Court File and Parties
COURT FILE NO.: CRIM J (P) 469/14 DATE: 2016 10 19 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Steven Browne, Amal Greensword and Adrian Williams
BEFORE: COROZA J.
COUNSEL: Alex Cornelius and Greg Hendry, for the Crown Anthony Bryant and Anne Marie Morphew, for Mr. Browne; Nicole Rozier and Leah Gensey, for Mr. Greensword; and Maureen Addie and Jamie Kopman, Counsel for Mr. Williams
Endorsement
(COMPOSITE SKETCHES AND IMPROPER EXAMINATION-IN-CHIEF)
Overview
[1] The accused are charged with the first degree murder of Dwayne Thompson. The trial is proceeding with a jury. Margaret Warner is a critical Crown witness and she is presently in the witness box.
[2] This endorsement responds to: 1) a request by counsel for Mr. Browne for a ruling on the admissibility of two composite sketches the Crown proposes to introduce through Ms. Warner; and 2) a request that the Crown not lead Ms. Warner or conduct an impeachment of the witness with video surveillance that captured the lobby of the Darcel apartment building (Exhibit 2 in these proceedings). I do not propose to review the factual background at length for the purposes of this endorsement. I have had the benefit of reading written submissions filed by counsel for Mr. Browne and the Crown.
Issue 1: Composite Sketches
[3] The Crown seeks to admit into evidence, through Ms. Warner, the two composite sketches that were created by Peel Regional Police Constable Steve Daley using computerized EFIT and Photoshop software.
[4] The Crown has stated it will not be calling Cst. Daley at trial. Counsel agreed that I could review the testimony of Cst. Daley, who testified at the preliminary hearing for the purposes of this ruling.
[5] In short, Ms. Warner told the police that she saw three or four males accost Mr. Thompson and she was able to describe the men. At various times, Ms. Warner has described the shooter as wearing a hat and that she believed he had dreadlocks sticking out from the hat. According to Ms. Warner the shooter was light skinned.
[6] Although, Ms. Morphew argues that both sketches are inadmissible, she placed emphasis on the sketch purporting to represent Ms. Warner’s recollection of the shooter. The Crown theory is that Mr. Browne is the shooter.
[7] The composite sketch at issue is one where an individual is depicted from the front straight on with light skin and hair in dreadlocks hanging down the side of the head and wearing no hat.
[8] Ms. Warner has never identified the accused as any of the men that she saw on November 1, 2012. There is no expectation that Ms. Warner will make any in-dock identification at the trial.
The Creation of the Sketches
[9] Cst. Daley testified at the preliminary hearing about the process of making the composite sketch. Essentially, he conducted an interview of Ms. Warner and she provided him with descriptions of the males. He then programmed her descriptions into a computer using special software. With the use of a computer application called Photoshop, Cst. Daley was able to create a composite that in his words was about “70 per cent accurate”.
[10] Cst. Daley met with Ms. Warner alone and the process was not videotaped. Ms. Morphew submits that the final image is a combination of Ms. Warner’s recollection and Constable Daley’s interpretation and understanding of her words. I agree with her characterization of the procedure.
Position of Mr. Browne
[11] Ms. Morphew objects to the admissibility of these items on the basis that they have no probative value, and are of such a nature that they are misleading, and as a result have a prejudicial effect that outweighs whatever probative value they may have.
[12] Ms. Morphew argues that the composite sketches are only investigative tools and depict a “likeness” of the individual that Ms. Warner purports to describe as the shooter. Counsel submits that the jury will have the ability to properly assess and weigh the evidence without this tool.
Position of Mr. Greensword and Mr. Williams
[13] Ms. Rozier and Ms. Addie submit that the sketches are admissible. However, in oral argument, Ms. Rozier, for the very first time submitted that even if I were to rule that the Crown is not permitted to introduce the sketches, counsel for the co-accused can put the sketches to Ms. Warner in cross examination. Both counsel submit that the sketches have relevance as far as Mr. Greensword and Mr. Williams are concerned. I assume that their position is that the sketches do not resemble either of their clients.
