R. v. Doe, 2023 BCPC 161

Citation: R. v. Doe 2023 BCPC 161 Date: 20230109 File Nos: 262298-5-C, 262298-3- A, 262298-4-A Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA File No: 262298-5-C REX v. FRED DOE SHANE RANDY WHITE File Nos: 262298-3-A, 262298-4-A REX v. SHANE RANDY WHITE ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. BAKAN Counsel for the Crown: J. Medjuck Counsel for the Accused White: R. Larmer Appearing on his own behalf: F. Doe Place of Hearing: Vancouver, B.C. Dates of Hearing: May 24, 25, 26, 27, June 6, 8, 10, August 3, 5, and December 5, 2022

[ 1 ] THE COURT : In the early morning of September 23, 2020, Angelica Taylor and Brian Wong were the victims of a home invasion of their basement suite at [omitted for publication], Vancouver, British Columbia. This crime was allegedly committed by four persons unknown to them. [ 2 ] The complainants were physically assaulted by the perpetrators of this crime. Both received grievous injuries that will permanently interfere with the quality of their lives and livelihoods. Photographs of the injuries were entered as exhibits in addition to the evidence of Ms. Taylor and Mr.

Wong. [ 3 ] Fred Doe, Shane Randy White, and Terry Houngbo Gody are charged with eight counts arising from the home invasion as follows: [ 4 ] Count 1, breaking and entering the complainants’ basement suite with intent to commit an indictable offence, contrary to s. 348(1) (

d) of the Criminal Code . [ 5 ] Count 2, committing robbery of Brian Wong, contrary to s. 344(1) (

b) of the Criminal Code . [ 6 ] Count 3, committing robbery of Angelica Taylor, contrary to s. 344(1) (

b) of the Criminal Code . [ 7 ] Count 4, committing aggravated assault of Brian Wong, contrary to s. 268(2) of the Criminal Code . [ 8 ] Count 5, committing aggravated assault to Angelica Taylor, contrary to s. 268(2) of the Criminal Code . [ 9 ] Count 6, using an imitation firearm while committing, attempting to commit, or during flight after committing or attempting to commit the indictable offence of breaking and entering, contrary to s. 85(2) of the Criminal Code . [ 10 ] Count 7, carrying or having in their possession an imitation firearm for a purpose contrary to the public peace or for the purpose of committing an offence, contrary to s. 88(1) of the Criminal Code . [ 11 ] Count 8, having their faces masked with intent to commit an indictable offence, contrary to s. 351(2) of the Criminal Code . [ 12 ] The trial proceeded against Fred Doe and Shane White only.

At the end of these proceedings, I was advised that the third co- accused had been detained, but he was not a party to the trial. [ 13 ] Both accuseds were represented by counsel during the evidentiary part of the trial. [ 14 ] Final submissions were to commence on August 5, 2022. On that date, August 5, 2022, I was advised that Mr. Doe had discharged his counsel, Mr. Movassaghi. Between August 5, 2022 and December 5, 2022, Mr.

Doe made a number of appearances to advise the court on whether or not he had retained counsel. [ 15 ] The Crown prepared a memorandum entitled, “Relevant Procedural History.” This is a chronology of these appearances and their outcomes. [ 16 ] On October 31, 2022, counsel did appear to make an adjournment application on behalf of Mr. Doe, but the retainer was limited to that appearance. I granted an adjournment from October 31, 2022 until December 5, 2022. This was a date peremptory on Mr. Doe. [ 17 ] Between those dates, he was advised he could obtain counsel.

He had copies of the trial transcripts. [ 18 ] Counsel had not been retained by December 5, 2022, and I gave reasons on why the matter would proceed on that date. I heard submissions from Mr. Larmer, counsel for Mr. White. The relevant procedural history that I referenced was attached. It was Exhibit 1 on the adjournment application. [ 19 ] Mr. Doe today advised that he was unable to retain counsel that could act on his behalf, but today he elected to make submissions on his own behalf and adopted the legal analysis of Mr.

Larmer in regard to identification evidence and its frailties. [ 20 ] I have considered the fulsome submissions on identification, again, given by Mr. Larmer, and applied it to Mr. Doe as well in my analysis. [ 21 ] It is not disputed that the home invasion occurred.

Admissions of Fact were filed in this proceeding, and paragraphs 7 and 8 of the Notice to Admit outline the incredibly serious and life-altering injuries the complainants received on September 23, 2020 during the home invasion. [ 22 ] At the start of the trial, counsel agreed the issue at trial was whether the Crown had proven the identification of Mr. Doe and Mr. White as two of the persons that committed the home invasion, and the offences that occurred during it, beyond a reasonable doubt. [ 23 ] The Crown called the victims, Mr. Wong and Ms.

Taylor, and a taxi driver that allegedly drove the accuseds to and from their residence. In addition, the Crown called a DNA expert and a number of police officers that gave recognition evidence and in-dock identification of the accuseds. [ 24 ] Neither of the accuseds called evidence. They do not have to. The onus is on the Crown to prove their guilt beyond a reasonable doubt to rebut their presumption of innocence. [ 25 ] Both accuseds challenged the admissibility of recognition evidence of PC Quach. Mr. Doe further challenged the admissibility of the recognition evidence of PC Wong. Mr.

White further challenged the admissibility of the recognition evidence of Detective

Chichak. [ 26 ] In my voir dire decision of August 3, 2022, I ruled that the recognition evidence of all these officers met the threshold for admissibility and that they were in a better position than I to opine whether Mr. White and Mr. Doe were the persons who appeared on the surveillance videos and in the identification photographs. [ 27 ] The Crown’s submitted evidence included video surveillance taken on September 23, 2020, from a taxi that the accuseds allegedly took from the Riviera Hotel in the West End of Vancouver, B.C., to the complainants’ home and then returned in the same taxi.

It further included cab GPS and DNA evidence. The victims’ DNA was found in the cab and room 504 of the Riviera Hotel. [ 28 ] The correct time shown on the video surveillance and GPS are contained in the Notice to Admit. The authenticity, continuity, and accurate depiction of events at the location in question are admitted in the Notice to Admit. [ 29 ] The Crown further called police officers who testified they recognized the accuseds in the video surveillance and from photographs.

The Crown submits that the recognition evidence establishes beyond a reasonable doubt that both accuseds are guilty of the offences they are charged with. [ 30 ] The defence submits that the Crown has not established beyond a reasonable doubt that either of their clients are the persons that committed the crimes they are charged with. It is submitted that the Crown’s evidence is both unreliable and equivocal. Defence made submissions on the danger of wrongful conviction where the Crown relies heavily on recognition evidence.

The Home Invasion and Related Offences [ 31 ] Angelica Taylor and Brian Wong were roommates, in the basement suite at the address previously mentioned, on September 23, 2022. They lived there with two small dogs. [ 32 ] In terms of Brian Wong’s evidence, at approximately 6:00 in the morning on September 23, 2020, Mr. Wong testified he woke up to the sound of someone banging on the door to the suite. He heard a person asking if a certain individual lived there. He said no one by that name lived there and asked them to go away. Within ten minutes, there was further banging on the suite door.

He opened the door and saw a man wearing a face mask and hoodie. He slammed the door and locked it. The knocking started again. He opened the door and there were several people who kicked the door in. He said there were three men and a female, all were wearing face masks and hoodies. A man pointed a gun in his face, and he testified another man hit him with an aluminum baseball bat and put him in a headlock, following which he was hit repeatedly with a baseball bat and pistol-whipped several times by another man. He described the gun as a steel black handgun.

He testified that the man with this gun then entered Ms. Taylor’s room. He said the female who was with the man then held a knife in front of his face and threatened to cut him if he did not tell her where the “stash” was. He said she also asked for the key to the shed. He told her there was no stash, cash, or lock on the shed. He did not know what she was talking about. He testified he was then placed in a chokehold by a man wearing gloves. He was bleeding, which allowed him to slip out of the chokehold.

He said that the man with the bat then hit him in the leg, causing him to fall. [ 33 ] At around that time, the female ran out of Ms. Taylor’s bedroom and the man ran out of the suite as well. Mr. Wong testified he did not get a look at any of the perpetrators’ faces. [ 34 ] After the perpetrators left, Ms. Taylor started to crawl out of her room. She was on the phone speaking to the 911 operator. Mr. Wong started crawling towards her room, as he was unable to walk due to his serious injury. The police and ambulance attended. [ 35 ] Angelica Taylor gave evidence.

