ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-8366

DATE: 20131204

BETWEEN:

HER MAJESTY THE QUEEN

– and –

WAHIB FARHAN and HABIL WARSAME

Mr. John MacFarlane, for the Crown

Mr. Neil Weinstein, for Mr. Farhan

Mr. Lorne Goldstein, for Mr. Warsame

HEARD: October 8-10, 2013

decision on the Voir Dires

POLOWIN J.

[1] The accused, Wahib Farhan and Habil Warsame are each charged with one count of trafficking in a substance held out to be crack cocaine. The incident which gave rise to these charges occurred on May 17, 2010, when an undercover officer bought what was purported to be crack cocaine from two individuals during an undercover police operation. Identity is the major issue in this matter.

[2] During the course of the trial two issues arose which became the subject of voir dires. First, the Crown sought to introduce into evidence the Booking Summary Report (the “BSR”) and, more particularly, the mug shot attached thereto for each accused, as business records, without the necessity of calling the identification officer who created same, pursuant to s.30 (1) of the Canada Evidence Act, R.S.C. 1985, Chap. C-5 (the “Evidence Act”). Second, the Crown sought to have admitted the evidence of Constable Michael Diraddo, more particularly that he recognized Mr. Habil Warsame as one of the males in the surveillance photographs taken by police officers on May 17, 2010, based on a prior interaction he had with Mr. Warsame. The Crown also sought to question Constable Diraddo about his dealings with Mr. Warsame on July 18, 2010, when he arrested Mr. Warsame and ask him about comparisons between Mr. Warsame and the males in the surveillance photographs.

[3] Evidence with respect to each of these issues was heard in separate voir dires during the course of the trial. The Crown requested that this Court rule on the voir dires before hearing the closing submissions of counsel. Submissions were heard on the voir dires on October 10, 2013. The following decision relates to these voir dires.

The BSRs and Mug Shots

[4] As stated above, the Crown sought to introduce as business records, pursuant to s.30(1) of the Evidence Act the BSR, and, more particularly, the mug shots, of each accused. Sergeant Campbell testified generally with respect to the creation of the BSRs and mug shots and their use by the Ottawa Police Service.

[5] Sergeant Campbell testified that a BSR is a report that contains information with respect to an accused including his/her name, date of birth, booking information, address information, telephone number, physical characteristics, immigration information, charges and a photo. This report is prepared by an identification officer for each accused once charged with a criminal charge that requires fingerprints and a photo. It is part of the information that goes to the RCMP, along with an accused’s finger prints, to populate an accused person’s criminal record. The creation of the BSR and mug shot is standard police practice. The information comes from a one on one interview between the identification officer and the accused. With respect to physical characteristics, there is a measuring apparatus for height, but no scale. The identification officer uses a digital camera to take the photo. A separate photo is obtained for each BSR created.

[6] Sergeant Campbell testified that the primary purpose of the BSR is that it is to be sent to the RCMP. However in cross-examination, he agreed that the creation of a BSR is part of getting a case to prosecution. The BSR is accessible to police officers in the Ottawa Police Service. He agreed that it could be used to further investigations, in this case or others. For example, an officer could access a BSR if an individual’s height was needed in an investigation. It also could be used for photo line ups, in this case or others. In fact, the photo line up photos come from the mug shots contained in the BSRs. Sergeant Campbell agreed that BSRs are investigative tools available to the investigating officers in this case or others. He agreed that the preparation of a BSR is part of processing a case to trial.

Submissions of Counsel

[7] It is the Crown’s position that the BSR and mug shot contained therein is a record made in the usual and ordinary course of business, and can be admitted at trial pursuant to s.30(1) of the Evidence Act without the necessity of calling the identification officer who created it. Its creation is standard police practice. The Crown submitted that BSRs are admissible because they are reliable. The photos are reliable in particular. The Crown noted as a general principle that when a record is created in the ordinary course of business, there is no reason to suspect fabrication. Further, the Crown stated that there is no proof in this case that these records were made in the course of an investigation or inquiry. He stated that s. 30(10) of the Evidence Act has no application to this case. He stated that the BSRs were prepared after the accused were charged, that their primary purpose was to be sent to the RCMP and that there is no evidence that the photos were used in a photo line up or used by police officers to compare these photos with other photos.

