COURT FILE NO.: 11-10000133
DATE: 20120221
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN
M. Humphrey and K. Simone, for the applicant
Applicant
- and -
LAMAR SKEETE
R. Richardson & F. Javed, for the respondent
Respondent
HEARD: February 17, 2012
Nordheimer J.:
[1] Mr. Skeete is charged with first degree murder. It is alleged that Mr. Skeete shot and killed Kenneth Mark in retaliation for Mr. Mark having given evidence against Mr. Skeete and his younger brother on an earlier charge that they jointly faced of attempted murder. Some of the events preceding the actual murder of Mr. Mark were caught on store security videos. The prosecution has recently re-enacted an event that was captured on one of those security videos. The prosecution seeks a ruling that it may lead this re-enactment as part of its case. The defence objects to the admissibility of the re-enactment.
[2] The shooting of Mr. Mark occurred on December 29, 2009 at approximately 9:45 p.m. Mr. Mark had just purchased some food from a pizza store located at Dundas Street West and Gilmour Street in Toronto. As he left the pizza store and walked north on Gilmour, a male ran up behind him and fired one shot into the back of Mr. Mark’s head, killing him instantly.
[3] As part of the investigation into this homicide, certain pieces of security video from neighbouring stores were seized. One such security video was obtained from a coin laundry that is located diagonally across Dundas Street West from the pizza store. That security video shows a male person wearing a light coloured jacket walking in an alleyway located beside the coin laundry. The male walks back and forth in the alleyway in a manner that might suggest that he was trying to keep an eye out for what was happening on the opposite side of Dundas Street. At one point, this male appears to be trying to get something out of the right-hand pocket of his jacket. While attempting to do so, the male runs out of the alleyway in a northwest direction, that is, in the direction of the pizza store and the area of Gilmour Street where the shooting occurred.
[4] It is the theory of the prosecution that the male seen in the coin laundry video is the male who shot Mr. Mark. As I have said, the male in the video is wearing a light coloured jacket. An eyewitness to the shooting has given evidence that the person who shot Mr. Mark was wearing a white jacket. As the investigation of the homicide progressed, a search warrant was executed on the apartment where Mr. Skeete, his brother and his mother lived. In the basement of that apartment, a white Avirex leather jacket was found. Subsequent testing of that jacket found particles of gunshot residue in each of the front outside pockets of the jacket.
[5] The prosecution contends that Mr. Skeete is the person who shot Mr. Mark. The prosecution also contends that the white Avirex leather jacket is the jacket that Mr. Skeete was wearing when he shot Mr. Mark and that is why gunshot residue is found in the pockets. The prosecution will submit to the jury that the white Avirex leather jacket is consistent with the white jacket seen by the eyewitness and is consistent with the light coloured jacket being worn by the male as seen in the coin laundry video.
[6] The white Avirex leather jacket is distinctive because it has the letters A V I R E X affixed to the back of the jacket in a diagonal line running from the left shoulder to the right bottom of the jacket. These letters cannot be seen on the back of the jacket in the coin laundry video. The prosecution contends that the letters cannot be seen because the coin laundry video is of a poor quality, the male in question was some distance from the security camera and the lighting in the area where the male walked was dim. As a consequence, when someone views the coin laundry video the letters cannot be made out. At the same time, the prosecution anticipates that the defence will argue that the person in the coin laundry video is not wearing an Avirex jacket because those distinctive letters cannot be seen and therefore the connection to the jacket found in Mr. Skeete’s residence is not made out.
[7] In an effort to rebut the anticipated position of the defence, the police decided to do a re-enactment of the coin laundry video. On January 25, 2012 at approximately 8:30 p.m., the police attended at the coin laundry. They had the white Avirex leather jacket with them. They had a police officer who was to play the role of the male in the coin laundry video. The police had also spoken to both the current and the former owners of the coin laundry, both of whom confirmed that there had been no change to the security camera through which the original security video had been recorded.[^1] The video recording unit had, however, been changed. Once at the scene, the police compared the angle of the camera as it currently was with the angle of the camera as shown in the original security video. The police determined that the angle was slightly different so they adjusted the camera to match it to the angle shown in the original security video.