She testified that the first thing she recalled on waking up the morning of September 23, 2020 was “a black man kicking in my bedroom door with a gun pointed to my face.” She testified this man struck her repeatedly in the face with the butt of the gun “very, very hard and repeatedly, concentrating on her right eye.” She recalls coming to after a couple of seconds being on the floor, where the man was strangling her. She recalls this man asked her where the keys to the shed were, and she told him to ask Brian as she did not want to anger him.

She testified that the shed was actually open and there was no key for it. [ 36 ] Ms. Taylor testified that the man that hit her with the gun was wearing black clothes, blue medical gloves, and a blue medical face mask. She believed he was wearing a black hoodie, but she could see his hair. She said “he had cornrows on his head.” She described them as being pulled to either side of his head.

She described the man that assaulted her as being “a light-skinned black male” with eyes that “appeared like full black to me.” On cross-examination, she testified she could see this man’s skin from the nose up, as he had a face mask on. She did not see him in profile and does not recall seeing his neck. [ 37 ] Ms. Taylor testified she called 911 after the man left her room. The police attended and she was taken to hospital. [ 38 ] The next evening, her friend found a clip of a gun in her bed, and she found a piece of a blue medical glove that looked like the one the man was wearing when he entered her room.

Both these items were given to the police. [ 39 ] Both Mr. Wong and Ms. Taylor required surgeries for the grievous injuries they sustained. [ 40 ] Mr. Wong’s injuries included a right skull fracture, left quadriceps rupture requiring two surgeries, lacerations requiring sutures, a patella deformity, and right arm numbness. [ 41 ] Ms. Taylor had multiple fractures of her facial bones. She underwent full facial reconstruction and testified she has had seven plates with screws inserted into her head.

She has further surgeries scheduled and has a permanent visual impairment in her right eye from where she was repeatedly hit with the butt of the gun, and post-traumatic stress disorder. Ms. Taylor does not know who committed the offences against her and Mr. Wong. She knows of no reason why they came to the residence. [ 42 ] Both victims provided DNA samples to the police.

Police Investigation [ 43 ] Detective Craig Bridges was the lead investigator. He and Detective Brian McInnes were assigned to investigate these offences. They attended the victims’ residence, secured the firearm magazine clip, and took DNA samples of the victims. [ 44 ] During the investigation, they located video footage and GPS from Yellow Cab 314 that had been in front of the victims’ residence at the relevant times. This cab was searched, and samples were taken from what was determined to be blood and other substances in the car.

They also obtained a statement from the taxi driver. [ 45 ] As a result of these investigations, CCTV footage from September 23, 2020 was seized from the Riviera Hotel, 1288 W. Cordova Street in Vancouver, and the 7-Eleven at 1199 W. Pender Street. The CCTV records three men leaving the Riviera lobby and exiting, and Crown’s submission is that two of these men are the accused before me at trial. [ 46 ] The above are reviewed with the evidence of the cab driver, Mr. Boukhalfa. He picked up three men from the Riviera Hotel, then attended at a high-rise at 1288 W.

Cordova Street, where a young woman got in the taxi. [ 47 ] Detective Trent Lukey testified he believed the female seen leaving 1288 Cordova Street, appearing to walk towards the waiting taxi, is a young woman named Lauren Malcolm. He testified she also appears in the video of the Riviera Hotel and that he has dealt with her on prior occasions. On cross-examination, he was asked what race she was and said perhaps First Nations, though he was not a hundred percent sure.

Detective Lukey also attended the Riviera Hotel on October 5, 2020 with other officers, as they had reasonable grounds to believe that suspects involved in the file had access to the hotel, including room 504. He was present when photographs of the room were taken and identified parts of the room at trial. While in the room, he observed PC Cardamone taking DNA samples in the room. Some of these samples were presumed to be blood. They were labeled and submitted for analysis. [ 48 ] The cab, on the morning of September 23, 2020, stopped at the 7-Eleven I had mentioned.

The 7-Eleven video is very clear and in colour. It shows a man that had been sitting in the front passenger of the cab and the young woman who had gotten into the cab. They made a purchase of a gaiter style face mask and blue nitrile gloves at the 7-Eleven and then got back in the cab. The cab then stops almost across from the victims’ residence at 5:53 in the morning, where it is stationary for 21 minutes. Mr. Boukhalfa testified the three men and young woman that had exited the cab were the same persons that returned to the cab.

The cab left the victims’ residence area at 6:15:02, arriving back to the area of the Riviera Hotel at approximately 6:31 in the morning. The Riviera Hotel surveillance footage shows cab occupants exiting the cab, walking through the lobby and taking the elevator to room 504, which they entered. The front cab seat occupant remained in the cab after two other men and the female had left, but then one of the men came down and handed some money to the front seat passenger, who gave it to the cab driver. [ 49 ] DNA from Mr. Wong was found in several locations of the cab in question, and also that of Ms. Taylor.

It was also located on the bathroom door jamb from room 504, which is the room surveillance video shows all four persons that left the taxi entering later that morning. [ 50 ] Investigating officers prepared I.D. bulletins from stills from the videos and circulated them to other police officers electronically. As a result of these bulletins, some officers thought they recognized suspects and viewed more of the surveillance videos. Mr. White and Mr. Doe were identified as suspects and subsequently charged with offences before this court. Evidence of Sofiane Boukhalfa [ 51 ] The Crown submits that Mr.

Boukhalfa was the taxi driver who picked up Mr. Doe, Mr. White, and another male, who was the front seat passenger throughout, at the Riviera Hotel, and made the various stops I previously outlined, waited until the accuseds came back from committing the offences, and drove them back to the Riviera Hotel. [ 52 ] Mr. Boukhalfa came to court under subpoena. He testified he was not in court voluntarily. He testified that the young woman who had been picked up after the cab left the Riviera Hotel had told him where to stop. She initially got out of the cab alone while the three men stayed in the cab.

He said she came back about five minutes later, got into the cab, and the other three men left. He said that the men came back to the cab and she left with them. He estimates they did not return for about 15 minutes and then returned to the cab together. On their return to the cab, Mr. Boukhalfa observed that they were breathing heavily and were “very shaky, very nervous.” He drove them back to the Riviera Hotel. [ 53 ] Video from the cab was played at trial and entered as an exhibit. Mr. Boukhalfa identified the front seat passenger as a customer he knew as G.J.

He testified he did not know the other two men who got into the back of the cab at the Riviera or the young woman that he picked up in Coal Harbour. He did not see G.J. in the courtroom. [ 54 ] On cross-examination, he testified he was one hundred percent certain that the three men and young woman he had taken to the victims’ residence were the same people that got in the cab, returned, and then he drove them back to the Riviera. He had a specific recall of picking up the three men at the Riviera and dropping them off there.

He testified it was a dark, rainy night, and the men in the back were wearing masks and hoodies. [ 55 ] Recognition evidence was given by a number of police officers. Detective Bridges and Detective McInnes circulated electronic I.D. bulletins in pdf form to District 2 patrol officers and the VPD Gang

Section using photographs of the suspects. They were both assigned to investigate the offences in question. [ 56 ] Detective McInnes testified that he chose the clearest images from the videos and created an identification poster that was entered into evidence at trial. They were sent out on October 7, 2020. He testified that Constable Chichak responded to the I.D. bulletins, as did other officers. [ 57 ] I found that all of the officers who testified were credible and honest in their testimony.

[ 58 ] In terms of the recognition evidence given in respect to Shane White, Detective McInnes testified that PC Chichak identified the person in the bulletin he viewed as Shawn Robinson or Shane White. Constable Chichak provided Detective McInnes with some photographs he had taken from an interaction with a person who had introduced himself to PC Chichak as Shawn Robinson. [ 59 ] In addition to PC Chichak, PC Quach and Constable Star identified Mr. White from photographs and videos viewed during the investigation of these offences. [ 60 ] I reviewed PC Chichak’s evidence.

