R. v. Schmidt Date:, 2012 BCPC 247

Citation: R. v. Schmidt Date: 20120723 2012 BCPC 0247 File No: 84948-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KURTIS SCHMIDT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: H. Blair Counsel for the Defendant: C. Elden Place of Hearing: Port Coquitlam , B.C. Date of Hearing: May 2 & 3, 2012 Date of Judgment: July 23, 2012

INTRODUCTION [ 1 ] The accused, Kurtis Schmidt ("Mr. Schmidt"), is charged under Information 84948-1 that, on or about June 24, 2010, he "did unlawfully traffic in a controlled substance, to wit: Cocaine, contrary to Section 5(1) of the Controlled Drugs and Substances Act ”. [ 2 ] This case involves what is sometimes styled a "dial-a-dope" operation. It is not disputed, and I find, that on June 24, 2010, a person entered into a transaction in Coquitlam, B.C. with undercover RCMP officer Sgt. Farid Siddiqui ("Sgt. Siddiqui"). Pursuant to that transaction, Sgt.

Siddiqui paid $40 for two rocks of crack cocaine weighing .455 grams. [ 3 ] The transaction followed on the heels of several calls, placed by the officer, to (604) 889-0543—a telephone number that police suspected was associated with a dial-a-dope operation (the "Suspect Number"). A rendezvous between the seller and Sgt. Siddiqui was arranged. It took place shortly thereafter on a sunny afternoon at an agreed location on Sydney Avenue. The officer waited on the sidewalk; the seller arrived in a van, seated in its passenger seat.

The transaction took only 30 seconds and was conducted through the passenger window of the van. [ 4 ] These facts are, as I have said, uncontroversial, as is the fact that the substance sold to the undercover officer did in due course test as cocaine. Indeed, counsel agree that the only live issue in the case is that of identification. [ 5 ] Crown counsel Ms. Blair argues that I should be persuaded on the evidence of Sgt. Siddiqui—the only Crown witness able to give identification evidence—that the passenger in the van who sold him the drugs was Mr. Schmidt. [ 6 ] Defence counsel Ms.

Elden contends I ought to be left with a reasonable doubt regarding the reliability and credibility of Sgt. Siddiqui's eyewitness/recognition evidence in which he confidently identified Mr. Schmidt as the person who sold him the drugs in the course of the above-described undercover police operation. UNCONTROVERSIAL FACTS RELEVANT TO IDENTIFICATION [ 7 ] Almost all of the facts relevant to identification are undisputed. While counsel disagree as to whether, given those facts, the court should accept as reliable and determinative Sgt.

Siddiqui's sworn assertion that he recognized the seller of the illicit drugs to be Mr. Schmidt at the time of the transaction—and his further sworn assertion that the accused seated at the counsel table next to Ms. Elden at trial as that man—the raw facts germane to identification themselves are not in controversy. [ 8 ] I provide now a fuller explication of the uncontroversial facts—mentioned briefly in the Introduction—as I have found them. (

a) In January 2010, several months prior to the underground drug investigation that is the subject of these proceedings, Sgt. Siddiqui was assigned to conduct surveillance of Mr. Schmidt. However, no sightings of him were made during that surveillance operation; (

b) In July of 2011, when asked by the Crown to provide a supplemental "will say" statement on the issue of identification in anticipation of the commencement of the first scheduled trial of the present charges (which trial date was adjourned), Cst. Siddiqui made reference to the aforementioned surveillance operation; (

c) Before commencing the undercover operation on June 24, 2010 that culminated in the charges now under consideration, Sgt. Siddiqui attended at a short briefing at the Coquitlam RCMP detachment. He was shown a booklet of photographs of five individuals who were "targets"—that is, individuals who were suspected, based on the results of previous police intelligence-gathering, to be involved with a dial-a-dope operation associated with the Suspect Number; (

d) Sgt. Siddiqui placed three calls to the Suspect Number, posing as a potential purchaser of illicit drugs. Employing the language typically used by those who deal in street drugs, he arranged to meet his proposed seller on the street in the 500 block of Sydney Avenue in Coquitlam to buy crack cocaine. After each such call he updated his cover officer on what had transpired; (

e) Sgt. Siddiqui relocated to the 500 block of Sydney Avenue, outside a three-storey apartment building, and sat on the curb and waited. While other officers participated in the undercover investigation, they did so from a distance and, thus, none of them were able to give evidence identifying Mr. Schmidt as the person who sold Sgt. Siddiqui the crack cocaine; (

f) After waiting for awhile, Sgt. Siddiqui tried the Suspect Number for a fourth time but the call did not go through. Simultaneously, an incoming call was received on his cell phone and, as Sgt. Siddiqui answered it and then looked up, he noted that an older Dodge Caravan van had pulled up in front of him; (

