ONTARIO COURT OF JUSTICE
DATE: 2023 07 05 COURT FILE No.: Toronto 22-50003122
BETWEEN:
HIS MAJESTY THE KING
— AND —
KEVIN GEORGE
Before: Justice Peter N. Fraser
Heard on: September 7-9, 12-15, 2022 Reasons for Decision released on: July 5, 2023
Counsel: P. Zambonini & A. Bradstreet ........................................................ counsel for the Crown C. Zeeh.................................................................... counsel for the accused Kevin George
Fraser J.:
[1] Kevin George stands charged with multiple offences arising out of a shootout at his own one-year-old child’s birthday party on June 19, 2021, including attempted murder, discharging a firearm with intent to endanger life and aggravated assault.
[2] The Crown seeks the admission of a photograph which is alleged to depict the accused at the scene of the shooting. The defence argues the threshold for admissibility has not been met, as no witness has authenticated it and the Crown has invoked informer privilege in connection with any information related to its origin.
[3] On October 30, 2022, I found the photo had been authenticated on the basis of circumstantial evidence and the threshold for admissibility had been met. I ruled that issues concerning the origin of the photo and the possibility of tampering were properly dealt with as matters of weight in the context of the trial proper.
[4] As counsel required the ruling in order to make closing arguments, I provided the ruling and indicated that reasons would follow. These are the reasons.
Factual Background
[5] On June 19, 2021, Kaiden Leitch celebrated his first birthday with a large outdoor party on Tandridge Crescent in Toronto. The party had a baby shark theme, after the popular children’s song, with family members wearing T-shirts indicating their relationship to the birthday boy. For example, his mother wore a “mommy shark” T-shirt, his grandmother wore a “grandma shark” T-shirt and his uncle wore an “uncle shark” T-shirt.
[6] Shortly before 8:00 pm, gunfire erupted in the midst of the birthday party. Four men discharged a total of twenty-two rounds of ammunition during a firefight that left one combatant and two children seriously injured and sent countless more running for their lives. The Crown alleges that Kevin George precipitated these events when he drew a handgun and fired on Demar Cadogan, another attendee of the party. According to the Crown, Mr. George is captured in video footage of the incident, wearing a red hat and other distinctive articles of clothing. Identity is one of the central issues in the trial.
[7] The security videos were recorded from a distance and the images of the shooter’s face are not clear enough to identify him. In contrast, the photograph in question was taken at close range and provides a clearer view of the shooter’s face and clothing. The photo assists the Crown for three main reasons. First, it allows for a meaningful comparison between the face of the shooter and the face of the accused. Second, it allows for a better comparison of the shooter’s clothing to articles of clothing known to belong to the accused. Third, it reveals the words “daddy shark” on the front of the shooter’s T-shirt, which tend to implicate the accused in the context of this birthday party, where family members wore matching “baby shark” themed T-shirts indicating their relationship to the birthday boy. Kevin George is the father of Kaiden Leitch.
[8] The photograph in question was provided to police by a confidential source, and the Crown has invoked informer privilege in connection with any information that could reveal the identity of the source: R. v. Leipert at paras. 9-10; R. v. Omar, 2007 ONCA 117 at paras. 37-38. Consequently, there is no evidence as to who took the photo or what device was used to capture it. While the exhibit was presented to the Court in electronic form, I do not know whether the original was a digital photo or a conventional one. If the photo was digital in nature, the original electronic file has not been provided and no metadata is available. If the photo was conventional in nature, the original copy has not been produced.
[9] The defence ultimately abandoned its application for production of the original photograph and acknowledged the innocence at stake test could not be satisfied, so as to pierce the informer privilege in this case. Instead, the defence argues the test for admissibility has not been met, given the absence of information around the photo’s origin and the absence of any witness capable of authenticating it. The Crown submits the photograph can be authenticated circumstantially, by comparing the contents with other reliable evidence in the trial record.
Authenticating Digital Exhibits
[10] I consider the photograph to be a piece of digital evidence. While it may have derived from a conventional photo, the exhibit filed with the court is a digital file. Electronic documents can become admissible through common law principles of authentication or pursuant to section 31.1 of the Canada Evidence Act, which provides as follows:
Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.
[11] This provision is a codification of the common law principles of authentication in the context of electronic documents: R. v. Hirsch, 2017 SKCA 14 at para. 18; R. v. Ball, 2019 BCCA 32 at para. 70. The burden rests with the party tendering the piece of evidence in question: R. v. Andalib-Goortani, 2014 ONSC 4690 at paras. 24-27. The threshold for admission is low, requiring only some evidence capable of supporting a finding that the electronic document, “is that which it is purported to be”: R. v. C.B., 2019 ONCA 380 at paras. 57-68; R. v. Richardson, 2020 NBCA 35 at para. 27. This requirement is not onerous and may be established by direct or circumstantial evidence: see R. v. C.B., supra, at paras. 66-68; R. v. Farouk, 2019 ONCA 662 at para. 60.
