COURT FILE NO.: CRIM J (P) 469/14 DATE: 2016 10 18 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 (IDENTIFICATION EVIDENCE MARGARET WARNER)

Overview

[1] Steven Browne, Amal Greensword and Adrian Williams are being tried by a jury on a single charge of first degree murder in the shooting death of Dwayne Thompson on November 1, 2012.

[2] The Crown theory is that Mr. Thompson attended 7230 Darcel Avenue in Mississauga, Ontario on November 1, 2012 with Margaret Warner, and Shawn Edwards. The Crown will argue that Mr. Thompson thought he was completing a drug transaction with an individual by the name of Scarface. However, instead of completing the drug transaction, Mr. Thompson was shot a number of times. Ms. Warner was with Mr. Thompson moments before he was shot to death.

[3] Ms. Warner testified at the preliminary inquiry. She is anticipated to testify at trial that she was with Mr. Thompson when they went to 7230 Darcel Avenue. They had driven to the building with Mr. Edwards. When they arrived, the two of them got out of the car and Mr. Edwards remained behind.

[4] As they walked towards the lobby of that apartment building, she saw three to four black males running from the lobby into a white car. The males were wearing dark clothing.

[5] Ms. Warner is anticipated to testify that the males got into a car and then started to drive slowly. According to Ms. Warner the car appeared to be watching them when they were in the lobby.

[6] According to Ms. Warner, they waited for Scarface. When Scarface did not appear they left to go back to the car.

[7] Ms. Warner testified that when they emerged from the building and started to walk back to the car, she saw a very dark black male with a black hooded sweater. She saw a second male who she described as a lighter skinned black man with a gun and third lighter skinned black man.

[8] The dark male and the second male with a gun went to Mr. Thompson. She heard gunshots and Mr. Thompson’s body dropped to the floor. She started to run and did not look back. She got into the car driven by Mr. Edwards and they left the scene.

[9] Video surveillance of the lobby area was seized during the investigation. The surveillance video was played at the preliminary hearing. At one point three males are captured on video in the lobby area of 7230 Darcel Avenue some time before the entrance of Ms. Warner and Mr. Thompson in the lobby which is also caught on video.

Issue

[10] On August 31, 2016 I dismissed a request by Mr. Greensword and Mr. Williams to prohibit the Crown from leading evidence from Ms. Warner that the black males she saw when she was approaching the apartment building with Mr. Thompson were the same males she saw accost Mr. Thompson prior to hearing gunshots.

[11] The issue was raised at the preliminary inquiry. The Crown, at the hearing, showed Ms. Warner the video surveillance of the apartment lobby. At one point, the Crown asked Ms. Warner to comment as to whether the three males on video in the lobby were the same males she saw running to the white car when they arrived. Counsel objected. However, the Court permitted the question and Ms. Warner agreed that the males were the same. The witness was not asked to elaborate on her assertion by any counsel.

[12] The Crown argues that Ms. Warner’s evidence is admissible because the question is designed to elicit evidence of fact. The Crown submits that Ms. Warner’s observations at the scene are enhanced by the presentation of a surveillance video which overlapped with her real-time observations. There is nothing prejudicial about asking her if the males on the video were the same men that she saw exiting the lobby when she approached.

[13] Ms. Rozier and Ms. Addie argue that this evidence is prejudicial and should be excluded.

[14] First, both counsel argue that the Crown is effectively eliciting a prejudicial “in-dock identification” of the accused. Second, both counsel argue that the Crown is attempting to elicit inadmissible opinion evidence from the witness. This evidence could mislead the jury and there is a risk that the jury will give Ms. Warner’s opinion more weight that it deserves. Counsel submit that Ms. Warner is in no better position than the jury to draw the inference that the males on the video are the same three to four males that exited the lobby and entered the white car.

[15] I respectfully disagree with Ms. Rozier and Ms. Addie. In my view, the Crown is permitted to show the witness the surveillance video and ask her if she recognizes the three males in the video. I say this for the following reasons.

