WARNING
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
I. C-F., a young person
Before: Justice Alex Finlayson
Heard on: September 14, 15, 17, and 18, 2020, and on October 1 and 29, 2020
Reasons for Judgment released: November 16, 2020
Counsel:
- Ed Stimec, for the Crown
- Ugo Cara, for the accused I. C-F.
REASONS FOR JUDGMENT
PART I: BACKGROUND
1I. C-F. is charged with 10 different firearms offences. He was arraigned on all 10 counts. By the end of the trial, the Crown pared down the charges, and only sought findings of guilt respecting three of the counts (counts 1, 2 and 6). Those are charges under sections 86, 88 and 91 of the Criminal Code. The charges were laid as a result of the following series of events.
2On August 31, 2019, Detective Constable Christopher Durst was monitoring the young person's, I. C-F.'s Instagram account. He did so remotely from the police station using a covert Instagram account, which he also uses to monitor the activities of others online. Beginning at just after 5:00 pm through to about 5:50 pm, DC Durst observed three different videos to be "live stream[ed]" onto the internet, via I. C-F.'s Instagram account. DC Durst simultaneously recorded the live stream videos, using the recording function on his cell phone.
3When the live videos stopped streaming, DC Durst sent his own recordings of them to other police officers in the cyber crimes' unit of the Toronto Police Service. According to DC Durst, Detective Belanger and Police Officer Paul Walker proceeded to edit and delete certain portions of his recordings. I am told that Detective Belanger and Officer Walker created several different clips, and then sequenced them back together, in what is said to be the order in which the three original videos had been live streamed.
4DC Durst testified that this was done to protect certain police investigative techniques, and principally to protect the identity of DC Durst's covert Instagram account. The defence takes issue with the veracity of this explanation from DC Durst.
5DC Durst said he recognized I. C-F. as one of three persons on the videos, based on his past dealings with, and observations of him. DC Durst also explained that the videos depict someone else, whom he came to know as I. C-F.'s friend, M.M., they depict another unknown male person, and that a female voice can be heard in the background at points, although she is not revealed on the footage. The Crown called no evidence to identify either her, or the unknown male during this trial.
6According to DC Durst, the videos depict I. C-F. and the unknown male each holding and pointing a handgun at the camera, at different points. In addition, the handgun can also be seen sitting idle on a black futon at another point in the videos.
7The period of time that I. C-F. is said to hold and point the handgun is brief. The footage of this lasts no more than 2 seconds, and the video quality of that portion is very poor. In total, the thing said to be a firearm can only be seen on screen throughout the videos for only a few brief seconds.
8After DC Durst was done recording the live stream videos, various police officers went to conduct surveillance in the area of I. C.-F.'s home. According to Detective Constable McGrath and Police Constable Rui Estevez, I. C-F. came home sometime between about 8:35 pm and 8:39 pm that evening. That was about 2 hours and 45 minutes after the live stream videos had stopped. While the police arrested I. C-F. for his breach that night, he was not arrested in connection with any firearms offences. There is no evidence that I. C-F. had any firearm or ammunition on his person, at the time of this first arrest.
9DC Durst enlisted the assistance of Detective Constable Mike Choi, to determine the location from where the videos had been live streamed. According to the hearsay evidence of DC Durst on this point, the location turned out to be I. C-F.'s friend's, M.M.'s residence. Officer Walker then prepared the necessary paper work to obtain a warrant to search M.M.'s residence. In the late evening of September 1, 2019, various police officers executed the search warrant at M.M.'s residence. Police seized a restricted firearm and some ammunition, a satchel in which the firearm was found, and M.M.'s modem, among other things.
10DC Choi did not testify during this trial, nor did the Crown call any evidence from an internet service provider, to establish the location from where the videos had been streamed, and particularly to place I. C-F. at M.M.'s home that evening. Instead, the Crown relies on the evidence of certain police officers who executed the search warrant on September 1, 2019, describing the interior of M.M.'s home and comparing it to the scene on DC Durst's recordings, to connect I. C-F. to this location, and to connect him to the firearm seized.
11On September 2, 2019, I. C-F. was arrested for a second time, now in connection with the alleged firearm seen on the live stream videos. The police obtained a second warrant, this time to search I. C.-F.'s residence. That search commenced at about 10:40 pm, on September 2, 2019. The police seized a sweater from I. C-F.'s bedroom closet, that I. C.-F. is said to have been wearing on the live stream videos. They also seized his cell phone. DC McGrath testified that the police believed that it might have been the phone that I. C-F. used to film the live stream videos. But no other evidence was called to establish that during the trial. There is no evidence that the police found either a firearm, nor any ammunition, in I. C-F.'s residence either.
PART II: ISSUES FOR TRIAL AND SUMMARY OF THIS RULING
12There were five core issues for this trial, namely:
(a) First, the defence challenges the admissibility of DC Durst's recordings of the live stream videos;
(b) Second, if the recordings are admitted, then the Crown asserts that I. C-F. is one of the persons depicted on them. Thus, I. C-F.'s identity is an issue;
(c) Third, this case depends upon circumstantial evidence in a number of respects. Given the poor quality of the recordings at that point that I. C-F. is said to have held and pointed the gun, the Crown asks the Court to infer that the thing I. C-F. briefly held is a restricted firearm, based in part on what can be seen subsequently in the video, when the video quality is better;
(d) Fourth, in addition or perhaps in the alternative, the Crown asks the Court to infer that the thing briefly seen sitting idle on the futon later in the video is a restricted firearm, and that I. C-F. was in possession of it. The Crown's submission, however, is tied to its argument that I. C-F. held and pointed a gun earlier on; and
(e) Fifth, the Crown must of course prove the other elements of the three offences.
13What I have listed above are just the main issues that were litigated during this trial. There were many, many other objections, evidentiary issues, complaints about disclosure, and a mid-trial adjournment request, made during the trial, too. Counsel even disagreed about the meaning of a concession made about continuity of the firearm seized from M.M.'s residence on September 1, 2019, which I address below.
14All that said, counsel for I. C-F. was entitled to mount a vigorous defence to these charges. The trial took longer than planned, but the Court nevertheless allocated additional days for it to conclude.
15Regarding the core issues, I do find that the Crown has established that, amongst the things seized from M.M.'s residence on September 1, 2019, is a restricted firearm. However, that of course does not end the inquiry. For the Crown to obtain findings of guilt on the three remaining counts before the Court, it must prove beyond a reasonable doubt I. C-F.'s identity on DC Durst's recordings of the live stream videos of August 31, 2019. The Crown must also prove that the thing I. C-F. held during the recordings on August 31, 2019 is also a restricted firearm/firearm/weapon, within the meaning of the three counts that the Crown pursued. Alternatively, the Crown must prove that I. C-F. was otherwise in possession of the thing on the futon on August 31, 2019, and that that thing is a restricted firearm/firearm/weapon.
16The defence launched an application to exclude DC Durst's recordings of the live stream videos at common law. The defence's application to exclude DC Durst's recordings is heavily based on the fact that the recordings had been altered by the police. If the videos are excluded, then various still shot images that the Crown took from them would have no evidentiary value in this trial, either. In the absence of the video evidence before the Court, the Crown's case would fail.
17Both counsel agreed that the defence's application would be dealt with by way of a voir dire, blended with the trial. As such, DC Durst's recordings were marked as Exhibit A, subject to this Court's ruling about whether to admit them into evidence, or to exclude them. For the reasons that follow, I agree with the Crown and I would admit DC Durst's recordings into evidence. The disk currently marked as Exhibit A shall now be marked as the next exhibit, Exhibit 9. The weight that these videos should receive, however, is another matter.
18To establish identity, the Crown relies in part on the DC Durst's so-called prior acquaintance with I. C-F., and his other recognition evidence. The defence strenuously challenged DC Durst's credibility and reliability on this issue. Counsel agreed that this issue too, would be addressed in a voir dire, blended with the trial proper.
19On the question of identity, I agree with the defence in part. I will not rely on DC Durst's recognition evidence. However, that is not fatal to the Crown establishing identity, as I have viewed the videos myself, and I have considered the other identification evidence tendered throughout this trial. It is obvious to the Court that I. C-F. is one of the persons on DC Durst's recordings of the live stream videos.
