R. v. Jalifi, 2015 BCSC 1085

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Jalifi, 2015 BCSC 1085 Date: 20150624 Docket: 75771 Registry: Kelowna Regina v. Rachid Ali Jalifi Before: The Honourable Mr. Justice Rogers On appeal from: An order of the Provincial Court of British Columbia, dated January 6, 2014 ( R. v. Jalifi , (unreported), Kelowna Registry No. 75771). Reasons for Judgment Counsel for the Appellant: N.L. Cobb Counsel for the Crown: T.A. Livingston Place and Date of Hearing: Kelowna, B.C. June 9, 2015 Place and Date of Judgment: Kelowna, B.C. June 24, 2015 Introduction [ 1 ] This is Mr.

Jalifi’s appeal of his conviction on two counts of assault. The sole issue at trial and on appeal is identity. Mr. Jalifi maintains that the evidence at trial on identity was not sufficient to safely underwrite the trial judge’s finding that he was guilty. Mr. Jalifi also argues that the learned trial judge misapprehended the evidence as to the lighting of the area where the assaults took place. Proceedings Below [ 2 ] The evidence at trial established beyond a reasonable doubt that in the early morning hours of July 4, 2011, an assailant struck Mr. Scott twice on the head and then struck Mr.

Dreschler once on the head. The attacks occurred on the sidewalk outside of a nightclub in downtown Kelowna, B.C. Mr. Scott was in the company of his two friends Mr. Severin and Ms. Petrauskas. [ 3 ] The three friends were standing on the sidewalk outside the nightclub and were enjoying their cigarettes. A male person approached the trio. This person spoke unkindly to Messrs. Scott and Severin. He was making homophobic remarks. Mr. Scott rebuffed the male’s comments. The male immediately struck Mr. Scott on the back of Mr. Scott’s head. Mr. Scott staggered. The male then struck Mr. Scott on the face. Ms.

Petrauskas tried to intercede; the male turned to her and said words to the effect that she was lucky she was a girl or he would strike her as well. As this brief exchange took place between Ms. Petrauskas and the male, Mr. Scott started to leave the scene. [ 4 ] Mr. Dreschler, who was busking nearby, saw the male start to follow Mr. Scott. Thinking that the male would continue his assault on Mr. Scott, Mr. Dreschler decided to intervene. He said some things to the male. The male then hit Mr. Dreschler on the head, causing Mr. Dreschler to bleed and to fall to the ground. [ 5 ] The assailant then left the area.

Neither Messrs. Scott, Severin, or Dreschler, nor Ms. Petrauskas saw where that fellow went. [ 6 ] The police attended the scene. Cpl. Haftner was first to arrive. A bystander who refused to identify himself told Cpl. Haftner that he saw the person involved in the incident getting into a black Mercedes. The bystander provided the officer with the car’s tag number. The bystander described the male as being either East Indian or middle-eastern and in his late twenties. He was wearing a black shirt and dark jeans. He had black hair and a big chain around his neck. Cpl.

Haftner alerted his colleagues in the area to be on the lookout for that vehicle. A short time later Cpl. Haftner spotted the vehicle and, acting on Cpl. Haftner’s information and instructions, Cst. Jacobsen stopped it. Cst. Jacobson found the accused Mr. Jalifi in the passenger seat. Mr. Jalifi’s physical characteristics generally matched the description of the assailant as given to him by Cpl. Haftner. Cst. Jacobson arrested Mr. Jalifi on suspicion of having assaulted Messrs. Scott and Dreschler. Upon his arrest, Mr.

Jalifi was wearing a large gold or goldish necklace and had big diamond or diamondish earrings in his ears.

[ 7 ] The police booked Mr. Jalifi into cells. They took a photo of him. Their intention was to prepare a photo line-up that could be presented to the four witnesses to the event: Messrs. Scott, Severin, Dreschler, and Ms. Petrauskas. Mr. Adams, a civilian employee at the detachment, selected nine photos of other male persons to go into the photo line-up with the photo of Mr. Jalifi. Mr. Scott worked from physical descriptors of Mr. Jalifi as given to him by Cst. Kilborn. Cst. Kilborn reviewed Mr. Shaw’s work and decided that the photo of Mr.