[16] First, on the record filed on this application it is not clear to me that Ms. Warner’s response is an opinion. In any event, even if it is an opinion, the jurisprudence from the Supreme Court of Canada tells us that it is not always easy to separate fact from opinion or inference. A lay witness is permitted to provide a conclusion about identification. The reason why courts allow such a witness to provide a conclusion “is that the human capacity for recognition, while imperfect, outstrips the human ability to describe what has been observed. Not only is language inadequate to articulate and communicate ordinary facial observations in a discriminating way, the human memory can capture details unconsciously that can appropriately inform conclusions, including about identification”.

[17] If the witness can more accurately express the facts perceived in the form of an opinion, rather than by stating the primary facts, the evidence is admissible. The standard applied to determine admissibility of lay opinion evidence is helpfulness. The lay witness must be in a position to help the trier of fact, for example because of her opportunity for personal observation. If the trier of fact is in as good a position as the witness to form the relevant conclusion, the lay opinion should not be admitted.

[18] In R. v. Brown, at para. 39, the late Rosenberg J.A. held that non-expert evidence of identification is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator. This principle has been described and applied in R. v. Behre and R. v. Gouveia.

[19] This case does not fall squarely into a “recognition case”. Ms. Warner had no prior acquaintance with the males she saw exiting in the lobby. She also had no prior acquaintance with males in the video except that she was at the scene moments after the video captured the three males and she was asked to view the video at the preliminary hearing almost two years later.

[20] However, in my view, because Ms. Warner was present at the scene when the shooting occurred she is in a unique position to assist the trier of fact. She is entitled to describe what she saw, what she heard and what she did. The introduction of a video surveillance video that overlapped her real time observations does not make any of her observations inadmissible. I see nothing objectionable about showing her the video surveillance video and asking her about the males in the video. She is in a position to help the trier of fact because of her personal observations. There is nothing wrong with asking her to comment about images and people caught on video surveillance captured from the lobby of the apartment building during the same time period.

[21] Second, I do not agree that the question being asked of this witness is an inadmissible “in-dock identification”. In any event, even if it is, the majority of the authorities hold that in dock identification evidence remains presumptively admissible.

[22] In this case, Ms. Warner is not being asked to make an identification of the accused. Nor, is she being asked to compare the three males in the video to any of the accused in the courtroom. In fact, her evidence is that she did not see the faces of the males that exited the lobby.

[23] Ms. Warner is being asked whether the men in the video were the men that she observed coming out when she entered the lobby with Mr. Thompson. At the preliminary inquiry, she was not confronted about her assertion that the men on the video were the same men exited the lobby and got into the white car. Based on the record tendered on the voir dire it is not clear what the basis is for this assertion. It is also not clear for me whether, as the trial goes on, any lawyer will ask her to elaborate on this assertion. Depending on how this evidence comes out at trial, a limiting instruction may or may not have to be given. I do not know at this stage. However, as the Crown points out the fact that a limiting instruction may have to be given does not drive the analysis as to admissibility. I agree.

[24] In my view, the deficiencies of Ms. Warner’s evidence can be brought out by cross examination. I am further of the view that depending on Ms. Warner’s evidence, a limiting instruction can be crafted to stress to the jury that they do not have to accept or rely upon her evidence.

[25] In short, the various weaknesses in Ms. Warner’s identification evidence as set out in counsels’ written submissions will be evaluated by the jury in the context of all of the evidence at the end of the trial.

Conclusion

[26] I do not agree that exclusion is the appropriate remedy for this evidence. I dismiss the application. Ms. Warner is permitted to comment on the video and to be asked specifically about the three males in the video. It seems to me that the Crown should ask the identical questions he did at the preliminary inquiry (See Exhibit A, Application Record, Vol 1, Tab 3. Preliminary Inquiry Transcript, January 23, 2014 at pp. 73-75).

Coroza J. DATE: October 18, 2016