20Regarding the thing that was briefly in I. C-F.'s hands during the videos, the Crown argues that it is one and the same as the handgun seized from M.M.'s home on September 1, 2019. However, in this respect, the length of the depiction and the quality of DC Durst's recordings are very brief, and very poor.
21The Crown would have the Court do draw a number of inferences from certain circumstantial evidence. More particularly, the Crown would have the Court consider a still screen shot image, not of the thing that was briefly in I. C-F.'s hands, but of the thing sitting on the futon at another point during the videos. The Crown would then have the Court compare the thing on the futon to a much better photograph of the firearm that police seized from M.M.'s residence on September 1, 2019, taken later on at the police station and subsequently tested by Officer Greg Hoffman. Based on this exercise, the Crown would then have the Court infer:
(a) that the firearm seized from M.M.'s residence on September 1, 2019 is one and the same as the thing sitting on the black futon in one of the videos streamed on August 31, 2019; and
(b) that the thing sitting on the black futon in one of the videos streamed on August 31, 2019 is one and the same thing that was in I. C-F.'s hands, for 2 seconds, at another point during the live stream videos.
22The Crown would also have the Court find that I. C-F. was actually at M.M.'s residence on August 31, 2019. If so, that might be another piece of circumstantial evidence to connect I. C-F. to the firearm seized the next day, and/or to aid the Crown in proving that I. C-F. exercised sufficient control over it on August 31, 2019.
23I cannot accede to the Crown's submissions. For the reasons that follow, I would not find that I. C-F. either had physical possession, constructive possession or joint possession of the restricted firearm/firearm/weapon seized from M.M.'s home on September 1, 2019, within the meaning of section 4(3) of the Criminal Code. Therefore, I find I. C-F. not guilty of the remaining three counts.
PART III: THE ADMISSIBILITY OF DC DURST'S RECORDINGS
A. Applicable Legal Principles Concerning the Admissibility of Videos (and Photographs)
24It is well-established that the Court may admit into evidence, and rely upon videos and photographs, if they are relevant to an issue in a case. At page 497 of "The Law of Evidence" 7th ed., Toronto: Irwin Law, 2015, Justice Paciocco and Professor Stuesser set out criteria for the admission of such videos and photographs into evidence. Admissibility will depend upon their accuracy in truly representing facts, their fairness and the absence of any intention to mislead, and their verification on oath by a person capable of doing so.
25The person verifying the authenticity of the videos or photographs need not be the videographer or the photographer. An eyewitness of the scene or events may confirm that the photograph or videotape is a fair and accurate reproduction. Circumstantial evidence may also be used to authenticate a video. See also R. v. Bulldog, 2015 ABCA 251 ¶ 21, 34-37 for example.
26At ¶ 15-18 of R. v. Nikolovski, [1996] 3 S.C.R. 1197, the Supreme Court held that so long as the accuracy or continuity of a recording or a photograph is not challenged, it will very often provide a more accurate recollection than eyewitness evidence. At ¶ 22, the Supreme Court held that where a videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidence of identity of the perpetrator. And at ¶28 the Court said:
Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but it is to a certain extent testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that itself it will demonstrate clearly either the innocence or guilt of the accused.
27The Supreme Court's statement in R. v. Nikolovski, that a video must not be altered or changed, has caused some controversy in the case law. Some cases have determined that proving an absence of any alteration is a precondition to the admission of a video. See the summary of some of those cases in R. v. Bulldog ¶ 29. However, in R. v. Bulldog, the Alberta Court of Appeal rejected the notion that R. v. Nikolovski actually stands for that proposition. Rather, the Alberta Court of Appeal held that the Crown must establish that the video is substantially accurate and fair of what it purports to show. That may be done even if the video has been altered. See R. v. Bulldog ¶ 26-33. R. v. Bulldog has been followed by courts in Ontario. See for example R. v. A.S., 2020 ONCA 229 ¶ 28; see also R. v. He, 2017 ONCJ 790.
28There is also conflicting case law as to standard of proof, pursuant to which the Crown must prove authentication. In R. v. Bulldog, the Alberta Court of Appeal rejected the argument that the standard of proof for authentication is that of beyond a reasonable doubt. The Court went on to reference the divide in the case law about whether the Crown must prove authentication of the video on a balance of probabilities, or something lower. Unfortunately, it declined to decide the issue. See R. v. Bulldog 38-40.
29This Court adopted the balance of probabilities standard in R. v. Briand, 2008 ONCJ 777 at ¶ 22. But R. v. Briand is a decision that pre-dates R. v. Bulldog. Nevertheless, both the Crown and the defence agreed, in this case before me, that the appropriate standard is the balance of probabilities, and so I will apply that standard. I would add, without needing to analyze that issue further, that my selection of the balance of probabilities standard is the most favourable approach to the defence. But in any event, either on that standard or a lower one, the result is the same. Both would result in the admission of DC Durst's recordings, in my view.
30Finally, there is a general residual discretion by which the Court may exclude otherwise relevant evidence, if the prejudicial effect to the accused by its admission would outweigh its probative value. See R. v. Seaboyer, [1991] 2 S.C.R. 577 per McLachlin J. This discretion applies even where these other requirements for the admission of DC Durst's recordings is met.
31With these principles in mind, I turn to the evidence concerning DC Durst's recordings of the live stream videos, to determine whether the Crown has proven authenticity, and in the result, whether the recordings should be admitted into evidence on a balance of probabilities.
B. DC Durst's Evidence About His Recordings of the Live Stream Videos
32Although he would not self-describe as a "tekkie", DC Durst explained to the Court that a video may be streamed "live" on Instagram. Essentially, this means that others who are logged into Instagram, and who are viewing a particular user's account, are able to watch a video at the same time that it is being filmed and streamed by its videographer. According to DC Durst, live streaming on Instagram may be done either on a private, or on an "open source" basis. Because he said I. C-F. was live streaming on an "open source" basis, DC Durst was able to view it live as a person holding an Instagram account.
33Using his own cell phone, DC Durst recorded the three different sequences of videos that were being streamed live on August 31, 2019. DC Durst explained that he had to stop and re-start his recordings at certain times, for example when I. C-F.'s live streams temporarily stopped, or because there was a problem with the audio. He explained these were technical issues on I. C-F.'s end, not his.
34In cross-examination, DC Durst admitted that he did not make notes about how he copied the recordings, prior to sending them to Detective Belanger. Nevertheless, DC Durst recalled that once he finished viewing and simultaneously recording the live stream videos, he uploaded the recordings onto his computer at work, and he transferred them onto a USB stick. It was this USB stick that DC Durst sent to Detective Belanger.
35According to DC Durst, Detective Belanger took his three recordings from the USB stick, and turned them into "five or six" different clips. He explained this was done, to conceal his covert Instagram account from being "burned". Apparently, Detective Belanger started and stopped the videos, to effect such alterations. I was also told that Detective Belanger edited out certain discussions amongst police officers, that otherwise would have been heard. DC Durst's cell phone had picked up those conversations as he recorded the live stream videos.
36DC Durst testified that once Detective Belanger was done with her editing, the USB stick was apparently then sent to Officer Walker, who I am told by DC Durst, proceeded to "blurr out" certain "investigative things", that would have otherwise been shown on the screen. Officer Walker then spliced the various clips together, so they could be played in sequence "without starting and stopping". According to DC Durst, nothing had been added to these videos at that point, other than the "blurring" feature by Officer Walker.
C. Conclusions Respecting Admissibility of DC Durst's Recordings
37Neither Detective Belanger nor Officer Walker testified during this trial. The evidence as to the editing process, was entirely hearsay from DC Durst, as opposed to from those who actually made the edits.
38The defence relied on the Crown's failure to call those officers in its application to exclude this evidence. Counsel for the defence also made trial fairness arguments in relation to how the police and the Crown proceeded. Counsel argued that the Crown ought to have tendered the unaltered video, allowed the Court to view it in its entirety, and allowed the Court to determine the necessity of any edits to protect investigative techniques. Counsel submitted that the police, by deciding what would be provided and what would be edited out, showed disrespect to the Court's gatekeeping role. Counsel also submitted that it was fanciful to suggest that the editing that was done, was to protect investigative techniques in this case. Counsel suggested that DC Durst could have easily set up another Instagram account, had the name of his covert account become "burned" through its disclosure in this case. Instead, counsel submitted that the police likely edited the tapes because the Court would have otherwise heard them using foul language in the background, as DC Durst recorded the live stream videos.