In my voir dire ruling of August 3, 2022, I ruled it was admissible. At that stage of the analysis only admissibility and not weight are considered. [ 61 ] PC Chichak testified he dealt with a man that identified himself as Shawn Robinson at 1600 hours on August 17, 2020 in Downtown Vancouver. He said he had not seen this man before, and this caught his attention because he likes to know all people in that area that he had seen this person in. The person who identified himself as Shawn Robinson was with another person known to PC Chichak.

PC Chichak believed that he was sitting in his police car during this interaction and asked Shawn Robinson if he could take photos of him and that Mr. Robinson consented. [ 62 ] The two photographs he took that day were introduced into evidence as Exhibit 15. In a side profile, the photograph depicts a circular tattoo on the side of this person’s head. It is in black ink and looks like a tattoo of the earth. [ 63 ] PC Chichak testified that his encounter with the person who identified himself as Shawn Robinson was “definitely longer than a minute.” He could not say if it was more than two minutes.

In direct evidence, he described Mr. Robinson as a black male with black hair in dreadlocks. He said he had dark eyes and appeared fit. When viewing the Riviera video, he testified the person with dreadlocks captured his eye initially. He said this individual had the same facial features and build, although he looked a little bigger in the video than when he had first seen him, which was approximately five weeks prior. He said that Mr. Robinson was approximately six feet tall when he saw him on August 17, 2020.

The photos he took were not full photos and did not indicate his height. [ 64 ] On cross-examination, PC Chichak was asked what specific features caused him to recognize Mr. Robinson. He replied, “just my recognition of seeing his face that I had a picture of him. I had spent a lot of time trying to identify who he was when he gave me his name because I believed he was lying to me about his name. So I spent time some. Hence, why I took a picture of him. So I just recognized the face.” [ 65 ] PC Chichak viewed two videos following his response to the I.D. bulletin.

He agreed that the person he viewed in the first Riviera video had glasses, while Mr. Robinson did not on August 17, 2020 or in court. He also agreed no tattoo was visible on the person alleged by Crown to be Mr. White. He testified that he still would have identified Mr. Robinson as the person he encountered on August 17, 2020, even in the second video when a durag covered the hair of person who was allegedly Mr. White. [ 66 ] PC Chichak agreed that he could not recall what Mr. Robinson was wearing on his feet or lower half of his body on August 17, 2020.

He agreed it was possible that this person was less than six feet tall and that he could not tell the height of the person he identified as Mr. Robinson in the video. [ 67 ] In cross-examination, he said this person’s build may have looked bigger in the video because the person was wearing baggy clothes. He agreed he did not mention his clothing when the Crown asked about his build in direct evidence. PC Chichak agreed he was unable to articulate any objective, quantifiable reason why he thought the person depicted in the I.D. bulletin was the person in the courtroom he identified as Shawn Robinson.

Near the end of his cross-examination, he stated that when he looked through the window in court, he immediately recognized the same person that he took the photo of as being Shawn Robinson. Recognition evidence of Constable Quach [ 68 ] On December 8, 2020, PC Quach electronically reviewed the 20-page identification bulletin sent by Detective Bridges that was marked as Exhibit 13 at trial. She testified she recognized Fred Doe, Shane White and Lauren Malcolm in the bulletin. [ 69 ] She documented an interaction with Mr. White the day prior to viewing the bulletin, which was December 7, 2020.

She testified that she had seen this individual a few times prior to that date but had not interacted with him. She resiled somewhat from this on cross- examination. She said this person came to her attention because he was standing with Lauren Malcolm, who she had dealt with in the past. They were both standing in an alcove of the Hazelwood Hotel at 344 E. Hastings Street, Vancouver, B.C. [ 70 ] It was dark out when she saw the person she identified as Mr. White in the alcove, but she testified there was artificial lighting.

She was in the passenger’s seat of her police vehicle during this encounter one to one and a half metres away from the person she identified as Mr. White. [ 71 ] The male identified himself to her as Shawn Robinson. This is the same name that was given to PC Chichak. She testified she ran this name in the police database and was advised Shawn Robinson was an alias for Shane White. From the descriptors on the database, she believed Shawn Robinson was Shane White. This database was not entered into evidence. [ 72 ] She testified her conversation with Mr.

White did not exceed two minutes. [ 73 ] During this encounter, she described Mr. White as a black male approximately six feet one inch with dreadlock-like pigtails on either side of his head, a moustache, and a small patch of hair on his chin, weighing approximately 180 pounds. She observed a globe tattoo on his left temple. She testified she made notes of this encounter immediately following it. She recorded in these notes that he weighed approximately 180 pounds. She testified Mr.

White was wearing a back Gore-Tex jacket, black Air Jordan sweatpants, and black, yellow and orange Nike Air Max shoes on December 7, 2020. [ 74 ] She testified that when she viewed the identification bulletin forwarded by Detective Bridges, she first recognized Mr. White in image 13. She said this showed his full face. In direct, she said she could not see his full face in images 1 to 5, but the clothing was the

same as in images 6 to 13 of that I.D. bulletin. She testified the person in image 13 had facial features, attire and stature that she recalled from her encounter with Mr. White. She stated his hair in images 12 and 13 was different, as his hair was in cornrows, and in December was more in cornrows, and it was more than in dreadlocks on either side of his head. [ 75 ] PC Quach identified Shane White in court. She said he appeared slimmer, and his hair was now in a buzz cut. In court, she testified he had a full goatee, where on December 7 of 2020, she said he had a moustache and patch of hair on his chin.

PC Quach approached the witness box and stated the person she identified as Mr. White in the witness box also had a globe tattoo on his left temple. She also noted a few other tattoos that she did not “mark at the time” that she described as lettering below the globe tattoo. She is not sure if that lettering was there on December 7, 2020. [ 76 ] In cross-examination, PC Quach agreed she assumed the person depicted in images 1 to 6 were based on the clothing being the same in all of them. In image 7, she said she would say it was Mr. White.

Without benefit of other images, she agreed she could not tell how tall he was in these images. She agreed in her testimony that she could not say for sure that the person she dealt with on December 7, 2020, was someone that she had seen previously three to five times. She further agreed that none of the photos in Exhibit 13 had a visible globe tattoo or neck tattoos. [ 77 ] In her direct evidence, she testified that Shane White had the globe tattoo when she spoke to him on December 7, 2020, and identified him in court. She agreed the individual she identified as Mr.

White in the photos had a different hairstyle than the person she identified in court as Mr. White and it was different than the person she spoke to on December 7, 2020. She testified she agreed the person in images 8 and 9 were the same person, but when asked if it was possible they were different people, she replied, “Yeah, I guess so. I wasn’t there.” [ 78 ] She acknowledged one image depicted the person with distinct cornrows in their hair, while the others did not. She agreed the main similarity between the individuals in the photos was the clothing and her recognition of the face.

She then stated that the clothing of the person she dealt with on December 7, 2020, was the same style as the individual photographed. In her VPD task report, she used the term “choice of attire” rather than style. She agreed the individual she dealt with on December 7, wore a Gore-Tex black jacket, while the person in the photographs did not.

The photographs also indicated different pants and shoes being worn than the individual she dealt with on December 7. [ 79 ] She conceded on cross-examination that the choice of attire the individual in the photos is wearing is “entirely different than what I saw on December 7, 2020.” She agreed it was not really possible to tell how tall the individual she had identified as Mr. White was in the photos. Evidence of Constable Star [ 80 ] Constable Star testified in direct evidence that she identified Mr. White from a traffic stop she was involved in on November 11, 2020.

There was a male passenger in the car whom she identified as Mr. White. The traffic stop took 40 to 45 minutes as they had difficulty identifying the female driver. This was close in time to when she reviewed the identification bulletin. She testified that as a result of this interaction, she contacted Detective Bridges because it was made aware to her that Mr. White was a person of interest in a home invasion file.

As a result of this contact, Detective Bridges sent her the identification bulletin marked as Exhibit 5 at trial. [ 81 ] She testified that the person she identified in the passenger’s seat as Shane White was a black male born in 1997 and over six feet tall. She observed him inside and outside the vehicle. She testified he was wearing a durag. She testified, “I could tell there was some type of like maybe shorter braids at the back but I wasn’t able to -- it was dark hair. That’s all I could see.” [ 82 ] In her direct evidence, she said Mr.

