Her Majesty the Queen v. Berhe [Indexed as: R. v. Berhe]
113 O.R. (3d) 137
2012 ONCA 716
Court of Appeal for Ontario,
Rosenberg, Blair and Tulloch JJ.A.
October 26, 2012
Criminal law -- Evidence -- Identification -- Non-expert recognition evidence based on photograph or videotape being admissible if witness having sufficient prior acquaintance with accused to be in better position than trier of fact to identify perpetrator -- Summary conviction appeal court holding correctly that trial judge erred by failing to hold voir dire before recognition evidence admitted but erring in [page138] applying proviso on basis that evidence inevitably admissible -- Depending on details of single prior interaction judge could conclude that prior acquaintance insufficient to place witness in better position than trier of fact to determine if accused was person in photograph -- New trial ordered.
The accused was convicted of several counts of indecent exposure and other offences. The key evidence supporting his conviction was the non-expert opinion evidence of a Toronto Transit Commission officer. He testified that he was able to identify the accused from a photograph made from a frame of a video taken at the time of the alleged offence because he was familiar with the accused from "previous dealings" with him. The trial judge did not conduct a voir dire to determine the admissibility of that evidence. At sentencing, it became known that the "prior dealings" were a single brief interaction two years before the identification. The summary conviction appeal judge found that a voir dire should have been held but applied the proviso, upholding the conviction on the basis that the recognition evidence would inevitably have been admitted. The accused appealed.
Held, the appeal should be allowed.
The summary conviction appeal judge applied the correct test for admissibility. Non-expert recognition evidence based on a photograph or videotape is admissible if the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator. The test for the admission of such evidence does not require the witness to have sufficient familiarity with the accused's unique features to identify the accused's idiosyncrasies as portrayed in the photo or videotape. During a voir dire, evidence could have been adduced to provide details about that prior encounter. The judge would then have been able to decide if a sufficient prior acquaintance existed to place the witness in a better position than the trier of fact to conclude that the accused was the person in the photograph. It was not clear that, had a voir dire been held and the judge learned that the recognition evidence was based on a single dated interaction, the witness' recognition evidence would inevitably have been admitted. A new trial is required.
APPEAL by the accused from the endorsement of Code J., [2011] O.J. No. 5142, 2011 ONSC 6815 (S.C.J.) affirming a conviction.
Cases referred to R. v. Brown, 2006 CanLII 42683 (ON CA), [2006] O.J. No. 5077, 219 O.A.C. 26, 215 C.C.C. (3d) 330, 45 C.R. (6th) 22, 72 W.C.B. (2d) 284 (C.A.); R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393, [1989] S.C.J. No. 90, 99 N.R. 345, [1989] 6 W.W.R. 332, J.E. 89-1295, 69 Alta. L.R. (2d) 1, 99 A.R. 291, 50 C.C.C. (3d) 289, 71 C.R. (3d) 325, 8 W.C.B. (2d) 467, affg [1987] A.J. No. 930, 1987 ABCA 206, 55 Alta. L.R. (2d) 362, 81 A.R. 247, 38 C.C.C. (3d) 263, 3 W.C.B. (2d) 105, apld Other cases referred to R. v. Brown, [1999] O.J. No. 4865, [1999] O.T.C. 213, 45 W.C.B. (2d) 425, 1999 CarswellOnt 4699 (Gen. Div.); R. v. Cuming, 2001 CanLII 24118 (ON CA), [2001] O.J. No. 3578, 149 O.A.C. 282, 158 C.C.C. (3d) 433, 51 W.C.B. (2d) 211 (C.A.); R. v. K. (A.) (1990), 1999 CanLII 3793 (ON CA), 45 O.R. (3d) 641, [1999] O.J. No. 3280, 125 O.A.C. 1, 176 D.L.R. (4th) 665, 137 C.C.C. (3d) 225, 27 C.R. (5th) 226, 67 C.R.R. (2d) 189, 43 W.C.B. (2d) 349 (C.A.); R. v. Panghali, [2010] B.C.J. No. 2729, 2010 BCSC 1710 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii) [page139]
Heather Pringle, for appellant. Greg Skerkowski, for respondent.
