CITATION: R v. Gurkirat Rai, 2026 ONSC 688
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
GURKIRAT RAI
Appellant
Paul Renwick, for the Crown
Michael Moon, for the Appellant
HEARD: January 30, 2026
REASONS ON APPEAL
[On appeal from the Judgement of Justice P.D. Griffiths, dated October 19, 2020]
MANDHANE J.
INTRODUCTION
1The appellant, Gurkirat Rai, was arrested for possessing a stolen vehicle, and driving while prohibited from doing so.1 On February 6, 2020, Mr. Rai appeared before Griffiths J. for his trial. The Crown relied on the evidence of the investigating police officer and video surveillance footage obtained from a gas station kiosk on January 12, 2019. The video, which was entered as an exhibit at trial, shows a South Asian male filling up a stolen Subaru. The defence did not call a case but argued that the judge should have a reasonable doubt about whether the person shown in the video was Mr. Rai.
2In his reasons for judgement, the trial judge concluded that the person in the video was Mr. Rai and convicted him of possession of stolen property over $5,000, and driving while under prohibition: Criminal Code, RSC, 1985, c. C-46, ss. 354(1)(a), 320.18. After a hearing on October 19, 2020, and based on the joint submission of defence and the Crown, the trial judge sentenced Mr. Rai to a conditional sentence of 23 months, concurrent on both counts.
3Mr. Rai appeals against his convictions; he asks me to set aside the guilty verdict and order a new trial.2 First, Mr. Rai says that the trial judge erred in his treatment of the police officer’s evidence pursuant to R. v. Leaney, 1989 28 (SCC), [1989] 2 S.C.R. 393 (“the Leaney application”). Second, he argues that the trial judge erred by failing to direct his mind to the frailties of eyewitness identification evidence when assessing the video. Finally, Mr. Rai argues that his trial counsel provided him with ineffective assistance which led to a miscarriage of justice.
4The Crown says that the matter was straightforward and that the trial judge did not fall into error: he dismissed the Crown’s Leaney application and properly self-instructed himself on factors for considering the video evidence set out in R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197, before concluding that the person depicted in the video was indeed Mr. Rai. The Crown says that trial counsel’s assistance was not ineffective because it did not give rise to any miscarriage of justice.
5The issues I must decide are as follows:
a. Did the trial judge err in his treatment of the police officer’s evidence?
b. Did the trial judge err in his treatment of the video?
c. Was trial counsel’s assistance to Mr. Rai ineffective?
6Based on my answers to these questions, I would dismiss the appeal. The trial judge did not err in his treatment of the evidence, and counsel was not ineffective.
Did the trial judge err in his treatment of the police officer’s evidence?
7The trial judge rightly noted that the only issue was identity and embarked on a mixed voir dire to decide both the Crown’s Leaney application and the accused’s guilt. The Crown relied on the evidence of the police officer, the video, and photos of Mr. Rai taken upon his arrest.
8The officer testified that he arrested Mr. Rai on February 26, 2019, based on his opinion that the person in the video was Mr. Rai. The officer testified that he independently recognized Mr. Rai when he was reviewing the footage from the gas station. He recognized Mr. Rai based on his personal characteristics, their contact in the past, less formal observations on the street, and photos from other police occurrence reports. The trial judge refused to allow the officer to give detailed evidence about his past interactions with Mr. Rai, finding that the prejudicial effect of such evidence outweighed any probative value.
9Before rendering judgement, the trial judge dismissed the Crown’s Leaney application ruling that, “notwithstanding the officer’s opinion, it is for me to determine whether the person in the video is Mr. Rai”, “it would be improper for me to substitute the officer’s opinion for my own findings,” and “at the end of the day, it is my identification that counts, not the officer’s”.
10When directing himself on the issue of identification evidence more generally, the trial judge noted that “identification evidence does not usually arise from a single factor”, but rather “a collective of factors” which on their own might not be sufficient to convict but which, collectively, do not leave a doubt about the identity of the person.
11In his reasons for judgement, the trial judge reiterated that he refused to simply accept the officer’s opinion that the person in the video was Mr. Rai, stating: “I am in the same position as the officer, in that I have had an opportunity to repeatedly review the video. I have had the opportunity to look at photos taken of Mr. Rai at the time of his arrest, and I have had the opportunity to look at still photographs taken from the video, to give me a closer look at the driver”.
