Court File and Parties
Ontario Court of Justice
Date: 2015-10-22
Court File No.: Halton 14-3721
Between:
Her Majesty the Queen
— AND —
Abel Abdo, Andrew Dwayne Brown and Marque Bryce Swaby
Before: Justice L.M. Baldwin
Heard on: July 16 and 17, 2015, September 16, 2015 and October 8, 2015
Reasons for Judgment released on: October 22, 2015
Counsel
Arish Khoorshed — counsel for the Crown
Jesse Razaqpur — counsel for the Respondent Abel Abdo
Talman Rodocker — counsel for the Respondent Andrew Brown
Corbin Cawkell — counsel for the Respondent Marque Bryce Swaby
BALDWIN J.:
Charges
[1] Mr. Abdo, Mr. Brown and Mr. Swaby are charged that on or about the 19th day of November, 2014, at the Town of Milton they did, in committing an assault upon a person known as Siphay Khansaiyasith, cause bodily harm to him contrary to section 267(b) of the Criminal Code.
[2] The four above-named persons were inmates at the Maplehurst Correctional Centre on November 19th, 2014.
Voir Dire Ruling on the Admissibility of Video-taped Evidence
[3] The Applicant Crown seeks to tender at trial video-taped evidence of Unit 8C where this assault occurred. They have advanced a "Leaney Application", [1989] S.C.J. No. 90.
[4] The Respondents take the position that the proposed evidence does not meet the test for a Leaney Application and it should not be admitted. The Respondents all take the position that the identification evidence of Correctional Officer Archer should be excluded entirely from the trial proper.
Leaney Applications
[5] In R. v. Leaney, the Supreme Court stated that, where the Crown wishes to call a witness to help identify an accused from photo or video evidence, a voir dire must be held to determine whether the witness is in any better position than the trial judge to make that determination.
[6] In the Leaney case, 5 police officers testified that they could identify Leaney as one of the perpetrators on a crime scene video tape. Four of the five officers had no prior familiarity with the accused Leaney, and the Supreme Court held that their testimony should have been inadmissible. The fifth officer had prior knowledge of Leaney and his evidence was admissible evidence of identification.
[7] The Ontario Court of Appeal has clarified the test on this type of voir dire in R. v. Brown, [2006] O.J. No. 5077 and R. v. Berhe, [2012] O. J. No. 5029.
[8] In Berhe, supra, the OCA set out the test at paragraphs 13 and 14 as follows:
It has long been accepted that non-expert, lay opinion to the effect that the witness recognizes the image of a person seen in a photograph or on videotape, based on a prior connection with that person, may be admissible in certain circumstances. This appeal is about the contours of the test for admissibility of that type of evidence.
[9] In R. v. Brown, supra, at paragraph 39, Rosenberg J.A. stated succinctly that "this type of non-expert opinion evidence is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator." Rosenberg J.A. relied on the decision of the Supreme Court of Canada in R. v. Leaney, supra, for that proposition, which I would characterize as the 'prior acquaintance/better position' test.
[10] At paragraph 20 in Berhe, the Ontario Court of Appeal stated that the test was a flexible one and that a voir dire was necessary for the court to perform its gate-keeping function for purposes of determining threshold admissibility.
At the voir dire, the judge may or may not conclude that the potential witness is sufficiently familiar with the person whose identity is in question to be in a better position than the trier of fact to assist in making the identification. What weight is to be given to the evidence ultimately is a different consideration.
[11] At paragraph 21 the Court stated:
The 'prior acquaintance' branch of the Leaney/Brown test enables the trial judge, on a voir dire, to sort out whether the potential witness is sufficiently familiar with the person sought to be identified to have 'some basis' for the opinion – or, 'an articulated basis,' as some have said – and the 'better position' branch ensures that the evidence will only be admitted if it is helpful to the trier to fact because the potential witness has some advantage that can shed light on the evidence in question.
[12] I note that in R. v. Brown, supra, the trial Court had admitted the poor quality surveillance tape evidence of the robberies and murder at the Just Desserts café in 1994. The Court admitted the recognition witness evidence of the appellant's aunt who had known him for years and his partner who had known him for some time. The recognition witnesses were familiar with the appellant's appearance at the times close to the robbery. These witnesses explained why they recognized the appellant as the man in the videotape. The jury was thus in a position to evaluate the probative value of their evidence.
Evidence on this Voir Dire
[13] Correctional Officer Mark Archer testified that he has worked in the field for 18 years and at Maplehurst Correctional Centre for 4 years.
[14] He was on duty and working in the 8C Unit/Wing when this incident occurred.
[15] This Unit holds up to 32 inmates. There are 16 cells in the Unit and 2 inmates only per cell.
[16] Officer Archer testified that there are never more than 2 inmates assigned to a cell in this Unit.
[17] He did not know how many inmates were assigned to Unit 8C on the day in question.
