COURT FILE NO.: CRIM J (P) 469/14 DATE: 2016 10 04 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 Angela Chaisson, for Mr. Williams
Endorsement
(ADMISSIBILITY OF PHOTOGRAPH 2385)
Introduction
[1] The three accused are charged with murder. The case is being tried by a jury. Sgt. Raymond Linton is the Crown’s first witness. Yesterday, a photograph that purports to show the deceased, Dwayne Thompson, at the autopsy was shown to the officer. All counsel for the accused objected to the admissibility of this photograph. I released a brief oral ruling with a promise to deliver written reasons. These are my written reasons for ruling that the photograph (Photograph 2385) was admissible.
Background
[2] Dwayne Thompson was shot to death on November 1, 2012 in the parking lot of an apartment complex in Malton, Ontario.
[3] Sgt. Linton was dispatched to the scene. He was the supervisor of the Forensic Identification Service (FIS) platoon working the evening of November 1st and morning hours of November 2nd. Many photographs were taken at the scene by the FIS unit. The officer has authenticated many of the photographs. Counsel for the accused do not take issue with the admissibility of the scene photographs.
[4] During his examination, Mr. Cornelius showed the officer Photograph 2385. Sgt. Linton described this as a photograph of the deceased and that it was taken at a coroner’s office where an autopsy was performed by Dr. Pollanen. Sgt. Linton was not present at the autopsy.
[5] There is no dispute that Sgt. Linton did not take the photograph.
[6] Ms. Morphew raised an objection. The jury was excused and I listened to submissions on the issue.
[7] Counsel advanced two reasons for their objection.
[8] First, Ms. Morphew submitted that the Crown was reneging on an agreement reached at a trial management meeting on September 29, 2016. On that day, counsel raised the issue of the autopsy photographs. Counsel for the accused submitted that the photographs were not admissible through Sgt. Linton, who was not present at the autopsy. The Crown submitted on that day that it was not his intention to lead autopsy photographs through Sgt. Linton.
[9] Indeed, my endorsement released on September 30, 2016, reflects what I thought was an agreement between all of the parties that the Crown would not be leading any autopsy photographs through Sgt. Linton.
[10] Second, counsel submit that the Crown presentation of this photograph as part of a slide deck shown to the jury did not reflect the slide deck that was disclosed to them by email. All counsel acknowledge that the Crown delivered to them a disc yesterday morning but do not agree that they were told that there were changes to the slide deck. All counsel submit they were looking at the original slide deck sent to them by email when the Crown was examining Sgt. Linton.
[11] The Crown submits that it is not reneging on any agreement reached on September 29th. The Crown argues that Photograph 2385 is not an autopsy photograph. Mr. Cornelius asserts that while the photograph was taken at the coroner’s office, the deceased is still wearing his clothes and more significantly his hands are covered in paper bags. The Crown wishes to ask Sgt. Linton about the depiction of Mr. Thompson’s hands in the photograph to confirm that the paper bags in the photograph are the same paper bags that were placed on the deceased by FIS at the scene.
[12] Mr. Hendry submits that he specifically notified counsel of the changes in the presentation yesterday morning and that the new slide deck could be found on the disc.
Analysis
Issue 1: Is the Photograph Admissible through Sgt. Linton?
[13] Sgt. Linton has described in his evidence that he was at the scene of the shooting on November 1, 2012 and November 2, 2012. He has testified that a coroner had attended the scene and that once the coroner had examined the body, paper bags were taped down to the hands of the deceased by the FIS.
[14] Mr. Cornelius wants to focus on the hands of the deceased as depicted in Photograph 2385. Is the Crown permitted to ask Sgt. Linton about the hands in this photograph?
[15] In my respectful view, the Crown is entitled to ask Sgt. Linton questions about the hands and the photograph is admissible through the witness.
[16] Photographic evidence is not automatically admissible; instead, photographs are conditionally admissible. Certain pre-conditions must be “established” on the basis of “some evidence” before a photograph is admissible and made available to a witness. (See my colleague Justice Trotter’s helpful review of the leading cases in R. v. Andalib-Goortani, 2014 ONSC 4690).
[17] However, as Trotter J. notes, once it is established that a photograph has not been altered or changed, and it depicts a relevant scene, then it becomes admissible and relevant evidence. The party wishing to make use of a photograph bears the burden of authentication.
[18] As my colleague notes, the leading Canadian case on authenticating images is R. v. Creemer and Cormier, [1968] 1 C.C.C. 14 (N.S.S.C. App. Div.). McKinnon J.A. noted the following requirements for authentication at p. 22:
All the cases dealing with the admissibility of photographs go to show that such admissibility depends upon (1) their accuracy in truly representing the facts; (2) their fairness and absence of any intention to mislead; and (3) their verification on oath by a person capable of doing so.
[19] I conclude that the photograph is admissible. There is no evidence that the photograph has been tampered with or altered. Furthermore, counsel for the accused, have not made the submission that the photograph is unfair or intends to mislead the viewer. Finally, Sgt. Linton can verify under oath that the photograph is a fair and accurate representation of Mr. Thompson and the paper bags.
