R. v. Brar, 2022 BCPC 23

Citation: R. v. Brar 2022 BCPC 23 Date: 20220131 File No: 70139-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PRABHJOT BRAR ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: S. Gill Counsel for the Defendant: J. Ray, QC Place of Hearing: Chilliwack , B.C. Date of Hearing: November 10 & 12, 2021 Date of Judgment: January 31, 2022

INTRODUCTION [ 1 ] THE COURT : These are my reasons for judgment under file 70139, R. v. Prabhjot Brar. Mr. Brar is charged with trafficking fentanyl and cocaine on December 8, 2017 and with trafficking fentanyl and carfentanil on December 21, 2017. These offences are contrary to s. 5(1) of the CDSA and they proceeded by indictment. [ 2 ] The primary issue in this case is whether the Crown has proven beyond a reasonable doubt that it was the accused who sold illegal drugs on December 8 and 21, 2017. The onus to prove identity remains with the Crown throughout.

I must bear in mind the frailties that may exist with identification evidence. CASE FOR THE CROWN Cpl. John Livingstone [ 3 ] Cpl. Livingstone has been a member of the RCMP since 2005. In December of 2017 he was employed with the Drug

Section of the RCMP in Chilliwack, B.C. [ 4 ] On December 8, 2017, Cpl. Livingstone was working undercover. He was briefed by Sgt. Greenway to place a phone call to a known dial-a-dope drug line and to request "40" crack cocaine. He was also to inquire about obtaining a gram of fentanyl under the premise it was for his girlfriend. Inquiries were to be had about how the fentanyl was "cut". [ 5 ] Cpl. Livingstone first texted the drug line inquiring, "Are you working?" There was no answer so he made a phone call to the drug line. Cpl.

Livingstone had purchased drugs from this line historically, and the line was known as "Marlo". [ 6 ] A male answered the phone call and Cpl. Livingstone did not recognize the voice. Cpl. Livingstone gave his name as Jay. He faced some resistance as to how he got the phone number and he explained that he had bought from Marlo in the past. Cpl. Livingstone requested "40 hard", (crack cocaine) and agreed to meet near the Safeway in downtown Chilliwack. [ 7 ] When Cpl. Livingstone went to the Safeway parking lot, the same male phoned him back and directed him to another location nearby at Corky's Pub. While Cpl.

Livingstone was talking to the male on the phone, he was guided to a white SUV. Cpl. Livingstone saw the male on the phone in the driver's seat and he was invited in to the front passenger seat. This happened mid-afternoon and the weather was clear and cold. [ 8 ] Cpl. Livingstone sat in the passenger seat of the SUV and had a face-to-face encounter with the male. The male asked him how he knew Marlo, and then discussion began about purchasing $40 of crack cocaine. Cpl. Livingstone produced two 20 dollar bills. The male accepted the money and then he provided Cpl.

Livingstone with a small baggie with a "rock" consistent with crack cocaine. [ 9 ] Cpl. Livingstone put the purchase in his breast pocket and then he asked if he could get one gram of down, i.e., heroin/fentanyl. Cpl. Livingstone and the male conversed about what it was cut with and the price of $140. Cpl. Livingstone asked for a deal but was refused. [ 10 ] Cpl. Livingstone and the male agreed on a price of $140, and Cst. Livingstone was given four baggies each filled with a purplish substance.

The men did a knuckle bump goodbye. [ 11 ] This interaction was longer than the average drug transaction, perhaps three minutes in total. [ 12 ] Cpl. Livingstone had a look at the male's size, age and ethnicity as this male sat in the driver's seat. The male was approximately five-foot-eight-inches tall and he had a scruffy beard, short-cropped hair, and a puffy jacket. The male was South Asian, and Cpl. Livingstone had never met him before. [ 13 ] In terms of facial features, the male was neither slight nor obese. Cpl.

Livingstone made notes of what happened. [ 14 ] The male suspect had a slightly nervous demeanour. Cpl. Livingstone was nervous as well because there is a propensity for violence in these situations. An undercover buyer can get robbed, or there are instances of rival gang warfare. [ 15 ] As the transaction between Cpl. Livingstone and the male suspect continued, the male suspect became more confident and friendly.

