifier.” With respect, I would distinguish Babbington. That was a case involving a Leaney application: R. v. Leaney. In a Leaney application the Crown applies to have a witness who is acquainted with the person on a video identify them. In Babbington the witness was asked to identify an accused on surveillance tape. She was the front desk clerk at a Motel 6 where a shooting had taken place. She testified on the Leaney application that she had known the accused from interactions at the motel. LeMay J. did not permit the witness to testify. The video clip was short, and the witness identified the person from their gait and the clothing they were wearing. LeMay J. was concerned that the witness was simply identifying the person based on a distinctive jacket. As LeMay J. stated:

Identifying a person based on the clothing that they are wearing is not the intention of the principle in Leaney. Clothing is not a unique identifier.

I agree with LeMay J.’s observation about Leaney applications. I do not read LeMay J.’s reasons as suggesting that clothing is so generic that it can never be used in an identification case. If that were the case, it would be very difficult to ever identify anyone based on their clothing. Rather, I think that in Babbington the jacket, even the unusual jacket, was not enough for the Leaney witness to identify the accused in the absence of actually seeing their face or some particular feature about the accused. In any event, this case is not a Leaney situation and I am not being asked to identify Mr. Ogbamichael solely on the basis of his clothing.

I turn now to each count.

(b) Counts 1 and 2 – Sexual Assault of H.T.

There are two questions on this count: first, am I satisfied beyond a reasonable doubt that the person sitting beside H.T. was Mr. Ogbamichael? And second, if so, am I satisfied beyond a reasonable doubt that Mr. Ogbamichael committed a sexual assault?

H.T.’s description of the first incident included a description of the suspect that I have already mentioned. It also included a description of the actions taken by the suspect. The physical description of the suspect, but especially use of the backpack, the touching, and all the other elements are so strikingly similar that I am satisfied that the person was Mr. Ogbamichael. In doing so, I acknowledge that the clothing described by H.T. was different from the clothing worn by the suspect in the February assaults, and different from the clothing worn by Mr. Ogbamichael upon arrest. That said, the jacket, covid mask, backpack, and skin colour described by H.T. from the first incident are all the same as that worn by the suspect caught on video during the second incident. H.T. herself said that she instantly recognized the suspect from the first incident. Eyewitness identification is always problematic, of course, but here there was more than just a glance or even a good look. H.T. had an interaction with the person, and recognized him the second time in large part because of that interaction. There were some problems with H.T.’s description – for example, she agreed that she might have mixed up the colour of the masks from the two incidents. That said, the important fact was that Mr. Ogbamichael was wearing a mask. The fact that H.T. may have mixed up the colours does not, in my view, detract from her overall identification. What is also important is that she described the same modus operandi – the striking similarity described by all the complainants.

Furthermore, the Presto card evidence is circumstantial evidence that Mr. Ogbamichael was the person involved in both incidents with H.T. The Presto card linked to Mr. Ogbamichael’s bank accounts was used on York Region Transit on multiple days in December, including December 21, 2022 – the day of the second incident. On its own, the Presto Card evidence would not be enough to make a finding beyond a reasonable doubt. That evidence must be seen in light of all the other evidence, including the similar fact evidence.

Ms. Dulysh argued that I should have a reasonable doubt that Mr. Ogbamichael was the person who sexually assaulted H.T. based on his work schedule. Mr. Ogbamichael swiped out of work at 3:34 pm on December 21, 2022. The Presto card associated to him shows that the person using that card got on the bus at Dufferin and Confederation Parkway at 3:33 pm. It obviously would have been impossible for Mr. Ogbamichael to have swiped out of work and be the person who got on the bus one minute earlier.

While this is a compelling argument (and bearing in mind, of course, that the burden is not on Mr. Ogbamichael to prove anything) I cannot agree. The work records raise important questions about the Crown’s case on this count, but at the end of the day, I am not left with a reasonable doubt about Mr. Ogbamichael’s guilt based on this evidence. I say that because it is not an agreed fact that the times on Mr. Ogbamichael’s work records are accurate, in contrast to the agreed fact any surveillance videos with timestamps are accurate. There is simply no evidence about the accuracy of those records. The similar fact and Presto Card evidence in this case is so compelling that it gives me pause about the accuracy of those work records. This work records must be considered in light of the whole of the evidence. As we routinely tell juries, not every question in a criminal case can be answered. This piece of evidence cannot be reconciled but neither is it strong enough to raise a reasonable doubt considering all the other evidence.

Based on the similarities described by H.T. I am satisfied beyond a reasonable doubt that the same person sat down beside H.T. both times. I am also satisfied beyond a reasonable doubt that Mr. Ogbamichael was that person. Given H.T.’s evidence that she cannot be sure she was touched in a manner that violated her sexual integrity during the first incident, I must acquit Mr. Ogbamichael of sexual assault on count 1. I do, however, find him guilty of the lesser and included offence of simple assault.

