Ontario Court of Justice

Court File No.: 12-10012237

Between: Her Majesty the Queen — and — Tevin Campbell

Before: Justice Leslie Chapin

Heard on: February 5, 2014

Reasons for Judgment released on: February 18, 2014

Counsel:

• A. Shachter, Counsel for the Crown
• B. Irvine, Counsel for the defendant Tevin Campbell

CHAPIN J.:

Facts

[1] Mr. Campbell is charged with possession of less than thirty grams of marihuana on September 27, 2012 in the holding cells of the Etobicoke Courthouse located at 2201 Finch Avenue West in the City of Toronto. The trial was very brief. The Crown called one witness and introduced a DVD of an individual who is alleged to have thrown two socks down a hallway between a number of holding cells. One of the socks contained marihuana and the other sock was not recovered. The only issue is identification. I acquitted Mr. Campbell after the trial and advised counsel that I would provide brief written reasons. These are the reasons.

Evidence

Court Officer Diana Salvatore

[2] Officer Salvatore testified that on September of 2012 she was working as a court officer in the cells of the Etobicoke courthouse located at 2201 Finch Avenue West. Her duties varied from week to week and on that day she was assigned to cell duties in zone 4 of the holding cells. She explained that prisoners are brought to the courthouse each day for their court appearances and are lodged in holding cells until they are required to attend in court.

[3] Each morning court wagons deliver prisoners from various jails or police divisions. The prisoners are brought into a search room in the courthouse where they are searched for weapons and contraband. The search is what she called a "level 2" search which is a pat-down search, not a "level 3" search or "strip-search" which requires prisoners to remove clothing in order for officers to thoroughly check their clothing and body cavities for weapons and contraband. Once a prisoner is searched the court officer calls the cell manager and a cell is assigned for that individual. The prisoner is then escorted to their cell.

[4] On September 27, 2012 Officer Salvatore was walking down the hallway escorting a prisoner to an interview room to see legal counsel with a fellow Officer when she observed a black sock on the floor of the hallway. She pushed the sock with her foot towards a wall away from the cells. A short time later she and her fellow Officer were escorting another prisoner back from an interview room who tried to kick the same black sock backwards to a cell where prisoners were lodged. Officer Salvatore pushed the sock into an empty cell just beyond the bars as she wanted to make sure that the prisoners did not have access to it.

[5] Officer Salvatore was not particularly concerned about the sock when she first came upon it but when the prisoner tried to kick it back she was suspicious that it may contain contraband. Officer Salvatore escorted the prisoner to his cell and then advised her supervisor about the sock and retrieved it from the cell she had kicked it into and brought it to the search room. When she opened the sock, which had been knotted at the top, she found a latex glove that contained some saran wrap which contained what she believed to be marihuana because of the strong odour which was coming from it. The substance in the sock was eventually tested and was in fact marihuana. Officer Salvatore was not sure where the sock had come from so she watched the video from the security cameras in that area.

[6] Upon viewing the video she was able to determine that the sock she searched had come from cell number 2-27. Officer Salvatore was advised by someone, she did not recall who, that cell number 2-27 was occupied by an individual by the name of Tevin Campbell. She was also able to observe that the individual in cell 2-27 had thrown another sock prior to throwing the sock she had placed in cell 2-28. Officer Salvatore was instructed to go search cell number 2-27 once the individual was removed from the cell. She did search the cell but did not find anything else. The first sock thrown from the cell was never recovered.

[7] The video footage from the security cameras was played in court and did show that the individual in cell 2-27 got down on the floor in order to put his hand under the plexiglass barrier which stopped a few inches short of the floor. The video shows the individual putting his hand under the plexiglass and into the hall and then forcefully slide the sock down the hall.

[8] The Crown introduced a DVD into evidence as well as some black and white photocopies of stills of the individual in cell 2-27 while he was being removed from the cell. There was no audio in the footage and the cameras must have been placed fairly high up on the walls or from the ceiling. The footage showing the person in cell 2-27 was not particularly clear as the bars of the cell obscured his face while he was in the cell. In addition to this, the individual was wearing what is commonly referred to as a "hoodie" and pulled up the hood before he was brought out of the cell. The hood blocked part of this individual's face as a result.

[9] I had the opportunity to look carefully at the stills as well as the video footage and to compare those images to Mr. Campbell who was sitting in the prisoner's dock. Although Mr. Campbell was wearing glasses in the prisoner's dock he did take them off for me as the person in the video footage was not wearing glasses.

The Law

[10] The law is clear that a trier of fact is entitled to look at a video of an accused person recorded by a security camera during an offence and make a comparison of the person shown in the video to the accused in the prisoner's box in order to establish identification. See R. v. Nikolovski, [1996] 3 S.C.R. 1197 (S.C.C.) paras. 22-23.

[11] However, prior to using a video to establish identity the trier of fact must ensure that the video has not been altered or changed, that it depicts the crime. The trier of fact must also ensure that there is high degree of clarity and quality and, to a lesser extent, show the perpetrator for a sufficient period of time in order to make the identification beyond a reasonable doubt. Nikolovski par. 28–32.

[12] As I indicated earlier I found that the stills and the frames of the videotape were not of sufficient quality to allow me to identify Mr. Campbell as the individual shown in cell 2-27 of the security footage. The two frames which show footage from two different cameras on the DVD are quite small, 3 ½ inches. If one clicks on the frames they get larger; however, the clarity is lost. One cannot see the face of the individual clearly at all from the video from camera 58. The footage from camera 60 gives you a better look at the individual; however, the hood of the individual's jacket obscures a large portion of the forehead and the right side of the face. In addition to this it appears that the individual is looking down which makes identification even more difficult. Although I am suspicious, in the absence of any other evidence of identification, I cannot say that I am satisfied beyond a reasonable doubt that Mr. Campbell is the person in the video and he is acquitted of this charge.

Released: February 18, 2014

Signed: Justice Leslie Chapin