R. v. Ali, 2011 ONCJ 760

COURT FILE No.: Brampton 10-8759 DATE: 2011·12·08 Citation: R. v. Ali , 2011 ONCJ 760 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEENr — AND — IAN MARK ALI Before Justice J.W. Bovard Heard on November 9, 2011 Reasons for Judgment released on December 8, 2011 Mr. M. Morris ............................................................................................................ for the Crown Mr. N.

Gorham ................................................................................... for the accused Ian Mark Ali Bovard J.: [ 1 ] These are reasons for judgment after the trial of Ian Mark Ali on the charge of breaching his Recognizance of bail on July 23, 2010. Background [ 2 ] On July 23, 2010, a person named Ian Mark Ali was on a Recognizance of bail which had a condition that he remain in his residence at all times unless he was with one of his sureties. Officer Dhillon was on general patrol and saw a man drive by him in a parking lot who gestured to him.

He followed the man to investigate the situation. The man stopped his car and ran away. Officer Dhillon alerted other officers that he was chasing the man. He could not catch him so he returned to the man’s car and searched it. He found mail and other documents in the name of “the defendant…Mr. Ali”. [ 3 ] He checked the name on his computer which told him that “Mark Ali” was on “the system”. The computer also produced a mug shot, which he said was of the person that he was chasing. [ 4 ] Officer Santos heard the call for help and received information about a person named “Ian Ali”.

He checked this on his computer and found the same mug shot. Other officers broadcast over the radio that the person in the mug shot was “arrestable for breach”. He helped search for the suspect and came upon him while other officers were apprehending him. He arrested him for breaching his Recognizance. [ 5 ] The Recognizance, the Information pursuant to which it was issued, an Indictment and a DNA order were made exhibits in the trial. Officer Dhillon testified that the mug shot was of the person that he was chasing and Officer Santos testified that it was of the person that he arrested.

They both identified as the accused as this person. Based on the information in the computer they said that the accused is “Ian Mark Ali”. [ 6 ] The Crown argues that this is sufficient proof of identification. The defence disagrees and says that the identifying information is inadmissible hearsay. Issues [ 7 ] The issue is whether the Crown proved beyond a reasonable doubt that the accused is the same person as the one named in the Information before the court on which this trial is being held. The Evidence Viva Voce evidence

[ 8 ] At 8:28 p.m. on July 23, 2010 Officer Dhillon was on general patrol in Mississauga and drove into the parking lot of an industrial mall on Torbram Road. The accused drove past him on the driver’s side of his cruiser. The officer and the accused were driving slowly so the officer got a good look at him. It appeared that the accused said something to him to get his attention as he drove by, but he could not make out what it was. [ 9 ] The accused drove out of the mall on to Torbram Road and made a U-turn into a gas station. Officer Dhillon followed him to check if there was a problem.

The accused stopped and was signalling to him with his finger and appeared to be talking to him through his rear view mirror. Officer Dhillon stopped behind him, turned on his emergency roof lights and called dispatch to tell them what was happening. The accused kept signalling to him with his finger and talking to him through his rear view mirror. [ 10 ] Next, the accused drove back to the parking lot where he first encountered Officer Dhillon and drove to the end and got out at an auto body shop and went inside. Officer Dhillon got out of his car and followed him into the shop.

The accused started to run through the shop. The officer told him repeatedly to stop and the accused was looking at him as he ran faster and out of the shop. [ 11 ] Officer Dhillon called dispatch to tell them that he was in a foot pursuit and he gave a description of the suspect. He did not have any notes regarding the description, but said that “it would be his general description: height, race, gender, clothing.” His recollection was that he was a black, bald male with a muscular build.

The dispatcher called other units to the scene. [ 12 ] Officer Dhillon lost sight of the suspect and returned to the suspect’s car and searched it. He found mail and other documents in the name of “the defendant…Mr. Ali” . He checked the name on his computer and found that there was a “Mark Ali” on “the system.” A mug shot came up that he identified as being of the person that he was chasing, who he reiterated was the accused. [ 13 ] He “received information that he had been located…and arrested” and taken to the police station.