12After reviewing the video, the trial judge came to the same conclusion as the officer, namely, that the video depicted Mr. Rai. To support his factual finding regarding identity, the trial judge noted that the person in the video and Mr. Rai had the same skin tone and shade, build, hair style, physical attributes and facial structure. He also noted that the person in the video was wearing unique and similar clothing to that worn by Mr. Rai when he was arrested; namely, tapered athletic cargo pants with a zipper on the side, multicolored socks, and slip on loafers. Based on his assessment of the physical appearance and clothing of the person in the video compared to Mr. Rai, the trial judge concluded beyond a reasonable doubt that Mr. Rai committed the offences charged.
13The appellant argues that the trial judge did little more than adopt the officer’s opinion as his own, honing in on the trial judge’s statement that “the points of identity pointed out by the officer have been of assistance to me in my analysis of identity.” The fact that the trial judge came to the same conclusion as the officer, based on some of the same factors, does not mean that he simply adopted the officer’s opinion as his own.
14A wholistic reading of the trial judge’s reasons shows that he was not tethered to the officer’s opinion. For example, the trial judge accepted the Crown’s submission that the person in the video and Mr. Rai had similarly shaped ears based on a comparison of the stills from the video and the arrest photos, even though this was not a similarity that the officer noted in his evidence. The trial judge also rejected the officer’s evidence about the approximate height and weight of the individual in the video compared to Mr. Rai, stating, “that is hard to estimate. The person in the video is wearing bulky clothing. It is hard to know the height because of the angle of the camera….”
15Overall, the trial judge did not commit an error in his treatment of the police officer’s evidence. The trial judge refused to admit the officer’s evidence about his past interactions with Mr. Rai and his opinion on identity, and then conducted his own assessment of the evidence and came to the same conclusion as the officer, namely, that the person in video and Mr. Rai were one and the same. This was a finding of fact that is entitled to deference on appeal: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 54/.
Did the trial judge err in his treatment of the video?
16It is uncontroversial that a video recording can prove the identity of the accused beyond a reasonable doubt without any other corroborating evidence: Nikolovski, at paras. 23, 33. To rely on the video to prove the identity of the accused, the trier of fact must consider the quality and clarity of the video and whether the video shows the accused for sufficient time: Nikolovski, at paras. 34-37. On appeal, if I am satisfied that the video is of sufficient clarity and quality that it would be reasonable for the trial judge to identify the accused as the person in the tape beyond a reasonable doubt, then their decision should not be disturbed: Nikolovski, at para. 23.
17At trial, the Crown argued that the video was clear enough and of sufficient quality to allow the trial judge to make his own assessment of identity. In his reasons, the trial judge agreed, finding that the video had “really, quite good definition”. The videos were entered as exhibits and I reviewed them; they depict the accused clearly and accurately, for about one minute in total. The trial judge was certainly entitled to make his own assessment of identity based on the video, which was further corroborated by the photos of the accused upon his arrest.
18Having concluded that the video was sufficiently accurate and reliable to allow for the identification of Mr. Rai, the trial judge was under no obligation to seek independent corroboration before relying upon it to prove identity. The trial judge was also not under any obligation to self-instruct on the frailties of eyewitness evidence because videos do not give rise to those same frailties. When dealing with eyewitnesses, the overriding concern is reliability because a witness who is confident about their identification may be honestly mistaken: R v Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 50. The same concern does not arise with videos because the video is accurate, entered as an exhibit, and available to be viewed with calm detachment: Nikolovski, at para. 34. Stated differently, when dealing with videos, the trier of fact draws inferences based on their own observations, not those of an eyewitness. The case of R. v. Gough, 2013 ONCA 137, at paras. 34-39 is clearly distinguishable because it revolves around the frailties of eyewitness identification as opposed to video identification. Here, the trial judge’s self-instruction was adequate; he told himself to consider a collective of factors rather than a single one when deciding whether the evidence proved identity beyond a reasonable doubt.
19Finally, appellant’s counsel makes too much out of the fact that the trial judge erroneously referred to the governing case as Regina v Nicoletti rather than R. v. Nikolovski. While this is not ideal, it was nothing more than inadvertence. The trial judge instructed himself correctly on the law and then applied it. The fact that the name of a case that stands for trite law wrong is not a substantive error of law: R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 S.C.R. 717, at p. 737. The trial judge was presumed to know the law and the record before me does not rebut that presumption.