g) Sgt. Siddiqui could see that there were two occupants in the van, and that the male in the passenger's seat was holding a cell phone up to his right ear; (

h) The individual with whom Sgt. Siddiqui had just connected by telephone asked “Where are you?” The officer heard those words on his cell phone and, as well, coming from the passenger speaking on a cell phone who was seated in the van that had just stopped in front of him. As the realization settled upon them that they were speaking with one another on their respective mobiles to each other while being only a short distance apart physically, both Sgt. Siddiqui and the passenger began to laugh; (

i) The van then proceeded a little further along Sydney Avenue and parked. Sgt. Siddiqui walked a few paces and stood at the passenger’s door, very close to the passenger seated inside. Their faces were approximately 15” to two feet apart. It being a sunny afternoon, the conditions for making visual observations were good. The passenger asked a question to ensure Sgt. Siddiqui was the other party to the planned rendezvous and the officer confirmed he was; (

j) There then ensued between the passenger and Sgt. Siddiqui a short, preliminary conversation in which the officer inquired about the

possibility of also getting powdered cocaine. The passenger answered that, given a little time, that could be arranged. Following that, Sgt. Siddiqui gave the passenger two $20 bills and the passenger handed to the officer what appeared to him to be two wrapped rocks of crack cocaine; (

k) A further brief conversation then took place in which Sgt. Siddiqui asked for and obtained first names for both the passenger (Max) and driver (Martin). Sgt. Siddiqui volunteered that he lived on Sydney Avenue and the driver responded by saying that the passenger lived nearby on Westwood Street and could, in future, easily walk over to meet up for future transactions. Sgt. Siddiqui again sought confirmation that he could obtain powdered cocaine and was told again by the passenger that, with a 30-minute "heads up," that could be arranged. The van then drove away; (

l) The interaction at the passenger’s window of the van described above lasted approximately 30 seconds, during which Sgt. Siddiqui spent 20 seconds looking at the passenger and 10 seconds looking at the driver; (

m) Sgt. Siddiqui then went into the apartment building and updated his cover. During that telephone conversation, and before seeing the target booklet again, he advised his cover that he recognized the person with whom he had transacted for the purchase of crack cocaine as being one of the individuals depicted in the target booklet—the one he identified as Mr. Schmidt. No mention of the photo being the basis of recognition is made in Sgt. Siddiqui's notes; (

n) Before leaving to return to the detachment, Sgt. Siddiqui made some "rough notes" (his words) in electronic form in his Blackberry regarding the drug purchase he had made a few minutes earlier at the passenger's window of the van. When he got back to the detachment, less than an hour after the subject transaction, he made further notes. He did not look again at the target booklet before he did so; (

o) After having carried out the drug transaction, Sgt. Siddiqui received a call from someone—whose voice was not recognizable from previous calls—who inquired as to whether he was still waiting, or, whether he had been properly taken care of. The officer replied that he had been taken care of by Max and expressed his satisfaction with the service; (

p) Some time after preparing his notes, Sgt. Siddiqui made a copy of the photo in the target booklet of the person he believed he had transacted with and affixed it in his notebook alongside the notes relating to the subject drug transaction; (

q) Sgt. Siddiqui reviewed his notes prior to giving evidence at trial and in the course of doing so saw the photo that he had affixed inside it; (

r) At trial, Sgt. Siddiqui described the passenger from whom he had purchased the drugs as a Caucasian male, approximately 5'6" to 5'10" in height and approximately 155 to 180 lbs. in weight. He said that that individual had a mole on the right side of his chin. These details and others, apart from the mole on the chin, are noted in both the rough notes prepared on the officer's Blackberry and in the more fully articulated notes he made within an hour of the subject encounter when back at the detachment. The reference to the mole appears only in the rough notes; (

s) Sgt. Siddiqui's notes also record that the passenger in the van from whom he bought the drugs was wearing a white shirt and had short brown hair; (

t) Sgt. Siddiqui made a "dock identification" of Mr. Schmidt in the courtroom as the individual with whom he had carried out the illicit drug transaction on June 24, 2010. Upon inspection of Mr. Schmidt's chin at close range at trial, the officer confirmed as well the presence of a small mole on the right side of his chin, which mole he mentioned in his evidence-in-chief and is referred to in his rough, electronic notes; (

u) At the time he carried out the undercover operation at issue in this case in 2010, Sgt. Siddiqui had served for approximately 13 years as a member of the RCMP. He had been informally disciplined in April 2002 for an incident that occurred in August of 2001. The incident occurred when Sgt. (then Cst.) Siddiqui was part of a team executing a search warrant at a suspected drug house. While inside the house the team came across a computer that was switched on with a youth's resume displayed on the screen. The youth was the younger brother of one of the inhabitants of the alleged drug house.

