Youth Criminal Justice Act Warning
The court hearing this matter directs that the following notice be attached to the file:
This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:
110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.
129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
( b ) is guilty of an offence punishable on summary conviction.
Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2022 06 20 COURT FILE No.: Brampton 3111 998 20 492Y
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
T.P. (A “young person” under the Youth Criminal Justice Act)
Before: Justice G.P. Renwick
Heard on: 20 June 2022 Reasons for Judgment released on: 20 June 2022
Counsel: C. Vanden Broek................................................................................. counsel for the Crown S. Agbakwa................................................................... counsel for the Young Person T.P.
RULING ON ADMISSIBILITY OF PHOTOGRAPHIC EVIDENCE
RENWICK J.:
INTRODUCTION
[1] The young person faces three counts relating to an armed bank robbery. The sole issue in this trial is the identity of one of the three suspects. The prosecution alleges that the young person is the remaining suspect who has not been found guilty of this robbery.
[2] Toward the end of the prosecution’s case, an Application has been made to introduce a photograph and a video recovered on another person’s cell phone. The photographic evidence sought to be introduced allegedly contains the young person wearing clothing that is identical to that worn by one of the suspects in the bank robbery.
[3] The Defendant opposes the photographic evidence because there is little known about the provenance of the images (where each was recorded, who recorded the images, and similar questions) and whether or not the images are genuine.
GENERAL PRINCIPLES
[4] Evidence is generally admissible in a trial if it is relevant (tends to establish the proposition for which it is advanced), material (relates to a matter in issue), and it is not excluded by a rule of evidence.
[5] It has been said of photographic evidence that it is “conditionally admissible.” In R. v. Andalib-Goortani, 2014 ONSC 4690, at para. 28, Justice Trotter, as His Honour then was, used this phrase in relation to photographs sought to be introduced to identify the accused as the person who committed an assault in that case. The court relied on an earlier decision of the Nova Scotia Court of Appeal for the requirements of authentication before photographic evidence is admissible:
All the cases dealing with the admissibility of photographs go to show that such admissibility depends upon (1) their accuracy in truly representing the facts; (2) their fairness and absence of any intention to mislead; and (3) their verification on oath by a person capable of doing so. [1]
EVIDENCE
[6] In this case, the evidence is paltry.
[7] The prosecutor led evidence that the images came from a cell phone found on someone arrested in another jurisdiction for other robberies. That person was eventually charged with the robbery faced by this young person. That person has been found guilty in relation to this robbery.
[8] In the eight-second video clip that person is present. He appears to be waving a large sum of money and holding a bottle of alcohol. The camera turns to a second individual, but his face is not captured. Then the camera turns to a male with a puffy jacket and a hat at the trunk of an Audi motor vehicle. The Audi is similar in style and colour to the second getaway vehicle apparently used by the suspects in this robbery.
[9] The lead investigator has recognized the young person as the third male in the video at the trunk of the Audi. The prosecutor does not seek to rely on this identification given that it would not likely be admissible under the principles established in R. v. Leaney.
[10] Instead, the prosecutor seeks admissibility of the video and a photograph also found in the same cell phone to prove a connection between the young person and clothing worn by one of the bank robbery suspects, which is later found in a residence where the robbers initially took the proceeds from the bank.
[11] Three police witnesses were heard on this Application: Autumn Mills, Tara Farrow, and Taylor Meyer.
[12] Autumn Mills is a robbery investigator from Halton Regional Police Service. This witness testified that she arrested a suspect for robberies she was investigating and he was found in possession of a cell phone which contained the images now in issue. Detective Constable Mills turned the images over to Detective Constable Farrow in March 2020. Officer Mills is not a technical crimes officer. She testified candidly that she was not the best person to ask but her understanding was that the “creation date” found when looking at the properties of a video may be different depending on how the video was accessed.
