R. v. Chevannes, 2011 ONCJ 754

Citation: R. v. Chevannes , 2011 ONCJ 754 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — CRAIG CHEVANNES Before Justice P. Harris Judgment delivered on December 12, 2011 Nel Delgado ......................................................................................................................... for the Crown Daniel Rechtshaffen ........................................................................................................... for the Defence P.Harris J.: 1 .

Craig Chevannes is charged with both Mischief Over $5,000.00 and Dangerous Operation of a Motor Vehicle, as a result of an incident which was alleged to have occurred on August 8, 2010. 2 . This is the story of an unexpected, high-impact visit to an apartment building at 115 Tyndall Avenue in Toronto in the form of a vehicle crashing into the front lobby. 3 .

The trial issues to be determined in this proceeding are: (1) the admissibility of the surveillance video recording from the lobby area of the apartment building; and (2) the identity of driver of the motor vehicle; (3) whether the driving constituted dangerous operation. The Facts 4 . Bradley James, 39 years of age, testified that he was at a bar on King Street, Toronto on August 8, 2010 in the afternoon where he consumed four pitchers of beer (“32 oz., probably”) after which he left to “see a girl” who lived at 115 Tyndall Avenue, a short distance away.

As he arrived at this address he said he saw “a buddy of mine, Billy, in a green Lexus”. He stated that Billy was in the front passenger seat. The vehicle was parked on the driveway of that apartment building and Billy “offered me a ride”. According to Mr. James, he was “drinking so much” things were “kind of vague”. When asked who the driver was, Mr. James pointed at the defendant, Craig Chevannes, seated before the Court. When asked why he pointed at the defendant, Mr. James stated “the police showed me a picture and it kind of resembled him now”. Mr.

James was not able to offer any description of the male who drove the motor vehicle into the building on August 8 th , 2010. He testified he decided to get into the back seat “thinking I’ll get a ride home”. He said the two in the front seat started arguing, Billy left, and he got out as well and “went into 115 Tyndall Ave. Mr. James gave evidence that he was in the building “getting” to the elevators “when he heard a big crash from behind” and observed that the same car had crashed into the lobby of the building breaking large panels of glass and bending the window frame.

Because of all the glass he could not see who the driver was, but “about two minutes” after the crash, he saw Chevannes “getting out of the driver’s side front seat of the car. Mr. James was shown photo exhibits 3, 4 and 5 and indicated that Chevannes was the person in the photos wearing a green and black jacket in the vicinity of the green Lexus at the apartment front windows. 5 . Tyson Acker, age 33, gave evidence that he was at home on the 8th floor at 115 Tyndall Avenue, “taking a nap” when he heard a “crash and a smashing of glass”.

He testified that he went to the balcony and observed a Lexus motor vehicle which had “impacted into the side of the building”. He saw the car then “backing up” and spinning its tires in the front lawn”. It was a green Lexus sedan. He stated “one gentleman got out of the driver seat”, and he walked a short distance away and “spoke to a white guy”. He said he called police about five minutes after the damage occurred and “snapped several photos within 10 minutes of the crash”. 6 . He described the driver as an African-American male, bald, with green stripes on his coat. Mr.

Acker was not able to identify the driver with any certainty. The five photographs he took were admitted with evidence as Exhibits 3-7. He stated that Metcalfe Living Management owned the building and that was the owner to whom he “wrote cheques” for rent. He testified that he did not see who the driver was at the point of impact “due to the glare on the windshield”. 7 . Tyson Acker gave evidence that the police did not arrive on scene “for about 15 minutes” after the event and by this time the person he saw getting out of the driver’s seat “was not there anymore”.

Exhibit 8 is a D.V.D. of the photographs taken by Mr. Acker.

