ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-39
DATE: 2014/04/08
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DAVID LAPENSEE
Jennifer Burke, Counsel for the Crown
James Foord, Counsel for the Defendant
HEARD: March 7, 2014
REASONS FOR JUDGMENT
Leroy, j.
introduction
[1] Mr. Lapensee appeals the judgment of the Honourable Mr. Justice P. Adams dated November 6, 2012 following trial. Justice Adams convicted Mr. Lapensee for stealing money from his employer in an amount that did not exceed $5,000 contrary to s. 334(b) of the Criminal Code. Mr. Lapensee asks that the conviction be set aside and a new trial ordered.
[2] The grounds of appeal are that:
The trial judge erred in admitting testimony regarding the content of a video in the absence of evidence demonstration that the video had not been altered or changed;
The trial judge erred in admitting evidence of the video footage as its probative value was substantially outweighed by its prejudicial effect;
The trial judge misapprehended the evidence resulting in a miscarriage of justice; and
The trial judge erred in reversing the onus of proof.
[3] The appeal succeeds for the following reasons.
BACKGROUND
[4] The proceeds of sale for November 20, 2009 at a fast food restaurant in the amount of $2,653.86 are missing. Mr. Lapensee was the manager on Sunday, November 21, 2009. One of his tasks was to ensure that the previous day’s revenues were delivered to the bank night deposit chute by a set time, either 10:00 a.m. or 11:00 a.m.
[5] Mr. Lapensee was the last person from the restaurant to have possession of the deposit package. He removed the package from the store safe at 9:30 a.m. on November 21, 2009. There is contention about when he left the restaurant to go the bank. The journey to the bank is short and a round trip might consume ten minutes.
[6] Mr. Lapensee testified to taking the package to the chute, dropping it in and returning to the store for the day. The Crown case is that Mr. Lapensee did not go to the bank and stole the money.
[7] Investigation into alternate explanations for the disappearance of the money did not uncover the money – witnesses Joslin, Najem, Meeham and Fletcher.
[8] The bank is located in a shopping center. The landlord operates security video recording cameras that swivel to sweep the area open to the camera’s purview. One camera captures the bank drop chute for a few seconds every minute.
[9] The Crown indicated to the Court that the recording had been destroyed. She advanced three witnesses, as sources of secondary best evidence, who say they viewed the video recording of the day and did not observe Mr. Lapensee at the drop chute on the segment they watched.
[10] Over defence counsel’s objection, Justice Adams ruled: “I am content hearing the submissions that the tape has some relevancy and I will allow the questions by the Crown from Ms. Sabourin (the first of the three witnesses to testify) about her viewing at the time.”
THE TESTIMONY OF THE THREE WHO WATCHED THE VIDEO RECORDING
[11] Ms. Sabourin, bank employee, said that she watched the recording on December 18, 2009 with Diane Dupuis and William McKee, in his office, beginning at 2:00 p.m. Although she was not exactly sure, she said that they watched the video recording for November 21, 2009 from 8:00 a.m. to noon and later she said from a few hours before 8:00 a.m. to after 12:00 noon. She testified that she did not observe Mr. Lapensee access the night deposit chute. She did not take notes and was unaware of the colour of car she was to look for. She saw one individual access the night deposit who she concluded was not Mr. Lapensee. Her response to the Crown question about whether she could distinguish that individual from Mr. Lapensee was “Yes. It didn’t match the description because Diane I believe had the car colour and everything.”
[12] She opined that “somebody can’t come and go before we see it again because I mean, you know, you can see them walking up or like”.
[13] Diane Dupuis, bank employee, said that she met Mr. Lapensee for the first time as the result of this loss and he told her that he made the deposit between 9:00 a.m. and 10:00 a.m. She says they watched the video recording from November 21, 2009 from 7:00 or 8:00 a.m. to noon. She did not keep notes. She did not see Mr. Lapensee at the night deposit chute. She said that she did not remember observing a 2003 Chevrolet Venture or a 2009 Chevrolet Cavalier, although she did recall seeing some small cars but could not remember the exact detail or the type or the make of the vehicles. In response to a question directed at her reason for not offering the video recording to Mr. Lapensee she said “It was just us playing investigators.”