39With the benefit of hindsight, perhaps the Crown should have called the police officers who made the edits. Its failure to do so contributed to the number of evidentiary objections in this case. The Crown took the risk that the Court might have excluded the evidence, in the absence of hearing from Detective Belanger and Officer Walker. But despite the arguments from counsel for the defence, I would nevertheless conclude that neither the Crown's failure to call Detective Belanger and Officer Walker, nor the Crown's failure to produce the unaltered recordings to the Court, are fatal to the admission of DC Durst's recordings into evidence.
40For example, in R. v. Bulldog, the surveillance video in issue had passed through different officers' hands. It had been copied more than once, after it was revealed that the first copy of the DVD was not working properly. During their testimony, none of the witnesses were able to say who created it, nor how it was created. Nevertheless, one officer testified that the video played in court was the same video she had reviewed earlier. She gave that evidence based on the time and date stamp on the video, and because of the description of the incident she had received from other officers. Another officer's evidence was that the video was consistent with the video he had observed with the first officer. See R. v. Bulldog ¶ 9, 10. There was nothing in the evidence that caused the Court to be concerned that the video had been altered in a material way. See ¶ 41.
41While there may be a distinction to be drawn between cases where there was some equipment malfunction resulting in the editing, versus some deliberate action on the part of the police to create the edits, I do not accept the defence's argument that the latter should necessarily result in the exclusion of DC Durst's recordings. DC Durst is an eyewitness of the events in question. He was the officer who was monitoring I. C-F.'s Instagram and who watched the original version of the videos as they were streamed live. DC Durst testified that the copied and edited videos, played in Court during this trial, accurately depicted the originals that he saw on the evening of August 31, 2019. In my view, this satisfies the elements for the admission of these recordings, on a balance of probabilities.
42Although I am admitting the recordings, earlier I referenced the fact that admissibility and weight are two different matters. At ¶ 29 of R. v. Nikolovski, the Court held that the weight to be accorded to that evidence will be assessed from viewing the video. The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the tape, will go towards its weight. One the one hand, even if the accused appears on camera only briefly, that may be sufficient for the purposes of identity. This will be particularly true if the judge has reviewed the tape on several occasions and stopped it to study the pertinent frames, as I have in this case before me.
43I find DC Durst's recordings to be probative on the question of identity. Despite the videos' alterations, there is sufficient footage, in terms of its length and the video quality at points during the footage, for the Court to safely determine I. C-F.'s identity as one of the persons on DC Durst's recordings of the live stream videos. To this I would add that there was also other evidence, called at this trial, circumstantial and otherwise, that establishes his identity too, which I will come to.
44But on the other hand, the real issue about the weight to be ascribed to these recordings, is not as it pertains to I. C-F.'s identity, but rather whether the brief moments that the thing alleged to be handgun appears on screen, and the video quality of those parts of the footage, are sufficient for the Court to draw the inferences of guilt, sought by the Crown. It is in this respect that the brevity of the video, and its quality, are problematic for the Crown's case.
PART IV: ISSUES AND ANALYSIS CONCERNING THE IDENTIFICATION EVIDENCE
A. Applicable Legal Principles Regarding the Identification/Recognition Evidence
45Recognition evidence is a subset of eyewitness identification evidence. The identification is based on prior acquaintance. The recognition witness may or may not have been present at the scene of the crime to give recognition evidence. See R. v. M.B., 2017 ONCA 653 ¶33.
46The non-expert, lay opinion of a witness (in this case that of DC Durst) who recognizes the image of a person seen in a photograph or on a video, based on a prior connection with that person, may be admissible in certain circumstances. There is a two-part test that the Crown must satisfy to establish threshold admissibility.
47The witness must have a prior acquaintance with the accused and be in a better position than the trier of fact to identify the accused. The Court should hold a voir dire, prior to admitting such recognition evidence. See R. v. Berhe, 2012 ONCA 716 ¶ 13-14; see R. v. Brown (2006), 219 O.A.C. 26 ¶39; see also R. v. Leaney, [1989] 2 S.C.R. 393 per McLachlin J.
48The weight to be assigned to the identification evidence is ultimately a different consideration. Whether a recognition evidence witness can point to some unique identifiable feature or idiosyncrasy is not part of the test at the threshold admissibility stage. However, that may aid the Court in determining the ultimate reliability of the evidence. See R. v. Berhe ¶ 20, 22.
49At ¶ 25 of R. v. Anderson et al, 2005 BCSC 1346, the Court held that the indicia for determining threshold admissibility would include the length of the prior relationship between the witness and the accused, the circumstances of the prior relationship between the witness and the accused, and the recency of the contact between the witness and the accused prior to the event where the witness recognized the accused.
50Although there is some divide in the case law as to the amount of a prior acquaintance required to meet the threshold for the admission of such evidence, some cases suggest that the recognition witness's prior acquaintance should at least have a personal component to it. See R. v. Anderson et al ¶ 22; R. v. Behre, 2013 ONCJ 368 ¶ 15-30; and see also R. v. Farhan, 2013 ONSC 7094 ¶ 38. Counsel for the Crown suggests that takes an overly restricted approach to the admissibility of recognition evidence.
51With these principles in mind, I turn to DC Durst's recognition evidence. In the result, I do not admit DC Durst's identification of I. C-F. as one of the persons on his recordings of the live stream videos. But this does not impact the result. I find that I need not rely on DC Durst's evidence to conclude that I. C-F. was one of the persons on the recordings of the live stream videos.
B. DC Durst's Recordings of the Live Stream Videos
52There are a total of seven clips on the disk marked as Exhibit A (now Exhibit 9). Exhibit A also contains an eighth clip, which is said to consist of the seven clips, spliced back together in sequence. The seven clips are each labelled with what is said to be I. C-F.'s nickname, various numbers, and the date of the live stream videos, namely August 31, 2019. For ease of reference, I will refer to the various clips using only some of the numbers in the various labels used on Exhibit A. Specifically, the clips using the numbers/letters 1a, 1b, 1c, 1d, 2a, 2b and 3 are the seven edited clips, and clip # 4 is spliced back together video.
53DC Durst identified I. C-F. as one of the three males depicted on his recordings. He mostly referred to the two other males on the videos as "unknown 1" and "unknown 2" during his testimony, although he explained that he came to know that "unknown 1" is I. C-F.'s friend, M.M.
54For example, DC Durst identified I. C-F. as the person seen at time stamp 11 seconds on video clip 1a, and again at time stamp 3 seconds on video clip 1d. Likewise, DC Durst identified "unknown 1" or M.M., as the person with his hair in two "pig tails". For example, M.M. can be seen on video clip 1b, according to DC Durst.
55DC Durst testified that I. C-F. was wearing a black hoodie and black pants in the various video clips. At time stamp 27 seconds, and again at time stamp 3 minutes and 46 seconds on video clip 2a, DC Durst explained that although his sweater is bunched up, one is able to see certain white and red lines on I. C-F.'s sweatshirt.
56The Crown tendered a number of photographs for comparison purposes, to aid in the identification of I. C-F on the recordings. For example, Exhibit 3 is a disk containing various photographs. On it, there is a photograph entitled "sweater SOCO". DC McGrath testified that this photograph depicts a sweater that was hanging in I. C-F.'s closet when it was seized during the execution of the search warrant of I. C-F.'s residence on September 2, 2019. DC Durst testified that the sweater in Exhibit 3 is one and the same as the sweater that I. C-F. was wearing on his recordings of the live stream videos, based on his review and comparison of the markings on the sweater.
57DC Durst testified that he observed both "unknown 2" and I.C-F. to be holding and pointing what he believed to be the firearm. He testified that the firearm appeared to be sitting idle on the futon, too. It is at time stamp 3 seconds on video clip 1d that DC Durst says I. C-F. appears to be holding the gun. It is at time stamp 2:59 of video clip 2a that the firearm can be seen sitting on the black futon. Although the latter image is exceedingly brief (about 1 second), one can see what appears to be a firearm on the futon. It is two tone in colour (brown and black). By contrast, what I. C-F. was holding at time stamp 3 seconds on video clip 1d is by no means clear and is also very brief, as I have already said.