Photographs were later taken of the single baggie of the white rock substance consistent with crack cocaine and the four baggies of the purplish substance consistent with heroin/fentanyl. [ 16 ] On December 21, 2017, Cpl. Livingstone was again working undercover. That day he was tasked to contact the same drug line number, purchase a quarter ounce of heroin/fentanyl for $800 based on current prices. Cpl. Livingstone was also tasked with purchasing large chunks of fentanyl to gauge the size of the operation. [ 17 ] Cpl.

Livingstone contacted someone on the phone line who was a line boss named Gary, and he was told to call at the beginning of the shift to have a better chance of getting a larger amount like a quarter ounce. Cpl. Livingstone used the same phone number as on December 8, 2017. He left voice messages and text messages which were not answered. [ 18 ] About half an hour later someone called back with a familiar voice. Cpl. Livingstone said he was Jay, and there was some hesitancy with the caller. Cpl. Livingstone explained that he had spoken to Gary about a quarter ounce purchase of heroin.

The caller advised that he could meet, and Cpl. Livingstone asked to meet in the Safeway/Corky's Pub area. Cpl. Livingstone asked what type of vehicle the caller drove but the caller refused to disclose that information. [ 19 ] Cpl. Livingstone informed his undercover operator that a deal was imminent and he received $1,000 in buy money.

[20] As Cpl. Livingstone was walking towards the Safeway area, a two-door silver sports car pulled up beside him on AlexanderStreet. The lone male driver was the same male Cpl. Livingstone encountered on December 8, 2017 with the prior drug transaction. [21] The male told Cpl. Livingstone to get in the car, and despite his training to avoid that sort of uncontrolled environment, Cpl.Livingstone reluctantly went into the passenger seat. It is dangerous to make undercover drug purchases in this manner, and staticlocations with a nearby surveillance team are much preferred. Cpl.

Livingstone was very nervous when he got into the male's vehicle. [22] Cpl. Livingstone said to the male that they could park somewhere, but the male drove on and asked for the money and he wasshielding his lap area. Cpl. Livingstone responded that he wanted the drugs before handing over the money. [23] The male slowed down to about 10 kilometres per hour, so Cpl. Livingstone jumped out of the car. The male pulled the car over,rolled down the window and told Cpl. Livingstone to not "worry about it.” Cpl.

Livingstone said he was worried about being robbed, andthe male said to get inside the car, "it is okay". [24] Cpl. Livingstone went back into the car. The male accused him of being a police officer, and Cpl. Livingstone accused the maleof being a police officer. The men talked back and forth and then they spoke of the deal itself. The male did not have a chunk of fentanyl,he only had pieces. He wanted to charge $820 to $840 for the 30 pieces he produced from his lap area. [25] Cpl. Livingstone knew that when you buy fentanyl in smaller pieces, you tend to get shorted on amounts.

He discussed this issuewith the male, and the male agreed to give him an extra baggie as a bonus. Cpl. Livingstone gave the male $820 or $840, and the malegave him 31 pieces. [26] The men talked of further drug buys and when they became less nervous, Cpl. Livingstone said to the male he did not know hisname. The male said his name was Ryan. The men then knuckle bumped and departed. Cpl. Livingstone got a look at the licence platenumber of the vehicle. [27] This interaction took minutes, although it seemed longer. Cpl. Livingstone said the male driver was the same person he saw on December 8th.

He looked exactly the same, with the same puffy jacket. The male had a more nervous demeanour than on December 8th,but he calmed down at the end. He was assertive and cagey by changing locations. [28] The drugs and the licence plate number of the sports car were passed on to Sgt. Greenway. The 31 pieces of a purple drug wereindividually wrapped and were in a larger baggie. [29] Based on Cpl. Livingstone's notes, the silver sports car pulled up to him at 12:29 p.m. and he exited the vehicle for the final timeat 12:37 p.m. There are references later in the Crown's case of Cpl.