[14] William McKee works for the landlord and has control of the video recordings. He described the surveillance camera placements and service. He said the camera scanned in approximately less than one-minute intervals. The bank employees watched the recording in his office. He did not keep notes. He recalls they watched the portion of the video of November 21, 2009 from 8:30 to 10:00 a.m. He did not know the vehicle they were looking for. After a request from the investigating officer, he watched the same excerpt later looking for a particular vehicle or vehicles (he did not recall whether he was looking for one or two vehicles) and did not see it or them on review.
[15] The trial judge relied heavily on the testimony from these three witnesses in deciding to convict. He did not believe Mr. Lapensee’s assertions of innocence and concluded that defence evidence did not raise a reasonable doubt primarily because the surveillance camera recording established that he did not go to the deposit chute that day during the times asserted. The surveillance footage trumped defence evidence. He concluded that the Crown proved its case beyond reasonable doubt based on all the evidence primarily because the video surveillance footage “clearly indicates that Mr. Lapensee was not in or near the bank during the time of deposit.”
Issue 1: Did the trial judge err in admitting testimony regarding the content of a video in the absence of evidence demonstrating that the video had not been altered or changed?
[16] Foundational requirements are requirements of logic and not rules of law. The evidence from Mr. McKee confirmed that the video was not altered or changed at the times of viewing. The video recording would have been admissible evidence, were it available.
[17] The level of authentication required for admitting real evidence is relatively low. Once the evidence has been admitted, it is for the trier of fact to determine the weight to give it.
[18] Authentication of photographs and video recordings involves three criteria:
Their accuracy in truly representing the facts;
Their fairness and absence of any intention to mislead; and
Their verification on oath by a person capable of doing so.
[19] The Crown represented to the Court when Ms. Sabourin was testifying that she would present Mr. McKee to authenticate the recording. Mr. McKee confirmed the purpose, placement and operation of the cameras as well as the time period they dedicated to watching the videos. On cross-examination, he confirmed that the video recording had not been altered at the time they watched it.
[20] All three confirmed that the camera captured the area of the drop chute as part of the minute-to-minute sweep.
[21] A recording, if available, is admissible on authentication confirming that it had not been altered or changed and that it depicts the scene of a crime. In R. v. Nikolovski, 1996 158 (SCC), [1996] S.C.J. No. 122, the accused was captured on a video recording. The Court observed that this type of evidence can establish innocence as effectively as it may establish guilt. A video camera accurately records that which is within its purview. The Court concluded that once it is established that a videotape has not been altered or changed and that it depicts the scene of a crime, it becomes admissible and relevant evidence. The clarity, quality of the tape and the length of time the accused appear on the tape will all contribute to an ability to evaluate weight.
[22] The video evidence would not have been excluded on the basis of a probative value/prejudicial effect weighing. It had the potential of vindicating Mr. Lapensee.
[23] If it had been available, it would have been admitted.
[24] Secondary evidence may be admitted when the court is satisfied that the original document existed and has been lost or destroyed. The determination of whether a document has been lost or destroyed is a decision to be made by the judge as a mixed question of fact and law that may be reviewed on appeal.
[25] In a judge alone trial, this would be a mini discrete voir dire. In a jury trial, it would involve a pre-trial or mid-trial voir dire. Proof that failure to produce the original is due to inability to do so tends logically to dispel the otherwise possible inference that the failure stems from design. Generally, the proponent shows that all reasonable avenues of search be explored to the extent that reasonable diligence under the circumstances would dictate.
[26] If the original document was destroyed by the person who offers evidence of its contents, the evidence is not admissible unless, by showing that the destruction was accidental or was not done in good faith, without intent to prevent its use as evidence, he rebuts to the satisfaction of the trial judge an inference of fraud.
[27] The context of the enquiry was stated in R. v. Swartz [1977] O.J. No. 694 which involved recordings proffered in evidence which were re-recordings of the originals which had been destroyed. It is incumbent on the Crown to produce clear and convincing evidence of authenticity and accuracy as a foundation for the admission of a duplicate.
[28] The best evidence rule, standing alone, allows secondary evidence once proof of loss and good faith is established. Some means of proof, all of which are admissible as secondary evidence, are more reliable than others:
• Mechanical reproduction – photocopy
• A first-hand copy by someone who was looking at the copy while he copied – immediate copy
• A copy however made which has been compared to the original and found correct – examined copy
• A second hand or mediate copy – copy of a first-hand copy
• Oral testimony as to the terms of the writing with memory aided by previously made memorandum
• Oral testimony from unaided memory
[29] There are no degrees of substantive evidence.
