R. v. Nistor, 2011 ONCJ 764

COURT FILE No.: Toronto Region – Metro East Court (Scarborough) DATE: 2011·09·20 Citation: R. v. Nistor , 2011 ONCJ 764 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ANISOARA NISTOR Before Justice M. Wong Heard on July 14 and 15, 2011 Reasons for Judgment released on September 20, 2011 M. Mandel ................................................................................................................. for the Crown R.

MacDonald ................................................................................. for the accused Anisoara Nistor WONG, J.: [ 1 ] Anisoara Nistor is charged with the Indictable Offence of Theft Over $5000. She elected to have her trial before this court and pleaded not guilty. The Crown alleges Ms.

Nistor was involved in what is called a “distraction theft”, relating to the theft of a large quantity of cigarettes and cash taken from a Hasty Market. [ 2 ] The Crown called four witnesses: the store owner, a Scenes of Crimes officer (SOCO) who lifted fingerprints from the store, a fingerprint examiner, and a police officer who had prior dealings with Ms. Nistor. The main issue in this case is identification. [ 3 ] The following is an outline of the Crown’s case: Store Owner : [ 4 ] Nimeth John, age 49, is the owner of a Hasty Market located at 283 Morningside Avenue in Toronto.

It is a fairly large store which has four surveillance cameras situated throughout the store. The events of September 22, 2009, were captured on videotape and the tape was marked as an exhibit at the trial. [ 5 ] At approximately 12 noon, Mr. John was working behind the front cash register when two men and five women entered the store. The two men approached Mr. John and asked him if the ladies could use the washroom. Mr. John told them only employees were allowed to use the washroom, which was located in a private area at the back of the store. [ 6 ] As the two men spoke to Mr.

John at the front counter, the video shows the group of women enter and walk directly to the back of the store. Four of the five women wore floor length skirts and hijabs – the head covering traditionally worn by Muslim women which left only their faces showing. The fifth woman wore more Western style clothing. Mr. John testified he is very familiar with the clothing worn by Muslim women because he was originally from Afghanistan, where there is a large population of Muslims. [ 7 ] Unlike when groups of students came into his store, Mr.

John said he was “100 percent” sure that the group of Muslim men and women would steal. He thought he “could leave them in the store and they would not touch anything ”. Mr. John was very comfortable bantering with the two men at the counter while the ladies shopped. Mr. John said he and the men made small talk such as what country each of them was from. Mr. John was told the group were new to the neighbourhood and because they liked his store, they would buy from him again. The video taken from the camera at the front of the store showed Mr.

John chatting with the men while ringing in purchases brought by the various women to the front counter. Mr. John testified he believed the women were Muslim based on their modest dress and the greetings they used. [ 8 ] Meantime, at the back of the store, something far more ominous was going on. The video cameras located in the back of the store recorded the group of women initially milling about. Suddenly one of the females wearing a black hijab, ducks into a back room and disappears off camera. Mr. John testified that in the back area was a small office, which was locked – but just barely. Previously, Mr.

John stated he had inadvertently locked his keys inside the office; and he had pried it open. On September 22 nd , the office door lock was held together with tape and Mr. John said it could easily be opened without a key. Inside the office, Mr. John kept cartons of cigarettes that had a value of $16,000; and that day he had $4000 cash from lottery tickets sitting on the desk in an envelope,

which was ready to be deposited at the bank. [ 9 ] While Mr. John was busy talking with the men at the front counter and the woman with the dark head covering still in the back room; the other women continued to wander about the store, handling various items and occasionally taking them to the front cash to buy. The Crown alleges that the defendant, Anisoara Nistor, is one of these women seen on the tape touching products and going to the cash. The Crown’s theory is that Ms. Nistor is the female initially wearing a white hijab.

The suspect appears on screen on camera #4 at 12:06:43 coming up to the front, speaking to the woman dressed in more Western style clothing, and then buying some items from Mr. John. The video from 12:07 onwards shows the suspect in profile and partially from the front with her eyes downcast. [ 10 ] The video camera also captures this same female in the white hijab return to the back of the store. At approximately, 12:11:15, the woman who initially slipped into the back room wearing the black hijab, emerges from the back room and reappears on camera.