Livingstone exiting the vehicle at 12:39 p.m., so I will use this shortertimeframe for the purposes of my decision. The weather was clear and cold. [30] Cpl. Livingstone saw the male named Ryan one more time in November of 2018. A female officer, Cpl. Hawes, was workingundercover and she had arranged a drug purchase on the same drug line. Cpl. Livingstone's undercover role was to drive Cpl. Hawes tothe meet location off Highway 1 at Vedder Road in Chilliwack. Cpl. Livingstone did not know whom Cpl. Hawes was meeting. [31] While undercover, Cpl. Livingstone accompanied Cpl. Hawes to the seller's vehicle.

When the vehicle door opened, Cpl.Livingstone saw the front passenger and recognized him as Ryan, the same person he dealt with on December 8 and 21, 2017. Cpl.Livingstone struck up a conversation with Ryan who indicated his drug line was back up. [32] Cpl. Livingstone testified that the Ryan person had dropped weight and appeared to have an addiction issue. The male was thinwith sores on his face. Cpl. Livingstone and the male recognized each other and started with a "hey hey" greeting. Cpl. Livingstone wassome 12 feet away from the Ryan person when he made these observations.

These observations were reported to Sgt. Greenway. [33] On November 10, 2021, Cpl. Livingstone identified the accused, Mr. Brar, in court as the Ryan male he had dealt with inDecember of 2017 and November of 2018. Cpl. Livingstone made the in-court identification after Mr. Brar had removed his COVIDface mask. Cpl. Livingstone said that the accused was a distinctive looking young man and he was familiar with the accused's facialfeatures and eyes. The accused looked healthier than he did in November of 2018. The accused, Mr. Brar, was the only person sitting inthe court gallery.

Video Recognition Evidence [34] In the Crown’s case, Cpl. Livingstone was shown a video and some still pictures from December 21, 2017, of events unrelated tothe charges in this case. Cpl. Livingstone was asked to identify the male in the video. Initially, defence counsel took issue with theadmissibility of Cpl. Livingstone's video recognition evidence, so the evidence was presented within a voir dire.

Defence counsel wasnot taking issue with the admissibility of the video itself, and as I discuss below, I, as the trier of fact, would be asked to compare themale in the video with the accused sitting in court as outlined in R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197. [35] Ultimately, defence counsel agree that Cpl. Livingstone could give video recognition evidence, but the real issue was to be theweight assigned to that evidence. Based on my review of the case law, this was a reasonable position for defence counsel to take. Asindicated in R. v.

McKinnon, 2013 BCSC 2097, video recognition evidence is lay opinion evidence about the identity of an individual,usually an accused, that is based on the witness' past association or relationship with him. Such evidence will be admissible if the witnessis in a better position to identify the accused than the trier of fact, such that the opinion would be helpful. It does not matter that the trierof fact is also in a position to identify the accused in the video. [36] Cpl. Livingstone had sufficient familiarity with the Ryan male to be in a better position than the trier of fact to recognize the malein the video.

He saw the Ryan male for three minutes on December 8, 2017, eight or nine minutes at a different timeframe on December21, 2017, and briefly in November of 2018. On two of those occasions the officer is sitting right beside the Ryan male. Of course, theweight to be given to the recognition evidence was very much at issue.

[ 37 ] In the voir dire , which became part of the trial proper, Cpl. Livingstone was shown the video which he had never seen before. The vehicle in the video appeared to be the same silver one Cpl. Livingstone occupied on December 21, 2017, and this video was taken on the same date at a gas station. [ 38 ] At the beginning of the video, an individual in the passenger seat of the silver car leaves the scene. In the third clip of the video, a South Asian male gets out from the driver's side of the vehicle, walks around the front and then returns to the driver's seat.

The South Asian male is seen for about 18 seconds. Cpl. Livingstone testified that the South Asian male in the video was the same male sitting in court, and the same male he encountered on December 8 and 21, 2017. He had the same shape of face and distinctive eyes. Cpl. Livingstone testified that he was 100 percent certain. [ 39 ] Cpl. Livingstone was shown four stills for the same time and location as the December 21, 2017 video. He identified the South Asian male as the Ryan male he saw December 8 and 21, 2017. The quality of the stills was not as good as that of the video, but Cpl.