The judgment of the court was delivered by
BLAIR J.A.: -- Overview
[1] This appeal involves the test for admissibility of non- expert "recognition evidence" deriving from the examination of a photograph or videotape, and the application of that test.
[2] Mr. Behre was convicted on several counts alleging indecent exposure of his genital parts in public and to a person under the age of 16 for a sexual purpose. He was also convicted on two counts of breach of probation. The key evidence supporting his conviction was the non-expert, opinion evidence of a Toronto Transit Commission officer who testified that he was able to identify Mr. Behre from a video taken at the time of the alleged offences because he was familiar with Mr. Behre from "previous dealings" with him.
[3] Young J., at first instance, did not conduct a voir dire to determine the admissibility of this evidence, and during the sentencing hearing, it became apparent that the TTC officer's "previous dealings" with Mr. Behre consisted of one brief encounter two years prior when the officer had served Mr. Behre with a summons. It should be noted that defence counsel neither objected to the admissibility of the officer's testimony nor requested a voir dire to test it. On appeal, the summary conviction appeal judge, Code J., concluded that a voir dire should have been conducted, but held that the recognition evidence would inevitably have been admitted on application of the proper criteria for the admissibility of such evidence. He applied the curative proviso found in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 and dismissed the appeal.
[4] Although I am not persuaded that Code J. applied the wrong test for admissibility, I would allow the appeal and order a new trial because I am not convinced that, if a voir dire had been conducted, the evidence would have been inevitably admitted. It may or may not have been. [page140]
Facts
[5] Except for the identity of Mr. Behre as the culprit, there is little dispute about the facts surrounding the incident.
[6] A mother, father and two young daughters, age nine and three, were travelling at the Bathurst Street subway station in Toronto. A man rode immediately behind them up the escalator to the station. The mother became uneasy because the man seemed to be trying to get close to their nine-year-old daughter. While the family waited for a streetcar at the transfer point, he continued to stand close, apparently reading a newspaper held in front of him. A streetcar came by with enough room for one person but not for a family with two young children (the youngest was still in a stroller). The man did not take it.
[7] Suspicious, the mother kept an eye on the man. She thought he was touching himself because of the way the newspaper was moving. This suspicion was confirmed when a gust of wind blew the newspaper upward, revealing the man's erect penis exposed through his zipper.
[8] The mother ran to the father, who was standing a short distance away, and told him what happened. The father chased the man and caught him, but was unable to detain him and the man escaped.
[9] A TTC surveillance video camera recorded the man and the family as they left the top of the escalator. Still photographs of a man matching the parents' description and standing close to them on the escalator were created. The parents identified the person in the still photos as the perpetrator and the photos were circulated across the TTC security network.
[10] The father was shown a photo lineup array that included Mr. Behre's photograph, but was unable to identify him in the array. The mother was not shown a photo lineup. Both parents identified Mr. Behre as he sat handcuffed in the prisoner's dock at trial.
[11] A TTC officer with some experience in indecent act cases -- Officer Welk -- did identify Mr. Behre from the circulated photograph, however. Officer Welk testified that when he was shown the three still photographs taken from the surveillance video, he "immediately recognized" Mr. Behre, with whom he had had "previous dealings" and "investigations". He removed a photograph of Mr. Behre from his desk, explaining to the other officer that the desk photo was from a prior Toronto Police field investigation report in 2007 and stating that he was able to recognize him from the document that he had secured from the file. [page141] Officer Welk also testified that he had previously met Mr. Behre in person.
[12] No voir dire was conducted with respect to this identification evidence, as noted above, and the Crown did not lead any evidence before the trial judge as to the timing or particulars of that encounter. This may well have been because Crown counsel did not want to run the risk of eliciting evidence that would prejudice Mr. Behre by bringing out details of his previous encounters with TTC officers (including Officer Welk) in relation to similar offences. It became apparent after the conviction and during the sentencing proceedings, however, that Officer Welk's face-to-face contact with Mr. Behre consisted of only one incident when he served Mr. Behre with a summons two years prior to the incident in question.
