CITATION: R. v. Farah and Khattak, 2016 ONSC 2081

COURT FILE NO.: CR 15/086

DATE: 20160329

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

AHMED FARAH and

MOHAMMED KHATTAK

Grace Hession David and Kerry Hughes,

for the Crown

Katie Scott and Hillary Dudding,

for the accused, Ahmed Farah

Nathan Gorham,

for the accused, Mohammed Khattak

HEARD: March 14, 16-17, 2016

K.L. Campbell J.:

Pre-Trial Ruling

The Admissibility of Recognition/Identification Evidence

A. Overview

[1] The accused, Ahmed Farah, currently stands charged with five offences, namely: (1) weapons trafficking for the benefit of, or in association with, a criminal organization contrary to s. 467.12 of the Criminal Code, R.S.C. 1985, c. C-46; (2) conspiracy to traffic in firearms contrary to s. 465(1)(c) of the Criminal Code; (3) unlawful possession of a firearm (a revolver) contrary to s. 92(1) of the Criminal Code; (4) unlawful possession of a prohibited firearm (a Smith & Wesson handgun) contrary to s. 92(1) of the Criminal Code; and (5) unlawful possession of a loaded prohibited firearm (a Smith & Wesson handgun) contrary to s. 95(1) of the Criminal Code. These offences are all alleged to have been committed in Toronto at various times between March 18 and June 13, 2013.

[2] The accused, Mohammed Khattak, currently stands charged, on the same indictment, with three offences, namely: (1) trafficking in cocaine for the benefit of, or in association with, a criminal organization contrary to s. 467.12 of the Criminal Code; (2) trafficking in cannabis (marihuana) in association with a criminal organization contrary to s. 467.12 of the Criminal Code; and (3) trafficking in cannabis (marihuana) contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. These offences are all similarly alleged to have been committed in Toronto at various times between March 18 and June 13, 2013.

[3] The accused are being jointly tried by a jury. On this pre-trial voir dire proceeding, the Crown tenders the viva voce testimony of Det. Cst. Adam Hockaday of the Toronto Police Service (TPS), to provide recognition evidence identifying a number of other individuals from photographs found on electronic devices possessed by the two accused. The Crown does not seek to have the officer identify either of the two accused themselves in any of these photographs.

[4] The Crown contends that this testimony is admissible because Det. Cst. Hockaday is sufficiently acquainted with the individuals depicted in the photographs and is in a better position than the members of the jury to identify the individuals in question, especially given that the Crown cannot or will not be calling them as witnesses. The accused, on the other hand, argue that the testimony is inadmissible as: (1) the officer is not sufficiently acquainted with the individuals depicted in the photographs to be able to reliably identify them; (2) the identification evidence of the officer is hearsay and is neither sufficiently reliable nor reasonably necessary to justify its admission; and (3) the probative value of the tendered evidence of Det. Cst. Hockaday is exceeded by its potential prejudicial impact upon the accused.

[5] At the end of the voir dire proceedings conducted to determine the admissibility of this evidence, I advised the parties of my conclusion that this evidence was largely, but not entirely, admissible. More specifically, I indicated that Det. Cst. Hockaday would be permitted to provide the jury with his recognition evidence identifying the individuals known to him as Liban Siyad, Abdullahi Harun, Ayanle Omar, Anthony Smith, Mohamed Dirie, Ahmed Dirie and Magan Omar – but he would not be permitted to do so with respect to the individual known to him as Hussein Hussein or Yusuf Jama. I also indicated that I would subsequently provide reasons explaining my conclusions. These are those reasons.

B. The Governing Legal Standard

[6] The law is settled that a non-expert witness may provide opinion recognition evidence that the image of a person displayed in a photograph or on a video recording is a particular individual known to them, provided that the witness has a “prior acquaintance” with the individual being recognized and the witness is in a “better position” than the trier of fact to identify the individual. This has been described as the “prior acquaintance/better position” test of admissibility. See R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393, at p. 413; R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 219 O.A.C. 26, 215 C.C.C. (3d) 330 (Ont.C.A.), at para. 39; R. v. Berhe, 2012 ONCA 716, 292 C.C.C. (3d) 456, at paras. 13-23; R. v. Dirie, 2013 ONCA 261, [2013] O.J. No. 1873; R. v. Farhan, 2013 ONSC 7094, [2013] O.J. No. 5519, at paras. 33-36; R. v. Brown, 2013 ONSC 6466, [2013] O.J. No. 5036, at paras. 11-13; R. v. Sheikh-Hussein, 2015 ONSC 2888, [2015] O.J. No. 2554, at paras. 57-58.

[7] In order to meet this threshold standard of admissibility, the witness need not be so familiar with the unique features of the individual recognized so as to permit the witness to describe with particularity the individual’s idiosyncrasies in physical appearance or movement as may be reflected in the photographs or portrayed on the video recording. While such familiarity would certainly strengthen the probative value of the recognition evidence, such matters should be left to the trier of fact to consider in assessing the ultimate weight of the evidence. See R. v. Berhe, at paras. 16-22; R. v. Panghali, 2010 BCSC 1710, [2010] B.C.J. No. 2729, at para. 42, affirmed, 2012 BCCA 407, [2012] B.C.J. No. 2115, at paras. 70-80; R. v. Benson, 2015 ONCA 827, [2015] O.J. No. 6348, at para. 26.