White had brown eyes and significant facial hair she described like a chin strap. She described he had a button nose and spaces in between his front teeth. As a result of this interaction, she spoke to Detective Bridges, who sent her the identification bulletin. She testified she identified Mr. White as the person in image 3 of this identification bulletin based on face shape, eyes, nose, and facial hair. She stated he was also wearing “the same durag” and thinks he had the same stature. [ 83 ] She identified Mr. White in court.

She said in court she recognized him from his nose and eyes, although he looked a little thinner than when she had last seen him. [ 84 ] In cross-examination, PC Star agreed she had made no mention of the appearance of Mr. White’s teeth in her November 11, 2020 report. She does not recall if he had any tattoos. [ 85 ] The identification bulletins, based on my review, did not include any photographs where one could see his front teeth and ascertain if there were gaps between them. None of the recognition witnesses whose evidence I reviewed had more than one specific encounter with Mr. White.

None exceeded 40 to 45 minutes, and those of PC Chichak and PC Quach were quite brief, no more than two minutes. [ 86 ] I will now deal with the recognition evidence of police officers in respect to Fred Doe. [ 87 ] Constables Kane, Carson, Quach, Chichak, Wong and Lee gave recognition evidence at trial in respect to Mr. Doe. In contrast to the recognition evidence given in regard to Mr. White, many of these officers had a longstanding acquaintance, they testified, with the person identified as Mr. Doe. [ 88 ] PC Kane has been a police officer since 1996.

He first worked for the Toronto Police Department and did so until the fall of 2006, when he joined the Vancouver Police Department. PC Kane testified that from 2016, when he started working on what is referred to as the Beat Enforcement Team that covered part of the Downtown Eastside, he saw Mr. Doe almost daily in a laneway to the 300 block of Main Street and got to know him. He testified he had a number of undocumented interactions with him. He testified that on at least six occasions he saw Mr. Doe selling drugs. [ 89 ] PC Kane documented two interactions with Mr. Doe. The first was on May 10, 2019.

He and another officer arrested Mr. Doe

and another male for drug offences. He was primarily involved in the arrest of the other male, but both Mr. Doe and the other person were walked to the Vancouver Jail by him and his partner, and PC Kane stayed with both men while they were booked. He estimated this interaction took between 30 and 80 minutes. [ 90 ] PC Kane’s second documented interaction with Mr. Doe was on February 18, 2020. After observing Mr. Doe, he arrested him. On cross-examination, he testified he knew Mr. Doe from prior interactions and had called him by name in these prior interactions. He testified he interacted with Mr.

Doe 10 to 15 minutes on this occasion. [ 91 ] PC Kane viewed the electronic identification bulletin sent by Detective McInnes on October 13, 2020. This was the I.D. bulletin marked Exhibit 8. He identified Mr. Doe in this bulletin and testified he was “absolutely sure” of his identification. PC Kane described Mr. Doe as a black male about six feet tall, large build and an almost shaved head in February of 2020. He testified that at this time he had a short trimmed, stubble beard, wide nose, thick lips, and a droopy or a lazy right eye that appeared to look in a different direction from his left eye.

He believed both photos he was shown in that bulletin was Fred Doe. He identified Fred Doe in court. He said he looked similar but had grown his hair. [ 92 ] On cross-examination by Mr. Movassaghi, he was asked about issues with the frailty of interracial identification. He testified he was aware of this concept, but he did not have problems with this. PC Kane appeared to be a Caucasian individual. He testified he had been involved with identifying people of many races and had interacted with many black persons in both Toronto and in Vancouver.

Recognition Evidence of Constable Carson [ 93 ] PC Carson worked primarily in the entertainment district of Downtown Vancouver for seven and a half years. On October 8, 2020, he reviewed an identification bulletin authored by Detective McInnes and sent to him electronically. This was Exhibit 8 at trial. He identified the person whose photographs appeared in this bulletin as Fred Doe. He testified Mr. Doe was frequently in the Granville entertainment district, and he had been aware of him frequenting this area since the latter part of 2012.

In the first few years of his working in the entertainment district, he saw Mr. Doe once or twice a month. There was a time span where he did not see him. [ 94 ] PC Carson described Mr. Doe as being of African American descent, approximately five feet eleven inches with an athletic build, weighing 215 to 220 pounds. He described him having black hair and brown eyes. He testified Mr. Doe had distinctive eyes that tended to have a jaundiced colour and were bilaterally further than normal from his nose. [ 95 ] PC Carson had a number of documented interactions with Mr. Doe.

His last one prior to viewing the identification bulletin was early July of 2020. He saw him during a bar watch walkthrough. He saw Mr. Doe sitting at a table and observed him approaching an exit door. He approached Mr. Doe and told him not to come back to the bar. [ 96 ] He had a prior documented interaction with Mr. Doe on Granville Street the afternoon of April 25, 2020. He observed Mr. Doe wearing a designer scarf and being near a designer bag that was on the sidewalk. He said he spoke to Mr. Doe for about 15 minutes and was one metre away, and the conversation related to the ownership of the bag, which Mr.

Doe denied ownership of. [ 97 ] PC Carson had two encounters after viewing the I.D. bulletin on October 8, 2020. The first was in January 2021 at the Ivy Show Lounge on Georgia Street. He had a conversation with Mr. Doe there, pursuant again to the bar watch programme, and asked him to leave the premises as he was inadmissible pursuant to that programme. [ 98 ] In September 2021, PC Carson conducted a curfew check at Mr. Doe’s residence. He observed his eyes were bloodshot. PC Carson recalled he also acted as cover when two police officers on bicycles were speaking to Mr. Doe on Granville Street.

This was prior to April 2020, but he did not document it. [ 99 ] PC Carson identified Mr. Doe in court. He said he looked like he had lost about ten pounds of muscle from when he had last seen him. On cross-examination, PC Carson was asked if Mr. Doe looked different. In two of the photos in the I.D. bulletin, he agreed it was possible, one had a face that looked narrower, and one looked more bloated, but he was absolutely sure that they both depicted Mr. Doe. He said it was his understanding that videos and images can look different depending on how they are formatted. [ 100 ] Counsel for Mr.

Doe did not cross-examine PC Carson on the frailty of interracial identification. PC Carson identified Mr. Doe as African American, and I observe PC Carson appeared physically to be African American. [ 101 ] In terms of Constable Quach, PC Quach worked in the Downtown Eastside January 2020 to January of 2021. On December 8, 2020, she electronically reviewed the 20-page identification bulletin that Detective Bridges had circulated electronically. She testified that she recognized Fred Doe, Shane White and Lauren Malcolm in this identification bulletin. [ 102 ] She testified that her first interaction with Mr.

Doe was within her first two months working in the Downtown Eastside area, and during the years she was on that beat, she said she would see him at least twice a week. Sometimes she conversed with him. He had told her his name was Fred Doe. [ 103 ] On cross-examination, she testified she had queried Fred Doe several times on CPIC and PRIME when she was dealing with him. She cannot recall the circumstances exactly when she first came to know his name. She described some of her conversations with Mr. Doe as casual while others would be further to investigations.

She testified she would often see him on the 100 block of East Hastings and in the west lane of 300 Main Street by the Maple Hotel. [ 104 ] She said she last dealt with Mr. Doe prior to receiving the I.D. bulletin on November 24, 2020, while acting as a cover officer. Her only interaction with him on this occasion was to say hi. She testified most of her encounters with Mr. Doe were not documented, and often she just walked by him and said hi. [ 105 ] She did document an interaction with him on April 30, 2020, during a traffic stop made following the police vehicle activating emergency lights.

She testified she had seen Mr. Doe driving a blue vehicle on Cordova Street and stopped the vehicle on Expo

Boulevard and Griffiths. She described seeing Mr. Doe jump from the driver’s seat to the back seat. After the stop, a cover unit attended, and all occupants of the car were removed. She describes her interaction with Mr. Doe on this occasion as being approximately 30 to 60 minutes. [ 106 ] On cross-examination, PC Quach could not recall which side of Expo Boulevard the vehicle was stopped, who her partner was, which officer obtained I.D. from Mr. Doe, or what route Mr. Doe drove to get from Cordova Street to Expo Boulevard. She testified that the first image in the I.D. bulletin she recognized as Mr.

