



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bao, 2019 ONCA 458

DATE: 20190604

DOCKET: C64500

Watt, Trotter and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ai Ming Bao

Appellant

Mindy Caterina, for the appellant

Bradley Reitz, for the respondent

Heard: March 21, 2019

On appeal from the conviction entered by Justice Fergus C.
    ODonnell of the Ontario Court of Justice on August 31, 2017, with reasons
    reported at 2017 ONCJ 944.

Trotter
    J.A.:

[1]

The appellant, Ai Ming Bao, was
    convicted of one count of possession of marijuana for the purpose of
    trafficking, contrary to s. 5(3)(a) of the
Controlled Drugs and
    Substances Act
, S.C. 1996, c. 19. His conviction
    rested on the fleeting observation of a police officer, who identified the
    appellant as the driver of a vehicle that sped past him at 50 km/h.

[2]

At the end of the oral hearing, the panel announced that the verdict was
    unreasonable and could not be supported by the evidence. The appeal was allowed
    and an acquittal was entered, with reasons to follow. These are those reasons.

A.

factual overview

[3]

On August 15, 2015, P.C. Michael Storozuk was investigating a collision
    involving a motorcycle. He parked his cruiser in a manner that prevented other vehicles
    from driving through the accident scene. As P.C. Storozuk was talking to a
    tow-truck driver, he saw a minivan drive past him, out of the corner of his
    eye, at a distance of 15 feet. It was travelling at a normal rate of speed of
    50 km/h. He said that the drivers side window was open.

[4]

P.C. Storozuk yelled at the driver to stop. Acknowledging that he had
    merely seconds to make his observation, P.C. Storozuk described the driver as
    an Asian male with dark hair. P.C. Storozuk testified that the driver
    looked shocked and almost panicked. From his fleeting glance, he estimated that
    the driver was 59 to 510. In cross-examination, he agreed that this estimate
    was very approximate and acknowledged that the driver could have been between
    57 to 6. He could give no further description of the driver, or of the drivers
    clothing.

[5]

After the minivan went through the accident scene, it immediately made a
    right-hand turn and accelerated away. P.C. Storozuk got into his cruiser and
    gave chase. The minivan travelled about 300 meters before crashing into a hydro
    pole. By the time P.C. Storozuk caught up to the minivan, there was no one inside
    it. All of the minivan doors were closed, except the drivers side front door,
    which was ajar. P.C. Storozuk said the window of the drivers side door was
    still open.

[6]

P.C. Storozuk searched the glovebox and found a wallet. It was conceded that
    the wallet belonged to the appellant. It contained numerous bank cards, credit
    cards, recent ATM receipts, and other items. P.C. Storozuk focused on an OHIP
    card found in the wallet, which bore the appellants name and photograph. P.C.
    Storozuk testified that he recognized the appellant as the person who drove
    past him at the first accident scene. P.C. Storozuk also found ownership and
    insurance documents in the minivan, both of which suggested that the minivan
    was owned by someone else. Another officer who subsequently arrived on the
    scene found an inhaler (still in its packaging) that had been prescribed for
    the appellant about a month earlier. It was in a compartment of the front
    passenger-side door.

[7]

As P.C. Storozuk examined the contents of the wallet, the front hood of
    the minivan caught fire. Concerned about the destruction of evidence, he opened
    the sliding door of the minivan and discovered seven large garbage bags of
    fresh marijuana inside the vehicle. Fire services were summoned and the fire
    was extinguished.

[8]

A canine unit was also on the scene, in search of the occupant(s) of the
    vehicle. The police soon discovered four Asian people (three men and one woman)
    hiding in the bushes nearby. The appellant was not one of them.
[1]


[9]

Returning to the minivan, P.C. Storozuk insisted that the drivers side
    window was open when it passed him and when he found it abandoned after
    striking the hydro pole. He stated that he did not roll the window up. A photo
    from the scene taken by P.C. Storozuk showed that the window was rolled all the
    way up. P.C. Storozuk had no explanation for the discrepancy but said, I know
    for a fact  it was down (i.e. that it was open) when the minivan drove past
    him.

[10]

Officers
    on the scene observed that the minivan seating had been modified. The middle
    bench seat was missing, leaving enough seating for only four people.

[11]

As
    discussed in more detail below, the trial judge was satisfied that the
    appellant was the driver. He also concluded that the Crown had proved that the
    appellant possessed the seven bags of marijuana found inside the vehicle.

B.

issues on appeal

[12]

The
    appellant raised two issues on this appeal: Is the appellants conviction
    unreasonable due to the frailties of the identification evidence? In the
    alternative, if identity were properly proved, did the evidence fall short of
    establishing the appellants knowledge and control of the marijuana found in
    the minivan? In my view, the appeal should be allowed on the first issue.