Officer Dhillon said that he did not remember if he spoke to the suspect at the police station. [ 14 ] He checked the registration of the car and received information that the registered owner was Ivan Pierre, 25 Caranci Crescent, Brampton. [ 15 ] Officer Dhillon identified the accused in court as being a male black, with facial hair and a bald or shaved head and said that the accused is the man that he was chasing. [ 16 ] Officer Santos heard the radio call for officers to assist Officer Dhillon and received a description of the person they were searching for as being a male black, about 22 years old, shaved head, heavy build and wearing a black t-shirt.

Armed with this he went to the area to help in the search. [ 17 ] As he was searching he “received from other officers on the scene over the radio and that (sic) vehicle was associated to a male party who was on house arrest.” Someone provided him with the surname “Ian Ali” born March 2, 1972. He searched this name and date of birth on his computer and the computer produced a mug shot that “compared pretty well” with the description that “dispatch” had given to him.

He also found the following additional “descriptors”: six foot tall, 200 pounds. [ 18 ] Officer Santos said that other officers who viewed the mug shot broadcast over the radio that “this is the same male party that fled from the vehicle and that he was arrestable for breach…” [ 19 ] He continued to search and then he heard some officers yelling at someone to get down on the ground. He went to where they were and saw that the person on the ground looked like the person in the mug shot.

In court, he identified the accused as this person. [ 20 ] He arrested the accused for breaching his bail and put him in Officer Dawe’s crusier for transport to the police station. He did not have anything more to do with him after that. Documentary Evidence [ 21 ] The defence consented to the introduction by the Crown of the following documents: 1. A certified copy of the Information on which the Recognizance in question was issued (Ex. 2). 2. A Recognizance of bail, dated May 15, 2009 in the name of “Ian Mark Ali”, born March 2, 1972, address – 25 Caranci Crescent, Brampton. (Ex. 4); 3.

A variation of the Recognizance, dated April 3, 2010 (Ex.5); 4. A Superior Court indictment that charges “Ian Mark Ali” with robbery. Attached is a DNA order, dated October 4, 2011, for “Ian Mark Ali” born March 2, 1972 (Ex. 3). • Ivan Pierre is one of the sureties on both Recognizances. [ 22 ] That was all of the evidence. Position of the parties [ 23 ] The Crown argues that there is sufficient evidence to prove beyond a reasonable doubt that the person that Officer Santos

arrested is the accused before the court and that the accused before the court is the same person named in the Recognizance of bail that he is alleged to have breached. The name and birth date are the same on the Information on which the trial is being held and on the Recognizance. Moreover, the accused attorned to the jurisdiction of the court and pleaded not guilty and conducted a trial on the charge. In addition to this, the car that the accused was driving is registered to one of “Mark Ian Ali’s” sureties, and there were documents in it for “Mr.

Ali”. [ 24 ] The defence submits that none of this evidence constitutes proof beyond a reasonable doubt that the accused is the person named in the Recognizance. The information that the officers obtained on the computer is inadmissible hearsay for the purpose of proving that the accused is the person named in the Recognizance. The Law The arraignment process as proof of identity [ 25 ] In R. v. Levene [2008] O.J. No. 5964 the issue was whether the accused gave a false name to a police officer. The only evidence of the name of the accused adduced by the Crown was the arraignment process. [ 26 ] Levene was a

summary conviction appeal from the judgment of Nakatsuru J. on a charge of obstructing a peace officer by giving a false name. Nakatsuru J.’s decision is reported at [2007] O.J.

No. 103 . [ 27 ] Belobaba J. upheld the trial judge and adopted his reasons for judgment in which he held that in proving the falsity of the name given by the accused to the police officer “the Crown should not be permitted to use the court process, either the accused’s appearance in court or the arraignment process, as a substitute for evidence (para.3).” [ 28 ] The case at bar is different from Levene in that attorning to the jurisdiction of the court and “the arraignment process” is not the only evidence on which the Crown depends to prove that the accused is the same person named in the Recognizance that he is charged with breaching.

The Crown also relies on the officers’ testimony, the Recognizance, and the Information pursuant to which it was issued. [ 29 ] Interestingly, in the Levene appeal, the Crown tried for the first time to rely on the accused’s bail order, which was attached to the Information, as proof of the accused’s name. Although the trial Crown did not raise the issue, the appeal Crown argued that the trial judge erred in not considering the bail order as evidence of the accused’s name. Belobaba J. did not allow the Crown to make this argument for the first time on appeal.

