In Regina v. Bao, 2019 ONCA 458, the Court of Appeal overturn a conviction, for possession of marijuana for the purposes of trafficking, based on frail identification evidence, namely a “fleeting glance.” While the officer was well intentioned, there were deficiencies in his evidence. The salient facts were as follows.
The police were investigating a collision involving a motorcycle. The officer parked his cruiser in a manner that prevented other vehicles from driving through the accident scene. As the police officer was talking to a tow-truck driver, he saw a minivan drive past him, “out of the corner” of his eye, at a distance of fifteen (15) feet. From his point of view and opinion, it was travelling at a “normal rate of speed” of 50 km/h. He said that the driver’s side window was open. The officer yelled at the driver to stop. Acknowledging that he had merely “seconds” to make his observation, the officer described the driver as an “Asian male” with “dark hair”. The officer testified that the driver “looked shocked and almost panicked.” From his fleeting glance, he estimated that the driver was 5’9” to 5’10”. In cross-examination, he agreed that this estimate was “very approximate” and acknowledged that the driver could have been between 5’7” to 6’. He could give no further description of the driver, or of the driver’s clothing.
After the minivan went through the accident scene, it immediately made a right-hand turn and accelerated away. As such, the officer got into his cruiser and gave chase. The minivan travelled about three-hundred (300) meters before crashing into a hydro pole. By the time the officer caught up to the minivan, there was no one inside it. All of the minivan doors were closed, except the driver’s side front door, which was ajar. P.C. Storozuk said the window of the driver’s side door was still open.
However, the officer searched the glovebox and found a wallet. It was conceded that the wallet belonged to the appellant. It contained numerous bank cards, credit cards, recent ATM receipts, and other items. The officer “focused on” an OHIP card found in the wallet, which bore the appellant’s name and photograph. That police officer testified that he recognized the appellant as the person who drove past him at the first accident scene. The officer also found ownership and insurance documents in the minivan, both of which suggested that the minivan was owned by someone else. Another officer who subsequently arrived on the scene found an inhaler (still in its packaging) that had been prescribed for the appellant about a month earlier. It was in a compartment of the front passenger-side door.
The officer, then, examined the contents of the wallet, the front hood of the minivan caught fire. Concerned about the destruction of evidence, he opened the sliding door of the minivan and discovered seven large garbage bags of “fresh” marijuana inside the vehicle. Fire services were summoned and the fire was extinguished.
A canine unit was also on the scene, in search of the occupant(s) of the vehicle. The police soon discovered four Asian people (three men and one woman) hiding in the bushes nearby. The accused was not one of them.
Returning to the minivan, the officer insisted that the driver’s side window was open when it passed him and when he found it abandoned after striking the hydro pole. He stated that he did not roll the window up. A photo from the scene taken by that police officer showed that the window was rolled all the way up. The office also had no explanation for the discrepancy but said, “Iknow for a fact … it was down” (i.e. that it was open) when the minivan drove past him.
Officers on the scene observed that the minivan seating had been modified. The middle bench seat was missing, leaving enough seating for only four people.
A number of frailties in the identification evidence were unearthed by the Court of Appeal. The court held that the officer’s identification, which was based on a fleeting observation, was rendered worthless by how the events transpired. The presence of the accused’s wallet and inhaler in the minivan was merely consistent with his recent presence in the van. The officer’s observations were needed to link the accused to the driver on the day of the incident, but his evidence was too frail to ground a conviction. The frailties related in part to the brief nature (a few seconds) of the officer’s observation, cross-racial identification, and the discrepancy in whether the driver’s window was open or not. Relative to the issue of cross racial identification the Court of Appeal remarked:
There was another need for caution on the part of the trial judge – this was a case of cross-racial identification: see R. v. McIntosh (1997), 1997 CanLII 3862 (ON CA), 35 O.R. (3d) 97 (C.A.), at p. 105, leave to appeal refused,  S.C.C.A. No. 610; R. v. Richards (2004), 2004 CanLII 39047 (ON CA), 70 O.R. (3d) 737 (C.A.), at para. 32; and R. v. Mey, 2011 ONCA 288 (CanLII), 280 O.A.C. 319, at para. 35. The trial judge included this feature in his reference to the inherent frailties of identification evidence generally. However, he never really grappled with this feature in the context of this case. This was a serious issue, especially in light of P.C. Storozuk’s generic description. This was further compounded by the fact that three Asian men that were found hiding nearby, who along with the woman found with them, were presumably occupants of the minivan – a vehicle with seats for four.
The reliance on the OHIP card photo compounded the frailties. It is dangerous and improper to present a potential identification witness with a single photograph of a suspect, which is essentially what the officer did. Based on the foregoing issues, the Court of Appeal entered an acquittal during the hearing of the appeal.
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