R. v. Davis., 2011 ONCJ 901

R. v. Davis. Reasons for Judgment – DeBacker,J.P MONDAY, OCTOBER 31, 2011 THE COURT: Good afternoon, gentlemen. MR. BOSWELL: Good afternoon. MR. MILLER: Good afternoon, Your Worship. THE COURT: Mr. Boswell. Mr. Miller. Calling the matter of Ricky Rodney James Davis. R E A S O N S F O R J U D G M E N T DEBACKER, J.P. (Orally): Mr.

Davis is charged on or about the 18 th of February, 2009 in Windsor and elsewhere in the Province of Ontario, he did commit the offence of knowingly make a false or misleading statement or representation to the Workplace Safety and Insurance Board in connection with his claim for benefits, contrary to section 149(1) of the Workplace Safety and Insurance Act . The sole issue of this trial was very narrow. Mr. Davis had advanced a WSIB claim for right shoulder injury which had occurred at his then place of employment, Veltri Stamping, in 2007. In 2008, Veltri Stamping hired a private investigator, William Gherasim.

Mr. Gherasim videotaped an individual mow the front lawn at Mr. Davis’ residence on November 11, 2008. WSIB case manager, Lorna Howell, requested a meeting with Mr. Davis. The meeting was held at WSIB offices in Windsor, Ontario on February 18, 2009. Present at the meeting were Mr. Davis, Ms. Howell and Mr. Allen Topliffe. Mr. Topliffe was then nurse case manager for Mr. Davis’ case. The purpose of the meeting was to present the video to Mr. Davis and for Ms. Howell to explain to Mr. Davis her decision to cease his benefits. The video was shown to Mr. Davis from a computer laptop monitor. Mr.

Davis was then asked whether the person in the video was him. Mr. Davis’ response was to the effect that the person looked like him, however was not him. He did not know who it was and he hired someone to do his lawn. The sole, narrow issue of this trial was simply that it is alleged that Mr. Davis’ response, to wit, that the person in the video was not him, is the offence of knowingly make a false or misleading statement or representation to WSIB in connection with his claim for benefits. Ms. Lorna Howell’s evidence was strong and she confirmed it was Mr. Davis in the video based on her having met Mr.

Davis on one previous occasion and her having viewed the video. She was also certain Mr. Davis viewed the video on a large television monitor on February 18 th , 2009, which later was confirmed by Mr. Topliffe to be incorrect. Rather, the video was viewed on a computer monitor. Ms. Howell admittedly did not know Mr. Davis outside of one earlier meeting and her viewing of the video. Mr. Allen Topliffe’s evidence was the person in the video looked like Mr. Davis. Investigator William Gherasim’s evidence was the person in the video is Mr. Davis. Mr. Gherasim indicated it was his practice to use binoculars first.

He believed he used binoculars to identify Mr. Davis prior to videotaping, however, use of binoculars was not noted anywhere in his extensive notes. Mr. Gherasim also gave contradictory answers to questions put to him in cross-examination. The certainty of his evidence regarding several factors put to him changed to an admitted uncertainty.

Given the totality of Mr. Gherasim’s evidence, this court cannot, with any confidence, accept as proof beyond a reasonable doubt thatMr. Gherasim did use binoculars that day, but only that it was his usual practice to use binoculars. Mr. Gherasim, lastly, refuted after indicating with certainty, that his opinion that the person in the video is Mr. Davis was based onconfirmation of an opinion that he received from Veltri’s personnel. Mr. Darren Anger, manufacturing manager of Veltri Stamping, was the Veltri personnel present who was asked to identify the lawnmowing person in the video when Mr.

Gherasim played the video for Veltri. Mr. Anger was the only person of those who testified whowould have any personal knowledge of Mr. Davis. Mr. Davis started work at Veltri in 2001 and had Mr. Anger as his supervisor for anumber of years. Mr. Anger’s evidence was that the person in the video looked like Rodney (sic) Davis to him based on Mr. Davis’ shape, size andmovements which, admittedly, Mr. Davis’ shape, size and movements are all very common, un-unique and general. There was nothingdistinctive about Mr. Davis or his shape, size or movements. The defence did not call any evidence. Did Mr.