[30] Defence did not contest the fact or circumstances of the loss or destruction of the video recording so a voir dire on that issue was not held. The secondary witnesses attested to having viewed the recording for the morning in question. The trial judge was entitled to admit the secondary evidence.
Issue 2: Did the trial judge err in admitting evidence of the video footage as its probative value was substantially outweighed by its prejudicial effect?
[31] The Crown syllogism was: Everyone who attends to the drop chute is captured on camera. Mr. Lapensee was not caught on camera. Mr. Lapensee did not attend to the drop chute during the time watched.
[32] If the first assumption is not proven correct, the logic is lost. I agree with Mr. Foord’s submission on the evidentiary value of Ms. Sabourin’s opinion to this point. It has no probative value. That finding is the domain of the trial judge who, after factoring in all the evidence, will make the appropriate conclusions of fact.
[33] The law of evidence gives the trial judge the task of balancing the value of the evidence against its potential prejudice. Virtually all common law jurisdictions recognize a power in the trial judge to exclude evidence on the basis that its probative value is outweighed by the prejudice which may flow from it - R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577. Prejudice usually relates to issues of trial fairness and efficiency.
[34] The Court cited Professor McCormick, in McCormick's Handbook of the Law of Evidence (2nd ed. 1972), who puts this principle, sometimes referred to as the concept of "legal relevancy", as follows at pp. 438-40:
Relevant evidence, then, is evidence that in some degree advances the inquiry, and thus has probative value, and is prima facie admissible. But relevance is not always enough. There may remain the question, is its value worth what it costs? There are several counterbalancing factors which may move the court to exclude relevant evidence if they outweigh its probative value. In order of their importance, they are these. First, the danger that the facts offered may unduly arouse the jury's emotions of prejudice, hostility or sympathy. Second, the probability that the proof and the answering evidence that it provokes may create a side issue that will unduly distract the jury from the main issues. Third, the likelihood that the evidence offered and the counter proof will consume an undue amount of time. Fourth, the danger of unfair surprise to the opponent when, having no reasonable ground to anticipate this development of the proof, he would be unprepared to meet it. Often, of course, several of these dangers such as distraction and time consumption, or prejudice and surprise, emerge from a particular offer of evidence. This balancing of intangibles -- probative values against probative dangers -- is so much a matter where wise judges in particular situations may differ that a leeway of discretion is generally recognized.
[35] In R. v. Pires [2012] ONCJ 713, the reference by the store clerk and police to a video surveillance recording he viewed that had been lost did not violate the best evidence rule. In terms of balancing probative value and prejudicial effect, defence had the opportunity of cross-examining the witnesses who observed it. The witnesses made statements and notes, contemporaneously to the event, that were disclosed to defence. Their evidence was detailed in terms of what they observed. Prejudice was much diminished by these circumstances. The probative value was higher as it showed the accused in the accident and entering the store.
[36] There are unresolved concerns about the secondary evidence that affect its probative value. The witnesses who were the secondary evidence adduced by the Crown did not take notes. Mr. McKee would not be in a position to identify Mr. Lapensee. Ms. Sabourin and Ms. Dupuis presumably would be able to discern him if he was out of his car on camera. It is unclear from the transcript if they were attuned to the vehicle they were looking for. Ms. Dupuis confirmed seeing small cars. They were at variance as to the times watched. If they watched between four and six hours of video recording in ninety minutes, they did not watch the recording in real time.
[37] The destruction of the recording inherently prejudices defence. The recording brought possible vindication. The witnesses were not trained investigators. They were playing investigator. At the time, they had not anticipated being called to testify about the reliability of their forensic process or what they saw or did not see. Their casual approach to terms of reference (make and model of vehicle, time of day to scrutinize, detailed note-taking – all standard for an officer) and the passage of time and fading memory compromised effective cross-examination.
[38] The trial judge did not advert to this issue. A ruling on the weighing of probative value and prejudicial effect in relation to the secondary evidence will have to be made on the re-trial.
Issue 3: Did the trial judge misapprehend the evidence resulting in a miscarriage of justice?
[39] The fact finder is entitled to deference. Reasons for judgment must be read as a whole and must be read with an appreciation of the purpose for which they were delivered.
[40] When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge's verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then the accused's conviction is not based exclusively on the evidence and is not a "true" verdict. Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence, then the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction – R. v. Morrissey (1995), 97 C.C.C.(3d) 221.