Crown Position
[14] Mr. Cornelius agrees that viewed in isolation, the composite sketch has minimal probative value. However, he submits that this does not mean it is inadmissible. Crown counsel submits that when the sketches are accompanied by other evidence this can assist the jury in determining whether Mr. Browne is the shooter. It is fair to say that in addition to Ms. Warner’s evidence, the Crown is going to rely on other evidence such as cellphone evidence and DNA evidence to establish that Mr. Browne is the shooter.
[15] As for the other accused, Mr. Cornelius submits that this is an “all or nothing” motion and that if I rule the sketches inadmissible, then the sketches are not available for use by any lawyer.
General Principles
[16] Ms. Morphew and the Crown in their helpful written submissions outlined the general principles of law surrounding identification evidence. I think the following three points highlighted in their submissions are important.
[17] First, I must proceed with caution and keep in mind the dangers inherent in evidence about the identification of suspects. The jurisprudence is clear that a trier of fact must be very cautious in scrutinizing an opinion about identification for its frailties, (See: R. v. Candir 2009 ONCA 915). Ultimately what matters most for the trier of fact is the quality of the identification information offered, in all of the circumstances.
[18] Second, it is well established that out-of-court identification evidence is admissible not as hearsay evidence establishing identification in its own right, but as original evidence to enable the probative value of an in-court identification to be assessed in its full context.
[19] In R. v. Langille (1990), 59 C.C.C. (3d) 544 (Ont. C.A.), a case relied on by the Crown, Osborne J.A. for the Court held that descriptions given to police by eyewitnesses shortly after the commission of an offence concerning the identification of a perpetrator are admissible as original evidence without contravention of the rules excluding hearsay and prior consistent statements. The Court went on to hold that on a similar basis, evidence concerning the process culminating in the production of a composite sketch is also admissible.
[20] Third, out-of-court statements of identification may be admitted where a witness is unable to identify the accused at trial, but can testify that he or she previously gave an accurate description or made an accurate identification. In these circumstances, the identifying witness may testify to what he or she said or did on those earlier occasions and those who heard the description given by the witness or witnessed the identification made by the witness may give evidence of what the witness said or did.
[21] Mr. Cornelius relies heavily on this third point which was discussed by Doherty J.A. in R. v. Tat, [1997] O.J. No. 3579 (C.A.) at para. 44:
“The second situation in which out of court statements of the identification have been admitted arises where the identifying witness is unable to identify the accused at trial but can testify that he or she previously gave an accurate description or made an accurate identification. In these circumstances, the identifying witness may testify to what he or she said or did on those earlier occasions, and those who heard the description given by the witness or witnessed the identification made by the witness may give evidence of what the witness said or did ” [Emphasis added].
[22] I note that Justice Doherty’s explanation of the prior identification exception to the hearsay rule was endorsed by the Supreme Court of Canada in R. v. Starr, 2000 SCC 40 at para. 221.
[23] Ms. Morphew acknowledges the state of the law on prior identification evidence. Counsel also concedes that there are cases where composites may be admissible. However, she submits that the underlying admissibility theory of all of these cases is that there has been some identification of the accused. What drives the admissibility argument, counsel argues, is that the out of court identification is necessary to assess the weight to be given to the in-court identification evidence because such evidence is notoriously suspect.
[24] Counsel emphasizes that Ms. Warner has never made an identification of the accused. She submits that the jury does not need to hear evidence of a prior identification procedure when Ms. Warner did not purport to identify the accused.
[25] Counsel also submits that the prejudice of allowing these sketches to go the jury and through the witness is especially problematic. There is no recording of the procedure and the reality is that the police officer was using his own interpretation of what Ms. Warner told him to create the image with software.
Ruling on Issue 1
[26] I must confess that Langille would appear to support the Crown position. However, there are some distinctions. For example, the composite created in this case was made 20 days after the events took place. In Langille, the officers who created the sketch testified.
[27] After anxious consideration, I am of the view that when I assess this evidence I find that the probative value of the sketches does not outweigh the prejudicial effect in the circumstances of this case. As the Supreme Court of Canada has held: “all relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy.” (See R. v. Corbett, [1988] 1 S.C.R. 670 at 714).
[28] I find that the sketches are not admissible.
[29] Furthermore, after considering the submissions made by counsel for the co-accused, the sketches are not available for use by Mr. Greensword or Mr. Williams.