Doe was image 20. She said she recognized his facial features, mainly his eyes, and his choice of attire. [ 107 ] On cross-examination, she agreed she could not be sure if the person in the I.D. bulletin was actually Mr. Doe. On cross- examination, PC Quach was unable to recall the specific clothing Mr. Doe wore during her interactions with him. [ 108 ] She did not bring her notes to court and testified she had not provided her full written narrative of this incident to Crown Counsel. She agreed she did not record descriptors of Mr. Doe’s height, weight, type of clothing or facial features in the narrative

summary that was provided. [ 109 ] PC Quach identified Mr. Doe in court. She described his hair as much longer than it had been when she had seen him previously. She described his facial features and stature as the same. Recognition Evidence of Constable Chichak in Respect to Mr. Doe [ 110 ] As previously stated, his first involvement in this matter was a request from Detective McInnes to view videos. He had not seen the identification bulletins prior to this. On October 5, 2020, he attended the police station and viewed two videos. One was taken at the Riviera Hotel, and one was the cab video.

These videos were watched in court and marked as Exhibit 14. [ 111 ] PC Chichak testified he had personally seen and dealt with Mr. Doe directly on at least 50 occasions during his work with the Vancouver Police. He testified he frequently saw him in the 100 block of East Hastings and the west lane of 300 block Main Street. He had two encounters with him that he had documented, on October 17, 2018 and September 10 and the early morning hours of September 11, 2020. [ 112 ] PC Chichak testified that on viewing the cab video, he recognized Fred Doe as the person sitting behind the taxi driver.

He said he recognized him in the cab video as soon as there was a clear view of his face. He testified Fred Doe was very distinct to him. He also testified he immediately recognized him when arriving in the court room at trial. [ 113 ] PC Chichak described Mr. Doe as a black male with usually short black hair that was maybe an inch long, and wide cheeks. He described Mr. Doe having distinct large, dark eyes. He said when he looked at him, one of his eyes would wander away. He said it would then appear he would not look at him.

In cross-examination, he stated it was his left eye that wandered. [ 114 ] On cross-examination, he identified the photo in his task report as Mr. Doe. This was a still taken from the cab video. In that photo, he identified the person behind the driver as Mr. Doe. This person in the still is wearing a baseball cap. This was marked Exhibit 16 at trial. [ 115 ] PC Chichak testified his last encounter with Mr. Doe prior to viewing the videos on October 5, 2020, was the September 10, 2020 encounter.

On that evening, at 11:30 p.m., he observed a vehicle stopped in the north lane of the 300 block of Hastings after observing a person standing in that area. He believed the person was waiting for someone in respect to a drug transaction, based on his five years’ experience in drug investigation. He observed what he believed to be a drug transaction. He followed the vehicle and stopped it in the 100 block of West Hastings. He said he approached the passenger’s side of the vehicle and immediately recognized Fred Doe. He advised he arrested Mr. Doe for drug offences. A small amount of drugs was found.

No charges were laid against Mr. Doe. He testified he dealt with Mr. Doe for half an hour at most during this interaction. [ 116 ] The documented October 17, 2018 interaction involved PC Chichak observing Mr. Doe in the west lane of 300 Main Street have three consecutive meets with people over approximately two minutes that he believed were consistent with drug transactions. [ 117 ] At trial, PC Chichak viewed video from the channel 5 camera at the Riviera Hotel. He stated he recognized Mr. Doe, whom he indicated was the individual wearing a Puma sweater.

On cross-examination, PC Chichak testified that he viewed the cab video where he identified Mr. Doe behind the driver wearing a Puma sweater. He also identified him wearing a Puma sweater in the hotel video and denies that any of his identification of Mr. Doe was tainted. Recognition of Constable D. Wong in Respect to Fred Doe [ 118 ] From 2012 to 2017 and 2018 to 2020, PC Wong worked in the downtown area of Vancouver. On October 8, 2020, she received what she referred to as an identification poster by email. This was Exhibit 8.

She testified she recognized Fred Doe in this poster. [ 119 ] She testified she was first introduced to him in late 2012 or 2013. She estimated she had seen him around the Granville Mall area over 20 to 25 times between 2012 and 2017. Mr. Doe, she testified, had been pointed out to her by other officers and she had also testified that she had run his name on PRIME and seen his mugshot. She also testified that over the years, she had asked Mr. Doe for I.D. and identified him on the street.

She testified he did not like police contact, and if she and other police approached him and said his name, he would “generally make a kind of thousand-yard stare” then turn and walk away. [ 120 ] Between the summer of 2018 and March 2020, she testified she would see Mr. Doe every couple of months on Granville Mall and around Howe and Davie Street in Vancouver. She testified she generally would see him at night on the mall and recalls him arguing with a female near a convenience store at Granville and Drake, but nothing came of this encounter, as the female left. [ 121 ] She recalled Mr.

Doe had a’ no-go condition’ to the 900 block of Granville, and she would observe him to see if he would breach

the restriction, but she never observed him doing so. She observed him walk really slowly and stop at the restricted area but then leave. Sometimes she was on foot and sometimes in a patrol car when she observed this. Sometimes she would approach him. [ 122 ] In her direct evidence, PC Wong described Mr. Doe as a black male with a dark complexion. When she observed him during her work, his hair was typically shaved, but she noted it was not when she identified him at trial.

She described him when she worked downtown as approximately six feet tall, medium, athletic stocky build, dark brown eyes with one eye that did not look straight ahead. She described one of his eyes as being off to the side. She said she had identified him in the identification poster from looking at his face, eyes, shaved head, and general appearance. She identified him in court and said he appeared the same as in the I.D. poster, apart from his hair being longer and not shaved. [ 123 ] On cross-examination, she testified that although she had no notes on Mr.

Doe’s facial features or specific interactions, she could identify him from her involvement of investigations involving him, PRIME photos, and that he responded to the name Fred Doe, and she recalls he was born in 1986, as that was the same year as Expo. [ 124 ] In cross-examination, counsel suggested that in one of the photos in Exhibit 8, the person she identified as Mr. Doe appeared to have a more bloated head, face and nose on the centre photo. She stated she was sure the photo was of the same person that she had identified as Fred Doe because she had seen him so many times.

She attributed the difference to different camera angles. Recognition Evidence of Constable Randy Lee in respect to Mr. Doe [ 125 ] PC Lee worked in the downtown area of Vancouver in two different districts from 2012 to 2018. On October 7, 2020, he received an email with an identification request, which was Exhibit 8. He testified he recognized Fred Doe, a male he had had dealings with, in this identification bulletin. [ 126 ] He described Mr. Doe as a black male in his 30’s with a stocky, athletic build, hair that was usually short and shaved, with a lazy eye, and more than normal distance between his eyes.

He testified that his lazy eye and the distance between his eyes was what initially led him to identify Mr. Doe in the identification photos marked as Exhibit 8. [ 127 ] PC Lee testified he had known Mr. Doe since 2012 when he worked in District 1. During this time, he said he interacted with Mr. Doe once every few months and continued to do this when he moved to District 2. PC Lee transferred to the Organized Crime Unit in 2018 and testified he had seen Mr. Doe at least six times since then. [ 128 ] He testified to three documented encounters with Mr.

Doe in 2020 as follows: [ 129 ] April 25, 2020, he observed Mr. Doe in the 1100 block of Granville Street with three other males. He testified he spoke to Mr. Doe for at least 15 minutes during this interaction during daylight hours. July 7, 2020, PC Lee recognized Mr. Doe in a restaurant bar establishment that he was not supposed to be in, according to PC Lee. He spoke to him inside this establishment and told him he was inadmissible and had to leave. October 20, 2020, PC Lee documented Mr. Doe loitering on a sidewalk on the Downtown Eastside. He cannot recall if they conversed.

On October 7, 2021, he had an interaction with Mr. Doe during a bar watch ejection. He also had contact with him in 2021 during two curfew checks. In all three instances in 2021, he testified he had conversations with Mr. Doe. He described the conversations during curfew checks as lasting several minutes. [ 130 ] On cross-examination, he said he was probably partnered with Detective Carson during the curfew checks, as they were normally partnered. [ 131 ] PC Lee identified Mr. Doe at trial.