Livingstone recognized the distinctive eyes, bone structure and shape of the face. [ 40 ] Looking at both the surveillance video and the four still photographs, Cpl. Livingstone recognized the male there to be the same male he had encountered in December 2017 and November of 2018. It was the same male he identified in court. Again, Cpl. Livingstone noted that the South Asian male had lost weight in November of 2018 when he had sores on his face and had a sallow complexion. [ 41 ] In cross-examination, Cpl.

Livingstone confirmed that he dealt with the Ryan male for minutes on December 8 and 21, 2017 and briefly in November 2018. He agreed he was involved in 10 to 20 transactions as an undercover officer between December of 2017 and April of 2018, and the majority of the suspects were young South Asian males. [ 42 ] In cross, Cpl. Livingstone acknowledged that undercover work in the illegal drug trade was inherently dangerous. There is some focus on the suspect's hands to look for weapons, to count money and to exchange drugs. Cpl.

Livingstone does have a cover team to extract him, if necessary, and to record details. After a successful drug transaction, the cover team will sometimes pull over the suspect right away in order to identify him. [ 43 ] Based on Cpl. Livingstone's notes and times received from his cover team, Cpl. Livingstone interacted with the Ryan male in the vehicle for three minutes on December 8, 2017. On December 21, 2017, the silver car driven by Ryan pulled up at 12:29 p.m., and Cpl. Livingstone exited the vehicle a minute later but returned to the vehicle until 12:39 p.m. [ 44 ] In cross, Cpl.

Livingstone agreed that there was nothing in his notes on either December 8 or December 21, 2017 about the suspect's eyes or facial features. Cpl. Livingstone said the Ryan male had dark circles under his eyes but this is not in his notes. His notes from November of 2018 only refer to "East Indian, 20 years old, baseball cap, hoodie" with no reference to facial features. [ 45 ] Further into cross, Cpl. Livingstone agreed that he made three other undercover purchases from three different South Asian males on December 5, 8 and 12, 2017.

Those notes reflect these South Asian males had generally the same description but they were of different ages and heights. Cpl. Livingstone also made a number of undercover drug purchases from South Asian males in January, February, March and April of 2018. [ 46 ] Cpl. Livingstone did not make notes of the male Ryan's demeanour on December 8, 2017, but did note Ryan appeared nervous at 12:12 p.m. on December 21, 2017. [ 47 ] In cross, Cpl. Livingstone admitted these events were almost four years ago, but he was sure of his identification of the accused. If he was not sure he would say so. Sgt.

Greenway [ 48 ] Sgt. Greenway has been with the RCMP since 2000, and he was primarily involved in drug investigations. [ 49 ] On December 8, 2017, Sgt. Greenway was the cover person for Cpl. Livingstone regarding undercover purchases from a drug line. The objective was for the undercover officer to purchase crack cocaine and possibly fentanyl. Sgt. Greenway passed the buy money on to Cpl. Livingstone. [ 50 ] Cpl. Livingstone initiated contact with the suspect at 14:21 on December 8 th , and the interaction lasted three to four minutes, at most. During the debriefing, Cpl.

Livingstone provided a bag of suspect cocaine and four bags of suspected fentanyl, and the remaining buy money. The drug exhibits were given to Cst. Lewis. [ 51 ] Sgt. Greenway was again the cover for Cpl. Livingstone on December 21, 2017. The objective that day was for Cpl. Livingstone to purchase a quarter ounce of fentanyl/heroin from the same drug line. Sgt. Greenway provided Cpl. Livingstone with $1,000 in cash buy money. [ 52 ] Cpl. Livingstone entered the suspect vehicle at 12:30 p.m. and ultimately left the vehicle at 12:39. He initially exited the vehicle but went back in. Afterwards, Cpl.