The computer was not searchable within the terms of the search warrant. Nevertheless, Cst. Siddiqui scrolled through some of the pages of the resume and added content to a reference page suggesting that potential employers of the youth should contact the Burnaby RCMP for more information about him. He acknowledged that his actions were inappropriate and immature and offered as an explanation his desire to bring home to the youth the risks that he was entertaining by keeping company with individuals who were involved in the drug underworld.

THE CENTRAL ISSUE IN DISPUTE: RECOGNITION Counsel’s Positions [ 9 ] The Crown contends, based on the testimony he gave at trial, that Sgt. Siddiqui recognized Mr. Schmidt at the time he carried out the undercover drug buy on June 24, 2010 and that his evidence of identification is thus fortified. Ms. Blair, for the Crown, points to Sgt. Siddiqui's evidence that Mr. Schmidt had been a person of interest to police with respect to commerce in illicit drugs in Coquitlam for some time, and to his testimony that the photo of Mr. Schmidt had been on display in the detachment and, indeed, on Sgt.

Siddiqui's own desk for a period of months prior to the events of June 24 th . That photo was the same as the one in the target booklet. [ 10 ] Ms. Elden on the other hand urges the court, on Mr. Schmidt's behalf, to treat all of Sgt. Siddiqui's identification evidence with caution because it lacks reliability and because of problems with the officer's credibility. In particular his counsel, Ms. Elden, argues that Sgt. Siddiqui's evidence that he recognized the passenger in the van with whom he transacted to be Mr.

Schmidt should be rejected, and that it should at the very least be pushed down the continuum from recognition to eyewitness identification simpliciter. She cites the well-known cautions found in both the scientific literature and the case law regarding the inherent frailties of eyewitness identification evidence, saying that I should be left with a reasonable doubt regarding the identification evidence given by Sgt. Siddiqui in this case.

The Law Regarding Recognition Evidence Generally [11] The recent authorities confirm that recognition evidence and eyewitness identification evidence simpliciter are not different inkind. Rather, they fall at different points along a continuum of reliability: R. v. Mclsaac, [1991] B.C.J. No. 3617 (C.A.). [12] One might place the evidence of a witness who had a fleeting opportunity to observe a suspect, once only, under poorobservational conditions at the time of an alleged crime near the low end of the continuum.

The evidence of a witness who, through along association with the suspect, was well familiar with him or her, and observed that person at the time of the alleged crime under goodobservational conditions, might correspondingly be placed near the high end of the continuum.

In between, however, there are manypoints along the reliability continuum where identification evidence might be situated, based upon the unique factual circumstances ofindividual cases, and the mere fact that a witness when identifying a suspect invokes "recognition" in testimony does not in any wayrelieve the court of the need to treat that evidence with caution. [13] Generally speaking, evidence of "recognition" is a positive factor in a reliability assessment regarding identification: R. v. Bob,2008 BCCA 485, especially at para. 13.

That said, however, the analysis of reliability remains, nevertheless, highly situational. AsSmith J.A. stated (for the court) in R. v. Pierce, [2011] B.C.J. 2252 at para. 39 (C.A.): "While recognition evidence may be more reliable than eyewitness identification of a stranger, special caution must still be taken whenusing it to identify an offender, as it is still merely a statement of a witness's opinion about what he or she saw.

Like all identificationevidence its weight or reliability will depend on such circumstances as the nature, length and memorable features of the witness'sprevious contact with the accused. In R. v. Bardales (1995), (BC CA), 101 C.C.C. (3d) 289 (B.C.C.A.), aff'd (SCC), [1996] 2 S.C.R. 461, Mr. Justice Wood, albeit dissenting in the result, described the character and role of recognitionevidence in this helpful manner: With respect, I am of the view that there is no legal distinction between eye-witness identification cases on the one hand, and so-called"recognition" cases on the other.

In both, the identification of the accused is based on the evidence of one or more witnesses who offerthe opinion: 'That is the person who I saw.' Where it is a factor, recognition is a circumstance which does no more than enhance theweight to be attributed to that opinion by the trier of fact." [14] Evidence of recognition must have sufficient reliability to clear an initial threshold of admissibility.

This is a function, in part,of the "degree of familiarity ... needed in order to meet the threshold level for admissibility" which, in turn, is affected by the length ofprior dealings between witness and accused, the circumstances of those dealings and the recency of contact between them prior to theevent of recognition: R. v. Anderson et al., 2005 BCSC 1346 at paras. 20 and 25-26 (S.C.). Other factors include observationalconditions, the presence of flawed investigative procedures, unique and unusual identifying features and the like.

