BARRIE COURT FILE NO.: 13-158

DATE: 20140718

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

VALTER ALMEIDA

Defendant

J. Janiuk, for the Crown (Respondent)

A. Page, for the Defendant (Applicant)

HEARD: July 14, 15 & 16 2014

REASONS FOR DECISION – VOIR DIRE – APPLICATION TO EXCLUDE PHOTOGRAPH EVIDENCE

McCarthy J.

The Application

[1] The Applicant brings an application for a declaration that certain photographs found on a seized Blackberry phone are not admissible as evidence at trial. The application was heard as a voir dire before me prior to the trial of this matter.

Background

[2] The Applicant is charged with offences arising out of an incident which took place in Wasaga Beach on July 1, 2012. The charges include Assault with a Weapon (x3), Aggravated Assault, Pointing a Firearm, Carrying a Concealed Weapon, Possession of a Restricted Weapon and Ammunition, and Possession of a Weapon for a Dangerous Purpose.

[3] It is alleged that the Applicant was involved in an altercation at a seasonal home owned by the Ostella family. The Applicant and a friend arrived there from a Wasaga Beach bar accompanied by two of the Ostella family’s house guests. After being denied entry to the home, an altercation ensued between the Applicant and several of the other guests. It is further alleged that, during the altercation, the Applicant brandished a handgun and pressed it against the forehead of one involved party. During a struggle for the handgun, the firearm discharged and the complainant Pietrantonio was struck by two bullets. Following the incident, police found two fired cartridge cases together with two other unfired cartridge cases at the scene. The fired cases were identified to be 9mm Luger calibre fired cartridge cases and were marked as items 3 and 4 in the Centre of Forensic Sciences file. The two unfired cases (similarly 9mm Luger calibre) were labelled items 5 and 6.

[4] The Applicant was arrested for the above-noted offences on September 17, 2012. At the time of his arrest, he was found to be in possession of a Blackberry 9790 cellular phone. A subsequent search of this phone revealed the presence of numerous photographs.

[5] The Respondent Crown seeks to tender some of these photographs as evidence in support of the allegation that the Applicant was in possession of the 9mm handgun used to injure the complainant on the date in question.

The Blackberry Photographs

[6] The parties agreed to reduce the number of photographs in dispute to three. These were included amongst a number of other photographs contained within the Ontario Provincial Police’s Computer Forensic Report. For ease of reference at the voir dire, the photographs in dispute were parsed out and appended to the Agreed Statement of Fact of Special Constable Sean Ford, made Exhibit “H” to the proceeding. They are hereinafter referred to as Photographs 1, 2 and 3 respectively.

The Evidence on the Voir Dire

[7] The court heard the evidence of Jennifer Plath, who was qualified to give expert opinion in the field of firearms examination and components as well as ammunition and ammunition components. She identified the items in the photographs. In her expert opinion, the item pictured in photographs 2 and 3 was a handgun. She was able to identify it as a Taurus PT111 Millenium Pro handgun, (“the Taurus”) based on identified markings. In Ms. Plath’s opinion, the two 9 mm Luger calibre fired cartridge cases found at the crime scene had been discharged from the same firearm. The fired cartridge cases were compatible for use with the Taurus handgun.

[8] Ms. Plath also stated that the ammunition pictured in photograph 1 could only be used with a Glock handgun. The spent fired cartridge cases that were found at the crime scene were not compatible with the ammunition pictured in photograph 1. Moreover, that ammunition would not have been compatible for use with the Taurus handgun featured in photographs 2 and 3.

[9] The court also received the aforementioned statement of fact of Special Constable Ford. The statement addressed how the “thumbnail images” (the three photographs in question) might have come to be located in the external storage media component of the device. Certain data on the phone indicated that photographs 2 and 3 were originally taken using a Blackberry 9360.

[10] Finally, the court was referred to the evidence of various eye-witnesses to the incident of July 1, 2012 as contained in the transcripts of the preliminary inquiry. The firearm that allegedly discharged during the altercation was variously described as “black”, “greyish green”, “a black and greenish gun”, “a black pistol”, “a black handgun of sorts”, “a dark, kind of green colour”, “green that’s in camouflage” and “camo green”. One witness, Danielle Zabonas, suggested that the item brandished by the Applicant might have been a water-gun.

The Admissibility Test

[11] The question of whether the three photographs are admissible turns on a balancing of probative value and prejudicial effect. A trial judge should take a three step approach to make this determination: see R v R.P. (1990), 58 C.C.C. (3d) 334 (Ont. H.C.J.) at 347. First, a judge must determine the probative value of the evidence by assessing its tendency to prove a fact in issue in the case including the credibility of the witnesses. Second, the judge must determine the prejudicial effect of the evidence because of its tendency to prove matters that are not in issue or because of the risk that the jury may use the evidence improperly to prove a fact in issue. Finally, a judge must balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions.

Analysis

Relevance and Probative Value

[12] I am not satisfied that photograph 1 is relevant to or sufficiently probative of any issue in the case to allow it to be admitted into evidence. It would not tend to prove a fact in issue. The evidence establishes that those ammunition magazines cannot have been employed with the handgun imaged in photographs 2 and 3. That ammunition magazine is for use with a Glock handgun. The evidence establishes that the fired cartridge cases found at the scene would not be compatible with a Glock handgun having been fired. I cannot agree with the submission of the Crown that photograph 1 might tend to prove that the Applicant used real ammunition on the night in question. There is an insufficient nexus between the ammunition pictured and the incident in question. At its highest, photograph 1 might serve as evidence that the Applicant possessed ammunition but it would be neither ammunition that was found at the scene nor ammunition that could have been employed in the Taurus handgun which the Crown alleges the Applicant to have been toting that evening. The only fact that the evidence might tend to establish is the propensity of the Applicant to possess and make use of ammunition and the weapons that go with it. This would effectively render it merely bad character or propensity evidence. The Crown is not permitted to adduce evidence of the Applicant’s bad character unless the Applicant has put character in issue or the evidence is otherwise relevant to an issue: see R v S.G.G., 1997 311 (SCC), [1997] 2 S.C.R. 716 (S.C.C.) at para. 63.

