Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — John W. Morrison

Before: Justice C. Kehoe

Decision released: August 8, 2014

Counsel:

• Mr. G. Cipriano for the Defence
• Ms. L. Bramwell for the Crown

KEHOE, J.

Ruling re Admissibility of Mr. Russell Crawford's Video Demonstration Evidence

Decision Re Admissibility of Video Demonstration Evidence

[1] Mr. Cipriano made an application to have evidence of a video-taped demonstration conducted by Russell Crawford, a private investigator, at the request and in the presence of Mr. Cipriano and an assistant from Mr. Cipriano's law firm, Ben Tate on August 1, 2014 at 01:29 p.m. in the parking garage of the law firm's office.

[2] Ms. Bramwell, on behalf of the Crown, opposed the application on the basis that the demonstration, that was disclosed, in the form of a mal-functioning video, to the Crown late on August 6, 2014, was not relevant based on the information provided in Mr. Cipriano's submissions on August 7, 2014.

[3] Mr. Cipriano indicated to the Court that Mr. Crawford would testify that he conducted a demonstration with a cribbage board. The video would show Mr. Crawford hitting a brand new cribbage board, unrelated to the proceedings, against a cement pillar in the parking garage at increasing intensity. Mr. Cipriano maintains that the experiment is relevant as it demonstrates how hard one would have to hit the board for it to break.

[4] Ms. Bramwell submits that because of the differences in the video and the facts in the case, that the video-taped demonstration is not relevant, and has no probative value. Ms. Bramwell submits that the prejudice, even though there is no jury in this case, outweighs any probative value that the evidence might have.

[5] The Court ruled that in order to assess the prejudice and/or probative value, the Court had to see the evidence.

[6] Mr. Crawford testified that on August 1, 2014 he conducted the demonstration, and that Mr. Ben Tate and Mr. Cipriano were present in the parking garage of Mr. Cipriano's law firm. Mr. Crawford testified that he was provided with a new cribbage board by Mr. Cipriano, and he struck the board on a corner of the garage (pillar) that was rounded, 13 times with increasing intensity.

[7] Mr. Crawford testified concerning Exhibit 1 on the voir dire, a cribbage board, "it appears to be the board I used". He identified a lengthwise crack in the centre of Exhibit 1 stating that there were no cracks in the board when he received it. Mr. Crawford testified that the crack was caused by striking the cribbage board against the wall (pillar).

[8] In cross-examination, Mr. Crawford identified the piece that flew off in the video as the plastic piece on the back of the board that holds the pegs inside the board. He testified that it was taped back onto the board.

[9] The video shows Mr. Crawford hitting a cribbage board on a pillar in the garage. The pillar is square, with blunt or semi-rounded corners at the point at which Mr. Crawford strikes it with the board.

[10] Mr. Crawford strikes the pillar with the board about 10 times with some increase to the force used and stops; indicating that the striking is hurting his hand. He hits the board against the pillar 3 additional times, and stops, indicating again that it is hurting his hand. Mr. Crawford indicated that he is speaking to Mr. Cipriano when he is speaking in the video.

[11] Ms. Bramwell submits that the evidence should not be admitted for the reasons outlined above. Ms. Bramwell refers to R. v. MacDonald, [2000] O.J. No. 2606 (ONCA), at para. 47 and submits that the Morrison case is analogous.

[12] Para. 47 states:

"These inaccuracies distort the reality of the takedown. The jurors were given a powerful and misleading image of what occurred, which could only have undermined their ability to fairly determine the crucial fact in the case, whether MacDonald could see that those who surrounded his car were police officers. Moreover, the video-enactment was superfluous. The jury heard ample evidence from the Crown and defence about what happened during the takedown. They were also given maps and diagrams of the scene. Overall, in our view, the video re-enactment had little or no probative value."

[13] In R. v. MacDonald police videotaped a re-enactment of the takedown, however, shot the video at a different time of day and year, at a different location, (a deserted sand quarry as opposed to city intersection), at a different speed, and used a different vehicle. (Para. 39, R. v. Walizadah, [2007] O.J. No. 2721 (ONCA)).

