SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 09-2049-01
DATE: 20120404

RE: R. v. Nasrallah

BEFORE: Honourable Justice Timothy Ray

COUNSEL:
Dallas Mack, Counsel, for the Crown

Michael Crystal, Counsel, for the defendant

HEARD: April 3, 2012

Ruling concerning a view

[ 1 ] The defence has requested a view in order for the jury to get a better idea of distances and perspectives as portrayed in video surveillance of the situs of the alleged offences which involve one count of criminal negligence causing bodily injury, and one count of failing to stop.

[ 2 ] Two individuals are portrayed leaving a gas station after committing a theft, getting in a car and leaving the area. Another individual is portrayed running out from the gas bar, apparently hitting the car, and falling to the ground. The video surveillance (three different cameras at different locations) is taken with a wide angle lens which has the effect of distorting the distances and perspectives. While the defence made the request, the Crown is in agreement that a view be ordered so that the distances and perspectives can be viewed by the jury as they appear to the naked eye without the obvious distortion in the video surveillance.

[ 3 ] The authority for ordering a view is contained in s. 652 CCC, “ where it appears in the interests of justice ”. Generally, it is necessary for the judge to make a finding that a view will add something to the evidence. It is not evidence in and of itself but is seen to be for the purpose of facilitating an understanding of the evidence. Hence a view may be ordered even after the close of evidence. ( R v Welsh, 1997 2570 (BC CA) , [1997] B.C.J. No. 2343 , 120 C.C.C. (3 rd ) 68 (B.C.C.A.) .

[ 4 ] In making such an order, “the judge shall give any directions that he considers necessary for the purpose of preventing undue communication by any person with members of the jury.......”( s. 652(2), CCC). The recent decision of Wein, J. in R v Polimac , (2006), WCB (2 nd ) 796, (SCJ) affm’d on a different basis 2010 ONCA 346 , 254 CCC (3 rd ) 359 (OCA) , contains not only a thorough review of the law, but gives an excellent illustration of the various matters that must be canvassed by a judge in making such an order. These matters include not only non-communication with the jury (including the media, counsel, the accused, and the public at large), but also security, health and safety, attendances at the view, logistics (timing and transportation), legal access to the situs, and preservation of a public record.

[ 5 ] While acknowledging that the request for a view in this case is not in dispute, I accept that a view of the gas bar/convenience store premises at Peter’s Gas Bar, Robertson Rd., Ottawa, is in the interests of justice so as to assist the jury in better understanding the exterior layout of the buildings and gas pumps, and the video surveillance that has been admitted into evidence.

[ 6 ] The Crown has suggested that the jury also take a view of the Petro-Canada Gas Station on Robertson Rd. which is close by. The defence has not taken objection. However, that location involves a different offence to which the accused has pleaded guilty and which I will deal with after the completion of this trial. In the absence of anything further, I am unable to see how a view of those premises will assist the jury in understanding the evidence concerning the counts it is dealing with. Without something further, I am not prepared to order a view of the additional premises.

[ 7 ] The trial is ongoing. The Crown anticipates closing its case shortly – certainly before a view can be arranged. The defence has argued that the view should be scheduled to take place immediately before he calls an engineer, so that the jurors can have in their minds the scene at Peter’s Gas Bar. Since the view is not evidence, and is solely for the purpose of assisting the jury, I am not prepared to sequence the view to suit the engineering evidence. This is a short trial. We have completed two days of evidence. The view is intended to assist the jury in understanding all of the evidence. It will be timed to take place so as not to interfere with the efficient flow of the evidence. This is a short week. Since the Crown will likely complete its case around noon today, and the defence will open right afterwards, tomorrow is the last trial day for this week. It would be better for the jury to complete the view before the four day Easter weekend. First thing tomorrow morning would be best. I expect the defence will continue its case after the jury returns to the courthouse late in the morning.

[ 8 ] The attendances will be limited to the jurors plus two court services officers, the two counsel, the accused, a court reporter, a security contingent sufficient to give effect to my order, and myself with a court services officer. There are no special health or safety concerns, however I will poll the jury to ensure there are no issues. The jurors will travel together with the two Court Services Officers and are not to engage in conversation with anyone other than themselves. Neither counsel, the accused, members of the public, or the media are to have any contact whatsoever with the jurors between the time they leave the courthouse until they return. The jurors are not to be photographed or identified in any fashion whatsoever. The court reporter will attend close by me in the event anything must be recorded.

[ 9 ] The Crown is to arrange with the owner of the property for the court’s attendance, and to arrange for the Ottawa Police to secure the area and prevent anyone other than the above named from entering into the area between 10.30am and 12 noon (or completion of the view) Thursday, April 5, 2012. If need be I will make an order permitting the members of the court as above to enter onto the premises to the exclusion of all others at the times and date above.

[ 10 ] The jury will be told that they must stay together and to remain in the area of the exterior of the convenience store/gas bar until they have completed their observations. They may bring with them their copies of any paper exhibits for reference during their observations. The purpose of the view is to give the members of the jury an opportunity to relate the distances and perspectives of the buildings and appurtenances at Peter’s Gas Bar so as to better understand the evidence. I will give directions to the jury as to their assembly point at the situs, and the observations they are expected to make, after hearing from counsel

[ 11 ] After the jurors return and the reopening of court, I will put on the record a brief synopsis of the proceedings during the view.

[ 12 ] The Crown will prepare the formal order in draft form for discussion with the defence in the event there is anything I have overlooked, and I will hear further submissions if necessary

The Honourable Justice Timothy Ray

Date: April 4, 2012