[8] The Crown stated that it was he who asked Sergeant Campbell to provide him with the BSRs for this trial. He stated that prosecution is not to be confused with investigation. The Crown submitted that s.30(10) is meant to apply to records made with an investigation in mind.

[9] It is the position of the Defence that the BSRs and the mug shots contained therein are in fact business records. However, it is their position that s.30(10) is engaged in this case in that these records were made in the course of an investigation and in contemplation of a legal proceeding. The Defence submitted that the language of s.30(10) is broad and all encompassing. An investigation need not be in mind as suggested by the Crown. The record need only be made in the course of an investigation. The record here is made only once a person is charged, for cases going to court. A legal proceeding is contemplated. Further, an investigation does not stop at the charge. It continues through to trial. The information is collected as part of the charging process. It was sent to the Crown in this case. This is all part of the investigation.

[10] The Defence submitted that these records are generated by the police force which is indivisible from the Crown. They were not created by a third party agency such as the Ministry of Transport, or a social service agency. The accused and the police are adversarial. The police have generated a record in the course of investigating the accused and referring them to prosecution. When they create a booking document their purpose is to prosecute. The Defence submitted there are good policy reasons for the broad language used. They submitted that a necessary step in processing a charged person while he is in police custody, done by a police officer who is part of the force bringing the case to court, does not leave any room for confusion when applying the broad language of s.30(10) of the Evidence Act.

Reasons

[11] Subsections 30(1) and (10) of the Evidence Act provide as follows:

(1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record.

(10) Nothing in this section renders admissible in evidence in any legal proceeding

(a) such part of any record as is proved to be

(i) a record made in the course of an investigation or inquiry,

(ii) a record made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding,

(iii) a record in respect of the production of which any privilege exists and is claimed, or

(iv) a record of or alluding to a statement made by a person who is not, or if he were living and of sound mind would not be, competent and compellable to disclose in the legal proceeding a matter disclosed in the record;

(b) any record the production of which would be contrary to public policy; or

(c) any transcript or recording of evidence taken in the course of another legal proceeding.

[12] The Evidence Act does not define what is meant by an investigation or inquiry. However in interpreting s.30(1) and s.30(10)(a)(i) and (ii), it is important to bear in mind the purpose of these provisions. In essence, the business records exception exists because the concerns over hearsay are said to be overcome by circumstantial guarantees of accuracy; in other words, business records are inherently reliable. The exceptions in s.30(10) for business records made in course of an investigation or in contemplation of a legal proceeding are in place because those are circumstances which do not guarantee reliability; business records produced in those contexts are not inherently reliable.

[13] In Canadian Criminal Evidence, (Toronto:2011) Thomson Reuters Canada Limited at 7:130.20.30, the rationale is explained as follows:

Records made in the course of an investigation or inquiry are not admissible under this section, likely because such records are made in circumstances which may create a bias or tendency to record information with a predetermined view of the matters being inquired into.

[14] Similarly in Performing Rights Organization of Canada Ltd. v. Lion d'or (1981) Ltée, [1987] F.C.J. No. 934, Strayer J. refused to admit evidence of lists of songs compiled by employees of the plaintiff on the grounds that the asserted business record had been made in the context of an investigation. He stated the following at page 3:

…As I understand the rationale of subsection 30(10) of the Canada Evidence Act, it is to exclude records which have as their very purpose the preparation for enforcement action through litigation, and this because of the danger that such records may be somewhat coloured for the purposes of litigation and therefore unreliable. Put another way, records made in the ordinary course of business are admitted because where no dispute or litigation is contemplated it is assumed that there is normally no reason for such records to be other than accurate.