Jalifi was too distinctive because in it he was wearing diamond earrings and a large gold chain around his neck. No one depicted in the other nine photos was wearing any type of jewelry. Indeed, no photos of male persons wearing jewelry could be had because it was police policy to photograph persons of interest absent such adornment. [ 8 ] Mr. Scott was the first person to see the photo line-up. He saw it on July 4, 2011, just a few hours after he was assaulted. Mr. Scott identified Mr. Jalifi as his assailant. [ 9 ] Mr. Severin saw the photos that same day.

He did not identify any of the photos as depicting the person who had hit Mr. Scott. [ 10 ] Mr. Dreschler saw the photos next. He viewed them on July 12, 2011. He identified Mr. Jalifi as the man who had hit him in the head. [ 11 ] Ms. Petrauskas saw the photos on August 25, 2011. After observing that eight of the ten photos were ‘not even close’, she picked out Mr. Jalifi’s photo as depicting the person who had attacked Mr. Scott. [ 12 ] In each case the witnesses were shown the photos one by one. The officer in charge did not know who the suspect was.

The process for all four line-ups was video recorded. [ 13 ] At trial each of the witnesses to the incident described the assailant as having a dark complexion. Mr. Dreschler thought he may have been East Indian or Aboriginal. Ms. Petrauskas said that he had an olive complexion. They all described the assailant as a large individual with heavy build. Ms. Petrauskas said that he had closely cropped hair in what she thought was a fresh cut (Ms. Petrauskas is a hair stylist by trade). They described the assailant as wearing a large gold or goldish chain around his neck. Messrs.

Scott, Severin, and Dreschler testified that the man was wearing a dark or black t-shirt. Ms. Petrauskas testified that she remembered that the man was wearing a t-shirt but that it was white in colour. No one said anything about the assailant wearing earrings. [ 14 ] No witness testified that it was dark to the point of blackness in the area where the attack happened. Ms. Petrauskas testified that there were lights from the nightclub. Mr. Dreschler testified that as the male moved toward him and stood in front of him he was backlit by a street light on the far side of the road.

When he was standing in that position, Mr. Dreschler said that the man was silhouetted against the street light. Trial Judge’s Decision [ 15 ] The learned trial judge recounted the evidence in a

summary way. About the scene where the incident happened, the trial judge said: [8] …Each of the civilian witnesses had an opportunity to view the male as he began addressing homophobic comments to Scott and Severin, then moved to confront first Scott and then Dreschler. There is no evidence to suggest that anyone’s view was blocked or that lighting was inadequate. [ 16 ] The learned trial judge instructed himself properly as to the frailties of eyewitness identification. He also instructed himself accurately as to the law relating to photo line-ups.

The trial judge examined the photo line-up that the police put to the witnesses after the event. He assessed the line-up and the process used to employ it and found both to be fair. [ 17 ] The learned trial judge gave little weight to the in-court identifications of Mr. Jalifi. He gave greater weight to the fact that three of the four persons who interacted with the assailant on the night in issue picked out Mr. Jalifi’s photo and said that he was the one who did the crime. [ 18 ] In the result, the learned trial judge convicted Mr. Jalifi on both counts of assault. Grounds of Appeal [ 19 ] Mr.

Jalifi says that his convictions should be overturned because: 1. The learned trial judge misapprehended the evidence as to the identification of Mr. Jalifi as the assailant. More particularly, Mr. Jalifi complains that: a. The witnesses’ identification of Mr. Jalifi was couched in terms of their being positive or sure that he was the attacker, as opposed to a precise and clinical description of those features of Mr. Jalifi’s appearance that distinguished him from the other fellows in the photo line-up ; b. The learned trial judge erred when he found that there was no evidence that the lighting was inadequate.

Mr. Jalifi says that there was such evidence: it was in Mr. Dreschler’s testimony that when the assailant stood in front of him he was silhouetted by the street lamp behind him and that his face was then in darkness. 2. The photo line-up did not comply with the requirement that it be comprised of photos of persons who either fit the witnesses’ description of the person they saw or that the filler photos be of persons similar in appearance to the suspect. Mr. Jalifi relies on Ms. Petrauskas’s evidence that eight of the photos were ‘not even close’ and Mr. Dreschler’s testimony that he thought that the photos

showed quite dissimilar persons. Standard of Review [20] The right to appeal from a

summary conviction matter is governed by

Part XXVII of the Criminal Code, R.S. 1985, c. C-46.Section 822(1) of the Criminal Code provides that in a

summary conviction appeal pursuant to s. 813, ss. 683 to 689 relating to appealsof indictable offences, except s. 683(3) and s. 686(5), apply. Section 686(1) states: 686.