[13] Officer Farrow testified that she saved the video that she received in an email from Detective Constable Mills. Once the video was saved on her computer she right-clicked on the video to find the properties and learned that the creation date of the video was 22 December 2019 (two days before the alleged robbery before the court).
[14] Officer Meyer is a Halton Regional Police Service Technical Crimes investigator. He testified that images may show various dates associated with their creation depending on whether the information was indicating the first time the image was shown on a particular device, versus the metadata stored within the image at the time the image was first created. The metadata, in theory, will show the creation date and time when the image was first recorded. This officer also testified that the metadata could be changed before the image was sent to another device.
[15] In this case, there was no witness to attempt to authenticate the reliability of the video or the photograph, or to testify about when the images were recorded, where, and by whom.
DISCUSSION
[16] The young person opposes the introduction of the images because there is no information to satisfy the authentication requirements before photographic images are admissible in evidence.
[17] The prosecutor submits that the evidence established when the video was created, that makes it admissible, and it matters not that someone can authenticate when the video was recorded or where. This submission posits that these are issues that go to weight rather than admissibility.
[18] Turning to first principles, the proposed evidence is relevant. If admissible, there is no doubt that a trier of fact could use the evidence to come to conclusions about the clothing in the video possibly worn by the young person. The proposed images are also material, in the sense that they concern the issue of identification. A trier of fact may use the images to come to a conclusion about the identity of the robbery suspect based upon the clothing allegedly worn by the young person in the video. [3]
ANALYSIS
[19] By the slimmest of margins, I am satisfied on a balance of probabilities that the video and the photograph are admissible in this trial.
[20] Authentication must be considered in light of all of the evidence known. There will be cases where an image may have such a high degree of probative value that the test for authentication will be more stringent than for images of lesser significance. For instance, in this case, the bank surveillance videos are highly probative. Fortunately, the images are of excellent quality, they are numerous (taken from different angles), and the authenticity of the images is easily established by the date/time stamps on the images and by numerous parties/witnesses who could testify to the accuracy of the recordings.
[21] These images are more mundane. Several males having fun in a parking lot (the video) or three males posing for a photograph do not raise the same requirement for authentication because there would be little reason to suspect that they are not genuine. This is even more true given their origins. They are found on a cell phone possessed by someone associated to this robbery. In the absence of any reason to think that the images are anything less than what they appear to capture, the first factor of authentication is made out.
[22] In the same way, the second factor relating to fairness can be established. The question to be answered at this stage is admissibility. Weight can be assessed by the trier of fact after all of the evidence is known and submissions are made. The young person may end up calling to testify the third-party on whose phone the images were found. That person may well be able to explain the origins of the images. That person may end up establishing that the images are not what they purport to be, or they have been manipulated in some way. That said, in the absence of any reason to suspect that they are fraudulent, I am satisfied there is no unfairness in admitting these images in this trial.
[23] The third factor concerns verification. Two Halton officers have testified to where the images came from. This easily establishes the minimal threshold to admit the images into the trial.
[24] Before leaving the matter it is helpful to make an observation. In ruling that the images are admissible, I have come to no conclusion about their weight or probative value. All that I have found is that there has been a modest showing that the images are unlikely to have been tampered with, they reasonably capture males wearing various items of clothing, the images are fairly clear, they may have utility to the trier of fact, and there is some linkage between the images and the issues under consideration in this trial.
CONCLUSION
[25] The Application succeeds. The prosecutor may introduce in the young person’s trial a video image and a photograph of people, including someone alleged to be the young person, wearing clothing/footwear alleged to be worn by a suspect in the bank robbery for which the young person stands accused.
Released: 20 June 2022 Justice G. Paul Renwick
Footnotes
[1] R. v. Creemer and Cormier, [1967] N.S.J. No. 3 (N.S.C.A.) at para. 18, cited by R. v. Andalib-Goortani, 2014 ONSC 4690, [2014] O.J. No. 4499 (S.C.J.) at para. 28.
[3] At this point, I have come to no conclusions about the presence or not of the young person in the video or photograph.