ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14-9899
DATE: 2015/11/25

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

PATRICK J. DOWDELL

Respondent/Accused

Jon Fuller, for the Crown

Joseph Addelman, for the Respondent/Accused

HEARD: November 23, 2015 (at Ottawa)

REASONS ON VOIR DIRE for BERhE application

r. SMITH J.

[1] The Crown has brought an application for an order permitting both civilian witnesses, Boulos and Behnam, to give opinion evidence identifying the accused on a surveillance video made on the date of the robbery.

[2] Defence counsel acknowledges that Mr. Behnam may give opinion evidence identifying the accused on the video, but objects to Mr. Boulos giving such evidence. The defence argues that the probative value is low and the prejudice is high and outweighs the probative value.

Test

[3] In R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, Blair J. set out the test for admissibility of non-expert “recognition evidence” deriving from the examination of a videotape.

[4] In R. v. Brown (2006), 215 CCC (3d) 330, 2006 42683 (C.A.) Rosenberg J.A. stated the test as follows:

This type of non-expert opinion evidence is admissible provided that the witness had a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator.

[5] In Brown, Rosenberg J. relied on the case of R. v. Leaney, 1989 28 (SCC), [1989] 2 S.C.R. 393 at p. 413 which was characterized in Berhe as the “prior acquaintance/better position” test.

Prior Acquaintance with the Accused by Mr. Boulos

[6] The parties agreed that the transcript of the Preliminary Inquiry, a photograph of the area where the robbery occurred, and a video taken at the Behnam Gas Bar were admitted as evidence on this voir dire.

[7] Mr. Boulos testified that he remembered that the accused was a customer at his store when he saw him on the video after the accused took off his sunglasses. He testified that he saw the accused at his store four to five times per week and that he was a regular customer. He remembered that the accused bought cigarettes, played Pro Line, and had purchased some bread at his store.

[8] Mr. Boulos also remembered that the name of the accused’s girlfriend was Angelique. He recognized the accused as Patrick from attending at the store and from renting movies as he wrote down his name. Mr. Boulos also testified that the accused and his girlfriend lived on Vincent Massey Street.

[9] I am satisfied that Mr. Boulos had a prior acquaintance with the accused from seeing him at his store on a regular basis; he knew his first name and his girlfriend’s first name as well as the street that they lived on.

Better Position than Trier of Fact

[10] I also find that Mr. Boulos is in a better position than the trier of fact to identify the accused because of his familiarity with the accused. Mr. Boulos’ ability to recognize the accused in the video is better than that of the trier of fact because he was able to recognize the accused from his frequent attendances at his store as he was a regular customer; because he knew him by his first name and knew where he lived. The jury members have not had any prior contact with the accused and as a result are not in as good a position to recognize the accused on the video.

Probative Value v. Prejudice

[11] At this stage of determining threshold admissibility, I find that the probative value of Mr. Boulos’ evidence that he recognized the accused in the video because of his prior acquaintance with him by seeing him as a regular customer on a regular basis four to five times per week, knowing his first name and the street on which he lived, is very probative evidence.

[12] I also find that there is a very small prejudice to the accused as a result of allowing Mr. Boulos to testify about recognizing the accused on the video because defence counsel will be able to cross-examine Mr. Boulos when he testifies and test the reliability of his evidence.

[13] The evidence is admissible on a threshold basis and the extent of Mr. Boulos’ acquaintance with the accused will go to the weight that the jury decides to give to the evidence.

Disposition

[14] For the above reasons, the Crown’s application to permit both Mr. Boulos and Mr. Behnam to give opinion evidence on the identification of the accused on the surveillance video is granted.

R. Smith J.

Released: November 25, 2015 (orally)

COURT FILE NO.: 14-9899

DATE: 2015/11/25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

– and –

PATRICK J. DOWDELL

Respondent/Accused

REASONS ON VOIR DIRE

(PURSUANT TO BERHE)

R. Smith J.

Released: November 25, 2015 (orally)