Livingstone provided a bag of individually wrapped drugs suspected to be fentanyl, as well as the unused buy money. The exhibits were passed on to be processed. [ 53 ] Sgt. Greenway never observed the seller. In cross-examination, he agreed it took a long time to ultimately identify the seller. There are quicker means to identify the seller such as buy and bust, surveillance of the trafficker, dual purpose stop, or through a search warrant process. These steps were not taken here. Cst. Lewis [ 54 ] Cst. Lewis has been a member of the RCMP since late 2008. As indicated in Sgt. Greenway's evidence, Cst.

Lewis received two types of drug exhibits on December 8, 2017, following the undercover drug purchase. Cst. Lewis weighed these exhibits and sent

samples to Health Canada for analysis. [ 55 ] The first exhibit was .31 grams of cocaine in a Saran-wrapped bag. A field test was also performed, and the blue colour indicated the drug was cocaine. The Health Canada analysis confirmed the sample was cocaine. [ 56 ] The second exhibit was .64 grams of fentanyl without the packaging.

The fentanyl was in four baggies, and the sample sent to Health Canada confirmed the presence of fentanyl and caffeine. [ 57 ] Admissions were made at trial that the 31 baggies from the December 21, 2017 undercover purchase weighed 3.26 grams and consisted of 15 small baggies and 16 large baggies. Two samples were sent to Health Canada and were confirmed as fentanyl and carfentanil with caffeine. Cst. Buck [ 58 ] Cst. Buck has been a member of the RCMP since 2005, and he was part of the surveillance team on both December 8 and 21, 2017.

His evidence from the video recognition voir dire went into the trial proper. [ 59 ] On December 8, 2017, Cst. Buck's task was to follow the suspect driver after the undercover purchase of drugs. Cst. Buck was to get video of the driver, but no video evidence for that day was presented at trial. [ 60 ] On December 21, 2017, Cst. Buck was again tasked with following the suspect driver after the undercover drug purchase in order to identify the driver. On that occasion, the suspect driver was in a grey Infinity. Cst. Buck witnessed undercover officer Livingstone get into the Infinity which then drove west. Cpl.

Livingstone got out of the vehicle but then got back in, and the vehicle returned to the Safeway parking lot in downtown Chilliwack. [ 61 ] Afterwards, Cst. Buck followed the grey Infinity to a Husky gas station on Trethewey Avenue and Young Road. Cst. Buck observed a male get in on the passenger side and then leave. Cst. Buck then saw the suspect driver get out of the vehicle, look around to the passenger side and then get back in the vehicle. [ 62 ] Cst. Buck took a video of these observations on December 21, 2017, at the gas station.

In the third clip of the video, the suspect driver gets out of the vehicle and looks around the vehicle. Cst. Buck testified the video was of very good quality. He also took four still photographs from the third clip of the video showing the driver. [ 63 ] As of December 21, 2017, no name was attached to the suspect driver. [ 64 ] In November of 2018, Cst. Buck was on the surveillance team when Cpl. Livingstone carried out an undercover operation that happened to involve the same male suspect. A video was taken of the surveillance but not presented in court. Cst.

Buck also has still photos from the November 2018 video, but they were of poor quality. [ 65 ] On November 27, 2018, Cst. Buck sent Cst. Janela an email with photo stills from December 2017 in order to see if the suspect male could be identified. Later that day, Cst. Buck sent Cst. Janela a video clip from “January 2018,” although Cst. Buck said the date was in error. He was sending the November 2018 video, a video he took about one week prior to the email. [ 66 ] In a return email, Cst. Janela indicated the images were "not the greatest" but he believed the suspect to be Prabhjot Brar.