Where the reliabilityof the evidence is high enough and the corresponding weight that can be attributed to the recognition evidence given by a witness issufficient, proof of identification can establish the crucial fact of identification beyond a reasonable doubt. Recognition Based Upon a Photograph [15] Ms. Elden submits, on behalf of Mr. Schmidt, that because the recognition evidence given by Sgt. Siddiqui in this case wasbased upon his familiarity with a photograph of Mr. Schmidt, and not upon previous face-to-face dealings with him, that evidence shouldnot be treated as "recognition" evidence at all.

Thus, she contends (to track the language of Wood J.A. in Bardales that is quoted withapproval in Pierce above), Sgt. Siddiqui's opinion that Mr. Schmidt is the person with whom he transacted the undercover drug buyshould be treated as eyewitness identification evidence simpliciter, and not have its weight "enhanced" by the claim of recognition. [16] This argument is based upon a quotation from the reasons of Hood J. in R. v. P.T.C., 2000 BCSC 342, which was quoted withapproval in Anderson at para. 22.

The passage from the reasoning of Hood J. upon which counsel places the heaviest reliance is this: "It seems to me that in order for a recognition witness to qualify to give such evidence, in this case an opinion as to the robber in thevideo tape being the Accused, the Court must be satisfied that the witness has had a prior opportunity to personally observe theAccused, and thereby has some acquaintance of him, which may enable him to identify the Accused and to assist the Court." (at para. 67,emphasis) [17] Ms.

Elden interprets this passage as ruling out any characterization of eyewitness identification evidence as recognitionevidence (with its resulting enhanced weight) where the claimed recognition is based on previous viewings of photographs as opposed toface-to-face contact between witness and accused. [18] I would not give the passage from P.T.C. such a restrictive meaning.

I might have viewed the matter differently if Hood J. hadstated, definitively, that "For identification evidence to qualify as recognition, the court must in all cases be satisfied that the witness hashad a prior opportunity to observe the Accused in person," or, "Identification evidence based merely on a review of photographs, and notupon direct experience with the accused, can never qualify as recognition evidence". But he did not say that.

I consider that it wouldtake clearer language than that found in P.T.C. to constitute a binding interdiction from a higher court against a trial judge everaccepting, as recognition evidence, in any circumstances, a witness's testimony that claims recognition of an accused based previousexamination of a photo of the accused and nothing more. [19] Undoubtedly, familiarity that is grounded in previous face-to-face encounters between witness and accused will be greater thanthat which is based only on a review of photographs of the accused.

The weight of recognition evidence based on familiarity derivedfrom viewing photographs must be adjusted downward to reflect that fact. But it cannot be gainsaid that observing a photographic imageof a person does create a measure of familiarity, on the part of the observer, with the subject that can lead, in turn, to recognition. If itwere otherwise, search teams of volunteer citizens which are assembled to try to find lost or missing children who are not known to them

personally would not be given photographs of them in their search efforts in the hope that the lost ones might be recognized. If it were otherwise, photographs of abducted persons or of elderly citizens with dementia who have strayed away from their long-term care homes, would not be published and broadcast in the hope that the missing persons might be recognized by someone, even complete strangers, and with the help of authorities returned to where they belong.

It is a notorious fact that such search efforts and poster/media campaigns, using photographs as tools to occasion possible recognition of lost or missing persons by strangers, are sometimes successful. [ 20 ] That one can derive a measure of familiarity with a person by viewing that person's photograph is a proposition that most reasonable people would accept without question, relying upon their common sense. I am disinclined to accept an

interpretation of the quoted words of Hood J. in P.T.C. from which common sense instinctively recoils. [ 21 ] I therefore conclude on this argument that Cst. Siddiqui is able to give recognition evidence identifying Mr. Schmidt as the individual with whom he transacted the drug buy on June 24, 2010, and that the fact that that recognition is sourced in familiarity with Mr.

Schmidt derived solely from viewing photographs of him—photographs that the evidence establishes were displayed for months in the officer's detachment and even on his desk prior to the undercover operation—goes to the weight to be accorded to his recognition evidence. Observational Conditions [ 22 ] The evidence has established that the illicit drug transaction that Sgt. Siddiqui testified he carried out in his capacity as an undercover officer with the person he identified as Mr. Schmidt took place in the early afternoon of a sunny, June day. Thus lighting conditions were good. Sgt.

Siddiqui stood within 15 inches to two feet from the passenger for approximately 30 seconds, of which 20 seconds were spent looking directly at the passenger. In the course of that interaction he was able to make observations that he later recorded in roughly contemporaneous notes about the passenger's height, weight, hair colour, shirt colour and—importantly—the presence of a small mole on the right side of the passenger's chin. [ 23 ] This is not a case where the contact between witness and accused was extremely fleeting. Neither did it occur at a distance, or in the dark.