[8] As Blair J.A. noted, in delivering the judgment of the Court of Appeal for Ontario in R. v. Berhe, at para. 20, the accepted “prior acquaintance/better position” standard has the “advantage of flexibility while at the same time providing sufficient criteria … to enable the court to perform its gate-keeping function for purposes of determining threshold admissibility.” As Blair J.A. stated, at para. 21:

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.

[9] While this legal standard may most often be applied in the identification of accused persons, the standard is equally applicable when a witness purports to identify other non-accused individuals from photographs or video recordings. The legal standard is certainly not, by its commonly articulated terms, limited to the identification of accused individuals, and I can conceive of no persuasive reason in principle why the standard would not be equally applicable to the identification of other non-accused individuals.

C. Applying this Legal Standard in the Circumstances of the Present Case

1. Liban Siyad

[10] Det. Cst. Hockaday testified that he met Liban Siyad on at least three particular occasions. First, there was an incident sometime in 2009, when the officer was involved in an incident involving some dispute been Liban Siyad and his older brother, Ayanle Siyad, where the officer was trying to see if Liban Siyad needed any medical attention for an arm injury. He had apparently punched an emergency fire hose cabinet in the building at 370 Dixon Road where he lived at the time, and had cut his arm on the broken glass. His brother was concerned about his injury and just wanted to make sure he was okay. The officer testified that he located Liban Siyad nearby and may have spent approximately ten minutes with him that day in relation to the laceration to his arm. Mr. Siyad did not want to talk to the officer about the incident and, once it was determined that he did not need any medical attention, the officer left him alone.

[11] Second, on June 23, 2009, Liban Siyad was one of a group of three individuals investigated by Det. Cst. Hockaday and a total of five other police officers in connection with an incident of threatening and a stolen cell phone in the area of Dixon Park at 350 Dixon Road. At that point, Mr. Siyad would have been approximately 18 years of age. On this occasion, the officer first spoke to Mr. Siyad for approximately two or three minutes in the parking lot. According to the officer, Mr. Siyad was cooperative, and was not a suspect in the investigation. The officer saw Mr. Siyad again, a few minutes later, when a larger group of males was being investigated by a picnic table near the basketball court. Mr. Siyad had joined that larger group of males and Det. Cst. Hockaday spent approximately 10 to 15 minutes in their company at that time, and engaged in a further dialogue or general conversation with Mr. Siyad for some portion of this time period.

[12] Third, on the evening of May 10, 2012, Liban Siyad was one of three individuals that was investigated by Det. Cst. Hockaday and another police officer, at the rear of 55 Bridesburgh Drive, in connection with a robbery. Mr. Siyad was not the suspect in connection with the robbery. The officer was with Mr. Siyad on this occasion for approximately five minutes, although his police partner was engaged directly with Mr. Siyad for most of this investigation.

[13] Apart from these three specific occasions, the officer knew Mr. Siyad even earlier in 2009, simply from the neighbourhood surrounding the area of Kipling Avenue and Dixon Road.

[14] In his evidence, Det. Cst. Hockaday was able to provide details as to his physical characteristics, including the fact that Mr. Siyad was tall, approximately 6’2” to 6’4” in height, with a slim and slender physique, weighing perhaps 145-150 lbs., and having a very dark complexion. His hair was always kept nearly shaved, or very short.

[15] Det. Cst. Hockaday identified Mr. Siyad in the photographs in Exhibit F under Tabs A1, B5, B6, B9, B10, B11, and B15. With respect to the image of Liban Siyad in the photograph under Tab A1, the officer noted that it showed Mr. Siyad’s wider cheek bones which tapered into his very narrow jaw. The officer also noted that he recognized his other facial features, as well as his tall, slender physique.

[16] Based upon this evidence I am satisfied that the Crown has established that Det. Cst. Hockaday has the “prior acquaintance” with Mr. Siyad that is necessary to permit him to provide the jury with his recognition evidence identifying Mr. Siyad in the photographs. Over the course of approximately three years, the officer interacted personally with Mr. Siyad on at least three specific occasions. These interactions were not brief, fleeting, transitory meetings, but rather were significant, memorable events of some intensity and duration. Accordingly, Det. Cst. Hockaday had an opportunity to meet and interact personally with Mr. Siyad over a period of time. Their acquaintance, over this period of time, put the officer in a position to be able to describe, with specificity, the details of his physical appearance and confidently identify him from the photographs. Further, there seems no question that Det. Cst. Hockaday is also in a much “better position” than the jury to identify Mr. Siyad from the photographs. In the result, the officer’s testimony recognizing Mr. Siyad in the photographs is admissible.

2. Hussein Hussein

[17] Det. Cst. Hockaday testified that he met Hussein Hussein on just one occasion. According to the officer, on May 10, 2012, Mr. Hussein was one of three individuals that he and another police officer investigated in connection with a robbery at the rear of 55 Bridesburgh Drive. Mr. Hussein was not a suspect in relation to the robbery. During the course of this investigation, Mr. Hussein identified himself as Yusuf Jama. The officer spent approximately five minutes with Mr. Hussein that day.