[15] Further in R. v. Dunn, 2011 ONSC 2752, Nordheimer J. stated the following at para. 22:

As observed in Lion d'or, the principal reason why documents prepared in the course of an investigation retain their inadmissible nature, notwithstanding that they may constitute business records, is the concern that records prepared when litigation is contemplated can be intentionally or unintentionally coloured or shaded in their contents. They therefore lose the fundamental requirement of reliability that business records are otherwise expected to have.

[16] The Defence relied on R. v. Schertzer, [2008] O.J. No. 226. In that case the Crown sought to introduce police memorandum books and surveillance notes belonging to one accused officer to be used against the other accused officers, in an obstruction of justice case, pursuant to s.30(1) of the Evidence Act. Justice Nordheimer simply concluded, without reasons given, that these documents were caught by the express prohibition contained in s.30(10). However, it was obviously not necessary for him to elaborate on the breadth or meaning of s.30(10) in the context of that case as the documents were clearly created in the course of an investigation. Given the allegations made against the police officers, and the circumstances in which these documents were made, one could not conclude they were inherently reliable.

[17] Nordheimer J. went on to consider the common law requirements for the admissibility of business records. He stated the following at para.15:

Further, in Monkhouse, Chief Justice Laycraft went on to explain the fundamental rationale for why business records are admissible without the need to call the author of the records. He said, at pp. 350-351:

These hearsay records are not to be accepted in evidence merely to avoid the inconvenience of identifying a witness or because many witnesses would be involved, or even because otherwise no evidence would be available. Rather, they can be admitted only if they have come into existence under circumstances which makes them inherently trustworthy. Where an established system in a business or other organization produces records which are regarded as reliable and customarily accepted by those affected by them, they should be admitted as prima facie evidence. [emphasis added]

[18] There are many cases in which records from police investigations or investigations by other public bodies were deemed inadmissible pursuant to s.30(10)(a)(i) or (ii). For example:

• Records kept by a Fire Marshall in the course of an investigation: R. v. Laverty, 1979 3010 (ON CA), 47 C.C.C. (2d) 60 (ONCA) at para. 10;
• Records kept by a Fire Marshall in the course of a wiretap authorization: R. v. Baker, 1977 318 (BC CA), 35 C.C.C. (2d) 314 (BCCA) at para. 8;
• Records compiled by the Correctional Service of Canada to assist the Crown in deciding whether to proceed with an application to compel the accused to enter into a s.810.2 recognizance: R. v. Toulejour, 2012 SKPC 86 at para. 40;
• Police occurrence reports documenting a number of violent events: R. v. Gager, 2012 ONSC 388 at para. 258.

[19] These cases all involve situations in which the records were created by persons who might be coloured by an investigatory mindset or where litigation is contemplated and might be intentionally or unintentionally coloured or shaded in their contents. It seems to me that no such concern arises with respect to a BSR, which is essentially created as an administrative document, an intake form, by an identification officer, who is not part of an investigation. It is not produced for the investigation per se, but primarily to be sent to the RCMP along with an accused’s fingerprints. I am mindful that it may be used later in this or other investigations. For example the mug shot may be used in photo line ups. But this potential does not detract from the BSR’s inherent reliability, especially the reliability of the mug shots. I note in this regard that while the Crown is asking the Court to admit the BSRs, essentially it seeks the admission into evidence of the mug shots contained therein, as part of its case on identification.

[20] R. v. Crate, 2012 ABCA 144 is a case that is factually similar to the one at hand. In Crate, the accused was convicted of attempted robbery. Identity was an issue at trial. One of the witnesses was unable to identify the accused but recalled his very specific tattoos. At trial the accused dressed in a fashion that covered his tattoos. The trial judge admitted photos taken of the accused that were taking by the police at his arrest, and on a subsequent occasion, in accordance with their standard practice. After a voir dire as to admissibility, the trial judge allowed those photos to be entered into evidence under the common law business records exception to the hearsay rule. He found he did not have to decide if they were inadmissible pursuant to s.30(10) of the Evidence Act, as having been created in the course of an investigation or inquiry, because that limitation did not apply to admission under the common law rule.