He said his hair looked longer. [ 132 ] I will now review the law. [ 133 ] The Crown has the burden of proving beyond a reasonable doubt that Mr. Doe and Mr. White are guilty of each element of the charges before the court in order to displace the presumption of innocence. [ 134 ] While the Crown is not required to prove guilt with a hundred percent certainty, it is closer to certainty than a balance of probabilities, as set out in R. v. Whitmore , 2021 BCCA 302 , paragraphs 26 to 36 . If there is a reasonable possibility that one or both of the accuseds are other than Mr. Doe or Mr.

White, the Crown has not proven its burden. [ 135 ] At the start of trial, defence counsel and Crown agreed that the only live issue before the court was whether the Crown has proven beyond a reasonable doubt that Mr. Doe and Mr. White were the persons that were included in those committing the offences against Ms. Taylor and Mr. Wong in their residence on the early morning of September 23, 2020.

The Crown’s case is based primarily on recognition evidence, although there is some eyewitness evidence and DNA evidence before the court, as previously discussed. [ 136 ] The cases submitted by both defence and Crown comment on the danger of wrongful conviction that arises from reliance on eyewitness identification, in-dock identification, and recognition evidence where a witness is unfamiliar with the accused. The cite for that is R. v.

Hibbert , 2002 SCC 39 , at paragraphs 50 to 52 . [ 137 ] Where identification forms the basis of the Crown case, the court must be vigilant where there is cross-racial identification, especially where identification is based on generic description as set out in R. v. Bao , 2019 ONCA 458 , at paragraph 23 . [ 138 ] In R. v. Field , 2018 BCCA 253 , the sole issue at trial was the identification of the man that had robbed an inn clerk while masked, and shortly after, two persons tried to carjack a vehicle.

The Crown theory was that the men that committed the robbery took a taxi to the inn, then tried to carjack a car to get away. Police circulated photographs from inside the taxi of the suspects. Two probation officers gave recognition evidence identifying one of the accused. The taxi driver identified the accused as a passenger he drove to the area of the inn. The carjack victim identified the accused in court.

[139] At trial, the recognition of the probation officers was accepted, given their familiarity with the accused. The testimony of the taxidriver and carjack victim was not relied on. The trial judge further concluded he could not rely on his own assessment of the photos. Itwas held by the B.C.

Court of Appeal that the recognition of the probation officers was entitled to a high degree of deference and theconviction was upheld. [140] In the Court of Appeal’s analysis, it is stated that it is well known that identification evidence can be unreliable, “but the degreeof reliability of identification evidence is a function of the particular circumstances in which it is tendered,” at paragraph 22. [141] Three types of identification that may be tendered are reviewed at paragraph 23 of Field as follows: (

i) Eyewitness evidence by a stranger: Experience has shown that eyewitness evidence proffered by a stranger to the accused is the leastreliable identification evidence. It has been described as “inherently unreliable”: R. v. M.B., 2017 ONCA 653 at para. 29. In light of themany instances in which identification has proved erroneous, the trier of fact must be cognizant of “the inherent frailties of identificationevidence arising from the psychological fact of the unreliability of human observation and recollection”: R. v.

Burke, (SCC), [1996] 1 S.C.R. 474 at para. 52. (ii) Identification by the trier of fact through photographic evidence: On occasion, the trier of fact will have the benefit of photographicevidence taken at or sufficiently near the scene of the crime to have probative value in determining the identity of the perpetrator. Aslong as the photographic evidence is of sufficient clarity and quality to permit identification of the person shown in the photo, theevidence can be admitted and weighed with other evidence by the trier of fact: R. v.

Nikolovski, (SCC), [1996] 3 S.C.R.1197 at para. 23. [142] The third type of evidence discussed at paragraph 23 of Field is recognition evidence: (iii) Recognition evidence: The Crown may also choose to tender opinion evidence from a person or persons who can identify theindividual shown in a photo or video. This evidence is admissible if the witness had a prior acquaintance with the accused and istherefore in a better position than the trier of fact to conclude whether the individual in the photo is the accused: R. v. Leaney, (SCC), [1989] 2 S.C.R. 393; R. v.

Brown (2006) (ON CA), 215 C.C.C. 330. [143] In Field, the court discussed the threshold test in R. v. Anderson, 2005 BCSC 1346, which I did address in my voir dire ruling onthe admissibility of the recognition evidence before me. [144] Further cited in Field is the decision of R. v. Panghali, 2010 BCSC 1710 affirmed 2012 BCCA 407, wherein Holmes J.summarized the significance of prior acquaintance. At paragraph 44 of Panghali, Holmes J. did note that many of the well-knownfrailties in eyewitness identification may unconsciously approach the process of comparison with an eye to similarities and notdifferences. Mr.

Justice Hunter, in paragraph 42, stated: [42] While it is important to scrutinize carefully any form of identification evidence, recognition evidence does not carry with it theinherent unreliability of eyewitness testimony of a stranger. Justice Neilson made this point in R. v. Bob, 2008 BCCA 485: [13] ... There is a significant difference between cases in which a witness is asked to identify a stranger never seen by him before theoffence, and cases in which a witness recognizes a person previously know to her.

While caution must still be taken to ensure that theevidence is sufficient to prove identity, recognition evidence is generally considered to be more reliable and to carry more weight thanidentification evidence. [145] I believe that is a reference to eyewitness testimony. [146] On the appeal in Field, the appellant submitted the trial judge had erred in failing to consider the quality of the photos theprobation officers based their recognition evidence on.

The trial judge had commented that the best photo was not excellent and was byno means a surveillance video of HD quality, but held the question was “whether the photo is of sufficient quality as to assist the twowitnesses.” This is outlined in paragraph 44 of the Court of Appeal’s decision. [147] Holmes J. held this was sufficient consideration of the photo’s quality. He stated that the trial judge was reluctant to rely on hisown assessment of the photos, not based on their quality or lack thereof, but on the basis he did not know Mr. Field when the photoswere taken and the evidence that Mr.

Field may have looked different in 2014. [148] R. v. Muncey, 2013 BCSC 689, was an earlier case that considered identification evidence, and in that case Voith J. noted that hehad viewed a videoclip of the accused repeatedly and compared images in it with photographs and his in-court observations of theaccused. He held he was satisfied beyond a reasonable doubt that the individual in the videoclips and surveillance stills were theaccused. He noted in the video the person had a large tattoo on the side of his neck.

He could not discern the details of the tattoo butobserved in court the accused had a large tattoo on his neck. Voith J. further stated that the person in the video and still clearly depictsthe accused’s face, which is quite narrow, as is his nose, and that he has a relatively high forehead and slight build. [149] Voith J. commented on the absence of distinguishing features of an accused at paragraphs 56 to 74.

In paragraphs 66 to 67, henotes that an accused will often appear differently at trial than at the time of the offence and that: [67] Recognition evidence from persons who have had close and/or extended interaction with an accused and who were familiar with anaccused’s features and other characteristics at the time the offence was committed can provide helpful and important evidencenotwithstanding an inability to describe any distinguishing or idiosyncratic features of the accused. [150] Then there is the case of R. v. Shaw, 2020 BCPC 12, which is a case of my colleague, Judge W. Lee.

I will just review this case. It is in the binder provided by Mr. White’s counsel. In that case, there was a bank robbery, and the bank had a video in it. [151] As is stated in the previous case of Field, each case turns on its own fact, but Shaw is a case that indicates a judicial caution in the

use of recognition for conviction. The bank video showed a white male wearing black-rimmed glasses, identifiable clothes and a baseball cap entering the bank and presenting a note to an employee and pointing a gun and saying he wanted money. She gave him the money. She was unable to see his face or clearly identify him. [ 152 ] An identity bulletin was made and circulated, and a police officer recognized the face from another I.D. poster. He did not know the person’s name but showed it to a hotel manager, who identified the person as Mr. Shaw. [ 153 ] A transit officer further identified Mr.

Shaw based on an arrest the day before the robbery. He had interacted with him for about an hour, viewed and took photos of the accused’s face. The photos depicted a person wearing glasses similar to the robber. When he received the information poster, he identified similar characteristics to Mr. Shaw, including droopy eyes, how he wore his glasses, type of glasses, eye expression, and a bubble-like nose tip and gait. [ 154 ] A loss prevention officer also testified and gave recognition evidence. He had had three arrests of Mr. Shaw, and his interactions had lasted between 15 and 80 minutes.