What happens next is quite remarkable: the camera captures the woman with the black hijab taking off her hijab and switching it with the female wearing the white hijab, which the Crown alleges in Ms. Nistor. In other words, the suspect initially in black is now wearing white; and Ms. Nistor, who allegedly was in white, is now wearing the black hijab. [ 11 ] The video then captures, allegedly Ms. Nistor now dressed in the black hijab, and another woman crouch down and run into the back room and off camera. [ 12 ] Meantime, the video camera at the front of the store shows Mr.

John still busily engaged with the two males. At 12:12:27, the female now wearing the white hijab brings something to the front of the store to buy. [ 13 ] At 12:14:15, the camera at the back, records the two women (one of whom is purportedly Ms. Nistor) emerging from the back room and re-entering the main part of the store. [ 14 ] At 12:15:20, the front camera captures all five women walk out along the farthest aisle away from the cash register and out the front door. At the same time, the two men also bid farewell to Mr. John and exit the store.

In total the suspects were in the Hasty Market for approximately 13 minutes. According to Mr. John, the group spent approximately $60 in his store. [ 15 ] At 2:39 p.m., after his other employee arrived to take over his shift, Mr. John went to the back of the store and said he almost had a heart attack when he saw the office door wide open and his entire inventory of cigarettes – over 200 cartons of cigarettes valued at $16,000 – and $4000 of cash were missing. Mr. John viewed the videotape and called police. [ 16 ] Mr.

John said he had insurance but his store had been robbed multiple times and his insurer advised him that if he made a claim, they would cancel his insurance. Even if the insurance company had covered his loss, Mr. John said his policy only would cover $3000. As such, Mr. John testified he made a claim but did not pursue it so he is out of pocket $20,000. [ 17 ] Mr. John felt very betrayed that Muslim people would steal from him. In his testimony he repeated many times how friendly the group were to him and how he felt betrayed because they were Muslims, whom he had always trusted. Mr.

John was incredulous in particular, that Muslim women would steal cigarettes. Identification : [ 18 ] Sergeant Paula Prosavich, who was not assigned to this case, was working in Intelligence Services in November 2009, when she checked, as she does daily, the internal police “push pin” electronic bulletin board where officers post information, photographs, and videos from investigations asking other officers for assistance. Sgt. Prosavich clicked on the posting of the Hasty Market incident, which she referred to as a “distraction theft”.

She viewed the still photos taken from the video cameras and she believed she recognized one of the suspects. Sgt. Prosavich testified she immediately suspected the woman wearing the white hijab at the front counter was Anisoara Nistor. As such, Sgt. Prosavich followed up and met with lead investigators on his case and viewed the store’s surveillance videos. [ 19 ] After watching the videos, Sgt. Prosavich testified she was “100% confident” that the woman in the white head scarf was Ms. Nistor. [ 20 ] Sgt.

Prosavich testified that beginning in February 2008, almost a year and a half before the Hasty Market investigation, she had conducted undercover surveillance on Ms. Nistor, which was the foundation for her recognizing Ms. Nistor from the videotapes. In particular, Sgt. Prosavich made the following observations of the defendant: • On February 4, 2008, Sgt. Prosavich was involved in undercover surveillance of Ms. Nistor. Prior to February 4 th , the officer had viewed RICI photos and mug shots of the defendant. On February 4 th , Sgt. Prosavich said she observed Ms.

Nistor sitting on a bench at College Park court house. From 9:35 am until 11:13 am., when Sgt. Prosavich rode the elevator down with Ms. Nistor and then saw her walk to a van, the officer said she did not keep her eye on her continuously but had watched and followed her. • On February 27, 2008, at 9:15 am, the officer observed Ms. Nistor seated in the passenger side of the van parked outside of a coffee shop at the corner of Carlton and Parliament Street in Toronto. Sgt. Prosavich testified she recognized Ms. Nistor based on her previous observations, as well as the person accompanying her.

The officer observed Ms. Nistor enter the College Park Court building and at 10:50 am, she saw the defendant leave the courts and re-enter the van. Sgt. Prosavich followed the van back to Ms. Nistor’s home address • On March 4, 2008, the sergeant observed Ms. Nistor in the parking lot of Brampton Courthouse at 11:28 am, along with three other individuals. The officer described Ms. Nistor’s clothing from notes she had written. At 12:40 p.m., Ms. Nistor came out of the courthouse and then she left the scene. • On June 26, 2008, Sgt. Prosavich observed Ms. Nistor seated in the front passenger side of a van.