The officer's ability to view the passenger's features was not limited or compromised by the passenger's wearing of sunglasses, or of a hoodie that obscured part of the passenger's face. While the interaction was admittedly brief, I am satisfied that overall the conditions prevailing at the relevant time were generally favourable in terms of making clear observations. Lack of Precision in the Reported Observations [ 24 ] Ms. Elden draws the court's attention to what she submits are imprecise, almost generic, statements about the passenger's appearance in Sgt. Siddiqui's testimony and in his notes.

She says that those descriptions are so broad and unfocussed that they detract from the officer's claim that he can identify the passenger as being Mr. Schmidt. Ms. Elden refers, for example, to the ranges given for height (5'6" to 5'10") and weight (155-180 lbs.) as being so broad as to have little, real identificatory significance. She also notes that the officer referred to the passenger's white shirt, but made no record of what trousers he was wearing. [ 25 ] There is something in what Ms. Elden says.

The observations, with one important exception to which I shall turn presently, are somewhat lacking in precision. However, it must be remembered that the passenger was seated in a van at the time Sgt. Siddiqui made his observations. This would limit the ability of anyone to make confident and precise estimates of height and weight. The passenger's seated position in the van may, as well, speak to Sgt. Siddiqui's failure identify the colour and style of the passenger's trousers. [ 26 ] But it must be remembered that not everything that registers in the mind as recognition is easily expressed in words.

I had occasion to consider that aspect of recognition-related testimony in R. v. Oppenheimer, [2007] B.C.J. No. 2453 (Prov. Ct.) —another case in which identification of the accused was the only real issue: " ... Like all of us, Oppenheimer has a distinctive appearance. He is recognisable as himself and as being different in appearance from most other people. The fact that we generally lack the vocabulary to describe those differences does not mean that they do not exist or that they cannot be perceived.

It is no easy matter to give a physical description of Oppenheimer, in words, that would convey the ways in which his appearance is unique to him and distinguishes him from others. When observing him at trial, one could quickly see that he looked different from every other person in the courtroom (or for that matter from the persons walking down the street outside the courtroom), but to put into words why and how he looked different would tax the vocabulary and descriptive skills of most people.

The eye can see what makes Oppenheimer unique in his way from all other people, but to reduce that to descriptive words is a challenge that is beyond the ken of most people who are not physiologists, artists or others specially skilled or trained in such matters." (at paras. 25​26) [ 27 ] I make this point only to show that, in my opinion, it would be an error to fault a police officer for recording observations regarding an otherwise unremarkable person that are not replete with highly precise, descriptive detail. I mean Mr.

Schmidt no disrespect when I say that, in general, he is a man with an unremarkable appearance. I do not fault. Sgt. Siddiqui for offering a word portrait of him that, similarly, is somewhat general in nature. [ 28 ] This case is distinguishable from Oppenheimer and many other identification cases however in one very important respect. Mr. Schmidt does have a unique, identifying feature and—importantly for the purposes of my decision—it figures in Sgt.

Siddiqui's recorded observations and in his identification of the accused at trial. [ 29 ] Whatever may be lacking in precision in other areas is largely compensated by the observation that Sgt. Siddiqui made at the time of the undercover drug buy of a small mole on the right side of the seller's chin. That is a somewhat "unique identifying feature" of the kind that is sometimes mentioned in the cases. I readily accept (of course) that Mr. Schmidt is not the only person to have a small mole on the right side of his chin. But I do consider it significant that, alongside the more general observations Sgt.

Siddiqui recorded about the passenger being a Caucasian male with short brown hair and of the stated height and weight—which observations do generally

describe Mr. Schmidt—he noted a mole on the van passenger's chin and confirmed, at trial, that he could see a mole in the same position on Mr. Schmidt's chin. [ 30 ] This, in my view, is singularly powerful evidence supporting Sgt. Siddiqui's claim that Mr. Schmidt, as seen in the courtroom at trial, is the same person who was seated in the passenger's seat of the van and with whom he dealt on June 24 th when he purchased two rocks of crack cocaine for $40. “Tainting” By Review of Photograph Copy in Officer’s Notes [ 31 ] When documenting the investigation at issue in this case, Sgt.

Siddiqui photocopied the photograph he says was of Mr. Schmidt that appeared in the target book (and that had been ubiquitous around the detachment for months before the undercover drug buy) and pasted the copy into his notebook. As is usual, Sgt. Siddiqui reviewed his notebook shortly before giving his testimony at trial. [ 32 ] Ms. Elden argues on Mr. Schmidt's behalf that in making his dock identification of Mr. Schmidt, Sgt.

Siddiqui may not have been equating the man he saw in the dock with the passenger in the van with whom he transacted the illegal drug purchase on June 24, 2010, but rather may have been equating the man he saw in the dock with the photo he saw in his notebook when getting ready to testify at trial. At the very least, she says, the fact that he saw the copy of the photo before testifying should weaken my confidence in Sgt. Siddiqui's dock identification of Mr.

