Court File and Parties

Court File No.: CR-18-30000130-0000 Date: 2019-01-16 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Simeon Harty

Counsel: Julie Battersby and Craig Coughlan, for the Crown B. Craig Bottomley and Andrea VanderHeyden, for Simeon Harty

Heard: January 14, 2019

By virtue of s. 648(1) and s. 645(5) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict.

M. Dambrot J.:

[1] This ruling concerns an application by the Crown for an order that two police officers be permitted to give non-expert opinion evidence about the identity of a person seen in a surveillance video (a “Leaney application”).

Background

[2] Simeon Harty is being tried by me with a jury on an indictment alleging that he committed the first degree murder of Kevin Gidden and that he attempted to murder Kemar McFarlane by discharging a firearm.

[3] The pertinent allegations can be briefly stated. On October 27, 2016, McFarlane drove to a gas station at Lawrence Avenue East and Orten Park Road in Toronto, walked into a convenience store attached to the gas station and purchased some snack items. While in the store, two men entered. The Crown alleges that one of these men was Harty.

[4] The gas station was equipped with video surveillance cameras. The presence of the three men in the convenience store was captured by one of the cameras. The video is in colour, is of high quality, and captures significant detail of the persons depicted, including movement, posture, complexion, clothing and facial features.

[5] All three men left the store at about the same time. McFarlane got into his car and left the station with Gidden in the front passenger seat. The Crown alleges that Harty got into the driver’s seat of a car that was registered in his name, and drove away with the second man who had been with him in the store seated in the front passenger seat.

[6] McFarlane drove eastbound on Lawrence Avenue East, and stopped at a stoplight at Overture Road. While he was stopped, Harty’s vehicle pulled up on the passenger side of MacFarlane’s vehicle, and the driver pointed a gun and fired it several times. Gidden was shot and killed. McFarlane drove away, uninjured.

[7] Harty turned himself in to the police on November 1, 2016. His clothing was seized, including running shoes that appear to have the same patterning as the running shoes worn by the man in the video that is alleged to be him.

The Application

[8] Despite the high quality of the video, it is not inevitable that the jury will conclude that the accused is the man in the video. I say this because, assuming that the man is Harty, his appearance has changed in the two odd years that have passed since the shooting. The man in the video is heavier than the accused, has a different hair style than the accused, and has less facial hair than the accused.

[9] In an effort to show that the man in the video and the accused are one and the same, the Crown will rely on items of circumstantial evidence such as the registration of the car in Harty’s name and the similarity of the running shoes, as well as the appearance of the accused in photographs taken at the time of his arrest. The Crown also applies to be permitted to adduce the evidence of two police officers, Detective Constable Essert and Detective Constable Ruhl, each of whom will say that the person in question in the video is in fact Harty, based on their prior interactions with him. The defence resists this application.

The Proposed Witnesses

Detective Constable Essert

[10] Essert is currently a member of the 43 Division Major Crimes Unit in the Toronto Police Service. In 2015, Essert worked in the 43 Division Neighbourhood Safety Unit. One of his duties was to conduct bail compliance checks. On August 6, 2015, he was tasked with conducting such a check on Harty. In preparation for the check, he reviewed coloured photographs and written physical descriptions of Harty from police files. At 7:23 p.m., he and his partner attended at Harty’s address. He met with Harty, stood at a distance of approximately four feet from him, and explained the reason for his visit. Essert made detailed observations of Harty, including his skin colour, complexion, facial hair, tattoos, clothing, his posture, and a particular head tilt. The interaction lasted about five minutes. Essert conducted a second, briefer check on Harty on August 20, 2015.

[11] On October 27, 2016, Essert, now in the Major Crimes Unit, was advised by Detective Parrott, the Criminal Investigative Bureau (“CIB”) officer who was in charge of this case at the time, that the registered owner of the vehicle driven by the shooter was Simeon Harty. When given this name, Essert recalled his dealings with Harty in the past. On the instructions of Parrott, Essert prepared a photo lineup to be shown to McFarlane that included a photograph of Harty. Essert then viewed the surveillance video from the gas station. It was his opinion that Harty was one of the men in the convenience store. He recognized, in particular, his hairstyle, his head tilt and his ear piercings.

Detective Constable Ruhl

[12] Ruhl is currently a member of the Homicide Squad of the Toronto Police Service. On January 18, 2018, he was asked by Detective Sergeant Giroux, the officer now in charge of this investigation, to review the surveillance video from the gas station. He was unable to identify anyone in the video of the exterior of the gas station, but he did identify one of the persons inside the convenience store as Harty. Prior to doing so, he had no involvement in this investigation and no information about what or whom it pertained to. He recognized the face, hair line and head tilt of the person he said was Harty from his observations of him on October 8, 2016, during the course of an unrelated robbery investigation. Ruhl had been the case manager of the robbery investigation while he was a CIB detective at 43 Division. Ruhl spoke to Harty in an interview room at 43 Division from a distance of four to five feet for about eight minutes. Ruhl identified a photograph of Harty that he said depicted Harty as he looked in October 2016.

[13] Ruhl testified that Harty’s appearance has now changed in several ways: he has changed his hair style and now wears his hair in corn rows; he has lost weight; he now wears glasses; and he has a heavier beard.

The Law

[14] Non-expert opinion evidence as to recognition or identification of an accused person from a video is admissible provided that the proposed witness has a prior acquaintance with the accused, such that the witness is sufficiently familiar with the accused to have some basis for the opinion. The witness must also be in a better position than the trier of fact to make the identification. (R. v. Leaney, [1989] 2 S.C.R. 393; R. v. Behre, 2012 ONCA 716, 113 O.R. (3d) 137)

[15] A witness is in a better position than the trier of fact if the proposed witness has some advantage over the trier of fact that can shed some light on the evidence, including considerations such as having seen the accused closer in time to the date of the offence, the accused having changed his appearance since the date of the offence, the witness having seen the accused up close and the witness having had the opportunity to engage with the accused. (R. v. Behre, 2012 ONCA 716, 113 O.R. (3d) 137; R. v. Brown, [2006] O.J. No. 5077 (C.A.); R. v. Gouveia, [2013] O.J. No. 3373 (S.C.J.))

Analysis

[16] In my view, each of the proposed witnesses easily meets the threshold test for giving non-expert opinion evidence of the sort at issue here. Each has a prior acquaintance with Harty that makes him sufficiently familiar to provide some basis for his opinion. Each witness also has all four of the advantages over the jurors that I have listed, putting both of them in a position to shed some light on the issue for the jury.

[17] Undoubtedly there are considerations in each case that might have significance to the trier of fact’s assessment of the weight of the evidence. For example, in the case of Essert, he knew who the suspect was before he saw the video. In both cases, the jury might not be impressed with the significance of a head tilt. The accused also raises concerns about shortcomings in the note-taking and errors of memory on the part of the two witnesses. While these considerations are proper matters for the jury going to weight, they do not so undermine the evidence of Essert or Ruhl as to make it inadmissible.

Disposition

[18] The evidence of both witnesses is admissible. Although the response of the accused did not raise this issue, I recognize that there is a risk that evidence of the accused’s prior police contact could have a prejudicial effect on him. I will ask counsel to consider if the evidence can be led in a manner that would minimize this risk. If they are unable to agree on how this might be done, then of course they may raise the issue with me.

M. DAMBROT J.

RELEASED: January 16, 2019