I am satisfied beyond a reasonable doubt that Mr. Ogbamichael sexually assaulted H.T. on the second occasion. I find that Mr. Ogbamichael violated H.T.’s sexual integrity by touching her vagina. H.T. testified that she saw Mr. Ogbamichael’s hand on her vagina. I accept her evidence.

(c) Count 3 – Sexual Assault of B.G.

As noted, I am satisfied beyond a reasonable doubt that the same person was responsible for all of the incidents. Am I satisfied beyond a reasonable doubt that this person was Mr. Ogbamichael in the case of B.G.?

As noted, B.G. did not get a good look at the suspect. She recalled he was old (around 50), he had brown skin, the backpack was black, and he was wearing a blue covid surgical mask. While B.G.’s description was not detailed, it was not inconsistent with Mr. Ogbamichael’s features. B.G. could not recall the suspect’s clothing. Her identification is the weakest of the four complainants. Nonetheless, even bearing in mind the frailties of eyewitness identification, I am satisfied beyond a reasonable doubt that the suspect was Mr. Ogbamichael when I consider all the evidence, including the similar fact evidence. B.G.’s description of the assault was consistent with the other similar fact evidence: the use of the backpack, the covering of the lap, and the touching of B.G.’s leg underneath the backpack. I am satisfied beyond a reasonable doubt that the person who touched B.G. was Mr. Ogbamichael. As noted, I find the probability of coincidence – that more than one dark-skinned older men wearing a Covid mask on public transit in the GTA was using a heavy black backpack to grope lone, young females – is so low that I am satisfied beyond a reasonable doubt that Mr. Ogbamichael touched B.G.

I am also satisfied beyond a reasonable doubt that Mr. Ogbamichael violated B.G.’s sexual integrity. In both instances of touching, B.G. described Mr. Ogbamichael gripping her thigh; during the first touching, she described him touching her upper thigh. In my view, gripping the upper thigh – which is close the crotch area, obviously – is a violation of a person’s sexual integrity. I find Mr. Ogbamichael guilty on this count.

(d) Count 4 – Sexual Assault of S.K.

S.K.’s descriptions of the key pieces of similar fact evidence were the same as those described by the other complainants: the use of the black backpack, the empty seat beside a lone, young female on public transit, the touching, the apparently accidental nature of the first touch followed by a second touch, and the touching on the leg near the crotch area. As noted, I am satisfied that the same person committed all five assaults.

Was this person Mr. Ogbamichael in the case of S.K.? I am satisfied beyond a reasonable doubt that it was based on the whole of the evidence, including the similar fact evidence. As noted, S.K. provided a good description of the suspect. In particular, she described a puffy white jacket. Mr. Ogbamichael was, of course, arrested wearing a puffy white jacket. The rest of her description was consistent.

I agree that S.K. said that the suspect’s jacket was not as puffy as her dad’s jacket. In comparing the body-worn camera still with the jacket that Mr. Ogbamichael was wearing on arrest it seems that his jacket was actually as puffy or puffier than her dad’s jacket. That detracts from her identification. In my view, however, when it is compared with the whole of the evidence it does not raise a reasonable doubt about the identity of the person who sat next to S.K on the subway and touched her.

S.K. testified that Mr. Ogbamichael touched her upper leg, on her inner thigh, near her crotch area. I accept her evidence. Touching a complainant on the upper leg, on her inner thigh, near her crotch is a violation of her sexual integrity. I find Mr. Ogbamichael guilty on this count.

(e) Count 5 – Sexual Assault of A.W-V.

The entire incident involving A.W-V. was captured on video. All of the similar fact evidence that applied to the other complainants applied here. The video is particularly detailed. While the video does not show what part of A.W-V.’s leg was being touched, there is no doubt that the key similar fact elements – the black bag, the empty seat next to a young female, the covering of the lap with the bag, and the touching of the leg – were all present and visible (for the most part) on the TTC surveillance video. The evidence of identification is also very strong on this count. It appears that the suspect is wearing virtually all the same clothing as Mr. Ogbamichael when he was arrested. I am satisfied beyond a reasonable doubt that the suspect who sat down next to A.W-V. was Mr. Ogbamichael based on all the evidence, including the similar fact evidence.

I am also satisfied beyond a reasonable doubt that Mr. Ogbamichael touched A.W-V. in a manner that violated her sexual integrity. A.W-V. testified that he touched her upper thigh, at her underwear line, near her pelvis. I accept her evidence. I find Mr. Ogbamichael guilty on this count.

4. Disposition

I find Mr. Ogbamichael guilty of the lesser and included offence of assault on Count 1. I find him guilty of sexual assault on all remaining counts.

R.F. Goldstein

Released: January 28, 2025