8. P.C. Xian Peng Wang, a member of Toronto Police Services in his 5th year at 14 Division, attended the scene. He confirmed that hisobservations were accurately recorded in photographs taken of the damage to the front window of the apartment building and the greenLexus motor vehicle in front of the lobby window. Exhibits 9-22 were admitted as circumstantial evidence of the vehicle and building. P.C. Wang obtained a certified record from the Ministry of Transportation that indicated that Craig Chevannes was the owner of thegreen Lexus that had damaged the grounds and glass window and framing at 115 Tyndall Avenue (see Exhibit 23(

a) and (b)). At thescene, P.C. Wang used the on-board computer in his cruiser to obtain an electronic facial image of the registered owner of the Lexus andhe testified that the electronic photograph he was able to produce on his computer screen was a match for the defendant before the Court,Craig Chevannes. P.C. Wang encountered an individual at the scene (Bradley James) who said he was a witness to what had happened. P.C. Wang asked him to step into the front seat of his cruiser from the passenger side and look at the screen and see if you “know thisguy”. According to the officer, Mr.

James indicated that the person he saw on the screen was the driver. 9. P.C. Wang then spoke to the superintendent of the apartment building and was given access to a closed circuit video recording of theincident taken by a security camera situated in the apartment building lobby. He made arrangements with the apartment management tohave them “burn” a D.V.D. from video tape footage of the event recorded on the C.C.T.V.

He believed there was a discrepancy betweenthe times noted on the video and the actual time (he thought the video was about 15 minutes slow) but that the D.V.D. he subsequentlyreceived from the apartment manager was an accurate record of what he observed on the television monitor at the apartment building. He testified that the D.V.D. was “the same”. 10. P.C. Wang gave evidence that he recognized and identified the person observable on the video at 4:28:45 p.m. as the “accused”before the Court. P.C.

Wang stated that he came to that conclusion because the person on the video screen has the same face andappearance: (1) bald head; (2) no facial hair; (3) his jacket matched the description. (I note that witnesses at the scene were asked for adescription of the driver and they indicated: male, black, 6’, black jacket, green stripes on front. These witnesses were never called attrial so I conclude that description (3), above, was hearsay and accordingly, the features P.C.

Wang relied on to identify the defendantbefore the court as the person on the D.V.D. will be restricted to his observations of the male depicted on the D.V.D. only: (1) bald head;(2) no facial hair. Additionally, P.C. Wang offered further grounds for believing Mr. Chevannes was the driver at the time in question:(1) because the car was never reported stolen or missing by the owner, Mr. Chevannes and (2) the ignition had not been damaged ─ thelogical inference, he suggested, was that the person with the key, likely the owner, drove the car. 11. Under cross-examination, P.C.

Wang agreed that the length of time he believed he observed the defendant on the apartment videosystem was “only a few seconds”. As well, he agreed that he had no knowledge of how the D.V.D. was created from “raw videofootage” or whether the original film had been modified in any way. He further indicated that in a written statement he took at the scenefrom the witness Bradley James, Mr.

James stated that after he sat in the back seat of the car on the driveway, the front passenger, aJamaican guy, had a heated argument with the driver, he (James) left the car as did the driver, and he then “saw the Jamaican guy jumpinto the driver’s seat, then drove the motor vehicle into the building”. 12. As an agreed fact, the defence tendered a time chart that provided a spread sheet analysis of the “run times” of the video monitorsrecorded on the D.V.D.

It was demonstrated that of the total elapsed time recorded on the D.V.D. (27 mins., 42 secs.) there are threeminutes, eleven seconds of missing footage which constituted 11.5 % of the total video recording (see exhibit 24). It was also agreed that the defendant was arrested on August 31st, 2010 on a warrant issued for his arrest when he could not be located. Position of Counsel 13. The Crown argues that the D.V.D. (Exhibit “A”) is relevant, reliable, real evidence made in the usual and ordinary course ofbusiness and is therefore admissible.

Further, it is submitted that the combined effect of the identification evidence of Mr. James, Mr.Acker and P.C. Wang amounts to proof of identity beyond a reasonable doubt. If that should prove to be insufficient, it is submitted thaton the basis of R. v. Nikolovski (SCC), [1996] 3 S.C.R. 1197, as a trier of fact, I am entitled to compare the physicalimage of a male on the D.V.D. (who is clearly the same male seen by Mr.

Acker to emerge from the driver’s seat of the Lexus) with thedefendant before the Court and conclude they are one and the same person, a person proven by circumstantial evidence (the Ackerphotographs) to have been the driver. It is contended that the net effect of the cumulative evidence is that the defendant can be identifiedas the driver beyond a reasonable doubt.