C.

analysis

(1)

Introduction

[13]

This
    case provides another example of an honest witness purporting to make an
    accurate eyewitness identification. However, given that P.C. Storozuk only made
    a fleeting observation, and in light of how events transpired that evening, his
    identification of Mr. Bao was rendered worthless. Accordingly, the appellants
    conviction is unreasonable and cannot be supported by the evidence: see
Criminal
    Code
, R.S.C. 1985, c. C-46, s. 686(1)(a)(i);
R. v. Quercia
(1990), 75 O.R. (2d) 463 (C.A.), at pp. 465-466;
R. v. Malcolm
(1993),
    13 O.R. (3d) 165 (C.A.), at pp. 173-174;
R. v. Miaponoose
(1996), 30
    O.R. (3d) 419 (C.A.), at p. 423.

[14]

In
    his reasons, the trial judge identified some of the inherent frailties
    generally associated with eyewitness identification evidence. They are well
    known and have been discussed by the courts on countless occasions: see e.g.
R.
    v. Hibber
t
, 2002 SCC 39, [2002] 2 S.C.R. 445, at para. 50; Peter
    deC. Cory,
The Inquiry Regarding Thomas Sophonow: The Investigation,
    Prosecution and Consideration of Entitlement to Compensation
(Winnipeg:
    Manitoba Justice, 2001), at pp. 31-34. Although these frailties are easily identified,
    problems sometimes arise in the failure to focus on the specific frailties
    presented in individual cases: see
R. v. Lewis
, 2018 ONCA 351, at
    para. 16;
R. v. Baltovich
(2004), 73 O.R. (3d) 481 (C.A.), at para. 79;
R. v. Gough
, 2013 ONCA 137, at paras. 34, 38-39; and
R. v. Pimentel
(1995), 85 O.A.C. 395 (C.A.), at para. 11. That is what happened in this case.

[15]

The
    trial judge relied upon three aspects of the evidence in finding that the
    appellant had been identified as the driver  the presence of the appellants
    wallet in the minivan; the discovery of his inhaler in the minivan; and the
    observations of P.C. Storozuk. He acknowledged that none of these alone could
    establish identification, but in combination they were compelling. However,
    this panoramic approach obscured the deficiencies in P.C. Storozuks observations
    of the driver, upon which everything else rested.

[16]

The
    discovery of the appellants wallet and inhaler in the minivan was merely
    consistent with the appellants recent presence in the vehicle. These items
    alone were not capable of establishing that the appellant was present in the
    vehicle on this occasion, or that he was the driver of the minivan. P.C.
    Storozuks evidence was a necessary and critical bridge between the items and
    the identification of the appellant as the driver. The items found in the
    vehicle could not compensate for the serious shortcomings in P.C. Storozuks initial,
    fleeting identification. Indeed, as discussed below, P.C. Storozuks reliance
    on the OHIP card photo only served to exacerbate the frailties of his
    identification evidence.

[17]

I
    will outline the frailties in P.C. Storozuks purported identification of the
    appellant and then address the concerns related to his reliance on the OHIP card.

(2)

The specific frailties in this case

[18]

There
    were numerous frailties apparent from the circumstances in which P.C. Storozuk
    made his observations of the person driving the minivan.

[19]

I
    start with the fact, which is common to many identification cases, that this
    was a case of stranger identification. P.C. Storozuk and the appellant did not
    know each other. As this court cautioned in
R. v. Tat
(1997), 117
    C.C.C. (3d) 481, at para. 100, concerns about eyewitness identification are
    particularly high where the person identified is a stranger to the witness:
    see also
R. v. Goran
, 2008 ONCA 195, 234 O.A.C. 283, at para. 32.

[20]

Perhaps
    most importantly, P.C. Storozuk had the opportunity to observe the driver for
    mere seconds, from a distance of 15 feet, while the vehicle passed at a speed
    of 50 km/h. As the trial judge noted in his reasons, the vehicle would have
    been traveling at 14 meters per second. By any measure, this was nothing more
    than a fleeting glance:
Mezzo v. The Queen
, [1986] 1 S.C.R. 802;
R.
    v. Virgo
, 2016 ONCA 792, at para. 12;
R. v. Boast
, 2019 ONCA 19,
    at para. 15.

[21]

P.C.
    Storozuks description of the driver was also bereft of any detail  Asian
    male, dark hair. As defence counsel at trial (not Ms. Caterina) submitted,
    this could describe any Asian male. It may even have been an apt description of
    the men who were found hiding in the bushes near the crashed minivan. Importantly,
    this description was not relayed to the dispatcher by P.C. Storozuk as the events
    unfolded; it was recorded in his notebook
after
he had viewed the
    appellants OHIP card. The lack of any meaningful description of the driver
    seriously undermined P.C. Storozuks identification evidence. As this court
    noted in
Gough
, at para. 37, generic descriptions are of little
    assistance: see also
R. v. Jack
, 2013 ONCA 80, 294 C.C.C. (3d) 163, at
    para. 16;
R. v. Ellis
, 2008 ONCA 77, at paras. 5, 8.