[21] On appeal, one of the issues was whether the trial judge should have excluded the photos from evidence as they were created in the course of an investigation. The appellant argued that the exception for records created in the course of an investigation should be imported in to the common law test for admissibility. The Court of Appeal stated the following at paras. 11-14:

The legislation expressly provides that it does not preclude other routes to admission. Section 30(11) states:

The provisions of this section shall be deemed to be in addition to and not in derogation of

(b) any existing rule of law under which any record is admissible in evidence or any matter may be proved.

In particular, it does not provide that any of the exceptions to admission found in s. 30 of that legislation apply to other exceptions to the hearsay rule, or specifically to the common law exception for the admission of business records. No authority supports the proposition that this limitation should be read into the common law exception.

Rather, as the common law business records exception to the hearsay rule amounts to an "existing rule of law under which any record is admissible in evidence", s. 30(11) provides that it will continue to operate independent of the provisions of that section, including independently of its exclusions.

The appellant's counsel conceded in oral argument that the law is as set out in R v Monkhouse (1987), 1987 ABCA 227, 83 AR 62 at para 15, where Laycraft CJA stated, in confirming that a summary of payroll records, prepared during the course of an investigation, was admissible: "In my view the evidence tendered was admissible under the common law rule and it is not necessary to consider whether it also met the tests of Section 30." A similar conclusion was reached in R v Bloomfield (1973), 1973 1473 (NB CA), 6 NBR (2d) 5 (CA).Therefore, any statement to the contrary, such as that found in R v Schertzer (2008), 2008 1836 (ON SC), 232 CCC (3d) 218 (Ont SC) at para 9, is not a proper statement of the law in Alberta.

While none of these cases dealt with an application to admit photos as the records in question, there is no reason to treat them differently because of their nature. While concern has sometimes been expressed about the possibility of unconscious bias creeping into documents created in the course of an investigation (see Peter McWilliams, Canadian Criminal Evidence, 3d ed (Aurora: Canada Law Book, 1988-2003) at 8-40), there seems to be little chance of that arising in photos taken in the normal course upon arrest. (Emphasis mine)

[22] Defence has submitted that both s.30(10)(a)(i) and (ii) are engaged in this case. It is submitted that s.30(10)(a)(i) should be broadly interpreted. In essence it is the position of the Defence that “in the course of” should be simply interpreted to mean “during”. However just because a mug shot is taking during an investigation, after a person has been charged and is therefore facing a criminal proceeding, does not render that mug shot unreliable or potentially unreliable. While these photos were taking during an investigation they were not taken as part of an investigation. The taking of mug shots is a standard police practice, an administrative practice. The primary purpose of the BSR, which includes the mug shots, is that it is to be sent to the RCMP. There is no evidence before the Court that BSRs were used in this investigation or that they were made in contemplation of these legal proceedings. They were made to be sent to the RCMP along with the accused’s fingerprints to populate an accused’s criminal record. This Court should give an interpretation of these sections that accords with a purposive approach. It is my view that the mug shots are admissible as business records and are not caught by the exceptions contained in s. 30(10)(a)(i) and (ii). Moreover, while not argued before me, they may well be business records under the common law rule as determined by the Alberta Court of Appeal Crate.

Evidence of Constable Diraddo

[23] The Crown sought to introduce the evidence of Constable Diraddo that he recognized Mr. Warsame as one of the males in the surveillance photographs taken on May 17, 2010, based on a prior interaction he had with him. The Crown also sought to question Constable Diraddo about his dealings with Mr. Warsame on July 18, 2010 when he arrested him and ask him about comparisons between Mr. Warsame and the males in the surveillance photographs.

[24] Constable Diraddo testified that sometime in 2010 he become a patrol officer assigned to the central neighbourhood office. Central patrol covers the downtown area, the market and its outskirts. On July 18, 2010 he advised Sergeant Campbell that he identified one of the males in the mass distribution email sent out of surveillance photos from the May 17th incident. He identified Mr. Habil Warsame. Sergeant Campbell told him Mr. Warsame could be arrested for trafficking should he come across him again. On July 18, 2010 he arrested Mr. Warsame at 23:06 p.m. while playing basketball at the York Street School. Constable Diraddo read Mr. Warsame his rights, brought Mr. Warsame to the police station on Elgin Street and had close dealings with him in the cell block area, as detailed in his evidence, until approximately 1:15 a.m. on July 19, 2010.