[18] The officer explained that he remembered this particular individual as he was approximately 5’11” or 6’ tall, and was a very heavy man, weighing in the vicinity of between 270 and 300 lbs. Further, Det. Cst. Hockaday was able to describe the other main physical characteristics of Mr. Hussein, noting that he was a black male, of Somalian descent, with short, curly, puffy hair, above his ears.

[19] Det. Cst. Hockaday testified that he learned Mr. Hussein’s real name when he saw a picture of his face and heard of his death in the newspaper sometime in 2013 or 2014.

[20] Det. Cst. Hockaday identified Mr. Hussein in the photograph in Exhibit F under Tab A1. With respect to this image, the officer noted that it showed the height, stature and weight of Mr. Hussein, who was a much larger person than the others.

[21] The Crown has failed to establish that Det. Cst. Hockaday has the necessary “prior acquaintance” with Mr. Hussein that is required in order to permit him to provide the jury with his recognition evidence identifying Mr. Hussein in the photograph. The officer met Mr. Hussein on but one occasion, in May of 2012, for a period of some five minutes. At that time, the individual identified himself to the officer as Yusuf Jama, not as Hussein Hussein. Further, it was a year or two later that the officer learned, apparently from a newspaper report, that this individual was named Hussein Hussein. In the result, the tendered evidence of the officer recognizing Mr. Hussein in the photograph is not admissible.

3. Abdullahi Harun

[22] Det. Cst. Hockaday testified that he met Abdullahi Harun on three occasions. First, on June 23, 2009, Mr. Harun was one of a group of individuals that were investigated by Det. Cst. Hockaday and a total of five other police officers in relation to an incident of threatening and a stolen cell phone in the area of Dixon Park at 350 Dixon Road. The officer spent approximately 10 to 15 minutes in the company of Mr. Harun, and some other men, by a picnic table near the basketball court and, during this time, spoke directly with Mr. Harun.

[23] Second, early in the morning on July 3, 2009, Mr. Harun and three other individuals were investigated by Det.Cst. Hockaday and another police officer in front of the building at 333 Dixon Road. The officer spent approximately five to seven minutes with Mr. Harun and the others this particular day. These individuals claimed that they were on the way to a basketball game, but the officer was skeptical as they had no basketball equipment with them. However, they were not doing anything other than just standing in that location and, once they were identified by the officers, they were permitted to be on their way.

[24] Third, on the afternoon of February 12, 2010, Mr. Harun was one of three individuals that was investigated by Det. Cst. Hockaday and another police officer in front of the McDonald’s restaurant located in the Martinway Plaza at 1735 Kipling Avenue. The police officers stopped these individuals as Det. Cst. Hockaday knew, from his previous dealings with Mr. Harun, that he was subject to certain conditions, and the officers wanted to check to see if he was in compliance with those conditions. Det. Cst. Hockaday explained that he knew that Mr. Harun was on bail in relation to an outstanding robbery charge, and was subject to either a house arrest or curfew condition.

[25] The officer described Mr. Harun as being very tall, in the range of approximately 6’1” to 6’3” in height, and weighing approximately 150 to 160 lbs. Mr. Harun wore his hair in a larger “afro” with larger curls, maybe three or four inches long. The officer also testified that Mr. Harun was a black male, but one who possessed a substantially lighter complexion, and was of Somalian descent or background.

[26] Det. Cst. Hockaday identified Mr. Harun in the photograph in Exhibit F under Tab B12, and commented that his image in this photograph showed his lighter complexion, and his longer, puffy hair.

[27] I am satisfied based on this evidence that the Crown has established that Det. Cst. Hockaday has the necessary “prior acquaintance” with Mr. Harun to allow him to testify before the jury in relation to his recognition of Mr. Harun in the photograph. Over the course of approximately eight months between June of 2009 and February of 2010, the officer interacted personally with Mr. Harum on three specific occasions. Each of these interactions was a significant and memorable investigative event that took some time. They were not momentary, ephemeral exchanges. Det. Cst. Hockaday had the opportunity to meet and interact personally with Mr. Harun over a period of time. These interactions allowed the officer to be able to outline, in detail, the unique aspects of his physical appearance and positively identify him from the photographs. There is no doubt that Det. Cst. Hockaday is also in a much “better position” than the jury to identify Mr. Harun from the photograph. His identification evidence is, accordingly, admissible regarding Mr. Harun.

4. Ayanle Omar

[28] Det. Cst. Hockaday testified that he met Ayanle Omar on multiple occasions in the area of the Dixon Road apartment buildings, the adjoining park area, and in the Plaza at the corner of Dixon Road and Kipling Avenue.

[29] Most specifically, the officer recalled one occasion, on July 3, 2009, when he and another officer investigated Mr. Omar and two other individuals. This took place in the early morning hours, and Mr. Omar and the others were standing in front of the building located at 333 Dixon Road. The officer spent approximately five to seven minutes with Mr. Omar and the others on this particular day. They were all calm and cooperative. These individuals claimed they were on their way to a basketball game, notwithstanding the fact that they had no bags or basketballs or other equipment with them. Once the officers secured their identification, they were permitted to leave.

[30] Det. Cst. Hockaday testified that, subsequently, he dealt with Mr. Omar on many occasions. The officer referred to Mr. Omar as “smiley” as he was always cooperative, and was always smiling and joking. When others would run at the approach of the police, he would always stay and speak cooperatively to the police.