Was trial counsel’s assistance ineffective?
20Mr. Rai was entitled to effective assistance of counsel. Appellant’s counsel argues that trial counsel was incompetent because he did not allow the accused to testify to raise the defence of alibi, and because he did not provide the judge with case law relevant to the issue of identity. To support this ground of appeal, I allowed the appellant to adduce fresh evidence in the form of viva voce evidence from his client, his client’s mother, and trial counsel: R v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, at p. 775.
21To have his conviction quashed on the ground of ineffective assistance of counsel, the appellant must prove on a balance of probabilities: (1) any contested facts, (2) that counsel was incompetent, and (3) that counsel’s incompetence caused a miscarriage of justice: R. v. Archer (2005), 2005 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 118-20. There will be a miscarriage of justice where counsel’s ineffective representation undermines the appearance of trial fairness, or the reliability of the verdict: Archer, at para. 120. If there was no miscarriage of justice then the conviction must stand regardless of trial counsel’s performance: Archer, at para. 121.
22I can dispose of this ground of appeal summarily because there was no miscarriage of justice in the trial before Griffiths J. The trial was fair and appeared fair. Defence counsel forcefully argued that it was not possible for the trial judge to conclude beyond a reasonable doubt that the person in the video was Mr. Rai because he was only depicted for a short time, it was a cross-racial identification, and Mr. Rai’s identity could not be corroborated by reference to non-specific clothing items that he was wearing when arrested some weeks later. The trial judge was entitled to reject the defence submissions in favour of those made by the Crown. This does not necessarily mean that the trial was unfair or that defence counsel was ineffective. In fact, the trial judge himself noted in his reasons for judgement that, “[c]ounsel have done excellent work in preparation for this trial and narrowing the issues….” As I have discussed above, the trial judge was entitled to rely on the video evidence to support a finding of guilt beyond a reasonable doubt and he did not fall into error in doing so.
23I also find that the appellant failed to prove the facts underpinning this ground of appeal on a balance of probabilities. He has not proven that trial counsel refused to allow Mr. Rai to testify to raise an alibi defence. Mr. Rai’s evidence on these points was equivocal and internally inconsistent. He maintained that trial counsel never told him that he could testify, while also admitting that he was familiar with the criminal justice system, knew that he had the right to testify, and accepted his counsel’s advice that testifying would not be in his interests. He was also equivocal about whether he told his trial counsel about having an alibi—repeatedly changing his evidence between his affidavit, examination in chief, cross-examination and re-examination.
24In contract, trial counsel’s evidence was clear and direct. He testified that he advised Mr. Rai not to testify, that his strategy at trial was to demonstrate inconsistencies between the person depicted in the video and Mr. Rai, and that he could not recall hearing about an alibi from anyone prior to the trial.
25While it would have been prudent for trial counsel to have obtained written instructions from Mr. Rai, I accept his evidence about the advice he gave and it makes sense given the substantive issues at trial: see R. v. Zheng, 2014 ONCA 345, at paras. 30-31. Nothing good could have come from Mr. Rai testifying. He had a lengthy criminal record, including for crimes relevant to credibility. Moreover—having heard the alibi evidence as fresh evidence on appeal—I am confident that it would have been rejected by the trial judge. Neither Mr. Rai nor his mother could provide any specifics about the alleged alibi–where he was, who he was with, and what he was doing. His mother also admitted in cross-examination that she had never mentioned anything about an alibi when giving evidence at Mr. Rai’s bail hearing less than two weeks after the alleged offence. At its highest, his mother remembered that her and Mr. Rai were busy preparing for a birthday party the next day, which says nothing about whether he was filling up gas in a Subaru on the night in question.
26The appeal is dismissed.
MANDHANE J.
Released: February 4, 2026
CITATION: R v. Gurkirat Rai, 2026 ONSC 688
COURT FILE NO.: CR-21-956-00AP
DATE: 2026 02 04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
-and-
GURKIRAT RAI
REASONS ON APPEAL
MANDHANE J.
Released: February 4, 2026
Footnotes
- It was uncontroversial that Mr. Rai had nine lifetime driving prohibitions at the time of his arrest.
- The appellant abandoned his sentence appeal during oral argument. Despite subsequent changes to Criminal Code, both the appellant and Crown submitted that the Ontario Court of Justice had jurisdiction over the offences at the time of trial and that the sentence of two years less a day was available for on the count of possessing solen property.