[13] I am satisfied that the thumbnail photographs 2 and 3 are relevant to the issues of who possessed the firearm and brought it to the altercation on July 1, 2012. I am also satisfied that those two photographs are relevant to the issue of whether the item in question allegedly used by the Applicant was in fact a firearm or a mere replica. The Crown will be seeking to have the jury draw an inference from these photographs which could lead it to conclude that the Applicant brought the Taurus handgun to the Ostella residence on July 1, 2012 and that this was the handgun which discharged the ammunition that left the two 9 mm Luger calibre fired cartridge cases found at the scene.

[14] I am satisfied as well that the two photographs of the identified Taurus are highly probative evidence of the issues to be determined. While it will be left to the jury to decide the weight to be afforded to the photographs, I find that the evidence adduced at the voir dire establishes the following:

(i) That the photographs were recovered from a Blackberry device found on the person of the Applicant when he was arrested;

(ii) That the item shown in photographs 2 and 3 is probably a Taurus PT 111 Pro handgun;

(iii) That the two fired cartridge cases found at the scene were discharged from the same firearm;

(iv) That the Taurus handgun was compatible for use with the fired cartridge cases found at the scene;

(v) That the eyewitnesses to the altercation describe an item being used in the alleged assault that could be found by the jury to be the Taurus handgun captured in the photographs.

[15] I agree with the Crown that the considerations raised by the Defence, including the varying and conflicting witness descriptions of the colour and nature of the item involved in the alleged assault, the unresolved questions surrounding the origins of the photographs, the discrepancies between the markings identified on the photograph by witness Plath and those identified in the Firearms Reference Table Report, and the concession by witness Plath that the photographs might depict a mere replica of a firearm would be matters for consideration by the jury. Those considerations might affect the weight to be given to the evidence by the trier of fact. In my view, they do not affect the relevance of the evidence to the issues nor diminish the probative value of the evidence for the purpose of admissibility considerations at this voir dire.

[16] I agree with the Crown that this is a “shooting” case where the identity of the person who possessed the firearm and brought it to the scene is a crucial issue. No less crucial is the issue of whether the item brought to the scene was a real firearm or a mere replica. It is clear that a properly instructed jury could reasonably draw an inference based upon all of the evidence that the handgun pictured in the photographs was in the Applicant’s possession and was used by him to fire the shots during the altercation of July 1, 2012. I conclude that the photographs of the Taurus handgun are highly probative of the issues to be determined by the jury.

Prejudicial Effect

[17] I now move to the determination of the potential prejudicial effect of the evidence. The Applicant suggests that the evidence would incline the jury to view the accused as having a propensity towards possessing or using handguns based solely on the fact that the photographs of what cannot be definitely proven to be a handgun, let alone the handgun used in the altercation, were found on his Blackberry device.

[18] I find that there is some potential for there to be a prejudicial effect of these photographs. If tendered at the outset of the Crown’s case, they may create an early impression in the jury’s mind that the Applicant was familiar with and inclined towards the use of handguns. This potential prejudicial effect can be minimized by proper mid-trial or concluding instruction by the trial judge to the effect that it is improper to infer guilt from evidence of bad character, general disposition or propensity. As well, effective cross-examination on the evidence may offer the jury an alternative way of viewing the evidence. Most importantly, the jury will be instructed to consider the totality of the evidence and the photographs themselves will either be supported by, or contradicted by, other evidence in the case.

The Balancing

[19] I am unable to accept the Applicant’s position that the prejudicial effect of the photographs of the Taurus would outweigh their probative value. The photographs of the Taurus are very probative of the issues to be determined. This is not a case where the issue to be addressed by the evidence is secondary or peripheral. On the contrary, the issues of who possessed and brought the firearm to the altercation and whether the item wielded by the Applicant was indeed a handgun are central to the case. The jury can be instructed not to draw improper inferences. The photographs in question will be considered within the totality of the overall evidence, including the evidence of eyewitnesses. The Defence will have the opportunity to cross-examine on the tendered evidence and suggest to the trier of fact that the evidence ought to be ignored or discounted or that other evidence ought to be preferred. Any frailties associated with the evidence can be brought to the jury’s attention by Defence counsel or by the trial judge. It will be the task of the jury to weigh that evidence. Finally, I have received the Crown’s assurance that it will not be asking the jury to consider the evidence merely in terms of general disposition or propensity to utilize firearms.

Disposition

[20] For the reasons set out above, I am persuaded that photograph 1 of Exhibit H is not sufficiently relevant to or probative of an issue to be tried in this case. The Crown is not entitled to introduce photograph 1 into evidence.

[21] I am persuaded that photographs 2 and 3 of Exhibit H are both relevant to and highly probative of the central issues to be tried in this case. I am satisfied that the probative value of photographs 2 and 3 of Exhibit H far outweighs the potential prejudicial effect of that evidence. The Crown is entitled to introduce photographs 2 and 3 of Exhibit H into evidence at trial.

Justice J.R. McCarthy

Released: July 18, 2014