[31] The officer testified that Mr. Omar was a black male with a medium complexion. Physically, he was similar to the officer in his height, at approximately 5’9” tall, but had a smaller build or frame, and a chubby face.

[32] Det. Cst. Hockaday identified Mr. Omar in photographs in Exhibit F under Tabs A2, B3, B8, B11, B12, B14, and B16. With respect to the photograph of Mr. Omar under Tab A2, the officer commented that it showed Mr. Omar with a somewhat more slender face than when he dealt with him, but his face was “very distinct” in that Mr. Omar had larger lips and the officer recognized his eyes. Det. Cst. Hockaday observed that, while Mr. Omar was not smiling in this photograph, he was more typically observed as smiling in the photograph under Tab B8.

[33] The Crown has established that Det. Cst. Hockaday has the necessary “prior acquaintance” with Mr. Omar to permit him to testify before the jury as to how he recognizes Mr. Omar in the various photographs. Det. Cst. Hockaday dealt with Mr. Omar on many occasions over a significant period of time. According to the officer, Mr. Omar had a very memorable demeanour, in that he was always smiling and laughing and cooperative with the police. His various interactions with Mr. Omar permitted the officer to be able to describe, in detail, the physical appearance of Mr. Omar and recognize him positively in the photographs. Accordingly, the identification evidence of Det. Cst. Hockaday regarding Ayanle Omar in the photographs is admissible.

5. Anthony Smith

[34] Det. Cst. Hockaday testified that he met Anthony Smith on two occasions. First, between October 22 and 24, 2011, Det.Cst. Hockaday was one of a number of officers involved in investigating and ultimately arresting Mr. Smith for failing to comply with a recognizance. At approximately 10:35 p.m. on October 22, 2011, Mr. Smith was observed with another male crossing in front of the police car in which Det. Cst. Hockaday was travelling. At the time, Mr. Smith was subject to a “house arrest” bail order, and he appeared to be in violation of the order. When Mr. Smith saw the officers he fled. The police officers attended at his known residence address and spoke to Mr. Smith through a slightly opened, but chain locked, door for about ten minutes. The officers were approximately two or three feet away from Mr. Smith during this conversation, and Det. Cst. Hockaday was able to see his face through the open door. Subsequently, on October 24, 2011, Det. Cst. Hockaday and another officer attended at Mr. Smith’s residence again and spoke to Mr. Smith, this time through a closed door. Later, after obtaining the necessary warrant, these officers arrested Mr. Smith at approximately 10:30 p.m., when he finally left his residence. Det. Cst. Hockaday testified that, in total, he spent about three hours with Mr. Smith, but he acknowledged that some of this time was with the door of his residence closed.

[35] Second, on the evening of July 19, 2012, Det. Cst. Hockaday and another police officer were involved in the arrest of Mr. Smith for failing to comply with a recognizance, in that he was not in the presence of his surety. He had been the passenger in a vehicle that the officers had observed being driven erratically in a parking lot. Subsequently, when drugs were found on his person, Mr. Smith was also arrested on drug-related charges. Det. Cst. Hockaday estimated that he spent a total of approximately 90 minutes, on and off, with Mr. Smith that night.

[36] The officer described Mr. Smith as a black Jamaican male, with a dark complexion, approximately 5’10” or 5’11” in height, with a “thick” build. According to the officer, Mr. Smith maintained his hair very short, almost shaved. His nose was a distinctive feature of his appearance as it was very wide and flat.

[37] According to Det. Cst. Hockaday, Mr. Smith is now deceased, having died in 2013.

[38] Det. Cst. Hockaday identified Mr. Smith in photographs in Exhibit F under Tabs B4, B7, and B13. When viewing the photograph under Tab B4, the officer testified that it showed that Mr. Smith had a heavier, stocky build and broad shoulders, and a wide flat nose. The officer thought that Mr. Smith appeared to be of Jamaican descent, but had no accent in his voice.

[39] I am satisfied based, on this evidence, that Det. Cst. Hockaday has the necessary “prior acquaintance” with Mr. Smith for him to give his recognition evidence before the jury identifying Mr. Smith in the photographs. On two separate occasions, in late of October of 2011 and in mid-July of 2012, Det. Cst. Hockaday was involved in arresting Mr. Smith. On each of these memorable occasions, the officer spent considerable time in the presence of Mr. Smith and talking to him directly, sometimes face-to-face in close quarters. As a result of these significant interactions between Mr. Smith and the officer, Det. Cst. Hockaday was able to describe, in some detail, the unique features of his physical appearance, including his broad flat nose, and confidently identify him in the various photographs. As Mr. Smith is deceased, there is simply no other way that Mr. Smith can be identified in the photographs, and ensures that Det. Cst. Hockaday is in an infinitely “better position” than the jury to identify Mr. Smith from the photographs. In the result, the officer’s testimony recognizing Mr. Smith in the photographs is admissible.

6. The Dirie Brothers – Ahmed and Mohamed

[40] Det. Cst. Hockaday testified that he was familiar with the three Dirie brothers. Mohamed is the eldest, Mohamud is in the middle, and Ahmed is the youngest.