Later the same day, the officer saw Ms. Nistor outside of the van at Eglinton just west of Yonge Street. The officer believed she observed Ms. Nistor outside on

the street for approximately 10-15 minutes • Further, Sgt. Prosavich testified she has seen videotape on September 2008 and June 11, 2009, which contained images of Ms. Nistor. • In total, up to November 5, 2009 when Sgt. Prosavich watched the Hasty Market videos, Sgt. Prosavich estimates she has had 6 opportunities to see photographs of Ms. Nistor. [ 21 ] During cross examination, Sgt. Prosavich was unmoved from her position that Ms. Nistor is the woman on the video first, in the white hijab, and then later she switched to wearing the black hijab.

Fingerprint Evidence : [ 22 ] When police arrived they dusted the Hasty Market for fingerprints. Police Constable Peter Rampat, a Scenes of Crimes Officer (SOCO) lifted prints from a bag of Whiskas Cat Food which was located on a top shelf located at the back of the store. On the video, the suspect wearing the white hijab at the time when the Crown alleges it was Ms. Nistor still wearing the white hijab, is seen touching the Whiskas bag. [ 23 ] P.C. Rampat lifted two viable latent prints from the bag.

The prints were sent to Margaret Monks, a Senior Fingerprint Examiner and civilian member of the Toronto Police Force. Ms. Monks has worked as an examiner since 1995 and in 2006 was promoted as a supervisor. Print labelled R2 taken from the bag was identified as the right thumb print of Anisoara Nistor. In Ms. Monk’s opinion the fingerprint on the bag was consistent with someone holding onto the bag because of the pressure was on the centre of the print and there were clear ridges as opposed to distortion or movement from someone wiping the bag. [ 24 ] Ms.

Monks agreed with Defence counsel that a print can stay on an object for upwards to a year under certain conditions. Scientifically it is not possible to determine how long a print will last on any given surface. Defence challenges to the evidence: [ 25 ] Defence counsel gamely tried to challenge the witnesses’ evidence and credibility suggesting the following: [ 26 ] Counsel suggested to Mr. John that it would have been impossible for the group of women to have removed 200 cartons of cigarettes, each measuring 15 cm x 18 cm x 5 cm. Mr.

John said his store has a back door that leads to a street: however, the back door also had a metal security grate which is always locked and which needed a key to open. On the day in question, one of the reasons why the “middle” door leading from part of the store where the customers are allowed, to the back room where customers are not allowed, was because Mr. John wanted the air to flow from the back to the front. Mr. John said he opened up the back door as well as the middle door, but the metal grate was locked.

That metal grate had an opening at the top which was large enough for a carton of cigarettes to be put through. [ 27 ] Mr. John said he thought it was possible for someone to pass through cartons of cigarettes one at a time through the grate’s opening. Further, Mr. John believed it was likely the women hid cartons of cigarettes under their long floor length dresses. Mr. John testified that when he viewed the video, he thought the women’s dresses looked fuller and flared out more after they came out from the back storage room. [ 28 ] Counsel in his submissions argued that based on Mr.

John’s time line, it was possible that someone else had slipped in the back room and taken the property. Mr. John testified he was last in the backroom at approximately 10:30 or 11 am when he went to the back to open the back door to let the air in. Counsel Mr.

MacDonald argues that there was no video played for the court either before or after the suspects dressed in hijabs entered the store; therefore, counsel submits it is possible that someone else entered the back room and stole the property. [ 29 ] In the alternative, counsel argues that the court cannot be certain that the women seen ducking into the back room were not simply looking for the bathroom. [ 30 ] The court is entitled to make reasonable inferences based on the evidence.

Defence counsel’s submissions that maybe someone else other than this group dressed as Muslim men and women stole the property or that the women could have just been looking for a bathroom, are based purely on speculation, conjecture, and a vivid imagination. The evidence on the videotape is powerful and very persuasive. The women on the videotape are seen ducking and running into the backroom. The only reasonable inference is that they thought they could avoid the camera. Their behaviour is completely inconsistent with trying to find a washroom. Moreover, two of the women swapped head scarves.