Defence counsel agreed this email could be marked as an exhibit without the need to call Cst. Janela. [ 67 ] In cross, Cst. Buck said he was not able to see sores on the face of the suspect from the stills or video of November 16, 2018. The licence plate on the grey Infinity did not relate to the accused, Mr. Brar. Cst. McGinn [ 68 ] Cst. McGinn has been employed with the RCMP for seven-and-a-half years. On January 29, 2019, he took

part in the arrest of the accused, Mr. Brar, in Abbotsford, B.C. [ 69 ] Cst. McGinn read Mr. Brar his Charter rights, photographed his wallet contents and belongings, and lodged him in the Abbotsford Police Department cells. He dealt with Mr. Brar for under an hour. [ 70 ] Cst. McGinn described Mr. Brar as a young, South Asian male in his early twenties. Cst. McGinn confirmed Mr. Brar's identity using his driver's licence which was photographed. [ 71 ] Cst. McGinn did identify Mr. Brar in court on November 10, 2021, as the same male he arrested. Almost three years had passed, and Mr.

Brar was wearing a suit in court with his hair slicked back. Mr. Brar was the only person in the court gallery. [ 72 ] In cross, Cst. McGinn said he made no note of sores on the accused's face in January of 2019. No book-in photograph was in evidence. [ 73 ] The Crown concluded its case and the defence chose to call no evidence. [ 74 ] I did make a comment about the quality of the video taken December 21, 2017 (Exhibit 4), and I allowed the defence to reopen the case should they feel it necessary.

I commented that the video was of quite good quality and clarity, and it showed a South Asian male suspect for 18 seconds, a sufficient time so that conclusions could be drawn about identity. The stills were of lesser quality but of assistance when viewed with the video. Defence counsel did not reopen its case. [ 75 ] A ruling on the video recognition voir dire was not required, but I make the above comment because I was being asked to make my own observations about identity. At paragraph 32 of R. v. Nikolovski , the Supreme Court of Canada indicated it would be helpful if,

after reviewing the video, a trial judge indicated if he was impressed with the clarity and quality of the video to the extent that a findingof identity could be based upon it. Of course, great care must be exercised in reaching a conclusion as to identification based solely onvideo evidence. Has the Crown proven identity beyond a reasonable doubt? [76] In R. v.

Field, 2018 BCCA 253, our Court of Appeal described three distinct types of identification evidence that may betendered: eyewitness evidence by a stranger; identification by the trier of fact through photographic evidence; and recognition evidence. [77] Eyewitness evidence by a stranger is the least reliable but I point out here that Cpl. Livingstone had three personal interactionswith the male. He also gave recognition evidence by identifying the male in the December 21, 2017 video, taken on the same day as hispersonal interaction with the male. Cpl.

Livingstone also identified the accused in court, and although little weight could be attached tothat identification alone, I must weigh all the evidence as a whole. [78] I also had the opportunity to compare the male in the December 21, 2017 video with the accused appearing in court. [79] Unlike the case of R. v. Gagnon, 2021 BCPC 128, Cpl. Livingstone in our case met the male on more than one occasion. He wascertain of his identification and he provided more descriptors. [80] The case at bar differs from the case of R. v.

King, 2011 ONSC 6998, where the officer only had one interaction with the suspectwhich lasted two minutes. [81] Our case also differs from R v. Edwardson, (BC CA), [1993] 79 C.C.C. (3d) 508 where there was apossibility that a suspect entering a hotel was not the same person who emerged about a minute later. [82] Before reaching my conclusions, I remind myself of the warning in R. v.

Edwardson that whenever the case against an accuseddepends wholly or substantially on the correctness of eyewitness identification of the accused, there is a special need for caution. [83] Nevertheless, having weighed all the evidence in this case, I am satisfied beyond a reasonable doubt that the identity of Mr. Brarhas been proven. [84] First, Cpl. Livingstone was in a unique position as an undercover officer to see the male suspect on three different occasions. Hesaw the suspect for three minutes on December 8, 2017 and for at least eight minutes on December 21, 2017.

He saw the suspect brieflyin November of 2018. [85] In the first two instances, Cpl. Livingstone sat right beside the suspect and interacted with him face-to-face. The seller was theonly other occupant in the vehicles involved. True, Cpl. Livingstone was interacting with a number of other young South Asian malesduring this period, but he was a hundred percent certain with his later identification of the accused in the video and in court, and he is atrained observer. [86] Secondly, when describing the suspect in 2017 and 2018 and much later in court, Cpl.