[25] Constable Diraddo was asked how he was able to identify Mr. Warsame. He responded that he has dealt with him on a previous occurrence in the normal course of his duties and remembered his name. He said Mr. Warsame had identified himself during this dealing but did not recall how. He could not say where or when this contact occurred. It was not with respect to a criminal offence so he did not have notes. Constable Diraddo did not recall any details with respect to this dealing. He did not recall how long the dealing was. It could have been 30 seconds. It could have been three and one half minutes. He could not recall what Mr. Warsame was wearing or if he was with others. He could not recall if it was day or night. He could not recall any distinguishing features in the photograph that made him think that Mr. Warsame was the man he spoke to. Constable Diraddo said the he recognized Mr. Warsame’s face as that person from his previous dealing. He said “Certain people stick out to you.” He also testified that he patrolled the area all the time and had seen Mr. Warsame occasionally when he patrolled the area. He could not say how many times. However, he only dealt with Mr. Warsame on the one occasion when he provided his name. Constable Diraddo agreed there are a lot of people in that neighbourhood and many are African American.

[26] On July 18, 2010, Constable Diraddo described Mr. Warsame as a black male, 5’9”, with a slim to medium build and short black hair. He was the male in the red shirt he had identified in the surveillance photo.

[27] In cross-examination, Constable Diraddo agreed that he had been lied to in the past, while on patrol, when he asked a person their name, so as to avoid arrest. He could not recall if he went to see Sergeant Campbell when he identified Mr. Warsame or if they spoke on the telephone. Constable Diraddo could not remember if Sergeant Campbell interviewed him or took notes. Sergeant Campbell did not take a formal statement from him. Constable Diraddo agreed that there was no formal interview or written statement as would have occurred with a civilian witness. There was no photo line up done. He could not recall if Sergeant Campbell attempted to illicit from him the nature of his recognition, the basis of his recognition or his degree of confidence in his recognition.

Submissions of Counsel

[28] It is submitted by the Crown that prior recognition evidence is admissible where a witness had a prior interaction with an accused which provided him with some basis for his evidence and the evidence is helpful to the trier of fact because the witness had some advantage that can shed light on the evidence in question. The Crown submitted that Constable Diraddo’s prior interaction with Mr. Warsame provided him with a basis for his evidence regarding Mr. Warsame as one of the males in the surveillance photographs. Further, the Crown submitted that Constable Diraddo’s evidence about his personal encounter with Mr. Warsame prior to May 17, 2010 is helpful to the Court. He had an ability to see Mr. Warsame in the 3D version, up-close (unlike the courtroom, where the accused is at a distance from the judge) and closer to the date of the offence.

[29] In addition, the Crown noted that he is not going to ask the Court (nor did he ask any witness) to compare the accused in court to the surveillance photo in accordance with R. v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197. The Crown submitted that Constable Diraddo had significant and close dealings with Mr. Warsame on July 18-19, 2010 and this put him in a better position than the Court to give evidence that the person in the surveillance photo is Mr. Warsame. It is submitted that Constable Diraddo was dealing with what Mr. Warsame looked like on July 17, 2010 and comparing it to the photo taken on May 18, 2010. The Crown stated that this evidence is helpful to the trier of fact. In support of his submissions the Crown relied on R. v. Berhe, 2012 ONCA 716 and R. v. Berhe, 2013 ONCJ 368.