Issue 2: Is the photograph prejudicial?
[20] It seems to me that I must consider prejudice. After all, counsel submit that by introducing this photograph the Crown has gone back on an undertaking not to introduce autopsy photographs to Sgt. Linton.
[21] Ms. Morphew’s objection was completely understandable. After the trial management meeting, I must confess that I did not think that any photographs taken at the autopsy were going to be tendered.
[22] Having said all of that, I accept Mr. Cornelius submission that there was no deliberate attempt to renege on an agreement. I cannot find that the Crown has acted inappropriately.
[23] I observe that this whole situation could have been avoided if counsel for the accused all knew in advance what specific photographs in the slide deck were going to be introduced to the witness. There appears to be a misunderstanding. The Crown submits it gave advanced notice. The defence deny this. I accept that the defence did not know in advance that Photograph 2385 was going to be introduced. At the same time, I accept Mr. Hendry’s assertion that he did communicate to counsel that there was an updated slide deck on the disc. Whether counsel heard this or were listening is an entirely different matter. I do not make a specific finding. Ultimately, I find that the situation here was inadvertent and I do not place any fault on a party.
[24] To avoid any future misunderstanding I direct that any slide presentation of photographs, PowerPoint slides, or electronic records must be disclosed in electronic format and hard copy. One hard copy of the presentation must be given to counsel for the accused and one hard copy should be filed as a working copy for the court. The hard copies must be identical.
[25] Again, to avoid any misunderstanding, if the parties are going to exchange material, it should be done in court and on the record. I would recommend that the exchanges take place at our daily 9:30 a.m. meetings.
[26] I have also considered whether Photograph 2385 is prejudicial in the sense that it may stir emotion or inflame the minds of members of the jury. To determine the admissibility of this photograph, which is a graphic depiction of the deceased in a murder case, I must apply the following test set out by Philip J. in R. v. Foreman, [1996] O.J. No. 1916 (Gen Div) at para. 11:
- determine the probative value of the evidence by assessing its tendency to prove a fact in issue in the case including the credibility of witness;
- determine the prejudicial effect of the evidence because of its tendency to prove matters which are not in issue or because of the risk that jury may use the evidence improperly to prove a fact in issue; and
- 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.
[27] In my view, the photograph is admissible applying the three part test.
[28] I acknowledge the photograph is somewhat graphic. It shows the deceased who has been shot. A wound is visible.
[29] On the other hand, the photograph depicts an object (paper bags) that are in issue in this case. During oral submissions Mr. Bryant submitted that this appears to be the only photograph taken by FIS that depicts paper bags on the hands of Mr. Thompson. As I understand his submission, the absence of other photographs showing paper bags at the scene may be an area covered in cross-examination of this witness or other members of the FIS.
[30] I also take into account that other photographs depicting Mr. Thompson lying dead in the parking lot of the apartment complex have also been tendered through this witness. There was no objection to these photographs. While Photograph 2385 is graphic, it was preceded by other graphic photographs showing blood and the deceased laying on the pavement.
[31] After considering this issue, it is my view that this photograph is probative because it illustrates an object described in the testimony of the witness. The witness has authenticated the photograph and the witness can be cross-examined about his assertion that the photograph is a fair and accurate depiction of what was placed on the deceased’s hands at the scene. The probative value of this photograph outweighs the prejudicial effect of admitting it.
[32] In conclusion, I do not think the photograph will overwhelm the jury and inflame their minds. I accept and adopt the following analysis by LaForme J. (as he then was) in R. v. Kinkead, [1999] O.J. No. 1498. At paragraph 17-18 of his ruling, he stated:
[para17] All of the oral evidence in this trial will describe the brutality of this crime and the jury will know its nature. They will know there was a crime committed that resulted in a considerable amount of blood, damage and death to the two sisters. Indeed, they will know this probability exists when they hear Mr. Kinkead arraigned. In my view, and in my experience, juries are generally not surprised, horrified or inflamed to the point of hatred by the scenes they expect to see from a horrific crime. It is certainly true that we live in a time when communications are extraordinarily rapid, comprehensive and complete. The public is deluged with graphic accounts of horrible and dreadful news delivered both in orally pictorial detail assisted by visual depictions. Movies and television shows leave nothing to the imagination. While I would not go so far as to say the Canadian public is totally numb to violence and brutality, I have no hesitation in arriving at the conclusion that it is not always surprised or stunned by it. All of which is to say, I nonetheless continue to believe that we must remain cautious and accept that people can still be horrified and inflamed by what they see. Consequently this exercise continues to be necessary, however, any prejudice alleged must be based upon contemporary common sense and have an air of reality to it.
[para18] It is not sufficient, without proof, to allege a prejudice that is one of mere speculation or conjecture. As I said above, I am of the view that juries are intelligent, well-meaning and conscientious citizens who take their oaths very seriously. Unless common sense or some other proof indicates the contrary, I believe that juries respect and abide by their sworn duties and comply with the instructions of the court.
Conclusion
[33] The photograph is admissible through Sgt. Linton. The Crown may ask the officer questions about the depiction of paper bags in the photograph.
Coroza J. DATE: October 4, 2016