Davis make a false statement to the effect that the person in the video was not him? To answer affirmatively, the court must firstconclude that the statement is false. In other words, the court must be confident that the person in the video is Mr. Davis to then beconfident that his statement is false. Mr. Davis’ statement itself was evidence to the contrary. It was evidence that it is not Mr. Davis in the video. So, what evidence was there that it was Mr. Davis in the video; opinions of persons who viewed the video, the video itself, andcircumstantial evidence?

The video was played in the courtroom on a large television screen. This court finds with confidence that the video depicted a person ofdark skin mowing a lawn. There were shortcomings with the video. The person was wearing a wide-brimmed ball cap that virtuallycovered the top half of the person’s head and the person’s eyes. There was no clear depiction of the person’s face or frontal view. Thiscourt finds the video evidence was non-conclusive. Positive identification beyond a reasonable doubt could not be made from a video of a person from a distance whose face is notdiscernable.

Lastly, the circumstantial evidence was that the lawn mowing individual did not arrive by vehicle from the street in front of Mr. Davis’residence. Can the court make an assumption that the person would have been either Mr. Davis or a relative or a neighbour or shouldhave at the very least been a person known to Mr. Davis? Or, if a contractor, there is no evidence put forth by the defence regarding whoit was that Mr. Davis contracted to cut his lawn. There was no evidence or receipt of such contract for lawn service. There was noevidence that Mr. Davis does not own a blue and white jogging suit.

These factors were commented on by Mr. Boswell during hissubmissions. To accept this circumstantial evidence as proof would be to shift the burden of proof beyond a reasonable doubt, which rests with theprosecution throughout the trial, to the defence. The defence is never required to prove his innocence. Presumption of innocence isfundamental to all trials. R. v. Lifchus, (SCC), [1997] S.C.J. No. 97, Mr. Justice Cory said: “proof, establishing a probability of guilt, is not sufficient to establish guilt beyond a reasonable doubt.”

The weight of all witnesses’ opinion evidence based on their viewing the video or comments by others is greatly diminished given the fact that the video was completely and unequivocally by no means conclusive with respect to identity. The prosecution has fallen short of proving this case beyond a reasonable doubt and for that reason the finding of the court will be not guilty. This case is being marked dismissed. Not guilty. MR. MILLER: Thank you very much, Your Worship. MR.

BOSWELL: Thank you, Your Worship. ********** I, Donna Severin, certify that this document is a true and accurate transcript of the recording of HER MAJESTY THE QUEEN v. RICKY DAVIS in the Ontario Court of Justice Provincial Offences Division held at 251 Goyeau Street, Windsor Ontario N9A 6V2 taken from recording no. 0860/301/20111030, which has been certified in Form 1 by Richard Lafreniere.

December 17, 2013 Date Certified Court Clerk Reporter City of Windsor Photostat copies of this transcript are not certified and have not been paid for unless they bear the original signature of Donna Severin, and accordingly are in direct violation of Ontario Regulation 587/91 , Administration of Justice Act , R.S.O. 1990. ********** Transcript Ordered: ...................... December 12, 2013 Transcript Completed: .................... December 17, 2013 Ordering Party Notified: ................. December 17, 2013

No: 0860 999 10 10746 00 Citation: R. v. Davis , 2011 ONCJ 901 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. RICKY R.J. DAVIS ********** REASONS FOR JUDGMENT BEFORE HER WORSHIP JUSTICE OF THE PEACE H. DEBACKER, on October 31, 2011 at WINDSOR, Ontario ********** OFFENCES: s. 149(1) W.S.I.A. – knowingly make a false or misleading statement

********** APPEARANCES M. Boswell Provincial Prosecutor F. Miller Counsel for the defendant