[12] Importantly, the question of whether an electronic document is authenticated, such that it becomes admissible, is distinct from the question of whether the document is genuine, such that a trier of fact may rely on it. In R. v. Hirsch, supra, at paras. 18-14, the Court of Appeal for Saskatchewan characterized this distinction as being separate inquiries into the authenticity and the integrity of the document respectively. [1]
[13] The Ontario Court of Appeal drew the same distinction in R. v. C.B., supra, at para. 60 & 70, where Watt J.A. held that admissibility is achieved by some evidence that the document is what it purports to be; whereas the ultimate question of whether the document actually is what it purports to be is “a question for the trier of fact to decide on all the evidence adduced at trial.” In that case, the electronic documents were text messages and photographs, which were put to the complainant in cross-examination. The complainant was equivocal as to whether she sent the messages, and did not provide direct evidence of authentication in the conventional sense. The Court observed that the threshold for admissibility was modest and neither the common law nor s. 31.1 of the Canada Evidence Act imposed any limitations on the manner of proof when authenticating electronic documents. The material was properly admissible, as the complainant had confirmed the cell phone number was hers, she had the phone at the material time, and she had explained the meaning of some of the texts. The Court also addressed the complainant’s suggestion that the messages had been tampered with or altered, at paragraph 72, holding that concerns over tampering or distortion were properly questions of weight rather than admissibility:
[E]ven if there were an air of reality to such a claim, the low threshold for authentication, whether at common law or under s. 31.1 of the CEA, would seem to assign such a prospect to an assessment of weight.
Application to the Present Case
[14] In this case, the Crown argues the photograph can be authenticated circumstantially, since the content of the image is consistent with the unchallenged video evidence from Tandridge Crescent. The Crown submits that everything about the subject’s appearance in the photo accords with the shooter’s appearance in the video footage, and the same can be said for his physical surroundings.
[15] I have compared the “daddy shark” photograph to the video footage from the site of the shooting and from Lagerfeld Drive, to which the shooters travelled afterward. I have also compared the background depicted in the photograph against the FIS photos of the scene and the police body-worn camera video from the day of the shooting.
[16] The man in the photograph has a red hat with white markings near the brim. He has dark skin and a tall, slim build. He is wearing a blue surgical mask down under his chin. He appears to be holding a cell phone in his right hand and a cigarette in his left. The shooter in the videos has a red hat with white markings in the same place. He has the same skin tone and body type as the man in the photo. He can be seen at various points in the video footage with his mask down under his chin. At times, he can be seen carrying what appears to be a cell phone in his right hand and smoking with his left.
[17] The man in the photograph is wearing light blue jeans with a red heart-shaped print on his left knee, a blue star on his right thigh, and a red strap hanging down from his waist. The shooter in the videos is wearing light blue jeans with the same distinctive features. While it is less defined in the video footage, there is clearly a red patch on the left knee, with the same shape and orientation. The blue star is clearly visible on the right thigh, particularly in the video from Lagerfeld Drive. A red strap is visible at several points in the videos, and it hangs from the same part of the waist as the one in the photograph.
[18] The background of the photograph is also consistent with the video and photographic evidence of the scene. The low brown bars in the photo are consistent with the fencing that separates the properties at Tandridge Crescent. The lawn, pathway and square cut hedges are all similar. In the photo, there is a clear plastic cup sitting on the curb with a blue liquid inside. This matches drinks that were served at the party. In the photo there is a black Mercedes toy car on the pathway. This matches the toy car that was given to Kaiden at his birthday party, right down to the blue bow on the hood.
[19] The man in the photograph is wearing a long white T-shirt with the image of a shark on the front, rendered in blue and pale yellow colours. The word “DADDY” is printed above it and the word “SHARK” is printed below. Both are in blue capital letters. Underneath are three short words printed in gold that cannot be discerned from the photo. There are also blue and gold stars printed around the collar of the shirt.
[20] The shooter in the video footage from Tandridge Crescent is also wearing a long white T-shirt. The words on the front cannot be clearly discerned, but their outline is consistent in shape with the words “DADDY SHARK.” The graphic in the middle cannot clearly be discerned in the videos, though it is consistent with the shark image from the photograph. In the video footage, there is clearly a blue semi-circle that closely mirrors the top of the shark’s head from the photo. The three words at the bottom of the shirt and the stars around the collar are consistent with the Baby Shark themed shirts worn by other family members at the party.
[21] After careful review, I see nothing in the video footage that is inconsistent with the contents of the “daddy shark” photograph. To the contrary, every discernible detail is consistent. This analysis leads me to conclude that the low threshold for authentication has been met.
[22] In my view, the process of comparing the contents of the photograph to other reliable evidence is not categorically different from the processes by which witnesses normally authenticate this kind of evidence. Photographs are generally admissible provided they accurately and truly represent the facts, they are fairly presented without any intent to mislead, and are verified on oath by a person capable of doing so: R. v. Creemer and Cormier at para. 18; R. v. Andalib-Goortani, supra, at para. 28. In some cases, a witness can testify to these points because they have taken the photo. In other cases, however, the witness will not have taken the photo or have any knowledge of the device used to take it. Instead, the witness can authenticate the photo because the content accords with their own observations of the subject matter depicted: R. v. B.S., 2019 ONCA 72 at para. 5; R. v. Bulldog, 2015 ABCA 251 at paras. 26-41. This is, in principle, the same exercise as the one I have engaged in here. In place of a witness’ testimony that the photo accords with their memory of the scene, I can compare the photo to other reliable evidence and make that determination for myself.
[23] I am prepared to take judicial notice of how easily photographs can be altered using widely available technology and how convincing forgeries can be made to appear. However, it seems to me the possibility this photo was altered diminishes to almost the vanishing point in view of the precise accordance, in respect of so many points of comparison, between its content and the other reliable evidence in this record. And in any case, the controlling authorities direct that such concerns are properly matters of weight rather than admissibility.
Conclusion
[24] I find the photo has been authenticated on the basis of circumstantial evidence and the threshold for admissibility has been met.
Released: July 5, 2023 Signed: Justice Peter N. Fraser
[1] Similar distinctions exist elsewhere in the rules of evidence. For example, in the hearsay context, there is a well-known distinction between threshold reliability and ultimate reliability: R. v. Bradshaw, 2017 SCC 25 at paras. 39-42.