[8] The police then had the officer put on the white Avirex leather jacket and walk in the alleyway in two different segments. In one segment, the officer walked down and back along the west wall, again along the east wall, and again in the middle of the alleyway. In the other segment, the officer attempted to mimic the actual movements of the male as seen in the original security video. In both of these segments, the letters on the back of the white Avirex leather jacket cannot be seen save and except for one instance where the officer came closer to the camera than the male in the original security video ever did.
[9] The defence objects to the admissibility of the re-enactment on the basis that it is prejudicial to Mr. Skeete and that the prejudice outweighs the probative value of the evidence. The defence says that this prejudice has two aspects. One has to do with the lateness of the offering of this evidence. The other is that there are conditions relating to the taking of the re-enactment that might be different from the conditions existing at the time of the original security video and that the impact of those differences cannot be determined.
[10] In terms of the first aspect, Mr. Skeete was arrested on January 14, 2010. This trial began with pre-trial motions on January 16, 2012. The re-enactment was done on January 25, 2012 and a copy of the video re-enactment was given to defence counsel on January 27, 2012, that also happened to be the first day of the jury selection process for this trial.
[11] The defence points out that the prosecution and the police had two years to conduct any such re-enactment and that it is fundamentally unfair for this evidence to be presented to them “in the middle of the trial”. While the characterization of the evidence as being proffered in the middle of the trial is somewhat of an overstatement, I agree with the defence that the late production of this evidence is problematic. The late offering of evidence by either side to a proceeding is generally a matter to be discouraged. In extreme cases, it might, in and of itself, lead to a refusal to allow the evidence to be lead if the circumstances that give rise to the late disclosure warrant such relief. At the same time, however, in considering this issue one has to recognize that there is a qualitative difference between evidence that existed and was disclosed late and evidence that is discovered late.
[12] I agree that the prosecution and the police could have developed this evidence at a much earlier point in time. There is no reason offered as to why the re-enactment was not done earlier other than the apparent one that no one thought of doing it before the issue got raised in an entirely different context when a completely separate issue regarding possible expert evidence arising from the coin laundry video was canvassed as part of a pre-trial motion. There is no suggestion of bad faith on the part of the police in the late idea to do this re-enactment. Rather, the timing seems to have to do with the human reality that not every issue is always thought of in advance. Sometimes, despite all efforts, some things do not occur to parties until they become clear as the evidence unfolds or other issues are canvassed as part of the trial process. While that is an excuse that should be treated cautiously because of the ease with which it can be invoked, the court cannot ignore the reality that human failings from which we all suffer will inevitably give rise to such instances.
[13] The issue then is whether the prejudice that inherently arises from the late discovery of evidence is sufficiently profound in this instance to overcome the probative value of the evidence. In that regard, I should say that I am satisfied that there is probative value to this evidence. Indeed, I did not take the defence to be suggesting that the evidence lacked probative value. In any event, it is clear to me that this evidence would be of assistance to a jury in determining whether the jacket being worn by the male in the coin laundry video could be the white Avirex leather jacket – a contention that is a central component of the prosecution’s theory. Precluding this evidence would leave the jury with only their own ability to view the video with no additional help or knowledge base to have reference to in deciding between the competing inferences or conclusions that will be urged upon them by the prosecution and the defence.
[14] The defence contends that they do not have a proper opportunity to respond to this evidence because of its late disclosure. I do not accept that contention. The defence has had three weeks to seek out an expert to provide them with any assistance regarding the creation of this re-enactment. They will have another two weeks before the evidence is likely to be lead. Absent any information to the contrary, I consider that to be more than adequate time to, at the very least, locate an expert and to obtain assistance from him/her regarding whether significant issues do arise from the re-enactment. I would also note that there was nothing that precluded the defence from exploring these issues from the outset of this prosecution. The prosecution’s theory is not a new one. As I understand it, the theory that the person in the coin laundry video was the shooter and that the shooter was wearing the white Avirex leather jacket is not a theory of recent origin. It has always been the prosecution’s theory. If the defence had wanted to do its own re-enactment to determine the validity of that theory, it was open to the defence to have done so at any juncture.
[15] The other aspect of the prejudice question is the submission about the differences in conditions between the original security video and the re-enactment. In that regard, the defence points to the following: (i) it is unknown what, if any, effect, the change in the recording system may have on the quality of the video; (ii) there is no direct evidence that the camera is the same but only the hearsay evidence of what the investigators were told before the re-enactment was done; (iii) there is no evidence whether the lighting conditions are the same between the time of the original security video and the re-enactment.
