CITATION: R. v. Abdullahi, 2015 ONSC 2990
DATE: 20150513
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Kerry Hughes and Marco Cuda, for the Crown
- and -
AHMED ABDULLAHI and
NAIMO WARSAME
I. Louis Dallas, for A. Abdullahi
Marcus Bornfreund, for N. Warsame
Ruling #5
The Admissibility of Plunkett's
Recognition of Abdi and Siad
Trafford J.
THIS IS AN OFFICIAL COPY OF THE RULING THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.
Introduction
This is an application by the Crown for an order permitting Detective Constable Plunkett of the Organized Crime Enforcement Unit, Major Project Section, of the TPS to identify Siyadin Abdi ("Abdi") and Mohamed Siad ("Siad") as the two men with Lamar Porter on a security videorecording of people in the Rack N' Roll Bar ("bar") in Windsor on April 9, 2013. The proferred identification is in the nature of recognition. It is primarily based upon Plunkett's review of some other videorecording and photographs of the men which were provided to him by other investigative sources during the investigation. Those other videorecordings and photographs came with extrinsic information that identified Abdi and Siad. Plunkett has also been in the presence of these two men for about 45-60 minutes, when he testified for the Crown in a preliminary hearing held in November 2014 and recognized them as the people in the other videorecordings and photographs. Abdi and Siad were defendants situated in the prisoner's dock. They are not defendants in this case, but are alleged by the Crown to be unindicted co-perpetrators with Ahmed Abdullahi and Naimo Warsame in the transportation of illegal guns from the Windsor area to Toronto in the spring of 2013. They are charged separately with some similar offences and have not yet been tried. The Crown Attorney does not intend to call Abdi or Siad to identify themselves on the security video from the bar. Nor does the Crown intend to call any of their immediate relatives or acquaintances.
The application succeeds.
The Circumstances of the Case
Let me begin with the circumstances of the case, as proven on the voir dire and by some evidence before the Court.
The charges against Abdullahi and Warsame are the result of Project Traveller. It was a joint investigation by the TPS, the WPS, the OPP, the CBSA, the PRPS, the HRPS, the YRPS, the DRPS, the Edmonton Police Service and several other enforcement units into the suspected existence of a gang known as the Dixon City Bloods and the suspected involvement of the gang in the movement of firearms from the Windsor area for the purposes of committing some other crimes. Those other crimes included trafficking in firearms, trafficking in cocaine and homicides, within the gang and with its rival gangs. It included a wiretap project under the Code, from March 2013 to June 2013. Plunkett and many other officers were an integral part of that project. About 55 people were arrested as a result of Project Traveller. The TPS and WPS seized about $3M worth of drugs, 40 firearms and $572,000 in cash.
Detective Constable Plunkett was one of the many investigators in Project Traveller. The photographs of all of the people named in the authorizations were posted in the wire room where he was frequently on duty throughout the project. Abdi's photograph was posted, as was Siad's, from about the middle of March 2013. Plunkett looked at them, and the other posted photographs, daily. The intercepted conversations were live-monitored, with the result that Plunkett and other officers followed upon, or acted in anticipation of, related movements of the targets. This is what led Plunkett to obtain the security video from the bar in April 2013.
Let me elaborate upon some of the pertinent related investigations by Plunkett. Some, but not all, of them were a consequence of some intercepted calls.
On September 12, 2012 Constable Shean of the OPP in Windsor advised Plunkett that a security video at the Windsor Casino showed Abdi and Siad in connection with an attempt by Abdi to enter the casino using Siad's driver's licence. He was refused entry. She also told Plunkett that both Abdi and Siad identified themselves correctly when they returned a second time. Shean sent Plunkett five still-photographs taken from that videorecording. Those photographs are exhibits; the security video is not. The photographs are of good quality. Plunkett had no prior contact with Abdi and Siad. He accepted the information from Shean concerning their identity as reliable, but he did know Abdi from Siad.