[14] Ms. Bramwell submits that the issue in this case is whether the accused assaulted Taylor, his daughter, with a weapon. Ms. Bramwell submits that a person delivering blows to an unrelated object is not relevant. Ms. Bramwell submits that the evidence in this case is that the cribbage board was older, approximately 18 years by Mr. Morrison's evidence, and had a crack in the board.

[15] Ms. Bramwell submits that the video experiment is highly inaccurate when compared to the facts in the Morrison case.

[16] Ms. Bramwell refers to para. 48 of the MacDonald case:

"48 In contrast, the video was highly prejudicial. The trial judge dismissed the claim of prejudice by stating that the video re-enactment 'is not more prejudicial than oral testimony'. This is surely wrong. All of the authorities say the opposite. The video permitted the prosecution to put before the jury its own version of what occurred, distilled into a neatly packaged, compressed, and easily assimilated sight and sound bite. The violent, visual, highly impressionistic imagery gave the Crown an unfair advantage in this trial. Courts must be sensitive to how a video re-enactment that depicts only the Crown's version of disputed facts may distort the jury's decision-making and thus prejudice an accused's right to a fair trial."

[17] Ms. Bramwell relies on R. v. Collins, [2001] O.J. No. 3894 (ONCA) at para. 22:

"22 In most cases, the relevance of the experiment evidence will depend on the degree of similarity between the replication and the original event. Consider the example given earlier where the experiment consists of the driving along a particular stretch of road to determine at what point a stop sign becomes visible. If the distance at which the stop sign becomes visible is an issue at trial, the experiment evidence will be material, but will only be relevant if the replication bears some similarity to the original event. For example, if the original event occurred in the summer when vegetation partly obstructed the driver's view but the experiment was conducted in the winter after all the leaves had fallen, the relevance of the evidence will be greatly diminished. Depending on all the circumstances, it may not be worth receiving. Similarly, if the experiment evidence includes expert opinion evidence, variances between the replication and the original event, depending on their degree and importance, will affect the weight that can be given to the expert evidence opinion."

[18] Ms. Bramwell submits that the replication in this case is so far from the facts described by the witness that it is not relevant.

[19] Ms. Bramwell relies on R. v. Nikitin, [2003] O.J. No. 2505 (ONCA) at para. 16, where the Court of Appeal confirms Charron J.A.'s reasoning in R. v. Collins, supra, "that experiment evidence should generally be admitted, subject to a residuary discretion to exclude it if the prejudice that would flow from its admission clearly outweighs its value."

[20] In R. v. Nikitin, the Court of Appeal found, at para. 11:

"11 Turning to Nikitin's second submission, I begin with the observation that the words re-enactment and experiment are both apt descriptors of the police evidence. Re-enactment is accurate because the police sought to replicate the conditions (location, vehicles, time of day, weather and some, but not all, of the relevant events (driving until the bus was seen, but not to the point of impact). Experiment is also accurate because the purpose of the partial re-enactment was to identify the potential point of first perception of the school bus by a driver."

[21] Ms. Bramwell relies on R. v. Walizadah, [2007] O.J. No. 2721 (ONCA) at paras. 47 and 51:

"47 The overriding principle from both MacDonald and Collins is that, as with all evidence, re-enactment and experiment evidence should not be admissible where the prejudicial effect outweighs its probative value. While the parties referred the trial judge to these cases in their submissions, the trial judge did not expressly advert to this balancing process in his brief rulings on the admissibility of the videos in this case…"

"51 In sum, it is my view that the trial judge did not err in admitting the two video re-enactments. While there were some differences between the original surveillance video and the re-enactments, the differences were not so great so as to deprive the evidence of its probative value. The appellant has not established that the prejudicial effect of the evidence outweighed its probative value."

[22] Ms. Bramwell submits that the differences between the facts described by the witness and what is portrayed in the video, in this case, are too large to make the video relevant or probative. Ms. Bramwell submits that the prejudice outweighs the probative value.

[23] Mr. Cipriano submits that the evidence of Taylor Morrison is contained at page 11 of the transcript of her video-statement, that she was hit once with the cribbage board and it snapped.