Analysis
The test
[13] It has long been accepted that non-expert, lay opinion to the effect that the witness recognizes the image of a person seen in a photograph or on videotape, based on a prior connection with that person, may be admissible in certain circumstances. This appeal is about the contours of the test for admissibility of that type of evidence.
[14] In R. v. Brown, 2006 CanLII 42683 (ON CA), [2006] O.J. No. 5077, 215 C.C.C. (3d) 330 (C.A.), at para. 39, Rosenberg J.A. stated succinctly that "this type of non-expert opinion evidence is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator". Rosenberg J.A. relied on the decision of the Supreme Court of Canada in R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393, [1989] S.C.J. No. 90, at p. 413 S.C.R., for that proposition, which I would characterize as the "prior acquaintance/better position" test. I would re-affirm that test.
[15] Leaney was an appeal from the Alberta Court of Appeal, which had upheld convictions in robbery-related offences based, in part, on the evidence of five police officers as to the identity of the two thieves depicted in a videotape of the break-in. The majority of the Supreme Court, per McLachin J., held that the evidence of four of the officers should not have been admitted because they "had no acquaintance with the accused and were in no better position than the trial judge to say whether the persons shown in the video were the accused" (at p. 413 S.C.R.) (emphasis added). The identification evidence of the fifth officer was admissible, however, because he had known Leaney since [page142] childhood and had spent time with him shortly before the incidents. This evidence was found to be admissible even though a voir dire had not been held, as it should have been, because McLachlin J. was satisfied that the evidence "was clearly admissible in any event" (at p. 413 S.C.R.). This was the solution adopted by the summary conviction appeal judge in the case at bar.
[16] In the Alberta Court of Appeal, Harradence J.A. had dissented in R. v. Leaney, [1987] A.J. No. 930, 1987 ABCA 206, 81 A.R. 247. He advocated a more stringent test for recognition evidence of this sort, one calling for the witness to have sufficient, prior familiarity with the accused's unique features to enable the witness to describe the accused's idiosyncrasies as portrayed on the videotape. Harradence J.A. described the test in this fashion, at para. 39:
Notwithstanding this general principle of exclusion, there may be occasions when non-expert opinion evidence will be relevant and admissible. Where a witness is so familiar with the accused that he can identify idiosyncrasies of physical appearance or movement, not apparent to the trier of fact in the courtroom, that witness should be able to give his opinion. Two criteria must be satisfied. First the witness must be sufficiently familiar with the accused so as to be aware of the unique features which form the basis of the opinion. Second, the witness must be able to state with particularity what the idiosyncrasies are and show where and how they are revealed on the videotape. In this way the witness is contributing knowledge not otherwise available to the trier of fact. Consideration of these issues should take place within the context of a voir dire so the accused can challenge the evidence before it is admitted.
[17] In a careful and thorough argument as amicus curiae, Ms. Pringle urges us to adopt the Harradence criteria. She submits that they are (a) more consistent with the underlying first principles of opinion and identification evidence, (b) consistent with long-standing appellate jurisprudence requiring the ability to articulate the bases of opinion about identity and (c) not rejected by either this court in Brown or the Supreme Court of Canada in Leaney.
[18] I would not accede to this request.
[19] First, although the Harradence criteria were not expressly rejected in Leaney or Brown, more importantly, they were not adopted either. As far as I am aware, no appellate court, including the Alberta Court of Appeal, has adopted or followed the Harradence dissent (requiring sufficient prior familiarity with the accused's unique features to enable the witness to identify the accused's idiosyncrasies as portrayed in the videotape) in the 25 years since Leaney was decided in that court. [page143]
[20] Secondly, I am satisfied that the test as set out by the Supreme Court in Leaney and articulated by this court in Brown has the advantage of flexibility while at the same time providing sufficient criteria -- familiarity with the person identified and being in a better position than the court to make the identification -- to enable the court to perform its gate-keeping function for purposes of determining threshold admissibility. At the voir dire, the judge may or may not conclude that the potential witness is sufficiently familiar with the person whose identity is in question to be in a better position than the trier of fact to assist in making the identification. What weight is to be given to the evidence ultimately is a different consideration.