[18] Correctional Officer Stockfish, the module officer who was observing Unit 8C that day, radioed him and advised of this assault incident. (Officer Stockfish testified that he saw an unidentified inmate stomping his foot on the ground, and then saw another inmate not moving on the floor at approximately 5:47 pm. He was in the glassed-in secure raised platform working as the module officer. His job included opening the doors to the cells and the Unit.)
[19] Officer Archer testified that he ran from the desk area and was the first Correctional staff to enter 8C.
[20] He saw the victim inmate on the floor on his back and saw the bleeding from his head. (Exhibits 1(a) through (d) depict the condition of the victim.)
[21] Officer Archer testified that he immediately went to the video room and reviewed the surveillance tape of Unit 8C.
[22] He is familiar with all 3 of the accused because of his employment at Maplehurst. He identified all of the accused in-dock.
[23] He has known Mr. Brown for a year or two. When Mr. Brown was on a Unit he was assigned to, he would see Mr. Brown daily.
[24] He has known Mr. Swaby for between three to five months and would see him regularly (for a minute or two daily) when he was working on the same Unit.
[25] He remembers seeing Mr. Abdo, but could not say how long he had been an inmate at the time of the incident.
[26] Mr. Archer would be inside Unit 8C six times a day to let the inmates in and out of their cells, which happened 3 times a day.
[27] Mr. Archer identified the "Historical Unit Assignment" Record (from 'OTIS' – the Offender Tracking Information System) showing the inmates that were housed in Unit/Range 8C in Maplehurst on November 19, 2014. This Record also shows which cell each inmate was assigned to. (This Record was admitted as a Business Record pursuant to S. 30 of the CEA and marked as Exhibit #2.)
[28] Exhibit #2 records that Andrew Brown was assigned to Unit 8C, cell 14 (A); Abel Abdo was assigned to Unit 8C, cell 13 (B); Marque Swaby was assigned to 8C, cell 13 (A).
[29] Mr. Archer testified that this Record is accurate and is prepared every night by night shift staff at approximately midnight.
The Videotape
[30] Mr. Archer testified that there is video surveillance in each Unit.
[31] On the video captured of this incident, there is an area not captured by the camera on the bottom right-hand corner where the pencil sharpener is located.
[32] This is the area where the victim was assaulted.
[33] On the video one can see four inmates (all in orange jumpsuits) approaching this area and swinging and kicking at the victim who is off-screen.
[34] You cannot see the faces of the four men on the video (because it is blurry and of poor quality).
[35] Mr. Archer testified that he could not determine who the parties responsible for the assault were by simply looking at the video.
[36] When he first started watching the video it "looked from the size of inmate Brown and the way he was walking – that is his strut, if you want to call it that – it did look like inmate Brown. To make a positive ID of all the inmates that were involved we had to use the cursor on the screen in the video room to follow them up to their cells." (Transcript Sept. 16/15 p. 18)
[37] Officer Archer also testified that when he first saw the video he thought one of the assailants looked like inmate Brown based on "his walk and the size of his frame on the screen, and then (he) used the cursor to follow him up to his cell." (p. 20)
[38] In the video-room, when viewing the tape right after the assault, Officer Archer testified that he used a cursor to track the movements of the 4 men involved in the assault as they returned to their cell. He did this four times, tracking each man back to their assigned cell. The three accused before the Court were tracked back to their assigned cells. (The 4th man, Anthony McLean – cell 14 (B), has completed his matter before the court.)
[39] Using the cursor he tracked Brown back to cell 14, and Abdo and Swaby back to cell 13.
[40] Mr. Archer testified that the 3 accused look the same today as they did at the time with the exception that their hair may be a bit longer.
[41] After viewing the video tape Officer Archer made his written report. He did not return to Unit 8C after the assault that day.
[42] Officer Archer testified that if an inmate were to enter a cell not assigned to them, it would be up to a Correctional officer to punish them. The officer might put the inmate in segregation or they might warn the inmate and return them to their assigned cell. Evidence was heard that the segregation cells were full on November 19, 2014.
[43] Officer Archer testified that other staff verified each inmate was in their (assigned) cell after they were ordered back following this incident that day.
[44] Officer Archer testified that there was a prior incident about 2 hours before this one that involved all the inmates being locked in their cell.
Cross-Examination by Mr. Razaqpur for Abel Abdo
[45] Mr. Archer testified that he used a regular cursor[1] to track the men back to their cells on the videotape.
[46] Mr. Archer agreed that the internal discipline for a violent assault would be more severe than the offence of entering an unassigned cell.
Cross-Examination by Mr. Cawkell for Marque Swaby
[47] Mr. Archer testified that the victim was non-responsive when he dealt with him. His eyes were wide open and one of his arms was "flailing" in the air. The victim was taken to hospital and then to the institution's infirmary due to complications. The victim never returned to Unit 8C.
[48] Mr. Archer repeated his testimony that there is 'never triple bunking on Unit 8C'.
[49] Mr. Archer escorted inmate Acar off the Unit earlier that day (14:20 hours). Mr. Acar was allegedly assaulted by the victim in this case 2 hours before this assault. Mr. Acar was an elderly inmate who was knocked unconscious.