The only rationale and logical inference is that they were trying to change their appearance. [ 31 ] It is also hypothetically possible that three suspects working quickly for 10 to 12 uninterrupted minutes could dispose of 200 cartons of cigarettes. This was a well planned act of theft: it is possible that there were other participants waiting at the back door for the cigarettes to be passed through the space in the grate at the back door.

As well, the women could have used their long dresses to conceal stolen property. [ 32 ] Defence counsel also argues that it is impossible for anyone to look at the Hasty Market videotape and to identify the woman with the white head dress as Ms. Nistor. Counsel rightly emphasises that only the face of the woman in white is visible on the security tape. Unfortunately for the defence, Sgt. Prosavich’s basis of her recognizing Anisoara Nistor is not based solely on the officer looking at the Hasty Market tape, but rather as a result of encounters with Ms. Nistor over a two year period. Sgt.

Prosavich’s previous observations of Ms. Nistor was well documented and detailed –she testified to dates, times and particulars of her multiple opportunities to see Ms. Nistor in person, in photographs and on video. Sgt. Prosavich said besides the defendant’s facial features which she recognized, she also recognized Ms. Nistor’s posture, which the officer described as slightly bent over from the shoulders. The extent and quality of the sergeant’s encounters, adds considerable weight and reliability to the officer’s evidence.

[33] Crown counsel has provided me with the decision of R.v. Nikolovski (SCC), [1996] 3 S.C.R. 1197(S.C.C.) where the court recognized the importance and usefulness of videotapes in criminal trials. In some cases, videotape evidencecan be very clear and convincing evidence of identification that triers of fact can use as the sole basis for the identification of the accusedbefore them in court as the perpetrators in a crime. Unlike the case of Nikolovski, supra, I am not left to alone determine whether Ms.Nistor is the same person as the woman in the video. The court has the evidence of Sgt.

Prosavich, who has had numerous opportunitiesto observe Ms. Nistor in person, from videotape, and from still photographs for a year and a half. Based on these dealings with Ms.Nistor prior to the offence before this court was committed, Sgt. Prosavich’s evidence, which was not undermined in cross examination,is that she recognized Ms. Nistor from the videotape. Furthermore, from my own observations, Ms. Nistor does look like the woman withthe white hijab at the front counter. [34] There is also the fingerprint evidence, which establishes that Ms. Nistor’s prints were on the cat food.

The fingerprintevidence is further corroborative evidence pointing to the guilt of Ms. Nistor. [35] Defence counsel cautions the court that I must apply the rule in Hodge’s Case (1838), 1838 CanLII 1 (FOREP), 2 Lewin227, 168 E.R. 1136. Namely, that whereby the Crown seeks to prove identity by circumstantial evidence, the Court cannot convict Ms.Nistor unless the evidence is inconsistent with any other rational conclusion other than guilt.

It should be first noted that courts inCanada have moved away from applying any formula such as the Hodge’s rule and instead a trial judge ought consider the whole of theevidence and apply the required proof beyond a reasonable doubt (See R. v. Cooper (1977), (SCC), 34 C.C.C. (2d) 18(S.C.C.). [36] In this case, the circumstantial evidence against Ms. Nistor is very strong. There is forensic evidence of Ms. Nistor’sfingerprint on the bag of cat food; there is the videotape evidence that shows the woman in the white hijab touching the bag of cat food;and finally there is the evidence of Sgt.

Prosavich, who identified the defendant from the videos based on her past interactions andobservations of Ms. Nistor. I also accept the evidence of Mr. John that his property was stolen. Mr. John was a very straightforward andcredible witness. The only reasonable inference that can be drawn from all of the evidence is that the women pretending to be Muslim,worked in concert with the two men at the front counter, to steal the property from the complainant’s back room. [37] In examining the evidence as a whole, I am satisfied the Crown has proven the case against Ms.

Nistor; that indeed shewas one of the women who stole the property from the Hasty Market. I am satisfied that the Crown has proven beyond a reasonabledoubt the charge before the court and Anisoara Nistor will be found guilty as charged. Released: September 20, 2011 Justice M. Wong