[30] The Defence submitted that Constable Diraddo gave a bald conclusory statement as to how he recognized Mr. Warsame. The Defence stated, based on the Court of Appeal decision in Berhe, that the test with respect to prior recognition evidence and familiarity, is whether the witness is sufficiently familiar with the accused. The test is not “any” familiarity. The Defence referred to paragraphs 20, 21 and 22 of this decision. The Defence noted that the shorter the interaction that the witness had with the accused, the more need for identifying characteristics to be given. Constable Diraddo described a short period of time of contact and declined to give descriptors of Mr. Warsame.

[31] The Defence further submitted that there is no support in law for the admission of Constable Diraddo’s “post” identification recognition evidence. All Constable Diraddo would be doing is looking at the accused live and comparing it to the surveillance photo and in that situation he is in no better position than the Court. The Defence stated that Constable Diraddo could have been put in a better position had another officer been sent out to arrest Mr. Warsame or if a photo line up had been done either with Constable Diraddo, Detective Linette or both.

[32] The Defence relied on R. v. John, 2010 ONSC 6085.

Reasons

[33] The Ontario Court of Appeal in Berhe recently set out the law to be applied with respect to non-expert recognition evidence. The accused was convicted of several counts of indecent exposure and two counts of breach of probation. The key evidence supporting his conviction was the non-expert opinion evidence of a Toronto Transit Commission officer who testified that he was able to identify the accused from a photograph made from a frame of a video taken at the time of the alleged offence, because he was familiar with the accused from “previous dealings” with him. A voir dire was not conducted by the trial judge to determine the admissibility of that evidence. At sentencing it became known that the “prior dealings” were a single brief interaction two years before the identification when the officer had served Behre with a summons. On appeal, the summary conviction appeal judge concluded that a voir dire should have been conducted, but held that the recognition evidence would inevitably have been admitted on application of the proper criteria for admissibility of such evidence. The curative proviso was applied.

[34] Blair J. wrote for the Court of Appeal. While he was not persuaded that the summary conviction judge applied the wrong test for admissibility, he allowed the appeal and ordered a new trial because he was not convinced that had a voir dire been conducted, the evidence would have been inevitably admitted.

[35] Blair J. considered the test to be applied. He noted that it has long been accepted that non-expert, lay opinion to the effect that a witness recognizes the image of a person seen in a photograph or on videotape, based on a prior connection with that person, may be admissible in certain circumstances. He stated the following at para. 14:

In R. v. Brown, 2006 42683 (ON CA), 215 C.C.C. (3d) 330 (C.A.), at para. 39, Rosenberg J.A. stated succinctly that "this 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." Rosenberg J.A. relied on the decision of the Supreme Court of Canada in R. v. Leaney, 1989 28 (SCC), [1989] 2 S.C.R. 393, at p. 413, for that proposition, which I would characterize as the "prior acquaintance/better position" test. I would re-affirm that test.

[36] Counsel urged the Court of Appeal in Berhe to adopt the more stringent test set out by Harradence J.A. in R. v. Leaney, [1987 ABCA 206], one requiring the witness to have sufficient, prior familiarity with the accused’s unique features to enable the witness to describe the accused’s idiosyncrasies as portrayed on the videotape. The Court of Appeal refused to do so. The following was stated at para. 20-22:

Secondly, I am satisfied that the test as set out by the Supreme Court in Leaney and articulated by this Court in Brown, has the advantage of flexibility while at the same time providing sufficient criteria - familiarity with the person identified and being in a better position than the court to make the identification - to enable the court to perform its gate-keeping function for purposes of determining threshold admissibility. At the voir dire, the judge may or may not conclude that the potential witness is sufficiently familiar with the person whose identity is in question to be in a better position than the trier of fact to assist in making the identification. What weight is to be given to the evidence ultimately is a different consideration.