[24] Mr. Cipriano submits that he could not recreate the exact scenario because hitting another person would be a criminal offence. He submits that the video demonstration shows the board being hit on something much stronger than a human, and being hit so many times that Mr. Crawford's hand hurt.

[25] Mr. Cipriano submits that the demonstration is relevant because it shows how hard one would have to hit the board before it broke. He submits that the issue in this case is whether the assault happened at all, and the video is relevant because it has crossed everyone's mind as to how hard one would have to be hit with such a board before it breaks, and that Ms. Morrison described it as breaking along its width and not its length.

[26] Mr. Cipriano submits that the Court can compare the two boards, the one Mr. Morrison testified had been in the house all along (18 years) and the board in the video (Exhibit 1 on the Voir Dire). Mr. Cipriano submits that there are differences, in that the board admitted at trial is older.

[27] Mr. Cipriano submits that the video puts the allegations in context, and that the risks are minimal because there is no jury.

[28] I have read and considered the cases and counsels' submissions.

[29] I find that the evidence is inadmissible for the following reasons:

1) The video demonstration does not in any way reflect the facts as described by any of the witnesses; i.e. Ms. Morrison described a crib board that broke in two when she was hit on the back with it. Ms. Morrison was shown the trial exhibit board and testified that it was not the board that her father used to hit her with but that it was another board brought into the house by her father after the incident. The trial exhibit board is obviously different from the brand new cribbage board used in the demonstration.

2) Mr. Cipriano agreed that the only relevance of the video demonstration is that the Court could draw conclusions about how hard one would have to hit Exhibit 1 to break it, and that it does not resolve the ultimate issue of whether Ms. Morrison was hit or not.

3) Ms. Morrison's evidence is that she was not hit either with the trial Exhibit board or the video demonstration board. Ms. Morrison's evidence is much more extensive than what is contained at page 11 of her video statement transcript. Ms. Morrison's evidence is that she was hit with another crib board entirely, that the board she was hit with broke into two pieces, and that her father brought another similar crib board into the house after the incident. Ms. Morrison testified that the board she was hit with broke in two on the width, although it is unclear whether Ms. Morrison really understood the difference between the width and length when her evidence is reviewed.

4) There is no evidence, other than being wooden, as to the constitution of the various boards, i.e. a solid piece of a certain kind of wood, soft versus hard wood, whether a laminate with glued layers, all of which could make a difference. The Court cannot speculate on those issues.

5) As stated in R. v. Walizadah, supra, at para. 38:

"The test for the admissibility of video re-enactment evidence is set out by this court in R. v. MacDonald (2000), 146 C.C.C.(3d) 525, at para. 42:

'In our view, the preferable approach recognizes the dangers of video re-enactments but adopts a case-by-case analysis. As with the admissibility of other kinds of evidence, the overriding principle should be whether the prejudicial effect of the video re-enactment outweighs its probative value. If it does, the video re-enactment should not be admitted. In balancing the prejudicial and probative value of a video re-enactment, trial judges should at least consider the video's relevance, its accuracy, its fairness, and whether what it portrays can be verified under oath. [Citation omitted]. Other considerations may be material depending on the case. And as with rulings on admissibility of other kinds of evidence, the trial judge's decision to admit or exclude a video re-enactment is entitle to deference on appeal.'"

[30] As in R. v. MacDonald, where the Court of Appeal found that the trial judge erred in admitting the video re-enactment, first, because the video lacked probative value due to its many inaccuracies…second because the video was highly prejudicial because it portrayed only the police officer's version of events…and could distort the jury's decision-making and thus prejudice an accused's right to a fair trial, the video demonstration in this case is not a re-enactment of any version of the facts disputed or otherwise. The materials used in the demonstration are unrelated to the evidence heard at trial and there are differences, whether they are inaccuracies or not is unknown, which makes the relevance questionable and diminishes the probative value. The demonstration is highly prejudicial because without any evidence as to the differences and limitations of the materials and condition etc., it raises a speculative possibility that Ms. Morrison's evidence could not be true.

[31] Therefore the video demonstration and the evidence of Mr. Crawford is not admissible for all the reasons stated, and because the prejudice outweighs the probative value of the evidence.

Released: August 8, 2014

The Honourable Justice C. Kehoe