Court File and Parties

Ontario Court of Justice

Date: 2017-08-22

Court File No.: Brampton 3111 998 17 2949

Between:

Her Majesty the Queen

— and —

Freddy Mawick

Before: Justice G.P. Renwick

Heard on: 22 August 2017

Reasons for Judgment released on: 22 August 2017

Counsel

M. Morris — counsel for the Crown

J. Mencel — counsel for the defendant Freddy Mawick

Admissibility Ruling

RENWICK J.:

Introduction

[1] The prosecution seeks to introduce the viva voce evidence of a police officer to identify someone in a bank surveillance camera video as part of its prosecution of the Defendant on fraud related charges. The Defendant opposes the evidence on the basis that it does not meet the test of such evidence articulated by the Supreme Court of Canada in R. v. Leaney.

[2] The prosecution called Daniel McCarthy to testify on this voir dire. The officer told the court of the six or so occasions when he has dealt with this Defendant over the past three years. All of these occasions involved the arrest of the Defendant or (during court appearances) the prosecution of the Defendant by the officer.

[3] The Defendant contests the evidence on two grounds:

i. The officer's description of the Defendant was generic and unhelpful; and

ii. The officer's evidence is tainted by the context of his prior dealings with the Defendant.

[4] The prosecution seeks to adduce this evidence in addition to asking the Court to make its own comparison of the appearance of the Defendant in Court with the man captured in the bank video. As with any circumstantial case, the prosecution wants to bolster the evidence of identification.

Analysis

[5] The parties agree that Leaney is the governing authority for this type of evidence. I was also directed to R. v. Berhe, [2012] O.J. No. 5029 (C.A.), which applied Leaney.

[6] At the outset, I wish to acknowledge several principles of law. First, the burden rests on the prosecution, who seeks to adduce this evidence, to establish its admissibility on a balance of probabilities. Second, I need not consider the ultimate weight that may be given to the evidence, if it is found to be admissible, at this stage. Third, people can be wrong when they attempt to recognize someone who is captured in a video or still photograph. I am also aware that Mr. Mawick is a person of colour while the police officer is not. I mention this to recognize that the officer's perception and possible recognition of the Defendant may be based upon faulty premises, or they may be subject to taint because of the context of the officer's acquaintance and knowledge of the Defendant.

[7] There was a suggestion in the Respondent's argument that because the officer's evidence is so generic and without any precision in terms of specific identifiable features or distinguishing characteristics that the evidence of recognition can be given little probative value. Respectfully, this suggests determining the probative value of the evidence before determining its admissibility. Moreover, our Court of Appeal was not persuaded in Berhe that Leaney required that the witness should be able "to point to some unique identifiable feature or idiosyncrasy of the person to be identified." Justice Blair, on behalf of the unanimous Court relied on a British Columbia Superior Court judgment in rejecting this argument:

I think the following comment by Holmes J. in R. v. Panghali, 2010 BCSC 1710, [2010] B.C.J. No. 2729, at para. 42, is apt:

Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.

[8] These cases satisfy me that this type of evidence has a low threshold for admissibility. I need to find that the witness knows the person he or she is being asked to identify sufficiently (the recognition branch of the test) and that the witness is in a better position than the Court to identify a person captured electronically (the better position branch).

[9] In this case, I am satisfied on a balance that Officer McCarthy is sufficiently acquainted with the Defendant to possibly offer recognition evidence given the following:

i. The officer has dealt with the Defendant on several different occasions, over the time period of three years. On some of these occasions, the officer has spent many hours observing or spending time with the Defendant;

ii. The officer has been face to face with the Defendant on many, if not most, of their encounters;

iii. The officer has spoken with the Defendant, he has sought to interview the Defendant in the past;

iv. The Defendant has spoken to the officer, although only in the briefest possible way; and

v. The quality of the bank videotape is very good. The male that the prosecution seeks the officer to identify is captured by two different cameras, while walking toward and eventually from a banking machine. There are different views of the entire body, head, and face of the male captured on video. The video of the male lasts for a couple of minutes, and can be frozen. There are still photographs from the video. There are several opportunities for someone to possibly recognize the male in the video.

[10] The question remains, is the officer in a better position than the Court to possibly recognize the male in the banking video. At first, due to the good quality of the videotape, I was inclined to dismiss this application on this ground. However, I have decided on a balance of probabilities that I am not in as good a position as the officer to determine whether or not Mr. Mawick is the male in the video for the following reasons:

i. I have never met the Defendant and do not know him at all;

ii. I have never been face to face with the Defendant;

iii. From my position in the Court, I cannot see the Defendant's face well, without wearing corrective eyeglasses;

iv. I cannot judge the Defendant's height;

v. There are features of the head and face of the male in the video which may or may not be visible on the Defendant, and I cannot tell from my vantage point and distance from the Defendant; and

vi. I have not seen the Defendant walking and cannot compare the gait of the male in the video with the Defendant's.

Conclusion

[11] I am satisfied that the Leaney test is met and the officer is entitled to be asked whether or not he can recognize the male in the bank video.

Released: 22 August 2017

Justice G. Paul Renwick

Footnotes

[1], [1989] S.C.J. No. 90.

[2] Berhe, supra, at para. 22.

[3] Ibid.

[4] I recognize that this may be a neutral factor depending on whether or not there is any way to determine the approximate height of the male in the video based upon the surroundings.