R. v. Kakos, 2012 ONCJ 40

Citation: R. v. Kakos , 2012 ONCJ 40 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN Ñ AND Ñ TONY KAKOS ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) J. Law For the Crown M. Simrod For the Defendant Heard: September 8 and November 28, 2011 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] Sometime after 1:00am on November 1, 2010, a speeding car skidded across the northbound lanes of Highway 427 and rolled over onto the right shoulder of the road. The two occupants of a passing vehicle stopped to assist.

They saw a man walking northbound along the shoulder very soon after the accident. About an hour and half later they viewed a man being treated in an ambulance at an Esso station a couple of kilometres from the scene of the accident. Each identified him as the same man they earlier saw walking on the 427. By then the police had interviewed the man (the defendant Tony Kakos) at the Esso station. The defendant told the police he had very recently been the victim of a carjacking at gunpoint. The stolen car was the same make and colour as the car that had rolled over.

Following the civilian witnessesÕ identification of the defendant at the ambulance, he was arrested and charged with the Criminal Code offence of obstructing a police officer in the execution of his duty by making a false statement regarding a motor vehicle accident. Put otherwise, the criminal allegation is that the defendant did not tell the police officer the truth when he denied being the driver of the car involved in the motor vehicle accident the officer was then investigating.

Pursuant to the Highway Traffic Act ( HTA ), the defendant was also charged with careless driving, failing to report an accident and failing to remain at the scene of an accident. [ 2 ] Claudio Poldi and Giovanna Capone, the two motorists who stopped after they witnessed the accident, testified for the Crown, as did three police officers who had contact with or observed the defendant that evening. The defence elected to call no evidence. All four charges rest on the defendant being the driver of the car involved in the accident on the 427. Accordingly, the key

issue in this trial is whether the defendant was the driver of that vehicle at the time of the rollover. On this matter, as with respect to all the essential elements of each of the offences charged, the burden of persuasion, as always, rests on the Crown on a standard of proof beyond reasonable doubt. B. EVIDENCE (

a) The Accounts of the Passing Motorists [ 3 ] Claudio Poldi, then about 20 years old, was driving north on highway 427 at about 1:00am on November 1, 2010. His girlfriend, Giovanna Capone, then about 19, was in the passenger seat. A car tried to pass them at elevated speeds while switching lanes, lost control, skidded across the highway, rolled over and ended up on its side on the right shoulder. Poldi pulled over about 100 meters north, called 911 (shortly before 1:23am, according to police evidence), and then ran back toward the disabled car.

A man ran towards Poldi, passing him at a distance of about three to four feet as he continued north. Poldi could not see the manÕs face, but he appeared to be about five foot ten inches tall and of average build. He was of middle-eastern descent, in his 20s, with dark features and a very short, almost shaved, haircut. The man wore jeans and a white T-shirt bearing graphics. The damaged car was a silver Infinity or Lexus. It was empty when Poldi inspected it. [ 4 ] Giovanna Capone remained standing by PoldiÕs car as he ran south to the scene of the accident.

She saw a ÒshadowÓ jog in her direction after a few minutes. She twice asked the figure, ÒWere you drivingÓ before he replied, ÒYesÓ. She received the same answer to her next question, ÒAre you OK?Ó The mansÕ gait was somewhat peculiar, but he was not limping. He continued jogging north along the right side of highway 427. She did not see the manÕs face, but he appeared middle-eastern with tanned skin, had a shaved or ÒbuzzedÓ head, and wore a graphic T-shirt, jeans and a belt.

She thought the man Òhad facial hairÓ, but then said she ÒcanÕt rememberÓ. [ 5 ] Poldi, her boyfriend, returned a few minutes after the man passed Capone. The man crossed the 427 and was last seen as he headed up the grassy slope of a hill by a bridge crossing the 427 at Finch Avenue. Neither Poldi nor Capone saw any other pedestrians in the area. [ 6 ] Poldi and Capone reported their observations to the OPP officers when they arrived. They then continued their drive north to their respective homes.