I do not see this as being inconsistent with the underlying principles of opinion and identification evidence, namely that opinion evidence is generally inadmissible "because it is a fundamental principle of our system of justice that it is up to the trier of fact to draw inferences from the evidence and to form his or her opinions on the issues in the case": R. v. K.(A.) (1999), 1999 3793 (ON CA), 45 O.R. (3d) 641 (C.A.), at para. 71. Nor do I see it as inconsistent with the view that "there must be some basis for the opinion before it can be given any weight": see R. v. Cuming, 2001 24118 (ON CA), 158 C.C.C. (3d) 433 (C.A.), at para. 21. Both of these benchmarks are well established. The "prior acquaintance" branch of the Leaney/Brown test enables the trial judge, on a voir dire, to sort out whether the potential witness is sufficiently familiar with the person sought to be identified to have "some basis" for the opinion - or, "an articulated basis," as some have said¹ - and the "better position" branch ensures that the evidence will only be admitted if it is helpful to the trier of fact because the potential witness has some advantage that can shed light on the evidence in question.

In my view, however, it is going beyond what is necessary for threshold admissibility to add another layer to the test requiring the recognition evidence witness to show that he or she can point to some unique identifiable feature or idiosyncrasy of the person to be identified. Such concerns are better resolved in determining the ultimate reliability of the evidence. There are many ordinary people who do not have any particular identifiable features or idiosyncrasies differentiating them from the normal crowd; people familiar with them may well be able to identify their photograph, however. In that respect, I think the following comment by Holmes J. in R. v. Panghali, 2010 BCSC 1710, [2010] B.C.J. No. 2729, at para. 42, is apt:

Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.

[37] Constable Diraddo’s evidence is set out above. He testified that he saw Mr. Warsame on a number of occasions as he patrolled the neighbourhood but could not say how many times. He could recall no detail about the one dealing he had with Mr. Warsame, sometime in 2010, but before May 17, 2010. He could not recall where or when this was, the length of the encounter. (It could have been 30 seconds. It could also have been three and one half minutes). He could not recall what Mr. Warsame was wearing, if it was day or night or if others were there. He said that Mr. Warsame identified himself during this dealing but could not recall how. All he could respond, when asked how he was able to identify Mr. Warsame was that he had dealt with him on a previous occurrence and remembered his name. He said “Certain people stick out to you” but he did not say why or how Mr. Warsame stood out for him. Constable Diraddo was only able to provide the Court with a bald conclusory statement as to how he recognized Mr. Warsame. He was unable to recall any distinguishing features in the surveillance photograph that made him think that Mr. Warsame was the man that he spoke to. I am mindful of the comment of Holmes J. in R. v. Panghali, 2010 BCSC 1710, set out in Berhe, that where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. Constable Diraddo’s encounter with Mr. Warsame was brief if not very brief.

[38] In these circumstanced I am not satisfied that Constable Diraddo is sufficiently familiar with Mr. Warsame to have “some basis” for his opinion or an “articulated basis.” The test is not, as was suggested by S.S. Nakatsuru J. in Berhe, (involving another charge against the same accused), that any prior acquaintance, whether particularly meaningful or not, should suffice. Constable Diraddo’s lay opinion evidence that Mr. Warsame is the individual in the surveillance video cannot be accepted in the circumstances of this case.

[39] The Crown has also requested that this Court admit the non-expert lay opinion evidence of Constable Diraddo that the person he arrested on July 18, 2010 is the person in the surveillance photo. He provided no case law to the Court in support of this proposition that this non-expert lay opinion is admissible. It is, in essence, post identification recognition contact and there is no support for this in law.

[40] Further, Constable Diraddo’s evidence is obviously susceptible to tainting. This is quite problematic in that he arrested the person he had already identified and believed to be the man in the surveillance photo. At best, his post identification acquaintanceship evidence is sufficient to enable him to testify that the man he arrested, Habil Warsame, is the man before the Court. The Crown did not ask this question at trial. However, Constable Diraddo’s evidence about how he came to arrest Mr. Warsame and what occurred thereafter on the night of July 18 through July 19 is of course admissible.

[41] In summary, for the reasons given, the mug shots of the accused are admissible. The evidence of Constable Diraddo, except as noted above, is not admissible.

Polowin J.

Released: December 4, 2013

COURT FILE NO.: 10-8366

**DATE:**20131204

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

WAHIB FARHAN and HABIL WARSAME

Decision on the Voir Dires

Polowin J.

Released: December 4, 2013