[50] Exhibit #3 was filed which is a Report authored by Officer Archer on November 19th, 2014 to Superintendent Mr. Parisotto titled "Altercation between i/m ACAR, M. and KHANSAIYASITH, S.".
[51] This Report states as follows:
On Wednesday, November 19, 2014, approximately 1420 hours I was entering Unit 8C when I saw i/m ACAR, M. #1001192220 collapse in front of me at the Unit door. I placed i/m ACAR on his right side until the medical staff arrived. Once i/m ACAR was looked after by the medical staff I escorted him to the programs area where i/m ACAR was looked after by the medical staff. I escorted him to the programs area where i/m ACAR advised me the 'chinese guy' hit him. I escorted i/m ACAR to Unit 10A on a head-watch without further incident.
[52] Mr. Archer testified that he has no idea why the victim in the case before this Court was assaulted.
[53] Mr. Archer testified that he did not review the OTIS record to make sure that it was accurate. He is basing his belief that it is accurate on best practices. (p. 36)
Cross-Examination by Mr. Rodocker for Andrew Brown
[54] Mr. Archer testified that he could only identify the three accused before the court by going through the cursor process while viewing the tape. (p. 40)
Ruling
[55] I have concluded that this is a Leaney Application as it deals with identification evidence based on events captured on video-tape. There is nothing in the case law that prevents the reception of this kind of evidence provided it meets the threshold reliability test. I do not read the case law as saying that a Leaney Application must be limited to distinctive physical features only. If I am in error in that regard, I believe that the same admissibility criteria would apply with respect to the type of evidence I am dealing with on this Application.
[56] I have concluded that Correctional Officer Archer was in a better position than a trier of fact to use his knowledge of the institution and the inmates assigned to certain cells in Unit 8C to make identifications based on the video-tape.
[57] I have concluded that based on a careful examination of Exhibit #2 – The OTIS – HISTORICAL UNIT ASSIGNMENT document, that the proposed video-tape identification evidence of Officer Archer does not meet the test of threshold reliability.
[58] Officer Archer testified that he used this document to track each of the blurry orange figures back to their cells after this assault to identify them.
[59] Officer Archer testified that there are never more than 32 inmates on this Unit and there are never more than 2 inmates assigned to a cell.
[60] Exhibit #2 (which went into evidence as proof of the truth of its contents) states that 35 inmates were housed in Unit 8C on November 19, 2014.
[61] The names of 3 inmates appear as residents of cell 8, namely: Bircakovic, Slavisa; Browne, Steven Vanroy and Kennedy, Aaron James.
[62] Exhibit #2 states that there were 3 inmates housed in cell 9, namely: Linseman, Adam Douglas James; Parro, Julio and Rayburn, Glen Douglas.
[63] Exhibit #2 states that there were 3 inmates housed in cell 16, namely: Hishmeh, Anthony Malkai; Kyeremateng, Eric and Mertens, Brian Richard.
[64] Exhibit #2 also states that Acar, Murat was housed in cell 5, but from Exhibit #3 it is clear that this inmate had been moved to another Unit approximately 2 hours before, which is further evidence that at the time of this assault, this document was not accurate as to which inmate was assigned to which cell.
[65] Because the Historical Unit Assignment is prepared by the night shift, it cannot be said that it is reliable at approximately 6 pm the next day. This document does not give the Court reliable information as to who was assigned to be in which cell just after the assault that occurred in this case. Nor can it assist with which inmate entered which cell when the lock-down was ordered after this assault.
[66] The evidence established that one of the Correctional officers, name never given, did personally check each cell after the lock-down to ensure the inmates were in their proper cell. This evidence was not called by the Crown. The results of the personal cell check remain unknown.
[67] There was evidence heard that sometimes inmates do not go back to their assigned cell. When this happens it is left to the discretion of the Correctional officer to determine the punishment for this infraction. The inmate might simply be warned and ordered back to their cell or the inmate may be sent to segregation.
[68] Because Exhibit #2 was filed to support the physical tracking of the inmates back to their assigned cells following the assault, I conclude that the threshold reliability of Officer's Archer's identification evidence based on the video-tape has not been established. Accordingly, the proposed Leaney evidence as it relates to Officer Archer's identification evidence is inadmissible at trial.
[69] There was some other evidence given by Officer Archer relating to Mr. Brown. It was conceded by the Crown at the end of this Application that because this evidence was also linked to tracking Mr. Brown back to his assigned cell on the video, this evidence standing alone does not meet threshold reliability.
[70] After releasing verbal reasons for not accepting Officer Archer's evidence based on the unreliability of Exhibit #2, the Crown did not pursue findings of guilt on any of the remaining evidence called at trial.
[71] Accordingly on October 8th, 2015, the charges against the 3 accused were dismissed.
Released: October 22, 2015
Signed: "Justice Lesley M. Baldwin"
Footnote
[1] A cursor is a movable indicator on a computer screen identifying the point that will be affected by input from the user, for example showing where typed text will be inserted.