ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-R1884-01-02

DATE: 2014/02/26

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ISMAN MOHAMED OSMAN

Dallas Mack and Matthew Humphreys, for the Crown

Leonardo Russomanno, for the Accused

HEARD: February 25, 2014

RULING ON Motion Re:

Admissibility of 2009 Photograph of Accused

KANE J.

Defence Objection: 2009 Police Photo of Accused in “Adidas Jacket”

[1] Mr. Osman is on trial before a jury for charges which include counts of robbery of convenience stores. These series of robberies occurred in the fall of 2011. Some of those robberies are performed by one person. Some are performed by several intruders.

[2] The robbers in each case had their faces covered by masks or balaclavas. Identity, namely whether the accused is the perpetrator or one of the robbers, is the central issue. The Crown’s case as to identity is largely based on circumstantial evidence.

[3] Video recordings made within the stores robbed are in evidence. Two of the video recordings in September, 2011 show a robber wearing a dark coloured jacket or top with what appears to be white vertical stripes down the arms. This piece of clothing, and on other occasions in relation to pants with vertical side stripes worn by one of the intruders, have been referred to as Adidas tops or pants. It is the Crown’s theory that the accused is wearing these stripped tops and pants during these robberies.

[4] One police officer testified that he and a group of other officers conducted surveillance of the accused on October 24, 2011. Officer Varga testified that the surveillance team were following Mr. Osman. He testified that at 19:45 hours, he observed that Mr. Osman was wearing an Adidas dark jacket with three stripes on both arms which ran from his shoulder to his wrist. In cross-examination, this officer was challenged that due to the distance between he and the accused; he would not have been able to see and identify three Adidas like stripes on the arms of the jacket worn that evening by the accused. The officer did not change this evidence notwithstanding an exchange involving distance between he and the suspect testified to in chief versus what he testified to at the preliminary inquiry.

[5] The Crown now seeks to enter in evidence a photograph of the face and upper front shoulders of the accused. That 2009 photograph was taken by police upon the arrest or booking of the accused in an unrelated matter. The defence objects to the introduction of this evidence. No evidence regarding this photograph has been called.

[6] The Crown argues that the probative value of this photograph consists of its proof that the accused wore such a jacket in 2009 and that fact makes it more likely the accused is the person shown in the store videos committing these two offences.

[7] The Crown submits that:

(1) this photograph constitutes another piece of circumstantial evidence as to the guilt of the accused;

(2) section 30 (1) of the Canada Evidence Act, RSC 1985, Chap. C-5, permits it to introduce this photograph in evidence as a police business record as acknowledged in R. v. Farhan, 2013 ONSC 7094;

(3) there is no risk of reasoning prejudice based on R. v. Downey, [1986] N.S.J. No. 431 (NSCA) and R. v Reddick, [1989] NSJ No. 51 (NSCA);

(4) probative value to the Crown is strong as the defence challenged Officer Varga’s evidence that he saw Mr. Osman wearing an Adidas jacket; and

(5) as to prejudice, the Crown argues that the jury knows this accused was arrested on two prior occasions on October 5 in Rockland and on October 25, 2011, and by way of similar fact evidence beyond the charged events, the jury knows that Mr. Osman committed a convenience store robbery on October 1, 2011 which is much more potentially inflammatory evidence. Accordingly it is argued that this 2009 photograph by comparison, represents minor prejudicial risk and that can be addressed with an appropriate instruction by the judge.

ANALYSIS

[8] The court in Farhan concluded that pictures taken by police upon charging someone with an offence are police business records and therefore admissible within s. 30 (1) of the Evidence Act and are not exempt from that admissibility principle as part of the investigative exemption under s. 30(10) of that Act. Those business records provision do not however address the evidentiary principles of relevance and the test of probative versus prejudicial weight.

[9] The decisions in Downey and Reddick similarly do not address these same evidentiary and admissibility principles. The focus in those decisions is the requirement to instruct the jury when such evidence is introduced.

[10] The Crown is not seeking to introduce this 2009 photograph to establish the identity of Mr. Osman but rather to establish that in 2009, he owned or wore an Adidas jacket like that worn by an intruder in two of these 2011 robberies and thereby link the accused by that circumstantial evidence to those two robberies.