Schmidt. (An unstated premise of that argument, of course, is that the photo taken from the target booklet and then copied into the officer's notes was a true likeness and image of Mr. Schmidt.) [ 33 ] Ms. Blair answers Ms. Elden's argument in this regard by saying simply that while it would have been better if the officer had not pasted the photo into his notes and reviewed it before appearing as a witness at trial, the fact that he did so does not “taint” the evidence to the point of neutralizing it but, rather, goes only to weight. In support of her position Ms. Blair cited R. v.

Cheema, 2007 BCCA 476 and United States of America v. Khuc, 2008 BCCA 425 . [ 34 ] I agree that the fact the officer saw the photo of Mr. Schmidt in his notebook while preparing for trial does diminish the weight I can ascribe to his dock identification of Mr. Schmidt. But, as is plain from all the authorities, the weight to be given to Sgt. Siddiqui's recognition evidence is determined by a multiplicity of factors and—there being clear and unequivocal evidence of a unique identifying feature, a chin mole, common to the passenger who sold the crack cocaine to Sgt. Siddiqui and to Mr.

Schmidt—even when it is diminished for "tainting" and other reasons, the residue of weight that I can ascribe to the officer's recognition evidence is substantial. The King Decision [ 35 ] R. v. King, 2011 ONSC 6998 is a recent decision of Corrick J. of the Ontario Superior Court which Ms. Elden argues is, on its facts, the closest of all to the case at bar.

In King, the identification evidence of the undercover officer who carried out an illicit drug transaction with the accused was rejected based on reliability concerns. [ 36 ] As is the case in the present prosecution, the most important evidence of identification in King came from a police officer who, but for reviewing a photograph of the accused during a briefing, had had no prior dealings with him. (I note parenthetically that Corrick J. does not pinpoint the fact that Officer Miranda's recognition evidence was based on previous viewing of photographs only of the accused, and not previous face-to-face dealings with him, as one of his “serious concerns about the reliability of the identification evidence in [that] case" at para. 22 of the decision in King .

Indeed, he offers no criticism at all of the police employing photographs as the starting point in an exercise leading, ultimately, to recognition evidence.) [ 37 ] After examining the photo of the accused, amongst 17 others photos of other suspects in a briefing package, Officer Miranda in King proceeded to a park notorious as a hub for commerce in illicit drugs and made an undercover buy. Other officers participated in the operation, conducting surveillance. Officer Miranda believed he recognized the individual with whom he did his business as one of the persons depicted in the briefing package.

When he got back to his car he examined the briefing package again and, in the presence of another officer, confirmed that he recognized the individual with whom he had transacted the drug deal from a photo in the briefing package. For various reasons, Corrick J. was not persuaded to the criminal standard by the officer's evidence identifying the accused as the individual who had sold him the drugs. [ 38 ] There are several ways in which King can be distinguished from the case at bar. Among them are the following: (

a) Sgt. Siddiqui's dealings with the bare-headed passenger in the van occurred in the early afternoon on a sunny day in June. By contrast, Officer Miranda's dealings with the seller in King took place at about 9:00 in the evening in October and the seller was wearing a hoodie. Plainly the lighting and other conditions for observation were better in the case at bar; (

b) Mr. Schmidt in the case at bar has a unique, identifying feature—a chin mole—which was observed by Sgt. Siddiqui during the course of the drug transaction at issue and confirmed to be present on Mr. Schmidt's chin by the same officer at trial. By contrast, the accused in King had no unique, identifying features; (

c) Sgt. Siddiqui reported to his cover officer that he had recognized the passenger in the van to be Mr. Schmidt, depicted in the target booklet, before returning to the detachment and before seeing the target booklet again. He also made notes of his observations before seeing the target booklet again. By contrast, Officer Miranda in King looked again at the briefing package immediately after consummating the illegal drug transaction and, in the presence of another officer, "identified the photograph of Steven King as the person who sold him the cocaine" (at para. 5). He did this before he made any notes of his observations, bringing into play the possibility of “tainting”; (

d) In the case at bar there is no conflicting Crown evidence regarding the pattern of the dealings between the undercover officer and the accused. By contrast, in King, Officer Beausoleil—on surveillance duty—testified to having observed two hand-to-hand transactions between Officer Miranda and the seller, whereas Officer Miranda himself reported only one. Moreover, Officer Beausoleil also testified that he recognized the seller to be the accused based on previous dealings, and he testified further that he broadcast that fact over the police radio. However, that important detail is absent from the notes taken by the "scribe" for the operation who recorded all of the voice

traffic on the radio for the surveillance operation in notes that all involved, including Officer Beausoleil, confirmed by their signatureswere accurate; and (

e) In the case at bar there is no evidence to suggest that the target booklet contained any descriptive information to accompany thephotographs.