Finally, The Crown takes the position that the driving would have endangered members of thepublic reasonably expected to be in the vicinity of the lobby windows of the apartment building at the time in question and it thereforemeets the test of being a “marked departure” from the standard of a reasonable person: R. v. Hundal (1993) (SCC), 79C.C.C. (3d) 97 (S.C.C.). 14. Counsel for the defendant submits that real evidence such as a photograph or video record of an event (such as exhibit “A” in thisproceeding) must be properly authenticated to be admissible.

He further argues that the cumulative effect of the various forms ofidentification evidence does not amount to proof beyond a reasonable doubt. Finally he contends that even if the defendant can beidentified as the driver, the driving does not constitute a marked departure from a reasonable standard of care because the driving is justas consistent with a momentary loss of care and control ─ there being no evidence at all of driving prior to the collision with the frontwindow of the lobby. Analysis 15. I have applied a modified R. v.

W.(D.) (1991) (SCC), 63 C.C.C. (3d) 397 (S.C.C.) formula to issues of credibilityand determined whether on the basis of evidence which I do accept, I am convinced beyond a reasonable doubt of the defendant’s guilt.Additionally, I have cautioned myself as to the frailty of identification evidence generally, and the inherent dangers of convicting onevidence of visual identification. (

a) Admissibility of the D.V.D. 16. On the question of admissibility of the D.V.D. copy of the security camera videotapes from the apartment building, I have concludedthat the test for admissibility of this type of evidence is not met by simply asking the manager of a video monitoring system for a copy tobe filed with the Court as evidence of what is depicted thereon even if a police witness can testify that the D.V.D. copied from the

security videotape is an accurate reproduction. The weight of case authorities would suggest there is an evidentiary precondition toadmissibility ─ that is ─ proof that the original videotape accurately depicts the scene being recorded and that the recorded images havenot been altered or changed during the production of the videotape. The prosecutor is correct in arguing that the modern trend is to admitall reliable and probative evidence: in R. v. Nikolovski (SCC), [1996] 3 S.C.R. 1197 (S.C.C.) at paragraph 18 Cory J.commented: 18 Similarly in R. v.

L. (D.O.), (SCC), [1993] 4 S.C.R. 419, L’Heureux-Dubé J., in concurring reasons, noted thatthe modern trend has been to admit all relevant and probative evidence and allow the trier of fact to determine the weight which shouldbe given to that evidence, in order to arrive at a just result. She observed that this is most likely to be achieved when the decision makershave all the relevant probative information before them.

She wrote at p. 455, that “[i]t would seem contrary to the judgments of ourCourt (Seaboyer and B. (K.G.) . . .) to disallow evidence available through technological advances, such as videotaping, that may benefitthe truth seeking process”. However, the Court in Nikolovski proceeded to establish guidelines for admissibility of videotape evidence at paragraph 28 ofthe same judgment: 28 Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomesadmissible and relevant evidence.

Not only is the tape (or photograph) real evidence in the sense that that term has been used in earliercases, but it is to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether acrime has been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy,unemotional, unbiased and accurate witness who has complete and instant recall of events. It may provide such strong and convincingevidence that of itself it will demonstrate clearly either the innocence or guilt of the accused. 17.

I can well understand the challenges faced by the Crown in authenticating the footage recorded by an unstaffed security camera.However, the recording device in Nikolovski was an automatic security camera that recorded a robbery of a convenience store. Theuncontradicted evidence of the store clerk who testified that the videotape “showed all of the robbery” was sufficient relevant, probativeevidence to properly authenticate the videotape.