[41] Det. Cst. Hockaday testified that at approximately 9:00 on the morning of October 6, 2009, he was involved in a uniformed capacity in a “hold-up squad” investigation. The oldest Dirie brother, Mohamed Dirie, was the suspect in this investigation. The officer had been given a “face-shot” photograph of the suspect, who was to be arrested for armed robbery. At one point, Mohamed Dirie was located walking southbound on Islington Avenue towards his residence, and he was physically taken down by other officers. Det. Cst. Hockaday witnessed Mohamed Dirie struggling with these other officers on the ground. The officers were telling him to stop struggling and arresting arrest. Det. Cst. Hockaday stood by and blocked traffic in the area. At one point, Det. Cst. Hockaday heard one of the struggling officers, tell Mohamed Dirie to “let go” of the officer’s gun.

[42] Eventually, when he was subdued, Det. Cst. Hockaday transported Mohamed Dirie into the back of one of the police cars. In so doing, the officer made observations of Mohamed Dirie. He testified that Mr. Dirie was approximately 5’8” or 5’9” tall, weighed about 145 to 150 lbs., with a very short, shaved black “afro,” and a dark complexion. The officer testified that Mr. Dirie’s eyes are “very close together” and he almost appeared cross-eyed. The officer conceded that he did not spend much time with Mohamed Dirie at that time, as other officers transported him back to the police station.

[43] Det. Cst. Hockaday testified that he saw Mohamed Dirie subsequently around the building where he lived. The officer recalled one specific occasion in 2011, when he saw Mr. Dirie after he had recovered from the injuries he had suffered in a very serious motor vehicle accident. He was using a cane to help him walk. The officer stopped to talk to him about the accident and his injuries. The officer thought that he may have spent 10 minutes talking to him on that occasion.

[44] In early August of 2011, Det. Cst. Hockaday was working on a “shooting investigation.” The brother in the middle, Mohamud Dirie, was one of the suspects in the investigation. On August 4, 2011, the officer attended at his residence for the purpose of executing a search warrant that was on the way. Det. Cst. Hockaday testified that at 12:20 p.m. that day, he and another officer entered the residence and inside he found both Mohamud Dirie and Ahmed Dirie, and both of these men were physically secured by the two officers. Shortly thereafter, the search warrant arrived and the police were in the home for approximately 90 minutes executing the warrant. Det. Cst. Hockaday was responsible for passing custody of Mohamud Dirie to a uniformed officer. When the police left the residence, Ahmed Dirie remained in the premises.

[45] Det. Cst. Hockaday testified, by that point in time, he already knew Ahmed Dirie, as he had seen him and dealt with him in front of the building where he lived, and had identified him as one of the three Dirie brothers. At that point, Ahmed Dirie would have been approximately 16 to 18 years of age. He was a black male, with a shaved head, approximately 5’9” or 5’10” tall, with a slender build at approximately 130 lbs., and of Somalian descent.

[46] Det. Cst. Hockaday identified Mohamed Dirie in the photograph in Exhibit F under Tab A1, and identified Ahmed Dirie in the photograph in Exhibit F under Tab B14. With respect to the image of Mohamed Dirie, the officer noted that it showed that he was a little taller with a darker complexion, and with his eyes very close together and almost appeared “cross-eyed.”

[47] With respect to Mohamed Dirie, I am satisfied, based on this evidence, that Det. Cst. Hockaday has the required “prior acquaintance” with Mr. Dirie to permit him to provide the jury with his recognition evidence of Mr. Dirie in the photograph. In October of 2009 the officer was personally involved in the arrest of Mr. Dirie. This was an unforgettable incident in that, during the course of his arrest for an alleged armed robbery, Mr. Dirie resisted the arrest, struggled with the officers, and tried to seize control of the firearm of one of the officers involved in the arrest. In putting Mr. Dirie in the police car, the officer had the opportunity to make close observations of the physical characteristics of Mr. Dirie. Mohamed Dirie was also memorable to the officer for another reason. Mr. Dirie had subsequently been involved in a very serious car accident and, after he had recovered, the officer spent some time with him talking to him about the accident, his injuries and his recuperation. This face-to-face conversation with Mr. Dirie also gave the officer an excellent opportunity to observe his physical characteristics. In the result, the officer was able to outline the unique physical characteristics of Mohamed Dirie, including his close-set, almost crossed-eyes, evident in the photograph. His prior acquaintance with Mohamed Dirie put the officer in a better position than the jury to recognize him in the photograph.

[48] With respect to Ahmed Dirie, I am also satisfied that Det. Cst. Hockaday possesses the required “prior acquaintance” with Mr. Dirie to allow him to provide the jury with his recognition evidence identifying Mr. Dirie in the photograph. In early August of 2011, the officer had the opportunity to spend considerable time in the presence of Ahmed Dirie. His older brother, Mohamud, was a suspect in a shooting investigation, and both Mohamud and Ahmed Dirie were detained in their residence during the execution of a search warrant. Ahmed Dirie was secured for the entire 90 minutes while Det.Cst. Hockaday and the other officers were engaged in their search of the premises. This was not the first or only time that the officer had seen Ahmed Dirie. According to Det. Cst. Hockaday, he had seen and dealt with Ahmed Dirie on other occasions in the vicinity of his residence. These various opportunities to observe Ahmed Dirie put the officer in a position to recall and describe his various physical characteristics and positively identify him in the photograph. Further, Det. Cst. Hockaday was in a “better position” than the jury to identify Ahmed Dirie in the photograph. Therefore, the officer’s testimony recognizing Ahmed Dirie in the photograph is also admissible.