However, upon receipt of those five photographs, Plunkett checked with one of the computerized databases of the TPS, known as RICI, and obtained photographs of both men. They are entered as exhibits. Abdi's photograph was taken when he was arrested in March 2012; Siad's was taken upon arrest in September 2010. They are of good quality. Plunkett was not the arresting officer in either case. He compared the arrest photographs to the casino photographs and concluded they were Abdi and Siad, as Constable Shean said. At that time he believed he could distinguish one from the other.
On March 25, 2013 Plunkett attended at the Square One Mall in Mississauga as a result of some intercepted calls. A drug transaction involving Siad was anticipated by the TPS. The TPSS was also deployed to the mall. Plunkett went to the security office in the Mall where he watched one of its parking lots through the Mall's security system, live. It had a recording capability too. He observed a man he believed to be Siad arrive at that lot in a car, and eventually enter a nearby Walmart. Plunkett later observed Siad leave Walmart and drive from parking lot in the car, through the Mall's security system. The live monitoring capacity of the system was sufficient for Plunkett to recognize Siad but the subsequently obtained videorecording of those events was of comparatively poor quality. It is not available as an exhibit.
In those circumstances, Plunkett went to the security office of Walmart. He viewed its security videos. He observed the man he believed to be Siad enter Walmart with another man, believed to be Gboya Oyegoke, and, a few minutes later, the man he believed to be Abdi enter through the same door. Another camera showed the three of them pass one another at the top of a second floor escalator, with the man believed to be Abdi giving something to the man believed to be Siad. Plunkett did not see these men himself. Rather, he merely viewed the Walmart video and formed the belief that the pertinent men were Abdi and Siad, as in the casino photographs and the RICI photographs, given the intercepted calls that led him to the Mall. The Walmart video is entered as an exhibit. It is of good quality.
On April 11, 2013 Plunkett requested through the WPS a copy of the bar security video for April 9, 2013. Some intercepted conversations suggested that a meeting occurred on that date, between Abdi, Siad and Porter, for a purchase of a handgun. Plunkett received a copy of that video. He viewed it on April 18, 2013 from 10:30 a.m. to 6 p.m. Plunkett created still-photographs by freezing the video; the computer automatically created a file for each such photograph. All of them were printed with most of them entered as exhibits, together with the video itself. Using the casino still-photographs, the RICI photographs and the Walmart video as known photographs of Abdi and Siad, in the context of all of the extrinsic information relating to them, Plunkett recognized the two men with Porter. They were Abdi and Siad. The bar video and its still photographs are of good quality.
Sometime in April 2013, either before or after Plunkett viewed the bar video, Plunkett also received some photographs taken by the TPSS of people said to be Siad and Abdi. These computerized files were labelled with their names, and dated April 2, 2013 and April 11, 2013. Constable Younger was the photographer. Plunkett compared them to the other videorecordings and photographs. He believes the men in the TPSS photographs are Abdi and Siad. These photographs are of good quality.
Lastly, on November 25, 2014 Plunkett testified for the Crown in a preliminary hearing for, amongst other defendants, Abdi and Siad. They were situated in the prisoner's dock. Plunkett was in the courtroom for about 45-60 minutes, as a witness. He immediately recognized Abdi and Siad as the men he had previously seen in the various security videos and photographs. Someone in the courtroom verbally identified them by name, perhaps counsel.
These, then, are the circumstances of the case.
The Legal Analysis of the Case
Recognition evidence is a type of identification evidence. It is, to some extent, a type of identification evidence that carries with it some distinct rules relating to its admissibility. Simply, a person who has a prior acquaintance with another person may be in a better position than the trier of fact to identify the other person in a videorecording. This is non-expert recognition evidence. See R. v. Brown (2006), 2006 42683 (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.) at para. 39 and R. v. Leaney 1989 28 (SCC), [1989] 2 SCR 393 at 413. In R. v. Berhe [2012] O.J. No. 5029 (C.A.) at para. 20 and 21, Blair J.A. said:
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.
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 said -- 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.