By contrast, in King the briefing package photos also contained information such as height, weight, hair colour, some ofwhich also appeared in Officer Miranda's notes of his observations of the accused, raising the spectre that the descriptions of suchattributes may have come from, or been influenced by, what Officer Miranda read about the accused in the briefing package. [39] Plainly, the problems with the identification evidence in King were much more serious and wide-ranging than those that havebeen raised for consideration by Ms. Elden in the case at bar.

While I agree with her that, superficially, there are some commonalitiesbetween the two cases, the differences—in terms of prejudicial shortcomings in the identification evidence that play directly into thefrailties of such evidence for which trial judges must be eternally watchful—greatly outweigh the similarities, thereby limiting theapplicability of King as a precedent for the purposes of determining the outcome of prosecution of Mr. Schmidt. Sgt. Siddiqui’s Credibility [40] Lastly, defence counsel Ms. Elden draws the court's attention to Sgt.

Siddiqui's disciplinary history and to the way he dealt withit under cross-examination. She invites the court to either reject his recognition evidence altogether or reduce the weight it is given forthat reason. [41] Disclosure of the officer's disciplinary history was made by the Crown to the defence voluntarily following a ruling I made,indexed at [2012] B.C.J. No. 845 (Prov. Ct.), requiring that the Crown disclose the general nature of the infraction to Mr. Schmidt'scounsel so that she could consider her position with respect to a possible future application for disclosure under R. v.

McNeil, 2009 SCC3 , [2009] 1 S.C.R. 66. The required information was given to Ms. Elden by the Crown and she based some of her cross-examination of Sgt. Siddiqui upon it. I note in passing that no objection was raised by Crown counsel to Ms. Elden's cross-examinationof Sgt. Siddiqui on his disciplinary history on grounds of relevance or, indeed, any other grounds. [42] While the other arguments raised by Ms. Elden regarding Sgt. Siddiqui's recognition testimony go to the reliability of hisevidence, her arguments regarding the officer's credibility engage different considerations.

As Madam Justice Lynn Smith has noted(extrajudicially), credibility goes to a witness's honesty, whereas reliability goes to issues like ability to observe and recall, or tounderstand or communicate: see Smith, L., Credibility Assessment, paper presented at the National Judicial Institute Evidence Workshop:Victoria, B.C., 2011). [43] Unquestionably, Sgt. Siddiqui has a disciplinary history.

It is a dated one, reaching back to 2001 and it is referred to in somedetail in my enumeration of uncontroversial facts, set out above in these reasons. [44] When that disciplinary history came up during his cross-examination, Sgt. Siddiqui confronted it squarely. He franklyacknowledged his wrongdoing in taking time out while executing a search warrant at a suspected drug house in 2001 to "annotate" ayouth's resume displayed on a computer there with the suggestion that the youth's potential employers might profit by making inquiriesabout him through the Burnaby RCMP.

The officer forthrightly admitted on the stand that his actions showed poor judgment andimmaturity and he expressed his regret for them. [45] Ms. Elden argues that, in testifying that he was motivated in part by a desire to send the youth a "message" about the risksassociated with the company he was keeping and the associated criminal lifestyle, Sgt. Siddiqui was being disingenuous. She submitsthat in attempting to reframe his wrongful actions and give them an apparently noble purpose, the officer undermined his owncredibility. [46] While Sgt.

Siddiqui may have strained a little to diminish the sting of his past disciplinary history, I would not put it any higherthan that. In 2001 he chose a most unwise way to send the subject youth a "message" about the risks associated with participation in thedrug underworld—and undoubtedly he took some perverse pleasure (more than he would admit) in the thought that the annotationswould cause the youth a jolt if not a bad scare—but I do accept Sgt.

Siddiqui's evidence that he was acting at least partly upon an impulseto send a message to a vulnerable young person about the risks that attach to the criminal lifestyle. [47] It is important to acknowledge that Sgt. Siddiqui's misconduct does not directly raise issues of honesty. His disciplinary recorddoes not involve perjury, fraud, falsification of documents, destruction of evidence, or other such offences that directly involve deceptionand rank untruthfulness. Rather, his previous infraction raises issues of judgment about which the officer says he learned a valuablelesson.

Neither do I find that the way Sgt. Siddiqui handled questioning about his disciplinary history raises any concerns for me abouthis honesty and integrity. While I cannot say that the fact that he has a disciplinary history and struggled with it a little during cross-examination has had no effect upon the weight I am prepared to give his recognition evidence in this case, the amount by which I amprepared to adjust the weight of that evidence downward is minimal. [48] Ms.

Elden further submits that the court should be troubled by the fact that, in giving a second "will say" statement dealing withidentification, Sgt. Siddiqui made reference to a surveillance operation in late 2009 in which Mr. Schmidt was the target of surveillancebut no sightings were made. She says the only inference one can draw in these circumstances is that the inclusion of a reference to thatsurveillance operation was intended to bolster and strengthen Sgt. Siddiqui's contention overall that he recognized Mr.