C. DC Durst's Prior In-Person Acquaintance with I. C-F.
58DC Durst's evidence about his prior acquaintance with I. C-F. included only one personal interaction prior to August 31, 2019. DC Durst testified that on August 16, 2019 (about two weeks earlier), he attended at I. C-F.'s home with three other officers, to conduct a bail compliance check.
59DC Durst testified that the bail compliance check occurred at approximately 10:54 pm on August 16, 2019. Specifically, DC Durst said he did this check with his partner that day, Police Constable Kristophen Lobo, and two other officers, Police Constables Michael Hayes and Crispin Barnes.
60DC Durst testified that all four officers went inside I. C-F.'s residence that night. When they arrived, I. C-F.'s mother advised the police that I. C.-F. was in bed, but she went in to wake him. DC Durst testified that I. C-F. came out of his room. DC Durst described that I. C-F.'s hair was not in braids that night, but rather it was in an "afro style". He testified that I. C-F. looked similar in appearance to the person he later saw in the live stream videos.
61At its highest, DC Durst's observation of I. C-F. that evening lasted no more than a few minutes. Nevertheless, to bolster the weight of his evidence, DC Durst testified that I. C-F. has a distinctive way of speaking. According to DC Durst, he sounds congested and "breathes kind of heavy". He said he noticed that on August 16, 2019. DC Durst also said that one can hear him breathing in this manner, while he is talking on certain known recordings containing I. C-F.
D. DC Durst's Other Observations of I. C-F.
62Although DC Durst had no other personal interactions with I. C-F. prior to August 31, 2019, he testified he observed I. C-F. on social media, specifically on Instagram, and in three Youtube music videos, several times.
63In addition, DC Durst had seen I. C-F. on certain video surveillance and booking photos, from back in the summer of 2018 in connection with another matter. However, he said that I. C.-F. changed "quite a bit between the booking photo and now". He said he "grew up" and "put on weight".
64Exhibit 1 is a disk of the three music videos that DC Durst observed on Youtube containing I. C-F. DC Durst testified that in the first video entitled "[… Remix]", I. C-F. can be seen wearing a grey tracksuit with the words "Noir" in neon green on the front of the sweater.
65In the second video, entitled "[M…]", DC Durst identified I. C-F. as the young person wearing a white t-shirt and grey shorts, for example at time stamps 48 seconds and again at 1 minute 19 seconds.
66Regarding the third video entitled"[R….]", DC Durst once again identified the young person, this at time stamp 2 minutes and 18 seconds, as I. C-F.
67I note that the titles to each of these videos on Youtube also contains I. C-F.'s nickname.
68Exhibit 4 contains some comparison photographs created by the Crown, wherein images said to be of I. C-F. from these Youtube videos are placed along side I. C-F.'s booking photograph from his September 2, 2019 arrest.
E. DC Durst's Credibility Concerning the Identification Evidence
69Much of the defence's cross-examination of DC Durst, and the other officers said to have been involved in the bail compliance check of August 16, 2019, focused on challenging the credibility and reliability of DC Durst's evidence about his prior acquaintance with I. C-F.
70Specifically, counsel for the defence strenuously challenged the suggestion that four police officers did a bail compliance check at all, at I. C-F.'s home on the evening of August 16, 2019. The defence maintains that only two officers attended, and that DC Durst was not even there.
71PC Hayes was in a police car with PC Barnes on the evening of August 16, 2019. It is not disputed that both PCs Hayes and Barnes did attend I. C-F.'s residence on the evening of August 16, 2019. It is only these two officers, whom counsel for the defence suggested, had done the bail compliance check.
72To be clear, the Crown does not rely on PC Hayes' testimony to establish I. C-F.'s identity on the live stream videos. He is not offered to the Court as a recognition witness although arguably, he might have been a better recognition witness than DC Durst based on his greater number of personal interactions with I. C-F. Rather, it appears that he (and the other three officers) were called by the Crown so that each would be made available for cross-examination by the defence, who wanted to challenge DC Durst's evidence.
73PC Hayes denied the defence's suggestion that he only attended with PC Barnes to do the check that evening. PC Hayes testified that he and PC Barnes did in fact meet up with DC Durst and PC Lobo at I. C-F.'s front door, and that the four officers proceeded to check in on I. C-F. together on August 16, 2019.
74Likewise, both PC Barnes and DC Lobo, each maintained that all four officers were present, and all attended inside I. C.-F.'s residence that night. DC Durst too, denied the defence's suggestion that he lied about going into I. C.-F.'s unit on August 16, 2019.
75Counsel for the defence asked PC Hayes whether he recalled a small dog coming to the door, which he suggested would have been an inevitability, given the dog's usual behaviour of running to the door to greet visitors, barking and jumping until being petted by the visitor. He also asked this of DC Durst.
76Neither officer could recall whether I. C-F.'s mother's small dog greeted them at the door, or not. In DC Durst's case, he said that he likes dogs, so it would not have been remarkable to him, had a dog in fact greeted him, barked at him or jumped on him. This is not something that he said he would have necessarily remembered. Similarly, PC Hayes could not recall if I. C-F.'s younger sister was present, a statement that I. C-F.'s mother later made in her evidence-in-chief, when she was called as part of the defence's case to address the events on the evening of August 16, 2019.
77But mostly, the defence's cross-examination of these four police officers focused to different degrees of these officers' notetaking respecting the events of that evening. In particular, DC Durst's notes omit that DC Lobo was present with him for the August 16, 2019 bail compliance check, a fact which he otherwise claimed in testimony during the trial. DC Durst's explanation of this omission in his notes was that since DC Lobo was his partner that day, he did not need to write down his name in his notes.
78The notes that PC Hayes initially supplied to the defence were sparse; they did not even indicate with whom PC Hayes had done the bail compliance check. PC Barnes did not make notes about with whom he attended to do the bail compliance check, either.
79DC Lobo did make some notes. However, his notes state that PCs Hayes and Barnes did the bail compliance check. Yet he still maintained that each of the four were there. His explanation was that this how he makes his notes. He did not feel the need to record DC Durst's presence, since he was his partner with him in the police car that evening and so it was not necessary to write that down.
80DC Lobo could not recall whether he had called into dispatch to identify himself and DC Durst as two of the officers who would be joining PC Hayes and Lobo to do the bail compliance check. The defence cross-examined DC Lobo on this point.
81PC Hayes' evidence about the bail compliance check of August 16, 2019 was particularly problematic. The evidence in this case was completed on September 18, 2020. I adjourned the trial for submissions on October 1, 2020. On October 1, 2020, counsel for the defence brought an application to re-open the trial, asking to recall PC Hayes. Submissions did not proceed that day.
82As a result of this request by the defence, I was told that I. C-F. is involved in a trial before a different judge in this Court, the trial dates for which overlap with the trial dates in this case before me. I learned that in that other trial, the Crown intended to call PC Hayes to give recognition evidence about I. C-F., and that as a result, the Crown produced additional notes concerning the bail compliance check of August 16, 2019, which had not been produced to the defence for use in this case before me. After hearing submissions and reviewing the contents of an additional document now produced in that other case, I granted the defence's application to re-open the trial and to recall PC Hayes. I delivered oral reasons for that ruling at the time.
83The new document now produced is a bail compliance check form dated August 16, 2019 that PC Hayes generated. It says that PCs Hayes and Barnes attended to the bail compliance check that evening. In cross-examination, PC Hayes attempted to explain that his omission of the names of the other two officers (including DC Durst) from this form, is not significant. He testified that his failure to include their names, doesn't mean that they were not there. According to him, those two things are not mutually exclusive.
84Moreover, when PC Hayes initially testified, he said he had checked in on I. C-F. three times during the weekend of August 16, 2019. When he was recalled for further cross-examination on October 1, 2020 however, PC Hayes now corrected that evidence, saying that was not the case. He said he only attended twice. He said he erred in his prior testimony, based on the manner in which he had reviewed various documents to refresh his memory about his activities that weekend, prior to testifying.