Livingstone spoke about many specificsabout the suspect's identity. His notes refer to a South Asian male, five foot eight inches tall with a scruffy beard, short-cropped hair anda puffy jacket. Although not in his notes, Cpl. Livingstone testified about the accused's distinctive eyes with the dark circles underneathand the shape of his face. I accept the reliability of these details notwithstanding the lack of notes. Of course, written notes of thosedetails would have been preferable. [87] Cpl.

Livingstone recognizes the same male some 11 months later in November 2018, although the male is thinner with a poorcomplexion. This was a shorter interaction and Cpl. Livingstone was some 12 feet away, but the suspect and Cpl. Livingstone recognizedeach other and the suspect said his line was back up running. [88] I appreciate Cpl. Livingstone's in-court identification of the accused is some four years later. However, this officer providedgreat detail as to his identification and, again, he had several interactions with the suspect. [89] Thirdly, Cpl.

Livingstone recognized the suspect, who he now identifies as the accused, in a video taken on December 21, 2017,the very day of one of the drug purchases. Cpl. Livingstone had not seen the video before. It was of good quality and the suspect is seenfor 18 seconds. [90] The email of Cst. Janela and the evidence of Cst. Buck and Cst. McGinn are not determinative and that evidence simply leads tothe name of the accused, Mr. Brar. The case largely rises or falls on the evidence of Cpl. Livingstone.

It is that officer who identifies Mr.Brar in court as the seller in 2017, the person he saw in November of 2018 and the person he saw in the video. I find that evidence to bereliable and I do account for unconscious bias. [91] Finally, I, as the trier of fact, have been asked to compare the male in the December 21, 2017 video with the accused sitting incourt, as are outlined in R. v. Nikolovski. I have already concluded that the video was of good quality, and the suspect male could be seenfor about 18 seconds in the video clip.

According to Nikolovski, such video evidence may be a trustworthy, unemotional, unbiased andaccurate "witness". [92] I have reviewed the third clip numerous times. The male comes out of the driver's seat of a car wearing a puffy jacket with a fur-like collar. He walks around and looks at the passenger side of the vehicle and then returns to the vehicle. The male is South Asian withshort hair on the sides and a short-haired beard. His hair on the top of his head is slightly longer and he has bangs, although the bangsrecede on each side of his forehead.

He has a somewhat large nose with darkness under the eyes and dark eyebrows. Cst. Buck took thisvideo after following the male in the vehicle from where Cpl. Livingstone had made the undercover purchase from the male. [93] I observed the accused in court without his mask on two occasions. Based on my observations, the accused is one and the same

person as the individual in the video. He has the same partially revealed forehead and the same heavy eyebrows. He has the same facial structure with a somewhat large nose and darkness under the eyes. The beard is very similar. His hair in court was a little more slicked back and wavy, but I am satisfied he is the person in the video. [ 94 ] On the driver's licence issued in October of 2017, the individual depicted is, in my view, the same person seen in the December 21, 2017 video.

His bangs are arranged differently, but he has the same facial structure and nose with dark eyebrows. [ 95 ] I emphasize that my overall conclusions about identity in this case go well beyond my own observations of the videotaped evidence. This is not a case based solely on video recognition or eyewitness evidence. It is based on both types of evidence from Cpl. Livingstone, plus my own observations about the video. [ 96 ] Looking at the surveillance video and the four still photos, Cpl. Livingstone recognized the male there to be the same male he encountered three times in December of 2017 and November 2018.

The male was the same male he identified in court whose name is Prabhjot Brar. My own observations of the video and the accused in court confirm certain of the observations made by Cpl. Livingstone. [ 97 ] Mr. Brar, I would ask that you please stand up. [ 98 ] I find you guilty of Count 1, trafficking in fentanyl and Count 2, trafficking in cocaine on December 8, 2017. I find you guilty of Count 3, trafficking in fentanyl and carfentanil on December 21, 2017. (REASONS FOR JUDGMENT CONCLUDED)