R. v. Wickens, 2019 ONCJ 1

CITATION: R. v. Wickens, 2019 ONCJ 1 DATE: January 2, 2019 Toronto Region ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DERRICK WICKENS Before Justice L. Feldman Reasons for Judgment released on January 2, 2019 L. Vandersteen .......................................................................................................... for the Crown M.

Rieger ..................................................................................... for the accused Derrick Wickens FELDMAN J.: Introduction [1] In the underground parking lot at 30 Bernhill Rd., an apartment building in Scarborough, property was stolen from twocars in the early morning hours, from one on Jan 2 and another on Jan 4, 2016. It is alleged that it was the defendant, Derrick Wickens,who is seen on video surveillance cameras, surreptitiously entering the front door of the building within that time frame and walkingtowards the door leading to the parking garage.

In fact, during one sequence, he could be seen coming back out of that door and enteringan elevator. [2] Two police officers testified that they recognized the defendant upon viewing the camera that captured him. They saythey know him from the neighbourhood and from police investigations.

Following submissions, I admitted this evidence on a thresholdbasis ultimately to be weighed with other evidence on a reasonable doubt standard. [3] The Crown submits, in addition, that given the clarity of the videos, including one with a direct facial view of theaccused, the court, as trier of fact, is in a position to weigh this evidence on the basis of the instruction in R. v. Nikolovski (1996), (SCC), 111 C.C.C.(3d) 403 (S.C.C.).

He says, as well, that the distinctive nature of some of the clothing worn by the suspectduring the course of his entries into the building and on his arrest on Aug. 17 strengthens the identification evidence. [4] Mr. Vandersteen submits, finally, that the most reasonable circumstantial inference to be drawn, given the respectivetime frames for the break-ins and thefts and Mr. Wickens’ entries into the building, is that it was the defendant who committed theoffences. [5] Mr.

Rieger, for the accused submits that there are weaknesses in the recognition evidence and uncertainty upon aviewing of especially the Jan. 4 video to the degree that the court should be in reasonable doubt of the identity of the perpetrator. Hesays, as well, that evidence of other insecure entrances to the building permit the inference that other unknown persons would have alsohad an opportunity to commit these offences. The Evidence The Break-ins [6] Richard Kitchen lives in an apartment at 30 Bernhill Rd. He parked his car, a 2011 Kia, in the underground lot at or justafter midnight on Jan. 2.

When he returned to his vehicle that afternoon he found his rear left quarter panel window broken that cost him$220 to repair. His dashcam, worth $70, was missing. The superintendent found a bill from his car in the stairwell, in addition to some ofhis personal papers that were scattered all over the parking lot. He says a fob is required to enter the lobby of the building through themain door. [7] On Jan. 4, Sylvan Lewis parked his car in the underground garage at about 1:30 a.m. He left for work very early in themorning. He found his driver’s side window broken.

He was missing a cordless Bluetooth, Cuban cigars, cigarettes, a lighter and somesmall change. Some items from his glove compartment were scattered about. It cost him $300 to repair his window. [8] As Mr. Lewis left the elevator at 6:42 a.m. to open the door leading to the parking garage, the surveillance camera

showed a man entering the elevator. He was wearing a black and white zippered sweatshirt with a black hood. He had long hair, a chinstrap beard and was smoking a cigarette. He took the elevator to the second floor and used a side exit at Warden Ave. to leave thebuilding. [9] Mr. Lewis purported to identify Mr. Wickens in the prisoner’s box. He had briefly seen the suspect in passing on Jan.4. He was unable to describe any distinguishing features. I give no weight to his identification of that individual.

Recognition Identification [10] In an earlier application, I admitted the evidence of two police officers who reviewed the surveillance videotapesindependently and testified that they recognized Mr. Wickens from prior investigations and from seeing him in the community. [11] This manner of evidence involves identification by a person of someone shown in a photo or video. It is admissible on athreshold basis if that witness had a prior acquaintance with the suspect so that he or she is in “a better position than the trier of fact toconclude whether the individual in the photo is the accused”: R. v.