85There is also a suggestion from the defence that DC Durst and PC Hayes spoke to one another before PC Hayes initially testified, in defiance of this Court's witness exclusion order. The Court granted a witness exclusion order on September 14, 2020 at the outset of the trial. DC Durst began his evidence that day, but did not finish, and was bound over to return later in the week (as he could not attend the next day for personal reasons). At the end of the first day of the trial, counsel for the defence advised the Court that he required notes of PCs Hayes and Barnes, and DC Lobo regarding the bail compliance check of August 16, 2019, prior to their coming to testify. There was some discussion on the record that one of the officers might obtain these notes to give to the defence, but I intervened, and I specifically directed the Crown to deal with obtaining the notes, to avoid any appearance or suggestion that the police might have spoken to each other about what would obviously be the subject matter of upcoming cross-examinations. DC Durst resumed testifying later in the week. PC Hayes then testified after him. PC Hayes admitted in cross-examination that DC Durst had phoned him earlier that week, to advise him that he would be testifying.
86After the Crown closed its case, the defence called I. C-F.'s mother to testify about the bail compliance check of August 16, 2019. She disagreed with the officers' evidence that all four had attended her home on the evening of August 16, 2019, saying that it was only PC Hayes and PC Barnes who came. She denied that DC Durst and DC Lobo had ever been in her house before. In fact, she denied having ever seen DC Durst before this trial. Moreover, she testified that her small dog was present, that the dog is very jumpy, that she likes to jump on everyone who comes to the door. She testified that the dog will not stop barking until someone pets her. And she testified that her daughter and two friends of I. C-F. were present when PC Hayes and Barnes came to her house that night. I. C-F. was not in bed as the various officers maintained.
87The defence tendered a video that I C.-F.'s mother said had been filmed that evening, via her daughter's cell phone. The video is time and date stamped as having been made at about 8:46 pm on August 16, 2019. I. C-F.'s mother testified that the video reveals I. C-F. and two of his friends, at home, that evening. Again, she testified that the two friends were still there, when PC Hayes and Barnes came to do the bail compliance check. She said that PC Hayes even asked her who the other two young persons were.
88In cross-examination, the Crown suggested to I. C-F.'s mother that she did not make notes that evening. He also suggested to her that her memory fades with time, a proposition with which she would not agree, at least as it pertains to her recollections about events involving I. C-F.
F. Conclusions Respecting DC Durst's Recognition Evidence
89At most, DC Durst had one, brief in-person interaction with I. C-F., prior to his arrest on August 31, 2019, being during the bail compliance check of August 16, 2019. But in light of the above, the Court cannot trust the reliability of DC Durst's and the other officers' accounts as to who attended on August 16, 2019. Notes concerning these checks were disclosed late, and in a problematic and incomplete fashion during the trial. The notes that were produced are sparse. They contain omissions. They almost entirely suggest that only PCs Hayes and Barnes attended the bail compliance check of August 16, 2019, despite the four officers' viva voce evidence to the contrary. The Bail Compliance Check Form of August 16, 2019 was not even produced in this proceeding at all, until it came to light in another proceeding, and then only after PC Hayes had testified in this case, and the evidence in this case was closed. And there is some suggestion, although not fully fleshed out by the defence in cross-examination, that PC Hayes and DC Durst spoke to each other after DC Durst was well into his evidence, but before PC Hayes testified.
90In the result, I find I. C-F.'s mother's testimony as to the events of August 16, 2019 to be more reliable. The difficulty with the Crown suggesting to I. C-F.'s mother that she did not make notes that night, and therefore that her memory is not reliable, is a double standard in this case. The police officers did not make very good notes of this bail compliance check, so how could it be argued that their evidence is any more reliable? They too were relying on their memory, mostly unaided by their sparse notes.
91At worst, it could be said that these four officers were not truthful with the Court about the bail compliance check. That said, I would not go so far as to find this. It could be that DC Durst did in fact attend at the bail compliance check on August 16, 2019, that these four officers' note-taking practices concerning the bail compliance check were just sloppy, and that as a result, none of the four officers wrote down exactly what transpired, as they have a duty to do. In the case of PC Hayes' mistake as to the number of times he attended I. C-F.'s residence that weekend and his initial failure to provide the Bail Compliance Check Form, perhaps he was just inadequately prepared to testify, and perhaps he received inadequate direction as to what notes he should be reviewing and producing, prior to coming to Court. So while I will not go so far as to find that these officers were less than candid with the Court, the Court is still left in the position that it cannot trust the reliability of their evidence about DC Durst's prior in-person acquaintance with I. C-F.
92Therefore, in the result, the Court is unable to find that DC Durst had a prior, in person acquaintance, with I. C-F. for the purposes of the voir dire. If I am wrong and he did, then I would still find that his prior, in person acquaintance with I. C-F., was brief and fleeting, nonetheless.
93That leaves DC Durst's review of the Youtube videos, his testimony about the other images on Instagram that he reviewed, and his review of the prior booking photograph from the summer of 2018, as forming the evidentiary basis on the voir dire of a prior acquaintance to place him in a better position than the Court to identify I. C-F. Not only were none of those interactions of an in-person nature, but regarding the old booking photograph from the summer of 2018, again DC Durst testified that I. C-F.'s appearance had changed.
94Again, there was a dispute between counsel during submissions as to whether the test in Leaney and Behre requires a prior in person acquaintance. I need not decide this. I say that because the Youtube videos they are otherwise before the Court as exhibits. As I will explain next, I. C-F.'s mother also identified I. C-F. in them, during the crown's cross-examination of her. The image quality of I. C-F. in those Youtube videos is very clear. As is the booking video and photograph from I. C-F.'s arrest on September 2, 2019, filmed/shot two nights after DC Durst recorded the live stream videos in issue in this case. The Court may rely on these exhibits to make its own identification of I. C-F.
G. The Young Person's Mother's Recognition Evidence
95The Crown also relies on I. C-F.'s mother's identification of I. C-F. As I have said, during cross-examination, Ms. C. identified I. C-F. in the Youtube videos. She confirmed that I. C-F. uses the nickname associated with the Youtube videos. The nickname is the same as the one associated with his Instagram account. And in a general way, she identified I. C-F. as one of the three persons seen on DC Durst's recordings of the live stream videos.
96At the end of the trial, counsel for the defence attempted to argue that Ms. C was only called for the purposes of the voir dire, and that the Court could not therefore rely on Ms. C's evidence identifying I. C-F. in the trial proper. The Crown, rightly, pointed out that counsel for the defence never put this qualification on the record when he called Ms. C to testify, and the Crown argued that the Court could rely on Ms. C.'s evidence regardless of its ruling on the voir dire.
97I really need not decide this either. That is because I would find that as I. C-F.'s mother, Ms. C. would meet the test for the admission of recognition evidence. I accept that she identified I.C-F. in the Youtube videos, and in DC Durst's recordings of the live stream videos. Moreover, the Court was not told that she would be called only on the voir dire. The defence ran the risk that by calling her, she might make admissions favourable to the Crown.
98Regardless, Ms. C.'s evidence does not really matter in the result of the case. For the purposes of the trial proper, her precise identification of I. C-F. in DC Durst's recordings of the live stream videos to link him to the firearm does not particularly assist the Crown. When the Crown asked her to identify her son in DC Durst's recordings of the live stream videos, the Crown did not replay the video. In re-examination, she denied seeing her son holding a firearm.
H. The Court's Review of the Videos and Photographs
99In the result and in light of the numerous different, and sometimes technical arguments that I heard about the recognition evidence, the most prudent approach would be for the Court to independently determine identification based on the exhibits before the Court and its own observations of I. C-F.'s appearance. In addition to the Youtube videos, the Crown tendered a number of comparison photos, with various still shots of I. C-F. from the videos placed along side I. C-F.'s booking photos.
100Based on my own observations of the Youtube videos, the comparison photos, and the person said to be I. C-F. in DC Durst's recordings of the live stream videos, compared to I. C-F's appearance in the court room throughout this trial, I have no hesitation in concluding that I. C-F. is one of the persons in DC Durst's recordings of the live stream videos. The sweater seized from I. C-F.'s closet is another piece of circumstantial evidence that aids the Court in establishing I. C-F.'s identity.
101To be clear, I have reviewed all the videos, including the portion of video clip 1d, where it is said that I. C-F. held and pointed a gun, multiple times. While the latter lasts no more than 2 seconds, that portion of the video's quality is sufficient, especially when viewed as a whole with the balance of the videos, for the Court to ascertain that the person depicted is I. C-F. I say again, however, that the sufficiency of the depiction of the thing that I. C-F. is holding at that point of the videos, is another matter.