7. Magan Omar

[49] Det. Cst. Hockaday testified that he met Magan Omar on one occasion. It was on the evening of April 7, 2011. He and another officer approached Mr. Omar and another male in the area of 265 Dixon Road and Islington Avenue, believing that one of them may have been in breach of a bail condition. Mr. Omar was walking and the other male was on a bicycle. Another police officer was then summoned to the area to assist. However, before he could arrive, Mr. Omar and the other male split up. Det. Cst. Hockaday and his partner then approached Mr. Omar, brought him back to the area of the unmarked police van, and spoke to him face-to-face from a short distance. The other male was subsequently also brought back to the area of the van, by the third summoned police officer upon his arrival, and also questioned.

[50] According to Det. Cst. Hockaday, Mr. Omar was fairly tall, perhaps 6’1” or 6’2” tall. He weighed between 180 and 200 lbs. and was quite thick and muscular in his build. The officer testified that Mr. Omar has a very distinctive face, in that his nose looks “crooked,” perhaps from having been broken before. As to his complexion, the officer testified that Mr. Omar was a black male of Somalian descent. Mr. Omar wore his hair in long, thick, shoulder-length braids down the back of his neck. The officer spent approximately 10 to 15 minutes talking to Mr. Omar that night.

[51] Det. Cst. Hockaday identified Magan Omar in the photographs in Exhibit F under Tab A1, B3, B5, and B10.

[52] With respect to the image of Magan Omar in the photograph under Tab A1, the officer noted that it showed Mr. Omar’s “distinct nose,” which has the “curve” as if it had been broken, and his very “full face,” and heavier stature and build. With respect to the image of Magan Omar in the photograph under Tab B10, the officer testified that it showed his long braided hair, his large crooked nose, and his muscular, stocky physique.

[53] While Det. Cst. Hockaday only interacted with Magan Omar on but one occasion, in early April of 2011, I am satisfied that this significant face-to-face meeting, of 10 to 15 minutes duration, provided the officer with the necessary “prior acquaintance” with Mr. Omar to allow him to provide the jury with his recognition evidence identifying Mr. Omar from the photographs. Mr. Omar identified himself with a federal parole card, and this was the first time that Det. Cst. Hockaday had seen such an identification document. As a result of this memorable interaction, Det. Cst. Hockaday was in a position to be able to describe, in considerable detail, the unique physical characteristics of Mr. Omar, and in particular his distinctive nose and long braided hair, and identify him with confidence in the various photographs. Further, Det. Cst. Hockaday is in a “better position” than the jury to identify Mr. Omar from the photographs. In the result, the officer’s testimony recognizing Mr. Omar is admissible.

D. The Admissible Recognition Evidence – Based on Hearsay or Not?

1. Introduction

[54] Defence counsel contend that the recognition evidence of Det. Cst. Hockaday is inadmissible hearsay evidence as the testimony of the officer fundamentally depends upon the accuracy of the names that he was provided by the individuals he now purports to recognize, and so their self-identification is being relied upon for its truth. Defence counsel argues that, because this is hearsay evidence, it is inadmissible because the Crown will not be calling any of these individuals as witnesses, so they will not be subject to any cross-examination, and the evidence itself does not possess the requisite degree of threshold reliability and, with respect to the individuals who are not deceased, is not reasonably necessary. I reject this argument. In my view, regardless of the purpose (i.e., hearsay or not) for which the Crown tenders the “self-identification” evidence that is inherent in the recognition testimony of Det. Cst. Hockaday, the evidence is admissible.

2. Self-Identification is a Traditional Exception to the Hearsay Rule

[55] First, this kind of self-identification evidence is legally admissible as it falls within one of the traditionally recognized exceptions to the rule against hearsay. Accordingly, if the Crown tenders this self-identification evidence through the officer for the truth of its contents, it is admissible to prove the identity of the individuals recognized by the officer. In S.C. Hill, D.M. Tanovich and L.P. Strezos, McWilliams Canadian Criminal Evidence (2015, 5th ed., loose-leaf), § 7:210.30, at p. 7-170, the authors describe “Self-Identification” as one of the “Other Miscellaneous Exceptions” to the hearsay rule in the following terms:

Evidence that a person identified themselves by a particular name is admissible to show that they are that person. Whether the person so self-identified is the same person as is being considered by the court, is a question of weight and a function of how common or unusual the name is and the circumstances under which the self-identification took place.

[emphasis added – citations omitted]

[56] Similarly, in J.H. Wigmore, Evidence in Trials at Common Law (1979, J.H. Chadburn Rev.), vol. 2, § 667a, at p. 928, the author describes the rule permitting evidence of “Another person’s name” as follows:

A person’s name is the title by which he himself and others habitually call him. To know a person’s name, therefore, is to have heard him so called by himself and by others. In strictness, such an utterance is not hearsay (§ 1772, infra), except where it is made as an assertion of fact. But, though it may be hearsay, as a source of information, yet it is universally relied upon as a source of knowledge. Courts have commonly accepted the testimony founded upon it.