In the instant case there is no evidence proffered by the Crown to meet the burden ofproof required for the admissibility of the D.V.D. recording and accordingly it is ruled inadmissible in this case. (

b) The Identification Evidence 18. The identification evidence of Bradley James is the kind of dock identification that has little evidentiary value for the followingreasons: (

a) His evidence was tainted by being shown a single facial image of the defendant on the cruiser video monitor; (

b) His evidence amounted to a dock identification that was entitled to little weight particularly in view of the fact he was not able tooffer any description of the male who drove the motor vehicle into the building on the date this occurred; (

c) He admitted that he was “drinking so much” things were “kind of vague” on the date the incident occurred. He said he consumedabout four pitchers of beer; (

d) His evidence was inconsistent at times; he sated he had gone to 115 Tyndall Ave. to “see a girl” but when he arrived at that addresshe saw a passenger he knew in a car in the driveway and he sat in the back seat thinking “I’ll get a ride home”. (

e) His trial evidence was inconsistent with his statement to P.C.Wang: he testified that the passenger, Billy, had an argument with thedriver of the car and left; the person in the driver’s seat drove the car into the building. In his statement the passenger presumably left,came back and jumped “into the driver’s seat, which had by then been vacated by the person originally in the driver’s seat, then drovethe motor vehicle into the building”. 19. Mr. Acker was not able to identify the person who drove the vehicle into the building.

He did, however, supply some “overhead-view” photographs of the person who emerged from the vehicle about five minutes after the “crash”. On the basis of R. v.

Arcuri 2001SCC 54 , [2001] 2 S.C.R. 828 (S.C.C.) (and presuming for this purpose that I am incorrect in my ruling as to the admissibility ofthe D.V.D.) it is possible to “assess the reasonableness of the inferences to be drawn from the circumstantial evidence” disclosed by thephotographs and conclude that the clean-shaven bald-headed person depicted in the photographs near the vehicle is the same person thatappears later on the D.V.D. in the back hall of the apartment building primarily because of the similarity of the colour and design of thejacket observable in both the photographs and the D.V.D.

The critical identification evidence for the prosecution therefore is whether theperson wearing the green and black jacket on the D.V.D can be identified as the defendant. 20. P.C.Wang testified that in his opinion, the D.V.D depicted the defendant walking in the building, particularly the back hallway.There are several reasons why P.C.Wang’s testimony is this regard should be entitled to little weight: (

a) His evidence was tainted by prior viewing of the image of the defendant on the video screen in his cruiser; (

b) His evidence was tainted by prior statements from witnesses who described the driver’s jacket as “black jacket, green stripes onfront”; these witnesses were never called to give evidence and their descriptions which influenced the officer’s stated grounds for arrestwere nothing more than hearsay; (

c) On the basis of R. v. Leaney (SCC), [1989] 2 S.C.R. 393 (S.C.C.) it is not only arguable that the officer’s evidenceon the question of identity is entitled to little weight ─ according to McLachlin J. for the majority, it may even be inadmissible: The second error was the admission of the evidence of the police officers as to the identity of the persons shown on the videotape. Fourof the officers had no acquaintance with the accused and were in no better position than the trial judge to say whether the persons shownin the video were the accused. Thus their evidence could not assist and should not have been received.

21. Finally, the fact the ignition had not been damaged did not constitute circumstantial evidence that the owner of the vehicle drove thecar. This conclusion was not a logical, rational inference that could be drawn from the proven facts in accordance with R. v. Arcuri,supra, ─ particularly in view of the statement made by Bradley James to the effect that the original front seat passenger “jumped” intothe driver’s side and drove the car into the building.

Equally the post-offence conduct (or lack thereof) involving the failure of thedefendant to retrieve his car from the pound was not probative of any issue; according to R. v. White 2011 SCC 13 , [2011] 1S.C.R. 433 (S.C.C.) this type of “post-offence conduct” does not support an inference of guilt when it is “equally consistent with” otherexplanations as to why the car was never retrieved such as: lack of funds to pay the towing and storage charges. 22. Ultimately, the pivotal question in this case is whether, on the basis of R. v.

Nikolovski, supra, this trier of fact can conclude that thevideotape evidence recorded onto D.V.D., presents such clear and convincing evidence of identification, that it can be used as the solebasis for the identification of the accused before me as the perpetrator of the crime. Assuming for these purposes that the D.V.D.evidence is admissible, I am mindful of the care that is required to be exercised in coming to a conclusion about identity. As Cory J.stated at paragraphs 29 to 32: 29 The weight to be accorded that evidence can be assessed from a viewing of the videotape.

The degree of clarity and quality ofthe tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing theweight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are buta few frames which clearly show the perpetrator that may be sufficient to identify the accused.