PART V: ISSUES AND ANALYSIS CONCERNING THE RESTRICTED FIREARM SEIZED ON SEPTEMBER 1, 2019
A. Overview of the Defence's Objections to the Analyst's Evidence About the Firearm
102The Crown called Officer Greg Hoffman to testify about his analysis of some the items seized from M.M.'s residence on September 1, 2019. Most of Mr. Hoffman's evidence was elicited viva voce, rather than the Crown simply moving to introduce his Certificate of Analysis into evidence pursuant to section 117.13 of the Criminal Code without the need for his oral testimony.
103At the conclusion of Mr. Hoffman's evidence-in-chief, the Crown nevertheless sought to introduce as an exhibit the Certificate of Analysis that Mr. Hoffman signed on March 30, 2020, by asking him to identify it and to adopt its contents. This led to a heated objection from the defence. I ruled that the Crown could proceed in the fashion that it proposed, for oral reasons delivered at the time.
104Then, in closing submissions, counsel for the defence asserted that the Crown failed to prove that the thing Mr. Hoffman tested, was one and the same thing as that which was seized on September 1, 2019.
B. The Viva Voce Evidence of Police Officer Greg Hoffman
105Mr. Hoffman explained that he is an officer in the firearms investigation unit. His Certificate of Analysis states that he is designated by the Toronto Police Service as an examiner of weapons, prohibited devices, ammunition, prohibited ammunition, or any part or component of such things.
106Mr. Hoffman testified that his job is to examine and testify about firearms and ammunition and to prepare "expert reports and expert testimony". Mr. Hoffman explained that his day to day role in dealing with firearms is to examine them, photograph them, and to determine if they are prohibited, restricted, or not even a firearm.
107To determine whether a firearm and ammunition are operable, Mr. Hoffman conducts certain tests. His testing entails taking the seized firearm, randomly selecting a cartridge, and then firing it into a ballistic test tank full of water.
108Mr. Hoffman testified that he reviewed and tested the device that was seized from M.M.'s home on September 1, 2019. He described the firearm seized as a Swiss Arms, model SA 1911. He described that the frame or receiver, was manufactured as a BB gun, from Taiwan. That is tan in color. He described the slide barrel as manufactured by German Sports Gun, GSG 1911. He characterized the firearm as a .22 long rifle, with a barrel measure of 1. 27 mm. The magazine, he said, had the capacity of 10 cartridges, of 22 long rifle.
109Mr. Hoffman testified that after examining the firearm, he realized that the receiver, or frame, was intended as a BB gun, but it had been manufactured in such as fashion, to be adapted later "after market". This, he said, made it an operational firearm.
110The ammunition the police seized from M.M.'s home included four "super X Winchester brand hollow point full metal jacket", and four "Remington hollow point round nose full metal jacket"' bullets. To test these and the gun, Mr. Hoffman said he selected one of the seized cartridges and 3 stock ammunition. He loaded all four shorts into the firearm, and fired them into the test tank. He explained that the stock ammunition fired correctly, but the seized round did not. So, Mr. Hoffman selected a second random piece of ammunition from the seized items, and this time, it worked.
111Mr. Hoffman's testimony was that the firearm meets "the definition of the Criminal Code" when it is operational. He said both the firearm and the ammunition were operational and both were capable of causing serious bodily injury or death.
112Mr. Hoffman's Certificate of Analysis states that he examined and/or test fired the firearm and the eight cartridges. He certifies that the firearm is a "semi-automatic handgun with no serial number" and that it functioned correctly as a "semi-automatic handgun". He certifies that it meets the definition of a "firearm" and a "restricted firearm" in sections 2 and 84 of the Criminal Code.
C. The Defence's Mid-Trial Objection to Mr. Hoffman's Evidence
113The defence's mid-trial objection to the fashion in which the Crown sought to proceed with Mr. Hoffman's evidence had three components:
(a) that the Crown failed to personally serve the Certificate of Analysis to I. C-F. prior to the trial;
(b) that the Crown's notice of his intention to produce the certificate at trial was deficient; and
(c) that the Crown had to decide whether to call Mr. Hoffman's evidence orally, or to tender the certificate only, but that he could not do both.
114I begin with the complaint about personal service. On September 1, 2020 (13 days before the start of the trial), I held a check-in phone call with counsel, to ensure that the trial would be proceeding, and to discuss how it would be proceeding. At that time, counsel for the defence complained that the Crown wanted to serve a document to him via a certain police officer, but counsel for the defence said that he would not be accepting service of it. The defence's objection, as I understood it at that time, was that the document required personal service. I asked Mr. Cara just to accept the document, and indicated that any issues about service could be dealt with in due course during the trial.
115Now that I understand more fully the precise issue about which counsel complained on September 1, 2020, and having heard the submissions on the objection, there is no requirement for personal service in section 117.13 of the Criminal Code. The complaint about the Crown's failure to serve the document, and to give notice under section 117.13 of the Criminal Code to I. C-F. personally, is not a valid one.
116The second component of the objection relates to the sufficiency of the notice provided. When the objection was fully argued on September 15, 2020 during the trial proper, I was told by the defence that although Mr. Hoffman signed the Certificate of Analysis on March 30, 2020, the Crown did not produce it until the evening of September 9, 2020. This was 2 business days prior to the commencement of the trial, 5 days before Mr. Hoffman began testifying, and 7 days before he was cross-examined.
117Therefore, the defence argued that the Crown had not complied with timelines in the Canada Evidence Act, which counsel said require that 7 days notice before the trial, be given. However, as the submissions unfolded, it was revealed that the 7-day time line upon which the defence relied, does not apply to certificates under section 117.13 of the Criminal Code. Rather, unlike certain sections of the Canada Evidence Act that counsel referred to, section 117.13 of the Criminal Code only uses the term "reasonable notice". "Reasonable notice" within the meaning of section 117.13 is a question of fact, that is to be determined in all the circumstances. See R. v. Jones, [1988] S.J. No. 776 (C.A.).
118Regardless of the inapplicability of a 7-day timeline, counsel for the defence further submitted that the Crown's production of the certificate was very late nonetheless. There is some merit to this complaint, particularly since the Certificate was signed on March 30, 2020, but the Crown did not see to providing it, until a few short days before the trial.
119However, in R. v. Jones, the Saskatchewan Court of Appeal upheld a trial judge's finding that 6-days' notice of a certain certificate was reasonable in the circumstances. Similarly, in R. v. Flegel, [1972] S.J. No. 276 (C.A.), a police officer had served a certain kind of certificate of analysis and notice of intention to produce it at trial (pursuant to a different section that uses similar statutory language as section 117.13 of the Criminal Code), just before the trial commenced, and perhaps even on the day of trial. The trial judge nevertheless admitted the certificate, but also offered the defence an adjournment. The defence declined the adjournment in that case. The Saskatchewan Court of Appeal held that the trial judge did not err in proceeding in this fashion.
120In this case before me, I ruled on this objection at the end of the day on September 15, 2020. Cross-examination did not begin until September 17, 2020 a further two days later. And on September 15, 2020, I too offered the defence an adjournment such that the defence could have had more time to prepare. The defence declined my offer.
121While this entire incident could have been avoided had the Crown paid due attention to this issue, and produced the certificate and its notice much earlier, it is nevertheless arguable that the certificate could have still gone in without Mr. Hoffman's attendance. I say this in light of the fact that the issue of service was discussed on September 1, 2020, that the defence knew what was coming as of that date, that the defence raised an improper barrier at that point by complaining about personal service, and that the certificate was eventually delivered on September 9, 2020.
122While two days before the trial is very short notice, the defence had a few more days before Mr. Hoffman began to testify, and as it turned out, a further two days until cross-examination began. In light of the rulings in the two Saskatchewan Court of Appeal cases, coupled with this Court's offer of an adjournment to the defence, I would have found the notice to have been reasonable in the circumstances had the Crown moved just to tender the Certificate.
123However, as I have said, in the end the Crown ultimately did not seek to proceed via the certificate alone under section 117.13 of the Criminal Code. Instead, the Crown just called Mr. Hoffman to give oral evidence. This was the main thrust of the defence's objection. Again, he argued that the Crown had to elect to either file the certificate, or to call the viva voce evidence of Mr. Hoffman. Having made the decision to call his evidence viva voce, the defence said that the Crown could not then put the certificate to Mr. Hoffman.