[16] With respect to those points, I begin by noting that these are all areas upon which the defence can cross-examine the witness through whom the re-enactment is lead. They are also all matters that the jury can be instructed that they should take into account in evaluating the re-enactment and whether it assists them in their consideration of the coin laundry video. Addressing each of the points individually, there can be no reasonable suggestion that the change in the recording system made the video in the re-enactment of a poorer quality than the original security video. A newer recorder would only improve the quality of the recording as a simple viewing of the two videos in this case would seem to demonstrate. The fact that there is only indirect evidence that the camera is the same is, in my view, sufficient, at least for the purposes of the admissibility threshold. This is another matter that can be pointed out to the jury. I would note that a comparison of the videos does not show any obvious difference between the view one gets on the original video and the view one gets on the re-enactment. In fact, the images between the two videos are remarkably similar. In terms of the lighting conditions, it would be a practical impossibility to measure the lighting conditions that were present in December 2009 in order to determine if they differ, and if so by how much, from the lighting conditions in January 2012. Again, this is a matter that the jury can be told about and about which they can draw their own conclusions from a review of the two videos.
[17] Existing authority on the subject of re-enactments shows that their admissibility is to be determined on a case-by-case basis – see R. v. MacDonald (2000), 2000 16799 (ON CA), 146 C.C.C. (3d) 525 (Ont. C.A.). In making that determination, the Court of Appeal said, at para. 42:
As with the admissibility of other kinds of evidence, the overriding principle should be whether the prejudicial effect of the video re-enactment outweighs its probative value. If it does, the video re-enactment should not be admitted. In balancing the prejudicial and probative value of a video re-enactment, trial judges should at least consider the video’s relevance, its accuracy, its fairness, and whether what it portrays can be verified under oath.
[18] I have already found that the re-enactment has probative value. It is relevant to the prosecution’s theory and it is relevant to the issue whether the jacket seen in the coin laundry video could be the same jacket that the eyewitness saw the shooter wearing. It is not prejudicial in the sense that the word was used in MacDonald, that is, the re-enactment is not one-sided nor does it address only the prosecution’s view. The re-enactment here provides a balanced approach. Indeed, it demonstrates that, at points closer to the camera, the letters on the back of the jacket would be visible. The contents of the re-enactment can be tested through the officer who will present the video re-enactment and its limitations can be pointed out through cross-examination. The re-enactment is as accurate as could be reasonably expected. It was done at the same time of year. It was done after darkness had set in. It was done with the same camera angle and it was done with the same camera – at least insofar as the police could reasonably determine.
[19] On these points of argument as to the accuracy of the re-enactment, the observations of MacPherson J.A. in R. v. Walizadeh (2007), 2007 ONCA 528, 223 C.C.C. (3d) 28 (Ont. C.A.) at para. 49 bear repeating:
Second, the re-enactments were fairly accurate. The appellant points to a number of discrepancies between the original surveillance video and the re-enactments, including differences in film quality and lighting. The trial judge was alive to these issues and fairly held that the differences were not so great so as to diminish the probative value of the evidence. It is clear from the jurisprudence that a standard of perfection is not expected in the creation of video re-enactments. In this case, the police shot the re-enactments from the same view as the original tape and with the same camera, the same location was used, and they tried to emulate the darkness of the original tape. [emphasis added]
[20] While acknowledging that there is a degree of prejudice from the late creation and disclosure of this evidence, that prejudice does not outweigh the probative value of the evidence. The re-enactment could be of assistance to the jury in their evaluation of the coin laundry video and how they view that video and its interrelationship with other pieces of evidence. Issues with respect to the conditions surrounding the re-enactment and their impact, if any, on the accuracy of the re-enactment are all matters that the jury can be apprised of and which they can take into account in determining the reliance that they place on the re-enactment. In the end result, it is, of course, what the jury takes from the coin laundry video and not from the re-enactment that is what is important.
[21] I conclude therefore that the video re-enactment is admissible.
NORDHEIMER J.
Released: February 21, 2012
Court File No.:
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
LAMAR SKEETE
Respondent
REASONS FOR DECISION
NORDHEIMER J.
RELEASED:
[^1] The ownership of the coin laundry changed hands some time in 2011.