[some emphasis added – citations omitted]

[57] There are many judicial authorities cited by the authors of these leading evidence text book writers in support of this exception. The Canadian judicial authorities certainly support the existence of this traditional exception to the hearsay rule. See, for example R. v. Schryvers, 1962 CanLII 547 (BC SC), [1963] 2 C.C.C. 286 (B.C.S.C.); R. v. Lively, 1969 CanLII 1019 (NS SC), [1970] 3 C.C.C. 119 (N.S.Co.Ct.), at p. 120; R. v. Chandra (1975), 1975 CanLII 1294 (BC CA), 29 C.C.C. (2d) 570 (B.C.C.A.), at p. 573; R. v. Batista, [2002] O.J. No. 490 (S.C.J.), at paras. 24-28, affirmed, [2002] O.J. No. 3861 (C.A.); R. v. Brown (2003), 2003 CanLII 27393 (ON SC), 13 C.R. (6th) 317, [2003] O.J. No. 2152 (S.C.J.), at paras. 25-29, 40; R. v. Webster, [2015] O.J. No. 4344 (S.C.J.) at paras. 16-17, 35-43; E.G. Ewaschuk Q.C., Criminal Pleadings and Practice in Canada (2015, 2nd ed.), vol. 2, § 16:7160, at pp. 16-191 to 16-192. As Campbell J. aptly stated in R. v. Brown, at paras, 26 and 29, after referring to some of these authorities:

Self-identification, an exception to the hearsay rule, is admissible as prima facie evidence that the person who identifies himself by name is in fact that person.

Self-identification by name alone is a long-standing traditional exception to the hearsay rule. Because the self-identification is admissible as a traditional exception to the hearsay rule, the [accused’s] hearsay argument fails.

3. Admissible for a Non-Hearsay Purpose – Circumstantial Evidence

[58] Second, the self-identification evidence inherent in the recognition evidence of Det. Cst. Hockaday is also admissible for a non-hearsay purpose. To the extent that the testimony of the officer depends upon the specific names that he was provided by the individuals depicted in the photographic images, the Crown not need rely upon the truth of the contents of those identity assertions. Rather, the Crown may rely upon the mere fact that the individuals made those specific identity assertions, as a piece of circumstantial evidence in this case. In such circumstances, it would matter not whether the individuals accurately identified themselves, or provided the police with entirely false identities. The Crown might tender the evidence of Det. Cst. Hockaday to simply establish how the photographed individuals identified themselves to him in their previous interactions. Det. Cst. Hockaday will testify that specific individuals in the photographs are known to him by certain names. The relevance of the identity assertions by some of these individuals may, accordingly, not hinge on the truth of the declarant’s assertions as to their identities, but rather only upon the fact that the assertions were made to the officer. Accordingly, the evidence may not be relied upon by the Crown for a hearsay purpose. See R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at paras. 1-4, 30-32, 36; R. v. Brown, at paras. 21-23; R. v. Henry, [2006] O.J. No. 4167 (S.C.J.), at paras. 37-38; R. v. Williams, 2013 ONSC 1303, [2013] O.J. No. 958 (S.C.J.), at paras. 22-28; R. v. Chandra, at paras. 6-7; R. v. B. (D.J.), 2007 ONCA 368, [2007] O.J. No. 1893.

[59] Of course, to the extent that the evidence is not relied upon for a hearsay purpose, the evidence need not fall within a traditionally recognized exception to the hearsay rule, nor meet the twin criteria of reliability and necessity required by the principled approach to the admissibility of hearsay evidence.

4. Conclusion

[60] In the final analysis, in my opinion there is no hearsay-related complaint that can justify the exclusion of the recognition evidence of Det. Cst. Hockaday. If the self-identification evidence within that recognition testimony is relied upon for the truth of its contents, the evidence is admissible as it falls within a recognized exception to the rule against hearsay. On the other hand, if the self-identification evidence is relied upon for a non-hearsay purpose and only for the fact that the identity assertions were made to the officer so as to explain how the officer knew these recognized individuals, the evidence is admissible as it is not hearsay.

[61] In any event, contrary to the submission of defence counsel, the Crown need not subpoena each of the non-deceased individuals that Det. Cst. Hockaday purports to identify in the photographs in order to: (1) secure their viva voce testimony as to their true identities; and (2) permit the jury to compare their current physical appearance with their appearance in the photographs – and thereby assess and weigh the accuracy of the recognition evidence of Det. Cst. Hockaday. The evidence is admissible without their court appearance and/or viva voce testimony.

E. Probative Value vs. Potential Prejudicial Impact

[62] Defence counsel argue that the evidence of Det. Cst. Hockaday should also be excluded as its probative value does not exceed its potential prejudice to the accused. I disagree.

[63] There is no doubt that identification evidence, even recognition evidence given by an honest witness, can often be unreliable and inaccurate. Such evidence is difficult to accurately assess as it is often provided by honest, credible witnesses, and triers of fact may place undue reliance upon such evidence. As a result of the inherent frailties of such evidence, it is an acknowledged source of wrongful convictions. See R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at paras. 36-40; R. v. Benson, 2015 ONCA 827, [2015] O.J. No. 6348, at paras. 25-26; R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283, at paras. 19-20; R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 110 C.C.C. (3d) 445 (Ont.C.A.), at pp. 450-451; R. v. A.(F.) (2004), 2004 CanLII 10491 (ON CA), 183 C.C.C. (3d) 518 (Ont.C.A.), at para. 39.