124I disagreed with this submission. In the circumstances, I saw no prejudice to the defence in allowing the Crown to then tender the certificate at the end of Mr. Hoffman's testimony. Contrary to counsel for the defence's arguments, section 117.13 of the Criminal Code does not make provision for an 'either-or' presentation of analysis evidence. Section 117.13 provides that Mr. Hoffman's Certificate of Analysis is admissible without requiring his attendance at the trial. This section permits that kind of evidence to go in by way of certificate, provided reasonable notice of the intention to produce it, and a copy of the certificate, is given in advance of the trial. It is a rule that dispenses with a more formal, oral method of proof. It does not oust the ability to call oral evidence if the requirements of the section are not met.
125And for that matter, section 117.13(2) does make provision for both the oral and documentary presentation of evidence. The section provides that the analyst may be cross-examined with leave of the Court, in cases where the Crown only seeks to introduce the certificate. Because the Crown chose to call Mr. Hoffman as opposed to just tendering the certificate, the defence did not even need to seek leave as counsel would have otherwise been required to do, had he wished to cross-examine Mr. Hoffman. As a result of the way the Crown proceeded, counsel for the defence was able to cross-examine Mr. Hoffman as of right. Any prejudice that might have been caused to I. C-F. in these circumstances, and again coupled with an offer of an adjournment from the Court, was completely alleviated.
126Finally, since the Crown did not move under section 117.13, it is debatable whether arguments about the Crown's failure to comply with its requirements can form the basis of an objection in any event. Again, the Crown decided just to call Mr. Hoffman's evidence in the normal course, and put his certificate to him.
D. The Defence's Argument that the Crown Failed to Prove that Mr. Hoffman Tested the Firearm Seized on September 1, 2019
127During the trial, I was told that there was no issue as to continuity respecting the firearm that was seized. Despite that, at the conclusion of the trial, counsel for the defence maintained that the Crown failed to establish that the firearm Mr. Hoffman tested was one and the same as the thing seized from M.M.'s residence on September 1, 2019. For example, Mr. Hoffman's form indicated that the thing seized on September 1, 2019 was seized by PC Estevez, whereas the defence said that it was in reality seized by Detective Constable Jeff Freeman. (In reality, the item was initially seized by DC Freeman and then handed off to PC Estevez).
128Counsel for the defence argued that by conceding continuity, he only agreed that the Crown did not have to prove how the gun got from point A to point B. The Crown still had to prove that the thing tested was one and the same as the thing seized and the Crown did not do that, according to Mr. Cara.
129I disagree with this submission. This is not a case in which there were multiple firearms seized and tested such that there might be some confusion as to which item to which the analysis evidence pertained. In any event, Mr. Hoffman described what he tested with sufficient precision such that I am satisfied that the firearm he tested was one and the same as the firearm seized from M.M.'s home on September 1, 2019.
E. Conclusions Respecting Mr. Hoffman's Evidence
130Based on Mr. Hoffman's evidence, I find that the handgun seized from M.M.'s residence on September 1, 2019 is a restricted firearm within the meaning of the Criminal Code.
PART VI: ANALYSIS RESPECTING THE INFERENCES THE CROWN ASKS THE COURT TO DRAW
131The Court must be careful about too readily drawing inferences of guilt based on circumstantial evidence. To find I. C-F. guilty based on circumstantial evidence, the Court must be satisfied beyond a reasonable doubt that the only reasonable inference to be drawn from the circumstantial evidence is that I. C-F. is guilty. See R. v. Griffin, 2009 SCC 28 ¶ 34.
132The trier of fact should consider "other plausible theories" and "other reasonable possibilities" which are inconsistent with guilt. However, the Crown need not negative "every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused". "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation". See R. v. Villaroman, 2016 SCC 33 , [2016] 1 S.C.R. 1000 ¶ 37.
133Conclusions alternative to guilt may be based on inferences drawn from proven facts, but they may also be based on an absence of evidence. See R v. Villaroman, ¶ 30; see also R. v. Williams, 1998 CarswellOnt 2274 (C.A.) ¶ 1 2.
134In this case before me, the Crown is asking the Court to draw inferences that are not the only reasonable ones that could be drawn, as well as inferences from facts that have not been proven.
A. Whether the Crown Has Proven that I. C-F. was at M.M.'s Residence on August 31, 2019
(1) There is Insufficient Evidence Connecting I. C-F to M.M.'s Residence on August 31, 2019
135Again, it was DC Choi who gathered the information used to obtain a search warrant of M.M.'s residence. As I have already said, the Crown did not call either DC Choi to testify, nor anyone from an internet service provider to establish the location from where the videos had been live streamed onto the internet. This evidence was entirely hearsay evidence of DC Durst.
(2) The Police Evidence About the Inside of M.M.'s Residence Was Deficient
136I did hear some evidence of certain police officers describing their observations of the inside of M.M.'s residence on September 1, 2019, when the search warrant was executed. However, that evidence was vague and lacking in detail, and it was mostly elicited in a leading fashion.
137That evidence included that certain police officers held a briefing between 5:25 and 5:40 pm on September 1, 2019, prior to searching M.M.'s home. They then went to set up in the area, beginning at around 6:00 pm. For the next 4 to 4.5 hours, they conducted surveillance, while waiting for the ETF to arrive. The ETF breached the door to M.M.'s residence at about 10:34 pm.
138DC Durst was not present inside M.M.'s residence when the search warrant was executed. He said he was outside in the area. DC Durst testified that a firearm was found inside the residence, but he did not personally see it until later on at the police station.
139DC Durst testified that he went inside M.M.'s residence, after the search warrant had been executed, but only briefly. It was only after the Crown played the live stream videos for DC Durst during his examination-in-chief, that the Crown asked DC Durst if he recognized the location from where the live stream videos had been filmed. DC Durst's evidence was that it "appears to be" [M.M.'s residence]. This evidence was elicited in a leading fashion.
140Elsewhere during his testimony, when describing what he observed during his brief trip into M.M.'s residence, DC Durst testified that the apartment consisted of a "wide open room with tiles" and a bedroom with "laminate flooring". He described the tile as "off white". He testified that the laminate appeared the be the same "floor type" as that which can be seen on the live stream videos. He also said there was a window on the back wall, that appeared to be in the same area as a window on the live stream videos.
141In cross-examination, DC Durst admitted that he did not make notes about going into M.M.'s residence. He testified that he didn't make notes because he "didn't' do anything" and he just went in to see "if it looked like the same place [he] was watching". He did not think that his walking into the residence and then walking out was "relevant".
142PC Estevez also went inside M.M.'s residence that evening. He testified that M.M.'s residence is one in a row of townhouses. Other than his description of M.M.'s residence being in that row of townhouses, the Crown's questioning of PC Estevez about the inside of M.M.'s residence was brief, and was entirely elicited by leading him, too.
143The Crown played only a small portion of one of the live stream videos for PC Estevez. PC Estevez testified it appeared to be the same unit, but his testimony was very brief on this point without much elaboration.
144DC McGrath was the central note taker that day. He testified that the police created an "in and out video" of the search. This video might have provided valuable visual evidence, to which the Court could compare the backdrop scene in DC Durst's recordings of the live stream videos. However, no "in and out video" was tendered by the Crown. DC McGrath did not recall having taken any pictures of the inside of M.M.'s residence that night for that matter, either.
145Some DC Freeman's evidence was directed at identifying the firearm seized on September 1, 2019. DC Freeman was the officer who located the firearm and proved it safe during the search on September 1, 2019. But separately, DC Freeman provided some descriptive evidence of the inside of M.M.'s unit. He explained that upon entering, one must go down a flight of stairs. At the bottom, there is a bedroom and another open area with a kitchen and bathroom, but which is used as a second bedroom. DC Freeman said that he turned to the left and found a black satchel on the bed. When explaining to the Court that it was DC Freeman who had located the firearm, DC McGrath also described the piece of furniture in the "living room area" as a bed.
146At other times during the trial, witnesses described a black futon on DC Durst's recordings of the live stream videos. What the Court can observe on those videos is a piece of furniture (perhaps a bed, or maybe a futon) that is black in colour.