He stated: I agree with the Respondent that the Crown is not entitled to make this argument on appeal. The position of the Crown at trial was Clear. The only evidence of the name of the Respondent put forward was the arraignment process. The bail order that is now being relied on by the Crown was never mentioned.

It would, accordingly, be an abuse of the process of this court for the Crown to obtain a new trial from an acquittal on the basis of this evidence, having failed to raise it at trial (para. 13). (Emphasis added) [ 30 ] Belobaba J. did not say that the bail order would not constitute evidence of the identity of the accused’s name.

He simply did not allow the Crown to introduce it for the first time on the appeal saying that it would be an abuse of process “ for the Crown to obtain a new trial from an acquittal on the basis of this evidence, having failed to raise it at trial .” [ 31 ] Therefore, it seems open to infer from the way Belobaba J. phrased his rejection of this fresh evidence on appeal that he thought that the bail order would have constituted evidence of the identity of the accused’s name had the Crown introduced it at trial.

His quarrel with the evidence appears not to be that it would fail to prove identity, but that the Crown failed to introduce it at the proper time. [ 32 ] In R. v. Powell [2009] O.J. No. 3658 (Ont. C.J.) , O’Donnell J. observed that “…Justice Belobaba did not reject reliance on the bail order on the basis that it suffered the same flaw as reliance on the defendant’s mere attendance in court in response to the charge (para. 22).” However, the issue was not argued before Belobaba J. so it is best not to speculate on what he would have decided had it been argued before him.

The court’s power to consider its own records and to take judicial notice of them [ 33 ] In R. v. Hunt [1986] O.J. No. 1210 (C.A.) the issue was whether the provincial offences appeal judge erred in law in concluding that the facts as found by the trial judge did not amount to prima facie evidence of identification. [ 34 ] In Hunt, the only viva voce evidence was a police officer’s who testified that he stopped the accused for speeding. The driver identified himself and produced a valid class G Ontario driver's licence issued to Keith D.

Hunt who lived at 7 English Street, Apartment 7 in Brampton. [ 35 ] The court record showed that the officer prepared a certificate of offence, which the accused signed. The officer filed the certificate at the court house. When he did this he certified on the certificate that he personally served the offence notice on the accused. The offence notice was returned to the court. The accused decided to plead not guilty so he signed the not guilty plea on the offence notice which stated "I plead not guilty. I will appear at the time and date set for my trial.

My mailing address is as shown on the front of this form…" [ 36 ] Mr. Hunt filled in his name and his new address of 84 Winterfold Drive, Brampton and set out the postal code. The notice of trial was sent to his new address and he appeared before the court in response to that notice. [ 37 ] At the conclusion of the case, the defence argued that there was no evidence of identity and asked for a dismissal. The trial judge disagreed and convicted the accused.

The accused appealed and the Provincial Offences Act appeal judge held that the evidence fell short of a prima facie case identifying the accused and set aside his conviction.

[ 38 ] The Court of Appeal overturned the Provincial Offences Act appeal judge pointing out that: …the provisions…of

Part I of the Provincial Offences Act were complied with. These sections make provision for the laying of a charge against an offender found committing the offence, serving him at the time he is apprehended with the offence notice and securing his attendance before the court should he, under his signature, elect to plead not guilty and undertake to appear. The scheme depends to a great extent on the signature of the person charged to establish his identity and s.10 provides for proof of the signature.

This is the scheme of the statute. (Emphasis added) [ 39 ] Based on this analysis the court held that the Provincial Offences Act appeal judge was wrong in finding that there was not sufficient evidence of identity. They held that: The court has at all times the power to look at its own records and take notice of their contents. See Craven v. Smith (1869), L.R. 4 Ex 146 .

In the circumstances, having regard to the evidence of the police officer, the records of the court and in view of the provisions of the statute referred to, there was sufficient evidence to constitute prime facie proof of the identity of the respondent as the driver when he appeared in response to the notice of trial to answer to the charge. (Emphasis added) Taking judicial notice of court records as proof of identification [ 40 ] The issue of whether the court is entitled to take judicial notice of its own records in finding that identification has been proven was considered in R. v. Evaglok [2010] N.W.T.J.