Field, 2018 BCCA 253, at para. 22; see also R. v. Leaney, (SCC), [1989] 2 S.C.R. 393, at p. 413. [12] The court, however, must be cautious in weighing this evidence given the frailties of eyewitness identification: R. v.Olliffe, 2015 ONCA 242. Where the witness, who is familiar with the accused, can point to “unique, distinctive and recognizablefeatures” of the individual that are observable in a photo or video, then the ultimate reliability of the evidence is enhanced: R. v. Benson,2015 ONCA 827, at paras. 26-28. [13] Det. Wes Neal testified that he is familiar with the accused.

He has known of him and members of his family for about 5years. In July 2016, he was part of a team of officers responding to a break-in in progress at 1 Fir Valley Rd. That address is close to 30Burnhill Rd. He was present when the defendant was arrested there for breaking into his girlfriend’s apartment. He was with him forabout 10 minutes while the defendant was waiting to be transported, noting that he was likely high on drugs. [14] On another occasion, on Oct. 5, 2016, Det. Neal’s team executed a search warrant, also at the same apartment at 1 FirValley Rd. Afterwards, while waiting for the elevator, Det.

Neal says that when it opened, he recognized Mr. Wickens, who upon seeingthe officer put his head down as if to hide his face. Det. Neal knew that the defendant was then on release on condition not to be in thebuilding. He was arrested by another officer. [15] Det. Neal also told the court that during the previous 6 months he had seen Mr. Wickens in the neighbourhood duringpatrols and in the course of other investigations. [16] On Jan. 5, 2017, this officer viewed a surveillance video from the Jan. 2 occurrence. In it, the suspect opened the lobbydoor with a tool of some kind, but not a fob. Det.

Neal testified that he immediately recognized the defendant who looked directly intothe camera. He says that he observed some distinguishing facial features with which he was familiar, including long hair, a ponytail, achin strap beard, a thin face and bone structure and distinctive eyebrows. He noted that the defendant was wearing a black and whitestriped zippered hoodie and baggy black pants. He carried a red and black gym bag. [17] Det. Neal also looked at the Jan. 4 surveillance video. He identified the accused smoking in the elevator while coming upfrom a lower floor.

He had only a side view of the defendant’s face, but could make out the ponytail, as well as the same hoodie and gymbag. [18] Det. Anthony Pece also says he is familiar with the accused. He was with P.C. Neal when Mr. Wickens was arrested at 1Fir Valley Rd. in July 2016. He told the court that he spent about 45 minutes with the defendant and spoke with him briefly. He recallsthat the defendant was high on drugs, irrational and had to be restrained. [19] Det. Pece was also with Det. Neal in Oct. of that year, waiting for an elevator on the 9th floor of 1 Fir Valley Rd. He saysMr.

Wickens was already on that elevator and tried at first to conceal himself in the corner before getting off. Det. Pece recognized himand knew he was wanted on a warrant. He called for him to stop. Mr. Wickens kept walking, but was arrested by a third officer. He sawthe defendant again at this courthouse on Nov. 3, 2017. [20] Det. Pece said he recognized Mr. Wickens in both videos.

He described the defendant’s face as somewhat unique in thatit has a full head of thick hair that extends onto his forehead, a pointed nose, a chin strap beard from his sideburns down around his chinand a ponytail that the officer says he could see in the video under his touque. [21] Both officers have had ample recent opportunity to deal in close quarters with Mr. Wickens in the course of theirprofessional duties.

That, in addition to their recall of some distinctive physical features apparent in the videotapes leads me to accepttheir recognition evidence beyond a reasonable doubt. [22] Nick Auborg is mobile supervisor for a security company assigned to patrolling 30 Burnhill Rd., in addition to 8 otherapartment complexes, including their underground parking areas. His evidence serves as a supplement to that of the two detectives. [23] Mr. Auborg testified that in relation to 30 Burnhill Rd., one gains access to underground parking from inside the buildingby using the elevator or the stairs.