En route, they spoke about the incident and their respective recall of the manÕs appearance, and Capone told Poldi that, in answer to her question, the man had affirmed that he was the driver of the car. Sometime after they reached their destination, Poldi received a call from the OPP asking him to attend at an Esso station in the Malton area. He and Capone arrived at the station about one and half hours after the accident. [ 7 ] There were then at least two police cars at the station and a man in the back of an ambulance. According to Poldi, the police asked them to visually identify the person in the ambulance.

Capone recalls the police pointing into the back of the ambulance and asking, ÒIs that the man you saw?Ó [ 8 ] Poldi looked through the back window of the ambulance at 2:53am. He told the officers he was 90% sure the face of the man in the ambulance was the same as that of the man he saw on the 427, but that he was 100% sure it was the same man based on the manÕs clothing and his build. He explained to the police that he ÒcouldnÕt seeÓ the face of the man on the highway. Capone recalled that the man in the ambulance had his head down. She told the police, ÒYah, thatÕs himÓ, based on his clothing and buzzed head.

She testified that she never saw the manÕs face either on the highway or in the ambulance. Neither Poldi nor Capone testified that the defendant was the man they saw on November 1, 2010, nor was either asked to endeavour a dock identification. (

b) The Police Accounts [ 9 ] Sgt. John Rossano of the Toronto Police Service (TPS) was patrolling on Finch West when he heard a radio dispatch of the accident and a description (including a white T-shirt) of a fleeing suspect. It was a very cold night and his attention was drawn to a man in a white T-shirt at a payphone at an Esso station on Finch West, several hundred metres east of the 427.

He received a further police dispatch at 1:51am that a man at a payphone at that very station had reported being robbed at gunpoint about 20 minutes earlier at Finch and Highway 27 by two men who stole his car, a silver Infinity, and drove off. Rossano drove to the station where he spoke with the man who he identified as the defendant, Tony Kakos. The man appeared to have some injuries to his face and winced in pain when he bent down to speak with the officer; as a result, Rossano summoned an ambulance. [ 10 ] The defendant appeared upset.

He repeated the narrative of the car-jacking that Rossano had earlier heard on the radio dispatch and added some further detail respecting the exact location of the robbery (the parking lot of a Burger King at Finch and 27), a description of the two suspects (including the clothing worn by one black male and one white in their mid-20s), and an account of the assault itself, including being kicked in the ribs and hit by both robbers.

No one at the Burger King or a nearby Tim HortonÕs would help him, he said, so he then ran to the Esso station (about a kilometre from the Burger King, according to Rossano) where he called his father and then 911. A number of other police vehicles arrived at the Esso station, as did an ambulance and the defendantÕs parents. Rossano estimated that the distance from the station to the location of the accident on the 427 was approximately two and half kilometres. [ 11 ] OPP officer Scott Hearnden attended at the scene of the accident at 1:26am.

An Infinity had rolled onto the driverÕs side and was blocking the 427 on-ramp from Rexdale Boulevard. The car was a write-off and no one was in the vicinity. He received a description of the man seen running north from Poldi and advised OPP dispatch of the description and the manÕs direction at 1:53am. He later heard on his radio that an Infinity may have been involved in a car-jacking and, at 2:24am that TPS had a man who matched PoldiÕs description at an Esso station just east of the 427 on Finch.

Hearnden th e n called PoldiÕs cellphone and asked him to attend at the Esso station. [ 12 ] Hearnden then drove to the gas station. The defendant, who Hearnden identified in court, had a Òfriction burnÓ on his head

and complained of a sore chest. He was already in the back of an ambulance when Poldi arrived. Hearnden asked Poldi Òto look intothe ambulance and see if you see the person who was running away from the accidentÓ. Poldi, says Hearnden, looked through the rear-door window of the ambulance. At 2:53am he identified the defendant as the ÒdriverÓ who had fled from the rollover on the 427. Hearnden interviewed the defendant a few minutes later. Despite HearndenÕs patent skepticism, the defendant maintained that he hadbeen carjacked by two male robbers, one white and one black.