[30] First, I am concerned about the manner in which the Crown purports to introduce these sketches and whether the accused can effectively challenge this evidence if it is admitted. The Crown has made it very clear that it has no intention on calling Cst. Daley. While it is true that the defence can call the police officer, has full disclosure of the officer’s preliminary inquiry evidence, and full disclosure of the forms filled out on November 21, 2012, in my view forcing the defence to call the witness would disadvantage the defence. If they were to call the officer, the defence cannot cross-examine its own witnesses, and by calling evidence it forfeits the right to address the jury last. I appreciate that these issues arise in all criminal jury trials, but it should not be a complete answer to the issue of prejudice that the defence can call the witness. I am of the view that the proposal of the Crown to simply introduce the sketch through Ms. Warner alone is highly problematic.
[31] Second, I have some concerns about how the jury would assess the reliability of this evidence. I am concerned because I am not certain how the jury would assess the procedure in the absence of Cst. Daley testifying. What instructions could be crafted to the jury? In my view, it would be difficult to create limiting instructions on these sketches because they are a combination of Ms. Warner’s recollection and Cst. Daley interpretation and understanding of her words. If Cst. Daley is not going to testify, how exactly would the jury assess this evidence and determine if the procedure used was reliable? I am also concerned that there is no recording of this procedure, and I am told that there was no memorialization of the event in any way. The first description of the procedure appears to have taken place at the preliminary inquiry held almost two years after the shooting.
[32] Third, I think it is arguable that the sketch is, in fact, misleading. The Crown places emphasis on the fact that the sketch depicts the hair style of the individual in dreadlocks. The difficulty I have with this submission is that the descriptions provided by Ms. Warner at various times appear to be inconsistent with the sketch that was produced. Ms. Warner described the men as wearing hats covering the hair. None of the sketches purport to have hats. For the reasons set out at paragraphs 15 to 17 of Ms. Morphew’s submissions and the references found in the paragraphs, the sketches appear to be misleading.
[33] Finally, I am also concerned about the necessity of this evidence. The Crown submits that the sketch is a piece of circumstantial evidence that can assist the jury in determining identity. Is this evidence necessary? Defence counsel does not dispute that Ms. Warner can describe what she saw and her description of the men for the jury. After hearing from Ms. Warner, the jury will fully understand her evidence about the people she saw.
[34] I agree that if this sketch repeats what Ms. Warner will testify to, that the shooter had dreadlocks and was light skinned, it adds nothing new for the jury and accordingly should not be admitted. However, again, for the reasons set out at paragraphs 15 to 17 in Ms. Morphew’s written argument, I am of the view that the sketch actually goes further and may indeed take on a misleading quality and will have a prejudicial effect.
[35] When I balance the fact that the evidence has very little probative value and the sketch may be misleading, I would not take the risk, however small, of distracting or misleading the jury with evidence that may not be helpful to them. I conclude that the probative value does not outweigh the prejudicial effect and that the sketches are inadmissible.
Submissions of the Co-Accused
[36] Counsel for the co-accused submit that if I rule against the Crown this does not prevent them from using the sketches in their cross examination of Ms. Warner.
[37] Counsel filed no argument on behalf of their clients. In any event, I do not accept their submission. As Justice Rosenberg held in R. v. Pollock, (2004), 187 CCC (3d) 213 (C.A.) counsel’s mere assertion that the evidence is necessary for one accused to make full answer and defence is not sufficient given the grave potential for prejudice to the fair trial of a co-accused. There must be some evidentiary foundation to support this assertion.
[38] I acknowledge that the balancing is different where one accused seeks to introduce the evidence of the sketches. The power to exclude relevant evidence adduced by an accused is narrower. As Rosenberg J.A. held in Pollock, it would seem that the evidence is admissible unless its prejudicial effect substantially outweighs its probative value.
[39] I prohibit any use of the sketch by counsel for the co-accused for virtually the same reasons in dismissing the Crown application. I am not certain how using the sketch will assist the co-accused in making full answer and defence. If counsels’ point is that Ms. Warner’s description or recollection of the males on November 2, 2012 does not match Mr. Greensword or Mr. Williams that can be accomplished during cross-examination without the use of the sketch.