[22]

P.C.
    Storozuk was also unable to identify any clothing that might have been visible
    from his vantage point, not even the colour of the clothing that the driver was
    wearing on the upper part of his body.

[23]

There
    was another need for caution on the part of the trial judge  this was a case
    of cross-racial identification: see
R. v. McIntosh
(1997), 35 O.R.
    (3d) 97 (C.A.), at p. 105, leave to appeal refused, [1997] S.C.C.A. No. 610;
R.
    v. Richards
(2004), 70 O.R. (3d) 737 (C.A.), at para. 32; and
R. v.
    Mey
, 2011 ONCA 288, 280 O.A.C. 319, at para. 35. The trial judge included
    this feature in his reference to the inherent frailties of identification
    evidence generally. However, he never really grappled with this feature in the
    context of this case. This was a serious issue, especially in light of P.C.
    Storozuks generic description. This was further compounded by the fact that three
    Asian men that were found hiding nearby, who along with the woman found with
    them, were presumably occupants of the minivan  a vehicle with seats for four.
[2]

[24]

Finally,
    there were two specific aspects of P.C. Storozuks evidence which cast doubt on
    the accuracy of his observations. First, P.C. Storozuks estimation of the
    height of the driver was dubious. After all, the driver was seated at the time
    of the observation. P.C. Storozuk made his appraisal  again within seconds  based
    on his experience with friends who own the same model of minivan. Any doubt
    about the value of the height estimate was put to rest in cross-examination,
    when the parameters changed from the initial 59 to 510 range, to a range of
    57 to 60.
[3]

[25]

Second,
    P.C Storozuk was adamant that the window was open when the minivan drove past
    him, and after it crashed. He relied upon the open window to bolster the
    accuracy of his identification of the driver. Photographic evidence
    contradicted P.C. Storozuk on this point. The trial judge said that he accepted
    the evidence of P.C. Storozuk that the window was open, but gave no explanation
    for this finding. In my view, given that this observation was tied to the
    reliability of P.C. Storozuks observations that evening, it was incumbent on
    the trial judge to explain why he reached this conclusion. But even taking P.C.
    Storozuks evidence at its highest and accepting that the window was open when
    he observed the driver, the other frailties in his evidence were such that the
    matter of the window being open was incapable of bolstering the accuracy of his
    evidence. The frailties in P.C. Storozuks fleeting observations of the driver
    were compounded by his reliance on the OHIP card.



(3)

The OHIP Card

[26]

The
    trial judge was impressed with P.C. Storozuks comparison of his own memory of
    the driver with the OHIP card photo. The trial judge said that this was similar
    to situations in which police officers verify the identification of drivers at
    roadside (i.e., by comparing a presented photo-bearing drivers licence with
    the seated driver). I am not persuaded that this analogy is sound.

[27]

Many
    years ago, this court held that it is dangerous and improper to present a
    potential identification witness with a single photograph of a suspect. The
    danger is that the witness may have the photo image stamped on his or her mind,
    rather than the face of the true perpetrator: see
Rex. v. Goldhar; Rex v.
    Smokler
(1941), 76 C.C.C. 270 (Ont. C.A.), at p. 271. Presenting a single
    photograph is highly suggestible and contaminates the identification process in
    a manner that prejudices the accused person: see
Rex. v. Smierciak
(1946), 87 C.C.C. 175 (Ont. C.A.), at p. 177. The holdings in these cases were
    recently endorsed by Rothstein J. in
R. v. Araya
, 2015 SCC 11, [2015]
    1 S.C.R. 581, at para. 36, a case referenced by the trial judge in his reasons.

[28]

In
    this case, P.C. Storozuk essentially showed himself a single photograph and
    concluded that the person in the photograph was the driver of the minivan. I do
    not criticize him for what he did. No doubt, it was sensible investigative
    work. However, it did not translate into reliable identification evidence.

[29]

In
    considering P.C. Storozuks use of the OHIP photo, the trial judge placed great
    reliance on this courts judgment in
R. v. Li
, 2013 ONCA 81, 296
    C.C.C. (3d) 408, leave to appeal refused, [2013] S.C.C.A. No. 142. In
Li
,
    a police officer identified the accused person after viewing a photograph
    obtained from a Ministry of Transportation database and conducting surveillance
    of the accused. The officer in
Li

had run the license plate of
    a vehicle he observed during the execution of a general warrant and viewed the
    drivers license displaying a photo of the owner of the vehicle. The officer
    did not retain a copy of the photo. One week later he had the opportunity to
    observe the accused while he was under surveillance for eight and a half hours.
    The officer identified the person he observed during the surveillance as the
    person depicted in the photo from the Ministry database. The photograph was not
    produced at trial. Watt J.A. stated, at para. 38, that it was not improper for
    the officer to examine the photo and compare his surveillance observation to
    the photo that he had previously viewed. Rather, the officer

was entitled  to compare the person in the photograph with
    the man he saw at 18 Damian Drive unloading the same vehicle that he had under
    surveillance for eight and one-half hours, and taking several things into the
    garage of Ng's house. In essence, he was refreshing his memory.