He identified that Mr. Shaw walked with a limp and identified him also from a distinctive jaw line and pronounced brow in the information poster. He was confident about his identification but agreed it was possible he was mistaken. [ 155 ] The hotel manager where Mr. Shaw had lived for several years also testified and identified two photographs shown to him by police as Mr. Shaw. He commented on how he wore his glasses and could not articulate, however, why he resembled Mr.

Shaw other than saying it just looked like him. [ 156 ] Judge Lee reviews the law at paragraphs 46 to 53 of his decision and considered what was similar about the robber to Mr. Shaw and what was different at paragraphs 67 and 68 of that decision. He held that while the evidence before him led him to suspect that Mr. Shaw was the robber, that was not enough due to the quality of the videos and photos taken from it. This raised a reasonable doubt, and he acquitted Mr.

Shaw. [ 157 ] In terms of analysis, the evidence of the taxi driver, the Riviera Hotel videos, prior and following the taxi stopping near the victims’ residence, the GPS from the taxi, the DNA of the victims found in the cab and in room 504 at the Riviera Hotel establish beyond a reasonable doubt that the three men depicted in both the Riviera Hotel and in the cab committed the home invasion and other offences against Ms. Taylor and Mr. Wong. The issue, however, is if Mr. White and Mr. Doe were two of these men. [ 158 ] As stated by Mr.

Doe in his closing submission today, there is no fingerprint evidence or DNA evidence of Mr. Doe or Mr. White before me. The DNA evidence of the victims was found in the cab and room 504, but this case turns on the strength of the recognition evidence. [ 159 ] Ms. Taylor gave eyewitness evidence, which I accept, but she was unable to identify any of the perpetrators. Again, Ms. Taylor testified that when she woke up, the first thing she saw was a gun pointed at her face.

The individual pointing the gun turned the light on in her room, and she could see he was wearing a blue medical face mask, but despite this, she could see the skin above his nose, eyes and hair, and she identified him as black, a light-skinned black person. She believes he was wearing a hoodie, but she testified she could see his hair, which she described as being in cornrows pulled to either side of his head. She does not recall seeing this person’s neck.

Again, she testified it was this man that hit her repeatedly in the face with the butt of a gun. [ 160 ] Constables Chichak, Quach and Star each had one direct interaction with the person they identified from identity bulletins and videos in evidence and in court as Shawn Robinson, a.k.a. Shane White. All had their encounters within weeks prior to the offences in question or two to three months following. The Riviera Hotel and taxi videos depict an individual that Crown submits is Mr. White. Stills from the Riviera videos, which are of fairly good quality, of the individual the Crown submits was Mr.

White were included in the identification bulletin circulated by the Officers McInnes and Bridges. [ 161 ] In Detective Bridges’ I.D. bulletin, images 1 to 6 are submitted by the Crown to be Mr. White. He appears to be a black man. He is wearing a jacket or a hoodie with a V across the chest, dark sweatpants, wire-framed glasses and black shoes. This person has a high forehead, a dark patch of facial hair on his chin with some grey in it. His hair is braided vertically across his head in all images but image 3. In that photo, his hair is covered by a black durag.

His height cannot be ascertained. [ 162 ] The same individual is depicted in the identification bulletin marked as Exhibit 8, at page 1, and in the I.D. bulletin sent by Detective Bridges which contains 37 photographic images of several individuals. [ 163 ] Mr. White has been identified as the third person in images 1 and 2. That person is wearing the same clothing as in the bulletins above, wearing a blue face mask, and has the hood on his jacket up in these images and in images 3 to 5. In images 6 to 8, this person is wearing a black durag and his hair is covered.

Photos contained in the bulletins are at images 8 to 13. No tattoos are visible in these photos. He is wearing glasses in some but not all of the images. Again, no tattoos are visible on his face, head or elsewhere. The individual identified in these bulletins does not have their mouth open and one cannot see their teeth. [ 164 ] Constable Chichak took two photographs at 1600 hours on August 17, 2020, of a person that identified himself to PC Chichak as Shawn Robinson. This was just under five weeks before the matters before this court.

The man in the two photographs taken by Constable Chichak appears to be black. He has his hair braided vertically into several braids that extend approximately an inch or two past the base of the head. [ 165 ] This person is smiling in one of the photographs, and one can see gaps between his front teeth and the two teeth to the left. He is not wearing glasses. He has a patch of facial hair on his chin and what could be a faint moustache. [ 166 ] The first photograph is a photograph of the upper half of his body. No tattoos are visible in the frontal shot.

The second is a profile shot that depicts a dark ink tattoo that appears to be the globe or the world, and it is the approximate size of between a quarter and a half dollar. The bottom of the tattoo appears to start parallel to his eyebrows and extends to near his hairline. There appear to be some letters vertically tattooed near his ear and possibly a faint tattoo on the side of his neck.

[ 167 ] PC Quach interacted with a male that identified himself as Shawn Robinson on December 7, 2020. This was her first interaction with this person. She identified him as Shane White in the I.D. bulletin she received the next day. She described him as a black male approximately six-foot one inch with dreadlock-like pigtails on either side of his head, a moustache, and a small patch of hair on his chin. She noted he weighed approximate 180 pounds. She testified she observed the globe tattoo on his left temple on December 7, 2020. [ 168 ] Both she and Constable Chichak identified this person as Mr.

White in court. In court, they approached him, looked at his head, and confirmed that the globe tattoo was the same as the person they had encountered. [ 169 ] Constable Quach did not testify about his teeth. She said he appeared slimmer in court than when she had seen him in December 2020. Her only direct interaction with Mr. White she testified was December 7, 2020. She was in the passenger’s seat of her police car approximately one to one and a half metres away from him.

She recognized the female he was with as Lauren Malcolm, who was also the female she recognized in the I.D. bulletin. [ 170 ] She described his hair as different in images 12 and 13 of the I.D. bulletin she viewed. She described his hair during her interaction with him on December 7, 2020 as being in cornrows, while it was more in dreadlocks on either side of his head on December 7, 2022. [ 171 ] Constable Star identified Mr. White based on a traffic stop she made on November 11, 2020. She testified this interaction was 40 to 45 minutes long, and she observed him inside and outside the vehicle.

He was wearing a durag, and she thought he may have had some shorter braids at the side at the back of his head but was not definitive other than to say his hair was dark. She described he had significant facial hair like a chin strap, a button nose, and spaces between his teeth. She did not comment on his teeth in her November 11, 2020 narrative report and could not recall if he had tattoos. She became aware Mr. White was a person of interest in a home invasion and testified she contacted Detective Bridges, who sent her the identification bulletin marked Exhibit 5.

It is not known how she became aware of this, him being a person of interest. [ 172 ] She identified the person in image 3 of the I.D. bulletin as Mr. White. She states he is wearing a black durag in the photo. She said it was “the same durag” and believes his face matched. I note there is no identifiable pattern on the head covering known as a durag. It appears black in the photo. [ 173 ] PC Star also identified Mr. White in court.

She testified she recognized him from his nose and eyes, although he looked a little thinner. [ 174 ] I have no doubt that the person photographed by PC Chichak in August 2020, and identified by he and PC Quach at trial are the same, given the globe tattoo they observed and noted prior to and following the home invasion. The question still remains if it was the person in this court that participated in the home invasion. [ 175 ] The person identified as Shane White in the videos and I.D. bulletins has similarities to the photo taken by Constable Chichak in August 2020. Both are black and have high foreheads.

Both have facial hair on their chin. While both have their hair in braids, the description varies between cornrows and dreadlock-like braids. [ 176 ] PC Chichak testified it was Mr. Robinson a.k.a. Mr. White whom he initially identified in the video due to his dreadlocks. He acknowledged the person looked “a little bigger” in the video than when he had seen him in August 2020. He agreed that no tattoos were identified on the person he identified in either I.D. bulletin or the two videos he viewed.

He was unable to articulate any objective basis on why he thought the person in the I.D. bulletin was the person he identified in court. He testified that his encounter with this person in August 2020 was longer than a minute, but he could not say if it was more than two minutes. [ 177 ] Constable Quach had one encounter with the person she identified in court as Shane White a.k.a. Shawn Robinson. She agreed that the person in the I.D. bulletin that she identified as Shane White did not have visible tattoos. [ 178 ] Her direct evidence was undermined somewhat on cross-examination.