Particularly will this be true if the trier offact has reviewed the tape on several occasions and stopped it to study the pertinent frames. 30 Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they mustexercise care in doing so. For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions begiven to them as to how they are to approach this task.

They should be instructed to consider carefully whether the video is of sufficientclarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond areasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this.

Further, they should be told onceagain of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt thatit identifies the accused. 31 The jury or trial judge sitting alone must be able to review the videotape during their deliberations. However, the viewingequipment used at that time should be the same or similar to that used during the trial.

I would think that very often triers of fact willwant to review the tape on more than one occasion. 32 A trial judge sitting alone must be subject to the same cautions and directions as a jury in considering videotape evidence ofidentification. It would be helpful if, after reviewing the tape, the trial judge indicated that he or she was impressed with its clarity andquality to the extent that a finding of identity could be based upon it.

This courtesy would permit Crown or particularly defence counselto call, for example, expert evidence as to the quality of the tape or evidence as to any changes in appearance of the accused between thetaking of the videotape and the trial and to prepare submissions pertaining to identification based on the tape. 23. I have viewed the video recording of the person at the Tyndall apartment lobby area who is similar in appearance to the persondepicted in the photographs taken by Mr. Acker.

There is compelling circumstantial evidence that the person observed in thephotographs wearing the green and black jacket was the driver of the car that struck the building. The question is whether I can besatisfied beyond a reasonable doubt that the person wearing that same distinctive jacket inside the apartment building ─ as observed onthe video recording ─ is the defendant before the court. The conclusion I have reached after extensive review of the evidence is that Icannot be satisfied beyond a reasonable doubt the defendant is guilty for the following reasons: (

a) The state of the video recording cannot be described as one of excellent quality and great clarity as was the case in Nikolovski; (

b) Unlike the Nikolovski case, the person of interest on the video recording was not depicted for a significant period of time; the bestdepiction of the face of this person occurs at one moment on the recording and it is a grainy picture of a fleeting image of the side of theface (at 4:28:45 pm); (

c) I have cautioned myself generally as to the difficulties and frailties of identification evidence; this is not convincing evidence uponwhich I could properly base a finding of fact that the defendant was the person shown in the video recording; (

d) There were features of this case that tended to undermine this Court’s ability to make a comparison between the video image and theappearance of the defendant. The defendant’s posture in Court made it difficult to fully observe his facial features; after the conclusion ofthe trial, it took approximately three weeks to view the full video recording due to technical difficulties with software licensing andadministrative rights.

It stands to reason that the longer the retention interval between observation and application of the memory, themore likely the information acquired through perception can be distorted by extraneous factors causing changes in recollection. Theperiod of time it took to open the files on the D.V.D. made it more difficult to retain a clear memory of the facial features of thedefendant for comparison purposes.

24. While there may be sufficiently cogent evidence of identification to support a conclusion that the defendant is probably the persondepicted in the video recording and therefore most likely the driver of the motor vehicle, I cannot, on the evidence, be satisfied that hisidentity as the driver has been proven beyond a reasonable doubt. (c)The dangerous Operation Charge 25.

Given my findings as to the admissibility of the D.V.D. and the proof of identity, it is unnecessary to comment extensively on thesubmission that the driving did not constitute dangerous operation ─ except to point out that Hundal (S.C.C.), supra, requires the Court toassess the driving objectively in the context of all the events surrounding the incident. Here the driving was such as to endanger the livesof others. An evidential burden passes to the defendant to rebut the inference which flows from objectively dangerous driving by raisinga reasonable doubt about fault: R. v.

Lowe (1974) (ON CA), 21 C.C.C. (2d) 193 (Ont.C.A.). Proof of a defectiveaccelerator, for example, could rebut the inference. Here there has been no evidence adduced by the defendant to meet this evidentialburden and consequently the driving (by someone) would meet the criminal standard of proof for conviction on this offence. Conclusion 26. On the basis of the conclusions reached as to the inadmissibility of the D.V.D. and the failure to identify the driver beyond areasonable doubt, the charges of Mischief Over and Dangerous Operation will be dismissed. P. Harris J. December 12, 2011.