He explained that tenants enter the building itself only through the main lobby door by means of anelectromagnetic fob that is used to swipe a locking pad on the wall to the left of the door. [24] Mr. Auborg investigated the break-ins by speaking to the car owners and reviewing the surveillance videos. There arecameras at the front entrance, in the lobby, at the exits, but only on each floor of the underground parking at the elevator, so that thebreak-ins were not captured on video. [25] Mr. Auborg reviewed all the cameras for Jan. 2– 4 for suspicious intruders. He saw no one enter from the exits and no

questionable entry on Jan. 3. He saw someone he considered to be the same suspect entering through the main door in the early morning hours of Jan. 2 and 4 by using an instrument that appeared to him to be a crowbar. [ 26 ] On the Jan. 2 video, Mr. Auborg notes that at 4:19 a.m., the suspect looks directly at the camera, but is unable to get in the front door. He leaves only to return at 4:37 a.m., using a crowbar to force an entry. He then goes down the hallway to an exit that leads up the stairs, but also down to the parking garage.

At 5:16 a.m., the suspect comes back down the hallway and leaves through the main door. [ 27 ] On Jan. 4, Mr. Auborg sees the same suspect at 6:29 a.m. using an instrument to enter through the main door while wearing the same black-and-white striped hoodie and following the same route to the underground parking.

This time he leaves using an east emergency exit door. [ 28 ] On all this evidence, including the modus and timing of entry, the similar clothing, in particular, the hoodie, the gym bag and the distinctly similar facial features, including the ponytail and beard, I am satisfied to the requisite standard that the same person, identified by the officers and arrested on Jan. 17, entered the building on Jan. 2 and 4 by forcing the lock. Identification by the Court [ 29 ] Trial judges can in appropriate circumstances identify the accused from videotape evidence.

In Nikolovski , Cory J. was of the view, at para. 22, that so long as the videotape is clear and of good quality, it may provide the best evidence of the identity of the perpetrator. He went on to say, at para. 29, that the “degree of clarity and quality of the tape”, in addition to the length of time during which the accused appears on the videotape, will help determine the weight the trier of fact will place on the evidence. Trial judges must, of course, exercise care in the weighing process. [ 30 ] The videotapes are of good quality. I have reviewed them a number of times.

I have seen clear images of the suspect’s face directly, close up and at different angles. I have compared those images with the defendant’s arrest photo, at the same time that I have observed Mr. Wickens in court. I have noted his body size and the common clothing, the latter permitting the circumstantial inference that the suspect in the tapes is the same person in the arrest photo. Relying in part on the recognition evidence, I am satisfied beyond a reasonable doubt that it is Mr. Wickens who is captured on the videotapes breaking into the apartment building.

Has the Crown Proven an Intent to Steal ? [ 31 ] Mr. Rieger submits that, according to Mr. Kitchen, there are a number of exits from the building that are left open from time to time, so that there was a possibility that the thefts from the cars were committed by a person or persons other than the accused during the indicated time frames. He points out that there were no cameras in the parking garage. He says the conclusion that the defendant committed the thefts is not the only circumstantial inference on the evidence. I don’t agree. [ 32 ] Mr. Auborg reviewed all of the tapes between Jan. 2-4.

During those 3 days, no one entered through open exits. The only suspicious interloper was the accused on 2 of the 3 days. There is no basis to infer, beyond speculation, that the thefts were committed by another unknown person. [ 33 ] On the evidence, the most reasonable inference to be drawn is that Mr. Wickens broke into the building twice in the early morning hours in Jan. by using a tool to gain entry. He finished his business in short order each time. It can be inferred he is not a tenant.

On each day, he headed towards the door leading down to the parking garage, leaving once through the main door, the second time by a side exit. On Jan. 4, he was captured on video coming out of the garage door. The tool was carried in the gym bag that could also be used to deposit the stolen property. [ 34 ] I am satisfied beyond a reasonable doubt on all the evidence that it was Mr. Wickens who surreptitiously entered 30 Burnhill Rd. and broke into 2 cars on separate days, stealing property from each. He will be found guilty of 2 counts of Break, Enter and Theft.

On the same evidence, he will also be found guilty of 2 counts each of Theft under $5000 and Mischief under $5000. The Crown invites me to dismiss the theft and mischief charges regarding the complainant, Diane McKitty. I do so. Finally, Mr. Rieger admits that his client was on probation at the time of these offences, one condition of which was to keep the peace and be of good behaviour. In the circumstances, the defendant will be found guilty on 2 counts of Breach of Probation. Released: January 2, 2019 Signed: “Justice L. Feldman”