[21] I do not see this as being inconsistent with the underlying principles of opinion and identification evidence, namely, that opinion evidence is generally inadmissible "because it is a fundamental principle of our system of justice that it is up to the trier of fact to draw inferences from the evidence and to form his or her opinions on the issues in the case": R. v. K. (A.) (1999), 1999 CanLII 3793 (ON CA), 45 O.R. (3d) 641, [1999] O.J. No. 3280 (C.A.), at para. 71. Nor do I see it as inconsistent with the view that "there must be some basis for the opinion before it can be given any weight": see R. v. Cuming, 2001 CanLII 24118 (ON CA), [2001] O.J. No. 3578, 158 C.C.C. (3d) 433 (C.A.), at para. 21. Both of these benchmarks are well established. The "prior acquaintance" branch of the Leaney/Brown test enables the trial judge, on a voir dire, to sort out whether the potential witness is sufficiently familiar with the person sought to be identified to have "some basis" for the opinion -- or "an articulated basis", as some have said [^1] -- and the "better position" branch ensures that the evidence will only be admitted if it is helpful to the trier of fact because the potential witness has some advantage that can shed light on the evidence in question.
[22] In my view, however, it is going beyond what is necessary for threshold admissibility to add another layer to the test requiring the recognition evidence witness to show that he or she can point to some unique identifiable feature or idiosyncrasy of the person to be identified. Such concerns are better resolved in determining the ultimate reliability of the evidence. There are many ordinary people who do not have any particular identifiable features or idiosyncrasies differentiating them from the normal crowd; people familiar with them may well be able to identify their photograph, however. In that respect, I think the [page144] following comment by Holmes J. in R. v. Panghali, [2010] B.C.J. No. 2729, 2010 BCSC 1710, at para. 42, is apt:
Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.
[23] Arguably, then, the testimony of Officer Welk may have met the appropriate test for the admissibility of this type of recognition evidence -- what I have referred to as the "prior acquaintance/better position" test.
Use of the proviso
[24] That said, I am not satisfied, as was the summary conviction appeal judge, that, had a voir dire been held, the recognition evidence of Officer Welk would have been inevitably admitted. While I agree, respectfully, that the trial judge erred in failing to hold a voir dire, I would not apply the s. 686(1)(b)(iii) proviso to dismiss the appeal in the circumstances.
[25] It is true that Officer Welk had the added advantage over the trial judge of having had prior contact with Mr. Behre when he was clean-shaven and not wearing eyeglasses -- features of the perpetrator described by the parents. At the time of trial, Mr. Behre was bearded and wearing glasses.
[26] If the trial judge had conducted a voir dire, however, he would have discovered that Officer Welk "had met" Mr. Behre in the course of his "previous dealings" and "investigations" concerning him only once -- when he had served Mr. Behre with a summons about two years before this incident. The details of that one meeting could be important in helping the judge determine whether Officer Welk was sufficiently familiar with Mr. Behre to have some basis for his opinion that the person in the still photo was Mr. Behre, and whether Mr. Behre was better placed than the trial judge to make the identification.
[27] Finally -- even though there was no objection to the admissibility of Officer Welk's testimony at trial -- the fact that no voir dire was held placed limitations on the extent to which Officer Welk's identification evidence could be tested. As noted above, the Crown did not lead any evidence before the trial judge as to the timing or particulars of Officer Welk's encounter with Mr. Behre, probably for the good reason that Crown counsel did [page145] not want to run the risk of a mistrial. Similarly, defence counsel would not be anxious to probe too deeply into Officer Welk's meeting with Mr. Behre or, indeed, his "previous dealings" and "investigations" because the evidence elicited might be prejudicial to Mr. Behre's case. On a voir dire, these matters could be probed without those concerns and Mr. Behre would at least have the sense that he had a fair chance to test the waters.
Disposition
[28] I would therefore allow the appeal and direct that a new trial be held.
Appeal allowed.
[^1]: See, e.g., R. v. Brown, [1999] O.J. No. 4865, 1999 CarswellOnt 4699 (Gen. Div.), per Trafford J.