No. 90 , Northwest Territories Court of Appeal . [ 41 ] In Evaglok an officer testified that he was called to investigate a domestic assault. He went to an apartment building with his partner where they encountered M. outside of the building who gestured to them. They went to an apartment with her and on their way they saw two police officers going towards the door of the apartment building with a man in handcuffs.

They went to the apartment with M. and found a woman who was the complainant in the assault. [ 42 ] M. testified that when she saw her father assaulting her mother she called the police and asked them to come to the apartment. She was asked “who is your father?” and she said “Colin Evaglok”. No one asked her if her father was present in the court room or asked her to identify him in any other way. [ 43 ] Both the

Summary Conviction Appeal Court and the Northwest Territories Court of Appeal referred to the use of the court’s “process” and “records”. Although neither court specified which processes and records they were considering, I would assume that they meant all of them. [ 44 ] The Northwest Territories Court of Appeal agreed with the finding in Levene , saying: I have no difficulty with the outcome in Levene . If a person is charged with the offence of giving a false name, his mere attendance in court is proof of nothing . But, that is not this case.

Levene does not in any way undermine the proposition that judicial notice can be taken of the court's record. It says nothing about it. Indeed, it would be surprising if it did since the Ontario Court of Appeal held in Hunt (supra) that "a court has at all times the power to look at its own records and take notice of their contents".

That judgment also held that the appearance of the accused in response to the notice to attend court to answer to the charge can be considered as part of the proof of identification. (Para. 17) (Emphasis added) [ 45 ] The two underlined passages above appear to contradict each other; however, this can be explained by the fact that the court in Hunt based its decision largely on the existence of a legislative scheme that “depends to a great extent on the signature of the person charged [in the court record in question] to establish his identity and s. 10 provides for proof of the signature.

This is the scheme of the statute.” (comment in brackets added) [ 46 ] Therefore, I conclude that the accurate

interpretation of the above cited passages from the Northwest Territories Court of Appeal in Evaglok is that in the absence of a statutory scheme as existed in Hunt for the purpose of identifying the accused, mere appearance in court in answer to a charge is not evidence of identity. [ 47 ] In R. v. Williams [2005] O.J. No. 4429(OCJ) in which Caldwell J. granted a motion for a directed verdict, the accused was charged with obstructing a peace officer by giving a false name. The issue was whether a mug shot and/or attorning to the jurisdiction of the court could provide evidence of identity.

In a very succinct ruling Caldwell J. set out the facts and her reasons for finding that they could not provide such proof: The evidence from the primary officer in this case is that subsequent to releasing the individual before the court under the name of Melecia Gunn he viewed a mug shot on the RIKKI system labelled Tamra Williams and as a result he concluded that the individual who he had originally arrested was, indeed, Tamra Williams and therefore she was charged with the offence that is before the court. (Para. 3) (Emphasis added) Even if I were to conclude that the photograph that the officer viewed was of the individual before the court there is no admissible evidence before me that the correct name of the person in that photograph is Tamral Williams .

The naming of the photograph is essentially hearsay evidence as the photo was obviously labelled by another individual at another time and I have not heard from that individual, nor do I have any information as to how that individual determined that this was the name of the person that was photographed. As such I do not accept that the name applied to the photo on the RIKKI system is evidence of the identification of the

person in that photo, nor is it an identification of the individual that's seated before me in the court. (Para. 4) (Emphasis added) This case is strikingly similar to the case at bar. [ 48 ] The last case to which I will refer was submitted by the Crown: R. v. Long [1989] O.J. No. 2472 (Ont. Prov. Ct. – Criminal Division).

The accused was charged with breaching his Recognizance by not obeying a boundary condition to stay out of Toronto except to go to court or speak with counsel. [ 49 ] The facts were that police officers saw the accused in Toronto at 12:30 a.m. and arrested him for breaching his Recognizance. [ 50 ] The court found that the fact that the accused’s name and address were the same on the Information before the court and on the Recognizance that he allegedly breached was sufficient proof that the accused was the person named in the Recognizance. [ 51 ] A check of Quicklaw showed that Long has not been judicially considered.

