Court File and Parties

Ontario Court of Justice

Date: 2018-02-28

Court File No.: York Region 4911-998-17-00905-00

Between:

Her Majesty the Queen

— and —

Donaldson Smith

Before: Justice A.A. Ghosh

Heard on: February 7th, 2018

Reasons for Ruling on Application released on: February 28th, 2018

Counsel:

• S. Kumaresan, counsel for the Crown
• D. Heath, counsel for the defendant Donaldson Smith

Reasons for Ruling

Ghosh J.:

Introduction

[1] Donaldson Smith is being tried on charges relating to a gunpoint robbery outside of a home in Vaughan. The Crown applies to admit the recognition evidence of an officer purporting to identify the defendant in a video recording. This application is commonly referred to as a Leaney / Brown application.

[2] These are my summary reasons. I reserve the opportunity to provide more fulsome reasons should I deem it necessary.

The Evidence in Support of the Application

[3] Three suspects are captured on exterior home surveillance exiting a vehicle and then accosting the home owner in the driveway of a Vaughan residence. After the robbery the home surveillance footage captures the suspects running in the direction of a church on a nearby street.

[4] The suspect vehicle within minutes is captured on the exterior video surveillance of the church parking lot. The licence plate is clearly identifiable on the footage. The suspects are then captured on this same church surveillance footage running in the direction of the awaiting suspect vehicle. From the exterior church footage, Detective Constable Lavella of the Toronto Police Service testified that he can recognize the defendant, Donaldson Smith, as one of the suspects.

[5] Officer Lavella testified that he is acquainted with Mr. Smith through his investigative work with the Toronto Police Service in the Parkdale area. Mr. Smith was arrested in February of 2013 for breaching a court order. Officer Lavella, as a member of the neighbourhood safety team, made it a point to familiarize himself with new detainees associated with the Parkdale area. He was not involved in the arrest, nor did he interact directly with Mr. Smith that day. Officer Lavella testified that while Mr. Smith was in a holding cell, he gazed upon him for a few minutes through a video monitor being live-fed surveillance of the cell area. The officer described the video to be of quality resolution.

[6] Sometime during the summer of 2013, the officer was driving on Queen Street West and observed Mr. Smith near the intersection of Queen and MacDonnell. At the time, Officer Lavella believed Mr. Smith was subject to a court order prohibiting presence in the Parkdale area. Officer Lavella approached the person, and had what he characterized as a "face to face" discussion. The officer raised with Mr. Smith the concern that he may be violating the boundary restriction. Mr. Smith relayed to the officer that the condition had expired. Officer Lavella checked and confirmed that Mr. Smith was correct.

[7] In the summer of 2016, Mr. Smith was a person of interest for a number of investigations. Officer Lavella reacquainted himself with Mr. Smith by reviewing photographs of Mr. Smith and other personal data collected on the TPS Versadex system. He also directly surveilled a person he believed was Mr. Smith for drug-related offences, although the interaction involved surreptitious surveillance from a distance.

[8] In December of 2016, Detective Constable Boulay of YRP, the lead investigation for the current matter, had contacted Officer Lavella about the present investigation. Officer Boulay told Officer Lavella that he believed Donaldson Smith and others may have been involved in the Vaughan robbery. At that time, Officer Lavella provided information from the Toronto Police Service Versadex system involving addresses and phone numbers of Donaldson Smith.

[9] In January of 2017, Officer Lavella was asked by Officer Boulay to review the surveillance footage from the church. He identified one of the running suspects as Mr. Smith.

[10] During the voir dire the video footage from the church was again played for Officer Lavella. The officer confirmed that Donaldson Smith was one of the suspects captured on the video. He referred to facial features of the suspect grounding his confidence in the identification. In terms of distinguishing features, the officer noted that Mr. Smith was a black male with a scar near the centre of his forehead, which he agreed could not be seen on the video. The officer also noted that Mr. Smith had higher cheekbones and an oval face. At one point he had a mustache. He always recalled that Mr. Smith had short black hair. He estimated his height at 5 foot 10 inches.

[11] During cross-examination it was confirmed that Officer Lavella only had a single face-to-face interaction with Mr. Smith. The officer agreed that he was likely mistaken about the hairstyle and the moustache of Mr. Smith when he watched him in the holding cell, as the arrest report reflected "cornrows" and a "thick beard". He also acknowledged counsel's suggestion that Mr. Smith is much shorter than the officer's estimate of height.

[12] Officer Lavella agreed that he knew Donaldson Smith was a person of interest in this York Robbery when he viewed the church surveillance footage in January of 2017. His evidence was that Officer Boulay asked him whether or not he could identify any of the suspects. Officer Lavella resisted the suggestion that he was asked directly whether or not Donaldson Smith was captured in the footage.

The Law

[13] It is settled law that the lay opinion of a person purporting to recognize a suspect from a still image or a video is admissible. The test to determine the admissibility of this type of recognition evidence has been referred to by our Court of Appeal as the "prior acquaintance / better position" test, or the "Leaney / Brown test". The principles are derived from the Supreme Court's seminal ruling in R. v. Leaney, [1989] 2 S.C.R. 393; and as elaborated by Justice Rosenberg of our Court of Appeal in R. v. Brown, [2006] O.J. No. 5077.

[14] As simply put by Justice Rosenberg in Brown, supra, at paragraph 39: "[T]his 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."

[15] The ultimate weight or reliability to be attached to the recognition evidence is not the focus at the admissibility stage. The proffering party need not establish during the application that the witness can point to some unique identifying feature or idiosyncrasy of the person identified. That is a matter left for the ultimate reliability to be accorded the evidence: R. v. Behre, [2012] O.J. No. 5029 (Ont.C.A.), para. 22.

Admissibility of Officer Lavella's Recognition Evidence

[16] There are apparent reliability concerns with the recognition evidence of Officer Lavella. His evidence that Mr. Smith had short black hair and a moustache when he viewed the defendant in the holding cell departed from the related arrest report. He was clearly incorrect about his approximation of the defendant's height. Despite having cause to conduct surveillance and also investigate Mr. Smith on multiple occasions over the years, Officer Lavella only had a single "face to face" interaction with Mr. Smith.

[17] However, that single interaction was of notable substance. After having viewed Mr. Smith in the holding cell through a monitor in February of 2013, some months later Officer Lavella from his cruiser recognized Mr. Smith walking on the street. The officer was aware of a potential breach of court order and approached the person he believed to be Mr. Smith. It was indeed the defendant. They spoke.

[18] Not only was the officer able to correctly identify Mr. Smith on the street from his limited prior dealings, he then had a confirmatory "face to face" conversation. The officer can point to identifying facial features, which included a scar, elevated cheekbones and an oval face. He has conducted surveillance on Mr. Smith and has investigated him several times over the years.

[19] Despite the concerns identified, Officer Lavella has a sufficiently articulated prior acquaintance with Mr. Smith for his evidence to satisfy threshold admissibility. His experience with the defendant, notably grounded in a face to face conversation, exceeds my own. I have only viewed Mr. Smith during the trial through a prisoner's dock some twenty feet away. The officer is better positioned than I to compare the video to the defendant.

[20] The recognition evidence of Officer Lavella is admitted.

Released: February 28th, 2018

Signed: "Justice A.A. Ghosh"