[64] Accordingly, the recognition identification evidence of Det. Cst. Hockaday may be unreliable and inaccurate. After all, the officer purports to be able to confidently recognize a number of different individuals that he is acquainted with only through a limited number of prior occasions, when he has been similarly exposed to hundreds if not thousands of other such individuals through his police duties over the years in this same geographic area. Clearly, he could be mistaken in indentifying some or all of the individuals he purports to be able to recognize.

[65] At the same time, on its face, the identification evidence of Det. Cst. Hockaday has considerable probative value on some of the important issues in this case. The legal requirements that the officer have a “prior acquaintance” with the individual being recognized and be in a “better position” than the trier of fact to identify the individual in question ensures that the evidence has at least its own limited inherent degree of probative value. The officer must possess, as I have found, sufficiently familiarity with the person identified to justify the admission of the evidence and be in a better position than the jury so as to be helpful to the trier of fact in relation to this evidence. As I have sought to outline with respect to each of the individuals Det. Cst. Hockaday purports to recognize, the officer has provided a detailed physical description, including physical characteristics unique to the individual, and explained how and why he is able to recognize them. If the jury accepts his evidence as truthful, the jury could properly find that his evidence is accurate and reliable and possessed of considerable probative force.

[66] On the other hand, the potential prejudice to the two accused is slight.

[67] First, it is important to appreciate that the evidence of Det. Cst. Hockaday is not being tendered to prove the identity of either of the two accused persons. While the Crown certainly contends that some of the photographs contain images of the accused persons, the Crown does not argue that Det. Cst. Hockaday should be permitted to identify either of the accused in the photographs. Indeed, the Crown concedes that, given the personal presence of the accused in court during the trial, the jury is equally situated to determine whether the photographs contain images of one or both of the accused. Accordingly, the officer will only be identifying others in his testimony. This reality goes a considerable distance to minimize any potential prejudice to the accused by the admission of this evidence.

[68] Second, defence counsel can, of course, cross-examine Det. Cst. Hockaday as they wish in an effort to demonstrate to the jury any and all of the potential frailties of his purported identification of these various individuals. In so doing, they can highlight issues such as: (1) when the previous contacts with these individuals took place; (2) the circumstances and duration of these earlier contacts; (3) the officer’s investigative focus at the time of these earlier contacts and his ability to make reliable observations of these other individuals; (4) whether the officer personally made any notes of such earlier contacts, and the detail and extent of such notes; (5) whether any other documentation was created by the officer in relation to these earlier contacts; (6) the ability of the officer to now recall the details of these earlier contacts with these other individuals and the extent to which he must refresh his memory in this regard from any available documentation; and (7) the circumstances surrounding the officer’s subsequent purported recognition of these other individuals.

[69] Third, contradictory evidence can also be called to the extent that the evidence of Det. Cst. Hockaday is perceived as inaccurate. It is worth recalling in this regard that the photographs which are being used by Det. Cst. Hockaday to identify these various other individuals were taken from electronic devices found in the possession of the two accused persons. Of course, neither of the accused bear any burden of proof with respect to any issue in this case. However, they will have the opportunity to call any relevant admissible evidence that they wish in this case, including any evidence they wish in relation to the identities of the individuals in the photographs found on their respective electronic devices.

[70] Finally, at the end of the trial, the jury can be fully and accurately instructed about the potential dangers of identification evidence and appropriately warned as to its potential unreliability, so that they will be able to approach their consideration of the testimony of Det. Cst. Hockaday with the appropriate degree of care and caution, and appreciating the risks concerning the potential unreliability of this evidence. See Mr. Justice David Watt, Manual of Criminal Jury Instructions (2015, 2nd ed.), at pp. 391-398. The jury can also be instructed that, to the extent that the background evidence might reveal the potential involvement of these recognized individuals in any illegal or criminal conduct, this evidence is not admissible against the two accused simply as a result of any apparent association. Accordingly, the evidence is admissible.

[71] In summary, after assessing the nature and quality of the testimony of Det. Cst. Hockaday, and weighing it against the potential prejudice its admission might cause to the two accused, I have concluded that the probative value of this evidence significantly exceeds any potential prejudice to the accused.

F. Conclusion

[72] Accordingly, as I have already advised the parties, Det. Cst. Hockaday will be permitted to provide the jury with his recognition evidence identifying the individuals known to him as Liban Siyad, Abdullahi Harun, Ayanle Omar, Anthony Smith, Mohamed Dirie, Ahmed Dirie and Magan Omar in the various photographs found on the electronic devices found in the possession of the two accused. The officer will not, however, be permitted to do so with respect to the individual known to him as Hussein Hussein or Yusuf Jama.

[73] To the extent that any issues may arise as to how this evidence may be led procedurally before the jury, so as to properly minimize any potential prejudice to the accused, or how the jury should ultimately be instructed as to their proper legal use of this evidence, those issues may, of course, be raised by the parties at the appropriate juncture in these proceedings.

______________________________

Kenneth L. Campbell J.

Released: March 29, 2016

CITATION: R. v. Farah and Khattak, 2016 ONSC 2081

COURT FILE NO.: CR 15/086

DATE: 20160329

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

- and -

AHMED FARAH and

MOHAMMED KHATTAK

Pre-Trial Ruling

Recognition/Identification Evidence

K.L. Campbell J.

Released: March 29, 2016