[30]

The
    trial judge likened the situation in this case to
Li
. While he
    acknowledged that the opportunity to observe in this case was considerably
    shorter, he said, the present point is that the single photo issue was squarely
    before the Court of Appeal and did not find favour with that court.

[31]

If
    this statement is meant to suggest that the decisions in
Goldhar
and
Smierciak
are no longer authoritative, I disagree.
Li
refers to neither of these
    cases and does not purport to address the reliability of eyewitness
    identification based on a single photograph.

[32]

Moreover,
    the Supreme Court of Canadas endorsement of
Goldhar
and
Smierciak
in
Araya
came
after
this courts decision in
Li
. This aspect
    of
Araya
(in para. 36) is considered dicta of the Supreme Court of
    Canada that is binding on this court, as it was on the trial judge:
R. v.
    Henry
, 2005 SCC 76, [2005] 3 S.C.R. 609, at paras. 53, 57;
R. v.
    Prokofiew
, 2010 ONCA 423, 100 O.R. (3d) 401, at paras. 18-21, aff'd without
    reference to this point, 2012 SCC 49, [2012] 2 S.C.R. 639;
Canada (Attorney
    General) v. Bedford
, 2012 ONCA 186, 109 O.R. (3d) 1, at para. 69, revd in
    part, but not on this point, 2013 SCC 72, [2013] 3 S.C.R. 1101.

[33]

Further,
    this case is entirely different from
Li
. The officer in
Li
had
    hours to observe the accused, essentially giving rise to a situation of
    recognition, rather than stranger identification. In this case, all the officer
    had was a fleeting glance. In
Li
, the officer saw the photograph first,
    and then observed the accused over a prolonged period of time. In such
    circumstances the risk that the single photograph would become stamped on his
    mind, rather than the face of the true perpetrator was significantly
    attenuated. In contrast, that is squarely the concern that is presented in this
    case. P.C. Storozuks own direct observations were fleeting and marred with
    other frailties which I have reviewed above. In such circumstances, there was a
    heightened risk that the photo, which P.C. Storozuk acknowledged he focused
    on, would overtake or contaminate the identification evidence.

[34]

As
    noted above, the trial judge likened P.C. Storozuks use of the OHIP card to the
    typical traffic stop scenario where police officers compare the driver with the
    photo identification presented. This identification process is not unique to
    traffic stops. It is used in other contexts  e.g., airport check-in; customs
    clearance; proof of age at public houses; professional or educational testing 
    occasions when it is necessary to verify the identity of individuals presenting
    themselves for a particular purpose.

[35]

This
    comparison is not helpful. The traffic stop scenario entails a process of simultaneous
    comparison between the person and the photograph. The officer and the driver
    will be in close proximity. Questions may be asked. Within legal limits, the
    length of the encounter is controlled by the officer. During a traffic stop,
    the driver will be anxious for the officer to accept the licence photograph as
    authentic.

[36]

In
    this case, P.C. Storozuk did not have an opportunity to make a simultaneous
    comparison of the OHIP photo and driver. All he had was his memory of the
    driver from his fleeting glance, which he compared with the only photo ID that
    he found in the minivan. The circumstances in which this comparison was made
    was highly suggestible. The use of the OHIP photo could not bootstrap an
    irretrievably valueless attempt at identification.

D.

conclusion

[37]

For
    these reasons, the verdict is unreasonable, and the appeal must succeed. In
    light of this conclusion, it is not necessary to address the appellants other argument
    concerning knowledge and control of the marijuana.

[38]

As
    mentioned at the outset of these reasons, the appeal was allowed at the
    conclusion of the oral hearing in this case. An acquittal was entered at that
    time.

Released: DW JUN 6 2019

Gary Trotter J.A.

I agree. David Watt J.A.

I agree. David M. Paciocco J.A.





[1]

The other individuals were originally charged along with the appellant
    on the same information. At the outset of trial, due to the absence of a
    certain witness which diminished the prospect of conviction, the Crown withdrew
    the charge as against them and proceeded against the appellant alone.



[2]

I accept that the number of seats in the vehicle is not
    conclusive of the number of occupants. Had the four individuals been found to
    be occupants of the vehicle, it was still possible that another person could
    have been in the minivan, but not properly seated.



[3]

The appellants actual height was not determined at trial.