She had one brief interaction with this person of less than two minutes while sitting in her police vehicle at night. She conceded that what the person was wearing in the I.D. bulletin she viewed was entirely different than what he was wearing on December 7, 2020, which was one of her initial means of identification. She initially identified the person in images 8 and 9 of the I.D.

Bulletin she viewed, which was Exhibit 13, to be Shane White, but on cross- examination stated it was possible they were different people. [ 179 ] In respect to Constable Star, she had the longest single encounter with the person identified as Mr. White. She observed him in and out of the vehicle but did not notice any tattoos. She testified his hair was covered by a durag. She was unable to point to anything specific beyond the head covering in the photos and spaces between his teeth. These spaces are not evident in the I.D. bulletins but only in the photos taken by PC Chichak.

She opined he had the same stature, face shape and facial hair that she saw in the video but acknowledged she had only one encounter with him, and this encounter involved also the female driver of the vehicle. She conceded it was not possible to ascertain height from the videos or photos. [ 180 ] Defence counsel submits that her descriptives of his hair, eye colour and nose, and the wearing of a durag, could apply to a number of black persons. [ 181 ] As per the Shaw case, the evidence against Mr. White is not as strong as that set out by Judge Lee. I find in respect to Mr.

White that the recognition evidence before me was less persuasive than that before Judge Lee. Neither the videos nor photographs showed the globe tattoo. The photos taken by Constable Chichak did, as did the person PC Quach interacted with on one occasion. I note the female with the male she identified as Mr. White was also identified by PC Quach in the I.D. bulletin, but, again, this cuts both ways. [ 182 ] In terms of Nikolovski, I find that the quality of the hotel and cab evidence allowed clear views at times of the person the Crown submits is Shane White.

[ 183 ] I have carefully reviewed the videos and compared them to the photos and observed Mr. White in court. At one point in the cab video, the individual Crown alleges is Mr. White is clearly sitting in the back seat behind the cab driver. His face mask is off at points, as are his glasses. The hotel videos depict this individual with and without a durag and with and without glasses.

No facial tattoos are visible in the videos or photos. [ 184 ] While there are some similarities to the person depicted in the photos taken by PC Chichak in August of 2020, there appear to be significant differences to the videos and in the court appearance of Mr. White independent of facial hair, glasses and body weight. [ 185 ] I cannot state beyond a reasonable doubt that the person depicted in the videos and stills is not Mr. White but neither can I say beyond a reasonable doubt that it is. [ 186 ] The Crown has not established beyond a reasonable doubt that Mr.

White was one of the perpetrators of the charges alleged against him in Information 262298-5-C, and I therefore acquit him of all charges in that information. [ 187 ] I will now deal with the evidence in regard to Fred Doe. [ 188 ] The recognition evidence given in respect to Mr. Doe overall indicated the witnesses’ high degree of familiarity with Mr. Doe that continued to the time period in question by at least four of the officers that testified. Recognition evidence was given by six police officers that testified the person in the identification bulletins and/or videos was Fred Doe. [ 189 ] PC Kane saw Mr.

Doe on an almost daily basis from when he started working in the Downtown Eastside in 2016. He had a number of undocumented interactions with him and two documented interactions in May 2019 and February 2020, which resulted in Mr. Doe’s arrest. PC Kane knew Mr. Doe by name. He spent significant time with him during both arrests. PC Kane viewed the identification bulletin on October 13, 2020, and identified Mr. Doe in it. He testified he was absolutely sure of his identification. One of the characteristics he identified was Mr. Doe’s lazy eye that appears in photos.

PC Kane testified he had been involved with identification of persons of many races and interacted with many black persons in Toronto and Vancouver. [ 190 ] PC Carson stated he was familiar with Mr. Doe since 2020, where for a few years he saw him once or twice a month downtown. He had a number of undocumented and documented interactions with Mr. Doe. The last documented interaction he had with Mr. Doe was July 2020, when he interacted with him during a bar watch patrol.

On April 25, 2020, he had had an interaction with him on Granville Street regarding ownership of a designer bag on the sidewalk. [ 191 ] After the offences in question, he interacted with Mr. Doe in January 2021, again through the bar watch programme, and also conducted a curfew check on Mr. Doe in September 2021. PC Carson was certain that Fred Doe he identified in court is the person depicted on the identification bulletin he viewed October 8, 2020. He noted his distinctive eyes. [ 192 ] PC Quach testified her first interaction with Mr.

Doe was in early 2020, and she saw him at least twice a week until January 2021. She testified during this time he had told her his name was Fred Doe. She had queried him under this name several times on CPIC and PRIME. She agreed that most of her encounters with Mr. Doe were not documented and often were just her saying hi. [ 193 ] She documented an interaction with him during a traffic stop on April 30, 2020. She said that her interaction with him was between 30 to 60 minutes. She had not brought her notes to court or provided her written narrative on this interaction to Crown.

She was also not sure that the person in the I.D. bulletin was actually Mr. Doe. She did identify him in court. She had had only one documented interaction but advised that the person she had interacted with identified himself to her as Fred Doe. [ 194 ] Her evidence is weakened by her not having her notes and detailed narrative available at trial and her admission that the person in the identification bulletin might not be Mr. Doe. [ 195 ] PC Chichak personally dealt with Mr. Doe during his work with the VPD on at least 50 occasions on the Downtown Eastside.

He has had documented encounters with him October 2018, and within two weeks of the offences before this court. That interaction was half an hour at most. [ 196 ] On October 5, 2020, he viewed videos of the Riviera Hotel and cab video that were in evidence. He testified he immediately recognized Mr. Doe as the person sitting behind the cab driver as soon as there was a clear view of his face. At times in the video at different portions, both the person identified as Mr. White and Mr. Doe were seen sitting behind the driver. [ 197 ] PC Chichak provided a still from the video that he identified as Mr.

Doe, wearing a baseball cap and no mask. This was Exhibit 16, and it is quite a clear photo. He also described that one of Mr. Doe’s eyes wanders and did not look directly. He identified him in the hotel videos as the person wearing the Puma sweater. [ 198 ] PC Wong testified she had seen Mr. Doe over 20 to 25 times between 2012 and 2017. During that time, she had identified him on the street and run his name on PRIME. She testified his mugshot was on PRIME. Between the summer of 2018 and the spring of 2020, she observed him every couple of months in the downtown area and described these observations.

She identified Mr. Doe in court as the same person in the I.D. poster. She also described one of his eyes as being off to the side. [ 199 ] Constable Lee has known Mr. Doe also since 2012 and interacted with him once every two months between 2012 and 2018. Since transferring to the Organized Crime Unit, he has seen Mr. Doe at least six times and had three documented encounters with him between April 25 and October 2, 2020, that I previously reviewed. In 2021, he had an interaction with him during a bar watch patrol and twice doing curfew checks.

He had conversations with him on all these occasions. [ 200 ] PC Lee identified Mr. Doe on the identification bulletin he received October 7, 2020. This was five days after his last documented interaction with him. He testified Mr. Doe’s lazy eye and the distance between his eyes is what initially led him to identify Mr. Doe in the bulletin.

[ 201 ] I am satisfied that the totality of the evidence, which includes the video and recognition evidence, establishes beyond a reasonable doubt that Fred Doe is the person before the court and identified in the video images and in-court identification. From my view of the evidence as a whole and my observations of Mr. Doe in court, I have concluded they are the same person. I, like others, have noticed the uniqueness of his eyes. [ 202 ] I find that the Crown has established beyond a reasonable doubt that Mr. Doe is guilty of Counts 1, 4, 5, 6, 7 and 8. [ 203 ] In respect to the robbery charges at Counts 2 and 3, I find him guilty pursuant to s. 343(

c) of the Code , which states that every one commits robbery who assaults any person with intent to steal from them. [ 204 ] It was obvious that the purpose of this home break in was to rob the victims. There was no evidence before me that anything was actually stolen. The presumption of intent in respect to the B & Es has not been displaced by Mr. Doe. [ 205 ] There is not direct evidence that Mr. Doe committed the aggravated assault of Ms.

Taylor, but pursuant to s. 21, which states that: Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [ 206 ] I find him guilty of all offences under that section. (REASONS CONCLUDED)