With respect to the trial judge in Long , I disagree with his finding. Simply because the name and address of a person is the same on a Recognizance and on an Information charging an accused with breach of the Recognizance does not mean that the accused is the person named in those documents. The court may take judicial notice of the court’s documents and their contents, but without an evidentiary link between the person named in the documents and the accused before the court it cannot rely on the documents to prove that the accused is the same person as the one named in the documents. [ 52 ] As L.A.

Charbonneau J. stated in the

summary appeal decision in Evaglok (supra), “There is an important distinction between allowing a court to consider its records and process, and deciding what those things are capable of establishing.” Although the Northwest Territories Court of Appeal did not comment on this statement in their review of L.A. Charbonneau J.’s decision, I do not think that they would have disagreed because it is in keeping with how all courts deal with any piece of evidence: the court considers it and then decides what to make of it.

The mere fact that a party introduces evidence does not mean that it automatically proves what that party hopes it will prove.

Analysis [ 53 ] The charge against the accused is that: Ian Mark Ali on or about the 23 rd day of July, 2010 at the City of Mississauga did being at large on his Recognizance entered into before a Justice and being bound to comply with a condition of that Recognizance directed by the said Justice fail without lawful excuse to comply with that condition, to wit: Be within your residence at all times unless in the company of at least one of your sureties. [ 54 ] One of the elements that the Crown must prove beyond a reasonable doubt is that the accused is the person described in the charge.

This is the only issue in this trial. [ 55 ] The above jurisprudence holds that in certain cases the court can consider its records and processes as part of the evidentiary chain in establishing the identity of the accused. [ 56 ] After considering the records in this case I must determine if, together with all of the other evidence, they prove beyond a reasonable doubt that the accused before the court is the person named in the records. [ 57 ] I do not doubt that the records adduced in evidence refer to a person named Mark Ian Ali, born on March 2, 1972.

However, is that person the accused before the court? [ 58 ] What links the accused before the court to the person named in the records? The relevant evidence is the following: Testimonial evidence 1. Officer Dhillon testified that while he was on patrol he made contact with a person that he identifies as the accused. a. He said that he found mail and other documents in the name of “the defendant…Mr. Ali” in the car that the accused was

driving. b. He checked the name on his computer and found that there was a “Mark Ali” on “the system.” A mug shot came up that he identified as being of the person that he was chasing who he said is the accused. c. He checked the registration of the car and received information that the registered owner was Ivan Pierre. 2. As Officer Santos was searching for the person that Officer Dhillon was pursuing, he “received from other officers on the scene over the radio and that (sic) vehicle was associated to a male party who was on house arrest.” Someone provided him with the surname “Ian Ali” born March 2, 1972.

He searched this information on his computer and it produced a mug shot that “compared pretty well” with the description that “dispatch” had given to him. He also found the following additional “descriptors”: six foot tall, 200 pounds. a. He later came upon a person that other officers had apprehended that he thought looked like the person in the mug shot. He arrested him for breach of Recognizance. Documentary evidence 1. A certified copy of the Information on which the Recognizance in question was issued (Ex. 2). There are peculiarities with this document that should be mentioned: i.

It is a multi-count Information which charges six persons. Three of them are: “Ian Ali”, “Ian Mark Ali” and “Steven Ali”. ii. The address for “Ian Ali” is 45 Amethyst Circle, Brampton. iii. The address for “Steven Ali” is 25 Caranci Crescent, Bramp ton. iv. There is no address for “Ian Mark Ali” and there are no other identifiers on the Information for “Ian Ali”, “Ian Mark Ali”, or for “Steven Ali”, such as, date of birth. 2. A Recognizance of Bail dated May 15, 2009 for “Ian Mark Ali”, born March 2, 1972, address – 25 Caranci Crescent, Brampton (Ex. 4). This Recognizance is based on the same Information.

There are peculiarities with this document that should be mentioned: (

i) The Recognizance states that it is for offences with which “Ian Mark Ali” and “Ian Ali” are charged and it mistakenly states that all of the offences were committed on January 31, 2007. 3. A variation of the Recognizance, dated April 3, 2010 which has the same pecu- liarities as the first Recognizance (Ex.5); • Ivan Pierre is one of the sureties on both Recognizances. 4. A Superior Court indictment, dated October 22, 2010 that charges “Ian Mark Ali” with robbery on January 31, 2007. Attached is a DNA order, dated October 4, 2011, for “Ian Mark Ali” born March 2, 1972 (Ex. 3); 5.