He hewed to the same account following his transport to a hospital, arrestand formal right to counsel at 3:13am. Hearnden estimated that the distance from the accident to the Esso station was between 1.6 and1.8 kilometers, nearly a kilometre shorter than Sgt. RossanoÕs approximation. [13] Lori Kranenburg was among the other TPS officers who attended at the Esso station. She was dispatched to the station at1:52am to investigate a report of a car-jacking made by Tony Kakos, with whom Rossano was speaking when she arrived.

She laterdispatched several officers to make inquiries at the Burger King and Tim HortonÕs identified by the defendant in his conversations withthe police. None of these latter officers testified at the defendantÕs trial, nor did any employee of either fast-food establishment. C. ANALYSIS (

a) Introduction [14] The defendant faces four charges. A finding of guilt for each depends on the Crown establishing beyond reasonable doubt thatthe defendant was the driver of the car that rolled over on the 427 very early on November 1, 2010.

There is no real contest about theessential elements of the offences charged: if the defendant was the driver then he drove carelessly, failed to report an accident and failedto remain at the scene of that accident (all HTA offences), and lied to Hearnden about his role in the accident, thereby committing theCriminal Code offence of willfully obstructing a police officer in the execution of his duty. [15] Both Poldi and Capone testified that the man they saw in the back of the ambulance was the same man they saw running fromthe direction of the accident.

While their evidence, if accepted, is capable of cementing the prosecutionÕs case, I am mindful of thenotorious unreliability of eyewitness identification of strangers. These risks are only compounded where, as in the case before me, thereis only a very limited opportunity to observe and a patently tendentious identification procedure.

Applying this settled jurisprudentialwisdom, a verdict of acquittal would quickly follow if the CrownÕs case rested solely on PoldiÕs and CaponeÕs identificationevidence. [16] The Crown, however, also draws on a number of other evidentiary threads to support or confirm the identification evidencetendered through the two passing motorists. The Crown theory, of course, is that the defendant, after escaping from his crashed car, runsto the Esso station where he called the police and reported that the car he was driving had been carjacked, thus placing one of his robbersat the wheel of the rolled Infinity.

This account, says the Crown, is patently improbable given inconsistencies as to timing and thedefendantÕs description of his assailants that, together, render his narrative conspicuously bogus. Although Crown counsel avoidsexpressly invoking the doctrine, her latent suggestion is that the defendantÕs explanation amounts to a skein of lies consciouslyadvanced to deflect suspicion from himself, and thereby amounts to after-the-fact circumstantial evidence of guilt: see R. v. White, 2011SCC 13 , [2011] 1 S.C.R. 433; R. v. OÕConnor (2002), (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.); R. v.Hall, 2010 ONCA 724. (

b) The Identification Evidence [17] Appellate cautions as to the risks associated with eye-witness identification evidence are legion. R. v. Goran (2008), 2008ONCA 195 , 234 O.A.C. 283, at paras. 19 and 20, affords but one of many examples: [E]yewitness identification evidence É. is inherently unreliable. It is difficult to assess, is often deceptively reliable because it comesfrom credible and convincing witnesses, and is difficult to discredit on cross-examination for those same reasons. Studies have shownthat triers of fact place undue reliance on such testimony in comparison to other types of evidence.

As a result, many wrongfulconvictions have resulted from faulty, albeit convincing, eyewitness testimony, even in cases where multiple witnesses have identifiedthe same person. The Court of AppealÕs judgement in R. v.