Thus, the core of the conditions precedent to the admissibility of recognition evidence is the sufficient familiarity of the witness with the person in question, complemented by the helpfulness of the recognition to the trier of fact.
Plunkett's present ability, in May 2015, to recognize Abdi and Siad on the bar video, of April 2013, is based upon:
• first, his presence as a witness, at Abdi's and Siad's preliminary hearing, in November 2014; and
• second, his familiarity with the videorecordings and photographs of Abdi and Siad provided to him in May 2012, March 2013 and April 2013.
That present ability is the result of that presence at the preliminary hearing and that familiarity with those videorecordings and photographs, and all of the mental processes that went with Plunkett's observations and recollection of the appearance of Abdi and Siad, at all times, contemporaneously with receipt of it and retrospectively. The condition precedent of sufficient familiarity has been proven to my satisfaction.
Let me elaborate upon that conclusion.
Plunkett observed Abdi and Siad during the preliminary hearing in November 2014 when he testified for about 45 – 60 minutes. That contact is of critical significance to this issue. It was an opportunity to look at them and see their facial and other pertinent features. The opportunity was used, to some extent, over that period.
However, that opportunity was not an isolated one. Nor was it an exclusive opportunity to observe Abdi and Siad. Rather, it complemented all of Plunkett's other contacts with them through the pertinent videorecording and photographs. Such videorecordings and photographs can in some circumstances be a more reliable source of information about a person's appearance than information obtained through the presence with the person. These other contacts were all through good quality images of these men. Plunkett looked at them frequently, as he described in the voir dire, and for a period of several hours, in total. A reliable capacity to recognize a person can be, and often is, the result of the accumulation of information from several reliable sources of information, considered when it was received and, from time-to-time thereafter, retrospectively. The information from Constable Shean that Abdi and Siad identified themselves to the security staff at the casino, the arrest processes of the TPS, the information in the various intercepted conversations incidental to the Walmart video and the bar video and the labels on the computer files of the TPSS photographs of these men all shaped, or contributed to, Plunkett's capacity to recognize them, to some extent. This is the process that led to Plunkett's present capacity to recognize Abdi and Siad.
In this case, the jury will be able to assess the reliability of Plunkett's capacity to recognize Abdi and Siad. All of the videorecordings and photographs are of good quality. With few exceptions, their images are clear. The jury will be able to compare all of the images of each of them and determine whether or not they are the same man, as Plunkett believed. Plunkett is able to articulate, to some extent, the basis for the recognition of each of them on the bar video, and refer to the same trait as shown on the other videorecordings and photographs. The extent to which the information extrinsic to the videorecordings and photographs detracts from the capacity to recognize them, if any, can be canvassed in cross examination.
To the extent that the investigative processes of the TPS on Project Traveller may have tainted the reliability of Plunkett's recognition of Abdi and Siad, the jury may give the recognition less, or no, weight, when the recognition is considered in the context of the evidence as a whole. The photographs of all persons of interest were posted in the wire room and viewed daily by Plunkett. The information obtained through the intercepted calls was given to officers, such as Plunkett and the TPSS, to develop, if possible, some confirmatory evidence about the reliability of the information in the conversations and the identity of the affected persons. Such an investigation can be, and often is, a very complex one. Investigative information must be developed and shared by the investigating officers in order to conduct a proper investigation, one that obtains reliable information about the suspected crimes and the identity of the perpetrators. In a sense, what is described in this voir dire as a tainted recognition is inherent to, and a necessary part of, an honest, competent and diligent investigation that is an objective pursuit of the truth. Where, as here, the tainting is reasonably clear and the videorecordings and photographs are of good quality, such tainting does not significantly undermine the Crown on the issue of sufficient familiarity, if the circumstances otherwise amount to such a familiarity.
Face-to-face contact for only 45 – 60 minutes would not meet that test in many cases. Compare Leaney where one of the recognition officers knew the defendant for about 15 years as a neighbour, and where the other four had casual, brief contacts with him in the course of duty over the years. Here, however, it is complemented by several hours of contact with Abdi and Siad through videorecordings and photographs of good quality. In my view, Plunkett is sufficiently familiar with Abdi and Siad, having regard for all of the circumstances of this case.