Although it is not evidence in the sense that it was adduced by anyone, the Informa- tion on which this trial is being held charges “Ian Mark Ali” and lists his birth date as March 2, 1972 and his address as 25 Caranci Crescent, Brampton. [ 59 ] I do not doubt that a person named “Ian Mark Ali” was charged in the multi-count Information. That person could be the same person as the “Ian Ali” that is named in the same Information, but it is plausible that “Ian Ali” is different from “Ian Mark Ali”.

It is hard to tell because there are no birthdates or other identifiers for “Ian Mark Ali” or “Ian Ali” on the Information. In any case, even if they are different persons, it is clear from that Information that “Ian Mark Ali” is one of the persons charged. [ 60 ] From here I go to the Recognizances of Bail which state that “Ian Mark Ali”, born March 2, 1972, was released on the charges attributed to both “Ian Mark Ali” and “Ian Ali” in the multi-count Information.

Although two Recognizances were introduced into evidence, as I understand it, the charge before the court is based on the newer one, that is, the one dated April 3, 2010. In any case they are practically identical and the house arrest condition that the Crown alleges was breached is the same in both of them. [ 61 ] It is confusing that the offences listed in both of “Ian Mark Ali’s” Recognizances include the offences with which “Ian Ali” is charged. Furthermore, the date for the offences with which “Ian Mark Ali” is charged is listed incorrectly in the Recognizances.

The Recognizances state that the date is January 31, 2007, but the Information states the date of the offences for which “Ian Mark Ali” is charged is February 12, 2007. In addition, “Ian Mark Ali” is charged with different offences than “Ian Ali.” [ 62 ] The DNA order dated October 4, 2011, for “Ian Mark Ali” born March 2, 1972, which is attached to the Indictment does not assist in determining whether “Ian Ali” and “Ian Mark Ali” are the same person. [ 63 ] The Superior Court Indictment charges “Ian Mark Ali” with robbery on January 31, 2007.

This is an offence for which “Ian Ali” is charged on the multi-count Information. “Ian Mark Ali” is not charged with this offence on that Information. However, I think that from this one can infer accurately that “Ian Ali” and “Ian Mark Ali” are the same persons and I so find. There are no birthdates or other identifiers in the Indictment. [ 64 ] After reviewing these documents I find that standing alone there is nothing in them that connects the accused before the court with the “Ian Mark Ali” mentioned in the Recognizances or in the other documents.

[ 65 ] I must consider all of the evidence; therefore, I must ask myself if these documents in conjunction with the rest of the evidence accomplish this connection. Officer Dhillon said that he searched the car of the person that he was chasing and found mail and other documents in the name of “the defendant…Mr. Ali”. This statement assumes that “the defendant” before the court is “Mr. Ali”, which is the issue in the trial. [ 66 ] Officer Dhillon checked this name on his computer and found that “there was a Mark Ali” on the system. This is imprecise evidence in terms of identifying the accused as “Ian Mark Ali”.

First of all, Officer Dhillon’s evidence is that the documents in the car were in the name of a “Mr. Ali” - not “Ian Mark Ali”. This may seem picky, but in the context of this case it is germane. [ 67 ] Next, Officer Dhillon checked his computer data base and found that there was a “Mark Ali” on the system; not an “Ian Mark Ali”. Again, this is imprecise evidence in a case where precision is paramount. The names “Ali”, “Ian” and “Mark” are not unusual names.

It is within the realm of reasonable probability that there are other persons in Brampton with these names. [ 68 ] The computer produced a mug shot for Officer Dhillon, which he identified as being of the person that he was chasing, who he said is the accused. But this falls short of proving that the accused is the person named in the Recognizance in issue; it is simply evidence that the mug shot is of the person that Officer Dhillon was chasing. And, as the court found in Williams (supra), the computer’s statement that the mug shot is of “Mark Ali” is inadmissible hearsay.