Tat (1997), (ON CA), 117 C.C.C. (3d) 481, at para. 100, provides another: The extensive case law arising out of the review of convictions based on eyewitness identification reveals that the concerns about thereasonableness of such verdicts are particularly high where the person identified is a stranger to the witness, the circumstances of theidentification are not conducive to an accurate identification, pre-trial identification processes are flawed and where there is not otherevidence tending to confirm or support the identification evidence. Although in no way an exhaustive compendium, see also: R. v.

Quercia (1990), (ON CA), 60 C.C.C. (3d) 380; R. v.Trochym, 2007 SCC 6 , [2007] 1 S.C.R. 239; R. v. Burke, (SCC), [1996] 1 S.C.R. 474; R. v. Spatola, (ON CA), [1970] 3 O.R. 74 (C.A.); R. v. Miaponoose (1996), (ON CA), 110 C.C.C. (3d) 445 (Ont. C.A.);R. v. F.A., (ON CA), [2004] O.J. No. 1119 (C.A.); and R. v.

Hibbert, 2002 SCC 39 , [2002] 2 S.C.R. 445. [18] Among the obvious concerns affecting the reliability of the identification evidence before me are the following: 〈 The man running along the 427 was a stranger to both Poldi and Capone; 〈 It was just after midnight; any lighting was artificial and dim; 〈 The window of observational opportunity was extremely narrow; 〈 Neither Poldi or Capone had an opportunity to see the runnerÕs face;

〈 The descriptions provided by both Poldi and Capone are generic, in terms of both physical features and attire; 〈 The closest either eyewitness comes to describing distinguishing features is their reference to a buzzed haircut and a graphic T-shirt.

None of the three officers who testified mentioned either feature; 〈 Poldi and Capone discussed their observations during the hour or so they spent together in PoldiÕs car before attending at theEsso station, thus raising the risk, conscious or otherwise, of collusion or, at least, cross-contamination; 〈 The pre-trial identification procedure at the Esso station was effectively a directed Òshow-upÓ; it bore none of the bias-freeattributes of a fair parade or line-up and, as a result, further compromised the reliability of the identification evidence: R. v. Smierciak(1946), (ON CA), 87 C.C.C. 175 (Ont.

C.A.); 〈 The confidence level expressed by Poldi was less than certain, and Capone, while identifying the man in the ambulance with theman running up the highway, testified she never saw the face of either; 〈 Neither Poldi nor Capone identified the defendant in court as the man they had seen either on the highway or in the back of theambulance, let alone both. [19] The collective frailties attending the eyewitness identification evidence in this case are deeply troubling.

To channel the spiritif not the exact words of pulp writer Jim Thompson (and with apologies to the SPCA), one wouldnÕt hang a dog on such evidence.[1] Put somewhat more soberly: the eyewitness identification evidence is woefully inadequate to ground a criminal conviction. [20] However, this evidence does not stand alone.

The crucial question is whether the eyewitness evidence, when combined withthe circumstantial evidence surrounding the defendantÕs apprehension and fact-based suspicions regarding his account of the events ofthat evening, are adequate to identify him beyond reasonable doubt as the driver of the rolled Infinity. (

c) The Circumstantial Evidence [21] The police first spotted the defendant as he stood at a phone booth by a gas station. The station was north of the accident onthe 427 (north being the direction taken by the man running from the accident) and within a couple of kilometres of the accident. Thenight was cold and the man at the station, the defendant, was wearing a T-shirt Ð as was the man running north on the 427 as describedby the two motorists who had witnessed the accident.

The defendant had just called 911 to report the theft of his car Ð a car of the verysame make and colour of the car that had rolled over on the 427. The 911 call was likely made some 20 or 25 minutes following theaccident or, as argued by the Crown, long enough after the rollover to accommodate a fleeing driverÕs trot to the Esso station.