Issue 2: Manner of Examination in Chief of Ms. Warner
[40] All counsel complain about the Crown’s use of the video during his examination in chief of Ms. Warner. Collectively they argue that the questions used by the Crown are leading and a disguised impeachment of the witness.
[41] I have reviewed my notes and listened to the tape of the examination. I respectfully disagree that any of the questions were leading. I also disagree that what was occurring was impeachment.
[42] I acknowledge that the question asked of Ms. Warner just prior to the objection was overly broad. Mr. Cornelius asked the witness if what she saw on the video matched her recollection of events of what happened in 2012. Quite understandably, Ms. Rozier objected.
[43] Mr. Bryant submits that the problem here is that the Crown proposes to play the video and ask questions that really repeat what is on the video. He argues that the video speaks for itself and allowing the Crown to narrate what is going on while the video has been played is unnecessary. He argues that Crown counsel is really leading the witness. So, for example, if it is obvious that three males turned left out of the lobby, it would be improper to preface or ask Ms. Warner “you watched the video, what direction did the three males turn?”
[44] It seems to me that the defence lawyers are arguing that it is Ms. Warner’s recollection of the events that is admissible. While the video is an independent piece of evidence and already before the jury, to use the video in this way would be misleading because Ms. Warner would be repeating what is happening on the screen which is not necessary.
Ruling on Issue 2
[45] A leading question is one that suggests the answer. As Charron J.A. (as she then was) stated in R. v. Rose, [2001] O.J. No. 1150 (C.A.):
“It is trite law that the party who calls a witness is generally not permitted to ask the witness leading questions. The reason for the rule arises from a concern that the witness, who in many instances favours the party who calls him or her, will readily agree to the suggestions put in the form of a question rather than give his or her own answers to the questions.”
[46] I have reviewed the questions asked by the Crown and I do not agree that they were leading. I also do not find objectionable the Crown’s attempt to use the video as a reference point in order to ask open ended questions of the witness about where the males were when she first encountered them.
[47] Charron J.A. went on to add that the rule against leading questions is not absolute:
“Of course, the degree of concern that may arise from the use of leading questions will depend on the particular circumstances and the rule is applied with some flexibility. For example, leading questions are routinely asked to elicit a witness' evidence on preliminary and non-contentious matters. This practice is adopted for the sake of expediency and generally gives rise to no concern. Leading questions are also permitted to the extent that they are necessary to direct the witness to a particular matter or field of inquiry. Apart from these specific examples, the trial judge has a general discretion to allow leading questions whenever it is considered necessary in the interests of justice: [Emphasis added. Citations omitted].
[48] I have no difficulty with the proposed questions by the Crown. Nor, do I see anything objectionable about the Crown using some leading questions to direct the witness to a particular matter. As long, as the Crown does not lead the witness by suggesting an answer, there is nothing wrong with the Crown directing Ms. Warner’s attention to a particular item, person or action on the video. The Crown does not have to use strictly open ended questions to accomplish that goal.
[49] That being said, general questions that ask the witness if what is on the video matches with her recollection are unhelpful. The question is too broad and should not be repeated.
[50] I therefore rule as follows:
- There is nothing objectionable about the Crown using the video and referring to what is on the video as a reference point for an open ended question;
- I find nothing objectionable about the manner in which the Crown has used the video to this point;
- If necessary, the Crown may use non open ended questions to direct Ms. Warner to a particular matter or field of inquiry.
Disguised Impeachment
[51] Counsel argue that the Crown has conducted an impeachment of their own witness. Again, I respectfully disagree. Generally speaking, impeachment is confronting a witness for reasons relating to prior inconsistent testimony.
[52] There is a school of thought or practice that allows counsel in examination-in-chief to ask questions that are designed to mitigate or blunt the impact of potential impeachment by opposing parties. For example, it is common for Crown counsel to bring out the fact that their own witness has prior convictions.
[53] I see nothing objectionable with the Crown asking the witness to clarify or explain any inconsistencies in their evidence. As long as counsel does not attempt to clarify an inconsistency with a leading question there is nothing wrong with asking a witness to explain why there is an inconsistency in their testimony.
[54] There was nothing about the Crown’s examination that I would characterize as impeachment. I am not persuaded by the submission made by counsel.