(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminallyresponsible on account of mental disorder, the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; [21] The function of the

summary conviction judge is to determine whether the trial judge could reasonably have reached theconclusion that the appellant was guilty beyond a reasonable doubt: R. v. W.(R.), (SCC), [1992] 2 S.C.R. 122; R. v.Grosse (1996), (ON CA), 29 O.R. (3d) 785 (Ont. C.A.). An appeal judge must consider the evidence at trial, andmust, to a limited extent examine and weigh it. That exercise has a limited purpose though, and that is to assess whether the evidence isreasonably capable of supporting the trial judge’s conclusions.

If it is, the appeal court is not entitled to substitute its own view of theevidence for that of the trial judge: R. v. Burns, (SCC), [1994] 1 S.C.R. 656. [22] When it comes to reviewing the trial court’s findings of fact, an appellant court must give due deference to the trial judge. See,for example Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, where Iacobucci and Major JJ. said at paras. 22 and 24: [T]rial courts are in an advantageous position when it comes to assessing and weighing vast quantities of evidence.

In making a factualinference, the trial judge must sift through the relevant facts, decide on their weight, and draw a factual conclusion. Thus, where evidenceexists which supports this conclusion, interference with this conclusion entails interference with the weight assigned by the trial judge tothe pieces of evidence. Discussion [23] As I understand Mr.

Jalifi’s argument, he says that the learned trial judge committed two discrete errors: one being a failure togive effect to evidence that the lighting in the area was not adequate to allow the witnesses to identify the accused as the assailant andthe other being a failure to find that the photo line-up did not comply with the law and was, therefore, unfair. [24] Dealing with the lighting issue first, Mr. Jalifi concentrates his argument on this portion of the learned trial judge’s decision: … There is no evidence to suggest that anyone’s view was blocked or that lighting was inadequate. [25] Mr.

Jalifi says that this finding comprises a patent misapprehension of the evidence and that is because there was evidence fromMs. Petrauskas and Mr. Dreschler that, among other things, the incident happened at night and in the dark. Further, Mr. Dreschlertestified that when the assailant was standing in front of him the assailant was backlit by a street lamp and the assailant’s face wastherefore in darkness. [26] My review of the evidence satisfies me that the only time that darkness was an issue for any of the witnesses was the relativelybrief period when the assailant stood between Mr.

Dreschler and the street light. Before that, the assailant was proceeding down thestreet toward Mr. Dreschler. The lighting was certainly bright enough for all of the witnesses to have appreciated that the assailant wasdark skinned or had a dark complexion, that he was tall and husky or broad shouldered, and that he was wearing a chain around his neck.The lighting was sufficient for Ms.

Petrauskas to have seen his haircut and to have appreciated that it was closely cut and fresh looking.She could not have gained that impression had the area been cloaked in darkness. [27] There was, therefore, evidence upon which the learned trial judge could have come to the conclusion that the lighting was notinadequate for the purposes of illuminating the assailant sufficiently to allow the witnesses to identify him.

The learned trial judge’scomment that there was “no evidence” of insufficient light went, perhaps, a bit far, but does not, in my opinion, amount to amisapprehension of the evidence amounting to a reversible error. [28] Mr. Jalifi’s attack on the photo line-up is multi-pronged. He says that the photographs in the line-up were not based upon therequirement that they conform to the witnesses’ description of the assailant. He says as well that the photographs of the other men werenot sufficiently similar to him as to constitute a fair line-up.

Finally, he says that it was unfair because in his photo he was not wearingthe large diamond or “diamond-ish” earrings that were in his ears when he was arrested. [29] The courts have considered photo line-ups in the past. These line-ups have been found to be admissible as identificationevidence, but only if the line-up was fair. Much judicial ink (or in the age of laser printers, toner) has been expended in the assessment ofwhat is a fair line-up. Commissioner Cory of the Inquiry into the Wrongful Conviction of Thomas Sophonow, suggested some guidelinesto ensure that the process be fair.