Thedefendant had what one officer described as friction burns on his face and appeared to have some trauma in his rib or abdominal areas,injuries at least consistent, if no more than that, with those that may have been suffered by someone involved in a motor vehicle accident.At least some of these facially suspicious circumstances are also consistent, if not equally so, with the account provided by thedefendant. For example, the Esso station is even closer to the Burger King, where the defendant said he was carjacked, than it is to thelocation of the accident on the 427.

And the beating the defendant reported, if it occurred, affords an explanation for at least some of theinjuries observed by the police. [22] Crown counsel attacks the veracity of the defendantÕs carjacking account on two principal bases. First, she says, the timewhen the defendant says the robbery of his car occurred is not only inconsistent with the objective record of the timing of known eventsthat evening but, in fact, places the robbery at some time after the accident.

Given the time (about 1:23am) of PoldiÕs 911 call from theside of the 427, along with the location of the accident and the bad driving observed before the accident, Crown counsel reasons that theInfinity must have been south of Rexdale on the 427 at about 1:20 or 1:21am. Further, given the nature of the defendantÕs 911 call (thatis,

an act of violence involving the use of a firearm), Crown counsel further argues that it is a safe assumption that the dispatcher wouldquickly have radioed the substance of the 911 communication to the police in the vicinity. Accordingly, she reasons, the defendantÕs911 call was likely made only a few minutes before the dispatch time of about 1:51am.

Assuming, then, that the 911 call was placed atabout 1:48am and that the defendant complained of being robbed about 20 minutes earlier, then that 911 call was made at approximately1:28am Ð some seven or eight minutes after the Infinity was first seen by Poldi and Capone on the 427 and at least five minutes after theaccident.

In short, the Infinity, on a strict reading of the defendantÕs account, was not stolen until sometime after the accident. [23] The CrownÕs timeline thesis as to the improbability of the defendantÕs account accrues even more substance if one factors inthe never-estimated but certainly additional minutes required for whoever stole the defendantÕs car to drive the shortest possible route tothe point of the accident: south on Highway 27 and then west so as to enter the 427 on a northbound entry ramp somewhere south ofRexdale as that, on Crown counselÕs reading of the evidence, is where the speeding Infinity is first observed by Poldi and Capone. [24] While Crown counselÕs arithmetic is undoubtedly accurate, her calculations ultimately rest on a series of assumptionsrespecting, most importantly, the timing of the defendantÕs 911 call reporting the carjacking.

If, for example, that call was made evenfifteen or so minutes earlier than her estimate, then the temporal inconsistencies that ground the CrownÕs theory of improbabilityeffectively evaporate. Similarly, if the defendantÕs assertion that the carjacking occurred Òabout twenty minutesÓ before his 911 reportof it is read as a somewhat elastic and likely inaccurate underestimate made by a traumatized individual (or at least ÒupsetÓ, asdescribed by Sgt. Rossano) who had just been beaten and robbed, then, again, the CrownÕs timeline becomes less persuasive.

As well,there is no evidence that a man (and an injured one at that, at least on the Crown thesis) could run from the scene of the accident on the427 to the Esso station in the narrow timeframe available (some twenty to twenty-five minutes). It seems possible to traverse the onekilometre between the Burger King and the Esso Station (that is, the defendantÕs purported route) in this time period. HearndenÕsÒlowÓ estimate of approximately one and a half kilometres between the locus of the accident and the station also seems manageable, orat least arguably so.

However, RossanoÕs rival estimate of 2.5 kilometres between these same two points strikes me as raising somereal-world concerns about about the manÕs athleticism. Clearly I have no expertise about these matters, nor is the time required tocomplete the latter journey by foot a notorious fact of which I can take judicial notice. My point, simply, is that the CrownÕs argumenthere depends on a number of assumptions, competing estimates and specultive inferences rather than a settled or even clear evidentiaryrecord.