[41] The misapprehended evidence must be central to the trial judge’s reasoning. If the trial judge would inevitably have come to the same conclusion without the misapprehended evidence, there is no miscarriage of justice - R. v. Alboukhari, [2013] ONCA 581 –
[42] Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown’s case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction. Although reasonable people may disagree about their appreciation of the facts, a conviction, which conveys legality, authority and finality, is not something about which reasonable people may disagree. A conviction cannot be unreasonable, except as a matter of law, in which case it must be overturned - R. v. Biniaris, 2000 SCC 15, [2000] S.C.J. No. 16.
[43] The reasons for judgment are in two parts: Part 1 sets out the findings of fact and conclusions and Part II is a recitation of the evidence adduced at trial. They are incongruous.
[44] It was open to the trial judge to conclude that Mr. Lapensee left the restaurant to perform the deposit during a time period reviewed by the secondary witnesses. He did not overtly address the time frame issue, but it can be assumed he did. Both bank employees stated that they watched the recording content beginning before 9:00 and ending after 12:00 noon. That would capture any of the time frames offered. It was open for the trial judge to conclude that the secondary witnesses did not discern Mr. Lapensee depicted in the video. That was their evidence.
[45] The evidence adduced at trial could not support the findings that the drop chute has a video, that Mr. Lapensee viewed the recording, that only one vehicle passed by the chute area that morning or that the video was entered as an exhibit. The evidence did not support a conclusion, which is the Crown’s first assumption, namely that every person who attends to the drop chute is caught on camera. The evidence is that the drop chute is captured for a few seconds every minute and that it takes 30 seconds to exit the car, open the chute, place the deposit, close the box and re-enter the car for exit.
[46] The trial judge accepted the negative summary as dispositive proof positive that Mr. Lapensee did not attend to the drop chute that morning. That was the basis for each of the W.(D.) conclusions. He disbelieved defence evidence because Mr. Lapensee was not captured on camera. He concluded that defence evidence did not raise reasonable doubt for the same reason and that on all the evidence the Crown made its case for the same reason.
[47] Those misapprehensions drove the conclusion that the negative was dispositive and demonstrate that the conviction depended on a misapprehension of central evidence.
Issue 4: Did the trial judge reverse the onus of proof?
[48] Trial judges are required to apply the W.(D.) decision tree when the defence adduces evidence and credibility is important. The first two questions deal with what the trier is to do with the evidence of the accused. If the trier believes the evidence of the accused, acquit. If the trier does not believe the testimony of the accused, but is left in reasonable doubt, acquit.
[49] The third enquiry is made when the trier rejects the evidence of defence and is the enquiry that ensures the trier does not wrongly transform the assessment into an “either or” decision tree. The task is to assess whether on the basis of the evidence that is accepted, that the evidence establishes guilt of the accused beyond reasonable doubt.
[50] The appellant submits the trial judge fell into error when he assessed and accepted Crown evidence and then assessed the appellant’s evidence by comparing it to the Crown’s evidence that he believed. In doing this, the appellant alleges, the trial judge turned the case into a contest that required Mr. Lapensee to explain away the secondary evidence negative. This resulted, the appellant argues, in the improper shifting of the burden of proof to the appellant.
[51] The impugned segment is as follows:
Finally, there has been proof beyond reasonable doubt that he failed to deposit the bank at that time and place, indicated by both KFC employees and the bank employees. The video, its time and location seen by the security officer and the bank employees clearly indicates that Mr. Lapensee was not in or near the bank during the time of deposit. This was not a “whodunit”. Mr. Lapensee said that he put the bag in the deposit box and there is no proof that he did so – page 6/7 reasons.
[52] It does provide grounds for the appellant’s contention that he was required to explain away the fact that he was not perceived by the secondary witnesses on the video recording.
[53] Mr. Foord is correct in the submission that Mr. Lapensee is not required to prove anything. The burden of proof is on the Crown throughout. Mr. Lapensee is entitled to the presumption of innocence unless and until the Crown proves its case beyond reasonable doubt.
[54] The appeal succeeds. The cumulative effect of the errors raises issues of trial fairness. It must follow that the appellant did not receive a fair trial. A new trial is required.
[55] The conviction is struck and a new trial ordered.
Justice Rick Leroy
Released: April 8, 2014
COURT FILE NO.: 13-39
DATE: 2014/04/08
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DAVID LAPENSEE
REASONS FOR JUDGMENT
Justice Rick Leroy
Released: April 8, 2014