The defence has no way of challenging this out of court assertion. [ 69 ] After this, Officer Dhillon “received information that he had been located…and arrested” and taken to the police station. He checked the registration of the car and received information that the registered owner was Ivan Pierre, 25 Caranci Crescent, Brampton. Mr. Pierre is one of the sureties listed in “Ian Mark Ali’s” Recognizances of bail their addresses are the same. [ 70 ] Officer Santos helped search for the person that ran away from Officer Dhillon.

During his search he “received from other officers on the scene over the radio and that (sic) vehicle was associated to a male party who was on house arrest.” Someone provided him with the surname “Ian Ali” born March 2, 1972. He searched this name and date of birth on his computer and the computer produced a mug shot. He said that other officers who viewed the mug shot broadcast over the radio that “this is the same male party that fled from the vehicle and that he was arrestable for breach…” Again, that the mug shot is of “Ian Ali” is inadmissible hearsay.

Moreover, it is confusing that the computer produced the same mug shot even though Officers Dhillon and Santos checked different names. There was no explanation of how this could happen. [ 71 ] Officer Santos’s evidence that the “vehicle was associated with a male party who was on house arrest” is vague; what does “associated with” mean? I do not find this evidence probative of any specific thing. The officer said that someone gave him the “surname” “Ian Ali”. First of all, this is not a surname; it is a first name and a surname.

Secondly, it is not the full name of the person that the Crown is trying to tie to the Recognizance.

Lastly, “that he was arrestable for breach” presumably means that “Ian Ali” whose mug shot the officer called up on his computer is subject to a court order that the officer did not specify. [ 72 ] This evidence is a hodgepodge of vague imprecise hearsay statements and does not tend to show that the accused before the court is the “Ian Mark Ali” that is subject to the Recognizance in question. [ 73 ] Officer Santos said that while he continued to search for the suspect he heard some officers yelling at someone to get down on the ground.

He went to where they were and saw that the person on the ground looked like the person in the mug shot. In court, he identified the accused as this person. [ 74 ] I do not doubt that the accused before the court is the person that Officer Dhillon was chasing and that he is the person in the mug shot who Officer Santos arrested. And following the jurisprudence, I find that the court may take judicial notice of the documents adduced by the Crown.

The case law allows me to also take into consideration the court’s processes, but Levene (supra) makes it clear that I may not take into consideration the arraignment process or the accused’s attorning to the jurisdiction of the court as evidence of identity. I am bound by Levene absent a statutory scheme created for the purpose of identifying persons charged with offences as existed in Hunt (supra). [ 75 ] I acknowledge that Belobaba J. appears to have left the door open to the argument that a bail order could constitute evidence of the identity of the accused’s name.

But he did not decide that it does, therefore I am not bound by that possibility. Anyway, it is hard to understand how without the support of other credible evidence a bail order standing alone would prove the identity of an accused person charged with breaching it if the accused contested that it was him or her named in the order. [ 76 ] Therefore, even though the documents stand for what they state, standing alone they do not prove that the accused before the court is the person named in them.

And given the confusing and weak quality of all of the other evidence, I find that even considering the documents together with all of the other evidence, the Crown has not proved beyond a reasonable doubt that the accused before the court is the person named in the Recognizance or in the other documents that it adduced. [ 77 ] The Crown argued that the accused was driving a car that was registered to one of “Ian Mark Ali’s” sureties and in which there was mail and documents in a similar name.

The names and birthdates on the Recognizance and on the Information before the court on which this trial is being held are the same. What are the chances that the accused is not the “Ian Mark Ali” named in the Recognizance? [ 78 ] I grant that the Crown has raised a strong suspicion that the accused is the person named in the Recognizance and in the

other documents, but that is not enough to find the accused guilty: for that there must be proof beyond a reasonable doubt.

Because of the failings of the evidence, which I pointed out above, I find that the evidence falls short of providing the necessary link between the accused and the person named in the Recognizance or in the other documents adduced. [ 79 ] Therefore, the Crown has failed to prove beyond a reasonable doubt that the accused is the person named in the Information on which this trial is being held, in the Recognizance that “Ian Mark Ali” is alleged to have breached, or in any of the other documents before the court. Consequently, the accused is acquitted. Released: December 8, 2011 Signed: “Justice J.W. Bovard”