Moreover, Plunkett's recognition of them on the bar video will be helpful to the jury. He worked with that video for several hours on April 18, 2013, in an effort to identify the people on the video, if he could. It is in real time. It is slow. It is difficult to move the videorecording back and forth in order to see the images of the people. The jury, absent Plunkett's recognition, would need to do that by itself. It still may do so if it wants to, repeating what will be done in court. Plunkett's recognition of Abdi and Siad will be helpful to the jury. See R. v. Clare [1995] 2 Cr. App. R. 333 (C.A.) at 335-338 and Attorney-General's Reference (No. 2 of 2002), [2002] EWCA Crim. 2373 at para. 19. The second condition precedent to its admissibility has been proven in my view.
The fact that there may be better ways to prove the identity of Abdi and Siad on the bar video, such as through the testimony of Abdi and Siad identifying themselves, or of some immediate relatives, or the principles of R. v. Nikolovski (1996), 111 C.C.C. (3d) (S.C.C.), does not detract from the legal analysis in favor of the Crown. Each rule of admissibility is to be considered separate and apart from the others.
Lastly, I do not have discretion to exclude evidence of the Crown where its probative value is exceeded by its prejudicial effect, under R. v. Seaboyer (1991), 1991 76 (SCC), 66 C.C.C. (3d) 321 (S.C.C.), or where it is necessary to ensure the fair trial interests of the defendants, under R. v. Harrer (1995), 1995 70 (SCC), 101 C.C.C. (3d) 193 (S.C.C.). I decline to do so. Abdi and Siad are alleged by the Crown to be unindicted parties to a common enterprise to transport illegal guns from Windsor to Toronto in the spring of 2013. Several of their intercepted conversations will be tendered by the Crown. The bar video, and Plunkett's recognition of Abdi and Siad on it at a time proximate to those conversations, is significantly probative of such involvement. The intercepted conversations and the bar video are reliable evidence. They may be mutually confirmatory. The bar video, and the related recognition by Plunkett, will add to the length of the trial and its complexity, but not unduly. The fairness of the defendant's trials is preserved in the circumstances of this case through the availability of the pertinent videorecordings and photographs to the defence in cross-examination. In my view, the policy considerations that animate the concern for the tainting of eyewitnesses of a perpetrator in less than optimal circumstances do not apply with equal force to Plunkett's recognition of Abdi and Siad in this case. They are not defendants in trial – there is no risk of a wrongful conviction of them. They are allegedly unindicted co-perpetrators with Abdullahi and Warsame. To the extent that Plunkett's recognition tends to incriminate the defendants, the defendants are well-situated to challenge its reliability, if so advised.
Conclusion
In conclusion, Detective Constable Plunkett is permitted to testify that he recognizes Abdi and Siad in the security video of the two men with Lamar Porter in the Rock N' Roll Bar in Windsor on April 9, 2013. That videorecording and the various still-photographs from it are admissible.
The Crown Attorney may elicit during the examination in-chief the factual basis of that recognition. This may include the still-photographs from the casino video in September 2012, the photographs of Abdi and Siad from the TPS database, the Walmart security video of March 25, 2013, the use of the security video at the Square One Mall on March 25, 2013, the use of the photographs of Abdi and Siad taken by the TPSS in April 2013 and the circumstances at the preliminary hearing for Abdi and Siad in November 2014.
The Crown Attorney may not elicit the extrinsic information received with the videorecordings and the photographs. The defence may do so if it wants to use that information to undermine the credibility of Plunkett or the reliability of his recognition of Abdi and Siad. Any such use by the defence may lead to re-examination on those circumstances by the Crown Attorney, and the admissibility of other evidence to prove the truthfulness of the extrinsic information.
May 13, 2015 Trafford J.
THIS IS AN OFFICIAL COPY OF THE RULING THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.