Those guidelines, while helpful, do not have the force of law: R. v. Doyle, 2007 BCCA 587.

[ 30 ] I will discuss the earring issue first. Mr. Jalifi asserts that his photo in the line-up ought to have shown him wearing his earrings because none of the witnesses noticed that assailant was wearing earrings. He says that his jewelry would, therefore, have been an aspect of his appearance that would have differentiated him from the others in the line-up. The argument goes like this: if the witnesses did not see earrings on the assailant but they did see earrings on his photo, then the witnesses would not choose his photo. [ 31 ] There is a difficulty with the earring argument.

The problem is that according to Mr. Jalifi, it was right and proper for the police to have removed his necklace but it was not proper for them to have had him remove his earrings. If it was correct to have removed one piece of jewelry, how was it not equally correct to remove the other? Removing both of Mr. Jalifi’s adornments had the effect of bringing his visage in line with the appearance of the other nine equally undecorated subjects in the photo line-up . In my view, the police procedure that resulted in Mr. Jalifi appearing as he did was entirely correct. [ 32 ] Mr. Jalifi complains that Mr.

Shaw, the civilian jail guard who prepared the photo line-up , had no training in that task. Had the line-up been put to the witnesses fresh from Mr. Shaw’s hands, Mr. Jalifi’s complaint might have had some merit. However, the fact is that the photo line-up was first examined by Cst. Kilborn. He did have training in assembling photo line-ups. [ 33 ] Who prepared the line-up is, in any event, pretty much irrelevant.

It could have been put together by a visiting class of elementary students but, provided that it was fair according to the law, it would nevertheless have passed muster. [ 34 ] Turning next to the question of whether the line-up was fair, I note that the learned trial judge made a specific finding of fact that it was fair. He did that after properly instructing himself as to the correct law on the issue. The learned trial judge was aware that when she looked at the line-up, Ms.

Petrauskas commented that of the ten photos, eight were not even close and that she had to choose between the remaining two (a comment that was entirely consistent with her having a clear memory of the assailant’s appearance and of her having no difficulty dismissing photos of persons who did not fit that memory). He was also aware of Mr. Dreschler’s comment that in his opinion the people in the line-up all looked quite different from one another. He knew, as well, that in his testimony Mr. Dreschler admitted to ‘blabbing off’ over the number of people he recognized in the line-up .

Finally, the learned trial judge examined the recordings of the identification process and, most critically, he examined the actual photo line-up itself. Upon considering all of that evidence, the learned trial judge came to the conclusion that the line-up was fair. [ 35 ] My duty sitting in review of the trial decision is to assess the evidence and to a limited extent weigh that evidence myself. I have reviewed the evidence at trial, and I have examined the photo line-up. To my eye, the photos in the line-up all depict tough and unhappy looking men bearing complexions of varying degrees of swarthiness.

They appear to have some South Asian, Middle Eastern, or Aboriginal heritage about them. Some men are darker than others. One or two have a bigger nose or a more prominent forehead than the others. These characteristics differentiate their faces; these differences are inescapable in any photo line-up. Indeed, they are the raison d’etre of the exercise. The overall presentation of the line-up is, in my view, quite proper and I have no reason to quarrel with the learned trial judge’s conclusion that it was fair. [ 36 ] The last of Mr.

Jalifi’s attacks on the line-up is his argument that it was not based upon the witnesses’ description of the assailant. There are two problems with that argument. The first problem is that a witness did, in fact, describe the assailant to the police ahead of the line-up . That witness was the unidentified person who told the police about the black Mercedes and who told the police what the attacker looked like and what he was wearing. Now, none of that evidence was admissible at trial, but it cannot be said that it was unknown to the police when the line-up was assembled.

In any event, the second problem is fatal to Mr. Jalifi’s position. That problem is that as an alternative to witness descriptions, the law permits the line-up to be comprised of photos similar to the suspect’s appearance. As the learned trial judge found, as I have independently determined, the photos in the line-up are similar enough to each other – bearing in mind that they need not be close as to depict ten clones – as to be a fair presentation. [ 37 ] For these reasons I find that I cannot accede to Mr. Jalifi’s submission that his conviction was grounded on errors of law or fact. Conclusion [ 38 ] Mr.

Jalifi’s appeal is dismissed. “P. Rogers J.” ROGERS J.