(3) Conclusions About Whether the Court Should Draw an Inference that the Live Stream Videos Were Filmed and Streamed from M.M.'s Residence
147On the one hand, the Crown has proven that I.C-F. and M.M. are friends. The Crown has also proven that I. C-F. was not at home on August 31, 2019, but again the evidence only establishes that he was caught coming home approximately 2 hours and 45 minutes after DC Durst stopped viewing and recording the live stream videos that day. And the Crown has proven that a firearm was seized from M.M.'s residence the next day, on September 1, 2019.
148On the other hand, what the Court has before it as to I. C-F.'s whereabouts on August 31, 2019 is double hearsay (presumably first from the internet service provider, relayed to DC Choi, and then told to the Court via DC Durst). That hearsay concerns the IP address to connect the live stream videos, and therefore I. C-F. to M.M.'s residence on August 31, 2019. Other than that, there are the vague observations of certain police officers about the inside of M.M.'s residence from September 1, 2019. The descriptions, including that M.M.'s residence is a unit in a row of townhouses, with laminate floors, off-white tiles and a window, is by no means unique.
149The hearsay evidence is inadmissible. The Court may not draw inferences from inadmissible hearsay evidence. And the observation evidence is far from conclusive as to the location from where the live stream videos had been filmed. As such, I decline to draw an inference that the videos were filmed and live streamed from M.M.'s residence on August 31, 2019. That the live stream videos must have been filmed there is not the only reasonable inference to be drawn. Nor is that the only reasonable inference to be drawn based on I. C-F. coming home at about 8:35 pm on August 31, 2019, nor because he and M.M. are friends, nor because they are both seen together on DC Durst's recordings of the live stream videos.
150As the Court is not finding that the live stream videos were filmed at M.M.'s residence on August 31, 2019, this is not a piece of circumstantial evidence from which I. C-F.'s guilt in relation to the firearms offences may be inferred.
B. Whether the Court May Nevertheless Infer that the Firearm Seized on September 1, 2019 is One and the Same as the Thing in the Live Stream Videos
151Regardless, it would still be open to the Court to infer that the firearm seized on September 1, 2019 is one and the same thing as what is depicted in DC Durst's recordings of the live stream videos, based on a comparison of the various images of the firearms in question. I am prepared to draw this inference, but only in part. The inference that I will draw does not establish guilt, either.
152Exhibit 3 contains a photograph entitled "SoccoPhoto.firearm". That is a photograph of the firearm that police seized from M.M.'s home on September 1, 2019, and which Mr. Hoffman tested. It is black and beige, with a brown colour on the handle. There is also a device attached to the barrel that appears to be the flashlight.
153The words "Made in Taiwan" and "Made in Germany" can be seen in two different locations on the gun in this photograph. Those markings on the firearm in this photograph are consistent with Mr. Hoffman's description of the firearm that he tested.
154Likewise, DC Durst initially described the handgun he saw on the live stream videos as a "two-tone semi automatic firearm". He testified that it was both black, but also a "lighter colour", and that it had a flashlight attached to it. Later on during his testimony, as he viewed his recordings played back for him during the trial, DC Durst described the gun as "beige and black".
155The Crown placed the "SoccoPhoto.firearm" photograph along side a still shot of the gun on the futon from DC Durst's recordings of August 31, 2019. These items do appear to be very similar. The firearm shown at that point of DC Durst's recordings has unique characteristics (multi colored and a what appears to be flashlight attached to it). For those reasons, I am prepared to infer that the firearm seized on September 1, 2019 is one and the same as the firearm sitting on the futon in DC Durst's recordings of the live stream videos from August 31, 2019.
156However, the Crown did not actually tender any still shot of I. C-F. allegedly holding and pointing a firearm, to use as a comparator to the photograph of the gun that was seized on September 1, 2019. It would have been impossible for the Crown to do this, given the poor quality of that part of DC Durst's recordings and the very brief time that I. C-F. held the firearm. Despite the obvious difficulty to actually see what was in I. C-F.'s hands at time stamp 3 seconds on video clip 1d, DC Durst nevertheless claimed that it was the same gun as that seized on September 1, 2019.
157Again, I have reviewed the videos, as well as the portion of video clip 1d, where it is said that I. C-F. held and pointed a gun, multiple times. Any of my own attempts to stop the video to view a still image of what I. C-F. was holding, only results in the image's further blurring.
158Therefore, in the result, I would not draw the inference that what I. C-F. held is the same firearm based on the evidence before the Court. While it might even be said to be probable that the thing seen in I. C-F.'s hands for 2 seconds on DC Durst's recordings of the live stream videos, is one and the same as the firearm on the futon, and therefore one and the same as the firearm seized on September 1, 2019, I am left with some doubt as to this.
159The Court has concerns about drawing this inference. It may be that I. C-F. was holding the same firearm. But two other reasonable inferences (amongst others) could be that the thing that I. C-F. held was a different firearm, or perhaps not even a firearm at all.
PART VII: CONCLUSIONS RESPECTING THE CHARGES
160Pursuant to section 91 of the Criminal Code, it is an offence to possess a restricted firearm without being the holder of a license under which the person may possess it, and a registration certificate for it. In the context of this charge, the accused has the onus to establish that he is the holder of a license or a registration certificate. See section 117.12 of the Criminal Code. He has not discharged that onus.
161Nevertheless, section 4(3) of the Criminal Code defines what amounts to possession. It reads:
4(3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
162The Supreme Court explained the elements of possession under section 4(3) (a) of the Criminal Code in R. v. Morelli, 2010 SCC 8 ¶ 16, 17. To be in personal possession of something, a person must be aware that he has physical custody of the thing in question, and he must be aware as well of what that thing is. Both elements must co-exist with an act of control.
163Constructive possession is established where the person did not have physical custody of thing in question, but had it in the actual possession or custody of another person, or in any place whether or not that place belongs to or is occupied by him, for the use or benefit of himself or another person.
164Under section 4(3)(b), possession may be deemed to I. C-F. if another of the persons in the videos had the firearm in his or her custody or possession, with I. C-F.'s knowledge and consent.
165In light of my findings above about the thing in I. C-F.'s hands on DC Durst's recordings of the live stream videos, I find that the Crown has failed to prove personal possession within the meaning of section 4(3) (a) of the Criminal Code.
166The Crown argues that I. C-F. had sufficient control over the firearm on the futon. However, the Crown's arguments are based on the Court finding that I. C-F. was actually at M.M.'s residence and had common use of it (something which I do not find), I. C-F.'s proximity to the futon (I cannot determine this based on the brevity of the video), and the fact that I. C-F. was joking around with others. The Crown also argues that at one point during the live stream videos, I. C-F. used his phone, to flash an image of the firearm on the futon, in some sort of threatening manner to someone who was watching the live stream online. None of the witnesses testified as to this, and moreover this is pure conjecture on the part of the Crown. It does not establish control over the firearm.
167There is also insufficient evidence for the Court to infer, with respect to the firearm seen on the futon, that I. C-F. knowingly had it in someone else's possession, or that he kept it at a particular location, for his use or benefit or for that of another person. I would not infer that I. C-F. knowingly had that firearm in M.M.'s possession, or in his residence or in some other location, or in the possession of anyone else in the video for that matter, within the meaning of sections 4(3) (a)(i) or (ii) of the Criminal Code.
168I heard of no evidence during this trial, despite his two arrests on August 31, 2019 and September 2, 2019, and the execution of the search warrant at his residence on September 2, 2019, to otherwise connect I. C-F. to that firearm on the futon. Nothing was located, including even on his cell phone, that would suggest this alternative kind of possession.
169Likewise, I note that there were three others present when the videos were live streamed, including an unknown male and a female. An alternative inference might be that one of the others possessed that firearm, apart from I. C-F. Similarly, there is insufficient evidence for the Court to infer joint possession within the meaning of section 4(3) (b) of the Criminal Code.
170As a result, the Crown has not proven this charge beyond a reasonable doubt. I find I. C-F. not guilty of the charge based on section 91 of the Criminal Code.
171Neither side made submissions as to the other elements of the offences in sections 86 and 88 of the Criminal Code. In light of the Court's findings respecting possession, I need not address the elements of these offences any further.
172I thank counsel for their assistance with this matter.
Released: November 16, 2020
Signed: Justice Alex Finlayson