[11] Photographs are useful and reliable evidence as generally:

(1) they are an accurate reflection of the facts;

(2) they are fair in the absence of any intention to mislead; and

(3) they may be verified by testimony under oath.

[12] There are several conditions related to the admissibility of evidence.

[13] This photograph is presumptively admissible evidence, within the context of s. 30 (1) of the Evidence Act.

[14] Circumstantial evidence as to the identity issue in this case is relevant. That begs several questions however which include:

(1) is the article of clothing worn in this picture by Mr. Osman in 2009 an Adidas product?

(2) what is the colour of the clothing in this 2009 picture?

(3) if the accused in this 2009 picture was wearing a black Adidas jacket, what is the relevancy of that to the issue as to who performed these robberies in 2011?

[15] My concern is that the prejudicial risk of this evidence outweighs its probative weight.

[16] A trial judge has discretion to exclude evidence where its probative value is outweighed by its prejudicial effect or where the effect of admitting the evidence would be to mislead the jury or render the trial unfair: R. v. Mohan, [1994] 2 SCR 562.

[17] Even where the evidence is logically relevant and is not prohibited by a specific exclusionary rule and therefore admissible, a judge may take into account other considerations to determine whether its probative value exceeds its prejudicial effect and impact on the trial process or fairness in its introduction into evidence. The evidence should be excluded where its reliability is questionable and its prejudicial impact is significant.

[18] The picture shows the accused wearing clothing with three white bars on the top of the shoulders. Whether those three stripes continue over the shoulders and down the arms, whether the stripes exceed three and continue down the back or front, or whether the base colour of this piece of clothing is black or a dark blue, are not discernable from the photograph.

[19] Defence lacks the opportunity to explore the manufacturer and colour of the clothing worn in this photograph without the associated risk of prejudice related to the accused’s involvement with police in 2009 being placed in evidence. As stated, no evidence has been presented beyond the photograph.

[20] The Crown undoubtedly will submit to the jury that it would be reasonable to conclude that this picture shows the accused wearing an Adidas jacket identical to the top worn by one of the intruders at two of these robberies.

[21] Adidas is a commonly known sports clothing manufacturer. Many people wear their clothing which is identifiable as their product by the three white vertical stripes. Notwithstanding the police officer’s surveillance evidence in October, 2011 that the accused was then wearing an Adidas jacket on that occasion, the Crown will invite this jury to link the accused to these crimes because he wore a jacket with similar stripes by a popular clothing manufacturer, two years previously.

[22] The Crown will invite the jury to draw the inference that because the accused wore an Adidas top in 2009, this evidence may be relied upon to assist in identification of who is the masked robber two years later wearing a top distributed by the same manufacturer. That is an invitation to the jury to draw an inference on questionable grounds.

[23] This stripped top in this 2009 photograph is not in evidence, unlike the burgundy shorts. There is no evidence that police searched the home of the accused and found an Adidas jacket top.

[24] Independent of the risk that the jury may draw a negative conclusion against the accused because of his involvement with police in 2009; this picture is not conclusive as to the above questions.

[25] The popularity of this clothing manufacturer and the fact this picture was taken two years prior to these robberies reduces the relevance of this evidence. Those same factors increase the risk of prejudice on the central issue of identity.

[26] Prohibiting introduction of this evidence does not eliminate the more current 2011 evidence of the police officer as to the accused wearing a top by the same manufacturer. In short, prohibiting introduction of this photograph is a denial of only one piece of similar circumstantial evidence on the same point.

[27] I am not usurping the role of the jury in the above observations. These are relevant observations within a judge’s gate keeper role.

[28] For the above reasons, I conclude that the risk of prejudice associated with this piece of evidence outweighs its probative value. Allowing its introduction into evidence would be unfair to the accused’s rights. The request of the Crown is therefore denied.

Kane J.

Released: February 26, 2014

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ISMAN MOHAMED OSMAN

RULING ON MOTION RE: admissibility of 2009 photograph of accused

Kane J.

Released: February 26, 2014