Court of Appeal for Ontario

COURT OF APPEAL FOR ONTARIO DATE: 20200211 DOCKET: C64187

Rouleau, Benotto and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Wariskhan Pathan Appellant

Counsel: Breana Vandebeek, Mark Halfyard, for the appellant Lisa Joyal, for the respondent

Heard and released orally: February 6, 2020

On appeal from the conviction entered on May 29, 2014 and the sentence imposed on July 29, 2014 by Justice W. Brian Trafford of the Superior Court of Justice.

Reasons for Decision

[1] The deceased was shot and killed in the lobby of an apartment building. Security cameras captured the following events. The appellant and the co-accused Patel entered the outer lobby of the main entrance of the building. Patel pulled on a locked door to the entrance of the inner lobby, but it did not open.

[2] The deceased walked through the inner lobby towards the locked door, let Patel in but closed it before the appellant could enter. Patel and the deceased had an altercation and struggled for what appeared to be Patel’s gun. The appellant, still in the outer lobby took out a firearm. Patel opened the glass door to the outer lobby and the appellant shot through the glass door. The deceased fell to the ground and the appellant and Patel fled through the front door.

[3] The appellant was convicted of second-degree murder and Patel was acquitted. The appellant submits that the trial judge erred by allowing, at the request of Patel, expert evidence about what happened on the security video. Patel sought to rely on this evidence to support his position that he did not fire a weapon. The appellant took the position that the expert evidence undermined his claim of self-defence, lack of mens rea and his claim that Patel had an operational firearm.

[4] The parties agreed that there were defects in the video that required expert testimony, in particular, motion blur, pixilation and data-compression. However, the appellant submits that the trial judge allowed the testimony to go beyond permissible opinion evidence because the expert testified in a narrative fashion about what he saw in the video. The expert opined as to the direction of the apparent gun that Patel was holding, who was firing and the number of shots that were fired. It is submitted that this testimony usurped the function of the jury. We do not agree.

[5] The trial judge had ruled that the expert could testify as to the area within his expertise. The trial judge recognized that it would be difficult for the expert to limit his testimony to the defects in the video without providing some narration that would have been within the jury’s ability to assess.

[6] In our view, the trial judge correctly exercised his gatekeeper function at the time of the ruling and throughout the evidence. We do not agree that the expert testimony went beyond the trial judge’s ruling. In any event if there had been extra-narrative, the trial judge gave three separate cautions to the jury. Prior to the evidence being given, the trial judge instructed the jury that it was up to the jury to interpret the video and that the jury should assess the expert’s credibility and reliability as it would assess the evidence of any other witness.

[7] During the cross-examination of the expert, the trial judge gave another caution and told the jury that the expert was not “here to tell us everything that he sees on the tape”, but rather, the expert was there to help the jury interpret certain aspects of the video that are hidden to the lay mind.

[8] Finally, the trial judge gave specific instructions in his final charge to the jury. He reminded the jury that it was the jury’s responsibility to interpret the video and the jury was to interpret it themselves. In particular, he said: “We do not need [the expert’s] help in the interpretation of much of the video, do not be affected by those parts of the opinion, interpret them on your own as you see fit in the context of the evidence as a whole.”

[9] In our view, the trial judge’s three separate instructions to the jury addressed the issues raised by the appellant.

[10] With respect to the prejudice alleged, we note that the trial judge was alive to the potential prejudicial impact of the evidence. We defer to the exercise of his discretion in the weighing of the probative value and prejudicial impact of the evidence.

[11] Given the careful ruling of the trial judge and the cautions in his charge to the jury, we do not accept the appellant’s position that the jury would have been overwhelmed by the expert testimony.

[12] For these reasons the appeal is dismissed.

“Paul Rouleau J.A.” “M.L. Benotto J.A.” “A. Harvison Young J.A.”