Schmidt to be thepassenger in the van with whom he consummated the illicit drug deal on June 24, 2010. [49] That is an inference that could be drawn, to be sure. But I do not consider that I have before me what I would need in order todraw the extremely disquieting inference that he made reference to the previous surveillance in his supplementary "will say" statementdishonestly and with an intention to mislead and falsely shore up his other recognition evidence.

Indeed, on cross-examination heseemed to me to be caught somewhat by surprise when he was reminded that there were no sightings during the 2009 surveillance. Insummary, the evidence falls far short of supporting any suggestion of a deliberate intent to deceive with respect to the mention, in a "willsay" statement, of his prior unproductive history of surveillance of Mr. Schmidt.

CONCLUSIONS AND DISPOSITION [ 50 ] Counsel agree that the only real issue in this case is identification. That is, was the man seated in the passenger seat of the van from whom Sgt. Siddiqui purchased two rocks of crack cocaine for $40 on June 24, 2010 the accused, Mr. Schmidt? [ 51 ] Sgt. Siddiqui was the only Crown witness able to give identification evidence. Based on photos of Mr. Schmidt that he testified were displayed in the Coquitlam RCMP detachment, and even kept on his desk, for months before the undercover operation that was carried out on June 24 th , Sgt.

Siddiqui gave sworn evidence that he recognized the individual at scene and then again in the courtroom during trial as that man. The same photo was included along with photos of four others in the target booklet that he reviewed shortly before carrying out the undercover operation. Sgt. Siddiqui has never had any doubt that the man from whom he purchased crack cocaine after calling a suspected dial-a-dope number and arranging a rendezvous was Mr. Schmidt. [ 52 ] Is Sgt. Siddiqui's recognition evidence reliable? [ 53 ] I believe that it is.

While I make allowance for the fact that recognition evidence based upon prior face-to-face dealings with an accused would be more reliable, I do consider that Sgt. Siddiqui's evidence identifying Mr. Schmidt based on familiarity with his appearance gained from reviewing photographs of Mr. Schmidt does still qualify as recognition evidence. As such it is entitled to more weight than eyewitness identification evidence simpliciter . [ 54 ] In ascribing reliability to Sgt. Siddiqui's testimony that he recognized, and recognizes, Mr.

Schmidt to be the one who sold him crack cocaine on June 24, 2010, I have given careful consideration to the comparatively favourable conditions for making observations that prevailed at the time of the drug buy. While the reliability of the recognition evidence suffers to a degree by reason of a paucity of precisely identifying detail in Sgt. Siddiqui's description of Mr. Schmidt, I recognize that much of which makes Mr. Schmidt recognizably different from the run of the rest of humankind is not easy to put into words. [ 55 ] I place great significance upon the fact that Sgt.

Siddiqui noted a unique distinguishing feature on the face of the seller of the crack cocaine with whom he dealt in June of 2010. That feature—a mole on the right side of the chin—came in for mention in the officer's rough, electronic notes. Those notes are the most contemporaneous of all of the notes the officer made. Sgt. Siddiqui noted that that distinguishing chin mole was also present on the right side of Mr. Schmidt's chin when he looked closely at Mr. Schmidt’s face at trial. It is difficult to overstate the importance of this evidence. [ 56 ] While it is regrettable that Sgt.

Siddiqui viewed the photograph from the target booklet that he copied and pasted into his officer's notebook shortly before trial, that "tainting" of his recognition evidence goes to weight. It is not an insignificant consideration but neither is it sufficient to offset meaningfully the high degree of confidence that I have generally in the officer's recognition evidence, particularly given the presence of the unique identifying feature discussed above. [ 57 ] Is Sgt. Siddiqui's recognition evidence credible? [ 58 ] I believe that it is.

While, as I have said, the officer's disciplinary history does not reflect well upon him, it is a dated history. It does not involve an offence or infraction that carries any suggestion of deception or mendaciousness. Sgt. Siddiqui was manifestly contrite and remorseful about that unhappy

chapter in his history and he handled cross-examination about it reasonably well. To the extent that I must take account of that history, the downward adjustment I have made to the weight I ascribe to his recognition evidence is minimal. [ 59 ] For all of the foregoing reasons I am persuaded beyond a reasonable doubt by the evidence before me that the person who sold crack cocaine to Sgt. Siddiqui on June 24, 2010 in the course of an undercover operation on Sydney Avenue in Coquitlam, British Columbia, was the accused, Kurtis Schmidt.

I therefore find him guilty of the charge of trafficking in cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act . [ 60 ] Order accordingly. _______________________ Thomas S. Woods, P.C.J.