[ 25 ] The difference between the defendantÕs physical description of the carjackers and the descriptions of the fleeing driver tendered through Poldi and Capone is the second footing for the Crown attack on the defendantÕs alibi account. The defendant told Rossano that one of his assailants was a white male wearing a big, black jacket and jeans. He stood about six feet tall, had a medium build, a trimmed beard, an earing in his left ear and short, brown, spiked hair. The second was a dark-skinned, bearded black man wearing a black coat, a white T-shirt, blue jeans and white Adidas running shoes.

Both men were around 24 or 25. Like one or both of these men, the man described by Poldi and Capone was in his mid-twenties, had an average build, wore jeans and a white T-shirt and, at five foot ten, was at least close to six feet tall. Capone initially testified the man had facial hair, but then said she could not remember. Unlike the defendantÕs description of the carjackers, the man on the 427 had very close-cropped hair and appeared middle-eastern.

Neither witness mentioned him wearing a coat. [ 26 ] Crown counsel does not question the possibility that one of the two purported assailants was dropped off before the accident or fled in a different direction following it. Further, there seems no reason to assume that the defendantÕs perception and recall of his assailants is any more reliable than that of any person asked to describe a stranger observed only briefly and in highly traumatic circumstances. While some of the differences between the two sets of descriptions may appear marked, their probative worth is hardly free from ambiguity.

There is, for example, no evidence as to whether or not there were any coats located in the disabled Infinity. A Òtrimmed beardÓ can be read as consistent with CaponeÕs very vague recall of seeing facial hair on the man jogging north on the 427. And absent more, the short, brown hair attributed to the Caucasian car thief is not materially distinct from the ÒbuzzedÓ or Òvery shortÓ haircut credited to the man on the 427. (

d) Assessing the Evidence [ 27 ] This case, in the end, is essentially one of circumstantial evidence. Crown and defence appear to agree, if only through counsel for the defendantÕs silence on the issue, that the car involved in the accident was the one driven by the defendant at some point on the evening in question. Further, there appears to be agreement that the man seen jogging on the 427 minutes after the motor vehicle accident was the driver of that vehicle at the time of the rollover.

The remaining issue, then, is the identity of the driver at the time of the accident. [ 28 ] Identification evidence is normally a species of direct evidence. Given the numerous frailties attending such evidence in this case, I am inclined to treat the testimony of Poldi and Capone as one strand in a tapestry of circumstantial evidence that includes the appearance of the defendant at gas station a couple of hours of the accident and within a half hour of that event and his patently suspicious account of the violent theft of his automobile.

In my view, and irrespective of their assertions to the contrary, Poldi and Capone never reliably identify the defendant as the man they saw running on the 427. At best, they saw a man wearing certain clothing and moving in a northerly direction soon after the accident.

It is, ultimately, my assessment of the probative force of these circumstances, when combined with, first, those contained in the police testimony of the defendantÕs appearance and behaviour and, second, the improbability, or not, of his account for attending at the Esso station and his separation from his car, that determine whether the Crown has met its legal burden. [ 29 ] By any measure, the force of these circumstances, viewed cumulatively, persuades me that the defendant was likely the driver of the car at the time of the accident.

I am not persuaded, however, to that degree of certainty necessary to displace the presumption of innocence. The defendantÕs account, however far-fetched and strained, leaves me with a reasonable doubt when coupled with the inferential stretches required to fully accept the Crown theory. In short, I cannot conclude beyond a reasonable doubt that the defendant was the offending driver. [ 30 ] I add only this: the police witnesses were palpably convinced that the defendant was involved in the accident.

The strength of their conviction, as I read their evidence, either largely rested on or was substantially reinforced by their learning of the results of police inquiries conducted at the Burger King and Tim HortonÕs shops. The results of these inquiries were not tendered before me in an admissible form and thus play no

part in my calculus of the defendantÕs culpability. D. CONCLUSION [ 31 ] For the reasons earlier recited, the defendant is found not guilty of all four offences with which he was charged. Released on January 27, 2012 __________________________ Justice Melvyn Green